Windsor Framework (Retail Movement Scheme: Public Health, Marketing and Organic Product Standards and Miscellaneous Provisions) Regulations 2023
20:37 - Division on Baroness Hoey’s Motion - Ayes: 12 / Noes: 65 - Motion disagreed.
Baroness Hoey
That this House regrets that, while the Windsor Framework (Retail Movement Scheme: Public Health, Marketing and Organic Product Standards and Miscellaneous Provisions) Regulations 2023 give practical effect to provisions in EU Regulation 2023/1231 which lessen the disturbance caused by the Irish Sea border, (1) they do not remove the border or the need for expensive and disruptive customs and sanitary and phytosanitary paperwork, and border control posts, (2) Article 14 of EU Regulation 2023/1231 reserves the right for the European Union to reverse provisions afforded by these Regulations that make the border less burdensome, and (3) on both counts, these Regulations are associated with an initiative that violates the territorial integrity of the United Kingdom.
Relevant document: 51st Report from the Secondary Legislation Scrutiny Committee, Session 2022-23.
Baroness Hoey (Non-Afl)
My Lords, I bet that when the people in the Whips’ Office saw this regret Motion, they probably said, “Oh not again!”, as this comes just a few weeks after we had a similar but slightly different regret Motion from the noble Lord, Lord Dodds of Duncairn. However, I make no apologies for moving it. It is nice to see a different Front Bench; I welcome the noble Lord, Lord Harlech, who will respond. The noble Lord, Lord Benyon, has probably had enough of the Windsor Framework; he has gone to COP 28, which is perhaps a slightly better place for him to be tonight.
As I said, I make no apologies for this. It is an opportunity for those of us who live in Northern Ireland and who live day-to-day with the increasingly ridiculous Windsor Framework to try to ensure that noble Lords, and particularly those who genuinely care about Northern Ireland and the union, understand more about how it is being implemented and how the continued Irish Sea border affects the everyday lives of many people in Northern Ireland. Noble Lords should realise how profound are the political and constitutional ramifications for the union of statutory instruments such as this.
If you look at the statutory instrument, it is almost like gobbledegook, but of course most statutory instruments are. I am not a lawyer, but I thought it was pretty difficult to understand and seemingly very bureaucratic. Then, when I went to visit a local butcher and heard from him just how difficult it was—he showed me all the paperwork and the forms he had to comply with to bring in what he had always been bringing in: some special cheese from Scotland—it made this statutory instrument seem quite simple.
It is important that we first look at what this SI does. It is important to remember that the provisions listed in column 2 of Schedule 1 are treated as applying to the extent that the corresponding EU instrument in column 1 does not apply by virtue of article 1(2) and chapter 2 of EU regulation 2023/1231—I said this was quite complicated. This results in the disapplication of EU standards in favour of GB standards, where column 1 lists EU legislation and column 2 lists different GB legislation.
On this basis, the most striking thing is that consideration of Schedule 1 conveys that, while there may be some scope for disapplying EU legislation, it remains overwhelmingly in place and binding. In short, this way of presenting the potential suspension of some 60 EU laws is in fact a really good way for the Government to have highlighted the extent to which, even under the so-called green lane, we in Northern Ireland remain subject to EU laws.
The point needs to be seen in the context of the fact that, since January 2021, Northern Ireland has so far been subject to around 700 new regulations and laws that have simply been imposed in a way that would never have been contemplated in any other part of the world, never mind any other part of the United Kingdom. That begs the question: how can our Government have allowed part of our country to be treated so differently and separately, under the separate legislation of the EU?
How did we get here? Of course, we all remember 27 February. When the Prime Minister announced the Windsor Framework, he expressly told the country that he had removed any sense of a border in the Irish Sea. Since then, we have been told again and again that the purpose of the Windsor Framework is to reconnect Northern Ireland into the same internal market as Great Britain, giving effect to a UK single market for goods: unfettered access—those are words that the Government love—for goods across the UK’s internal market for goods. Being in a single market for goods mean that goods can move freely within that internal market without encountering any internal border obstacles, but the legislation crafted to give effect to this supposedly great breakthrough of the Windsor Framework, including these regulations, demonstrates that, far from removing any sense of border in the Irish Sea, the Windsor Framework confirms the reality of the border in the Irish Sea.
The legislation means that, rather than laying the foundation for the movement of goods from one part of the UK to another, unfettered by a customs or SPS border, we have the movement of goods, subject to the huge cost of a customs border, SPS border, paperwork and checks. Pretty soon after 27 February, we realised that, notwithstanding the Prime Minister’s claim to have removed any sense of border, the border had remained completely in place through the red lane. Anyone moving goods on the red lane has to trade with one part of the United Kingdom as if it was a foreign country. This is crucial, because it means that, even if the green lane created a lane through which some goods could move as freely from Scotland to Northern Ireland as from Scotland to England—that is, within a single internal market for goods—that would still constitute a hugely controversial change to the extent that other goods destined for Northern Ireland would have to go on a red lane, as if travelling to a foreign country.
This statutory instrument demonstrates that the actual deal is far, far worse, because the green lane facilitated in part by these regulations is not green. We live in an age of growing cynicism about politics in which there is voter apathy and disaffection, and that is increasingly a problem. Central to that is a perception that politicians can be less than straight with the public and seek to pull the wool over people’s eyes by using language to obscure, rather than shine light, on the presenting situation.
The Windsor Framework, effected by these and other regulations, provides one of the most stark and worrying manifestations of this tendency. The notions of red and green are not empty images; they convey meaning, even when considered apart from borders. Red conveys the fact that you will be stopped; green, the sense that you can move through freely. When we turn our attentions to questions of the border, when there are goods entering the UK single market from beyond the United Kingdom, we are confronted with two lanes, red and green. If you are bringing goods into the European single market, you have to go through the red lane and present customs and SPS paperwork and encounter a border control post and potential checks. By contrast, the green lane is for someone coming into the EU single market without any goods, and they can move freely. In this context, it is completely cynical, first, to claim to have removed any sense of a border in the Irish Sea when it remains very much in place, and then to suggest you are providing a green lane, implying unfettered access, when these regulations make it absolutely clear that that is not the case.
In reality, the regulations in this statutory instrument communicate the fact that if you travel on the so-called green lane, you remain subject to the customs and SPS border and certainly do not enjoy unfettered access within the territory of the United Kingdom. In order to access the green lane, you must obtain authorisation, and to do so you have to provide information for “customs purposes”. This is set out very plainly in Articles 7 and 9(2) of the joint committee decision 1/2023, which gives effect to the Windsor Framework. This embeds, even in the operation of the mythical green lane, an internal UK customs border between GB and Northern Ireland.
It follows, obviously, that there is no route to removing the Irish Sea border by any tinkering. That is of course the Democratic Unionist Party’s third test. There is no route which does not involve at least fundamentally altering and thus reopening the Windsor Framework debate and, to restore Article VI of the Acts of Union, disapplying Section 7A of the European Union (Withdrawal) Act 2018, in so far as it creates inconsistency with the Acts of Union, as said by the Supreme Court.
Of course, you might be subject to a few fewer SPS demands if you go in the green lane, but you will still be subject to customs and SPS requirements as if trading with a foreign country—or, per the terminology used by the Government in one of their SIs to describe Northern Ireland, a third country. How insulting that is to the people of the United Kingdom living in Northern Ireland. You will still have to have an export number, as if you are trading with a foreign country. You will still have to encounter the significant costs of needing to have customs and SPS paperwork, because you will be leaving one internal market for goods and entering another. You will still have to be subject to 100% documentary checks, and you will still have to go through a border control post and be subject to between 5% and 10% identity checks, along with some physical checks, because you are leaving one internal market for goods and entering another.
As if that is not enough, you will still have to embrace additional frictions in return for accessing the so-called green lane. You will have to apply successfully to join the trusted traders scheme and maintain your membership of it, and you will have to embrace the cost of producing “not for EU” labels. Is it any wonder that hundreds of businesses in Great Britain are now putting on their website a line that simply says, “We no longer send goods to Northern Ireland”?
In this context, the attempt to describe this arrangement as giving effect to a green lane is deeply, deeply misleading and, I believe, shows modern politics at its absolute worst. The Government should know better than to try cynically to pull the wool over the eyes of the people of the United Kingdom. I call on the Government to level with people, be honest, acknowledge the truth and not try to hide it in words. The truth is that the border remains in the Irish Sea, and that what the Government have managed to secure is two different red lane border experiences. The movement of goods continues to be subject to a border experience, with both bureaucratic requirements and checks as goods leave one internal market for goods and enter another. It just happens in different ways, which can perhaps be described as “the standard red lane experience” and “an alternative red lane experience”.
