That the Grand Committee takes note of the Report from the Northern Ireland Scrutiny Committee Northern Ireland after Brexit: Strengthening Northern Ireland’s voice in the context of the Windsor Framework (1st Report, HL Paper 182).
My Lords, the noble Baroness, Lady O’Loan, has pulled out of the debate because she has a Motion in the Chamber.
It is a great privilege to chair the Northern Ireland Scrutiny Committee, which was appointed in January 2025. In October 2025 we produced our first report—the one we are dealing with today—examining the Windsor Framework. If those two words, “Windsor” and “framework”, conjure in the minds of noble Lords castle-like, symmetrical architecture, a secure moat and fine gardens, think again. We are here under a remarkable Victorian painting of Moses bringing down the tables from the mountain. It is a piece of strong evidence that, if you produce a document that is short, it lasts rather longer than one that is much more complicated—but I do not think that was part of the thinking when the Windsor Framework was created.
In reality, the Windsor Framework is a complex amalgam of diplomacy, politics and sheer necessity, conjured from shakily designed foundations. To me, it bears all the characteristics of having occurred, rather than having been designed. However, it is what Northern Ireland has to live with; it affects everyday life at every level, from the esoterics of company and competition law to the humble task of everyday shopping for it affects consumers above all others, probably. I shall give a small example. Somebody who wishes to buy new socks or a mixing machine from a GB supplier may not be able to do so, because of the duties on the packaging in which their purchase would be brought and because of the bureaucratic complexities that make it all too much trouble for some suppliers in Great Britain to supply to Northern Ireland.
As the committee, we devoted ourselves from the very beginning to the interests of consumers, producers and everything in between, but above all to the public in Northern Ireland. We relied for our report on a large body of evidence and spent time in Northern Ireland talking to stakeholders, including businesses large and small, and, importantly, social enterprises, which are also affected.
I thank my parliamentary colleagues on the committee for their assiduous attention to the evidence, and their constructive and purposeful contribution to the discussion. I know that members of the committee will share this: I particularly thank the clerk of the committee, Liam McNulty, our expert advising counsel, Tim Mitchell, our organising genius, Breda Twomey, and all the secretariat, for their extraordinary contributions. The newly established committee functioned efficiently, was properly briefed on all relevant subjects and was able to produce a full and reasoned report. We are very fortunate in your Lordships’ House to be blessed with staff of such quality to help us in what we do.
The committee’s membership includes a wide range of views on the constitutional status of Northern Ireland and on the protocol and Windsor Framework. Despite colleagues’ divergent views and strong opinions on some issues of principle, I emphasise that it is notable that the report was agreed unanimously. This imbues added force in the conclusions reached by the committee.
I was just dealing with some points about the one-stop shop that our colleague the noble Lord, Lord Thomas of Gresford, had raised. First, the one-stop shop really must emphasise its services to traders in Great Britain who wish to trade with Northern Ireland. It is important that they should know what is available to them. Secondly, if the one-stop shop happens to give a trader advice that is wrong, as long as that trader is acting in good faith on that advice, there should be a waiver of any consequent penalties—for example, tax penalties that arise from the actions of the trader in question.
I turn next to the issue widely described as the democratic deficit arising from the 2019 protocol. The history, political institutions and social and community context of Northern Ireland make the democratic deficit an extremely important issue. In our report, we make it clear that, in our view, not enough has been done to mitigate, let alone resolve, this fundamental issue, which causes profound political division in Northern Ireland. With this in mind, our report focuses positively on the ways in which Northern Ireland stakeholders can more effectively participate in the Windsor Framework structures. We believe that our proposals, if followed, will enhance Northern Ireland’s voice in the operation of the framework and promote greater transparency, and not just greater public understanding but some public understanding of the framework.
On behalf of our committee, I express the hope that there will be an easing of complexity as a result of the contributions that we and the noble Lord, Lord Murphy, have made and that real-world business on the ground will find it easier to work with partners in the European Union and Great Britain. The future of the Windsor Framework’s functionality requires a new impetus, with a fresh sense of purpose wisely advocated by the noble Lord, Lord Murphy, and our report. I commend the report to the Committee.
My Lords, it is an enormous pleasure to follow my good friend, the noble Lord, Lord Carlile, and the way in which he outlined and gave the details of his report. My report and review entirely paralleled the inquiry held by the committee. Much of it is the same. I thank the members of the committee who produced that report. It was not easy. They come from different political backgrounds and have different views on the issue, but the consensus that arose from it was almost completely the same as the recommendations that I eventually made.
I thank the Government and my right honourable friend the Secretary of State for accepting every single one of my recommendations. I will come later to the practicality of that side. I thank the 100 bodies and organisations that I talked to, both in Northern Ireland and here in Great Britain, which gave me great insight into the workings of the Windsor Framework.
