Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024

Lord McCrea of Magherafelt and Cookstown Excerpts

Tuesday 13th February 2024 Lords Chamber

[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.

[Lord Alderdice (LD)]

I wonder if I might just respond to that point. It seems to me that Northern Ireland, Scotland, Wales and England are important separate jurisdictions with their own statute books and so on. That is not the case for some of the other areas that the noble Lord refers to. The point I was making was that when people talk about the people of Northern Ireland wanting this, that and the other thing, one of the things that they did not want—it is right that the Scots did not want it either—was to leave the European Union, with all the consequences. That was the point.

[Lord McCrea of Magherafelt and Cookstown (DUP)]

I accept what the noble Lord is saying. Are he and others suggesting that Scotland should get the same as we got and that it should receive the same benefit that we are told we have got? I know in fact that Scotland has been suggesting it should be getting it, because it thinks we are getting something that it did not get. You cannot have it both ways. The parties across this House that have been in government, those leading parties in this House, realise that the United Kingdom went into the referendum as a United Kingdom. We went into Europe as a United Kingdom. We were withdrawing as a United Kingdom—not parts here and parts there. It is not a patchwork quilt that we are talking about. We are talking about the rights of the peoples of the United Kingdom to make the decision. Just because some people do not like the decision that was made, they cannot suggest that it was not done in a democratic way.

The Northern Ireland protocol cut our Province off from the rest of the United Kingdom economically and handed political power over a part of the United Kingdom to the EU. Because of this, the DUP and my party colleagues refused to implement a policy that deliberately undermined our precious union and our right to trade on the same footing as Great Britain. I stand by that decision without apology. The Northern Ireland Assembly was suspended and did not function for two years. It was only through the actions of the DUP that the Government and the EU sat up and listened to the legitimate concerns of unionism. Up to that moment, they seemed to have only one concern—to listen to the endless demands of republicans.

Now, after two years, the Government have produced the Command Paper Safeguarding the Union and the two statutory instruments we are debating today, but there are questions that must honestly be asked and answered. Do these fully address the issues confronting unionists? Do they, for example, stop the damage done by the Northern Ireland protocol and the Windsor Framework with reference to the free movement of trade between Northern Ireland and Great Britain, and do we now have the right to trade on the same footing as GB? Do they restore the constitutional rights to the people of Northern Ireland that have been totally undermined by the protocol and Windsor Framework, and have they restored our equal citizenship as British citizens, which has been eroded?

We were told that these measures were vital for the restoration of the Northern Ireland Assembly, but how does this equate with the Assembly being already restored before we in your Lordships’ House were granted a chance to scrutinise or debate one line of their content or their ever becoming law—because they are not law. We have to debate and pass it here. Therefore, how did this happen? One has to ask what was the undue haste—or was scrutiny of the details contained in these SIs the last thing the Government wanted before the Assembly was restored?

I place on record my appreciation for all the hard work that was done by my colleagues over many months and the due diligence that they applied to their labours, but I have no doubt that intolerable pressure was exerted on them by the Prime Minister, the Secretary of State for Northern Ireland, the NIO and, no doubt, the Irish Government—although the internal affairs of Northern Ireland are not the business of the Irish Government—to get the Executive up and running. Indeed, we had an example of the Government’s panic when the Secretary of State used the £3.3 billion as bait and deliberately withheld the rightful pay rise from our hard-working public sector workers, seeking to create a crisis. In my opinion, again, such an action was despicable.

Now, there is breaking news today. We learn that the Stormont Executive have been told by Westminster that they must raise at least £113 million of their own revenue in their next budget, and that this was a part of the £3.3 billion funding package. Is it not strange that we were not informed of those details until now? There is an old adage: “All that glitters is not gold”.

Over the weekend, an article was published in Northern Ireland media by the Belfast News Letter—written by three of my esteemed colleagues, two of whom are in this House—pointing out that scrutiny of the SIs before us today confirms that the border in the Irish Sea remains. I can tell the House that the genuine concerns expressed by my colleagues have already been expressed not only by myself but by the greater number of the parliamentary party, a majority of the Members of the House of Lords from my party, and indeed a number of MLAs. These concerns cannot be cast aside or overlooked but must be honourably answered, for they will not go away. Relying on promises made by a Government who have broken so many promises before will not suffice. We all know that the outworkings of these SIs will be evident for all to see, and no amount of flannel or spin from the Secretary of State or any other Minister will wish away the facts that the people see before their eyes.

