Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024

Lord Bew Excerpts

Tuesday 13th February 2024 Lords Chamber

What we need now is not SIs but a Prime Minister who is prepared to stand up for our country: the UK. He should declare the Windsor Framework void on the basis that it is not a valid treaty because, despite Article 1, the effect of the framework is to disrespect the territorial integrity of the United Kingdom. That means that it is not a valid treaty. He should tell them that if they want to revisit the trade and co-operation agreement, they can, but they must realise that, going forward, the territorial integrity of the United Kingdom and the equal rights of its citizens to stand for election to make the laws to which it is subject are not up for debate.

[Lord Bew (CB)]

My Lords, I rise, first, to make clear my strong support for these two statutory instruments. I say one thing straightaway: there was no possibility of a settlement to the difficulties created by Brexit that did not involve an element of compromise. I have heard the phrase “the people of Northern Ireland” used several times tonight, as if there were one people of Northern Ireland. There are in fact two peoples in Northern Ireland; that is very brutally the case. The latest agreement reflects the compromise, and I will come back to why that is so.

Equally, I have heard a lot of talk about business opinions. The truth is that the great bulk of business in Northern Ireland is solidly in favour of the Windsor Framework; again, I think it is worth recording that. But the most important thing of all is to record the fact that there are two communities.

I have heard a lot tonight about how the Good Friday agreement has been in some way flouted. I want to say something quite important about this. The international agreement places certain responsibilities on the hand of the sovereign Government. Where a situation of alienation arises in one community or the other, the sovereign Government—in this case, obviously, the United Kingdom Government—have a responsibility to deliver: to act in a way that ends that alienation, if at all possible. That is what the international agreement means.

I have heard aggrieved nationalists protest about the unionist content of the Command Paper. I did not hear that when, for example, the Irish languages Act went through this House. That was clearly designed to deal with the alienation of one section of the community, which wanted that Act. I am not aware, rightly or wrongly, that there was any enthusiasm for it in the unionist community.

This is another version of a similar attempt by the Government to fulfil their functions, which were given to them in an international agreement. It is as simple as that. There was no other way of restoring Stormont had the Government not faced up to the fact that every unionist public representative was against the protocol as it then existed. That includes the Ulster Unionist Party as well as the DUP. There was no other way of restoring Stormont but by the route that has been chosen. I am slightly surprised tonight to hear people say, “I’m glad Stormont’s come back but I don’t like the way it was done”. Let us be clear: there was no way of doing it other than the way that the Government chose—none whatever. Everything else is just pie in the sky. There was only one way of doing it, and this Command Paper is part of that way.

Perhaps I could put that in some context. This Command Paper, which is basically unionist in tone, is number five in a series of key documents. The first was the joint report of December 2017, then came the withdrawal agreement that the May Government agreed, which did not in the end get through Parliament, then the withdrawal agreement that the Johnson Government did agree, and finally we have the Command Paper Safeguarding the Union. It is the fifth item on the bookshelf.

The crucial thing to understand is that the joint report of 2017, because of the weakness of the then UK Government, was a huge victory for the Irish Government—so much so that senior Irish officials regarded it as having gone too far. In particular, there is the commitment to the island economy. The island economy may be said to exist in agri-food; otherwise, it does not exist in substance. There are two economies on the island of Ireland. This was a flouting of the Good Friday agreement.

I can remember the days of 1997 and 1998. I am looking at the noble Lords, Lord Rogan and Lord Empey, who may remember this. The Irish Government never talked in those discussions about an island economy. The Irish Government, let alone the British Government, talked about two economies on the island of Ireland. That was the basis of the agreement reached in 1998. It did not stop those people who insist that the Good Friday agreement was about an island economy—the TUV said 25 years ago, “This is an island economy; political unification is just about to come”. Exactly the same thing is being said 25 years later, with equally little evidence, about the Windsor Framework. It is just a repetition of a tired old trope.

The Safeguarding the Union paper reflects the hard reality that the European dimension of the British economy and the all-Ireland dimension of the Northern Irish economy are limited; 20% in total, probably something of that order, of the Northern Irish workforce will have to think about European law in these firms. Most of these are extremely enthusiastic to embrace it because it is important to their export concerns. Having said that, the bulk of the economy in Northern Ireland, with its large state sector and so on, is locked into the rest of the United Kingdom. These are just brutal facts; no amount of rhetoric will change it. But it was very dangerous for the UK Government to agree in 2017 that they would foster an island economy.

