Official Controls (Northern Ireland) Regulations 2023

Motion to Annul

Moved by

That an Humble Address be presented to His Majesty praying that the Official Controls (Northern Ireland) Regulations 2023 (SI 2023/17), made on 11 January and laid before the House on 12 January, be annulled because (1) they are injurious to the integrity of the United Kingdom’s Internal Market given that the Protocol on Ireland/Northern Ireland has not been replaced by new arrangements, (2) they thereby violate the New Decade, New Approach agreement, by giving effect to a customs and sanitary and phytosanitary border that divides the UK and treats Northern Ireland like a foreign country, (3) they seek to protect the integrity of a legal regime resulting from the imposition of laws in 300 different areas by a polity of which Northern Ireland is not a part and in which it has no representation, (4) they protect the integrity of a legal regime that undermines the 1998 Belfast Agreement, as amended by the St Andrews Agreement, which affords the people of Northern Ireland the right “to pursue democratically national and political aspirations”, given that the people of Northern Ireland can no longer stand for election to pursue democratically national and political aspirations in relation to the said 300 areas of law.

My Lords, I am glad to be able to rise, eventually, tonight to move the Motion standing in my name on the Order Paper. I want to place on record my gratitude to the Minister for the discussions that we have had about these regulations, and for the time he has given to me to discuss these matters and his availability. They may appear to be technical in nature but they have enormous political and constitutional ramifications. This is an extremely important matter, and I know the Minister is aware of the sensitivities around all this. That may be one of the reasons why the regulations are being brought forward only now.

I have tabled this Motion in order to ensure that we have a debate and to have some scrutiny on the significant development of the Irish Sea border. This arises under the provisions of the European Union (Withdrawal) Act 2018 and the Northern Ireland protocol. It would be fairly strange indeed if such a measure were to pass without debate either in your Lordships’ House or in the other place. Given the time that has now elapsed since the tabling of the SI, I am not sure it will be debated in the other place at all, and so this the only opportunity to raise these matters in Parliament—and it is a matter of extreme importance.

The regulations allow the Secretary of State to do anything he or she

“considers appropriate … in connection with the construction of facilities”

in relation to official border control posts, despite this being a devolved matter. It is another example, in the long line of examples that we have had recently of the Government intervening in the devolved settlement when it suits them. There are many other matters, as your Lordships will realise, that are of importance in Northern Ireland on which, even when there is an agreed position among political parties, the Government will say that they are not going to intervene because it is a devolved matter—even with the Assembly not sitting. However, on other occasions they decide to step in. It is hardly an argument for the necessity of restoring the Assembly, I have to say. It would appear that, even if the Executive were to be restored, the powers taken by the Secretary of State would remain, so there would be a co-authority: the power of the Minister in Northern Ireland and the power of the Secretary of State. I would be grateful if the Minister could clarify whether, in the circumstances of the Assembly’s restoration and the Executive’s reformation, the powers would revert to the Northern Ireland Executive alone.

The construction of border control posts at each of our ports in Northern Ireland is being done because the controls cover not just goods being moved from Great Britain into the EU via the Irish Republic, as some of the spin would suggest and as the Prime Minister laboured in his remarks on Monday; they are being constructed because companies wishing to trade with Northern Ireland from Great Britain must still fulfil European Union requirements, including a level of checks. Great Britain is still treated as a third country as far as Northern Ireland is concerned under the new arrangements, and the Irish Sea border has not been removed.

The impression from the new deal is that it creates a situation with green lanes and red lanes, and that the red lanes are solely for goods going to the Republic of Ireland. But when you study the detail, it is clear that not only goods going to the Republic of Ireland will be subject to border control checks. Businesspeople have pointed out to me that of course we live in a free market economy, and, in this context, it is not possible to know what will happen to goods after one transaction in a single market: they may remain in the single market; they may be sold to someone outside Northern Ireland. Hauliers say that, often, around 80% of the goods they carry from Great Britain to Northern Ireland will stay in Northern Ireland, but 20% will end up in the Republic. In many cases, they have no way of knowing; this means that they are not eligible for the trusted trader scheme to use the so-called green channel, and that they will be subject to full red-lane checks, as if trading with a foreign country. That is why, contrary to what the Prime Minister told us, the border remains in place for taking goods to Northern Ireland that end up staying in Northern Ireland.

Moreover, the European Union questions and answers on the framework document make it clear that, if the EU does believe that the trusted trader scheme meets its expectations, it can revert to insisting on full border checks for everything, as if trading with a foreign country, thereby removing the green lane altogether. The new deal keeps the reality of the Irish Sea border completely in place. It will mitigate its effect—not remove it—through a reduction in bureaucracy, but only for companies which can declare for certain that none of their goods will go over the border. So border control posts are necessary, not just for goods destined for the Irish Republic but for all goods where there is any uncertainty about their end destination, such where one cannot be absolutely sure they will not end up in the Republic. That is not free trade within the United Kingdom.

Let us look at the green lane now being suggested. The European Union questions and answers on the Windsor Framework are very clear that green-lane goods are still subject to customs. That clearly demonstrates the ongoing reality of the border down the Irish Sea. The document says:

“Goods moved by trusted traders in Northern Ireland will be subject to dramatically simplified”—

but still existing—

“customs declarations … including a … number of data (21 data elements instead of more than 80 data elements normally required for a standard customs declaration).”

The paperwork may be simplified, but it is still customs paperwork; it still entails costs and declarations that we are leaving one jurisdiction for another—and this is for trade within the United Kingdom. There is no customs paperwork for moving goods between Wales, Scotland or England, because there is no customs border between Wales, Scotland or England. There was no customs paperwork for moving goods between Wales, England Scotland and Northern Ireland before 1 January 2021.

Moreover, if you qualify for the trusted trader scheme and are green-laned, you are still potentially subject to checks. Again, the European Union questions and answers on this matter, which are far more informative than anything the UK Government have published thus far, state:

“From 1 October 2023, the … rate of identity checks will be … 10% of all consignments of retail goods.”

That includes goods moving in the green lane from one part of the United Kingdom to another. So it is very clear that the purpose of the border control posts is not just to provide red-lane checks for goods moving to the Republic of Ireland but to cement the reality of a customs border between Great Britain and Northern Ireland, so that trading with Northern Ireland becomes more like trading with a foreign country.

If you are green-laned, you will still be subject to customs paperwork and checks. If you cannot be green-laned because some of your goods might go to the Republic, then you will be red-laned. If the EU loses faith in the trusted trader scheme, you will be red-laned. It is the European Union, not the Northern Ireland Assembly or the UK Parliament, that decides. The impact of these border controls will not be to give effect, primarily, to a border control for the Northern Ireland-Irish Republic border at a distance; it will also be to give effect to a border between Great Britain and Northern Ireland for trade. The undergirding reality here is the endurance of an Irish Sea border, and the border control posts mandated by these regulations are necessary to give effect to it: that is why we oppose these regulations.