Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024

Debate between Lord Bew and Lord Browne of Belmont

Tuesday 13th February 2024 Lords Chamber

[Lord Browne of Belmont (DUP)]

My Lords, the two statutory instruments before us tonight are supposedly designed to protect the union and to promote the free movement of goods. I contend that both these regulations fall well short of meeting their objectives. It is clear that the Northern Ireland protocol remains largely intact. The Irish Sea border remains largely in place and, ultimately, the European Union has the final say in many significant areas in Northern Ireland. Indeed, Ministers and Assembly Members in Northern Ireland will be expected by law to adhere to, and implement, new laws that are made in Brussels, not in Belfast, and not here in London.

As I have said consistently in your Lordships’ House, the Windsor Framework does not make substantive legal changes to the Northern Ireland protocol and the supremacy of European law on many aspects of Northern Ireland. Very little in these new arrangements would contradict that view. Indeed, this deal and the framework that underpins it, make only a few limited changes. The Windsor Framework and the withdrawal agreement itself do not permit any changes to essential elements. It would be wrong to suggest that recent changes amount to substantive legal changes.

Fundamentally, the root cause of the problem with the Northern Ireland protocol and with these arrangements is the continued application of EU law in Northern Ireland—particularly in the circumstances in which it covers all manufacturing of goods in Northern Ireland, regardless of whether those goods are being sold in the United Kingdom or to the European Union. The vast majority—84%—of all goods manufactured in Northern Ireland are sold here in the United Kingdom.

The complex easings referred to in the Windsor Framework are limited in number. They will not directly help small or medium-sized traders and are not available to all businesses. The schemes will remain incredibly complex and, crucially, the EU retains a right unilaterally to withdraw its trusted trader system underpinning any new arrangements.

We arrive at a point where the Irish Sea border remains in place, according to the former Northern Ireland Attorney-General John Larkin KC. Paperwork will still be required for customs purposes and, as we can see back in Northern Ireland, customs or border posts are currently being constructed.

Northern Ireland will continue to be treated as an EU territory in many ways. Under Article 12 of the Northern Ireland protocol, which remains unchanged, the EU can direct UK authorities at ports. It is clear that we have not yet arrived at a point where friction has gone and there are zero checks and paperwork for goods from Great Britain destined for Northern Ireland. However, we must continue to work towards achieving this. While I welcome that some progress has been made here, there is still a long way to go.

To date, we have not seen evidence that the thousands of pages of EU law have been disapplied. Northern Ireland will continue to remain subject to the power and control of EU law, the European court and the European Commission on EU single market laws, which govern the manufacture and sale of goods in Northern Ireland. In some 300 areas, EU jurisdiction applies in Northern Ireland. It is a fact that Northern Ireland producers and consumers will still be subject to foreign laws, even when they do not trade with the EU at all.

To date, there is no evidence that points to a single EU single market law being removed from Northern Ireland.

[Lord Bew (CB)]

I just wish to ask the noble Lord, Lord Browne, why, if EU law is so important, it is not mentioned in the seven tests that went before the electorate in Northern Ireland last year as the DUP’s position. I understand the sentiment behind what he says about EU law, but why was it not mentioned in the seven tests? Which of the seven tests does he think has not been met?

[Lord Browne of Belmont (DUP)]

I assert to the noble Lord, Lord Bew, that this is referred to in our first objective:

“The Irish Sea border must go”.


This Government pledged to protect and strengthen the UK internal market as part of New Decade, New Approach. We said that this will involve the European Union.

Regrettably, the Stormont brake, if successfully applied, would apply only to future changes to EU law. It provides no right to change any part of the existing EU laws imposed on Northern Ireland under the protocol. The brake allows for an objection to be raised to a new or amended EU law but, ultimately, the final say on its application would not be a matter for the Assembly, Executive or even this sovereign Parliament. The final decision would rest with an international body that can decide whether a new EU law applies.

The brake is also of limited application in theory and is likely to be unworkable in practice, as such a high bar is set. As I have said previously in your Lordships’ House, I cannot envisage a scenario in which a future British Government would seek to apply a brake if it meant a retaliatory action from the EU. Northern Ireland remains governed by many EU laws that we did not make and cannot legally change. There remains no consent for arrangements that will see further EU regulations causing Northern Ireland to diverge from the rest of the United Kingdom.

