That this House regrets that (1) the Windsor Framework (Retail Movement Scheme) Regulations 2023, and (2) the Windsor Framework (Plant Health) Regulations 2023, have been introduced under a truncated timetable and with no public consultation despite their constitutional and political significance in facilitating the application of EU laws to the United Kingdom; fail to secure unfettered trade between Great Britain and Northern Ireland; cause trade diversion; and are contrary to the objectives of the Northern Ireland Protocol listed in Article 1(2).
Relevant document: 51st Report from the Secondary Legislation Scrutiny Committee
My Lords, in moving this Motion, I want to ensure that Parliament has an opportunity to debate and scrutinise measures that have profound political and constitutional ramifications for the union. Otherwise, the Government would have pushed these measures through without any debate.
The Secondary Legislation Scrutiny Committee, in its 51st Report, expressed concern about the lack of an impact assessment or, as it put it, “even basic information”, saying that
“it undermines Parliament’s ability to scrutinise the legislation effectively”.
It regretted that the retail movement scheme came into force during the recess, denying Parliament the opportunity to form a view before it was launched—something of a recurring theme when it comes to these Windsor Framework SIs. It also expressed concern about the truncated timetable. On the lack of consultation, it again criticised the Government for failing to consult formally on the details. Given the import of these regulations and their impact across the board on everyone in Northern Ireland, it beggars belief that the Government have not undertaken a formal consultation on the contents of these SIs and others.
The protocol/Windsor Framework has already led to the inevitable consequence of the collapse of the Assembly and other institutions, given that it breaches the Belfast agreement as amended by the St Andrews agreement. It is the greatest irony that proponents of the protocol claim to be great protectors of the 1998 agreement, yet they support measures which drive a coach and horses through that agreement. Indeed, rigorous implementors of the protocol in other Northern Ireland political parties—the SDLP, Sinn Féin and the Alliance Party—all penned a letter calling for its “rigorous implementation”. They did not see anything wrong with its flaws, slavishly following the line of the EU. Yet now everyone—including them, it seems—agrees with us that change is necessary.
6:15 pm
The fact of the matter is that, in threatening violence and civil disobedience, republicans, nationalists and indeed the Irish Government—who can forget the scenes of Leo Varadkar waving about photos of bombed customs posts—have essentially got their way: a nationalist solution to the Brexit issue. The Windsor Framework also trashed strand 1 by removing the cross-community consent mechanism uniquely for the 2024 vote on its applicability.
You cannot expect unionists to operate a regime that ruptures the union. We are told to expect the Government’s response in the coming days, and we are told to expect legislation. Such legislation must rectify the current arrangements in all dimensions. It must be effectual and instigate real change. It must not merely be declaratory or simply address problems in areas that do not go to the core of our current difficulties with trade from Great Britain to Northern Ireland, nor our subservient position under foreign jurisdiction. It must restore our constitutional and economic rights as equal citizens of the United Kingdom. The Government know what they need to do. If they seriously believe in devolution, if they seriously believe in the agreements that they have entered into previously, and if they seriously value the union, as we told they do, then they will legislate for the necessary change—real, effectual change. It is really up to the Government as to what happens next.
My Lords, I first congratulate my noble friend Lord Dodds of Duncairn, who has set the whole thing out very succinctly, and I hope that the Minister has been listening. When these regulations were published, we immediately saw that they were of huge political importance, not least because they give effect to EU Regulation 2023/1231, which seeks to govern what happens within the United Kingdom— the movement of goods within a country that is not a member state. Specifically, the regulations govern what happens to goods leaving one part of the United Kingdom, namely Great Britain, and entering another part of the United Kingdom, namely Northern Ireland, with the purpose of giving effect to an international customs and SPS border, splitting our country in two. This statute is without precedent, as far as I am aware, anywhere in the world and constitutes the ultimate humiliation of the United Kingdom. It not only blatantly disrespects the territorial integrity of the United Kingdom and the essential state functions of the United Kingdom, but it also actively seeks to undermine them.
