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?

Protocol on Ireland/Northern Ireland

Lord Thomas of Gresford Excerpts

Thursday 3rd March 2022 Grand Committee

[Lord Thomas of Gresford (LD)]

My Lords, I am a member of the sub-committee. We requested some assistance, through opinion polls, as to the current state of play—with all the limitations that we know about opinion polls. The February 2022 survey of Queen’s University, Belfast disclosed that 50% agree to the proposition that the protocol is on balance a good thing for Northern Ireland. The LucidTalk NI tracker poll carried out in January found that 36% thought the protocol was wrong and should be scrapped, 44% support the protocol but believe it should be reformed or adjusted, and 18% support and have no problems with it. The general picture is that the protocol is supported by perhaps two-thirds of the population, although a large section of those think it should be at least revised.

The problem is that the UK Government agreed to a solution for Northern Ireland which has two fundamental flaws. First, they agreed that the European Union could make laws directly affecting Northern Ireland but without a voice for its people. The second flaw is that they gave to the European Court of Justice, on which there is no longer even a UK representative, jurisdiction to pass judgment in infringement proceedings, or JRs, in certain areas which affect Northern Irish businesses and people, under paragraph 4 of Article 12.

The simplistic approach to these problems is to call for the scrapping of the protocol altogether but Article 16 permits unilateral safeguarding measures only if the protocol leads to

“serious economic, societal or environmental difficulties that are liable to persist”

or to “diversion of trade”. However, any action taken must be temporary—

“restricted with regard to their scope and duration”—

and limited to involving only the issues explicitly identified. Article 16 is not intended to allow either party to suspend provisions of the protocol permanently or in their entirety. I was surprised that the noble Lord, Lord Frost, suggested that it could be used this afternoon.

Unless we break the terms of the treaty, we have to swallow our pride, acknowledge our mistakes and seek solutions with our EU counterparts. We have to address the democratic deficit and seek a voice in the making of EU legislation, and while allowing the European Court its fiercely protected right to be the sole arbiter of European law, that must be indirect: we should negotiate to use the arbitration mechanisms provided for in Articles 167 to 181 of the withdrawal agreement. The essential thing is that the protocol must be made to work.

Northern Ireland

Lord Thomas of Gresford Excerpts

Monday 7th February 2022 Lords Chamber

[Lord Caine (Con)]

I assure the noble Lord that discussions about the protocol have been taking place with the Northern Ireland Executive. I chaired a meeting of the Northern Ireland protocol contact group with the First and Deputy First Ministers only last week, which I think was the seventh such meeting that has taken place. There has been engagement between the Foreign Secretary and the leaders of the Northern Ireland Executive, as well as with the Secretary of State. There has been a lot of discussion around these issues. Regarding long-term solutions, the noble Lord will be aware that the Government produced their Command Paper last July. This set out some practical solutions to the issues of the protocol. The Foreign Secretary has had a number of meetings with Maroš Šefčovič. They had two telephone calls recently—one was supposed to be a meeting but, because of Covid isolation, it had to be done on the telephone. They are due to meet again this week, so the Government are taking these matters very seriously. When I was a special adviser in Northern Ireland, I did quite a lot of work on the issue of victims of historical institutional abuse. I am aware of its importance, but it is primarily a matter for the Northern Ireland Executive to take forward.

[Lord Thomas of Gresford (LD)]

My Lords, does the Minister accept that the British Government negotiated an unworkable deal? This allows the European court—which now has no British judge sitting on it—to apply laws made in Brussels, where the UK no longer has representation. The Minister referred to negotiations. These have been dragging on and on. When will the Foreign Secretary remove these anomalies and act with some flexibility to find solutions to the problem now facing the Northern Ireland Government? This is the cause of the crisis that has just erupted.

