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Protocol on Ireland/Northern Ireland

Volume 819: debated on Thursday 3 March 2022

Question for Short Debate

Asked by

To ask Her Majesty’s Government what assessment they have made of the impact of the Protocol on Ireland/Northern Ireland on recent political developments in Northern Ireland.

My Lords, our minds and that of the Foreign Secretary are, inevitably and rightly, focused on Ukraine at present, but we also need to debate other issues that matter greatly, including Northern Ireland and the protocol, which have their own rhythm and timetable—not least, of course, their electoral timetable—so I am delighted that we are debating the protocol this afternoon.

It is an honour to chair the sub-committee on the protocol in your Lordships’ House. It is not all that long ago that the noble Lord, Lord Caine, as a member of that sub-committee, was interrogating the noble Lord, Lord Frost, as the Minister with responsibility for the protocol. I am delighted that they are both taking part in this debate, and I look forward to discovering shortly whether their change of roles has led to a change of views.

I should also be grateful if the Minister could say to the Minister of State at the Foreign Office, James Cleverly, that the sub-committee, and I as its chair, look forward to his involvement with it over the next few weeks and months. The sub-committee on the protocol has in its membership Members of your Lordships’ House who have long-standing experience of and involvement in Northern Ireland and are actively engaged in its politics. I am glad that a number of the sub-committee’s members are taking part in today’s debate.

The sub-committee has tried not to reach a view on the merits of the protocol, on which there are different views, but to consider what the effects of the protocol are so far and what they might be, were it to be implemented in full. Nevertheless, the effect of the protocol on the political scene in Northern Ireland is plain for all to see, hence today’s debate.

The sub-committee on the protocol has six core tasks. The first is document-based scrutiny of EU legislation applying to Northern Ireland under the protocol, and over the past year we have written nearly 100 detailed letters to government departments on nearly 50 EU legislative documents applying to Northern Ireland. The second is scrutiny of the implications of domestic UK legislation and policy for Northern Ireland; we wrote to the Minister concerned at about the time of Second Reading and have recently written on the implications for Northern Ireland of the Subsidy Control Bill, the Nationality and Borders Bill and the Elections Bill. The third is scrutiny of the UK-EU bodies relevant to the protocol, including the Withdrawal Agreement Joint Committee, which met most recently on 21 February. The fourth is reviewing the impact of the protocol on UK-Irish relations, which has included meetings with the committees of the Oireachtas. The fifth is interparliamentary dialogue, including with the Northern Ireland Assembly; I stress here how much the sub-committee has appreciated and valued our interactions with the Assembly and with the Northern Ireland Executive. Finally, the sixth is monitoring the protocol’s political and socioeconomic impact on Northern Ireland, to which today’s debate is particularly relevant.

The sub-committee agreed an introductory report on the protocol last July, and we have since scrutinised individual aspects of the protocol against the backdrop of the continuing talks between the Government and the European Commission. We have written to Ministers on, among other things, medicines, the rights of individuals and the potential role of the European Court of Justice. We are now completing a report on the importance, in relation to Northern Ireland, of proper parliamentary scrutiny of European legislation. All members of the sub-committee are concerned at the application of European legislation to Northern Ireland without Northern Ireland or Great Britain having the chance to comment effectively before legislation is agreed.

In the course of this work, we have spoken to, among others, commercial interests in Northern Ireland, experts from the pharmaceutical sector in Great Britain, shipping interests, the Equality Commission for the Northern Ireland, the Northern Ireland Human Rights Commission and academic experts from a wide spectrum of political views. In a recent seminar, we also spoke to stakeholders from Northern Ireland and Dublin. One inescapable conclusion I have drawn from these contacts is that the protocol is already having an effect. The coming into effect of some aspects of the protocol, particularly on agricultural and veterinary products, has of course been put back but, in other fields, legislation is being passed by the European Union that is having or will have a marked impact on different sectors of life in Northern Ireland.

It is clear, too, that the protocol is affecting economic activity. For example, trade flows between Northern Ireland and Ireland are increasing. To some, this is a sign of the advantages of the protocol and a welcome consequence of Northern Ireland remaining in the United Kingdom’s single market at the same time as remaining a member of the European Union’s single market. To others, it is a matter of serious concern, adversely affecting businesses in Northern Ireland and Great Britain, for whom the extra bureaucratic burden of the protocol is just too great and leading to a diversion of trade that may justify the invocation of Article 16. Views differ, but the impact of the protocol is clear.

So it is not surprising that the protocol will be an important issue in the Northern Ireland elections on 5 May. Personally, I am glad to note from the communiqué of the Joint Committee’s last meeting that discussions between the British Government and the European Commission will continue, at least at a technical level, in the meantime. However, for an agreement to be reached, whether now or in future, clearly there will need to be—I deliberately put this neutrally—movement on both sides. My question for the Minister is simple: does he think that an agreement is achievable? If so, what is his best guess as to timing? I look forward to the debate.