Five years on, we have now moved to a very different place. The withdrawal agreement that Theresa May brought to this House makes absolutely no reference to the existence of a Northern Irish Assembly. It does matter what the people of Northern Ireland think—both sections of them. It matters what they think about these events and they should not be imposed. There should be a mechanism for consent. The 2019 withdrawal agreement opened the door to a mechanism of consent, and later that year the Assembly would have that vote on the mechanism of consent. I do not accept the idea that it is only the views of one community that matter in this respect. The views of both communities matter. For all its faults, the 2019 withdrawal agreement had a role for the Assembly and moved away from the idea that you can just impose willy-nilly on the people of Northern Ireland these arrangements without any mechanism of democratic consent.

That is the context. Yes, there is a unionist tone to Safeguarding the Union, but it has to be seen as an answer to a progress of four other documents. It is the fifth document in a process to sort this out. It is a point of rebalancing these arrangements and it was the only way to achieve the return of devolution in Northern Ireland, which we all recognise is a good—although some of us do not seem willing to accept the means by which it was done.

I want to say a word about how this debate is progressing in Northern Ireland today. I accept completely that there is an argument, as the noble Lord, Lord Dodds, eloquently raised, about European law. However, the seven tests of the DUP, put to the people of Northern Ireland in June 2021, do not make European law the central issue—or any type of issue. It is just indisputable. It is only two little words; they are not there. The people of Northern Ireland were asked to vote on this matter; they were not asked explicitly to vote on the question against, “I will not live with any form of European law”. They simply were never asked this. The seven tests are absolutely explicit about the issues. There will be an argument about how well they have been met, and the current DUP leadership argues in substance that there has been substantial progress in meeting the seven tests.

What has happened is that there has been an interaction in the way that I have talked about between the Good Friday agreement and the Act of Union, properly understood. Again, those who argued on the Act of Union had apparently just never read it. If they had, they would have warned their supporters that it includes tariffs and an Irish Sea border far stronger than anything that is included here. It was intended to be temporary but operated for 79 years. They would have told their supporters that there were customs borders between Britain and Northern Ireland for most of the life of the union, unless they wanted to frighten them and say, “This is the most frightening thing in the world”. It is fairly clear that those who made an enormous storm about the Act of Union were unaware of its full contents and the provision that it makes—for example, taxes on Bibles crossing the Irish Sea.

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[Lord Browne of Belmont (DUP)]

My Lords, the two statutory instruments before us tonight are supposedly designed to protect the union and to promote the free movement of goods. I contend that both these regulations fall well short of meeting their objectives. It is clear that the Northern Ireland protocol remains largely intact. The Irish Sea border remains largely in place and, ultimately, the European Union has the final say in many significant areas in Northern Ireland. Indeed, Ministers and Assembly Members in Northern Ireland will be expected by law to adhere to, and implement, new laws that are made in Brussels, not in Belfast, and not here in London.

As I have said consistently in your Lordships’ House, the Windsor Framework does not make substantive legal changes to the Northern Ireland protocol and the supremacy of European law on many aspects of Northern Ireland. Very little in these new arrangements would contradict that view. Indeed, this deal and the framework that underpins it, make only a few limited changes. The Windsor Framework and the withdrawal agreement itself do not permit any changes to essential elements. It would be wrong to suggest that recent changes amount to substantive legal changes.

Fundamentally, the root cause of the problem with the Northern Ireland protocol and with these arrangements is the continued application of EU law in Northern Ireland—particularly in the circumstances in which it covers all manufacturing of goods in Northern Ireland, regardless of whether those goods are being sold in the United Kingdom or to the European Union. The vast majority—84%—of all goods manufactured in Northern Ireland are sold here in the United Kingdom.

The complex easings referred to in the Windsor Framework are limited in number. They will not directly help small or medium-sized traders and are not available to all businesses. The schemes will remain incredibly complex and, crucially, the EU retains a right unilaterally to withdraw its trusted trader system underpinning any new arrangements.

We arrive at a point where the Irish Sea border remains in place, according to the former Northern Ireland Attorney-General John Larkin KC. Paperwork will still be required for customs purposes and, as we can see back in Northern Ireland, customs or border posts are currently being constructed.

Northern Ireland will continue to be treated as an EU territory in many ways. Under Article 12 of the Northern Ireland protocol, which remains unchanged, the EU can direct UK authorities at ports. It is clear that we have not yet arrived at a point where friction has gone and there are zero checks and paperwork for goods from Great Britain destined for Northern Ireland. However, we must continue to work towards achieving this. While I welcome that some progress has been made here, there is still a long way to go.