[Lord Caine (Con)]

The noble Lord might be aware that, more than two years ago, when the protocol was being negotiated, I asked questions from the Back Benches. Those are a matter of record. Rather than dwelling on how we got into this situation, I would rather focus on how we get out of it. As I said in my earlier answer, the Government are working intensively with Vice-President Šefčovič to try to find a way forward. The noble Lord will know that there is a meeting of the EU-UK joint committee pencilled in for later this month.

Queen’s Speech

Lord Thomas of Gresford Excerpts

Tuesday 27th June 2017 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, the White Paper on Brexit of 2 February stated that,

“the UK will continue to participate fully in EU security and criminal justice measures while we remain a member of the EU”,

and continued:

“As we exit, we will therefore look to negotiate the best deal we can with the EU to cooperate in the fight against crime and terrorism”.


That was the promise.

The House of Commons Justice Committee published an important report on 22 March, Implications of Brexit for the Justice System. Written evidence was received from the Ministry of Justice which highlighted the significance of our membership of Europol, the European arrest warrant, Eurojust, which maintains joint investigative teams on individual cases, the European Criminal Records Information System, which gives access to EU data-sharing platforms and agreements, and the EU prisoner transfer agreement. The Ministry of Justice further stated in its evidence:

“We are exploring options for cooperation arrangements once the UK has left the EU … it would be wrong to set out unilateral positions on specific measures in advance of negotiations”.


We have 19 months to go before we fall off the cliff.

In a written memorandum of 6 March, Professor Tim Wilson, an expert in this field, the chair of the Criminal Bar Association and the chair of the Criminal Law Solicitors’ Association jointly set out their concerns. They stated that,

“nowhere is there such a comprehensive, integrated and efficient multinational system for co-operation as within the EU”.

After Brexit, there will have to be in place UK law sufficiently well grounded to work in a manner that is not damaging to the UK legal system.

Take the European arrest warrant, available only to members of the EU. Norway and Iceland have spent 15 years trying to join. Theresa May herself, when Home Secretary, pointed out that without the EAW we fall back on the Council of Europe convention of 1957. She said that the length of time that extradition procedures would take could undermine public safety. Further, she said that 22 member states of the EU, including France, Germany and Spain could refuse to extradite their own nationals to the UK.

The National Crime Agency, in evidence to the Justice Committee also said that the EAW system is,

“quick, effective, and an excellent example of co-operation and mutual recognition in criminal matters”.

This is what we are about to throw away, along with a long and valuable history of co-operation in combating terrorism and crime.

For example, the EU Council framework decision of 2009 on the exchange of information from criminal records resulted in the UK adding 478 individuals convicted of sex offences overseas to our own violent and sexual offenders database, adding their fingerprints and DNA profiles. The UK, as a financial centre, must always be on its guard against money laundering, tax evasion, bribery and similar white collar crime in cross-border financial activities. We will lose the existing data sharing and co-operation.

Ironically, we have just signed up to the new Europol regime, starting last month. During this Parliament, we will leave that organisation and there is nothing envisaged to replace it. We have also been heavily involved in creating the new Prüm system for the exchange of fingerprints, DNA and vehicle data. It is currently at a pilot stage, but will by 2020 introduce a fully automated and quick system for the exchange in Europe of fingerprint, DNA and vehicle records. We, of course, will be outside it. All these tools depend on our membership of the EU, and the data protection regime developed under European directives. The chairman of the Criminal Bar Association put it this way:

“I understand that at the moment we are just about compliant, and the European Union is willing to forgive any potential lapses in our data protection regime; but if we drift away from compliance when outside the European Union, it will not share data”.


The gracious Speech, which sets out the Government’s programme for two years—beyond the point where, under Article 50, we will leave the EU—says nothing about the complex legislation that will be required in all these fields. Without robust legal arrangements for extradition, we in this country are in danger of being a safe haven for criminals. Without the close co-operation we have developed with our European partners, the Government will fail in their primary duty: to keep this country safe and secure.

“Negotiating the best deal we can”,


the White Paper says. Where do the Government start, and where will they finish?