My Lords, this is the first time I have spoken as a Back-Bencher since I stepped down from the Government in December. I am glad to have the opportunity to do so now and offer my support for the approach that the Government and my noble friend Lord Caine have been taking.

As the Motion put forward by the noble Lord, Lord Jay, sets out—and as the work of his sub-committee has made clear, as he said—politics in Northern Ireland have come under ever greater strain since the start of this year. The tension created by the protocol obviously underlies the current difficulties, which stem ultimately from the destruction of the protocol’s moral basis caused by the EU’s attempt to put a vaccine regulatory border on the island of Ireland in January last year.

As has been said, the political situation is now very troubling. We do not have a First Minister or Deputy First Minister in post, and the Executive are effectively inoperative. The courts are looking at fundamental aspects of the protocol. It is by no means clear that a stable Executive can be established after the elections. In short, it is clear that there is political and societal disruption.

This situation plainly cannot be allowed to continue. There needs to be significant change. The protocol could have worked properly only with very delicate handling. It has not had it, so change must come. When it does, it must be in the direction of re-establishing full UK sovereignty and legal normality in Northern Ireland. That has to be the end goal. Reversion to this norm is the best way to provide long-run stability and properly protect the Belfast/Good Friday agreement.

Much the best way forward, of course, would be to renegotiate the protocol, as the Government have proposed, so that it can be supported across all communities in Northern Ireland and so that it respects all three strands of the Belfast/Good Friday agreement. I hope that the EU might yet do that in the new spirit of collaboration that currently exists over our common response to Russian aggression in Ukraine. However, if it does not do so, it will be perfectly reasonable for the Government to use the Article 16 safeguard provisions.

Finally, we must also remember that the protocol is explicitly a temporary arrangement. It disappears in 2024 unless the Assembly wishes it to continue. That consent vote is important. It is entirely legitimate for the UK Government to have a view on it, and I personally think that view should be that it is not in the interests of Northern Ireland for this protocol, in this form, to continue beyond that vote. I will certainly support the Government in any action they take to re-establish stability and to secure Northern Ireland’s place in this United Kingdom.

My Lords, I first thank and praise the noble Lord, Lord Jay, for securing this debate. I declare an interest as a member of the protocol sub-committee. Our chairman, the noble Lord, Lord Jay, has adequately addressed the main purpose, remit and terms of reference of our sub-committee: the scrutiny of EU legislation and the interrogation of the business and political interests that bear down on the protocol.

For me, the protocol and the political stability of the institutions in Northern Ireland are intertwined. Unfortunately, as a result of Brexit—of which the protocol is either the son or the daughter—we have had much political instability in Northern Ireland. Political negotiations will be the key. There is a need for political negotiations between the British and Irish Governments and the EU. There should be a separate negotiating process between the two Governments, who are the co-guarantors of the Good Friday agreement, to find some solutions. The Minister said to me in the previous debate on the Northern Ireland Bill that it was the Government’s intention to hold negotiations in the post-election scenario. I said to him then that it was my fear that we may not have institutions at that juncture on 6 May. It is vital for both Governments to get on with it.

I was opposed to Brexit. The protocol was negotiated by the UK Government and the EU, and I have to say that for a former Minister to decry that protocol, when he was directly involved in the negotiations, is a bit much. All that negativity impacted on our political discourse. As somebody who was directly involved in the politics of Northern Ireland and has talked to the public on the doorstep, I can say that they are just sick, sore and tired of it. They want to see a restoration of their political institutions and politicians dealing with health, education and the economy. They want politicians to work together to provide that vision: the framework that will lead to a healthy economy in this post-pandemic phase. They want people to help heal all our ills. They want to build a shared society and see the reconciliation that is reflected in the three-stranded approach of the Good Friday agreement. I hope that can come to pass. Please stop using an international agreement as a bogey person.

My Lords, I am a member of the sub-committee. We requested some assistance, through opinion polls, as to the current state of play—with all the limitations that we know about opinion polls. The February 2022 survey of Queen’s University, Belfast disclosed that 50% agree to the proposition that the protocol is on balance a good thing for Northern Ireland. The LucidTalk NI tracker poll carried out in January found that 36% thought the protocol was wrong and should be scrapped, 44% support the protocol but believe it should be reformed or adjusted, and 18% support and have no problems with it. The general picture is that the protocol is supported by perhaps two-thirds of the population, although a large section of those think it should be at least revised.

The problem is that the UK Government agreed to a solution for Northern Ireland which has two fundamental flaws. First, they agreed that the European Union could make laws directly affecting Northern Ireland but without a voice for its people. The second flaw is that they gave to the European Court of Justice, on which there is no longer even a UK representative, jurisdiction to pass judgment in infringement proceedings, or JRs, in certain areas which affect Northern Irish businesses and people, under paragraph 4 of Article 12.

