Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024

Lord Hain Excerpts

Tuesday 13th February 2024 Lords Chamber

[The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)]

My Lords, I shall speak also to the draft Windsor Framework (UK Internal Market and Unfettered Access) Regulations 2024. I offer my gratitude to my noble friend Lord Hunt of Wirral, chair of the Secondary Legislation Scrutiny Committee; the Joint Committee on Statutory Instruments; and members of those committees in this House and the other place for their expeditious consideration of both instruments.

These regulations deliver on key commitments set out in the Safeguarding the Union Command Paper, the contents of which I set out on the Floor of the House on 1 February. The commitments made in that Command Paper will strengthen our union and the UK internal market now and for the long term. I am pleased that the Command Paper has created a situation whereby the Democratic Unionist Party agreed with the recommendation of its leadership to end the boycott of Stormont and has provided the basis on which the devolved institutions in Northern Ireland have returned, with support from across the community; a Speaker of the Northern Ireland Assembly has been elected with a full complement of Assembly Members now able to serve fully their constituents; a First Minister and deputy First Minister are now in office, and a full complement of Executive Ministers is now forming the Administration in Northern Ireland. It is in that context that I ask noble Lords to consider the two regulations before the House.

I turn to the first of these, the draft Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024, which seek to strengthen and future-proof Northern Ireland’s place within our union in law. They do so consistent with the vital protections contained in the Acts of Union 1800 and by the terms of the Northern Ireland Act 1998. They seek to address sincere concerns among some in the unionist community that Northern Ireland’s status within the union has somehow been diminished. The Government have been clear in our determination to see our union strengthened, and these regulations have been designed with that in mind. They clarify that Section 7A of the European Union (Withdrawal) Act 2018, the sovereign Act of Parliament that gives effect to the Government’s commitments under the withdrawal agreement, operates subject to the democratic safeguards in the Windsor Framework. That, of course, includes the Stormont brake, which gives the Assembly, now that it is up and running once again, powerful and vital democratic oversight over new, amending and replacing EU laws.

These regulations also provide a safeguard against any prospect of regulatory borders between Great Britain and Northern Ireland emerging from future agreements with the European Union. They mean that no Government in the future can agree to another protocol or form of agreement which would undermine the integrity of the United Kingdom internal market. On matters of domestic legislation, the regulations will introduce new safeguards so that government Bills that might affect trade between Northern Ireland and other parts of the UK are properly assessed. Ministers in charge of such a Bill would need to provide a Written Statement to Parliament on whether legislation would have a significant adverse effect on trade between Northern Ireland and other parts of the UK.

I should be clear that this provision does not bind Parliament’s hands, but rather ensures that Parliament is properly informed by the Government. The approach we are taking will deliver clarity to businesses that Northern Ireland’s unfettered access to the UK internal market will not be frustrated.

Finally, this legislation provides for how any independent review of the Windsor Framework would operate, requiring the Government to commission such a review one month after the Assembly having passed a consent vote on the Windsor Framework without cross-community consent. In those circumstances, the Government would be obliged to respond to a report from the independent review within six months and raise its contents at the UK-EU Withdrawal Agreement Joint Committee.

I now turn to the draft Windsor Framework (UK Internal Market and Unfettered Access) Regulations. The Government are clear that the old protocol created unacceptable barriers to the United Kingdom internal market. In response, the Windsor Framework sought to restore the functioning of the internal market by ensuring the smooth flow of trade within the UK. It disapplied a range of EU law, including ensuring that Northern Ireland benefits from the same VAT and alcohol taxes as the rest of the UK. We saw the framework commence at the start of October, with its benefits now being enjoyed by over 3,000 businesses registered on the internal market scheme.

Following the Windsor Framework, the Government announced the border target operating model. In line with this approach, we have now, for the first time, started to phase in checks and controls for Irish goods and non-qualifying goods moving from the island of Ireland to Great Britain. This is a powerful demonstration of Northern Ireland’s integral place within the UK’s internal market and rebuts claims that it is a member instead of the EU’s single market. The reality is that third-country members of the EU single market will now have full third-country processes applied, while Northern Ireland’s businesses have unfettered access to their most important market by far, in Great Britain.

As a result of these regulations, this now includes guarantees for qualifying Northern Ireland goods moving from Northern Ireland to the rest of the United Kingdom via Dublin. This unfettered access is future-proofed, ensuring that it will persist regardless of how rules evolve in either Northern Ireland or Great Britain. These regulations will more squarely focus the benefits of unfettered access on Northern Ireland traders. The regulations both tackle avoidance of the rules and ensure that agri-food goods are exempt from SPS processes only if they are dispatched from registered Northern Ireland food and feed operators. We will also expressly affirm through these regulations that export procedures will not be applied to Northern Ireland goods moving directly to other parts of the UK internal market. This reflects the legal guarantees secured in the Windsor Framework and achieves the effect of provisions dropped in the then United Kingdom Internal Market Bill by the previous Government in 2020.