The EU regulation does not remove any sense of border in the Irish Sea, which is what we were told by the Prime Minister would be secured by Windsor. Rather, it affirms the presence of the border and offers two different border experiences. The removal of the border is not contemplated at any point. Both border experiences are the same in the sense that they both require those wishing to trade to have an export number, to fill in customs and SPS documents and to be subject to 100% documentary checks and at least 5% to 10% identity checks and some physical checks at border control posts. The real presenting distinction is not between one border experience and the other, but rather between these border experiences compared with movements within an internal market, as in GB, France, Japan, Australia et cetera, which, by definition, involves no customs or SPS fettering and thus no border experience at all.
Given what my noble friends Lord Morrow and Lord Dodds have said about the lack of border posts—it will be two years down the line before they are actually put in place—and what my noble friend Lord Morrow said about the lack of capacity for any level of enforcement at the moment, does it not therefore beggar belief that a government Minister said this week that we now have a smooth flow of goods, and that that is the yardstick against which this is based, two years away from any implementation?
I thank my noble friend Lord Weir for making that point. I think the Government are now on a mission to try to convince not only themselves but the watching public that all is well. Let me state quite categorically in your Lordships’ House today that all is not well, and it is not going to get better until the Government grasp the situation. We can turn our heads and look the other way, and let on that we do not see or understand, but one day we will understand and, by then, a lot of damage will unfortunately have been done.
6:30 pm
The key point is that it will not be possible to know what it is like until 2025. We pointed out that the regulations began promoting trade diversion even before becoming law. Businesses knew they were coming and knew they had to prepare. Prior to 1 October, businesses moved goods on the basis of the STAMNI scheme, which had been introduced to prevent the collapse of supply chains in 2021. It barely paid lip service to the idea that there was a border, so the two sets of borders on offer in the EU Regulation 1231/2023 are much more disruptive than previously. Businesses could see that even though the alternative border, the so-called green lane, was less demanding than the red lane, it was much more demanding than STAMNI. Between February 2023 and October 2023, we witnessed very significant trade diversion as businesses sought to redirect much of their product into Northern Ireland through the Republic in order to avoid the border.
My colleague made the point about diversion. There was a promise at that time that if there was diversion, the matter would be looked at and taken into account. Let me be very clear: if you have an all-Ireland economy, de facto you have an all Ireland. That is what this will one day bring about. As those who come from Northern Ireland, we would be remiss not to make that point clearly. We pointed out that this was a very serious state of affairs, because Article 16 of the Windsor Framework, in setting out the grounds for derogation from the treaty, makes it clear that trade diversion is inimical to the purpose of the treaty, such that if any provisions within it cause trade diversion, that provides grounds for derogation.
The article says:
If the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade, the Union or the United Kingdom may unilaterally take appropriate safeguard measures. Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. Priority shall be given to such measures as will least disturb the functioning of this Protocol.”
The interesting thing about the form of words employed here is that the diversion of trade is recognised to be such a serious matter that even if it does not lead to
“serious economic, societal or environmental difficulties that are liable to persist”,
Article 16 can still be triggered just because it results in a diversion of trade. That is not at all surprising because trade flows that are definitive of a single market are definitive of the economic nationality that underpins the modern nation state—and are, as such, of an entirely different constitutional effect to trade flows between economies—which could not be cut away without shaking the very foundations of the polity in question. Again, not surprisingly, the Government said nothing. Then we raised other matters.
20 of 45 shown
Make no mistake: the regulations before the House this evening, along with others, establish a regulatory and customs border in the Irish Sea, with Northern Ireland subject to EU jurisdiction in over 300 areas fundamental to our economy. They give effect to EU regulation 2023/1231. This is EU law which now governs internal UK trade. The EU now has the final say over the law on internal trade within the United Kingdom, and if, at some point in the future, it decides to change it, it can.