The simplistic approach to these problems is to call for the scrapping of the protocol altogether but Article 16 permits unilateral safeguarding measures only if the protocol leads to

“serious economic, societal or environmental difficulties that are liable to persist”

or to “diversion of trade”. However, any action taken must be temporary—

“restricted with regard to their scope and duration”—

and limited to involving only the issues explicitly identified. Article 16 is not intended to allow either party to suspend provisions of the protocol permanently or in their entirety. I was surprised that the noble Lord, Lord Frost, suggested that it could be used this afternoon.

Unless we break the terms of the treaty, we have to swallow our pride, acknowledge our mistakes and seek solutions with our EU counterparts. We have to address the democratic deficit and seek a voice in the making of EU legislation, and while allowing the European Court its fiercely protected right to be the sole arbiter of European law, that must be indirect: we should negotiate to use the arbitration mechanisms provided for in Articles 167 to 181 of the withdrawal agreement. The essential thing is that the protocol must be made to work.

My Lords, I too congratulate the noble Lord, Lord Jay, on securing this short debate on an issue which, it appears, will continue to dominate Northern Irish politics for some time to come, at least until 5 May. I supported Brexit and maintain that leaving the European Union will serve the best interests of the United Kingdom in the years ahead. However, as a committed unionist, what I most certainly did not vote for was a dilution of our national sovereignty, with Northern Ireland cut off from the rest of the United Kingdom by a sea border signed off by Her Majesty’s Government. We are now forced to live under a different set of rules and regulations than Great Britain and we have no say over them at all.

Speaking in August 2020, Boris Johnson said:

“'There will be no border down the Irish Sea—over my dead body'”.

But he signed up for one in any case and, the last time I checked, the Prime Minister was very much alive and kicking. The question is: what do we do about the protocol? The answer is to engage—to engage, not to walk away.

The DUP’s decision to pull its First Minister out of the Northern Ireland Executive was a sign of political desperation as the Assembly elections edge ever closer. It was also incredibly selfish, foolhardy and damaging to local people’s lives in Northern Ireland. The fact that the DUP chose to collapse the Executive without knowing for certain whether my colleague Robin Swann, the Health Minister, had the power to make legally binding decisions over the future of Covid regulations tells you everything you need to know about that party’s priorities. It also left him with no long-term health budget to help Northern Ireland’s grotesque waiting lists, which are by far the longest in the United Kingdom.

I welcome the noble Lord, Lord Frost, who is in his place—as he says, as a humble Back-Bencher. Following his departure from the Government, I note that his replacement as the United Kingdom’s negotiator, Liz Truss, and her EU counterpart, Maroš Šefčovič, have reported a constructive atmosphere in the talks to resolve the problems the protocol created. Earlier this week my party leader, Doug Beattie, led an Ulster Unionist delegation including my noble friend Lord Empey, Jim Nicholson, a former MEP, and Lauren Kerr to meet Mr Šefčovič in Brussels. Future meetings are planned.

The key to re-establishing momentum in the Northern Ireland political process is more engagement, not grandstanding with walkouts. Most of the problems relating to the protocol are political and will be resolved only with political solutions. I wish Liz Truss well in her endeavours to reach a positive outcome for the betterment of everyone in Northern Ireland and the United Kingdom.

My Lords, I thank the noble Lord, Lord Jay, for arranging this, and the Government Whips for ensuring that we had time for this very important debate, alongside all that is happening in Ukraine, which is disastrous and devastating for all of us in this Room.

I endorse what my chairman and the other members of the sub-committee have said today—this is how we really feel about the Northern Ireland protocol. What is worrying is that it is not really working alongside the Good Friday agreement in the way that I feel it positively should be. Of course, we know that one of the problems with the Good Friday agreement—this is a lesson to us all—is that no timelines were written into it. That is no one’s fault; these things happen from time to time. Because of Brexit, which has been a difficult decision for Britain, Northern Ireland is just pushed off to the side, I feel—it is part of the United Kingdom, which is not just Britain.

Putting that to one side, the health service in Northern Ireland has long waiting lists and children have to go to Ireland to have operations, as do people who need heart treatment. Some education is also now being taken over by Ireland.

We ought to have change now—I gave the Minister notice of what I will say, but I know that he may not be able to give me a clear answer. We have to have a dedicated Minister who does not have a number of other portfolios; otherwise, we will not get negotiations going properly. This also has to come with a dedicated senior team that works both in Northern Ireland and here. This team should be in the FCDO or the Cabinet Office—my preference would be the latter, because I see that as the machinery of government—and the Minister should report directly to the Cabinet as and when it is necessary. That would ensure that these discussions continue, as they must, regardless of what is going on—especially after the elections, when we will, I hope, have institutions working alongside the new Parliament in Stormont. It is absolutely vital that the talking does not stop, because when we are not talking to each other, all sorts of things happen; it is really important. I refer to my great friend Jonathan Powell, who said this in his books and throughout the very difficult days in Northern Ireland.