Moreover, the alternative red lane experience which is affected by these regulations is provided only at the pleasure and agreement of the European Union. Article 14 of EU Regulation 2023/1231, to which these regulations relate and without which they would be completely meaningless, reserves to the European Union the right to withdraw the alternative red lane experience. Thus, the effect of these regulations, to which this Parliament has agreed, is entirely dependent on the European Union. Noble Lords could pass regulations and at some point, the European Union could make them effectively null and void using Article 14.
The Government keep saying that the Windsor Framework protects Northern Ireland’s place in the UK internal market for goods. An internal market does not happen because different places can trade within it. Different places trade all the time in international trade between different internal markets—for example, a business trading from London with a business in New York. An internal market means that a business in one part of the internal market can trade with another part of the internal market without leaving it and thus without being subject to everything that has already been mentioned: a customs SPS border, paperwork, and border control posts. The regulations do not remove these. Under these regulations, trade between one part of our country still requires an export number, filling in customs and SPS border forms, being subject to 100% documentary checks and being subject to between 5% and 10% identity checks, which require stopping at a border control post, as well as some physical checks.
Similar arguments could be made here, calling on the Government to stop pretending that the regulations protect the place of Northern Ireland in the UK internal market for goods, when they actually demonstrate that the UK internal market for goods no longer exists and has instead been replaced with a GB single market for goods, placing Northern Ireland in a different single market. If only the Government would be honest.
In the previous Windsor Framework statutory instrument regret debate, I asked the Minister to define “unfettered access”. He answered that he wanted
“goods … to be traded within the United Kingdom in a similar way to anywhere within GB”. [Official Report, 18/10/23; col. 270]
I welcomed him saying that, but the logic of that is that the Government need to accept that they will have to go back to the European Union and stand up for their own citizens in the United Kingdom.
I know that many Government Ministers understand that this situation is untenable, and that there are many in the Labour Opposition who know that it is. Let us not forget that the Windsor Framework was put through on a vote to do with the consent principle, and then the whole thing was accepted, rushed through by a Prime Minister who was obviously frightened that, if people really understood it, it might have been voted down or at least have had a bigger vote against it. I know from many noble Lords who have spoken to me that, despite their vote for the Windsor Framework, they now realise it was a rushed attempt to be seen to do something about the protocol which everyone, even those in the Alliance Party who had called for its rigorous implementation, had realised had to go. But the hype and the misinformation—indeed, the lies that were told—about the framework made the old saying “the truth will find you out” so true.
Lord Morrow (DUP)
My Lords, in responding to the regulations before us, it is easy to allow our attention to be drawn to the Irish Sea border and its implications for trade and lose an important aspect of the bigger picture. We must always keep in mind that the reality of the border is a function of a more basic and underlying problem—the fact that, in some 300 areas, Northern Ireland is subject to laws made for us by the European Union. These laws create a different legal regime in Northern Ireland from that which obtains in GB.
The purpose of the border, regulated in part by these new Windsor regulations, is to protect the integrity of that different regime. This was arguably not particularly important to begin with because our laws were the same, but over time they have diverged, and will continue to diverge more and more. Since 1 January 2021, we have been subject to the gross indignity of having more than 700 laws made for and imposed on us by a foreign legislator. This is a problem not just for Northern Ireland but for the rest of the United Kingdom and the international community, for reasons I highlighted during the King’s Speech debate.
At the heart of international relations we find the doctrine of recognition and the principle that international relations depend on two states recognising each other. This amounts to each acknowledging and respecting the right of the other to govern itself across the extent of its territory. This is foundational, because it is only when two sovereign states afford each other this mutual respect that international relations can really happen.
To be sure, there are other important doctrines, such as the principle that agreements must be kept, but we cannot collapse international society into that principle, abstracted from the other conventions that make international agreements a possibility, otherwise a treaty to promote slavery or disfranchisement would be sacrosanct because it would rest upon an agreement between states. In reality, the impact and importance of pacta sunt servanda, first mentioned in the House by the noble Lord, Lord Kerr, in treaty-making assumes the basic integrity of the actors—sovereign states—between which those agreements are reached.
If we want to uphold the international society of states that is definitive of world order and upon which international law is based, we have to remember that valid treaties are not just whatever two parties agree. They are agreements made in a context that respects the norms and assumptions on the basis of which the peace and stability of the international arena depends.
For example, the United Nations Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations states:
“Every State has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State”.
It also says:
“Nothing … shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States”
and that:
“Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country”.
As I pointed out on 15 November:
“Lest there should be any doubt about the importance of these principles, the declaration also affirms:
‘The principles of the Charter which are embodied in this Declaration constitute basic principles of international law, and consequently appeals to all States to be guided by these principles in their international conduct and to develop their mutual relations on the basis of the strict observance of these principles’
and:
‘Where obligations arising under international agreements are in conflict with the obligations of Members of the United Nations under the Charter of the United Nations, the obligations under the Charter shall prevail’.
One of the most obvious ways in which a state, A, or a group of states, AB, can act in violation of the territorial integrity of another state, C, is to apply pressure for the right to make some of the laws over part of C, and to insist on the imposition of a customs border across C at the point at which their law ceases to have effect and the laws of C alone obtain. This is what the 27 member states of the European Union have decided to do to the United Kingdom, imposing laws made by a legislature in which we are not represented and imposing a border cutting the country in two”
different legal regimes and two different internal markets—
“requiring the construction of border control posts for its enforcement”.—[Official Report, 15/11/23; col. 524.]
The sense in which the border states of the EU refuse to recognise the territorial integrity of the UK is expressed eloquently through the full title of EU regulation 2023/1231, which is partly given effect by the regulations before us today. The said regulations are defined by the EU as:
“Regulation (EU) 2023/1231 of the European Parliament and of the Council of 14 June 2023 on specific rules relating to the entry into Northern Ireland from other parts of the United Kingdom of certain consignments of retail goods, plants for planting, seed potatoes, machinery and certain vehicles operated for agricultural or forestry purposes, as well as non-commercial movements of certain pet animals into Northern Ireland”.
It is quite extraordinary legislation when one thinks about it because, far from being a piece of legislation made by and for the 27 EU member states that also applies to Northern Ireland, this regulation applies only to the governance of one country—the UK, a country that is not in the EU—and the effect of that legislation is to divide that country into two.
In 2017, the United Kingdom Government suffered a catastrophic failure of statecraft of a kind we have not seen certainly since 1688. It has resulted in our country being divided into two different legal regimes and a customs border, with UK citizens on one side of the border disfranchised and no longer able to stand for election to make all the laws to which we are subject. It is quite extraordinary that we should have fallen so low that, rather than being the occasion for the UK to reassert itself, Brexit was the occasion for our complete humiliation. While it will come as no surprise to noble Lords to know that I disagreed profoundly with Mrs Thatcher on the Anglo-Irish agreement, I cannot imagine she would ever have contemplated a Brexit deal that not only failed to secure the departure of the whole United Kingdom from the EU but split the nation territorially in the process.
We are all familiar with the phrase, “When in a hole, stop digging”. In 2017, the then Government fell into the hole and since then every Government have kept digging. The time has come for a fundamentally different approach. The imperative for making it is not merely to help UK citizens living in Northern Ireland or restoring the honour of the United Kingdom as a whole in the face of an extraordinary humiliation, but about upholding the fundamental foundational norms and assumptions on which the well-being of the international society of states depends. If one of the permanent members of the UN Security Council is unable to defend its territorial integrity in peace, what hope is there for the world?
There has been an alternative to the protocol since 2019, namely mutual enforcement. The EU decided not to go for this solution, but it is interesting to note that, in the context of expressing real concerns about the reasons for rejecting it, one of its authors, Professor Weiler, acknowledged that the alternative has been
“the introduction, however disguised, of a customs frontier within the UK”.
So it is not only unionists who are saying this; others are saying it too. He then poses a profound question. Let me say it again: the result of the EU decision not to run with mutual enforcement was
“the introduction, however disguised, of a customs frontier within the UK. But does anyone believe that this is a stable solution?”
Today’s debate has helped expose some of the disguise and has answered the question about whether anyone believes this is a stable, sustainable solution. The answer is an emphatic no. What we need is not a Government who table regulations such as those before us, so obediently and attentively to the EU’s bidding, but rather a Government who discharge their basic function in standing up for their people as a people and a Government who restore the dignity and territorial integrity of the United Kingdom. In contemplating this need, I continue to greatly rejoice that no Parliament can bind its successors.
Lord Butler of Brockwell (CB)
I shall ask the noble Lord a question that I would have liked to have asked the noble Baroness, Lady Hoey: would he prefer a customs frontier across the island of Ireland, with all of the implications that would have for the Good Friday agreement?
