Windsor Framework (Retail Movement Scheme) Regulations 2023

Lord Dodds of Duncairn Excerpts

Wednesday 18th October 2023 Lords Chamber

Moved by

[Lord Dodds of Duncairn]

That this House regrets that (1) the Windsor Framework (Retail Movement Scheme) Regulations 2023, and (2) the Windsor Framework (Plant Health) Regulations 2023, have been introduced under a truncated timetable and with no public consultation despite their constitutional and political significance in facilitating the application of EU laws to the United Kingdom; fail to secure unfettered trade between Great Britain and Northern Ireland; cause trade diversion; and are contrary to the objectives of the Northern Ireland Protocol listed in Article 1(2).

Relevant document: 51st Report from the Secondary Legislation Scrutiny Committee

[Lord Dodds of Duncairn (DUP)]

My Lords, in moving this Motion, I want to ensure that Parliament has an opportunity to debate and scrutinise measures that have profound political and constitutional ramifications for the union. Otherwise, the Government would have pushed these measures through without any debate.

The Secondary Legislation Scrutiny Committee, in its 51st Report, expressed concern about the lack of an impact assessment or, as it put it, “even basic information”, saying that

“it undermines Parliament’s ability to scrutinise the legislation effectively”.

It regretted that the retail movement scheme came into force during the recess, denying Parliament the opportunity to form a view before it was launched—something of a recurring theme when it comes to these Windsor Framework SIs. It also expressed concern about the truncated timetable. On the lack of consultation, it again criticised the Government for failing to consult formally on the details. Given the import of these regulations and their impact across the board on everyone in Northern Ireland, it beggars belief that the Government have not undertaken a formal consultation on the contents of these SIs and others.

The protocol/Windsor Framework has already led to the inevitable consequence of the collapse of the Assembly and other institutions, given that it breaches the Belfast agreement as amended by the St Andrews agreement. It is the greatest irony that proponents of the protocol claim to be great protectors of the 1998 agreement, yet they support measures which drive a coach and horses through that agreement. Indeed, rigorous implementors of the protocol in other Northern Ireland political parties—the SDLP, Sinn Féin and the Alliance Party—all penned a letter calling for its “rigorous implementation”. They did not see anything wrong with its flaws, slavishly following the line of the EU. Yet now everyone—including them, it seems—agrees with us that change is necessary.

Make no mistake: the regulations before the House this evening, along with others, establish a regulatory and customs border in the Irish Sea, with Northern Ireland subject to EU jurisdiction in over 300 areas fundamental to our economy. They give effect to EU regulation 2023/1231. This is EU law which now governs internal UK trade. The EU now has the final say over the law on internal trade within the United Kingdom, and if, at some point in the future, it decides to change it, it can.

Contrary to the facts, we are told that this so-called green lane removes the Irish Sea border. In fact, these regulations require traders, trading within the United Kingdom, to have an export number, become a trusted trader, complete customs and SPS paperwork, go through a border control post and be subject to 10% identity checks on goods that are moved—and that is only for the so-called green lane. It is, in fact, a slightly less red lane. It is certainly not the unfettered access promised by the Prime Minister because, if it were, there would be no need for any of this.

Of course, it is not just the extra costs of all of this for business, which will be passed on to consumers in Northern Ireland; we also have the costs to the taxpayer through the trader support service and other schemes set up to implement the Irish Sea border. Can the Minister furnish us with the figures—the costs of all those schemes? Are they intended to be permanent or are they going to be phased out?

The new arrangements have also caused trade diversion, which was supposed to be one of the reasons to implement Article 16 of the protocol in the first place. Although designed primarily to benefit big retailers, the new arrangements have already led to one announcing that it was restructuring its supply chains to move as much as possible of what previously came from Great Britain to Northern Ireland, so that after 1 October it comes from Irish Republic. If anyone is any doubt about the effects of the Windsor Framework, I refer them to the report of the Protocol on Ireland/Northern Ireland Sub-Committee of your Lordships’ House on the Windsor Framework. It concluded that the Windsor Framework rendered the situation worse in many areas compared with what has been experienced in reality, on the ground, up to now.