That is why I say that the only way forward, besides our sub-committee, which is the only one that is doing full scrutiny now, is to have a dedicated Minister with a dedicated senior team that has an understanding of the issues, as well as perhaps someone from the Irish Government and the European Commission or Parliament. That is the way forward. They should report very regularly—not monthly but perhaps bi-weekly—to the Cabinet Office. The right funding and support should also be in place.

My Lords, this is a short debate but it gives us, particularly those of us who live in Northern Ireland, the opportunity to once again warn of the increasing instability and anger in the pro-union communities there. On numerous occasions, the Government have been warned, here in this House, that the protocol was unsustainable and had to go. We said that it was incompatible with the Belfast/Good Friday agreement, and we warned that the institutions were threatened. The resignation of the First Minister was the inevitable consequence of what happens when unionists feel alienated.

The protocol, which was introduced with no consent from anyone in Northern Ireland, has left them feeling significantly disadvantaged, with their rights diminished and their very identity as citizens of the UK being whittled away. When I say “they”, I mean me too. Not a day passes without some new bit of bureaucracy being discovered, stopping a certain type of goods coming into Northern Ireland, or without a business in GB telling me that it cannot deliver now because it is no longer made worth while to send to Northern Ireland. We all know that the border checks are ridiculous: a huge effort of resources and time is put in to check what will be a tiny amount of goods going on to the Republic.

The fundamental and deeply worrying fact is that our union of Great Britain and Northern Ireland is being eroded. The Government’s own lawyers in the Belfast High Court said that the protocol impliedly and partially repeals the Act of Union, in so far as that fundamental law ensures unfettered internal UK trade. Of course, the Irish Government love the fact that more people are being forced to buy from the Republic, and diversion of trade patterns is happening. The Irish Government have no qualms about speaking up on behalf of the nationalist communities. As the Minister, the noble Lord, Lord Caine, said in this House on 13 September, the EU fundamentally seems to see Northern Ireland through nationalist eyes.

Northern Ireland people, who withstood over 30 years of bombs, shootings and appalling atrocities carried out by the IRA, and who have remained the most staunch supporters of our great country, now see their own Government give in, time after time, to those who wish to destroy Northern Ireland. When Sinn Féin brought down the devolved Government for three years in 2017, I did not see much abuse of Sinn Féin by our Government. They did not even hint at their disapproval of such vandalism, even when the Irish Government made it clear that the Sinn Féin demand of an Irish language Act be met before it would go back in—and now we are going to see that, although other parts of the agreement have not been met.

Just how long does the Minister think these negotiations are going to continue? They are clearly not going to get the EU to change its mind. Just how long are we going to have to put up with this?

Does he really think that the vote on the consent principle in 2024 that one other noble Lord referred to is fair? It is the only part of the Belfast agreement that is going to change the principle of consent to majority will, instead of the principle of co-operation and agreement across community consent.

I warn again that there are now demonstrations every week. There will rallies and campaigns in the lead-up to the election. Northern Ireland is in a fragile position and this Government have to recognise that time is running out, and it is running out now.

I join the tributes to the noble Lord, Lord Jay, for securing this debate and for his broader chairmanship of the Sub-Committee on the Protocol on Ireland/Northern Ireland, on which I am privileged to serve. I also join the tributes to the efforts of my noble friend Lord Frost in respect of recouping some of the ground lost during his period in office.

I wish to pick up on some of the matters referred to by the noble Baroness, Lady Goudie, in respect of the impact and tension between the protocol and the Belfast/Good Friday agreement. I hope that my noble friend the Minister will reflect on the conflict between those two and the impact on the ground. To what degree has he witnessed a change in the Commission’s understanding of the problem with the protocol from one centred on operational issues, as experienced by businesses, to one centred on political issues that relate to the compatibility of the protocol as presently designed with the Belfast agreement? The compatibility of the protocol as presently designed with the agreement puts at risk the very aim of the protocol, which is to uphold the agreement in all its parts.

As has been mentioned by many noble Lords and Baronesses, there are three strands to the agreement. We have known for some time that strand 3, which deals with the totality of relationships between these two islands, including between Northern Ireland and Great Britain, was at risk, as was highlighted in the UK Government’s position paper as long ago as August 2017. The risk to trade between Great Britain and Northern Ireland and the consequent problems for Northern Ireland consumers in general—for unionists in particular—is to be found in the failings of that strand. However, in consequence of that and the instability caused, we have a failure of strand 1—the devolved internal government of Northern Ireland—and, as a result of the protocol, further difficulties therefore with strand 2 on north-south, cross-border issues. All these of course have to be based on cross-community consent.

