Irish Border and Brexit: Contributions to debate on European Union (Withdrawal) Bill, House of Lords, 14th March 2018

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My Lords, I am very grateful to my noble friend Lady Kennedy of The Shaws for enabling me to speak to this amendment on the common travel area and to Amendment 198 in my name and those of the noble Baronesses, Lady Altmann and Lady Suttie, and the noble Lord, Lord Kerslake. It seeks to deliver into statute what the Government agreed with the EU on 8 December:

“The Good Friday or Belfast Agreement reached on 10th April, 1998 by the United Kingdom Government, the Irish Government and the other participants in the multi-party negotiations (the ‘1998 Agreement’) must be protected in all its parts, and that this extends to the practical application of the 1998 Agreement on the island of Ireland and to the totality of the relationships set out in the Agreement.”

My noble friend Lord Browne of Ladyton will also address this specifically on Amendment 215, an important amendment that he has tabled with the support of other noble Lords—and noble Baronesses.

We scarcely need to remind ourselves that the Good Friday agreement, which my noble friend Lord Murphy of Torfaen negotiated, was a triumph of politics over violence in post-conflict Northern Ireland. When I spoke in this place over a year ago, I said that a hard Brexit and the hard border that would inevitably follow it would test the delicate balance of the three strands of the Good Friday agreement—relationships within Northern Ireland, between Belfast and Dublin and between London and Dublin—on which the peace settlement is based. That, sadly, is coming to pass.

The Good Friday agreement was a good-faith effort to take the toxin out of identity politics in Northern Ireland, where those who identified themselves as Irish could live with those who identified themselves as British and with those who see themselves as Northern Irish. There is no doubt that since Brexit, which the majority of people in Northern Ireland voted against, the divisive politics of identity is coming increasingly to the fore again. That is profoundly disturbing. Meanwhile, there has not been a local Administration for over a year—an equally profound government failure. Relations north and south are also deteriorating, to the extent that a senior member of the party propping up the Government can publicly call the Taoiseach a “nutcase”, and “not Indian” but a cowboy. To get the full flavour of that particular witticism, noble Lords need to know that Leo Varadkar’s father was born in Mumbai.

The tensions between the UK leaving the EU and Ireland remaining in it are clear. Following the phase 1 joint report on Article 50 on 8 December, the EU produced a 120-page document setting out the legal framework for fallback positions in the absence of agreement between the UK and the EU on the way forward. There were howls of protest and the Prime Minister rejected it out of hand, but where is the Government’s legal framework setting out what they think they signed up to on 8 December? Presumably, it sits alongside the Brexit Secretary’s impact assessments.

We are still desperately unprepared for Brexit and this is no more evident than on Northern Ireland. The UK Government, having agreed with the EU three months ago in the phase 1 agreement to maintain a frictionless border to preserve the Good Friday agreement, continue to fail completely to demonstrate how they can combine an open Irish border with the UK remaining outside both the single market and the customs union with the European Union. There is a simple reason for that—they cannot. Yet in her desperate attempt to keep her Cabinet—never mind her party—together, the Prime Minister continues to spin platitudes and delusion. Just last week, she was still maintaining that the United States/Canada border could be a model for an open border in Ireland. This is just nonsense. There are armed guards patrolling that border; there are flags on it; there is infrastructure on it—all the things that were specifically promised would not be on the border between Northern Ireland and the Irish Republic. If they were, they would be recruiting sergeants for mayhem, civil disobedience and attack.

Ministers still maintain the fiction that technology is the answer. All technological solutions require resources, infrastructure and preparation to implement. They do not substitute for the need for checks and inspections but merely aid the efficiency in crossing the border legitimately and identifying potential breaches of compliance or false declarations. As the former Permanent Secretary at the Department for International Trade, Martin Donnelly, has made clear, on the Northern Ireland border there is absolutely no evidence, and no serious expert in the customs field, who thinks that there can be an invisible technological border. He said that it does not exist anywhere in the world.

    • I am most interested but I wonder whether the noble Lord has looked at the evidence given to the Select Committee on Exiting the European Union in the House of Commons by the head of Customs and Excise, who said that whatever the outcome of the talks, there would be no need for infrastructure on the Irish border.

    • I know that evidence has been given but I simply stick to what I have argued, supported by the former Permanent Secretary at the Department for International Trade, who is an authority on these matters.

      I remind your Lordships of the report of the Public Accounts Committee in the other place, published last December. It said:

      “Government departments’ poor track record of delivering critical border programmes, such as e-borders, leaves us sceptical that they are up to the challenges of planning for the border post-Brexit”.

      The Foreign Secretary compares it all to the congestion charge between council areas in London. Sadly, he knows little about the issues and cares even less.

