Official Controls (Northern Ireland) Regulations 2023

Lord Dodds of Duncairn Excerpts

Wednesday 1st March 2023 Lords Chamber

Moved by

[Lord Dodds of Duncairn]

That an Humble Address be presented to His Majesty praying that the Official Controls (Northern Ireland) Regulations 2023 (SI 2023/17), made on 11 January and laid before the House on 12 January, be annulled because (1) they are injurious to the integrity of the United Kingdom’s Internal Market given that the Protocol on Ireland/Northern Ireland has not been replaced by new arrangements, (2) they thereby violate the New Decade, New Approach agreement, by giving effect to a customs and sanitary and phytosanitary border that divides the UK and treats Northern Ireland like a foreign country, (3) they seek to protect the integrity of a legal regime resulting from the imposition of laws in 300 different areas by a polity of which Northern Ireland is not a part and in which it has no representation, (4) they protect the integrity of a legal regime that undermines the 1998 Belfast Agreement, as amended by the St Andrews Agreement, which affords the people of Northern Ireland the right “to pursue democratically national and political aspirations”, given that the people of Northern Ireland can no longer stand for election to pursue democratically national and political aspirations in relation to the said 300 areas of law.

Relevant document: 26th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

[Lord Dodds of Duncairn (DUP)]

My Lords, I am glad to be able to rise, eventually, tonight to move the Motion standing in my name on the Order Paper. I want to place on record my gratitude to the Minister for the discussions that we have had about these regulations, and for the time he has given to me to discuss these matters and his availability. They may appear to be technical in nature but they have enormous political and constitutional ramifications. This is an extremely important matter, and I know the Minister is aware of the sensitivities around all this. That may be one of the reasons why the regulations are being brought forward only now.

I have tabled this Motion in order to ensure that we have a debate and to have some scrutiny on the significant development of the Irish Sea border. This arises under the provisions of the European Union (Withdrawal) Act 2018 and the Northern Ireland protocol. It would be fairly strange indeed if such a measure were to pass without debate either in your Lordships’ House or in the other place. Given the time that has now elapsed since the tabling of the SI, I am not sure it will be debated in the other place at all, and so this the only opportunity to raise these matters in Parliament—and it is a matter of extreme importance.

The regulations allow the Secretary of State to do anything he or she

“considers appropriate … in connection with the construction of facilities”

in relation to official border control posts, despite this being a devolved matter. It is another example, in the long line of examples that we have had recently of the Government intervening in the devolved settlement when it suits them. There are many other matters, as your Lordships will realise, that are of importance in Northern Ireland on which, even when there is an agreed position among political parties, the Government will say that they are not going to intervene because it is a devolved matter—even with the Assembly not sitting. However, on other occasions they decide to step in. It is hardly an argument for the necessity of restoring the Assembly, I have to say. It would appear that, even if the Executive were to be restored, the powers taken by the Secretary of State would remain, so there would be a co-authority: the power of the Minister in Northern Ireland and the power of the Secretary of State. I would be grateful if the Minister could clarify whether, in the circumstances of the Assembly’s restoration and the Executive’s reformation, the powers would revert to the Northern Ireland Executive alone.

The regulations also allow the Secretary of State to direct the competent authority in Northern Ireland

“to recruit and employ … staff to implement Article 64 of the Official Controls Regulation”,

which applies because of the Northern Ireland protocol. The Secretary of State in a Westminster department can direct the likes of Belfast City Council, the Health and Safety Executive or whomever to employ staff in Northern Ireland. In making such directions, will there be accompanying resources to fund and sustain them for as long as they are in place? Undoubtedly, this will put considerable extra burdens on those bodies.

The Explanatory Memorandum states:

“These powers will be necessary to implement either a negotiated solution with the European Union, or to implement the Northern Ireland Protocol Bill”.


Well, the Explanatory Memorandum did not last long as far as the latter point is concerned. The regulations are brought forward under Section 8C of the European Union (Withdrawal) Act 2018, as amended by the European Union (Withdrawal Agreement) Act 2020. That section gives power only to make regulations as appropriate in relation to the current protocol on Ireland/Northern Ireland in the withdrawal agreement. The basis for these regulations is the legal implementation of the current protocol, yet that is not mentioned at all in the Explanatory Memorandum. Why was that left out?