All three strands of the Belfast agreement are now in jeopardy because of a protocol supposedly designed to uphold the agreement in all its parts. Even the European Commission in its September 2017 principles—its response to the UK Government’s then position paper—stated as first principle:

“The Good Friday Agreement established interlocking political institutions which reflect the totality of the relationships on the islands of Great Britain and Ireland. The institutions, which provide frameworks for cooperation between both parts of the island and between Ireland and Great Britain, will need to continue to operate effectively.”

This protocol has clearly failed the test set by the UK Government. It has not won the necessary cross-community support in Northern Ireland and it has now failed the test set by the European Commission itself.

My Lords, debates on the Northern Ireland protocol tend to generate more heat than light. Let us hope that today’s debate will buck that trend; my noble friend, Lord Jay, certainly set us off that way. At the end of this debate, it would be very useful to have a clear picture from the Government of the facts on the ground, the trends of the Northern Ireland economy since the protocol entered into force a little over a year ago, and how those trends compare with the rest of the island of Ireland and the rest of the UK.

However, a few salient political points stand out. First, the supporters of leaving the EU in the 2016 referendum grossly misled the public, particularly when the then Secretary of State for Northern Ireland, Theresa Villiers, assured all and sundry that leaving the EU would have no adverse or destabilising effect in Northern Ireland. Secondly, the vote in 2016 provided no democratic legitimacy for leaving in Northern Ireland since there was a clear majority for remaining. Thirdly, the solution finally enshrined in the protocol negotiated by the noble Lord, Lord Frost, whom I welcome to the Back Benches, was described by the former Prime Minister, Theresa May, as one that no British Prime Minister could accept. Fourthly, there was never at any point and at any time any basis for the assertion by the current Prime Minister that the protocol would require no checks and controls on trade in goods between Great Britain and Northern Ireland. No wonder there is so much confusion, disinformation and distrust.

Does that mean that the problems that have arisen over the implementation of the protocol are all the fault of one side ? Certainly not. Nor does it mean that the protocol is without blemish and could not be improved—of course it could. The European Commission has recognised that by coming to the table with detailed proposals for improvements. The sooner after the May elections those negotiations can be concluded the better.

What surely must be avoided is inflicting more damage on the structures of the Good Friday agreement by dragging out the process. That agreement was a massive and painful achievement. It needs to be preserved, not used as a pawn in the political manoeuvring over the protocol.

I have one final point. The fate of the Good Friday agreement is a matter of deep concern to our closest ally, the United States, and its current President. The sooner the problems over implementing the protocol can be sorted out, the sooner what has become a serious irritant in UK-US relations can be put behind us. The converse is also true: if the UK-EU negotiations drag on or, worse still, break down in acrimony, there should be no doubt about the negative consequences for our relationship with the United States.

My Lords, I too join in congratulating the noble Lord, Lord Jay, on securing this important and timely debate, and in commending him for the way he chairs our sub-committee, of which I have the honour of being a member. I also endorse what he said about the sub-committee looking forward to hearing from James Cleverly or a government Minister, because it is important to our scrutiny work that we have access to Ministers. We will be publishing a report soon on the scrutiny side of our work, which is extremely important, given that no other body in the United Kingdom is giving attention to laws made for Northern Ireland by Europe.

This has been an interesting debate. Predictable views have been expressed, but one thing that has changed since the last time we debated these matters is that the political situation in Northern Ireland has deteriorated. I fear it will deteriorate further unless we finally grapple with the protocol and get a solution to it. The dragging out of time to get that solution is not helpful. Indeed, the Command Paper of July last year said that the conditions for triggering Article 16 had already been met. We were told in early September that there might be a short three-week negotiation. The decision would then be made as to whether the EU was serious and the UK Government would take unilateral action. Unfortunately, not taking any action has resulted in the deterioration I spoke about on the ground in Northern Ireland.

The fact is that the protocol is incompatible with the Belfast agreement because it does not respect strand 3 or strand 1 of it. It has resulted in the resignation of the First Minister. I do not want to engage in intra-unionist petty politicking—there will be another time and place for that—but I remind my good friend, the noble Lord, Lord Rogan, that the Ulster Unionists walked out of the Executive in 2015, refused to come into it in 2016 and only recently joined it. Everybody has engaged in a little bit of politicking, but we need to be serious about these matters. There are more fundamental issues at stake.

