Report from the Sub-Committee on the Protocol on Ireland/Northern Ireland: Introductory report Contents

Introductory report

Chapter 1: The Protocol Sub-Committee

Introduction

1.House of Lords Committees have taken a close interest in the implications for Northern Ireland of UK withdrawal from the EU since the months leading up to the 2016 referendum. Before its term of appointment came to an end on 31 March 2021, the EU Select Committee had lead responsibility for scrutiny of these issues, publishing the following relevant reports:

The proposal for a Sub-Committee on the Protocol on Ireland/Northern Ireland

2.In December 2020, the House of Lords Liaison Committee published its Review of investigative and scrutiny committees: strengthening the thematic structure through the appointment of new committees.7 The report recommended that, in light of UK withdrawal from the EU, the EU Select Committee should be succeeded by a new European Affairs Committee.

3.The Liaison Committee report further suggested that, in view of the large remit of that Committee and the specific issues arising in the context of the Protocol on Ireland/Northern Ireland negotiated and agreed by the EU and UK negotiators in October 2019, it should appoint a Sub-Committee on the Protocol , subject to a review in or before November 2022.

4.The House agreed the Liaison Committee report on 13 January 2021. The new European Affairs Committee was appointed by the House on 14 April, and the Sub-Committee on the Protocol on Ireland/Northern Ireland was appointed by the European Affairs Committee at its first meeting later the same day. The Sub-Committee met for the first time on 21 April.

The remit of the Protocol Sub-Committee

5.The Liaison Committee review proposed six core tasks for the Protocol Sub-Committee, which were endorsed by the Sub-Committee at its first meeting.

(a) Document-based scrutiny of new or amended EU legislation within the scope of the Protocol

6.Under the terms of the Protocol, more than 300 EU Directives or Regulations continue to apply to Northern Ireland on a dynamic basis (i.e. as amended or replaced) following the end of the transition period. In view of the end of formal UK participation in the EU institutions, parliamentary scrutiny of such legislation is an important task for the Sub-Committee, as well as for counterparts in the House of Commons and the Northern Ireland Assembly.

7.The Sub-Committee has begun its scrutiny on the basis of Explanatory Memoranda received from and exchanges of correspondence with UK Government Ministers, focusing in particular on:

(b) Scrutiny of the implications of relevant domestic UK legislation and policy for Northern Ireland

8.The Liaison Committee noted the “inherent tension within the Protocol, between the continuing application of EU rules in Northern Ireland and the requirement that Northern Ireland should enjoy ‘unfettered access’ to the UK’s internal market. Domestic developments such as the development of common frameworks could have unpredictable consequences, and will need careful monitoring.”

9.Scrutiny of the implications of domestic UK legislation for Northern Ireland in the context of the Protocol is therefore another key task for the Sub-Committee. We intend to consider the implications of relevant domestic legislation for Northern Ireland at the time of a Government bill receiving Second Reading in the House of Lords, thus complementing the Constitution Committee’s work in scrutinising the constitutional implications of Government legislation.

10.There is also synergy with the work of the Common Frameworks Scrutiny Committee, in view of the implications of EU legislation applying to Northern Ireland for its participation in UK Common Frameworks. We will continue to work closely with the Common Frameworks Committee in the months ahead.

(c) Scrutiny of the Northern Ireland-related work of the governance bodies established under the UK–EU Withdrawal Agreement, including the Joint Committee, the Ireland/Northern Ireland Specialised Committee, and the Joint Consultative Working Group

11.We will scrutinise the work of these bodies, which together form the key UK-EU governance and decision-making structures in relation to the Protocol. The Withdrawal Agreement Joint Committee, co-chaired by Rt Hon Lord Frost CMG and Commission Vice-President Maroš Šefčovič, is the forum for high-level discussions and decisions on the operation of the Protocol (as well as wider issues relating to the implementation of the Withdrawal Agreement, including citizens’ rights).

12.The role of the Ireland/Northern Ireland Specialised Committee, which reports to the Joint Committee, is set out in Article 14 of the Protocol. It is the technical, official-level committee tasked with facilitating the implementation and application of the Protocol, and the technical agreements that it reaches are passed to the Joint Committee for a formal, political decision.

13.The role of the Joint Consultative Working Group is set out in Article 15 of the Protocol. It is designed to act as a “forum for the exchange of information and mutual consultation”, including for notification by the EU to the UK of planned EU acts within the scope of the Protocol (and therefore of relevance to the Sub-Committee’s scrutiny work).

(d) Monitoring the Protocol’s political and socio-economic impact on Northern Ireland

14.The significant political, social and economic developments in Northern Ireland since the Protocol came into effect on 1 January have demonstrated the key importance of this area of work. The Sub-Committee quickly identified it as its first priority, and it is the focus of this report.