That brings me to the heart of the true significance of this legislation. In making his presentation on his new deal in the other place on Monday, the Prime Minister was challenged on how to square his assertion that the published framework document removes the border down the Irish Sea with the commitment in these regulations to build border control posts. The Prime Minister responded that

“the border posts are there to deal with checks in the red lane. That was something that was always envisaged. It is something that we always said that we would do. It is right that people should not be able to try to smuggle goods into the Republic of Ireland via Northern Ireland. That is why those posts, those inspection facilities, are there. The investment in them is to make sure that we can do those checks properly, as we assured the European Union that we would do. Part of having a functioning green lane is having enforcement of the red lane.”—[Official Report, Commons, 27/2/23; col. 589.]

I quoted that in full because the words are significant, and I will come on to deal with them later. I surmise that this line has been given to the Minister replying to this debate, but I very much hope it has not because, with respect, it misses the point, for reasons that I will set out.

As a matter of general principle, we should, as a sovereign country, proceed on the basis that, if we want to protect the integrity of our single market, that is our responsibility and we should foot the bill for that. If another country wants to protect the integrity of its single market, that is its responsibility and it should foot the bill for that. I do not believe that there is an example anywhere in the world of a country building border control posts for the purposes of protecting the single market of another country. I suppose a country might seek to justify spending its taxpayers’ money to build border control posts to protect the integrity of the single market of another country if this also protected the integrity of its own single market. But in relation to Northern Ireland, far from doing that, the provision of these border control posts actually disrupts the UK single market for goods and replaces it with a Great Britain single market for goods and an all-Ireland single market for goods.

Another question arises if we are building border control posts to protect just the EU single market: why is it necessary that they be built in each one of Northern Ireland’s ports, when you could just as easily build one away from the ports altogether, as suggested by many hauliers with experience of these matters? That is what happens elsewhere. The plan, for instance, for goods coming in via Liverpool and Holyhead is for them to be sent to a single inland border control at Warrington, not at the ports.

--- Later in debate ---

[Lord Bew (CB)]

Because as a matter of fact it actually is, and the noble Baroness knows that.

We talk about sovereignty for the people of Northern Ireland. Two years from now there will be a vote in an Assembly on these arrangements. The Assembly will have the right to consider all these matters. There will be no issue of sovereignty then, and we will know what the people of Northern Ireland think. I guarantee that you will not get a majority in the Assembly for any systematic series of checks along the internal border of Ireland—that is just not going to happen—nor will you get the unionist community to accept the protocol as was. It is always a matter of balance. It is very simple.

Many things have been said about sovereignty tonight. Suppose we meet two years from now, and the Assembly has voted and accepted this arrangement, as I think most people believe is extremely likely. All these arguments about sovereignty—“I’ve never heard anything like this”, “It’s outrageous”, “It’s imposed”—would disappear. That vote is coming. To those who are so alarmed about imposition, I say that that vote is coming.

[Lord Dodds of Duncairn (DUP)]

I am very grateful to the noble Lord. I have the deepest respect for his opinions on these matters, and he knows that. But on the issue of the vote in the Northern Ireland Assembly, would he accept that that vote, uniquely, would be by majority? The Government changed the rules of the Assembly, in breach of the Belfast agreement, which we are all supposed to protect—the Minister may shake his head, but it is true. The reality is that we vote in Northern Ireland on important issues by cross-community vote: the majority of unionists, the majority of nationalists and an overall majority. So when he says that there will be the consent of the Assembly, it is effectively a rigged vote. It is not a vote based on the Belfast agreement. It is not a cross-community vote. It has been deliberately engineered to ensure that unionists will not have the right to say no. That is the only vote of any significance in the Northern Ireland Assembly that is not cross-community or capable of being turned into a cross-community vote. That was deliberately changed, in breach of the Belfast agreement, not in defence of it.

[Lord Bew (CB)]

I thank the noble Lord for that intervention as it will allow me to conclude—to the relief of the House—very quickly. He is right about the nature of the vote but wrong about the context. In the first place, under the Government of Ireland Act and the Good Friday agreement, trade is a reserved matter. It was a decision of this Parliament, and the beginning of the change from the May agreement—Johnson’s agreement at least mentioned the Northern Ireland Assembly, which was not mentioned a few months earlier. It is part of the long struggle to deal with significant parts of the democratic deficit. I take the noble Lord’s point completely. You could argue that it would be better if it was a different style of vote.