The protocol is incompatible with Northern Ireland’s constitutional position, for the reasons elucidated in the court case that is ongoing and has yet to reach a conclusion. It is incompatible with democracy. It is unconscionable that in the modern world, in the 21st century, laws are being made over far vast swathes of the economy of Northern Ireland by a foreign body in its interest, without any say or vote by any elected representative of Northern Ireland or the United Kingdom anywhere, either at Stormont or here. We can go into the trade and economic issues, which are all extremely pertinent. Remember that the protocol is being implemented in only a light-touch way at the moment. If it were not for the grace periods, which some in this House ridiculed and condemned at the time, we would face a far worse situation. This is fundamentally an issue of democracy, respect for Northern Ireland’s constitutional position and identity, and respect for the Belfast agreement, as amended by the St Andrews agreement. We need to get back to those fundamental principles.

I too thank the noble Lord, Lord Jay, for securing this timely and extremely important debate. I must confess that my thoughts this week—like most people in this Room, I imagine—have been with the people of Ukraine and the bravery of my many Ukrainian friends in Kyiv and beyond. It rather puts things into context.

I appreciate that the Minister is from the Northern Ireland Office and is almost certainly not in a position to answer my question, but it strikes me as nearly impossible for the Foreign Secretary and James Cleverly, the Minister for Europe, who is also dealing with Ukraine, to give the ongoing negotiations with the EU on the protocol the attention that they clearly deserve. Further to the point made by the noble Baroness, Lady Goudie, does the Minister believe that there is currently sufficient resource—in particular, political resource—available for those negotiations in the Government?

Continuing to threaten to trigger Article 16 in the current context does not strike me as particularly grown-up or sensible politics. Can the Minister confirm that, at least for the time being, triggering Article 16 is off the table? In the absence of the Executive, how are the political parties in Northern Ireland being involved in and consulted on the progress of negotiations? Does he agree that, in this pre-election period, it is particularly important that all parties are properly and fully involved in that process?

My noble friend Lord Thomas referred to the recent survey by Queen’s University, which reveals that attitudes to the protocol remain deeply divided, but there are at least distinct indications of a move towards acceptance of it—accompanied, however, by a desire to see it work more effectively in practice. It is fair to say that the protocol is very far from perfect, but does the Minister agree that it is currently the only solution on the table, which is why it is essential to continue to negotiate with partners in Brussels to find ways to make it work?

Northern Ireland currently faces so many challenges—the healthcare system, delivering integrated education and fulfilling its economic potential to name but three. These require a functioning and effective Executive. It is, frankly, tragic that, once again, the people of Northern Ireland find themselves without an Executive at this critical time. Clearly, these are challenging times at all levels, but can the Minister assure us that brokering solutions and finding a way to see a return to a functioning Executive remains a priority at the very highest level of government?

I too thank the noble Lord, Lord Jay, for initiating the debate and the invaluable work his committee does. This deserves a longer debate and more Members taking part. The lack of resolution of this issue has the most profound implications for the future of Northern Ireland. The elections in May will undoubtedly be dominated by it, and the great tragedy is that it could have been avoided.

It seems to me that there are three major factors. The first is that the people of Northern Ireland voted to remain in the European Union. The second is that there is a profound difference of view among the people of Northern Ireland over the protocol. The third is that the protocol itself came down not from Moses but from the Government. The protocol was negotiated by this Government, nobody else—no other party, none of the Opposition. Together, the Government of the United Kingdom and the European Union negotiated the protocol that we are debating.

That is the problem, of course. Had the institutions in Northern Ireland been up and running, even to the extent of the paralysed version we have today, the parties in Northern Ireland would undoubtedly have been involved the deep and difficult discussions about how to deal with this matter. They were not; as a consequence, we are where we are. The best—or the least offensive—word I can use is that, over the past few years, diplomacy and negotiations have been unhappy. They have not actually resolved anything. Things are a little better now—they are not as bad as they were—but the negotiations have not gone to the heart of this.

If anybody can suggest for one second that it is too difficult to negotiate, how on earth did those of us who were involved in the Good Friday agreement negotiate it a quarter of a century ago? Look at what happened there. The most difficult issues ever, and yet unionists and nationalists got together and negotiated the Good Friday agreement. It has been mentioned a lot in this debate. Yes, it is important—I chaired strands 1 and 3 of those negotiations and talks all those years ago; I understand what they mean—but the basis is that there must be a consensus. I agree with what many unionists and many nationalists are saying: you have to come to a consensus. You cannot have an agreement on something as significant as this unless both sides agree and get together.

My one message to the Minister is this: talk, talk, talk. Involve the Irish Government more with the British Government; they are co-guarantors of the agreement. Talk to the European Union. Above all, talk to the political parties in Northern Ireland.

My Lords, before responding to the debate, as I am the first Northern Ireland Office Minister to be at the Dispatch Box in either House since the tragic death of Christopher Stalford, I formally place on record the Government’s sincerest condolences to Laura, the rest of Christopher’s family and his DUP colleagues.