The original protocol was unworkable and could not be implemented without doing major damage to Northern Ireland’s economy. That led to grace periods and easements. Now these grace periods and easements are done away with, to be replaced with the more burdensome provisions of the Windsor Framework. Those are the conclusions of the sub-committee. Despite all of this, however, we have been told, “Don’t worry— 1 October has come and the sky hasn’t fallen in”. Of course, that ignores the restructuring of supply chains to try to shift as much as possible of what previously came from Great Britain to Northern Ireland, as I have already referred to.

However, clearly worried about how things would look if fully implemented on day 1, the Government have, in fact, in the regulations before us, introduced quite an extraordinary measure to camouflage the reality of what will happen when red/green lanes are fully implemented. That measure is in Regulation 11(2). It is extraordinary because it mixes considerations that pertain to risk, such as risk of disease and so on, with other considerations that have nothing to do with risk but instead pertain to the capacity to carry out checks—to the number of staff there may be and the structures that will be built or not built. Checks can therefore be reduced or eliminated according to the capacity to carry them out. That is important because there is no capacity to carry out such checks at the moment in Larne, Warrenpoint and Foyle. The only new border control post capacity that has been built is in Belfast. Things will not come to a head, in fact, until 2025, when the new border control posts will have been built.

The Government are easing things in, making sure that the real effects are not felt immediately. Once we get to 2025—if not before, when conducting the risk assessment—the competent authorities will be able to say that they have the capacity to conduct fully all the checks. Then we will start to see the real consequences of the sea border. That of course leaves aside the fact that a lot of companies whose goods will end up staying in Northern Ireland—so intra-UK trade—will have to use the red lanes, which are subject to the entire panoply of EU external border customs controls.

These regulations do not do what the Government claim they do. They are in fact another piece of the Irish Sea border superstructure under the Windsor Framework protocol. As such, it is contrary to Northern Ireland’s constitutional position, as demonstrated through the courts, where, in relation to a key building block of statehood—internal trade—the Act of Union has, according to the courts, been set aside. The creation of a customs border—with Great Britain now designated, in law, as a third country vis-à-vis Northern Ireland—as well as regulatory borders are inconsistent with Northern Ireland’s place as a full, legal and economic part of the United Kingdom.

As Jeffrey Donaldson said at our party conference at the weekend,

“the imposition of a customs border on goods moving between Great Britain and Northern Ireland and remaining within the UK Internal market, was unnecessary and unacceptable in 2019. It was unnecessary and unacceptable in 2021 and … it is unnecessary and unacceptable now”.

It will have to go. These measures are contrary, ironically, even to the stated objective of the protocol itself, which states in Article 1(2) that

“This Protocol respects the essential State functions and territorial integrity of the United Kingdom”.


The courts have ruled that it does not. The framework is contrary to democratic norms, since we are now subject to EU law in 300 areas without ever having had a say or vote in the matter. Such a denial of sovereignty and democracy is a blot and stain of shame on the entire United Kingdom. This taxation without representation is something that many so-called Brexiteers will regret in the years to come, as others take advantage of the need to move the whole of the United Kingdom closer to the European Union. It is, of course, also contrary to the New Decade, New Approach agreement of January 2020, which established that the Government would fully restore Northern Ireland’s place in the internal market of the United Kingdom.

There is a lot of talk about the political process and the time that it has taken to deal with these matters in Northern Ireland. Let me remind your Lordships’ House that unionists have been urging progress for change for years. Let us remember the moment when the EU started to instigate Article 16 because it did not want the vaccines for Northern Ireland to come over the border from the Irish Republic. That was January and February 2021. We have waited patiently for successive Governments to deliver on the promises and pledges that they made—including the current Prime Minister. We summarised those pledges in our seven tests, which are in fact merely iterations of these prime ministerial commitments. When there is little or no political engagement at the proper level, and it is instead left primarily to civil servants and advisers to carry the load, it is little wonder that there is so little progress. If the institutions are to be restored, then let us restore the agreements that established them and let them operate as they were set up to do. They cannot operate if there is no radical, meaningful change to the Windsor Framework/protocol.