As the noble Lord, Lord Carlile, said, my review was triggered by the fact that there was disagreement, towards the end of 2024, on what to do about the Windsor Framework. The Assembly voted, but not on a cross-community basis. The result of that was that it automatically triggered the review that I was to undertake some months later.
That reflects, in many ways, the disastrous process that followed Brexit. I make no comment on Brexit itself. I was not in favour of it, but it is not about that; it is about the effects of Brexit on Northern Ireland, which simply were not debated enough at the time. The people who decided these things and those who debated the whole issue of Brexit underestimated the impact that it would have on Northern Ireland.
Northern Ireland voted in favour of remaining a part of the European Union, but of course, that does not work, because you go in as a member state or not. My own country, Wales, voted the other way, against my recommendations. The consequence of all this is that Governments have to find a way around this unusual situation. One bit of the island of Ireland is in the European Union and the other bit is outside. Inevitably, as a consequence of what we decided 26 years ago in the Good Friday agreement and whether we should have a hard border, this caused enormous complications.
My Lords, it is a great privilege to follow the noble Lords, Lord Murphy and Lord Carlile. I do so with some temerity; I cannot understand why I have been put so high up the list, since my expertise in these areas is probably less than almost everybody else on this Committee. But I pay tribute to the committee for producing a report that is thorough and detailed in its analysis of a labyrinthine problem. Every tree in the forest of issues has been identified and described, but the report stopped short, as the noble Lord, Lord Murphy, mentioned, of examining why this forest of problems exists and whether there is some way of removing them or finding a permanent route through the forest.
The basic reason for the impenetrable barriers that we have to get through and which prevents the people of Northern Ireland having a proper say, or even a veto, over the laws that govern them is that Northern Ireland is, effectively, a condominium. We should recognise that fact. It is governed jointly by the EU and the UK in many respects. It is a bit like the old condominium of Sudan and Egypt, which was an Anglo-Egyptian condominium, or, more recently, the New Hebrides, which was jointly controlled by a Franco-British condominium. It was such a nightmare that it was known as the pandemonium, not the condominium. I suspect that the consequences of trying jointly to govern Northern Ireland by EU law, 300 areas of law and UK law elsewhere, and a consultation between the UK and EU authorities are inevitably bound to create pandemonium. It is impossible, under that arrangement, to give voice to the local people any more than it was possible in Sudan or the New Hebrides.
That raises two issues. Is this situation permanent? If it is not, is there an alternative that would provide a much more satisfactory long-term arrangement that would allow democracy to return? I was struck when I bumped into some young people from Northern Ireland who said how insulted they felt that they were not allowed to vote for people who would determine the laws in large areas of life that affected them. We have to deal with that issue.
My Lords, it is an honour to speak in this debate and to be a member of the Northern Ireland Scrutiny Committee under the chairmanship of the noble Lord, Lord Carlile. I thank our chairman for how he outlined the contents of the report today and, more broadly, for how skilfully he guides and chairs our committee. It is no mean feat to bring so many diverse views to some form of consensus, as his predecessor the noble Lord, Lord Jay, did, on the letters and reports that we look at. They make a valuable contribution to the overall debate and I pay tribute to him, to his predecessor, and to our clerk and our excellent staff and secretariat, who are across all the details and make our life so much easier.
I come to the contents of this report. It is entitled Northern Ireland after Brexit: Strengthening Northern Ireland’s Voice in the Context of the Windsor Framework, so the first thing we need to do is look at the Windsor Framework itself: it is in that context that we have to look at all these ideas and proposals. So what does the Windsor Framework do? We need to remind ourselves about what it does. It means that foreign laws made by a foreign legislature—a foreign polity, which makes laws in its own interests—are imposed on a third country, part of the United Kingdom, which is the fifth-largest or sixth-largest economy in the world. No Member of Parliament, Member of the Legislative Assembly or citizen in Northern Ireland has any say in the development, amendment or formulation of those laws.
The noble Lord, Lord Lilley, talked about condominium status—it is a form of colonialism. For a part of the United Kingdom and its citizens to be treated in such a way in the 21st century is, quite frankly, an appalling situation, and it does not cover just trade. The 300 areas of law in Articles 2 and 5 of the protocol all deal with various aspects of trade—state aid and so on—but it goes much wider than that: our committee proposes to look at the Dillon judgment and the effects on equality, human rights law and all the rest of it. So it is much wider than just trade; it affects every aspect of society in Northern Ireland, with large swathes of our economy governed by laws not made by us and not capable of being made by us but made by the European Union.
My Lords, I will not delay the Committee in repeating what both the chairman and the noble Lord, Lord Murphy, said, with which I am in complete agreement. I thank the noble Lord, Lord Murphy, for working with us on his report. It was wonderful to have these two reports going simultaneously. I thank the clerks of the House of Lords for working with the members of the committee, because it has been great fun and hard work, of course. I thank the organisations, both non-profit and enterprise organisations and companies, that have been in touch with the committee and me to put forward their case on what they feel is the deficit for them within Northern Ireland. I thank the businesses that we had the pleasure to visit and the other ones that invited me.
