205.Article 9 of the Protocol, alongside Annex 4, secures the continuation of Northern Ireland’s participation in the Single Electricity Market on the island of Ireland. In our 2017 report on Brexit: energy security we expressed our support for preservation of the Single Electricity Market, noting that it benefited both Northern Ireland and Ireland in terms of energy security, decarbonisation and energy prices.
206.In its technical note on implementation of the Protocol, the Commission interpreted the provisions in Annex 4 as follows:
207.The Command Paper confirmed that the Northern Ireland Executive would have primary responsibility for implementing the provisions of the Protocol pertaining to the Single Electricity Market.
208.We welcome the commitment in Article 9 and Annex 4 of the Protocol to the continuation of the Single Electricity Market on the island of Ireland. This will benefit Northern Ireland and Ireland in terms of energy security, decarbonisation and energy prices.
209.Article 11 will require the Protocol, “in full respect of Union law”, to be implemented in such a way as to maintain the “necessary conditions for continued North-South cooperation” in the following areas: environment, health, agriculture, transport, education and tourism, energy, telecommunications, broadcasting, inland fisheries, justice and security, higher education and sport. The operation of this provision will be kept “under constant review” by the Joint Committee, which may make “appropriate recommendations to the Union and the United Kingdom in this respect, including on a recommendation from the Specialised Committee”.
210.Section 21 of the European Union (Withdrawal Agreement) Act 2020, in contrast, prohibits a UK Minister from agreeing to the making of a recommendation by the Joint Committee to alter the arrangements for North-South cooperation provided for by the Belfast/Good Friday Agreement, to establish a new implementation body, or to alter the functions of an existing implementation body.
211.Professor David Phinnemore said that “what we have in the Protocol is the bare minimum that one needs. For example, all Article 11 of the Protocol on North-South cooperation does is list the areas, even though we have an extensive mapping exercise undertaken”. This joint mapping exercise, published in June 2019, identified the cross-cutting issues required to enable North-South cooperation to function.
212.The Northern Ireland Business Network told us that it should not be assumed that North-South cooperation was preserved by the Protocol. The less comprehensive the final UK-EU agreement, the greater the risks posed to North-South cooperation in essential areas, such as security and healthcare provision.
213.The Protocol does not cover immigration. Yet the Northern Ireland Business Network highlighted the potential disruptive effects of different immigration systems in Ireland and Northern Ireland. We were told that over half of employees in some companies in Northern Ireland were EU migrants. Such businesses, if they were unable to employ such low-paid migrant workers in future, would look enviously across the Irish border. This would place Northern Ireland businesses at a significant commercial disadvantage. It also opened up a risk of labour exploitation by criminal gangs, which could in turn require additional measures by Northern Ireland businesses to ensure the integrity of their employment practices.
214.Professor David Phinnemore argued that the Protocol was a “missed opportunity” to tackle North-South cooperation in services, and “to look for a broader understanding of how to support the all-Ireland economy and minimise the disruption of a border on the island of Ireland”.
215.The Northern Ireland Business Network cited the flow of data, movement of people and mutual recognition of qualifications as three cross-cutting issues that affect cross-border cooperation. They stressed the need for a UK-EU data adequacy agreement in order for the Protocol to function effectively. They also noted that, while the Protocol enables free movement of goods on the island of Ireland, it does not provide assurances about the capacity of haulage companies to move them, because services are not included. There is therefore still a question as to whether transport providers can drive products across the border. Our Internal Market Sub-Committee explored this issue in its May 2019 report on Brexit: road, rail and maritime transport, which found that “the island of Ireland’s unique social and economic ties placed unique demands on its future transport arrangements”. The Committee stressed that, in contrast to the modest benefit to the UK of GB-EU cabotage for goods transport, it was vital to maintain cabotage rights on the island of Ireland.
