James Cleverly, Minister for Europe and North America – Written submission (PBC0029)

Annex A: Supplementary Evidence to the CFSC

The Government agrees that there are significant deficiencies in terms of the effectiveness of the Joint Consultative Working Group. However, we disagree with the suggestion that these deficiencies arise from “the fact that the whole process relies on Westminster and/or Whitehall passing information on to NI”.

We have an open process of information sharing with the Northern Ireland Executive. Representatives from The Executive Office attend all meetings of the Joint Consultative Working Group, and they receive the same information as UK Government Departments about new EU legislation applicable in Northern Ireland (and at the same time). The real deficiencies in the Joint Consultative Working Group are structural, and arise from the fact that it can only facilitate very limited sight of upcoming EU legislation, and has not been a forum for meaningful bilateral discussions on the substance of that legislation. This is a key part of our concern about Northern Ireland being subject to laws over which its elected representatives have no say, which is a concern parties across Northern Ireland's political spectrum have raised.

Looking forward, the Government outlined in its Command Paper ‘Northern Ireland Protocol: The Way Forward’ in July 2021 that we should “take the opportunity to ensure that in any areas where EU law is applied or replicated in Northern Ireland under a rebalanced settlement, there are more robust arrangements to ensure that, as rules are developed, they take account of their implications for Northern Ireland – and provide a stronger role for those in Northern Ireland to whom they apply (including the Northern Ireland Assembly and Executive, and wider Northern Ireland civic society and business).”

This is one of the issues we have raised in our discussions with the EU about placing the operation of the Protocol on a more sustainable footing. In recognition of the issues in this area, the EU published their own proposals in a non-paper titled “Engagement with Northern Ireland Stakeholders and Authorities” in October 2021, which suggested some avenues for increased stakeholder engagement but without addressing the underlying democratic deficit inherent in how rules are made and applied in Northern Ireland. We have engaged in negotiations in good faith, but after eighteen months of negotiations (under both Lord Frost and the Foreign Secretary) we are asking the Commission to go back to Member States for a new mandate. We will continue to talk with the EU, while in parallel moving forward with a legislative solution, because we can’t wait to address the issues facing the people of Northern Ireland now.

With regard to the quality of explanatory memoranda, the House of Lords Sub-Committee on the Protocol on Ireland/Northern Ireland made a similar point in their 5th report in March[1] and the Government will be responding to the recommendations of that report in due course.

May 2022