The one answer that we cannot give them, as others have said, is that we need a one-stop shop. The Government, in their reply to us, have promised this. It should be now, not in 2026-27. It is needed now and it must liaise with Brussels as well. It cannot just be about Britain and Northern Ireland; it must have Brussels’ input.
At the moment, there is a big deficit of goods going to Northern Ireland. We know that there are empty shelves, problems with getting parcels and problems with deliveries. I heard from haulage organisations and the committee heard from large supermarkets and others that they cannot get the goods, fresh goods in particular, across the border in good time to be delivered. There are problems at the ports and everywhere. This is an urgent issue. I know that the Government have heard us going on and on about it, but it is up to us, and it is destroying people’s lives every day, when they cannot get what they need. These are very basic goods: parts for cars and washing machines. There are problems with combi washing machines. These are daily lives. These are not just fancy goods.
Another issue that we need to look at is that, while this is going on, we will not be able to get people to invest in Northern Ireland from other parts of Europe and the world. We desperately need good investment to come to Northern Ireland. Under the Biden Administration, we had support from Joe Kennedy III to bring jobs and employment to Northern Ireland but, under the new regime in America, that has come to a halt. I would very much like to see the Government look at that again. Northern Ireland needs not only good employment but jobs that will bring apprenticeships, and it needs companies that have long-standing agreements that will want to do that. There is a deficit of skilled workers, as we talked about earlier and many times before.
My Lords, it is a pleasure to follow the noble Baroness, Lady Goudie. As a newish member of the committee, it is with some trepidation that I rise to speak in this debate. Noble Lords will be pleased to hear that, at this early stage, I will keep my remarks relatively brief.
I commend the committee on its report. It is a shrewd analysis of the challenges faced by people and businesses in Northern Ireland, and it provides sensible solutions to help them navigate their way through the situation they now find themselves in. As others can speak with far greater insight on the report than I can, I will focus on a couple of reflections—the things that I have been most struck by since joining the committee three months ago. They are all symptomatic of the problems identified in the report.
The overriding issue, which has been mentioned, is the way in which the Windsor Framework affects so many aspects of day-to-day living. I am slightly embarrassed to say that in the present company, but the truth is that I had vastly underestimated just how pervasive it is. I suspect the same goes for the majority of the GB population. I am not talking about the high-stakes policy areas, such as CBAM or the deforestation regulations, although they are obviously significant. What has struck me is the constant drip feed of impositions that chip away at businesses and, in turn, affect consumers in terms of price, choice and availability.
For example, even in my short experience we have seen explanatory memoranda on everything from the school fruit, vegetables and milk scheme to possible labelling changes for poultry meat, unique device identifiers for spectacle frames and handling charges on parcels. The memoranda themselves are telling because some are very thorough and pay proper attention to the possible impacts, but others are cavalier as to the potential costs and burdens. If it were not for the work of the previous committee, chaired by the noble Lord, Lord Jay, the scrutiny of the current committee and its dedicated chair, the noble Lord, Lord Carlile, and the exceptional secretariat, which must get another mention, one cannot help but wonder how much worse things would be.
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We are grateful too for His Majesty’s Government’s positive response to the report—mostly, at least. We recognise the care and attention that Ministers and officials have given to our deliberations in expressing some continuing concerns. I look forward to the Minister’s contribution later in the debate. As noble Lords know, the noble Baroness has a large fan club in your Lordships’ House, and I am one of its members. I ask her not to disappoint me.
We look forward to the EU-UK reset agreement. In that context, I point out a serious matter: the relevance of our report for the formation of some important reset subjects, such as the arrangements for energy supply in Northern Ireland, and the shape and detail of the proposed sanitary and phytosanitary, or SPS, agreement—a phrase I have become used to since I began to chair the committee—which I hope will simplify border and related arrangements for agri-food products between Great Britain and Northern Ireland.
The issues we have covered and reported on concern Northern Ireland’s voice and stakeholder engagement. I hope that the report will provide important lessons for the prospective dynamic alignment between Great Britain and the EU, which the European Affairs Committee of your Lordships’ House is examining as part of a current inquiry. Our report endorsed proposals to ensure that Northern Ireland’s voice is enhanced at an early stage of every relevant part of the EU’s complex legislative process. This can be done, in particular, through greater resourcing and capability in the United Kingdom mission in Brussels, working closely with the Northern Ireland Civil Service to shape relevant European Commission proposals.
The importance of these points is that, despite the restoration of Northern Ireland’s power-sharing institutions in February 2024, witnesses to our inquiry told us that issues relating to the Windsor Framework, as currently administered, have the capacity to create instability if not handled carefully by the Government and politicians. Thus, our report seeks to improve on the current situation for the benefit of the people of Northern Ireland as a whole. The emphasis of our approach is on the experiences of real people, notwithstanding the vagaries of political life and institutions.