I ask the Minister to tell the House if the green lanes legislation has gone or if it is completely untouched by these SIs. Is it true that, under the current legislation, companies moving goods outside the red lane must have an export number and must be subject to customs and SPS border paperwork, as well as subject to 100% documentary checks and 10% identity checks, moving to 5%? That is what Regulation 13(2) of the Windsor Framework (Retail Movement Scheme) Regulations 2023 requires. Lest anyone should doubt me, Regulation 13(2) states:

“From the date specified in the first column of the table below, the Northern Ireland competent authority must carry out an identity check by breaking the seal on at least the percentage of consignments of specified retail goods moving into Northern Ireland under the Scheme specified in relation to that date in the second column of that table”.


The minimum percentage of consignments on which identity checks must be carried out are, from 1 October 2023, 10%; from 1 October 2024, 8%; and, from 1 July 2025, 5%. Meanwhile, Regulation 12 requires 100% documentary checks. That is what the law requires—a law that I believe the SIs before us today, whose purpose is to give effect to the deal, do not amend, let alone appeal. I want the Minister to tell us whether or not that is true.

Companies moving goods from Wales do not have an export number. They do not have to fill in customs paperwork, simplified or otherwise. They are not subject to 100% documentary checks, and they do not have to go through border control posts where they are subject to identity checks of between 10% to 5%. Crucially, before 1 January 2021, companies moving goods to Northern Ireland from England, Wales or Scotland similarly did not need an export number. They did not need to fill in customs paperwork or be subject to 100% documentary checks and 10% to 5% identity checks at border control posts. The reason was very simple. At that time, Northern Ireland was not cut off from the rest of the United Kingdom by the Irish Sea border—a border that I fear the deal before us leaves in place. I ask the Minister: is this scenario as I have outlined it right or wrong? We do not need waffle, we need answers.

I notice people pointing to their watches, but this is the first time I have had the opportunity of looking at this in the House of Lords, and I am taking my time to deal with a matter that is so important to the people who live in Northern Ireland.

The protocol/Windsor Framework was designed to make special provision for Northern Ireland that was not made for the rest of the United Kingdom. While I welcome the east-west council, the greater flexibility in dealing with rest-of-world goods, and the commitment from the UK Government to stand with us if the EU refuses to move veterinary medicines, none of those things removes the border or restores Article 6 of the Act of Union, which remains as partially suspended today as it was this time last year.

Without apology, I am a unionist. That means that I prioritise the relationship between the different nations that occupy these islands. It means that, if borders have to divide us, I am on the side of the border that is in a relationship with England, Scotland and Wales, for it was not unionism that divided the island of Ireland but nationalism.

There has never been any question that some businesses have prioritised having no border to interrupt the flow of goods between Northern Ireland and the Republic of Ireland. But the idea that business as a whole prioritises the free movement of goods between Northern Ireland over the free flow of goods between Northern Ireland and the rest of the United Kingdom is difficult to sustain in the context where most of the goods flowing into and out of Northern Ireland come from the United Kingdom.

In a world where one cannot have unfettered border-free access to both the rest of the United Kingdom and the Republic of Ireland—indeed, if we could, this deal and the SI before us would have delivered it—then unionism exists to promote unfettered access with the rest of the United Kingdom. This deal prioritises something entirely different: unfettered border-free access to the Republic of Ireland, and fettered, bordered access to the rest of the United Kingdom. As I have said, I believe that there is still a border in the Irish Sea.

We must not forget that the existence of a border is a function of the more profound dividing of Northern Ireland from the rest of the United Kingdom, and its insertion in a different governance structure and subjection to the same laws as the Irish Republic in some 300 areas, rather than those of the United Kingdom—laws that are imposed on it from outside. I know that Parliament is sovereign, but simply telling us that does not make matters better, only worse. It tells us that even though Parliament has the power to insist that 1.9 million UK citizens are left to abide under 300 areas of law over which they have no influence or power to amend, His Majesty’s Government are happy to leave them as second-class citizens without the right to stand for election to try to stop some of the laws imposed on them by a foreign power.

The EU might prefer this way to protect the integrity of its single market, but in a context where another way of dealing with the issue exists—the mutual enforcement that my noble friend Lord Morrow mentioned—that does not involve the largest disenfranchisement exercise in the history of the western world or violate the consent principle of the Belfast agreement, and that does not involve disrespecting the territorial integrity of the United Kingdom, no responsible UK Government could ever countenance settling for anything less.