Lord Morrow (DUP)
I think that Northern Ireland, which we are constantly told is an integral part of the United Kingdom, should be treated as such. If you own a farm, it is your responsibility to fence your livestock in; it is not my responsibility as a neighbour to fence your livestock out.
Baroness Butler-Sloss (CB)
I wonder if I might ask a question. Will the noble Lord say what ought to be the implications of the land border with the EU?
Lord Morrow (DUP)
The land border with the EU could have been very easily resolved, because there were moves and proposals at the time. It could have been a simple, straightforward piece of work, with cameras being put up, but the EU said absolutely not. What did it do? It then split Northern Ireland and insisted on border customs, which are not yet completed but will be by 2025. Now we have Northern Ireland sitting in isolation from the rest of the United Kingdom, and that will never be acceptable.
Lord McCrea of Magherafelt and Cookstown (DUP)
I will follow on from my noble friend Lord Morrow, and I am interested in the questions that have been asked. A lot of those questions surely should have been asked at the time of the negotiations between the United Kingdom Government and the European Union. That was the time to ask those questions and answer them, rather than leaving Northern Ireland in the present precarious position that it is, without Stormont being able to function.
The real impact of the regulations before us today, in providing what is actually an alternative border experience rather than a border-free experience of the kind suggested by talk of putting Northern Ireland back in the same internal market for goods as the rest of the United Kingdom so that goods can move unfettered across the United Kingdom, is very far-reaching. Indeed, it is so far-reaching that it requires me to ask the Government to reflect further on their stated position, as set out during the debate on the previous set of Windsor regulations, on 18 October. In responding to that debate, the message from the Government Front Bench was that
“the Windsor Framework restores the smooth flow of trade within the UK internal market by removing the unnecessary burdens that have disrupted east-west trade. We are now able to achieve the long-standing UK government objective of restoring the smooth flow of trade within the UK internal market by pursuing a green lane for the movement of goods from Great Britain to Northern Ireland, supporting Northern Ireland’s place in the UK”.—[Official Report, 18/10/23; col. 269.]
That was the statement that was made.
One of the reasons why the United Kingdom is believed to have been the first country to industrialise is that it was the first country to identify the economic opportunities arising from removing internal barriers to trade, so as to create a coherent internal market for goods, coextensive with the boundaries of the kingdom. The definition of “internal market” was thus the removal of all internal border fettering, so that goods could move completely freely within the United Kingdom. It was the economic opportunities secured by this freedom that other countries identified and sought to exploit over many years.
In the context of the established meaning of “internal market” following these developments, you cannot have an internal market divided by a customs and SPS border. If you have an internal market and divide it with a customs and SPS border, you no longer have one internal market but two internal markets.
The key point here is that an internal market is secured by a right to trade between A and B. German businesses have a right to trade with Japanese businesses and vice versa. Having this right to trade, however, does not have the effect of putting Germany and Japan in the same single market. This means that businesses trading between these two countries have to encounter border formalities. In other words, goods in Germany do not enjoy unfettered access to Japan any more than Japanese goods enjoy unfettered access to Germany. If, however, the border were removed and Germany and Japan were placed in the same internal market, not only would businesses in Germany have a right to trade with Japan and vice versa but their goods would also enjoy unfettered access to Japan, just as Japanese goods would enjoy in relation to Germany, within the newly created internal market.
It simply is not possible to take the regulations before us today or, indeed, other Windsor regulations, and assert, as government Ministers continue to do, that they help to
“restore the smooth flow of trade within the United Kingdom internal market”
or unfettered access. The truth that the regulations before us today confirm is not that Northern Ireland’s place in the United Kingdom internal market has been restored, securing unfettered movement within the United Kingdom internal market. Rather, giving effect to EU regulation 2023/1231, they confirm the termination of the UK internal market for goods and its replacement with a GB single market for goods, which no longer embraces Northern Ireland.
It might be correct to argue that the suspending of 60 EU standards by these regulations eases the flow of goods in some senses—although the requirement for “Not for EU” labels off-set this benefit—but it does not ease the flow of goods within the UK internal market; that is not true. Rather, it eases the movement of goods across an international customs and SPS border between the two different internal markets for goods that the UK now covers.
In the same way, it is time for the Government to level with the British people and acknowledge that, rather than giving effect to a green lane, the regulations before us give rise to an alternative red lane. They also need to be honest and acknowledge that, far from reintegrating Northern Ireland within a UK single market for goods, the regulations confirm that the UK single market for goods no longer exists. It has been replaced, for the first time since 31 December 1800, with a Great Britain internal market for goods, and Northern Ireland has been placed in a different internal market for goods governed by a polity of which it is not a part.
In this, I greatly welcome the timely intervention this week in another place by the right honourable Dame Priti Patel, the Member of Parliament for Witham, who was Home Secretary from 2019 to 2022. She reminded us of the 2019 Conservative manifesto which pledged, on page 44, to
“ensure that Northern Ireland’s businesses and producers enjoy unfettered access to the rest of the UK and that in the implementation of our Brexit deal, we maintain and strengthen the integrity and smooth operation of our internal market”.
She was very clear that Windsor—and thus the regulations before us today, which seek to give effect to it—is not in any way consistent with that pledge. In other words, the Government have broken their election pledge.
Dame Priti Patel wrote:
“For me, as a Conservative and Unionist, maintaining the integrity of the internal market should have been a red line in negotiations with the EU and while the Windsor Framework does improve the situation with some goods facing fewer barriers, the flow of trade between Great Britain and Northern Ireland is still being disrupted. Northern Ireland also faces the ongoing imposition of EU rules affecting certain parts of its economy, which undermines democracy”.
She concluded:
“No business should face a barrier or restriction to trade between Great Britain and Northern Ireland and more work is needed to achieve this outcome. Technology, common sense and a dose of good faith should be at the forefront of the solutions needed to remove these barriers and put an end to the tentacles of EU control over Northern Ireland. The Government needs to act and the Conservative Party’s manifesto at the next General Election must reaffirm our commitment to Northern Ireland and the importance of securing the integrity of the internal market within the UK”.
On her latter point—that they have indeed scrapped their previous promise in the last manifesto—it will take more than words in an election manifesto to prove that they are as good as they say. Some of us are aware that, in the Brexit negotiations, the EU did everything within its power to humiliate the United Kingdom for having the audacity, through the authority of the ballot box, to leave the EU. It has deviously but deliberately sought to undermine the unity of the United Kingdom.
I tell noble Lords, this House and the Government Front Bench: do not treat unionists as fools. We know a good deal when we see it, but we also know a bad deal when we see it. Surely, after all that we have endured over 30 years of IRA terrorism, we have a right to expect that a Government with the title “Conservative and Unionist Party” would tell us the true facts of the protocol and the Windsor Framework. I believe the Windsor Framework is but another part of the gameplay to destroy the union.
There are those who believe they can sleepwalk unionism into a united Ireland by stealth; but unionism is awake and alert, and is aware of the treacherous plan and will not comply. Any action of this Government in response to genuine unionist concerns over the Windsor Framework will be judged in the light of the seven tests already set by the DUP and clearly endorsed by the unionist electorate. Tinkering, sleight of hand or double-talk will not be acceptable. Actions will speak louder than words. I believe that wisdom will demand careful scrutiny of anything that the Government propose.
Lord Jackson of Peterborough (Con)
Does the noble Lord concur with me, having been involved intimately in the Brexit negotiations in 2017 and 2018, that proposals had been worked up by Lars Karlsson, a customs expert who worked on the Norway/Sweden border, for technical solutions for a frictionless border that were first presented to the European Parliament in November 2017 and subsequently to this House and the other place, but they were ignored, particularly by the EU and the then May Government? That answers the specific issues raised by the noble Lord and the noble and learned Baroness, Lady Butler-Sloss.
Lord McCrea of Magherafelt and Cookstown (DUP)
I thank the noble Lord for making that point, with which I wholeheartedly concur. It is a tragedy that whenever those proposals were made—sensible proposals to deal with a very sensitive situation—the EU, at the behest of the Dublin Government, rejected them outright. Sad to say, our Government collapsed rather than take a stand for the unity of the United Kingdom.
Lord Kilclooney (CB)
When will the noble Lord recognise that the Conservatives now want Northern Ireland out of the United Kingdom?
Lord McCrea of Magherafelt and Cookstown (DUP)
Sad to say, everything they have been doing recently has led to that conclusion. Sad to say also, many other people and parties within this Chamber have a similar leaning. They want to humiliate unionists and they want to destroy the union. They are happy to placate those who for 30 years murdered the people of Northern Ireland. Because we did not buckle, bow or give in but stood tall as proud unionists, there have been those within the high reaches of authority and power who—as they did over the years of terrorism—have appeased republicanism over and over again. Unionism has to decide where it stands.
