Stephen Donnelly (Wicklow, Fianna Fail) | Oireachtas source

I wish to ask the Minister if recent developments are a cause for concern regarding a hard border. I refer specifically to reports of the backstop commitments being taken out of the withdrawal agreement and put into a separate protocol. The phase I agreement signed in December provides for three layers of protection against North-South border controls. In December, the Taoiseach and Tánaiste described these as bullet-proof, rock solid and cast iron, and we all hope they are right.

The first layer of protection was a commitment that the UK economy would remain fully aligned to the EU economy but the UK Government has repeatedly stated it will not do this and its position on this issue has been hardening in recent weeks. The second layer of protection was that the UK Government would propose specific solutions to address the unique circumstances on the island of Ireland but these have not been forthcoming. Indeed few outside the UK, or probably even the UK Government, believe that such unique solutions exist. In the last few days, the European Union's chief negotiator, Mr. Michel Barnier, stated:

It is important to tell the truth. A UK decision to leave the Single Market and to leave the customs union would make border checks unavoidable.

He made that statement, as the Minister knows, in regard to Ireland.

With the first two layers of protection probably gone, we come to the final layer, the so-called backstop. The Irish Government's view is that this backstop is unambiguous and comprehensive, ensuring there will be no North-South border controls now or at any stage in the future, but many believe that there is wiggle room within what was agreed in December. Indeed, the UK Government has a much narrower, more minimalist interpretation of what it signed in December. I have put Ireland's view of the backstop directly to three UK Ministers and all three refused to accept Ireland's view as to the comprehensive nature of the backstop.

As of last week, the EU was creating legal text to give legal power to this backstop in order to include it in the withdrawal agreement. In the last 48 hours however, Ms Jennifer Bray of The Times, Ireland edition, reported this is no longer the case and the legal text for the backstop will now be taken out of the withdrawal agreement and put in a separate protocol. Bloomberg reported that this protocol would sit alongside but outside the withdrawal agreement. While protocols can, of course, be legally enforceable, in an interview just this week a Conservative peer, when warning about the loss of rights that might happen in the UK, said the following; "The Government [he was referring to the UK Government] does not intend to take into English law the protocols of European Union laws". That interview took place in the last 48 hours.

Moving the backstop out of the withdrawal agreement and into a separate protocol feels like a political fudge. We all hope it is not but that is what it feels like. The backstop may be the only protection left against hard border controls on the island and it feels as though it has just been weakened. I therefore wish to ask the Minister the following questions. Is it true that the legal text for the backstop is being taken out of the withdrawal agreement to sit in a separate protocol? If that is true, why is it being done? Does the Government believe that this represents any weakening of the backstop and protections? Finally, with two of the three layers of protection gone and questions arising on the final one, is it fair to say that the December agreement could no longer be described as bullet-proof?

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