      The single market and customs union are not political deals but rules-based legal entities. As an EU member state, the UK has rightly insisted on the strict and consistent enforcement of these rules. Brexiteers, no doubt including the noble Lord, Lord Lamont, pretend that the EU can pick and choose to satisfy the UK that we can have all the benefits of being in the customs union and single market with none of the obligations, and that we can have an open Irish border while rejecting all the rules for keeping it open. That is like saying, “I want my country to play in the World Cup but I won’t recognise the offside rule”.

      The success of the Good Friday agreement was that it made the border between the two parts of Ireland virtually uncontentious, both to nationalists, because it had to be completely open, and to unionists, because any constitutional change in Northern Ireland’s status could occur only with a referendum. The threat to it which Brexit poses was eminently foreseeable. It is important also to note that the 1998 agreement is not a domestic contract or statement of intent; it is an international treaty between two states. The British and Irish Governments are bound in international law to implement the terms of this agreement. Its legal precedent is the 1985 Anglo-Irish Agreement, signed by Margaret Thatcher, which gave the Irish Government a right of consultation in the affairs of Northern Ireland. The 1998 agreement makes formal recognition of the Irish Government’s,

      “special interest in Northern Ireland and … the extent to which issues of mutual concern arise in relation to Northern Ireland”.

      The agreement expressed the British Government’s wish to “develop still further” close co-operation with Ireland.

      Strands 2 and 3 of the 1998 agreement, the cross-border and British-Irish strands, are international by nature and their future cannot be determined solely by the will of this Parliament. The British Government are legally bound, in partnership with the Irish Government, to ensure that the functions and objectives of this co-operation are unimpeded by withdrawal from the European Union.

    • My Lords, on the question of the Good Friday agreement, did my noble friend notice the significant exchange that took place in the House on Monday between my noble friend Lord Judd and the Minister, the noble Lord, Lord Bourne of Aberystwyth? When my noble friend Lord Judd said,

      “could the noble Lord confirm that the amendments to be brought forward by the Government will make absolutely sacrosanct the principle of the preservation of the Good Friday agreement?”,

      the noble Lord, Lord Bourne, replied,

      “My Lords, I certainly can confirm that”.—[Official Report, 12/3/18; col. 1397.]

      So the Government appear to have committed themselves to bringing forward amendments, I assume on Report, to enshrine their obligation to observe the Good Friday agreement.

    • If that is the case, as my noble friend has reminded us, then the Government should be supporting this amendment and putting it into statute.

      During the referendum campaign in 2016 two former Prime Ministers, Sir John Major and Tony Blair, both of whom made significant contributions to the peace process, gave speeches in Derry/Londonderry, in which they stressed that imposing a hard border between the north and the south of the island of Ireland would threaten the very basis of the peace process and the stability that the island of Ireland has enjoyed. Both have cogently reinforced their case in recent weeks and are as alarmed as any of us privileged to have served as Ministers in Northern Ireland.

      There are more crossing points along this 310-mile border than there are along the whole of the EU’s eastern frontier: 257 compared with 137. The border crosses family farms and separates towns and villages from their natural hinterlands. It is both invisible and ever present, both unremarkable and deeply contested. Even the younger generation on both sides of the border associates the very idea of border controls with conflict and collective trauma. As well as the formal movement of goods, there are many services from cross-border medical and pharmaceutical transactions to people and data movements between supply chains north and south and the infrastructure issues: energy, telecoms, air and rail travel, environmental standards and so on. If, as the Prime Minister insists, Brexit means the UK leaving the customs union and the single market—a rules-based legal entity, not just a political agreement—then Brexit would unavoidably mean the introduction of a hard Irish border.

    • Is my noble friend aware that the European Parliament has today voted by 554 votes to 110 for a framework agreement that supports seeking UK associate status but that the necessary frictionless trade can be guaranteed only by membership of both the customs union and the single market? That underlines the point he is making.

    • I understood that this was a proposal being put by, I think, the leader of the European Parliament, Guy Verhofstadt. I am grateful that my noble friend has brought it to the attention of the Committee.

      A hard border is one that consists of layers of barriers to movement—that is, tariffs, quotas, bans and regulations—and requires strict conditions and evidence of compliance to cross: declarations, inspections, authorisations, visas and permits. However, while harder borders require greater means of control and management by states, it is not the visibility of a border that determines how hard it is. The experience of a harder border is felt away from the border line in the obstacles faced by an individual or business when seeking to cross it legally to work, trade or operate on the other side. Hard border arrangements therefore threaten the evolution of a successful all-island economy, which is essential to the economic development and long-term prosperity of Northern Ireland.

      A combination of the conditions of EU membership and the operation of the 1998 agreement has enabled cross-border economies of scale, supply chains, public service delivery and practical co-operation to flourish. These are particularly essential in areas, such as those in the central border region, which have suffered the consequences of multiple deprivation and conflict.