(e) Reviewing the ongoing impact of the Protocol (and of UK withdrawal from the EU more broadly) on the UK–Irish bilateral relationship

15.Our remit as a Sub-Committee of the European Affairs Committee also extends to scrutinising the wider impact of UK withdrawal from the EU and evolving UK-EU relations upon the UK-Irish bilateral relationship. The Irish Government’s programme for government includes a commitment to undertake a strategic review of the British-Irish relationship, and the UK Government has committed to participate in this process. This aspect of our work will necessitate particular engagement with the Irish Government, and scrutiny of the work of the British-Irish Council and the British-Irish Intergovernmental Conference.

(f) Developing interparliamentary dialogue in relation to the Protocol, including with the Northern Ireland Assembly and the Irish Oireachtas

16.The European Union Select Committee previously established effective mechanisms for interparliamentary dialogue with equivalent committees in the Northern Ireland Assembly and the House of Commons, as well as the Irish Oireachtas, European Parliament, and Scottish and Welsh Parliaments.

17.We will maintain and enhance dialogue with the Northern Ireland Assembly and its Committees, establishing a basis for cooperation and dialogue on issues of mutual interest, while acknowledging the respective competences of Westminster and Stormont.

18.The Sub-Committee will also maintain dialogue with Committees and members of other legislatures with an interest in Northern Ireland and the Protocol, notably the Irish Oireachtas, the US Congress, and, in conjunction with the European Affairs Committee, the European Parliament. A delegation of the Sub-Committee had the opportunity to give evidence to the Oireachtas Joint Committee on European Union Affairs in June.9

This report

19.The cross-party membership of the Sub-Committee, drawn from Northern Ireland and the rest of the UK, has a wide range of expertise in Northern Ireland affairs. Our membership represents a range of views, both on Northern Ireland’s constitutional position and on the Protocol itself. While some of us support the Protocol (subject to mitigations to alleviate practical problems with its operation that have arisen), others of us oppose the Protocol in principle, even were such mitigations to be agreed.

20.In view of this, and without prejudice to the views of individual members, we see our task as not to argue for or against the Protocol itself, but rather to scrutinise its operation and impact in an objective and evidence-based manner.

21.This report seeks to achieve this by assessing in turn:

22.The report takes account of evidence given to the Sub-Committee by Lord Frost, the UK Government Minister with responsibility for the Protocol, as well as oral and written evidence received in response to a Call for Evidence launched on 21 May (see Appendix 3) from business, community and civic society representatives, political parties in Northern Ireland, academic and political experts, and the Irish Ambassador to the UK, HE Adrian O’Neill. It also reflects on evidence to the European Affairs Committee by the EU Ambassador to the UK, HE João Vale de Almeida. We are grateful to all our witnesses for their assistance, who are listed in Appendix 2.

23.This report sets out the position as of 21 July 2021, the day on which this report was agreed. Earlier the same day, the Government set out its proposals for the future of the Protocol in its Command Paper Northern Ireland Protocol: the way forward.10 Consequently, we were not in a position to take account of or analyse the Government’s proposals in this report. In the context of the Government’s proposals, and as we await the EU’s considered response, the long-term outlook for the Protocol, and its implications for Northern Ireland, remain uncertain. The Sub-Committee will take forward its analysis of the Government’s proposals, subsequent political developments, and the individual issues highlighted in this report in the autumn, and will aim to produce further update reports approximately twice-yearly.


1 European Union Committee, Brexit: UK-Irish relations (6th Report, Session 2016–17, HL Paper 76)

2 European Union Committee, Brexit: devolution (4th Report, Session 2017–19, HL Paper 9)

3 Letter dated 27 February 2018 from Lord Boswell of Aynho, Chair of the European Union Committee, to Rt Hon. Karen Bradley MP, Secretary of State for Northern Ireland: https://www.parliament.uk/globalassets/documents/lords-committees/eu-select/UK-Irish-relations/27-02-18-Lord-Boswell-letter-to-Secretary-of-State-for-Northern-Ireland.pdf

4 European Union Committee, Brexit: the Withdrawal Agreement and Political Declaration (24th Report, Session 2017–19, HL Paper 245)

5 European Union Committee, Brexit: the revised Withdrawal Agreement and Political Declaration (1st Report, Session 2019–20, HL Paper 4)

6 European Union Committee, The Protocol on Ireland/Northern Ireland (9th Report, Session 2019–21, HL Paper 66)

8 European Affairs Sub-Committee on the Protocol on Ireland/Northern Ireland, Correspondence with Ministers: https://committees.parliament.uk/committee/520/protocol-on-irelandnorthern-ireland-subcommittee/news/155688/correspondence-with-ministers/

9 Houses of the Oireachtas, evidence taken before the Joint Committee on European Union Affairs, 23 June 2021: https://www.oireachtas.ie/en/oireachtas-tv/video-archive/committees/4400/ [accessed 21 July 2021]

10 HM Government, Northern Ireland Protocol: the way forward, CP 502, 21 July 2021: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1004581/CCS207_CCS0721914902–001_Northern_Ireland_Protocol_PRINT__1___2_.pdf. See Government statement at HC Deb, 21 July 2021, cols 977–93 and HL Deb, 21 July 2021, cols 258–71.




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