The Government are also determined to ensure that public authorities are clear-minded about their existing legal duty to have special regard to Northern Ireland’s place within the UK internal market. We are therefore taking a power to make guidance on Section 46 of the UK Internal Market Act. That guidance will set out how public authorities should have special regard to Northern Ireland’s place in the UK’s internal market and customs territory, and the need to maintain the free flow of goods from Northern Ireland to Great Britain. Public authorities will be bound to have regard to it, ensuring they meet the UK’s international obligations in a manner that is also consistent with ensuring the smooth flow of goods within the internal market.

The Government are now working with vigour to deliver on the commitments set out in the Command Paper, because we want to make Northern Ireland work well for all who live there today and allow it to remain a thriving, prosperous part of the United Kingdom. On that note, I beg to move.

[Lord Hain (Lab)]

My Lords, before I get to the specifics of these two statutory instruments, I ask, in relation to legacy inquests under way in Northern Ireland, is the Minister not extremely perturbed—indeed, embarrassed—by the fact that state bodies appear to be openly running down the clock to 1 May, when the due process that we set such store by in the United Kingdom will no longer apply in Northern Ireland thanks to the shameful legacy Act? In one case, a Ministry of Defence official told an inquest, “We have only a single officer supporting Northern Ireland inquests.” In another, the legal representative of the PSNI admitted that further resources could be deployed and more progress made, but said, in terms, “What’s the point?” Is this not a disgraceful way to treat victims of the Troubles, who have suffered so much already? An abject failure by state officials and agencies to produce the necessary files in anything like a timely fashion also continues, despite the relevant state bodies being directed to do so by a serving coroner acting with the full authority of the Lady Chief Justice.

What on earth makes the Minister think that a body which the legacy Act sets up outside the judicial system headed by a retired former Chief Justice, however distinguished, will fare any better? Or, as many suspect, will those who will be denied proper inquests have to make do with a vastly inferior process on the cheap?

Having said that, I congratulate both the Secretary of State and Sir Jeffrey Donaldson MP on the resurrection of Stormont. We hope that the people of Northern Ireland will see the tangible benefits of functioning devolved government without delay. Sir Jeffrey’s detractors would be wise to bear in mind that having functioning devolution is absolutely critical to safeguarding the union. The DUP recognised at St Andrews in 2006—I remember it well—that the future of Northern Ireland is necessarily shared, and its governance will always entail compromise.

Appropriately, therefore, the package of measures presented in the Safeguarding the Union Command Paper manages to address DUP concerns within the boundaries of the UK’s international legal obligations. Those obligations relate both to the EU and to the Irish Government and remain sensitive and vital relationships for the UK, particularly as they affect Northern Ireland. What happens in Northern Ireland will continue to be crucial to those relationships.

With this in mind, it is worth being exceedingly careful in legislating in this area, and I seek clarification from the Minister on four specific areas. First, relating to the amendment of Section 13 of the European Union (Withdrawal) Act 2018 regarding the transparency obligation, what is the definition of—or criteria for measuring—what would constitute

“a significant adverse effect on trade between Northern Ireland and the rest of the United Kingdom”?

Furthermore, the Command Paper states in paragraph 146 that, if there was to be such a significant adverse effect,

“the Government will set out any measures it proposes to protect the internal market”.

In such an eventuality, how might such measures be made known to Parliament by the Government? I would be grateful for an answer to that question.

Secondly, how is the House to understand the

“prohibition of certain Northern Ireland-related agreements”

that is to be added to Section 38 of the 2018 Act? This regulation specifically prevents only a future UK-EU agreement that

“would create a new regulatory border between Great Britain and Northern Ireland”.

In the Government’s view, does this constitute the complete fulfilment of the Command Paper’s claim to protect against

“future EU agreements which create new EU law alignment for Northern Ireland and adversely affect the UK’s internal market”?

My third question relates to the amendment of the Northern Ireland Act 1998 on the independent review after the democratic consent vote. Why is the independent review to include consideration of any effect of the Windsor Framework on, first, the constitutional status of Northern Ireland, and, secondly, the operation of the single market in services between Northern Ireland and the rest of the United Kingdom? I ask because the Windsor Framework does not cover services and because it is without prejudice to the constitutional status of Northern Ireland as part of the UK. Indeed, the latter point is to be made law with the amendment of the European Union (Withdrawal Agreement) Act 2020 that we are currently considering.

Fourthly, the Safeguarding the Union Command Paper announces some ambitious new structures and bodies. Given their importance to the realisation of the objectives of this legislation, I would like clarification from the Minister on the following matters. How does the new UK east-west council relate to existing bodies affecting all-UK and east-west governance, including the Prime Minister and Heads of Devolved Governments Council, the Interministerial Standing Committee, and the British-Irish Council? How, too, would it relate to the new ministerial group that, according to paragraph 152 of the Command Paper, is

“to oversee the implementation of the new arrangements”?

How is “political” and “governmental” participation in the east-west council from Northern Ireland to be decided? Is it to be the same as for the North/South Ministerial Council, with two Northern Ireland Ministers designated to attend each meeting, both of whom have to be jointly signed off by the First Minister and Deputy First Minister? How does the function of these new bodies and structures relate to the common frameworks programme?