Baroness Foster of Aghadrumsee (Non-Afl)
My Lords, I will speak about the technical aspects of this SI. In particular, I will look at what the Joint Committee had to say in relation to it.
Before I do, I want to respond to the noble Lord, Lord Kilclooney. While some in the Conservative Government may take his view, though not all, the Irish Times poll that was published over the weekend shows a clear majority of people in Northern Ireland who want to remain within the United Kingdom. It is important that we reference that. After all, the Belfast agreement is clear that we will remain in the United Kingdom until the time when there is a border poll, and that will be called only if it looks as if there is a possibility of a majority voting in that manner—and there is absolutely no evidence of that. I just want to put that on the record here in the House of Lords, because it is important to say that the people of Northern Ireland remain committed to the United Kingdom.
My noble friend mentioned the Alternative Arrangements Commission, which did an awful lot of work. It put forward a report, which I think moved things on very far, on how the border would be dealt with through technology, intelligence, trusted traders and small business exemptions. But all the very sensible proposals that were put forward were rejected as unicorn solutions. I do not believe that is what they were; they were very fair solutions to what had been brought about. I really regret that the Government went down a different route with the EU. Having said that, it was under a lot of pressure from the Republic of Ireland, which was leading the charge in respect of this with the European Union, and unfortunately the European Union allowed the Republic of Ireland to push it in that direction. Had we gone down the route of the alternative arrangements, we certainly would not have had the difficulties that we have in relation to goods coming from—
Lord Kilclooney (CB)
The noble Baroness is quite correct. The overwhelming majority in the public opinion poll reported this weekend in Northern Ireland want to stay in the United Kingdom. I was not disagreeing with that. I was saying that the Conservative Party is letting Northern Ireland down.
Baroness Foster of Aghadrumsee (Non-Afl)
I acknowledge what the noble Lord has to say, but he will know that the people of Northern Ireland will decide. That is why it is so important that people recognise that the United Kingdom is good for Northern Ireland and a beneficial place for Northern Ireland to be. I really wanted to reference that today.
I want to refer to the Joint Committee’s scrutiny of the SI. I pay tribute to the noble Baroness, Lady Hoey, for tabling this regret Motion; otherwise, the SI would not have been debated. Even the Joint Committee was clear in its assessment that this was a politically sensitive issue, and therefore—it did not say as much as this, but it is what I would argue—it certainly should have been carried through by the affirmative procedure. Even in Northern Ireland, if a Minister takes a decision that is novel and contentious, it has to come to the full Executive for discussion. I posit the view that this setting up of the regulations for the green and red lanes is something that should have come for fuller examination. I look forward to the Minister giving us the reasoning for why this went through on the negative procedure.
It is not just that it went through on the negative procedure; worse than that, it came through in the summer when there was no opportunity for parliamentary scrutiny before the scheme went live. The scheme came into being on 1 October this year but here we are in December, and only because the noble Baroness, Lady Hoey, tabled a regret Motion debating the scheme. The procedure for this SI has been very poor indeed.
The third issue—the first two were that it should have been by the affirmative procedure and that it should not have gone through in the summer months when there no possibility of discussion—is that the Joint Committee refers to the fact that it is concerned about the lack of an impact assessment or even basic impact information. I was listening to the previous debate on the regret Motion tabled by the noble Baroness, Lady Lister, on immigration fees and the reference to there not being parliamentary scrutiny of that issue. Here we have an entirely new scheme being set up for goods moving from Great Britain into Northern Ireland, and we are discussing it two months after it came into operation only because the noble Baroness, Lady Hoey, brought it to the Floor. Surely the Government must recognise that that is not an acceptable way to deal with an SI of this significance. It should have been brought to the Floor at least for debate so that parliamentarians across the two Houses could make their voices heard and ask questions of the relevant Government Ministers. I hope the Minister will be able to give us some indication of why it was felt appropriate to bring in this important SI by negative resolution.
Baroness Butler-Sloss (CB)
My Lords, I entirely support what the noble Baroness, Lady Foster, has just said, but the earlier speeches by noble Lords have raised a rather deeper issue. Speaking as an Englishwoman married for 64 years to an Ulsterman from County Down, I would like to stress how much English people care to keep Northern Ireland as part of the United Kingdom. I have never yet met anyone who did not want that to happen. It is important to say that at this moment, because what is being talked about is the importance that Northern Ireland attaches to the United Kingdom—but the United Kingdom should remain with Northern Ireland as an important and very valued member.
I would like to ask the Minister this, as what worries me particularly is not so much the failure to do what should have been done in the past, which I entirely understand from what noble Lords have said, but that we really have to live in the real world, which is today. What are the Government going to do to put it right and create a situation in which Northern Ireland is, in all reality, a total member of the United Kingdom internal market?
Lord Browne of Belmont (DUP)
My Lords, in this 25th anniversary of the Belfast/Good Friday agreement, the regulations before us today are profoundly destabilising. The Windsor Framework has subjected itself to the Good Friday agreement by devoting its first and second articles to serving the prior agreement. Article 1 subjects Windsor to the Good Friday agreement consent principle, recognising the territorial integrity of the UK—the thing that the Republic of Ireland refused to do until the Good Friday agreement with the UK—and to protecting the 1998 agreement in all its dimensions, while article 2 explicitly subjects the Windsor protocol to the human rights protection in the Good Friday agreement. This is critical, because Article 30.2 of the Vienna Convention on the Law of Treaties states:
“When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail”.
Thus the Windsor Framework effectively subjects itself to a prior treaty—the Good Friday agreement—and the territorial integrity of the UK this side of a border poll.
To that end, the regulations before us plainly contradict article 1.2 of the Windsor Framework, which creates an imperative for respecting
“the essential State functions and territorial integrity of the United Kingdom”.
Arguably, the most essential state function of all is the provision of security, which finds expression on a number of bases including military security, cybersecurity and biosecurity. Yet the Explanatory Memorandum accompanying these regulations states:
“The purpose of this instrument is to support trade between Great Britain … and Northern Ireland … whilst protecting the biosecurity of the island of Ireland, following the agreement of the Windsor Framework”.
Of course, it is very healthy for a state to have regard to the biosecurity of neighbours, but this must be a secondary obligation to having regard to the biosecurity of its own citizens, who pay taxes and may be asked to make the ultimate sacrifice in time of war. Yet neither the regulations before us nor the Explanatory Memorandum make any reference to the biosecurity of the United Kingdom. Instead, they talk only about having regard for the biosecurity of the island of Ireland as a whole.
Implicit in the deconstruction of the UK, by way of deconstructing its essential state functions, is the reframing of questions of security and risk so that they no longer pertain to the United Kingdom of Great Britain and Northern Ireland, but rather ask Great Britain to view risk and biosecurity separately, and independently from Northern Ireland, whose biosecurity is now set for some purpose at a Republic of Ireland-EU level. Crucially, this is not simply a process of separation, but a process of separation against each other, such that one does not simply cease viewing Northern Ireland within one’s biosecurity; one is asked to assess one’s biosecurity against that of Northern Ireland. The disciplines imposed by the protocol on biosecurity risk assessments give rise not just to an othering process, in the context of which Northern Ireland is no longer part of the same political “we”, but to the pathologising of Great Britain as an “other” that is also the source of a threat. This is completely destructive to the UK body politic and UK political demos.
Lord Weir of Ballyholme (DUP)
My Lords, I am honoured to speak in today’s very important debate. I welcome the Minister, the noble Lord, Lord Harlech, to his place for the first opportunity to answer on the SI. I am sure it is the deepest regret of the noble Lord, Lord Benyon, who moved to a different portfolio—it is probably the one abiding regret he has—that he is no longer in a position to respond to various Windsor Framework debates. It must be a great source of pain to him.
This is a very important debate because, beyond the technical requirements of the SI, it goes very much to the heart of the problems, both in a current and future sense, with the arrangements in connection with the Windsor Framework. I agree very much with the tone of the noble and learned Baroness, Lady Butler-Sloss: what is important is not, arguably, what has gone on in the past, but where we are at present and where we will be in the future.
I press a particular emphasis on the future because, if anybody takes the time to talk, for example, to the haulage industry or those dealing with these issues on a day-to-day basis—as opposed to participating simply in a debate—they will tell you that the arrangements being put in place today are a mere shadow of the problems in days to come. In the absence of border control posts, any arrangements at present are of a light-touch nature; the real difficulties we will face throughout the United Kingdom will be in the future, whenever those border controls are fully built and operational. It is not just the question of where we land with this SI at present, but where it will take us in the future.