I am delighted by the presence in this debate of the noble Lord, Lord Murphy of Torfaen. He is an admired former Secretary of State for Northern Ireland—even better, we were Welsh MPs together—whose statutory Independent Review of the WindsorFramework was presented to Parliament last September. Unsurprisingly —I know that the noble Lord was not at all surprised—our report and his very good report, which has been accepted fully by the Government, have a great deal in common.
The noble Lord focused, as did we, on the increasingly complex governance structure of the framework. A snapshot of the effect of that structure is to be found on the organogram on pages 24 and 25 of our report—I know we are not supposed to hold up illustrations in Grand Committee, but I will—which sets out in magnificent graphic confusion the numerous locations across the EU, the UK Government, the UK Parliament, the Northern Ireland Executive, the Northern Ireland Assembly and elsewhere where the mechanisms of the Windsor Framework can be found. It illustrates the confusion, rather than accessible solutions, and we have clearly identified the need to solve the problem of accessibility.
We followed and amplified several of the findings of the noble Lord, Lord Murphy, particularly in relation to the timing and resourcing constraints under which the Northern Ireland Assembly’s Windsor Framework Democratic Scrutiny Committee, the DSC, has to work. We are delighted that in one of its many positive responses to both the noble Lord, Lord Murphy, and ourselves, the Government have undertaken to re-examine the timescales and required information under which the DSC has to work. It is difficult being a member of the DSC under current arrangements.
We are grateful to the Government for their full response, dated 6 February 2026. Many of our recommendations found favour with the Government, but not all. On the negative side, the Government told us that for stakeholders who have difficulties with European legal provisions and issues, the EUR-Lex website provides an accessible and acceptable digest of information on EU law. Those legal provisions are important, because they may affect everyday trade, particularly for SMEs trying to make their way in business. However, in taking evidence recently, since our report was published, it has become very clear that in reality it is accessible for exploration only by highly paid, black-letter lawyers and provides little assistance to businesses and social enterprises who do not wish to line the entreating pockets of my learned friends.
One very positive development is the Government’s acceptance of the recommendation of the noble Lord, Lord Murphy, of a one-stop shop for Windsor Framework-connected inquiries. This was a leading recommendation of his report. The one-stop shop, especially its triage system, uses the best available practices, including the services of artificial intelligence, and should enable businesses quickly to find the answers to real, everyday questions that are asked, but we need to know more about it. Who will run it, the Government or private enterprise? When will it start? It has been suggested that it will be created during the 2026-27 tax year, so will Northern Ireland traders have to wait another 18 months or two years before it exists in any meaningful form? Is it going to be trialled and tested by real people in real industries, so that they can show whether it works?
Whether the business concerned is selling organic eggs to Great Britain or wishes to purchase raw materials in the EU for product manufacture in a bigger supply chain, the one-stop shop and increased legal clarity will, we hope, be a beneficial outcome of the reports from the noble Lord, Lord Murphy, and ourselves. I am sorry that the noble Lord, Lord Thomas of Gresford, who is a valuable member of our committee, is unable to be with us today. He has made two valuable points, which I have told him I will pass on.
The other thing that I emphasise to your Lordships is that, in my view, if the institutions had been up and running at the time of Brexit, there would have been a much better resolution of this. I am not saying that it would have been easy, but people in Northern Ireland would have made their own decisions about their own future. One thing that I have learned over a quarter of a century of dealing with Northern Ireland business is that imposition in Northern Ireland is always disastrous and that effective solutions to problems have to come from the people in Northern Ireland through their elected representatives all the time. It did not happen. As a consequence of that, we had a protocol that, strangely and bizarrely, was denounced by the Government who created it. That was not very good. Then we had the Windsor Framework, which was undoubtedly better than that. That is what we are debating today.
One problem that I faced during my review were the very deep feelings about the constitutional impact of Brexit and the Windsor Framework. Unionists take a very different view from nationalists on the effect of the Windsor Framework on the constitutional status of Northern Ireland. That was well beyond the remit of what I was allowed to report on; I am not sure that I would have wanted to report on it, but I would have had a bash, even if I would not have got very far in the end. A fundamental problem with my review was that I could not touch those views that every unionist party or representative made to me about the constitutional impact of the Windsor Framework. I very much accept that it is an issue.
It was also made clear to me that the vote in Northern Ireland to accept the framework was not done on a cross-community basis. As a consequence, it went against the spirit of the Good Friday agreement. I am not completely convinced about that, but I am convinced that it went against the spirit of parity of esteem. Whether you are a nationalist, a unionist or neither, parity of esteem means that your views are regarded to the same extent. I am not sure—in fact I am unconvinced—that the parity of esteem principle has not been overlooked in all this. At the end of my remarks, I will come to why I think that that should be looked at again.