Contrary to the facts, we are told that this so-called green lane removes the Irish Sea border. In fact, these regulations require traders, trading within the United Kingdom, to have an export number, become a trusted trader, complete customs and SPS paperwork, go through a border control post and be subject to 10% identity checks on goods that are moved—and that is only for the so-called green lane. It is, in fact, a slightly less red lane. It is certainly not the unfettered access promised by the Prime Minister because, if it were, there would be no need for any of this.
Of course, it is not just the extra costs of all of this for business, which will be passed on to consumers in Northern Ireland; we also have the costs to the taxpayer through the trader support service and other schemes set up to implement the Irish Sea border. Can the Minister furnish us with the figures—the costs of all those schemes? Are they intended to be permanent or are they going to be phased out?
The new arrangements have also caused trade diversion, which was supposed to be one of the reasons to implement Article 16 of the protocol in the first place. Although designed primarily to benefit big retailers, the new arrangements have already led to one announcing that it was restructuring its supply chains to move as much as possible of what previously came from Great Britain to Northern Ireland, so that after 1 October it comes from Irish Republic. If anyone is any doubt about the effects of the Windsor Framework, I refer them to the report of the Protocol on Ireland/Northern Ireland Sub-Committee of your Lordships’ House on the Windsor Framework. It concluded that the Windsor Framework rendered the situation worse in many areas compared with what has been experienced in reality, on the ground, up to now.
The original protocol was unworkable and could not be implemented without doing major damage to Northern Ireland’s economy. That led to grace periods and easements. Now these grace periods and easements are done away with, to be replaced with the more burdensome provisions of the Windsor Framework. Those are the conclusions of the sub-committee. Despite all of this, however, we have been told, “Don’t worry— 1 October has come and the sky hasn’t fallen in”. Of course, that ignores the restructuring of supply chains to try to shift as much as possible of what previously came from Great Britain to Northern Ireland, as I have already referred to.
However, clearly worried about how things would look if fully implemented on day 1, the Government have, in fact, in the regulations before us, introduced quite an extraordinary measure to camouflage the reality of what will happen when red/green lanes are fully implemented. That measure is in Regulation 11(2). It is extraordinary because it mixes considerations that pertain to risk, such as risk of disease and so on, with other considerations that have nothing to do with risk but instead pertain to the capacity to carry out checks—to the number of staff there may be and the structures that will be built or not built. Checks can therefore be reduced or eliminated according to the capacity to carry them out. That is important because there is no capacity to carry out such checks at the moment in Larne, Warrenpoint and Foyle. The only new border control post capacity that has been built is in Belfast. Things will not come to a head, in fact, until 2025, when the new border control posts will have been built.
The Government are easing things in, making sure that the real effects are not felt immediately. Once we get to 2025—if not before, when conducting the risk assessment—the competent authorities will be able to say that they have the capacity to conduct fully all the checks. Then we will start to see the real consequences of the sea border. That of course leaves aside the fact that a lot of companies whose goods will end up staying in Northern Ireland—so intra-UK trade—will have to use the red lanes, which are subject to the entire panoply of EU external border customs controls.
These regulations do not do what the Government claim they do. They are in fact another piece of the Irish Sea border superstructure under the Windsor Framework protocol. As such, it is contrary to Northern Ireland’s constitutional position, as demonstrated through the courts, where, in relation to a key building block of statehood—internal trade—the Act of Union has, according to the courts, been set aside. The creation of a customs border—with Great Britain now designated, in law, as a third country vis-à-vis Northern Ireland—as well as regulatory borders are inconsistent with Northern Ireland’s place as a full, legal and economic part of the United Kingdom.
As Jeffrey Donaldson said at our party conference at the weekend,
“the imposition of a customs border on goods moving between Great Britain and Northern Ireland and remaining within the UK Internal market, was unnecessary and unacceptable in 2019. It was unnecessary and unacceptable in 2021 and … it is unnecessary and unacceptable now”.