While there are many aspects of this I have concerns about, which other noble Lords have touched on, there is a microcosm of three issues that lie at the heart of our difficulties. First, when the Government produced the Windsor Framework, they massively overhyped what they had achieved. All of us, particularly those of us from Northern Ireland, value when people are being straightforward and honest with us directly. At the very least, we would have had much more respect for the Government’s position had they said, “In our negotiations, there are certain things we have achieved and have made a level of progress on, but there are a range of things that are still difficulties. There are a range of things we wanted to achieve but did not get success on”. That is not the position that they took when they reached the Windsor Framework earlier this year.
We were told that this would restore the integrity of the internal market and that it would provide unfettered access. There was some adjustment in the language, but the more watered-down version was that it would remove any sense of the Irish Sea border. I cannot remember whether it was a verbal comment or in the Government’s Command Paper, but they gave an assurance that the level of paperwork required to access the green lanes would be akin to moving goods from the mainland of Great Britain to the Isle of Wight.
Looking purely at the green lane and what is being put in place, any single movement requires customs paperwork, an export number, for the business itself to be part of a trusted trader scheme, for the individual consignment to be sealed so it cannot be interfered with in any way and a final address in Northern Ireland for it to be delivered to. There are many things that you can say about that—you may say that it reduces the SPS paperwork compared with what would have been there purely under the protocol—but the one thing you cannot say is that this is unfettered access. I am not aware that any of those regulations would apply, for example, using the Government’s example, when moving goods to the Isle of Wight from another part of Great Britain. In the context of the green lane, the comparison of unfettered access is that if somebody is looking to move goods from part of the European Union to anywhere in Northern Ireland, they can do so completely seamlessly—but that is not there under this SI for movements between one part of the United Kingdom and another.
Secondly, this SI represents something that the Government have accepted: a massive level of overreach by the European Union. I entirely understand that, if you are looking at this from an EU perspective, you want to do all you can to protect the European Union and its single market. But the focus of this SI is not on the regulations for the red lane movement; it is on movement entirely within the United Kingdom for goods that must have an end destination within the United Kingdom—it is important that we contextualise that. This is not about goods coming into another part of the United Kingdom that may be at risk of moving to the EU, because those are automatically put under the red lane system already. There is a level of overreach.
We are told that 60 EU rules will be disapplied—it took a lot of work to extract that information. We have been given a form of dispensation, but we get that at the grace and favour of the EU. As shown by EU Regulation 1231, it is a form of dispensation that the UK is being granted; we are still under the overall auspices of the EU. It is a conditional dispensation, because the EU, in Regulation 1231, gives itself that power unilaterally. If, for whatever reason, it feels that things are not working out or it changes its mind, it can withdraw this at any stage, so we are not being given the freedom of opportunity. Regular checks are also being placed on the green lane—whether it will be 10%, 5% or whatever level of variation. These are random checks; they are not done in a situation where there is any particular evidence of fraud or any level of suspicion.
I will give an indication of how much of an overreach that is. Take what should be a far more dangerous situation to the EU: movements of goods between Kaliningrad and Russia. Under the EU sanctions that were applied, the guidance given to EU countries was that they did not have to produce effective controls on movements of goods between Russia and Kaliningrad. That is the bizarre situation that we are in: there is a greater level of regulation of goods moving within the United Kingdom than goods moving between two parts of an aggressive nation that is involved in great war crimes against Ukraine—where the goods are physically passing through the European Union. That is the level of overreach that we are left with.
Thirdly, while the constitutional impropriety of this is clear, it is leading to practical issues and problems in the diversion of trade. The noble Baroness, Lady Hoey, mentioned that, for a lot of companies operating in Great Britain—we have seen examples of this already—if they do not have a large volume of activity within Northern Ireland, they will say, “Why should we bother with all the hassle of sending something to Northern Ireland? We will simply withdraw from that market”. That is damaging both to the companies in Great Britain—because it denies them the opportunity for trade—and to Northern Ireland customers, and it gives no alternative but for those goods to be sourced from within the EU rather than another part of the United Kingdom.
Lord Jackson of Peterborough (Con)
My Lords, I had not intended to speak in this debate, but I think it is important to follow the lead of the noble and learned Baroness, Lady Butler-Sloss, and examine the wider context. Incidentally, I strongly support the views of the DUP, which is a credit to the people for whom it speaks. I particularly note the comprehensive and detailed evidence it presented to the Secondary Legislation Scrutiny Committee, which I have read but not necessarily inwardly digested.
Noble Lords might know that I served for a year or so as special adviser to the then Secretary of State for Exiting the EU. I knew more than I could possibly have wanted to know about phytosanitary issues. We have to look at the wider context here: this is about not just the de jure decision of the UK as a whole to leave the EU but the de facto bifurcation of a sovereign country. It is not just about granular and technical issues relating to groceries and agricultural goods; it is about the fundamental right of a group of people to elect and dismiss representatives who are accountable to their electors.
The wider issue is quite obvious to those of us who have followed the European Union’s behaviour. Incidentally, the wider context of the Windsor Framework specifically is that the EU was effectively in breach of the TCA because it used the non-agreement of the Windsor Framework as a means to prevent the UK securing a deal on the successor to Horizon Europe. That was blackmail, frankly—but we should not be surprised by that because Martin Selmayr, who was chief of staff to Jean-Claude Juncker, stated way back in 2016 that the strategic geopolitical interests of the European Union were in making Brexit as difficult as possible for the United Kingdom and making sure that the United Kingdom of Great Britain and Northern Ireland did not have a long-term economic advantage over the EU. So it was always the case that it would weaponise Northern Ireland to cause as much difficulty as possible. That is the wider issue. In fairness, I agree that Tony Blair and John Major warned of these potential difficulties—although they were coming at the issue from a different angle, in opposing the Brexit vote.
I am not surprised about the passion of my noble friends in the DUP because this is a fundamental issue about the governance of our country, and we would not nonchalantly seek not to debate a similar proposal if it were about Devon, Surrey, Northumberland or Birmingham. Why should we effectively treat our citizens in Northern Ireland, who have decided to remain part of this sovereign nation, in a different and less advantageous way? For that reason, I welcome the regret Motion from the noble Baroness, Lady Hoey.
It is important to note, as I did earlier, that proposals that would have solved this issue were put forward. If noble Lords remember, there was the Malthouse compromise, a backstop and the Karlsson report on smart borders 2.0 and 2.1, which the noble Baroness, Lady Foster, referenced. There were opportunities to leverage technologies, such as CCTV, warehousing away from the border and trusted trader schemes, in order for there to be a mutually beneficial trading relationship that would not bring a hard border back or threaten the integrity and viability of the Good Friday agreement. But these were dismissed by the EU and, through Messrs Varadkar and Coveney exerting pressure day by day and week by week on a weak Government without a majority—the May Government—their position was allowed to succeed. We missed that opportunity. This gentleman is not some esoteric policy wonk; he was in charge of the customs of Sweden and did work all over the world, including the Middle East. He had great expertise and offered it to the Commission and the British Government. As I mentioned, he produced a comprehensive and practical report to the appropriate committee of the European Union, but it was dismissed.
For those reasons, I believe it is important that we continue to debate the Windsor Framework in the future because this issue is much more fundamental than the minutiae of trade, HGV movements and other issues—though they are important, as noble Lords have said. If this is pressed to a vote, I am afraid that, for the first occasion in this House, I will support the regret Motion from the noble Baroness, Lady Hoey.
Lord Moylan (Con)
My Lords, I will be brief. The noble Lord, Lord Morrow, referred to this instrument as a “humiliation”. I am not sure whether he meant a humiliation for the country or something else, but we can be in no doubt that it is a humiliation for Parliament that a foreign Parliament should send us an instrument—a law made by it with no reference to us—and invite us to cut and paste it into the form of a statutory instrument that we are required to rubber-stamp.
I cannot think of another democracy, inside or outside Europe, which would be willing to have laws made for the internal trade of part its own country and for part of its own territory by a foreign Parliament on this basis, with no participation or representation, and be expected to accept it and hand it on in this way.
We are told that the justification for accepting this humiliation—although this has not come up in the debate, as such—is that it is the price of maintaining the Good Friday agreement. That would not be an argument wholly without merit, if it had substance—but it has no substance, because the Good Friday agreement is not being maintained. It is not being maintained in its internal arrangements or on its east-west strands, or north-south. It is largely defunct; the only part of the Good Friday agreement that is still fundamentally alive is the question that Northern Ireland will remain part of the United Kingdom unless and until there is a vote that supports transferring it to the Republic of Ireland. That part of it remains alive; the rest is functionally dead.