There were two issues from looking at the report, as the noble Lord, Lord Carlile, said. One was the democratic deficit. I will not go into the detail of the recommendations that I made, to which the noble Lord has referred, but the Democratic Scrutiny Committee did not and does not operate as well as it could. It operates under great burdens: it does not have enough time, staff or expertise. There is insufficient liaison with the Office of the Northern Ireland Executive in Brussels. Great changes can be made to make that work better. Those points were made to me by everybody, whether nationalists or unionists. The Government have accepted the principle of those recommendations, but we need to see them working in practice.
I am not sure that the Stormont brake has got anybody anywhere. It was regarded as being hugely significant. In theory it probably is, but in reality it has not proved to be the saviour of the situation that people expected. We will wait to see what happens on the Stormont brake, but it was certainly a genuine attempt to try to overcome the difficulties. But these are complex mechanisms, which an ordinary voter in Northern Ireland would find hard to deal with.
I had the pleasure of meeting the Democratic Scrutiny Committee, which wrote to me as well and indicated the difficulties that it faced. I also met the Committee for the Economy of the Northern Ireland Assembly. They were both extremely good meetings and the points made by all members from all political persuasions were very valuable.
One point that they all made was that, if you want to influence a decision on legislation, do it early; do not wait until later. It is the same here: if you want to influence legislation in this Government and Parliament, try to resolve it at an early stage. That is why it is important that the Office of the Northern Ireland Executive in Brussels is properly manned by specialists who can deal with this at that early stage and catch problems before they ever get to Belfast.
The other big issue was the enormous burden on businesses that the framework has brought—not on big ones, which have lots of money and can employ people to deal with the complexities of the bureaucracy, but on small and medium-sized businesses, which cannot do that. Interestingly, I just came back yesterday from the British-Irish Parliamentary Assembly, which was meeting in Tralee. I was talking to a nationalist MLA who was describing to me the problems that her constituents were having, including small businesses. She quoted a women’s hairdresser, who was probably going to pack up because she could not deal with the bureaucracy surrounding all this. That was interesting because the person saying this to me was from the nationalist community; I get it regularly from the unionist side of things, of course.
Probably the most significant recommendation that the committee and I have made is on the one-stop shop. The noble Lord, Lord Carlile, made the point that that is so important for Britain, as it is for businesses in Northern Ireland itself. Very often, a British business simply will not bother with the bureaucracy to send stuff to Northern Ireland to be sold. The organisation chaired by the noble Baroness, Lady Foster, InterTrade UK, will have a significant part to play in that, to try to explain those burdens to British business.
There is a definite case, for example, to have trusted trader status for the haulage industry in Northern Ireland—that is one of my recommendations, and I hope it is acted on soon. There is a case for the duty reimbursement scheme to be improved so that businesses do not have cash-flow problems. I made some other recommendations regarding Article 2, dealing with human rights.
The electronic travel area—ETA—regulations that operate on the island of Ireland are not part of my recommendations, but I touched on them in the report because of the importance that people felt they had. They are causing severe problems for the hospitality and tourist industry in Northern Ireland. Again, at the BIPA conference in Tralee this week, I asked the Irish Government Minister, and it was a matter of debate.
I will not go into any more of the details, suffice it to say that you could not put a cigarette paper between my report and the report of the committee chaired by the noble Lord, Lord Carlile. They say the same things because they are the obvious things to say. I conclude by saying just three things. First, I say to the Government that it is wonderful to have the recommendations agreed, but we now await the action on those recommendations, and the sooner the better, particularly on the one-stop shop.
Secondly, the SPS agreement is absolutely vital. The quicker that happens, the better, because my experience of these things is that Europe is not exactly quick in dealing with various negotiations, and the sooner that happens, the better.
Thirdly, all these recommendations are about making the current scheme better, making it work and helping businesses, but they do not go to the heart of the political disagreement on this. That needs to be addressed too. I am not sure how that will be done because it is not easy—but it is never easy in Northern Ireland. When we drew up the Good Friday agreement all those years ago, who would have thought we could have resolved those enormous issues? But we did eventually resolve them. So, if we can do that, perhaps we can also resolve the issues that surround the Windsor Framework because, as long as they are untouched, it will be a running sore.
In the meantime, we have to be practical and make it better for individual business, better for people and better for Northern Ireland. The sooner we have the Government’s recommendations, the better.
We all agree that there should not be a hard border in Northern Ireland. That is the basis of the present arrangement. The only body ever threatening to erect a hard border with physical facilities and carrying out checks at the border was, of course, the EU itself. The EU has a perfectly legitimate objective, which is to prevent goods that do not conform to its rules entering its territory. It has to maintain the integrity of the single market. To do that, it insisted and persuaded at the very opening of the negotiations on the withdrawal agreement that there should be no hard border. Effectively, that led to the continuation of EU law north of the border. The EU insisted that all goods produced in Northern Ireland must conform to EU rules and all those entering from GB must conform to EU rules if they go into the Republic. This is a sledgehammer to crack a nut.