The rights of the people of Northern Ireland under the Act of Union 1800 have not been fully restored. While I welcome some government promises—indeed, I welcome any future legislation that will bring us closer together as a nation—there is some way to go before we can say that these issues have been adequately addressed. These arrangements, much like the heralded launch of the Windsor Framework last year, have ultimately failed a key test: to legally restore the constitutional integrity of the United Kingdom.

Northern Ireland Protocol Bill

Debate between Lord Bew and Lord Browne of Belmont

Committee stage
Tuesday 25th October 2022 Lords Chamber

[Lord Browne of Belmont (DUP)]

My Lords, I oppose the proposition that Clause 2 should not stand part of the Bill and that Clause 3 should also fall as a consequential amendment. If it was to succeed, the Bill would be rendered largely inoperative. In response to this, I am struck by two realities.

First, it is striking that the Government are saying, quite rightly, that the Bill is required urgently to avert a socio-economic and political crisis in Northern Ireland. Secondly, it is also striking that the democratically elected House has consented to that and deemed fit to pass the Bill with no amendment.

It is noticeable that many Northern Ireland Peers were yesterday copied into a letter of invitation—as already mentioned by the noble Baroness, Lady Hoey—sent to the movers of this amendment about the provisions in these clauses. It asked that, before they reached any final conclusions on the matter, they visit the logistics centres in Northern Ireland run by McCulla Ireland and McBurney to find out why it is not possible to apply the laws of international trade to regional trade without causing a crisis and to reflect on what they discovered before drawing any final conclusions. These are the largest haulage operators on the island of Ireland. They have considerable expertise on these matters. As Paul Jackson, the commercial director of McBurney, explained to noble Lords on the House of Lords Sub-Committee on the Protocol, were the protocol to be implemented, it would crash the Northern Ireland supply chain “within 48 hours”.

In focusing on the negative implications of the protocol, and the consequences for international law, I want to make it clear that it is not my purpose to deny that the protocol is having positive effects for some—although these would become limited if the protocol were to be fully implemented. My point is simply that, in a context where 95% of our British Isles trade is with Great Britain and only 5% with the Republic, the negatives far outweigh the positives.

The discriminatory implications of denying the people of Northern Ireland the same economic right to trade with their fellow UK citizens cannot be dismissed lightly, because they cut right to the heart of our citizenship. In another instance, the negative impact of the protocol is in no way comparable with the inconvenience arising from having to negotiate customs borders between different states and the application of the rules of international trade to international trade. The inconvenience arising from applying the rules of international trade to intranational or regional trade is far greater than the inconvenience arising from the application of the rules of international trade to international trade, which is why, with the exception of Northern Ireland, it does not happen elsewhere. Thus, we are not merely confronting a situation where we are not affording members of the same polity the same levels of respect as their fellows—seeking to treat them as if they were foreigners, rather than citizens of the same country, for trading purposes—but we are actually putting on Northern Ireland a far greater inconvenience than we put on traders from other countries, and, in this sense, the UK is treating the people of Northern Ireland far worse than those from other countries.

To understand why this is so, and the implications of this from the perspective of international law, we need to understand the difference between international and intranational trade. With talk about globalisation, it is easy to get carried away into thinking that the world is defined by homogenous global economic flows, in which national borders are nothing more than an anachronism. But that is not the case: the borders, even between highly interdependent western countries, mark important lines of difference. For example, a lorry engaged in international trade will typically be a large vehicle and carry just one or two products. The cost of generating the paperwork associated with this, in terms of customs and SPS, will be tiny expressed as a percentage of the value of the cargo. By contrast, lorries engaged in trade within an economy often carry many different products, up to around 300. This is no problem because, within an economy, lorries can move freely. If, however, you introduce a border within an economy and require lorries travelling from one part to another to cross a customs border so that they must provide 300 separate customs declarations and 300 separate SPS declarations —or even more in the case of composite goods—the cost of generating the paperwork expressed as a percentage of the total value of the cargo becomes huge. It is so great in fact that the enterprise becomes either uneconomic or just not worth the bother. In this context, 200 companies in Great Britain have already ceased to provide goods to Northern Ireland, and if the protocol were to be implemented—let us not forget that it has never been anything like fully implemented—that number would increase dramatically, and we would be confronting a major socioeconomic crisis.