First, I thank the noble Lord, Lord Jay of Ewelme, for tabling this Motion. As he reminded the Committee, before my appointment last November, I had the privilege of serving under his chairmanship as a member of the Northern Ireland protocol sub-committee of the European Affairs Committee. Like colleagues from all parts of the Committee, I benefited immensely from his wise counsel and was hugely impressed by his ability to reach consensus when faced with a range of divergent views—all, of course, in the best traditions of the Diplomatic Service. I take on board the noble Lord’s comments about my right honourable friend the Minister for Europe; I will take them back. Of course, I commend the ongoing work of the sub-committee and wish it well.

I am grateful to the noble Lord for raising issues that remain of immense importance to Northern Ireland in particular but also, as we should never forget, to the rest of the United Kingdom as a whole. The Motion in his name asks

“Her Majesty’s Government what assessment they have made of the impact of the Protocol on Ireland/Northern Ireland on recent political developments in Northern Ireland.”

I will answer that in two parts, if I may: first, by looking at the situation in Northern Ireland today, including reaffirming the Government’s strong commitment to political stability; and, secondly, making a few more general comments about the problems created by the protocol and the Government’s efforts to resolve them.

I turn first to the current situation in Northern Ireland and political stability. One of the Government’s overriding objectives is, of course, the preservation and implementation of the 1998 agreement, along with its successors, and the enormous benefits that have flowed from it. Our commitment, and my personal commitment, to the 1998 agreement, the constitutional principles it enshrines, including the principle of consent, the institutions it establishes and the rights it safeguards for the whole community, remain unshakeable. It is my firm view and that of the Government that it remains the bedrock of all the progress we have seen in Northern Ireland over the last nearly 24 years.

In that context, I warmly welcome back to his place in the House the noble Lord, Lord Murphy of Torfaen, who, as he reminded the Committee, was intimately involved in those negotiations in 1998. I thank him for many of his wise words today.

This Government will never take any risks with the agreement and the relative peace, prosperity and stability it has helped to create. If I might speak personally for a moment, as one who worked in the Northern Ireland Office under Peter Brooke and Patrick Mayhew during a period of direct rule in the early 1990s, while the Troubles were still raging, I need absolutely no convincing of just how important political stability is. It is therefore profoundly regrettable and disappointing, as the noble Baroness, Lady Suttie, made clear, that for the second time in recent years we now find ourselves without a properly functioning Executive in Northern Ireland following the resignation of the First Minister on 3 February and the consequential removal from office of the Deputy First Minister.

The Northern Ireland (Ministers, Elections and Petitions of Concern) Act agreed by Parliament last month will provide some greater resilience and continuity of decision-making, including potentially after the 5 May Assembly election. But, as a number of noble Lords made clear, it is simply not an adequate substitute for a fully functioning Executive working for all the people of Northern Ireland and delivering on their priorities—not least, as my noble friend Lord Rogan mentioned, when it comes to the National Health Service, which in terms of outcomes already lagged behind the rest of the United Kingdom before the pandemic and now does so even more as we emerge from it, I hope. The noble Baroness, Lady Goudie, made a similar reference to the state of the NHS.

Another unfortunate consequence of the current situation is that the Northern Ireland Executive will not now be able to agree and pass a three-year budget this side of the election. That would have given departments such as health greater certainty to enable them to plan ahead and implement necessary reforms. Both in the run-up to and for a period after the Assembly election, Ministers will still be able to take decisions, but nothing that could be regarded as controversial or cross-cutting, which would require executive approval.

I take on board the comments of the noble Lord, Lord Murphy. The Government will continue to urge and call for the immediate restoration of a fully functioning Executive and work towards that end: an Executive able to take the necessary steps to reform the delivery of public services; to address structural weaknesses in the Northern Ireland economy, such as skills and productivity; and, of course, to tackle community divisions, which hold back society in Northern Ireland.

However, we are under no illusions that this will be an easy task—as I know from personal experience and as the noble Baroness, Lady Suttie, reminded us—either in the run-up to the Assembly election in May or in the period immediately thereafter. That is, unless we can fix the root cause of the current instability in Northern Ireland, and that is of course the other subject of today’s debate: the protocol.

The problems created by the protocol are well documented, including in the Command Paper presented to Parliament by my noble friend Lord Frost last July and, as the noble Lord, Lord Jay, mentioned, in the first report of the sub-committee, when I was a member, also last July. Many noble Lords who have contributed this afternoon have highlighted a number of particular issues with the protocol, which I acknowledge. The noble Lord, Lord Jay, set out many of them.

I heard for myself the many challenges that businesses in particular are encountering when I met representative organisations and individual businesses, including a haulage company, in Northern Ireland a few days ago. I anticipate visiting a major port in the near future to look at the situation on the ground. I was left in no doubt by the business community in Northern Ireland about the urgent need to deal with these problems.