So we are not actually achieving our objective in doing this, but meanwhile we accept the humiliation, which no doubt in a moment my noble friend is going to rise at the Dispatch Box and defend. With a name like Harlech, if he were proposing this in relation to Wales, I imagine that he would resile, and resile firmly from doing so, but in the case of Northern Ireland it appears to be acceptable, despite the manifest evidence that the claimed benefit of doing so is not actually arising. I look forward to hearing what my noble friend on the Front Bench is going to say.
But I look forward almost with more interest to what the noble Baroness on the Labour Front Bench is going to say. I have to take cognisance of the fact that I understand, or am told by outside interests, that there is the prospect or possibility of a Labour Government in the next year or so. I do not countenance it myself, but to hear what the Labour Party has to say about what it will do about this in government—and the noble Lord, Lord Weir, is correct that we need to look forward—is absolutely crucial on this matter. In my view, it will find that, if it thinks that this is going to be solved in some way by greater alignment of the whole of the United Kingdom with the European Union, it will quickly run into the fact that there is a price to be paid. The European Union will regard that there is a price to be paid for that alignment, in loss of opportunities elsewhere. Those hard decisions—and of course I am not expecting to hear the answer to those decisions today—will land very firmly at the feet of any incoming Government who might arrive in the next 12 months. The Windsor Framework and the arrangements put in its place are absolutely central to how any incoming Government respond to them. So in some ways, the most interesting speech of the day, I am sure, will come from one of the two noble Baronesses—I am not sure which—sitting opposite, and I look forward to it.
Lord Empey (UUP)
I just wanted to remind the noble Lord that the reason we have the arrangements we have is because the Government proposed to the European Union in 2019 that we have a border in the Irish Sea, that those trading with Northern Ireland traders would have to notify the relevant authorities before goods were sent to Northern Ireland, and that we had to comply with EU rules and EU law. That was proposed by the United Kingdom Government to the European Commission in October 2019. So we have shot ourselves in the foot.
Lord Moylan (Con)
My Lords, I am delighted to be reminded of that, and I remind the noble Lord that I was not a Member of your Lordships’ House when the Northern Ireland protocol came to a vote, and when the Windsor Framework came to a vote I was one of only two Conservative Peers who went through that Lobby to vote against it. So whatever “gotcha” moment arises from that question, it applies to somebody else and not to me. I also refer the noble Lord to the word of wisdom from the noble Lord, Lord Weir, about looking to the future and trying to resolve something: it is not going to benefit us greatly if we look back and point fingers about who messed up in the past. That word of wisdom is one that we should take to heart.
As I say, I look forward to hearing from my noble friend but almost as much to hearing from the Front Bench of the party opposite.
Lord Bew (CB)
My Lords, I rise to speak to the regret Motion of the noble Baroness, Lady Hoey. She and I are very old friends and have agreed and still agree about many things, and I regret not being able to support the regret Motion that she has put before the House tonight, although I agree with much of what she said and much of what has been said from the DUP Benches.
I was particularly encouraged to hear the noble Lord, Lord McCrea, say that the crucial thing was the response to the seven tests. That is a very important matter. I also noticed that the first test makes reference to Article VI of the Act of Union, and the fulfilment of that promise. I regard that as somewhat encouraging. As the noble Lord, Lord McCrea, is a man of great honour, I am certain that he will hold to that position, as it is a matter of some substance. What has happened is that we have moved away from the seven tests, and much of the discussion tonight has moved away from the seven tests.
To go to the heart of the regret Motion of the noble Baroness, Lady Hoey, the Windsor Framework is actually based on technical data-sharing and agreed application and reinforcement. This is a key part of it. In late 2022, I think, in a series of asks, we were able to say to the European Union that we have a new technology that permits us to do things in a new way. The Windsor Framework is not just about that, but it certainly builds on that. Of course, if we refuse to share data, the EU can respond by not accepting the easements that it has put in place and the changes that it has made. But this is a two-way street, and it cannot act arbitrarily—it is as simple as that; it is that sort of agreement. It is important to understand that.
Numerous solutions have been suggested to the 2017 agreement—the UK-EU agreement, which was a major defeat for the United Kingdom. A snap election was called, and the Government were really on their knees. The Irish Government pushed for certain advantages, which it won—and we are still here tonight, six years later, having not escaped from the toils of that Irish negotiation. It is on record that Irish officials were surprised at the ease with which the UK Government conceded. That having been said, it is water under the bridge; we are still here after six years trying to sort it out, but we have an international agreement, and the May withdrawal agreement did not even mention the Northern Ireland Assembly. It is obvious that we have moved on a considerable degree over seven years, in respect of the Government, with regard to the opinions and views of the people of Northern Ireland, the Stormont brake being an obvious example in the Northern Irish Assembly.
I feel that I should say one thing. The latest polling gives the Windsor Framework 60% support in Northern Ireland. It is correct to refer to the polling at the weekend, as the noble Baroness, Lady Foster, did, which shows strong support for the union. There is very strong support for it still in Northern Ireland—there is a very substantial lead. But it is also true, although support for the union is at 50% in that report, and for a united Ireland 30%, if I remember rightly, that support for the Windsor Framework is running at 60% in the latest academic polling. Sometimes, when one listens to the rhetoric about how terrible it all is, one would think that the people of Northern Ireland must be incredibly stupid if 60% of them think that it is actually working quite well and they are prepared to support it. It is worth bearing that in mind.
The opinions of other people in Northern Ireland do matter. I have stood beside the DUP through many debates in this House and supported its objections, but the opinions of the whole community also matter in the consideration of these outcomes. The 2017 report was unleashed in our lives and pockmarked everything since—for example, the concept of the island economy. This is also related to the so-called mapping exercise, brilliantly intellectually deconstructed in the Irish Times by Newton Emerson a couple of years ago. These concepts—duff, essentially—play into British official documents, and the United Kingdom Government say that they will continue to support these things, some of them slightly fantasy elements.
We are nearing the end of the road. The government White Paper that accompanied the Windsor Framework marks a gradual detachment by the UK Government from this level of green fantasy. This is not to say that there is not an island economy in agri-food, by the way, which is one reason why a hard border would have been very difficult, but overall there is not an island economy. The island economy argument has been used by the TUV in particular to say, “We have created an island economy; this will lead to a politically united Ireland”. The difficulty with that is that it is exactly the same argument that Jim Allister put 25 years ago about the Good Friday agreement—which has now been supported, I am glad to see, from the DUP Benches. It is exactly the same argument he put then. Twenty-five years ago, the facts did not bear him out. The island economy was not a growing thing that was going to lead there—two economies on the island of Ireland leading to political unity—but, 25 years later, heigh-ho, we are back with a version of the same argument.
My friend Lord Trimble, in his last public act, introduced a paper for the think tank Policy Exchange by Graham Gudgin. It argued that
“there are two distinct economies on the island of Ireland. The Republic of Ireland is a sovereign state, fully part of the European Union but also one the world’s largest tax havens … With different currencies, different fiscal and monetary arrangements including different interest rates and VAT excise duties, and with separate legal systems, the two areas are distinct … Only 4% of the goods and services produced in Northern Ireland cross the border to the Republic while 16% go to GB; 31% of imports to NI are from GB. Only 2% of the Republic’s exports go to Northern Ireland … Currency, tax rates, excise duties, social security systems, government spending regimes, interest rates, credit and banking rules and business law all differ from those across the border”.
This is really quite important: there are two economies on the island of Ireland, and the Northern Ireland one is locked into the UK in a massive way.
In his realistic worst-case scenario about the future, Dr Gudgin acknowledged that
“the NI economy will be less different from the Republic than would have been the case without the Protocol but little less different than has been the case for decades”.
Baroness Foster of Aghadrumsee (Non-Afl)
I entirely agree with what the noble Lord has to say about this construct of an island economy, which came about during the time that the Assembly was not sitting for three years due to the Sinn Féin boycott. It was allowed to gain currency at that time. Does he agree with me, however, that given that the supply chains between Great Britain and Northern Ireland are so intricately connected, trade diversion is the one thing that people are very concerned about? In other words, “It is too difficult to bring from GB into Northern Ireland, so we will look for other supply chains”—that is a real problem.
Lord Bew (CB)
I thank the noble Baroness for her intervention; I accept that point. There is a significant argument by an esteemed economist about how serious and significant that really is, because we have no figures for the impact of the Windsor Framework. What figures we have go back over several years, and we cannot work out the impact of the Windsor Framework on this problem, which is important.
The government White Paper notes that the Windsor agreement
“marks a decisive break from … the political concept of an ‘all island economy’”—
something that was prioritised in the 2017 document, with the UK Government’s agreement, over Northern Ireland’s place in the UK economy. We have moved on. The island economy is one area where the British Government have been carrying out a major work of rectification to get away from the humiliation of 2017 and that agreement.
