Windsor Framework (Retail Movement Scheme) Regulations 2023

Lord Weir of Ballyholme Excerpts

Wednesday 18th October 2023 Lords Chamber

[Lord Morrow (DUP)]

My Lords, I first congratulate my noble friend Lord Dodds of Duncairn, who has set the whole thing out very succinctly, and I hope that the Minister has been listening. When these regulations were published, we immediately saw that they were of huge political importance, not least because they give effect to EU Regulation 2023/1231, which seeks to govern what happens within the United Kingdom— the movement of goods within a country that is not a member state. Specifically, the regulations govern what happens to goods leaving one part of the United Kingdom, namely Great Britain, and entering another part of the United Kingdom, namely Northern Ireland, with the purpose of giving effect to an international customs and SPS border, splitting our country in two. This statute is without precedent, as far as I am aware, anywhere in the world and constitutes the ultimate humiliation of the United Kingdom. It not only blatantly disrespects the territorial integrity of the United Kingdom and the essential state functions of the United Kingdom, but it also actively seeks to undermine them.

The EU regulation does not remove any sense of border in the Irish Sea, which is what we were told by the Prime Minister would be secured by Windsor. Rather, it affirms the presence of the border and offers two different border experiences. The removal of the border is not contemplated at any point. Both border experiences are the same in the sense that they both require those wishing to trade to have an export number, to fill in customs and SPS documents and to be subject to 100% documentary checks and at least 5% to 10% identity checks and some physical checks at border control posts. The real presenting distinction is not between one border experience and the other, but rather between these border experiences compared with movements within an internal market, as in GB, France, Japan, Australia et cetera, which, by definition, involves no customs or SPS fettering and thus no border experience at all.

The retail movement and plant health regulations both provide a means of accessing one of the border experiences provided by EU Regulation 2023/1231, which is less disruptive than the default border experience which the EU reserves the right to impose through Article 14. We pointed out in our submission that, contrary to government statements that the Windsor Framework provided unfettered access to and from Northern Ireland within the United Kingdom internal market, these regulations affirm an arrangement that actually accepts an ongoing border in the Irish Sea and the fact that Northern Ireland has not been reconnected with the UK internal market.

Our submission to the Secondary Legislation Scrutiny Committee was published by the committee in full and the Government issued a response, which was also published by the committee. I would like to look at the Government’s response. The first thing to say is that they do not actually disagree with our analysis, although they seek to give the term “internal market” a new meaning. On EU Regulation 1231/2023, they state:

“This regulation sets out specific rules relating to the entry into NI from other parts of the United Kingdom of certain consignments of retail goods, plants for planting, seed potatoes, machinery and certain vehicles operated for agricultural or forestry purposes, as well as non-commercial movements of certain pet animals into NI”.


There you have it: the Government accept a border, in that the EU makes rules for Northern Ireland that do not apply to GB, such that a border must rest between them, where one set of rules ends and another set of rules starts.

The Government then say:

“The SPS Regulation also disapplies more than 60 provisions of EU law in respect of retail agri-food goods moving into NI under the Scheme, with UK standards to apply in their place, ensuring that the same products available on the shelves in Great Britain can be sold in Northern Ireland”.


That applies to those who access the alternative, less disruptive border arrangement, but critically the Government do not claim that all EU legal requirements, and thus the border, are removed. EU rules continue to apply, and thus the border continues to apply.

The Government then say:

“The Windsor Framework achieves a longstanding UK Government objective to provide for an effective set of trading arrangements for goods remaining within the United Kingdom, as part of supporting the UK internal market. Through its arrangements, it supports the smooth flow of trade within the UK internal market, freeing movements of unnecessary paperwork, checks and complex certification requirements. Instead, the Northern Ireland Retail Movement Scheme will enable consignments to move using a single remotely approved digital certificate, rather than individual certification at product level with inspections required for each certificate under the original Northern Ireland Protocol”.


Again, while this sounds positive, it does not actually call into question anything that we have said, beyond its misapplication of the term “internal market”.

Yes, the regulations before us today seek to access the alternative and less disruptive border experience that will make trade smoother than will be the case for goods being traded in the so-called red lane, but they still involve our looking at goods moving across a customs and SPS border and not the removal of the border and reintegration of Northern Ireland in the UK internal market. In that sense, while the Government talk about promoting “the smooth flow” of goods within the internal market, they are deploying the term “internal market” in a way that destroys the concept of an internal market.

Terms have meanings, and any attempt to drag an established term with an established meaning into a new context in the hope that the general public will not realise that what we are actually looking at no longer is an internal market in any credible sense but something entirely different must be rejected. An internal market is a market that involves the free movement of goods without the fettering of a customs or SPS border with border control posts. These regulations are not part of an attempt to promote smooth trade within the UK internal market; they are about trying to promote smoother trade between Great Britain and Northern Ireland now that they are no longer part of the same internal market for goods. We can pretend that the UK internal market for goods still exists, but it does not. It urgently needs to be recreated, with the restoration of Article 6 of the Act of Union.

