Windsor Framework (Democratic Scrutiny) Regulations 2023

Lord Thomas of Gresford Excerpts

Wednesday 29th March 2023 Lords Chamber

[Lord Thomas of Gresford (LD)]

The noble Lord, Lord Robathan, referred to his experience in the forces in Northern Ireland. It reminded me that when I was defending in the Brighton bomb trial in 1986, I was surprised to discover that Daniel O’Connell, the leader in the 19th century of the fight for Catholic emancipation and the scrapping of the Act of Union 1800, was, despite his nickname of “The Liberator”, dismissed as a traitor. The inspiration of the IRA was the rebellion of 1798, when Wolfe Tone and Emmet sought full independence for Ireland, with French republican support. That rebellion was a horrific episode, characterised by the dragooning of Ulster and other atrocities. I was appalled to discover that the Ancient Britons, a Welsh regiment of fencibles who were foremost in that savagery, had been raised in my neighbourhood in north Wales.

I therefore have some understanding of the deep and historic roots of the divide between the Catholic and Presbyterian communities, although not of course the lived experience of the noble Lords who are speaking in this debate. The more I come to understand the issues as a member of the Protocol on Ireland/Northern Ireland Sub-Committee, the more I am led to the conclusion that the Belfast/Good Friday agreement was something of a miracle, wrought by many across the political divide. Surely today’s politicians on all sides can emulate Paisley and McGuinness and sit together, to co-operate in government and to resolve issues by discussion and compromise.

The Windsor Framework is by no means perfect, as the noble Lord, Lord Jay, remarked. In my view, although there are many improvements in the Windsor Framework to the previous protocol, the Stormont brake is so surrounded by qualifications that it is unlikely ever to be used. It is instructive to look at what the European Commission has published in its commentary on the framework:

“The Stormont Brake is a new emergency mechanism that will allow the UK government, at the request of 30 Members of the Legislative Assembly in Northern Ireland … in the most exceptional circumstances, as a last resort as set out in a unilateral UK Declaration, to stop the application of amended or replacing provisions of EU law, that may have a significant and lasting impact specific to the everyday lives of communities in Northern Ireland.”


That is the EU view.

Thus, the Stormont brake goes only a short way to address the undoubted democratic deficit. Further, since it can be triggered by a petition of concern advanced by a minority of Members of the Northern Irish Assembly, it creates a positive Grand National of high jumps and fences which could easily lead to political conflict and a new impasse. The brake comes into play only after the 27 continuing members of the EU, having engaged in the necessary discussions and compromises needed to reach agreement, have put together a final legislative Act or regulation. It is then presented as a fait accompli to the people in Stormont.

What the people of Northern Ireland need is input into the pre-legislative discussions. But let us not despair. I believe that changes can be made without renegotiation of the Windsor Framework, and certainly without placing the protocol in the dustbin. In the same EU commentary to which I referred, the EU states that it recognises that Northern Ireland stakeholders have valuable insights to offer on Northern Ireland’s unique circumstances, and it will take into account their views in a timely and meaningful manner:

“The Commission will, in particular, be guided by the Commission Work Programme to identify specific Protocol-relevant measures for which space for intensified engagement with Northern Ireland stakeholders will be created.”


In the same spirit, the framework agreement strengthens the work of the joint consultative working group by the creation of themed subgroups, which are designed to be the conduit by which advanced notice of policy proposals in the EU will be conveyed to the UK Government.

In my view, the UK Government should now give firm assurances that a major part of the team which attends the joint consultative working group formed by the protocol should come from Northern Ireland. After all, most of the measures are concerned with devolved matters. This would of course have implications for expanding the Northern Ireland Civil Service to allow it take on such responsibilities.

Similarly, the joint committee to which the JCWG reports should have expanded representation from the Northern Ireland Assembly. Currently the First Minister and Deputy First Minister are invited to attend. No doubt they have an expert team of advisers, but token membership of the joint committee would most certainly not be enough. There must be room, where a particular measure or set of measures is referred to the joint committee, for the Minister responsible in the Northern Ireland Executive to attend as of right. The issue of who attends these committees is in the hands of the UK Government and does not require the assent of the European Commission.

The democratic deficit can never be completely resolved in the absence of a vote in the European Parliament. But the views of NI stakeholders and elected representatives can be fed in at an early stage through the revived and reformed joint consultative working group. This would give to the people of Northern Ireland not just the convoluted and clumsy mechanism of the Stormont brake but an essential and effective voice in the creation or subsequent amendment of EU measures.