I turn briefly to EU law. Again, it is not mentioned in the seven tests. I have heard regularly over the last few days that EU law is dominant in Northern Ireland. Well, okay. Continued alignment with EU law applies to only about 20% of Northern Ireland’s economy. When I heard about the dominance, I thought: is this the Northern Ireland I live in, with its large state sector—larger than in any other devolved region—funded by the UK taxpayer? Is this the Northern Ireland economy I live in, in which the service sector, totally outside the framework of the EU, is the growing sector? There is a question mark about the price to be paid for access to the EU market, which many of our businesses want, but it is not dominant: we are talking about around 20%.
There is an argument here, I accept, and there are people in this House who will never accept that EU law is worth accepting, no matter the value for individual businesses and so on. But it is important to say that what we have in Northern Ireland—well, let me put it this way: changes since the transition period have been remarkably small. There has been nothing of impact in three years since the transition period ended. There is a well-developed marketplace in Northern Ireland, completed over 20 years ago. It is not a building site full of rubble waiting for some spectacularly ambitious, slightly crazed architect to come along and construct something new and wild—it is set in a particular mould; that is how it is. It is rather humdrum to say it, and in any case most manufacturers in Great Britain follow EU regulations because they export to the EU or provide goods to other companies that export to the EU.
The issues of EU law and the island economy are two areas that are very important to talk about; they dominate the current debate in Northern Ireland. It is important to say that, as far as EU law is concerned, there is, and always will be, a division of opinion on that point. However, it is also the case that this is not the first time in our history in Northern Ireland that we have been dealt with in an unequal way in a trade agreement between the British Government and the Irish Republic. In 1938, exactly this happened. If we look at the debate in this House on 10 May 1938 on what was a very bad deal, a humiliation for the British Government in the end, there is no question but that Northern Ireland businesses are treated unfairly and without equality. There is no doubt about that at all, and the point is made very eloquently by the unionist MPs.
However, a broader political decision was made within unionism: you can get hung up on things that offend you, that are bad news and that stick in your craw, or you can look at it in terms of the wider interests of Northern Ireland as part of the United Kingdom. On that occasion, they made a deal that involved unemployment insurance payments for thousands of shipyard workers on the dole in Belfast that could not be met out of Northern Ireland resources. They made a deal for those shipyard workers—an economic deal in the interests of Northern Ireland which, when the Attlee Government came in with the welfare state, turned out to be an absolutely wonderful deal. In other words, they looked at the problem in the round, did not obsess about the one area in which nobody will agree or be happy, and acted in terms of what was the lesser of two evils.
Lord Dodds of Duncairn (DUP)
My Lords, it is a great pleasure to follow the noble Lord, Lord Bew, who I always listen to with great interest; I certainly follow his arguments very closely. He will not be surprised if on this occasion I am forced to disagree with some of his arguments. I will come on to the seven tests, which he mentioned, shortly, because a lot of people seek to interpret the seven tests for the DUP, but it is the DUP that will interpret those tests. As someone referred to previously in the debate, one of the problems we have in this entire situation is the gross overselling of the Windsor Framework by Rishi Sunak. Of course, he attempted to tell us what was in the seven tests and how they were fulfilled.
It is a great pleasure to support the regret Motion in the name of the noble Baroness, Lady Hoey. As has been said, we would have no debate on this matter were it not for this Motion. This also pertains to previous Windsor Framework statutory instruments. My noble friends and I have put down regret Motions on occasion and will continue to do so to have a debate. While this debate has not focused entirely on the narrow confines of this instrument, it has provided an opportunity for us to explore some of the wider constitutional and economic issues that concern all the people of Northern Ireland.
Lord Bew (CB)
Before the noble Lord sits down, he has made the point, rightly, that the seven tests are based on statements by Ministers. Can he think of any statement by a UK Minister which promised the people of Northern Ireland an end to and no role for EU law? Was there any such statement? I am open to hearing about it. If that is the case, the seven tests cannot include the importance of EU law, although it is important.
Lord Dodds of Duncairn (DUP)
I thank the noble Lord for a chance to clarify that. As Theresa May admitted in the House of Commons, checks on goods coming from Britain into Northern Ireland are the result of Northern Ireland having a different regime. The checks we need to get rid of are only there because we have a different regime and a different set of laws governing the single market in Northern Ireland. I can well remember UK Prime Ministers promising the people of Northern Ireland that there would be no checks. I think one went so far as to say to send them to him; he said, “If you send them to me, I will rip them up and throw them in the bin.” These were not pledges made by the DUP to the people that we represent.
The people of Northern Ireland deserve to be treated on the same basis as other equal members of the United Kingdom; we need to be treated with that kind of democratic respect. I say to the noble Lord, yes, Governments have made pledges that clearly demand the removal of EU law in Northern Ireland.
Baroness Suttie (LD)
My Lords, it is important to debate these matters, especially as there continues to be no Assembly or functioning Executive in Northern Ireland. It has also provided us with the chance to hear the wise and thought-provoking speech of the noble Lord, Lord Bew. In that respect, I commend the noble Baroness, Lady Hoey, on tabling her regret Motion—although she probably will not be surprised to hear that we will not be supporting it, should she push it to a vote.
While I clearly recognise the heartfelt strength of feeling on the Benches opposite, a move away from exaggerated positions on both sides of the argument on the Windsor Framework has to be in the best interests of the businesses and people of Northern Ireland. For this reason, we on these Benches welcome the creation of the Northern Ireland Retail Movement Scheme as an additional pragmatic step forward in trying to remove additional burdens on retailers, wholesalers, caterers and those providing food to public institutions such as schools and hospitals.
On the regulations before us, paragraph 7.11 of the Explanatory Memorandum states:
“This instrument also adjusts the GB entry requirements for certain retail agri-food goods, coming from non-EU third countries, to ensure appropriate controls are applied to reflect their risk profile”.
Can the Minister say more about how he sees this working in practice? What discussions is he having with EU partners, businesses and representatives in Northern Ireland about the risks to the sector of increased divergence in relation to agri-foods? The Explanatory Memorandum also states that there has been
“no formal consultation on this specific instrument”.
While I accept that there may have been exceptional circumstances, I hope the lack of consultation will always be the exception and not the rule.
I agree with the noble Baroness, Lady Foster, who highlighted some of the Secondary Legislation Committee’s findings and its criticisms of these instruments. It is not acceptable that they were laid during Summer Recess; it is not acceptable that there is a truncated timetable; and it is not acceptable to not have an adequate impact assessment.
Finally, the Minister is clearly not from the Northern Ireland Office—and the noble Lord, Lord Caine, is no longer in his place—so he has only a limited role in continuing to push for a return to a fully functioning Executive and Assembly in Northern Ireland. I hope, however, that he will continue to push all those concerned to make progress on that front. I know he will agree that these regulations are precisely the kind that would be much better being discussed by those closest to the issues and directly impacted by them in Northern Ireland.
Baroness Taylor of Stevenage (Lab)
My Lords, I am grateful for the opportunity to speak on this subject. I am here today because my noble friend was troubled, I am afraid, by the combination of snow in Cumbria and the train strikes.
I thank your Lordships’ House for a thorough, considered and at times passionate debate. Given the detail of the previous contributions, and that these issues have been considered in some depth during this debate and during consideration of associated statutory instruments, I will keep my contribution short.
Lord Harlech (Con)
My Lords, I declare my farming and land management interests as set out in the register.
I thank the noble Baroness, Lady Hoey, for introducing this Motion and for raising the key issues for people living in Northern Ireland. I also thank all noble Lords who have contributed to the debate with such passion and energy and who have candidly shared their deep frustrations.
From the outset, as has been raised several times, I would like to confirm my personal commitment, and that of my noble friends on the Front Bench, that we are all dedicated unionists. Although much of what has been said today goes wider than the scope of the retail movement scheme, I want to draw the attention of noble Lords back to what the Government regard as the positive impact this legislation will have on the union of the United Kingdom and on UK businesses and consumers.
The Windsor Framework, which this instrument implements in part, will have multiple and demonstrable benefits. I would like to list a few of those. First, the significant removal of over 60 pieces of EU legislation for everyday retail goods moving from Great Britain to Northern Ireland under the Northern Ireland retail movement scheme will mean consumers in Northern Ireland will have consistent access to the same everyday goods that are available to consumers across the UK.
Secondly, this instrument ensures that certain retail goods moving from the rest of the world via Great Britain to Northern Ireland are eligible to move under the Northern Ireland retail movement scheme. Again, this means that consumers in Northern Ireland will have access to the same retail goods that are available to consumers in Great Britain.
Thirdly, this instrument enables specific commodities, such as plants for planting, seed potatoes and used farming and forestry machinery, to move from Northern Ireland to Great Britain using a Northern Ireland plant health label. This means Northern Ireland businesses will not need to apply for additional labels when moving these goods back to Great Britain, saving both time and money. It is also clear to see the important contribution this instrument makes to safeguarding Northern Ireland’s place in the union, which is an imperative to which this Government are firmly committed.