I want to see whether there is a case for removing this present situation before I come to an alternative. Let us think back to the time when the withdrawal agreement was negotiated. Mrs May—now the noble Baroness, Lady May—asked to negotiate the trade arrangements that would follow on from us leaving the European Union alongside the withdrawal arrangements. She was refused by the EU, which said that it was not possible for it to do that under EU law. It could not reach a permanent agreement on trading arrangements with us until we had left, because the EU had powers to reach agreements only with independent countries—non-members. So we needed first to have left the EU before it was possible to reach any agreement with us.
The EU then went ahead and agreed the withdrawal agreement before it would start proper negotiations on the trade and co-operation agreement, but it insisted on including trading arrangements with Northern Ireland in the withdrawal agreement. Whenever I raised this and said, “Well, hang on, I thought you couldn’t reach trading agreements”, the EU said, “Oh, we can, as long as it is temporary and designed to deal with the problems that may arise if Britain leaves without a permanent trade and co-operation agreement”, or other transitional arrangements to do with us leaving. But it is intrinsically temporary. We need to remember and remind ourselves of that.
This was all discussed in the House of Commons at the time. The then Attorney-General, Geoffrey Cox, explained to the House that
“article 50 of the Treaty on European Union does not provide a legal basis in Union law for permanent future arrangements with non-member states”.
He went on to say that, if European traders felt disadvantaged by aspects of the protocol in future, they should,
“beat a path to the door of the Commission and the Court, and there to say, ‘Didn’t you say that article 50 is not a sound legal foundation for this arrangement?’ And I tell you frankly, Mr Speaker, they are likely to win”.—[Official Report, Commons, 3/12/18; cols. 547-55.]
So the Attorney-General, who rarely expresses opinions on the possible outcome of hypothetical legal cases, thought it was absolutely clear-cut that this is a temporary arrangement that cannot continue permanently.
The withdrawal agreement, which is based on Article 50 of the European Union treaties,
“does not aim at establishing a permanent future relationship between the EU and the UK”—
that was the wording in the original protocol. It was not in the second protocol, but that does not mean that it did not apply, because the second protocol was bounded by exactly the same aspects of the treaties of the European Union. So it is temporary and it must sooner or later be replaced. With what can it be replaced that will meet the legitimate objectives of the European Union to maintain the integrity of its single market, the people of Northern Ireland to have a say in their government and the United Kingdom as a whole to maintain the integrity of its own market?
It has been suggested by very distinguished people, such as a former director-general of the EU Commission, Sir Jonathan Faull, and distinguished professors of EU law at both Harvard and Madrid, Joseph Weiler and Daniel Sarmiento, that we should collectively agree mutual enforcement. We do not need to go even that far. We can have unilateral enforcement. Britain can pass a law that will prohibit the export of goods that do not meet EU laws, checks and standards from our territory to the EU.
In the normal way, that law would not be enforced at the border. Indeed, existing export controls to the rest of the world are rarely, if ever, enforced at the border, port or airport. Applications to export goods, or likewise to import goods under customs duties, are analysed electronically. If analysis or intelligence suggests that a company may be exporting or importing non-compliant goods without having obtained an export or import licence, enforcement action would normally be at the point of production or dispatch, not at the port or border. Likewise, should the UK suspect or be informed by the Irish Government that non-EU compliant goods were being or planned to be dispatched across the border, enforcement would take place at the trader’s premises in Great Britain or Northern Ireland, or in transit, not at the Northern Ireland border.
So there is a perfectly workable and enforceable system that we could introduce. We would like it to be reciprocated by similar arrangements for goods coming into Britain from the EU, but we do not need that. HMRC said repeatedly in all our debates and discussions that there were no circumstances in which it would need to carry out checks at the border to maintain the integrity of the United Kingdom internal market.
I congratulate the committee again on having looked at ways to try to ameliorate the problems that are inherent in the present situation, but let us not forget that the present situation is temporary. It legally must be replaced, and there are alternatives to replace it with that meet the legitimate expectations of the EU, as well as the needs of the people of Northern Ireland and the rest of the United Kingdom.
Our committee has wrestled with this notion of the democratic deficit, which really should be described as a democratic denial. It is the denial of democracy; it is not just a deficit. The fourth paragraph of our summary on page 4 says:
“This report examines the action that has been taken to mitigate the democratic deficit, and makes clear that what has been done so far is insufficient to resolve this fundamental issue”.
So anything that we suggest in this report can be only a mitigation of a disastrous situation that all self-respecting lawmakers should be appalled at and should seek to do something about.
What have we ended up with? We have ended up with, as has been described, this labyrinthine and opaque set of arrangements. The diagram on pages 24 and 25, which the noble Lord, Lord Carlile, referred to, shows this complex web of interlocking organisations and bodies, all set up with different purposes, rules, legal responsibilities and obligations.