It will have to go. These measures are contrary, ironically, even to the stated objective of the protocol itself, which states in Article 1(2) that
“This Protocol respects the essential State functions and territorial integrity of the United Kingdom”.
The courts have ruled that it does not. The framework is contrary to democratic norms, since we are now subject to EU law in 300 areas without ever having had a say or vote in the matter. Such a denial of sovereignty and democracy is a blot and stain of shame on the entire United Kingdom. This taxation without representation is something that many so-called Brexiteers will regret in the years to come, as others take advantage of the need to move the whole of the United Kingdom closer to the European Union. It is, of course, also contrary to the New Decade, New Approach agreement of January 2020, which established that the Government would fully restore Northern Ireland’s place in the internal market of the United Kingdom.
There is a lot of talk about the political process and the time that it has taken to deal with these matters in Northern Ireland. Let me remind your Lordships’ House that unionists have been urging progress for change for years. Let us remember the moment when the EU started to instigate Article 16 because it did not want the vaccines for Northern Ireland to come over the border from the Irish Republic. That was January and February 2021. We have waited patiently for successive Governments to deliver on the promises and pledges that they made—including the current Prime Minister. We summarised those pledges in our seven tests, which are in fact merely iterations of these prime ministerial commitments. When there is little or no political engagement at the proper level, and it is instead left primarily to civil servants and advisers to carry the load, it is little wonder that there is so little progress. If the institutions are to be restored, then let us restore the agreements that established them and let them operate as they were set up to do. They cannot operate if there is no radical, meaningful change to the Windsor Framework/protocol.
The Assembly has been changed into a different model, where large swathes of powers are no longer under its or Westminster’s control—not under the control of anyone who represents Northern Ireland either in the Assembly or in Parliament. Instead, those powers have been handed over to a foreign political entity, acting in its interests, and which is designed eventually to bring about an all-Ireland economy. No one can reasonably argue that unionists should simply shrug their shoulders and say, “Well, never mind, we’ll just move on”. Republicans would not do that; indeed, they demonstrated that when they said that there could not even be an extra camera on the Irish land border. No one can reasonably argue that unionists should just ignore the setting aside of the Belfast agreement, as amended by the St Andrews agreement. The Windsor Framework and the protocol tear up the principle of consent and trash the east-west relationship —strand 3—elevating and giving priority instead to the strand 2 relationship, the north-south dimension.
The retail movement and plant health regulations both provide a means of accessing one of the border experiences provided by EU Regulation 2023/1231, which is less disruptive than the default border experience which the EU reserves the right to impose through Article 14. We pointed out in our submission that, contrary to government statements that the Windsor Framework provided unfettered access to and from Northern Ireland within the United Kingdom internal market, these regulations affirm an arrangement that actually accepts an ongoing border in the Irish Sea and the fact that Northern Ireland has not been reconnected with the UK internal market.
Our submission to the Secondary Legislation Scrutiny Committee was published by the committee in full and the Government issued a response, which was also published by the committee. I would like to look at the Government’s response. The first thing to say is that they do not actually disagree with our analysis, although they seek to give the term “internal market” a new meaning. On EU Regulation 1231/2023, they state:
“This regulation sets out specific rules relating to the entry into NI from other parts of the United Kingdom of certain consignments of retail goods, plants for planting, seed potatoes, machinery and certain vehicles operated for agricultural or forestry purposes, as well as non-commercial movements of certain pet animals into NI”.
There you have it: the Government accept a border, in that the EU makes rules for Northern Ireland that do not apply to GB, such that a border must rest between them, where one set of rules ends and another set of rules starts.
The Government then say:
“The SPS Regulation also disapplies more than 60 provisions of EU law in respect of retail agri-food goods moving into NI under the Scheme, with UK standards to apply in their place, ensuring that the same products available on the shelves in Great Britain can be sold in Northern Ireland”.
That applies to those who access the alternative, less disruptive border arrangement, but critically the Government do not claim that all EU legal requirements, and thus the border, are removed. EU rules continue to apply, and thus the border continues to apply.