[Baroness Hoey (Non-Afl)]

My Lords, I welcome the tabling of the fatal amendment to the Motion. At the very least, it has given your Lordships’ House an opportunity to discuss something that has been rushed through by His Majesty’s Government. I see that they are called the Windsor Framework (Democratic Scrutiny) Regulations. We are not really having much scrutiny. We have this SI on one aspect, although Downing Street said that this was the way that we could discuss the Windsor Framework. If I was going back to my days way back when I taught, I would want to start by asking how many people have actually read the detail of the Windsor Framework, and then how many people have actually read the EU legal text interpretation of it, because the two things are very different.

I must say right at the beginning that the problem with His Majesty’s Government on this issue has been that they started off by overselling hugely what was in the framework. The Prime Minister went to Northern Ireland, spoke at the Coca-Cola factory and made out as if everything had been solved; it was just wonderful. He was almost jumping up and down with delight, as has been the Secretary of State—who I am very pleased to see here listening to us today. Of course, there were all the things said in that first 24 hours: the blandness such as

“Removes the Irish Sea Border … Restores the free-flow of trade … Protects NI place in our Union”—


that was a tweet from the Secretary of State. Northern Ireland people are not stupid, and Northern Ireland people then went on to read the framework document and what the EU said and, as I said, they are very different indeed.

In his speech, the noble Lord, Lord Morrow, talked about the new issues that arose just yesterday following a contribution from a spokesman in the European Parliament. I will mention that in a moment, but I want initially—and this should be a wider debate, because that is what the Prime Minister said we would have in discussing the framework and this SI—to deal with the actual brake. I genuinely think it is a bit of a sham. It is similar to what takes place in Norway, which is not in the EU although it is aligned with it in certain respects. That measure has been invoked only once, when Norway tried to stop something called the post office workers directive. I remember being involved in helping to support people in Norway on that issue. They campaigned and worked extremely hard but, in the end, the EU set out the many penalties it was going to impose if the directive did not go through. So I do not think that anyone should think that this is a proper brake.

Even if the brake worked and was brilliant and everyone said, “There’s no problem with it”, I do not accept that we should have to have it in Northern Ireland. Northern Ireland had the same ballot paper in the referendum. We voted to leave the European Union as a United Kingdom. We joined the original common market as one United Kingdom. Why are we even having to discuss this?

It is interesting how many of your Lordships have talked about how we must compromise. One noble Lord said that we could not possibly have a border between Northern Ireland and the Republic of Ireland because it would be absolutely dreadful, and he asked what would happen if there were some kind of border. Let us think about why we say these things. We say them because the republican movement, the IRA, bombed all over Northern Ireland and on the mainland. The pro-union people in Northern Ireland did not bomb in Northern Ireland or on the mainland, although there were of course paramilitary terrorists on all sides. The reality is that we would not even be thinking of talking about some kind of structure—we do not need structures anyway; even the EU has said that a border could be invisible—yet we immediately put an Irish Sea border into our own country because there is no threat there. All noble Lords should examine their consciences on this matter in terms of what we are prepared to do. We are letting violence and threats of violence attack our sovereignty. So let us not talk about this Stormont brake as being anything other than a wonderful bit of camouflage that has been applied in the hope that it will be agreed to—as, of course, it will.

I refer again to what Bernard Van Goethem, one of the senior veterinary officers in the European Commission, said yesterday. One sometimes thinks that perhaps this is why the Government wanted to rush all this through—because so much is now coming out about what the framework actually says and does. He said that the EU has now said that new light-touch arrangements for the movement of retail food consignments from GB to Northern Ireland will not be fully implemented until SPS inspection facilities at Northern Ireland ports have been completed and audited. He told the European Parliament that officials from the EU veterinary office in Grange, Co. Meath, will carry out an audit of the facilities before the new system under the Windsor Framework becomes fully operational. He went on to say that the process to change EU law through so-called implementing Acts to facilitate the arrangements was conditional on the completion of agri-food inspection at four Northern Ireland ports. He told members of the European Parliament’s Agriculture Committee that none of the implementing acts will be adopted

“unless we are sure controls are done in a proper way … The controls currently in NI are not up to the standard required by EU legislation. We have the assurance from the UK Government that the current facilities … will be upgraded by October 2023 and that the final definitive SPS inspection facilities will be built by July 2025.”

Finally, he said that EU officials will be present to oversee the operation of border control posts where agri-food controls will be carried out under EU rules. What sovereign country would allow a foreign entity to be responsible for examining borders, checks and customs in its own country?