Our point to the Secondary Legislation Scrutiny Committee and to this House is that these regulations are of immense political and constitutional importance, because they affirm the splitting of our country into two, and the Government’s response does not question that. Once one allows for the verbal gymnastics involved in the Government’s redesignation of the term “internal market”, and looks past this terminological sleight of hand to the reality that they actually describe, it is plain that all that is on offer is an alternative border experience that makes the border less economically disruptive than would otherwise be the case.



We made a number of points that the Government did not respond to, presumably because they were not in a position to contradict us. First, we pointed out that at the heart of EU Regulation 1231/2023 is Article 14, in which the EU asserts the right to withdraw the alternative border experience, leaving us with just the most disruptive border experience. Moreover, in understanding this we must remember that it has never offered an alternative border experience for all goods, such that they already insist that a significant proportion of products is already subject to the most disruptive border experience.

In this regard two points must be understood. At the moment, the EU is in no position to use its Article 14 rights, because the border control posts that effectively divide the country into two will not be completed until the end of 2025—my noble friend Lord Dodds has already made reference to that. Moreover, it is also really important to understand that, although the red lane is currently supposedly being operated, there is very limited capacity to enforce it because the border control posts are not properly in place. It is currently the worst kept secret that border enforcement has had to be suspended in relation to triangular trade.

In seeking to assess the disruptive implications of the border at the moment, we also need to call out Regulation 11 in the retail movement scheme regulations. Regulation 11 is an extraordinary provision. It asks officials to conduct a risk assessment, prior to conducting checks at the border, that in addition to asking questions about risk also asks questions that, far from being concerned with avoiding risk, provide grounds for ignoring it. Specifically, in making a judgment about whether there is a risk, the regulations ask officials to ask whether they have the capacity to conduct checks to confirm their suspicions. The plain implication is that, even if officials believe that there is a risk, they can ignore it if they do not have capacity to deal with it. This has presumably been inserted to give people the impression that, from 1 October, the Windsor Framework is far less disruptive than is actually the case, something the Government plans that we should not experience until July 2025—it will be too late then —when the border control posts are completed. I suspect that they then intend to move an SI amending Regulation 11, which I am sure will greatly relieve the EU.

[Lord Weir of Ballyholme (DUP)]

Given what my noble friends Lord Morrow and Lord Dodds have said about the lack of border posts—it will be two years down the line before they are actually put in place—and what my noble friend Lord Morrow said about the lack of capacity for any level of enforcement at the moment, does it not therefore beggar belief that a government Minister said this week that we now have a smooth flow of goods, and that that is the yardstick against which this is based, two years away from any implementation?

[Lord Morrow (DUP)]

I thank my noble friend Lord Weir for making that point. I think the Government are now on a mission to try to convince not only themselves but the watching public that all is well. Let me state quite categorically in your Lordships’ House today that all is not well, and it is not going to get better until the Government grasp the situation. We can turn our heads and look the other way, and let on that we do not see or understand, but one day we will understand and, by then, a lot of damage will unfortunately have been done.

--- Later in debate ---

[Lord Weir of Ballyholme (DUP)]

My Lords, I do not intend to stray beyond the two statutory instruments themselves, but they are symptomatic and symbolic of the wider problems with the Windsor Framework. First, the retail movement SI in particular goes to the very heart of the Windsor Framework arrangements and, secondly, the SIs very much epitomise the fact that the concerns that have been there from the start of the Windsor Framework have not just not been removed but have in fact been reinforced by these regulations. Indeed, the reassurances that were given, particularly by the Prime Minister at the time the Windsor Framework was signed, have been shown to be spin, and these regulations highlight that they were fairly meaningless.

Proponents of these regulations may point to some very marginal improvements on what was there with the protocol. If you are a seed potato farmer, you will at least be able to import, whereas that would have been banned beforehand, and there is a little bit less paperwork. However, if we compare the situation as proposed in these regulations—which indeed has been retrospectively imposed on Northern Ireland, because we are debating after the fact, in effect—with either what was there prior to the situation or even in terms of the grace periods or the STAMNI arrangements, we see that we are in an infinitely worse position. Indeed, any changes that have made are very much at the grace and favour of the European Union, as has been indicated by regulation 1231, which states, as been said by others, that if there is a discontent from the EU with the operation of the procedures, yes, it will consult with the UK Government but it alone will then have the power to set aside these arrangements and impose, in effect, a completely red-lane arrangement on all trade going into Northern Ireland.

