Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024

Lord Morrow Excerpts

Tuesday 13th February 2024 Lords Chamber

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, it is a pleasure to follow the noble Lord, Lord Dodds, although he and I disagree on the fundamentals of the Windsor Framework and on the fundamentals of Brexit. I say at the outset that this debate tonight and many other debates that we have are a consequence of Brexit and the decision that was taken in 2016 in relation to the referendum. I declare my interests: I am a member of the Secondary Legislation Scrutiny Committee of your Lordships’ House and of the Windsor Framework Sub-Committee, where we have given in-depth scrutiny to all the various aspects of the protocol and the Windsor Framework.

In fact, we had a very good visit in Belfast some two weeks ago on the whole issue of veterinary medicines. We heard directly—I was going to say “from the horse’s mouth”—from the veterinarians and those who supply the veterinarians about the issues and challenges that they are presented with, because even before Brexit, there was the issue of product rationalisation. These issues about the availability of and accessibility to vaccines, which were constrained by Brexit, need to be addressed.

I welcome the restoration of the political institutions—the Assembly, Executive, North/South Ministerial Council and British-Irish Council. I congratulate those who were involved in those discussions, the Ministers who have been appointed, the members appointed to the committees and my own colleagues, who now form the Opposition under Matthew O’Toole. In the Assembly, the Executive, the North/South Ministerial Council and the British-Irish Council, public representatives from Northern Ireland will have that opportunity to voice their issues and challenges, and to try to find solutions.

However, as a democratic Irish nationalist, I do not like this Command Paper much. It represents a one-sided deal between the UK Government and the DUP, and there is no evidence of intergovernmental partnership with the Irish Government on inclusivity; there is no evidence of that inclusivity, of multi-party talks, of parity of esteem or of rigorous impartiality. Those concepts, which characterised previous agreements, do not exist. While I understand that this was important to get a deal over the line and to ensure the restoration of the political institutions, I say gently to the Minister that it is most important that the UK Government work according to a programme of inclusion and revert to the basis of bipartisanship with the Irish Government, parity of esteem and the principle of consent. They are vital to the resolution of any of the outstanding issues with which we are confronted.

There are those who would say that this represents a departure from the Downing Street declaration of 1993 about the UK Government’s position and the Good Friday agreement, to which the principle of consent was central. I refer and defer to my colleague on the Front Bench, the noble Lord, Lord Murphy, who was a negotiator on behalf of the UK Government on the strand 1 proposals, along with my colleagues in the SDLP, the noble Lord, Lord Empey, and the Ulster Unionists, and other parties.

But, as a nationalist, when I read this document I fear that my colleagues and I do not exist. We need a departure from that to ensure that all of us together can achieve that level of bipartisanship, partnership and parity of esteem. I urge the Government to move towards that.

My noble friend Lord Hain referred to bodies in the Command Paper that will be subject to subsequent legislation—Intertrade UK and the east-west council. How do they fit within the existing structures of the Good Friday agreement? I refer to InterTradeIreland, the British-Irish Council and the British-Irish Intergovernmental Conference. Are they superfluous to what already exists?

The actual regulations are, in many ways, the legislative outworking of the Command Paper, as was already referred to by the noble Lord, Lord Dodds. What will be their impact on the Windsor Framework? Do they represent a departure from or a building on the Windsor Framework that was negotiated with the European Union? What consultation and discussions took place with the European Union on these statutory regulations? Was there any need for such discussions, because there might not have been any material change to the Windsor Framework? What is the impact on the Good Friday agreement and the principle of consent? What is the impact of these and future SIs on the all-island economy and the existing north/south structures? We have, for example, the North/South Ministerial Council and all the north/south implementation bodies that look at cross-border issues such as tourism, the dairy industry, Coca-Cola, food processing and the drinks industry.

As the Secondary Legislation Scrutiny Committee stated in its report on these regulations:

“Given the complexity of the interaction of two regulatory systems in NI”—


accessing the EU single market and being part of the UK internal market—

“we note the importance of the forthcoming guidance to provide clarity to businesses and other stakeholders on how the new arrangements should be applied in practice”.