216.Professor David Phinnemore pointed out that the Council of the European Union has adopted a Decision allowing the Council to authorise Ireland to conclude bilateral arrangements with the UK in areas of exclusive EU competence to ensure that the Protocol can be implemented effectively. He said: “There is very little talk about what that might mean, but once we move beyond the implementation period, there may be a mechanism there to address some of the issues on the island of Ireland that critics of the Protocol would say need to be addressed.”
217.The Northern Ireland Business Network suggested that there may, for instance, be a need for a bilateral UK-Ireland deal on haulier services to enable busses, trucks and lorries to move goods around the island of Ireland. The EU Internal Market Sub-Committee concluded that unique conditions on the island of Ireland may not be best served by broader negotiations on UK-EU transport arrangements, and that a solution may be found in an integrated bilateral approach.
218.We welcome the commitment in Article 11 that the Protocol shall be implemented and applied so as to maintain the necessary conditions for continued North-South cooperation on the island of Ireland.
219.Nevertheless, we recognise that effective North-South cooperation is dependent on a wider framework than that contained in the Protocol, including effective cooperation in services. North-South cooperation across a range of sectors will depend heavily on the UK and the EU reaching agreement on trade in services, including a data adequacy decision governing the flow of data, movement of people to deliver services, and the recognition of professional qualifications.
220.We also acknowledge the concerns of Northern Ireland businesses about the potentially disruptive impact of any divergence of immigration policies in Ireland and Northern Ireland, including the risk of labour exploitation and competitive disadvantage for Northern Ireland businesses. We urge the Government to set out the steps it will take to mitigate any negative consequences of its post-Brexit immigration policy for Northern Ireland businesses.
221.Article 11 provides for the Joint Committee to keep under review and make recommendations to the UK and the EU on the impact of the Protocol on North-South cooperation. However, we note that Section 21 of the European Union (Withdrawal Agreement) Act 2020 prohibits a UK Minister from agreeing to the Joint Committee making any recommendation to alter the arrangements for North-South cooperation as provided for by the Belfast/Good Friday Agreement. We underline that any future changes to arrangements for North-South cooperation should be based on the principle of consent.
222.In this context, we note that the Council of the European Union may authorise Ireland to conclude bilateral arrangements with the UK in areas of exclusive EU competence to ensure that the Protocol can be implemented effectively. Such bilateral arrangements may in particular be necessary to maintain effective transport arrangements, including cabotage rights, on the island of Ireland. We invite the Government to explain in what areas of exclusive EU competence such bilateral agreements may be necessary or desirable.
166 (19 October 2019), Protocol on Ireland/Northern Ireland, Article 9
167 European Union Committee, (10th Report, Session 2017–19, HL Paper 63), para 150
168 European Commission, Task Force for Relations with the United Kingdom, Technical note on the implementation of the Protocol on Ireland / Northern Ireland (30 April 2020): [accessed 19 May 2020]
169 Cabinet Office, The UK’s Approach to the Northern Ireland Protocol, CP 226 (20 May 2020) para 47: [accessed 22 May 2020]
171 See HM Government, Technical explanatory note: North-South cooperation mapping exercise (7 December 2018): [accessed 19 May 2020], Cabinet Office, North-South Scoping Exercise (20 June 2019): [accessed 19 May 2020] and Cabinet Office, North-South cooperation on healthcare: draft UK non-paper to support scoping work (20 June 2019): [accessed 19 May 2020]
172 European Union Committee, Note of roundtable meeting with Northern Ireland Business Network (25 February 2020): [accessed 19 May 2020]
175 European Union Committee, Note of roundtable meeting with Northern Ireland Business Network (25 February 2020): [accessed 19 May 2020]
176 European Union Committee, (39th Report, Session 2017–19, HL Paper 355)
177 Articles 3 and 4 of Council Decision (EU) 2020/135 of 30 January 2020 on the conclusion of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, , 31 January 2020
179 European Union Committee, Note of roundtable meeting with Northern Ireland Business Network (25 February 2020): [accessed 19 May 2020]
180 European Union Committee, (39th Report, Session 2017–19, HL Paper 355)