Windsor Framework (Retail Movement Scheme) Regulations 2023

Lord Browne of Belmont Excerpts

Wednesday 18th October 2023 Lords Chamber

The Prime Minister must realise that any policy decision to go back into Stormont is the sole competence of the DUP party officers, and they will carefully and fairly scrutinise any government proposal—bearing in mind how successive Governments have dealt with unionists over many years, they need to carefully scrutinise it all. Over the years, the decisions taken by our party were not taken simply to be popular; they were taken in the best interests of the people of Northern Ireland. That again will be the basis of any future decision that we will make, and no other spin will be sufficient to make us break our firm resolution.

[Lord Browne of Belmont (DUP)]

My Lords, I am not convinced that the regulations before us today are intra vires, for exactly the same reasons I doubt that the Windsor enforcement regulations are intra vires. I set out in detail the reason why I am unconvinced about this in my speech on the enforcement regulations when they were debated on 19 September, but the Minister did not respond at that time. I do not intend to repeat my speech of a month ago today in full and want to move on to address some additional points today, but I begin by drawing it again to the attention of the Government and asking for a response, not merely in relation to the enforcement regulations but the retail movement scheme regulations and the plant health regulations we are debating today.

In brief, while I acknowledge that the regulation-making powers are quite broad, they are not infinitely elastic, but held accountable to a fixed reality: the language of the protocol, now renamed the Windsor Framework. Both these sets of regulations have at their heart and give legal effect to EU Regulation 1231/ 2023. As we have heard, that affirms and effects the division of the UK into two, for the reasons that have been set out by the earlier speakers. This is a hugely important matter for the Windsor Framework retail movement scheme, plant health regulations, as well as the enforcement regulations 2023, because Article 1(2) of the protocol states, as I said on 19 September:

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


It is made directly effective in UK law by Section 7A(l)(a) of the European Union (Withdrawal Agreement) Act, requiring that

‘all such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the withdrawal agreement’

are applied.

How can Article 1(2) be applied if attempts are made to implement other parts of the protocol that have the effect of actively disrespecting the territorial integrity and essential state functions of the United Kingdom that it insists on respecting? I can see that, if the regulation-making power were for the purpose of giving effect to certain articles of the protocol and not others, this vires difficulty may not necessarily apply. But the regulation-making power simply references the protocol/Windsor Framework, which means that it must be taken as a whole. That means that any Act that purports to implement it cannot contradict any part of the protocol, including Articles 1 and 2”. —[Official Report, 19/9/23; cols. GC 287-88.]


The same problem also arises because of the trade diversionary effects of both sets of regulations before us today and the trade diversionary implications of preparing for them. It is now known that the amount of product coming from Great Britain to Northern Ireland is significantly less than previously, with an increased number of empty trailers on the return journey. How can it be appropriate for the Government to introduce legislation within the confines of the regulation-making power to give effect to legislation which is supposed to be accountable to the Windsor Framework, when its actual consequence is to create trade diversion, which Article 16 of the Windsor Framework expressly states is inimical to the purpose and intention of the Windsor Framework, such that if this is the result, the parties may derogate from the treaty? I very much look forward to what the Minister has to say.

In order to understand the regulations before us today, and particularly the green lane that they purport to help construct, it is useful to look at how signage works in the rest of the European Union. Moving from one European Union jurisdiction to another, you are effectively presented with three lanes. The blue lane is for any goods moving from one EU jurisdiction to another EU jurisdiction. There is no paperwork and there are no checks. Then there is a red lane. This is for any good that has to be declared and subject to customs and potentially SPS paperwork and checks. Then there is a green lane, which means you can move freely, because you have nothing to declare. However, here in Northern Ireland, as a unionist, I particularly know what a fake green is when I see it. The truth is that what the regulations before us today offer is not an arrangement that, in the words of the Prime Minister,

“removes any sense of a border in the Irish sea”, —[Official Report, Commons, 27/2/23; col. 571.]

such that he could then, and we can now, talk about the regulations before us today as giving effect to aspects of the green lane.

In reality, the Windsor Framework, as the regulations before us today powerfully testify, effects and affirms a border where no border has a right to be. EU regulation 2023/1231, which it is the purpose of these retail movement and plant health regulations to operationalise—and without which they make no sense and cannot be understood or assessed—is about making provision for an alternative and less disruptive border experience than one would otherwise have. However, two things must be understood. First, the alternative arrangements are alternative border arrangements and thus the border remains very much in place and can be negotiated only if you have an export number, apply to join the trusted trader scheme and are accepted, fill in SPS forms, and are potentially subject to some checks at border control posts.

Secondly, article 14 of EU regulation 2023/1231 makes it absolutely clear that the EU reserves the right to remove this border experience in favour of the most disruptive available that it could mete out between itself and a foreign country. In that sense, the Windsor Framework does not get rid of any sense of the border in the Irish Sea any more than it creates a green lane. Its actual effect is to confirm the presence of the border in the Irish Sea and to introduce two red lanes, one of which is less demanding than the other, but which defaults to full disruption at the behest of the European Union.

Neither arrangement reconnects Northern Ireland to the UK single market, which can happen only when it is given unfettered access, which means access without the fettering of customs or SPS requirements as per trade movements between Scotland, England and Wales, or trade movements within any single market. Indeed, rather than reconnecting Northern Ireland to the UK single market, the purpose of the regulations today is to define two different levels of fettering at the border.

Therefore, rather than removing the border, the purpose of these Windsor regulations is to effect and affirm it. This makes it absolutely clear that talk about green lanes is totally confusing and, frankly, misleading. It generates an impression of a green light, of the coast being clear, and so on, but nothing could be further from the truth.

However, in order to really understand the regulations before us today, we need to see them in context, because the truth is even more awkward. Under the border target operating model, it is widely recognised that it is much easier to move goods from the EU into GB than to move goods from GB to the EU. This has immediate consequences for Northern Ireland because all red-lane goods movements between Northern Ireland and GB, which are in the same country, are subject to more fettering than movements of goods from the EU to GB—between different countries.

To this one might say, “But what about the green lane?”—which is of course a red lane. In the first instance, Northern Ireland is part of the same country as the rest of the UK and so should not be disinherited from its own single market by the imposition of any kind of border obstacles. In the second instance, when we study the particular manifestation of the red lane that masquerades as a green lane, we find that some companies regard the burdens associated with it as so onerous that they actually prefer the other red lane. For example, Lynas Foodservice has said that it intends to move 75% of its products on the red lane; in other words, we will have accepted an arrangement that places the interests of GB more with those of France, Germany, Bulgaria and Estonia than with Northern Ireland, because we will want to make it easier for goods to be traded between those countries and Great Britain, in terms of fettering, than with part of our own country. We will have done this, even as we know that through the EU we are offering easy access to our market to those countries—France, Germany, et cetera—that are refusing to respect the territorial integrity of the United Kingdom, imposing both economic disadvantage and the partial disenfranchisement of part of the UK.

I am happy to support this Motion to Regret.