The Assembly has been changed into a different model, where large swathes of powers are no longer under its or Westminster’s control—not under the control of anyone who represents Northern Ireland either in the Assembly or in Parliament. Instead, those powers have been handed over to a foreign political entity, acting in its interests, and which is designed eventually to bring about an all-Ireland economy. No one can reasonably argue that unionists should simply shrug their shoulders and say, “Well, never mind, we’ll just move on”. Republicans would not do that; indeed, they demonstrated that when they said that there could not even be an extra camera on the Irish land border. No one can reasonably argue that unionists should just ignore the setting aside of the Belfast agreement, as amended by the St Andrews agreement. The Windsor Framework and the protocol tear up the principle of consent and trash the east-west relationship —strand 3—elevating and giving priority instead to the strand 2 relationship, the north-south dimension.

--- Later in debate ---

[Lord Dodds of Duncairn (DUP)]

My Lords, I am grateful to the Minister for addressing some of the points raised in the debate this evening. A wide range of issues have been discussed, and I am grateful to all noble Lords who have taken part. It has been extremely useful, and important indeed, for this Parliament to actually discuss these matters. It beggars belief that had it not been for this Motion to Regret, these matters of such fundamental importance—central to the Windsor Framework, according to the Government —would not have been debated at all in Parliament. I will put down a marker. If the Government are so proud of the Windsor Framework, why do they continue to shy away from debate on it? The Prime Minister rushed a quick vote on the Stormont brake when he introduced the Windsor Framework, and said it was a vote on the entire framework, but it has hardly been debated since—certainly not in government time. It is important that those of us who have a responsibility to properly scrutinise the Government in Parliament, especially on these matters of such constitutional and political import, take every opportunity to bring these matters to the Floor of the House and have them debated, and, if necessary, voted on.

The Minister in his response said that goods made to British Standards are now available in all parts of the United Kingdom as a result of the Windsor Framework. He omitted to say, “Except, of course, if they are made in Northern Ireland”. That is not an improvement. He said it removed the Irish Sea border for goods staying in the United Kingdom—no, it does not. If goods staying in the United Kingdom happen to be on a lorry with goods going to the Irish Republic, they have to go through the red lane, so that is not a correct statement. On the matter of bulbs raised by the noble Baroness, Lady Hoey, I will correct the record again: it is illegal for such items to be sold directly to consumers in Northern Ireland. Those are the facts. One of the problems we have had in this whole Windsor Framework and protocol debate is the spin that tries to make it out to be something it is not. Just be honest with people that this is the best you can get, but do not try to cod people in Northern Ireland that this is something that it is not. This is where the Conservative and Unionist Party has gone badly wrong in Northern Ireland. Ineptitude and a lack of engagement now passes for the top level—certainly in the top two at the NIO, whose policy seems to be to avoid engagement and discussion with anyone in Northern Ireland, lest they say something that causes further controversy and difficulty for the Government.

The protocol sub-committee on which I have the honour to serve made it very clear that the Windsor Framework may be a technical improvement on the original protocol, but it is not an improvement on the position with the easements and grace periods. It will be more burdensome, so again let us be accurate about the matter. As for the institutions of the Belfast agreement—the Assembly, the north-south body, the east-west body and all the rest of them—it is in the hands of the Government, this House and the other place to decide when devolution comes back. Let us restore equal citizenship; let us be honest with people; let us have the same rights as UK citizens, as the rest of our citizens—the right to make laws for our own country here at Westminster or in the Assembly. As my noble friend Lord Weir said, these are not matters in which we demand special privileges; we simply demand our rights as UK citizens.

Jeffrey Donaldson was quoted. We agree with devolution. I was a Minister in three different departments of the Northern Ireland Executive. We shared power with Sinn Féin, a party that is unrepentantly in favour of murder of our kith and kin, in order to get devolution and to move things forward in Northern Ireland, but we did so based on an equitable settlement which respected strands 1, 2 and 3 of the relationships within these islands. Those agreements have been trashed by the protocol and the Windsor Framework. They must be restored. As Jeffrey Donaldson said on Saturday— I notice that some people left out this part—the customs border was “unacceptable” in 2019 and 2021 and it is unacceptable today. So let us get on. The Government know what needs to be done, so let us get on and help them along their way. I hope that we restore those institutions sooner or later.

I do not intend to press this Motion to a vote tonight, but I reserve the right to bring all issues affecting Northern Ireland to the Floor of the House, unless the Government are prepared to do so of their own volition, to debate them and to vote on them, going forward.

Motion withdrawn.