The Government then say:
“The Windsor Framework achieves a longstanding UK Government objective to provide for an effective set of trading arrangements for goods remaining within the United Kingdom, as part of supporting the UK internal market. Through its arrangements, it supports the smooth flow of trade within the UK internal market, freeing movements of unnecessary paperwork, checks and complex certification requirements. Instead, the Northern Ireland Retail Movement Scheme will enable consignments to move using a single remotely approved digital certificate, rather than individual certification at product level with inspections required for each certificate under the original Northern Ireland Protocol”.
Again, while this sounds positive, it does not actually call into question anything that we have said, beyond its misapplication of the term “internal market”.
Yes, the regulations before us today seek to access the alternative and less disruptive border experience that will make trade smoother than will be the case for goods being traded in the so-called red lane, but they still involve our looking at goods moving across a customs and SPS border and not the removal of the border and reintegration of Northern Ireland in the UK internal market. In that sense, while the Government talk about promoting “the smooth flow” of goods within the internal market, they are deploying the term “internal market” in a way that destroys the concept of an internal market.
Terms have meanings, and any attempt to drag an established term with an established meaning into a new context in the hope that the general public will not realise that what we are actually looking at no longer is an internal market in any credible sense but something entirely different must be rejected. An internal market is a market that involves the free movement of goods without the fettering of a customs or SPS border with border control posts. These regulations are not part of an attempt to promote smooth trade within the UK internal market; they are about trying to promote smoother trade between Great Britain and Northern Ireland now that they are no longer part of the same internal market for goods. We can pretend that the UK internal market for goods still exists, but it does not. It urgently needs to be recreated, with the restoration of Article 6 of the Act of Union.
Our point to the Secondary Legislation Scrutiny Committee and to this House is that these regulations are of immense political and constitutional importance, because they affirm the splitting of our country into two, and the Government’s response does not question that. Once one allows for the verbal gymnastics involved in the Government’s redesignation of the term “internal market”, and looks past this terminological sleight of hand to the reality that they actually describe, it is plain that all that is on offer is an alternative border experience that makes the border less economically disruptive than would otherwise be the case.
We made a number of points that the Government did not respond to, presumably because they were not in a position to contradict us. First, we pointed out that at the heart of EU Regulation 1231/2023 is Article 14, in which the EU asserts the right to withdraw the alternative border experience, leaving us with just the most disruptive border experience. Moreover, in understanding this we must remember that it has never offered an alternative border experience for all goods, such that they already insist that a significant proportion of products is already subject to the most disruptive border experience.
In this regard two points must be understood. At the moment, the EU is in no position to use its Article 14 rights, because the border control posts that effectively divide the country into two will not be completed until the end of 2025—my noble friend Lord Dodds has already made reference to that. Moreover, it is also really important to understand that, although the red lane is currently supposedly being operated, there is very limited capacity to enforce it because the border control posts are not properly in place. It is currently the worst kept secret that border enforcement has had to be suspended in relation to triangular trade.
In seeking to assess the disruptive implications of the border at the moment, we also need to call out Regulation 11 in the retail movement scheme regulations. Regulation 11 is an extraordinary provision. It asks officials to conduct a risk assessment, prior to conducting checks at the border, that in addition to asking questions about risk also asks questions that, far from being concerned with avoiding risk, provide grounds for ignoring it. Specifically, in making a judgment about whether there is a risk, the regulations ask officials to ask whether they have the capacity to conduct checks to confirm their suspicions. The plain implication is that, even if officials believe that there is a risk, they can ignore it if they do not have capacity to deal with it. This has presumably been inserted to give people the impression that, from 1 October, the Windsor Framework is far less disruptive than is actually the case, something the Government plans that we should not experience until July 2025—it will be too late then —when the border control posts are completed. I suspect that they then intend to move an SI amending Regulation 11, which I am sure will greatly relieve the EU.