However, in this new White Paper we have the announcement of a new Stormont brake, where the voting system is exactly what the noble Lord wants. Suddenly we discover that we have a voting system for a petition of concern. It is exactly what has been asked for, but it is still not good enough. There is a point at which one really has to respond to the seriousness of the moment.

--- Later in debate ---

[Lord Benyon (Con)]

I am happy to talk to the noble Lord after this and clarify that point. Time is moving on.

I was talking about an important safeguard for Northern Ireland businesses. It means that they and they alone benefit from being part of the UK’s internal market. Irish businesses are not part of this and should not benefit from the green lane. Indeed, the implementation of the Windsor Framework can give Northern Irish businesses a competitive advantage over those in the south. We will encourage Irish firms to relocate jobs and investment into Northern Ireland.

The improvement of these facilities is also an important part of providing safe conditions for staff and animal welfare. The present contingency facilities were constructed at speed to allow controls to be delivered when we left the EU. Improving the facilities will ensure that consignments, including for live animal movements, move quickly through ports and on to final destinations, which could include Northern Irish farms. These arrangements are needed for Northern Ireland—its businesses and its reputation for high health status and high-quality agriculture and food production.

I turn to questions of timing and procedure for the introduction of this legislation, as raised by noble Lords. This legislation is time critical. As I set out, the conditions of the current facilities are of concern for both animal and staff welfare reasons. We want to ensure that, as above, the benefits of the new green lane are felt only by internal UK trade and that Irish traders are subject to full EU law checks and controls, as we have always said.

On process, although a public consultation was not required for this legislation as it relates to the implementation of an existing commitment and introduces no new policy, my officials and ministerial colleagues have engaged with industry and businesses extensively over the last two years and will continue to do so. Defra hosts a weekly forum attended by, on average, 150 businesses and organisations across Northern Ireland and Great Britain’s food supply chain, where people can raise issues, hear information and share their views. We have engaged with Northern Irish businesses, for which the integrity and reputation of their goods, from farm to fork, is critical to their success and viability. A useful example is milk; 30% of Northern Ireland’s milk is processed in the Republic, and milk and milk products were worth over £126 million in gross added value to Northern Ireland in 2020.

On the implications of this legislation for the devolution settlement, I reaffirm that the Government recognise that the delivery of these facilities is a devolved responsibility. In the absence of a Northern Ireland Executive and Assembly, it falls to the UK Government to be able to take that work forward.

I hope I have reassured noble Lords on the scope and aim of this statutory instrument. We have had a long, wide-ranging debate, but this is specifically about SPS measures that we need to put in place regardless of the changes, welcome though they may be, that have been announced in the last few days. I hope that, as the benefits we will draw from the historic Windsor Framework become apparent, we will put in place this week measures to ensure that we have proper sanitary and phytosanitary facilities in four ports in Northern Ireland. That is what the statutory instrument seeks to do. I hope I have persuaded the noble Lord, Lord Dodds, not to press his fatal Motion.

[Lord Dodds of Duncairn (DUP)]

My Lords, I am grateful to the Minister for what he has said and I thank all noble Lords who have taken part in this debate. It is usual to say it has been a wide-ranging debate, and we can certainly agree on that if not much else at times.

I do not want to go back over some of the elements of this debate, but I want to say something in response to the noble Lord, Lord Bew. He ended on a note of challenge to us, saying that we have got what we wanted but are still not happy. I want to make a point, and it is worth putting on the record. He says that we demand a cross-community vote, whether or not we accept the protocol. That is a legitimate request because it is in keeping with the Belfast agreement. That has been changed and I have outlined the reasons why it is unacceptable. He then said that we have got a cross-community vote in relation to the Stormont brake and are still not happy. But the majority vote that has been granted to the Assembly in 2024 puts an end to the current protocol and instigates a period of negotiation for something new. The cross-community vote under the Stormont brake does not veto the law. It does not give the right to the Assembly to change anything, and that is the fundamental difference.