To date, we have not seen evidence that the thousands of pages of EU law have been disapplied. Northern Ireland will continue to remain subject to the power and control of EU law, the European court and the European Commission on EU single market laws, which govern the manufacture and sale of goods in Northern Ireland. In some 300 areas, EU jurisdiction applies in Northern Ireland. It is a fact that Northern Ireland producers and consumers will still be subject to foreign laws, even when they do not trade with the EU at all.

To date, there is no evidence that points to a single EU single market law being removed from Northern Ireland.

[Lord Bew (CB)]

I just wish to ask the noble Lord, Lord Browne, why, if EU law is so important, it is not mentioned in the seven tests that went before the electorate in Northern Ireland last year as the DUP’s position. I understand the sentiment behind what he says about EU law, but why was it not mentioned in the seven tests? Which of the seven tests does he think has not been met?

[Lord Browne of Belmont (DUP)]

I assert to the noble Lord, Lord Bew, that this is referred to in our first objective:

“The Irish Sea border must go”.


This Government pledged to protect and strengthen the UK internal market as part of New Decade, New Approach. We said that this will involve the European Union.

Regrettably, the Stormont brake, if successfully applied, would apply only to future changes to EU law. It provides no right to change any part of the existing EU laws imposed on Northern Ireland under the protocol. The brake allows for an objection to be raised to a new or amended EU law but, ultimately, the final say on its application would not be a matter for the Assembly, Executive or even this sovereign Parliament. The final decision would rest with an international body that can decide whether a new EU law applies.

The brake is also of limited application in theory and is likely to be unworkable in practice, as such a high bar is set. As I have said previously in your Lordships’ House, I cannot envisage a scenario in which a future British Government would seek to apply a brake if it meant a retaliatory action from the EU. Northern Ireland remains governed by many EU laws that we did not make and cannot legally change. There remains no consent for arrangements that will see further EU regulations causing Northern Ireland to diverge from the rest of the United Kingdom.

The rights of the people of Northern Ireland under the Act of Union 1800 have not been fully restored. While I welcome some government promises—indeed, I welcome any future legislation that will bring us closer together as a nation—there is some way to go before we can say that these issues have been adequately addressed. These arrangements, much like the heralded launch of the Windsor Framework last year, have ultimately failed a key test: to legally restore the constitutional integrity of the United Kingdom.

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[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, I am delighted to follow the noble Lord, Lord Hay. At the commencement, before I deal with the two statutory instruments, there are some things that have to be said in reply to some of the charges that have been made against us.

The noble Baroness, Lady Ritchie, seems to be concerned about the tone of the Command Paper. I remind her that it has no legislative force. We are dealing with the two statutory instruments, which are vital. The Command Paper is important to set, as it were, the backdrop to what is being sought to be done.

I understand the point that the noble Lord, Lord Alderdice, is making: he hopes that the new arrangements will allow that never again will anyone be killed or children left without their parents. But I have to say, and he will agree with me, that there never was a reason why anyone was to be killed, or was killed, or any child was left without a father or a mother, or parents left without their children.

The noble Lord, Lord Bew, challenged my noble friend a few moments ago concerning the seven tests. Like many others whom I have listened to, he has tried to interpret the DUP’s seven tests. We set the tests. We know exactly what those tests meant. We know their interpretation. The first test is the fulfilment of Article 6 of the Act of Union. The Supreme Court has ruled that this is suspended because EU law takes precedence through Section 7A of the European Union (Withdrawal) Act 2018. It is therefore wrong to say that our test did not require EU law to be lifted from Northern Ireland. Noble Lords need only listen to the statements and speeches, and to read the articles written by leading spokesmen of the Democratic Unionist Party over the last two years to know that the issue of EU jurisdiction was vital to our manifesto commitment. I say to noble Lords: no, we will not allow others to rewrite the meaning of our tests.

[Lord Bew (CB)]

Was EU law mentioned in the DUP manifesto? It is definitely not mentioned in the seven tests—there is no doubt about that—and it is a rather contorted argument about the Act of Union implying this.

[Lord McCrea of Magherafelt and Cookstown]

In speech after speech, article after article, statement after statement, from our party leader and from our chief spokesmen on these issues, it was constantly said. To suggest that it was not a vital part is not factual. I will not allow to stay on the record a charge made against us that is not factual.

It is also true that the majority of Northern Ireland voted to remain in the EU; that is a fact. But so did the majority in Scotland, so did the majority in London, and so did the majority in other regions and parts of the United Kingdom. It is interesting that no one suggests that those counties or regions should be subjected to foreign laws and the special arrangements ordered by the EU that we are expected to accept.