In addition, as the noble Baroness, Lady Hoey, and my noble friend Lord Dodds of Duncairn made clear, there are important constitutional and political issues involved here, as well as issues of identity. It is clear that, in addition to the impact on business, the protocol strikes at the heart of the identity of the pro-union majority in Northern Ireland, who increasingly see themselves cut off from the very United Kingdom of which, on the basis of consent and in domestic and international law, they are an integral part. I assure my unionist colleagues that I never wish to see that position change.

In summary, the protocol has led to a diversion of trade, placed substantial additional burdens on business, disadvantaged consumers and led to societal issues, such as we witnessed in the run-up to—

I thank the Minister for giving way. Would he, along with ministerial colleagues representing the British Government, work with the Irish Government, to look at the provisions in Article 14(b) of the protocol on the North/South Ministerial Council and the implementation bodies to see whether there are immediate solutions, so that we can get past this interregnum phase and ensure that the institutions are up and running again? It is not solely the Executive that is down but the North/South Ministerial Council.

I of course take on board the noble Baroness’s comments. We are willing to look at any pragmatic solutions to this, although I would caution that negotiations on the protocol are between the United Kingdom Government and the European Commission. The Commission represents Ireland in those negotiations, as was made clear to me by Monsieur Barnier in 2018, when I had the privilege—that is probably the wrong word—of an hour with him.

I was saying that, in summary, diversion of trade and societal problems have disadvantaged consumers and placed burdens on business. Although I accept that opinion within Northern Ireland remains divided, as the contributions of the noble Baroness, Lady Ritchie, and the noble Lords, Lord Thomas of Gresford and Lord Murphy, made clear, a protocol that does not have the support of one part of the community is simply not sustainable and durable, as my noble friend Lord Frost has said on many occasions.

As my noble friend Lord Godson and others highlighted, the blunt truth is that a protocol that was intended to preserve and protect the 1998 agreement in all its parts has now become an instrument for undermining it. Clearly, it does not work for all communities and for business in Northern Ireland, and is having a destabilising effect on politics. That cannot be an acceptable state of affairs.

A number of noble Lords referred to how we got here. If they will forgive me, I wish to focus on the present, but I will pick up on the reference the noble Lord, Lord Hannay, made to my former boss, the then Secretary of State for Northern Ireland, Theresa Villiers. I hold her in the highest regard but it was never a requirement of being a special adviser that one had to agree with one’s boss on every single issue, if I might put it like that.

It is clear that we need to remedy the problems created by the protocol, in both construction and implementation, as a matter of urgency to ensure the proper flow of goods within our United Kingdom internal market while, of course, respecting the integrity of the EU single market. We need to create the conditions in which the institutions established by the 1998 agreement can, across all three strands of that agreement, as my noble friends Lord Frost and Lord Godson made clear, be restored to their proper place and function effectively. That will of course require pragmatism and proportionality on all sides, but principally from the EU itself. For our part, and to this end, the UK Government set out in a Command Paper last year a range of constructive proposals. Of course, the EU published its four non-papers last year, which are, in the Government’s view, a step forward but fall short of what is required.

A number of noble Lords referred to the current negotiations. I am conscious of time and that I am surrounded by a number of seasoned negotiators, all of whom will, at one stage in their careers, probably have advised Ministers not to give a running commentary on current negotiations. It is not my intention to depart from that particular principle. I am sure noble Lords will understand that, although my department works closely with the FCDO, it is clearly in the lead on the negotiations. I am therefore somewhat limited in what I can say or share. Suffice it to say, as a number of noble Lords have mentioned, that intensive negotiations are continuing between my right honourable friend the Foreign Secretary and the European Commission at both ministerial and official level. While it is the case that some progress has been made, significant gaps remain.

I will finish shortly. The Government’s clear position is that, while the conditions for triggering the safeguards within the protocol were indeed met some time ago, our strong preference is to resolve our differences through agreement, if possible. In response to the comments of the noble Lord, Lord Jay, at the outset, we very much hope that agreement can be reached. Unfortunately, I cannot really give him a timetable but, as I said earlier, we are seized of the importance of fixing this, and fixing it quickly. Failing that, the Government reserve the right to take unilateral action, for which the protocol clearly allows.

As the noble Lord, Lord Jay, reminded us, as did the noble Baroness, Lady Goudie, our debate today takes place against a backdrop of the greatest threat to peace and stability in Europe for decades, and our thoughts are with the people of Ukraine at this moment and we stand side by side with them. Notwithstanding the attention and commitment that that crisis is rightly taking up—I hope I can assure noble Lords on this point—the Government will continue to engage tirelessly to fix the problems around the protocol and pursue our objectives to build a Northern Ireland where, to use a phrase I have used many times before, politics works, the economy grows and society is more united.

The UK Government have the strongest possible interest in protecting peace and stability in Northern Ireland, and, through our unwavering support for the 1998 agreement and our efforts to fix the protocol, that is what we will strive to achieve.

Sitting suspended.