I now turn to the concerns behind the Motion tabled by the noble Baroness, Lady Hoey. First, the arrangements agreed under the Windsor Framework significantly reduce the requirements associated with moving goods from Great Britain to Northern Ireland. Retail goods moved via the new Northern Ireland retail movement scheme move on the basis of a single per consignment certificate, rather than requiring the hundreds of vet-signed certificates for individual products needed under the old Northern Ireland protocol. For plants, the Northern Ireland plant health label regime removes the requirement on plants for planting and used farming or forestry machinery to be accompanied by expensive phytosanitary certificates. Rather, operators can register and become authorised to issue and attach a Northern Ireland plant health label for goods moving from Great Britain to Northern Ireland, in the same way that these goods move within the rest of the UK under the existing UK plant passport regime. Instead of paying £150 per movement into Northern Ireland, growers and businesses can now pay approximately £120 annually to be part of this scheme, which is the same as the cost for the UK plant passport scheme.
Secondly, for all these arrangements, the EU’s regulation 2023/1231, which the noble Baroness, Lady Hoey, referred to, puts in place safeguards to deal with any significant issues in their operation. This includes, at Article 14, the potential for suspension of these arrangements should that be required. As would be expected, though, this would be used only where a very high bar of systemic failure is met. Before any potential use of that provision, the regulation sets out requirements for extensive UK-EU engagement. This reflects, in line with the broader Windsor Framework, that any future issues should be resolved through engagement.
Finally, I restate that Northern Ireland is and remains an integral part of the United Kingdom under the Windsor Framework, which safeguards Northern Ireland’s place in the union. The framework secures the application of British standards for goods which move to and stay in Northern Ireland, ensuring the same goods are available for consumers in all parts of the UK. It upholds Northern Ireland’s access to the rest of the UK internal market, and it also safeguards Northern Ireland’s privileged access to the EU single market, which has been a clear demand from businesses to protect livelihoods. Importantly, the framework does so while protecting biosecurity on the island of Ireland, which, as noble Lords know, has been treated as a single epidemiological unit for decades.
I now turn to the points raised in the debate. The noble Baroness, Lady Hoey, asked what financial support is being offered to businesses to help them with labelling requirements. We are providing £50 million in support for businesses which have had to prepare for new labelling rules as part of the Windsor Framework. The transitional labelling finance assistance scheme will offer retrospective grants at a flat rate, adjusted by business size, for businesses which can provide evidence of additional labelling costs related to the new Windsor Framework rules. Redesign, printing and warehouse costs for product, box and shelf labelling will all be in scope.
The noble Baroness also asked about the implications for individual consumers wanting to purchase plants and trees direct from GB and have them delivered. I remember her question from a couple of weeks ago regarding an order she placed from the back of a newspaper. Under the Windsor Framework, professional operators, including growers and garden centres, can move plants, including trees and seeds, between Great Britain and Northern Ireland via the new plant health label scheme. Consumers wishing to source plants and seeds direct from GB will need to meet official controls and regulations requirements. We will continue to work closely with the horticultural industry to ensure that consumers can access plants and trees from a wide variety of sources. Detail on the Northern Ireland plant health label scheme can be found at GOV.UK.
The noble Lord, Lord Morrow, the noble Baronesses, Lady Hoey and Lady Suttie, and other noble Lords, raised the issue of divergence between GB and EU standards and how these will be managed. The Windsor Framework ensures Northern Ireland’s businesses have full, unconditional access to their most important market in Great Britain, while maintaining their privileged access to the whole of the EU market. It also contains important new mechanisms that will ensure we can closely monitor and manage divergence as it emerges. For example, under the Windsor Framework, we have established a number of joint UK-EU fora aimed at managing implementation issues, as well as longer-term issues of regulatory divergence. These include five new joint consultative working group structured sub-groups, as well as a new special goods body. These sub-groups will enable us to engage early where any rule changes could inadvertently lead to a new regulatory barrier to find appropriate solutions through the joint committee. It will mean that the regulatory environment in Northern Ireland can be better tailored to suit consumer and business needs.
Noble Lords also raised the issue of duty-free movement. It is critical that goods can continue to move freely on the island of Ireland. There are no controls on the movement of goods within the EU single market, so introducing duty-free shopping between Northern Ireland and the EU would allow untaxed goods to circulate among the EU, Northern Ireland and Great Britain. The alternative would be to introduce allowances and controls between Northern Ireland and the Republic. At the current time, neither of these is deemed acceptable.
The noble Lords, Lord Morrow and Lord Weir, and my noble friends Lord Jackson and Lord Moylan, as well as the noble Lord, Lord Bew, coming at it from a different angle and whose comments I am grateful for, asked why the requirements of the Windsor Framework are set out in EU not UK legislation. The disapplication and derogations from EU law agreed under the Windsor Framework mean that the EU must change its law, which of course it must do under EU regulations. This is none the less implementing the bilateral agreement between the United Kingdom and the EU. The Windsor Framework takes effect through a range of mechanisms, including amendments to the text of the framework formerly known as the Northern Ireland protocol, unilateral and joint declarations, and new UK and EU legislation. The EU has made new legislation to implement its obligations under the bilateral agreement between the UK and the EU.
The noble Lords, Lord McCrea and Lord Browne, and other noble Lords, wanted to press further on the issue of biosecurity. I can only restate that the Windsor Framework recognises the need to protect biosecurity on the island of Ireland, which has long been treated as a single epidemiological unit. Some checks, such as those on live animals, were required from Great Britain to Northern Ireland prior to EU exit and before the old Northern Ireland protocol was implemented to protect the integrity of this single epidemiological unit.
The noble Baronesses, Lady Foster and Lady Taylor of Stevenage, asked about the timing of the SI. I have been told by officials that the SI was laid after the Summer Recess, on 5 September.
Baroness Taylor of Stevenage (Lab)
On a matter of clarification, the Secondary Legislation Scrutiny Committee quite clearly says that the SI was laid on 8 August. It was Part 2 of the instrument that was laid on 5 September.
Baroness Hoey (Non-Afl)
My Lords, I thank the Minister for his response, particularly for his commitment to unionists and to the union. I appreciate that he has had to stray—or perhaps not—off his brief, which is business to do with Defra. Noble Lords will realise that the problem with a debate such as this is that we do not get many opportunities to discuss anything about the constitutional position of Northern Ireland and the wider aspects that the Windsor Framework has brought about. Tonight, although this statutory instrument has been widened, we have seen some of that debate. The Minister might suggest to his noble friend sitting beside him, the noble Lord, Lord Caine, that we have a proper debate, in government time, on the situation in Northern Ireland and the whole question of the constitutional position so that we do not have to have these statutory instrument debates.
Having said that, I thank everyone who has spoken. It has been a very interesting debate. I really appreciate that some noble Lords spoke who were not from Northern Ireland. I was particularly pleased that the noble Lords, Lord Jackson and Lord Moylan, spoke, as did the noble and learned Baroness, Lady Butler-Sloss, who made a comment which will resonate with many people—that the very quiet majority in Great Britain do support Northern Ireland being part of the union. The Government and His Majesty’s Opposition might sometimes bear that in mind.
Tonight we have seen general support for the regret Motion. It is interesting that we do not get many people speaking against it; we never seem to on Northern Ireland issues. It is simply the same numbers of us who come along, so it was particularly good to have those from outside Northern Ireland speak tonight. We also saw an agreement that there must be a fundamentally different approach from the Government to deal with this. It is not going to go away. It is not going to be accepted by pro-union people in Northern Ireland.
The noble Lord, Lord Dodds, referred to the many questions, debates and discussions that we had on the protocol. When I look back to them, everyone was saying how wonderful it was and how we must accept it. Then, suddenly, it shifted; everyone was saying, “No, no, we’ve got to change”, and that is when we got the Windsor Framework. We are now in that same position. The Windsor Framework is not going to work. It is not sustainable. It is not going to bring about democratic institutions again in Northern Ireland. We really must start thinking about why Northern Ireland was left out so much in the negotiations over the EU settlement. Even at this stage, the Government must rethink. I hope that the Labour Opposition, if they are going to be in government, will realise that this is something that they will have to deal with if the Government do nothing about it in the meantime.
This is a regret Motion. Every time that we have regret Motions we do not vote. People back in Northern Ireland and in other places say to me, “What’s the point of a regret Motion if you don’t actually show that you have regret?” Therefore, I would like to press this to a vote. I hope that at least some noble Lords will feel that, if they cannot actually oppose their Government on this and support my Motion, they can abstain.