Part of this is deliberate: every time a problem was raised, a committee was thrown at it. This was done in relation to horticultural movements, for example, which was raised with the Government during the talks leading up to Safeguarding the Union. It was pointed out that we cannot get seeds and certain plants moved to Northern Ireland. It is not just that it is complex; it is a complete bar. They said, “Well, we’ll set up a horticultural working group”. But what has that group done since? We cannot even know the names of some of the people on it. When I have asked the Government for the names—the Minister has replied to me on this—we are not even allowed, as legislators and people in Northern Ireland, to know who is on the committee, yet they are supposed to be coming up with ideas and solutions. It is totally ludicrous, but not just ludicrous: businesses are confused and angry—it is not just that people are bemused—at the unnecessary complexity and at the fact that the EU is insisting on full international customs border arrangements and complexities for internal trade between one part of the United Kingdom and the other. It is just not suitable or appropriate, and it is imposing great difficulties.
We heard evidence from the chamber of commerce in Northern Ireland over the last couple of weeks that this has been one of the most challenging years that it can remember. The FSB representative talked about the chilling effect on small companies and so on. This is happening now, even after the Windsor Framework, Safeguarding the Union and all these step changes that were supposed to make things better. Costs are increasing for consumers. Our committee heard evidence about the restrictions on choice for consumers in Northern Ireland. Many items available in the rest of the country are not available to consumers in Northern Ireland, for no good reason. I advise people to read the excellent recent report from the Federation of Small Businesses, which outlined a lot of these issues in detail.
We have called for the simplification and streamlining of these bodies. I think that it is important that that should be attempted, although I have to say that I have little faith that the EU side will look at this seriously, given the way that it refuses to contemplate any change in the current arrangements. Its attitude seems to be, “We’ve agreed this, everything’s fine, it’s up to the UK Government to deal with it, nothing to do with us”.
Turning to some of the specific recommendations, we heard evidence that the Northern Ireland Government cannot really influence EU legislation upstream early enough, before it is adopted, and that they are largely confined to reactive scrutiny after proposals are made. This is something that the noble Lord, Lord Murphy, addressed in his report. It would be an improvement if there were an increase in resourcing for the UK mission in Brussels, for greater engagement between the Northern Ireland Civil Service and the mission and, through that, with Brussels, but I have to caution that we have a problem, because getting a settled Northern Ireland position in the first place is often not achievable.
We had an illustration of this when our committee tried to get evidence from the First Minister and Deputy First Minister of Northern Ireland, on behalf of the Executive, about what the Northern Ireland Executive Office in Brussels was doing and what the Northern Ireland Government thought of all this. One would have thought that they would have been interested, but it was vetoed because there has to be agreement between the First Minister and the Deputy First Minister. The Deputy First Minister was quite happy to come and the First Minister vetoed it. So how are we going to get settled positions in terms of Northern Ireland’s view? That has to be factored into the equation. It is not very helpful, and it is to be regretted, that we did not hear from representatives of the Executive.
The noble Lord, Lord Murphy, mentioned proposals to improve the Assembly’s Democratic Scrutiny Committee. I think that everybody agrees that that committee is not able to do its job, lacks sufficient access to information and is struggling to gather evidence within the timescales. I support the proposals that have been suggested to reform that committee. It is something that we should return to in a few months and ask whether this has made any difference, because if the Northern Ireland Assembly scrutiny committees cannot do the job properly and it is left to Westminster, either in the other place or in your Lordships’ House, then that is unsatisfactory. Elected representatives in Northern Ireland should be able to do the job properly.
We also looked at measures such as the Stormont brake and applicability Motions, which we referenced in our report. I have to say that these measures were sold very heavily in order to get Stormont back. We were told that this would give legislators in Northern Ireland the long-awaited answer to their democratic deficit complaints, but what has happened? They have almost disappeared from the political viewpoint. Nobody mentions them any more, because when they were tried the Government knocked them back, doing serious damage to political confidence. Those who warn about instability in Northern Ireland are right to do so, because if these issues are not properly addressed, there will come a reckoning at some point. As I have said before, some people say, “We didn’t see this crisis at Stormont coming”. I think that these issues are going to contribute to future instability if not properly addressed.
For instance, on the Stormont brake, at the end of the process the Government can veto it, and they did. On the applicability Motions, they can veto the process from the start. If they say that no new regulatory border will be created, this disapplies the applicability Motion from being heard in the Assembly. The Government can veto both the major safeguards—one at the start and one at the end. That has caused real concern in Northern Ireland among those who were told that this would be a major plank in getting Stormont restored. It is a disrespectful position, as far as the Assembly is concerned.
We have always been strong on the need to set up a register of applicable EU law—an office where regulatory divergence can be highlighted and exposed. That is something that both the noble Lord, Lord Murphy, and our own committee have highlighted. The Government need to take that on board and set up a database and an office that can look at this. The one-stop shop has been an important addition to the ideas that have been brought forward. I thank the Government for their engagement on that matter. As the chairman mentioned—I am not going to go through all the issues that have already been highlighted—we need to see this up and running as quickly as possible. I am glad that the Government are taking it seriously.