Some—such as the noble Lord, Lord Kerr—might respond to this by saying, “Well, why can’t Northern Ireland get its goods from the Republic?” It can to a degree, but only to a relatively small degree. It must be understood that Northern Ireland is a fully integrated part of the UK economy. If one looks at movements between GB and Northern Ireland, and between Northern Ireland and the Republic of Ireland, 95% is between GB and Northern Ireland. Only 5% is between Northern Ireland and the Republic of Ireland, and that is the case notwithstanding the fact that Northern Ireland and the Republic of Ireland have both been part of the European single market since 1993. It is not possible to restructure an economy overnight by cutting off the source of 95% of supply without creating huge damage.

In this regard, it is worth remembering that the Good Friday agreement is a treaty and part of international law, and the section entitled “Rights, Safeguards and Equality of Opportunity” commits to

“the right to equal opportunity in all social and economic activity.”

Yet the protocol now cuts Northern Ireland off from most of its own economy, with disastrous results. This is a real problem, because Article 2(1) of the protocol states:

“The United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union”.


In this context, notwithstanding the existence of Article 2(1), and the fact that the operation of the protocol has had the effect of diminishing the right to economic activity by cutting Northern Ireland off from most of its economy, the source of 95% of its trade, the EU has nonetheless refused to change a word of the protocol. The UK clearly has an obligation under international law to introduce the Bill before us today.

Finally, I urge noble Lords behind this group to take the opportunity to visit McBurney and McCulla before drawing any final conclusions.

[Lord Bew (CB)]

My Lords, I shall comment briefly on the important remarks by my noble and learned friend Lord Judge. I referred earlier to the fact that the opinion of international lawyers is more complex and variegated than, say, the first 10 speakers in the House this afternoon appeared to know. One of the most important figures here is Professor Alan Boyle, emeritus professor of international law at Edinburgh, who has given evidence to committees of both Houses. At one level, his analysis is close to that of my noble and learned friend, Lord Judge. As I understand it, his view is that the Government ought to apply Article 16 at this moment.

We have been talking about this for years. I can remember, three and a half years ago, sitting down with the noble Lord, Lord Caine, looking at Article 16 and having an initial conversation about it. The Government have, at various times, been close to applying Article 16. They did not know then how fashionable it would become in this House to say that it is the way out. Had they known that that was going to happen, I am sure they would have done it, but civilised opinion said, “That is a terribly British thing, you can’t do it.” Amazingly, there has been a change of attitude now.

The point that Professor Boyle made, and which was not made by my noble and learned friend Lord Judge or anybody who has spoken for Article 16 this afternoon, is based on the idea that he accepted the underlying logic that the approach of the Bill to protect the Good Friday agreement was correct. There was a problem that the obvious features of the Good Friday agreement —strand 3 in particular, on the east-west relationship—are not being respected in the way the protocol was working.

It is pretty well documented, historically, how that situation arose in negotiating terms, but my point is this. My noble and learned friend, whose skills are so admirable in this matter, is just following a route that was followed for some hours today, which is to say, “Why do the Government not implement Article 16?” I more than half understand it. I am looking at the noble Lord, Lord Caine, and I suspect that at certain times in the last few years he might have thought that might not be a bad idea either. That is not the point. At this moment, politically, we just cannot do it. We have a serious negotiation with the EU. I have said this before: you cannot walk in and suddenly say, “Oh, by the way, chaps, we are now throwing this on top of your heads”. The moment has gone.

Further, the advocacy offered in this House is weakened by the fact that, for the majority of those people who have suddenly discovered what a wonderful device it might be, it is not accompanied by what Professor Alan Boyle did, which is to say that the saving of the Good Friday agreement is critical. He defended it on the grounds that it might be a step we have to take, and he accepted that there is a conflict between the way the protocol is working and that original international agreement, which we also have a duty to uphold.