Can the Minister precisely outline the framework for the publication of that guidance, and what engagement and consultation will take place with your Lordships’ House and the other place, and with the devolved institutions and communities in Northern Ireland, on planned future legislative measures?

Finally, what is the relationship between these regulations and the border target operating model, and what is their impact? I welcome that with these regulations there will be a lessening—I hope, an eradication—of the restrictions to unfettered access between the UK and Northern Ireland. But we must remember that these regulations, the protocol and the Windsor Framework are the result of Brexit. The protocol and the Windsor Framework were clearly seen as mitigating measures to deal with the particular circumstances on the island of Ireland.

I would like to know what impact these regulations will have on the operation of north-south co-operation and trade. I firmly believe that, whatever happens, we have to build on good will, believe in the commonality of interest, and build on friendships and relationships, in order to create a better place for all of the people in Northern Ireland.

[Lord Morrow (DUP)]

My Lords, I will not repeat in detail what has already been said but will briefly underline some of the most important points as I see them, before looking in more detail at some of the specific provisions in the regulations before us today.

The green lane has neither gone nor been replaced. Paragraph 10 of the Windsor Framework Command Paper, published triumphantly by the Prime Minister on 27 February 2023, states that the Windsor Framework

“puts in place a full set of new arrangements, through a new UK internal market system (or green lane) for internal trade”.

The Safeguarding the Union paper, by contrast, commits the Government to:

“Replacing the green lane with a default UK internal market system”.


The green lane and the internal market system are the same thing. You cannot replace something with itself. The Government are doing their best to pull off the sleight of hand of the century, but in my opinion they have failed. The people of Northern Ireland are not fools. These regulations change nothing fundamentally in what were called the red and green lanes until the week before last.

Call them what you like. While we have some innovations from the monitoring committee, Intertrade UK, and the new dispensation from the EU on those rest-of-the-world products that have been through UK customs being allowed to move from one part of the UK, that is GB, to another, that is Northern Ireland, the basics remain unchanged. This is demonstrated most clearly by the fact that the Windsor Framework (UK Internal Market and Unfettered Access) Regulations 2024, before us today, do not repeal or amend the legislation introduced last year to give effect to the green lane UK internal market system legislation.

As such, fundamentally, the legislation before us today leaves the Irish Sea border untouched. Goods that do not travel through the red lane will have to travel through the green lane—aka the UK internal market system—which requires the companies concerned to join the trusted trader scheme. In relation to that scheme, just yesterday the Trader Support Service contacted businesses which bring goods from Britain to Northern Ireland. In that correspondence, the Trader Support Service confirmed that Northern Ireland is treated as EU territory, with Northern Ireland products treated not as UK goods but EU goods. That speaks volumes.

Some of the companies have had this information brought to them. They have an export number and they complete both customs and SPS border paperwork, and are subject to 100% documentary checks, mandated by Regulation 12 of the unamended Windsor Framework (Retail Movement Scheme) Regulations 2023, and 10% to 5% identity checks, mandated by Regulation 13 of the same 2023 Regulations.

This confronts us with the central difficulty with the name of the “UK internal market system” and the title of the Windsor Framework (UK Internal Market and Unfettered Access) Regulations 2024 before us today. What they describe is not unfettered access or an internal market but rather the negation of both. The fact that in order for goods to cross from GB to Northern Ireland one needs an export number and to submit customs and SPS forms, albeit simplified, and be subject to 100% documentary checks and 10% to 5% identity checks, is not unfettered movement within the same internal market. If it was, there would be no need for an export number, and there would be no customs paperwork or customs documentary checks, and no identity checks at a border control post. These border demands give effect to fettered access, as goods move from one internal market to another. If we want to see unfettered access within an internal market, we need to look instead at goods moving from the UK to the Republic of Ireland, across the land border. Here there are no requirements for customs forms, simplified or otherwise, and no customs documentary checks and no identity checks.