      It is estimated that 30,000 people commute across the border every day. Around 1 million HGVs, more than 1 million vans and 12 million cars move between Northern Ireland and the Republic every year. Northern Ireland is also a vital route to market for goods from the Republic, with the UK acting as a land bridge to markets in the EU 27—some of the goods going through Wales, I might add. Approximately 40% of container movements to or from the island of Ireland go through Northern Ireland.

      Also threatened are 142 areas of north-south co-operation that have developed as a result of the implementation of the 1998 agreement. These range from an all-island regime for animal health and welfare to shared infrastructure and emergency healthcare planning and provision. They bring direct benefits to people on both sides of the border, and much of this co-operation relies on regulatory alignment across it. For example, Dublin Airport is the main entry and exit point for air travel for Northern Ireland, around half of whose residents use it for holiday travel. Brexit will also require a new aviation agreement between the UK and EU member states if there is not to be disruption to flights to and from Ireland to the UK.

One of the most tangible successes in economic co-operation post the Good Friday agreement is the single wholesale electricity market, known as the SEM. A report by the House of Lords European Union Sub-Committee on Energy and Environment, published on 29 January 2018, stated:

“The Single Electricity Market (SEM) on the island of Ireland has been a key dividend of the peace process, reducing energy prices in both Northern Ireland and the Republic of Ireland, and helping to achieve decarbonisation targets. It is therefore vital that the SEM is able to continue post-Brexit. Given that its functioning requires the implementation of EU energy laws in Northern Ireland, the mechanics of maintaining the SEM will require careful consideration and new arrangements, particularly if the UK were to leave the Internal Energy Market”.

Food and agribusiness, worth more than £4.5 billion, form the largest cross-border trading sector, relying hugely on EU membership for everything from farmer payments to tariff-free exports. The sector operates on a de facto all-island basis. Examples include the 594 million litres of milk that are imported from Northern Ireland for processing in Ireland. If import tariffs or even non-tariff barriers were put in place, that could decimate the Irish milk-processing sector. Nearly all the wheat grown in Ireland is sent north for milling and then re-imported back to Ireland. Nearly 40% of Northern Irish lamb is processed in the Republic, while a significant volume of pigs and cattle from the south are processed in Northern Ireland. The Bushmills distillery, the oldest working brewery in Northern Ireland, which claims to have invented single malt before the Scots and is located on the beautiful coast of County Antrim, has trucks making 13,000 border crossings each year.

The 1998 agreement was drawn up in the context of shared UK and Irish membership of the EU, and its practical implementation centres on continued regulatory alignment. UK withdrawal from the EU means that the trajectories of the UK and Ireland will now diverge. The divergence will be wide-ranging and will happen in law, trade, security, rights, policies and politics. Brexit therefore risks deep fissures between the UK and Ireland and thus puts the Good Friday agreement at risk. Brexit, with its re-emergence of exclusivist definitions of sovereignty, nationalism and state borders, threatens to destabilise the fragile equilibrium in Northern Ireland. There are those in the Cabinet and in the ranks of the ideological hard right who see the Good Friday agreement as a tedious encumbrance to their form of Brexit, rather than as the cornerstone of a hard-won peace process that is not yet complete. They cannot be allowed to put that at risk. That is why this amendment is necessary and why I hope it will be voted on on Report

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  • I welcome the noble Lord, Lord Duncan, to his post as a Minister and commend the empathy he has shown in responding to the debate, which I think the whole House welcomes.

    I will not respond to the whole debate—the hour is too late—except to commend the marvellous, passionate eloquence of the noble and right reverend Lord, Lord Eames. He would be able to get me to follow him on any theological journey, which is asking a lot of me. However, I regret that the Minister has not really responded to the questions put to him. For example, the Brexit Secretary said recently that there would be no problem monitoring imports and exports between Northern Ireland and Ireland after Brexit and there would be no need for a hard border because we already do this for VAT purposes. But we can do it for VAT purposes now only because we are in the European Union’s VAT Information Exchange System—VIES. Outside the EU, we are out of that tracking system. Then, on Sunday, the Chancellor admitted that there was not an example in the world of the kind of technological open border alluded to by the Minister. Who believes for a minute that it can be done, apart from the Foreign Secretary—who thinks that South Armagh and Louth are the same as Camden and Westminster, except with more Guinness?

    The Prime Minister insists that Brexit means the UK leaving the single market and the customs union, which I do not accept for a moment. We can Brexit and stay in the single market and the customs union; other countries are outside the European Union but are in either the customs union or the single market. But if she were right, the UK Government in turn would be obliged by WTO rules to enforce hard border arrangements on the island of Ireland because of the change in their relationship with the EU. Therefore, to keep the border open as it is today, there is no alternative to Northern Ireland—and, by implication, the UK—remaining in both the single market and the customs union. I regret that the Minister, despite his empathy, has not really answered that point. I will not press my amendment.


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