It is worth pausing for a moment to think about that. What is contained within the regulations before us today in terms of retail movement is designed to apply only to the so-called green lane; it is supposed to apply only to trade where the end use is in Northern Ireland. This is not about trade which will cross into the EU, and not even about trade that is at risk of travelling into the EU; it is about trade which is entirely within the United Kingdom. Yet the final and unilateral say on this lies with the European Union.

Many reassurances were given at the time of the Windsor Framework: we were told that it would restore the UK internal market and lead to unfettered access in both directions. Indeed, I believe that one of the phrases used was that it would remove any sense of an Irish Sea border, and on one occasion the Government said about the paperwork, “This isn’t going to be any different from if you are transporting goods between Southampton and the Isle of Wight”. I confess I have not travelled, or indeed sought to transport, goods between Southampton and the Isle of Wight, so I am not aware of whether a customs declaration is required, or indeed an export number, or of whether a firm doing that has have a trusted trader status. One would assume that there would be several complaints from the MP for the Isle of Wight if goods coming from Southampton had to go through border posts, let alone if there had to be declarations on every consignment or inspections. That has clearly been shown to be a level of spin.

We then come to inspection checks. We know that documentation has to be provided for 100% of goods, and we know that where there is intelligence that would suggest that goods could be taken across the border, there will be physical checks. However, we are told also that between 5% and 10% of consignments— I think the suspicion in the haulage industry is that it will remain close to 10%—will be physically checked by way of an inspection. That is not a quick glance in the back of a van. Let us remember that to comply with these regulations, every consignment coming into Northern Ireland will have to be sealed with a special seal; that will have to be removed, then replaced, presumably, after the inspection.

It is interesting to compare that level of inspection with territories which, for instance, abut the European Union. There is one Russian enclave within the European Union, Kaliningrad, and goods have to be transported between Kaliningrad and mainland Russia through Poland and Lithuania. Yet the EU instructions, even post sanctions, are that they are to intervene where they believe there is the breaking of sanctions, but otherwise, there is to be no impeding of road transport of goods between Kaliningrad and Russia. There is not a 10% level of inspections there. It seems remarkable that, potentially, goods moving between Great Britain and Northern Ireland are going to have a higher level of inspection than in a sanctioned Russian state.

Similarly, on diversion of trade, this is not simply an anxiety; it is a reality. For example, in preparation for this, one of the largest supermarkets, Tesco, showed us slides indicating how it plans to divert trade through the Republic of Ireland. Morgan McLernon, the wing of the largest hauliers in the United Kingdom, has made redundancies in Northern Ireland because it is going to shift its operations to the Republic of Ireland. The testimony of hauliers, which has been given on a number of occasions to the committee, is that this is leading to a considerable level of divergence—let alone the fact that a lot of smaller traders, if they are going to trade fairly infrequently with Northern Ireland, will simply take the view that it is too much hassle.

The restoration of the internal market cuts another way, which has not been mentioned. Government documentation refers to the transportation of goods, and to standards that apply in Great Britain to goods going to Northern Ireland. It also states: “However, enforcement powers against EU standards will remain for goods produced in Northern Ireland”. If we take the port of Larne as an example, you can transport goods from Glasgow to Larne, and they can be sold in Larne according to GB standards. However, the very same shop will not be able to sell goods produced in Larne itself to GB standards. Northern Ireland companies are not even put on a level playing field with the rest of the United Kingdom.

Turning briefly to plant health, given that some of the Government’s answers on these issues have tended to be opaque at best, I may be in a better position to elucidate for the noble Baroness, Lady Hoey, regarding her bulbs. It is pretty clear from the legislation that the dispensation the EU has given us on a grace-and-favour basis to transport plants, bulbs and seed potatoes applies only where they can be brought in to a professional operator recipient. To be fair, the company probably did apply the law correctly, but it would appear that the noble Baroness, Lady Hoey, is not entitled as an ordinary consumer to receive those goods. During the recent recess, I was in Prague. Had I decided in Prague to get some bulbs or seed potatoes and made arrangements there for them to be imported to Belfast through the EU, that would have been an awful lot easier, to be perfectly honest, than trying to get them from mainland Great Britain. That is the kind of Alice in Wonderland territory we are in.

A dispensation was generously given in the Windsor Framework that 11 species which were previously completely banned from Northern Ireland could now be brought in. We were told by some in the horticultural industry that they hoped that this would be the start of a process. Some 35 other species were banned, and their hope was that gradually, one by one, that figure would be reduced. I look forward to the Minister explaining whether there has been any further progress on widening what can be brought into Northern Ireland.

These regulations are the symptom of a much larger problem. The reality is that no one who has concerns about the Windsor Framework, particularly those of us on the unionist Benches, seeks anything extraordinary. All we are seeking is restoration of the constitutional status. All we are seeking is the restoration of the UK internal market, and the removal of the sea border. Funnily enough, those were exactly the promises made by the Prime Minister. All we are seeking is for the Prime Minister to fulfil what he promised and turn rhetoric into action.