The devil is in the detail. We have heard the grand statements. We heard tonight that SPS checks have always happened between Great Britain and Northern Ireland, but the noble Lord, Lord Moylan, is exactly right on the facts of that matter. It is easy to make wide-ranging statements and claim wonderful progress when you do not actually look at the details. People are saying that we now have free access between Great Britain to Northern Ireland for all goods coming through border control posts, but as I have pointed out—and nobody has challenged this—even for goods coming from Great Britain to Northern Ireland in the green channel, customs forms will have to be filled in. That is an Irish Sea border. Where else between any country or region of the United Kingdom does anyone have to fill in a customs form to transfer goods, and be subject to checks and to giving all the data and information to the European Union? Where else does anyone have to put goods that nobody can certify for definite will go into the Irish Republic down into the red lane, where the full checks of an international customs barrier are implemented?

We need to get real about this. No one need lecture me about entering and making agreements. I was part of the leadership of the Democratic Unionist Party that sat down and entered government with Sinn Féin, and shared power for years with it on a more stable basis than the Ulster Unionists did previously, when they had the majority. These are people who went out to murder our kith and kin, and who targeted my family visiting a hospital and tried to murder me. My noble friend Lord McCrea’s house was riddled with bullets. We sat down and shared power with them. They still eulogise these terrorists and murderers; they still praise and elevate them. The Minister is right to raise the matter of DCI Caldwell, and we have already expressed our sympathy and wish him well. Sinn Féin stand today and condemn that murder and say it is terrible, but the very same Ministers and leaders of Sinn Féin will stand up and eulogise and praise the murderers of police officers in front of their children—today.

We are still willing to enter government and to move forward with the people of Northern Ireland. Nobody need lecture us about being unreasonable. We agreed the New Decade, New Approach agreement. We agreed the various agreements down through the years. There is no one who should point the figure. At St Andrews, Ian Paisley made that historic agreement with Martin McGuinness. People have this idea that it is no to everything.

We will insist on our rights as British citizens. All we demand is equal citizenship. People talk about not wanting to create a hard border on the island of Ireland. We do not want a hard border. We have never sought a hard border on the island of Ireland. But we will not accept a hard border between Northern Ireland and the rest of the United Kingdom. What do we mean by a hard border? What was it defined as by Sinn Féin and nationalist leaders, and by Leo Varadkar? As anything that changed—even a camera was not acceptable. How ridiculous. But for Northern Ireland there is the full panoply of border control posts, and officials jointly responsible to the EU and the UK, sharing data—all the things that are relevant to a third country. Britain is now designated for customs and trade purposes as a third country as far as Northern Ireland is concerned.

These things matter and that is why we are sitting tonight debating these issues—I wish that we could have debated them earlier and we would all be long home, but sadly that was out of our control. However, when we do debate these matters, we feel very strongly about what has been imposed. We will look in detail at all the issues that have been brought forward in this new deal. I hesitate to call it the Windsor agreement because the King was dragged into this whole affair needlessly and wrongly in a somewhat counterproductive, crass attempt to sell it to unionists—the Government should have known better and thought much more about that, as well as the overegging and overselling of it.

We will look at these issues in detail, but what we have seen thus far makes us question some of the propaganda and the claims that have been made. Be honest about it, tell us exactly what is going to happen regarding the equal citizenship of the people of Northern Ireland; do not claim that we are equal citizens and then put in place barriers between our citizenship—between Northern Ireland and the rest of the United Kingdom. We are prepared to make sacrifices to move Northern Ireland forward, but we will not sacrifice our equal citizenship within the United Kingdom.

[Noble Lords]

The Motion!

[Lord Dodds of Duncairn (DUP)]

My Lords, just to keep the House waiting a bit longer, the Minister has addressed some of the points; not many other Members necessarily have—I wonder why. I want to thank in particular the noble Lord, Lord Moylan, who on his birthday has taken time out to come and speak in this debate. There are wider issues that we will be coming to very soon, and we will test the House on many of them in a short time, but in succeeding in raising these issues, highlighting them, and having a debate on them, it is important that we concentrate on the wider issues that are now before us and return to them in greater detail. I beg leave to withdraw the Motion.

Motion withdrawn.