I come back to the fundamental point, on which the noble Lord, Lord Murphy, ended as well. We can mitigate all we like; we can introduce tweaks here and changes there; and we can have a whack-a-mole approach, where one issue crops up and we knock it down and another one that we have not foreseen comes up and we try to deal with it. European law is dynamically aligning Northern Ireland all the time, sometimes to the detriment of our trade with Britain and sometimes not so much. Unforeseen things will happen and we will have to address the fundamental problem, which is that you cannot, in a modern democracy, expect people to live in a society where other people, in their interests, decide laws for them. Unless we wake up to that reality, we will have a real problem in the Assembly and the Northern Ireland political set-up. I hope that that does not happen, but it is incumbent on all of us who take an interest in these matters to make sure that it does not.
If we do not have that for Northern Ireland’s GDP and education, its people will not have a future. I ask that we look at that as part of the one-stop shop, by having it appendaged to it in one way or another, so that we work on bringing employment and good jobs to Northern Ireland—not just back-office jobs but much more important ones. I hope that we can look at that for the future, because we need it. We also need everybody to work together and no longer in silos. We have started having engagements, but we need more engagement, clarity and transparency. We need the bodies all working around the same table. Now that we have come to this, it has to happen.
Further, as a committee, we should not be doing the scrutiny for Northern Ireland. There has to be some infrastructure in the Northern Ireland Assembly so that it can do its own scrutiny, employing people as clerks and other staff who can help it to do so. We can do the scrutiny, of course—it is a pleasure to do so, and it is interesting—but it is wrong for us to do it, and we said that in our report. I hope that, in the long term, we will be able to support the Northern Ireland Assembly in its scrutiny. We have had joint meetings with its scrutiny committee, but it is important that that comes in the future.
I do not want to delay the Committee any more. We need clarity and more engagement. The one-stop shop, with Brussels as well, must happen now, because this cannot go on. At every meeting we have had we have been told from the outside that there is no proper way of finding out what is going on—how the legislation is working. The Cabinet Office is trying, but there are not enough civil servants and there is not enough contact between Northern Ireland, Brussels and us on these clear issues that could make Northern Ireland go further.
On that note, the £16.6 million commitment is welcome, and the increased support for businesses, but I am afraid that, like others, I am now going to mention the one-stop shop. Everyone agreed that it is essential that, as per its name, all the information is gathered in one place. However, it is not just about what information and the information itself, but about how people can access and interpret that information. Obviously, this is crucial for small businesses because they do not have the resources to employ specialists in the Windsor Framework.
As the Minister knows, I am a big fan of the new interactive public inquiries recommendations dashboard, and I applaud the Government for implementing it; we tried and tried and failed—so well done. I just want to ask the Minister this. We do not know who will set up the one-stop shop—whether it will be Cabinet Office in-house or whether it will be contracted out—but can the Minister ensure that that very same, very user-friendly, easy-to-access approach will be employed for the one-stop shop? It has now been proved that it can be done, so it can be done again.
I will very briefly repeat a point made by others about the fact that the onus seems very much to lie solely on Northern Ireland businesses when, in fact, it is equally incumbent on Great Britain to get to grips with the current trading landscape. Trade associations have repeatedly highlighted the major lack of understanding on the GB side. Will the Minister therefore also make sure, in rolling out the one-stop shop, that it is not just focused on Northern Ireland, and not even just that it is UK-wide, but that there is appropriate engagement early enough, and that takes place where it is most lacking, which is in Great Britain?
Talking of user-friendly approaches, I agree: EUR-Lex—no. The Government say that we do not need a new tool because EUR-Lex can be used to
“read and consider detailed legal texts”.
That is slightly disingenuous because it simply cannot be used to “read and consider”. If it is the Government’s view that such a database is not necessary then just say so, but if they believe that such a database is important then they need to provide one that is in an accessible form. As it stands, EUR-Lex is just no help at all to anybody.
Finally, I know that the Minister is a strong advocate for Northern Ireland, and the Government should be credited with trying to ease some of the frictions of the framework, which in turn tried to ease some of the frictions of the protocol, but this really comes back to the reality of life for the people of Northern Ireland. The truth is that there is no getting away from the fact that there are real and present dangers in the current trading environment, and there are consequences to that. Even just in my short time on the committee, the businesses and the people of Northern Ireland have shown great forbearance in the many frustrations that they face on a daily basis, but ultimately, they have an absolute right to be on an equal footing. This report, as the noble Lord, Lord Dodds, says, does not fix everything but it helps to mitigate that inequity. I therefore hope that the Government will perhaps just give further consideration to some of the very good recommendations in the report.
Northern Ireland After Brexit (Northern… · Order Paper · Order Paper