Windsor Framework (Retail Movement Scheme) Regulations 2023 - Motion to Regret

– in the House of Lords at 6:03 pm on 18 October 2023.

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Lord Dodds of Duncairn:

Moved by Lord Dodds of Duncairn

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

Photo of Lord Dodds of Duncairn Lord Dodds of Duncairn DUP

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.

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 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.

Photo of Lord Morrow Lord Morrow DUP 6:15, 18 October 2023

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.

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.

Photo of Lord Weir of Ballyholme Lord Weir of Ballyholme DUP

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?

Photo of Lord Morrow Lord Morrow DUP

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.

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.

It behoves the Government to take a look around and see exactly what is going on. The days of spin are over. The moment is now upon us: we need action on this. Do the Government place greater emphasis on placating a Europe that can be sometimes hostile and belligerent, rather than having the restoration of a Northern Ireland Assembly and an Executive? I hope that they do not repeat what happened in 1972.

Photo of Baroness Hoey Baroness Hoey Non-affiliated 6:30, 18 October 2023

I genuinely congratulate the noble Lord, Lord Dodds of Duncairn, on putting down this regret Motion and giving us the opportunity to discuss something that, as he said, needs more discussion. I thought the submission from the Democratic Unionist Party to the Secondary Legislation Scrutiny Committee was well worth a read. I hope that noble Lords who are here, and the very many who are not and never seem to come for anything to do with Northern Ireland, have read it. It is a clear indictment of what is wrong with the Windsor Framework.

Three times the Secondary Legislation Scrutiny Committee said it notes that these submissions reflect the views of the DUP and that no other submissions were received—as if somehow that implied that this was not very important. The regulations were laid during the summer. Some of us, even in this place, who have been in Parliament for a very long time find it quite difficult to know exactly when SIs are laid, how they are put forward and when things have to be in by. How does anyone expect the average small business, small shop or trader in Northern Ireland to understand what is going on in the way we need to in this place to get that scrutiny? I hope members of the committee did not mean to suggest in a derogatory way that, because there were not many submissions on these regulations, they are not important.

Both noble Lords have gone into great detail about how the regulations will work. It is very clear, the more we see what is happening with the Windsor Framework, that it has not been any kind of genuine reset or change to the protocol. It has been spun and spun as if it is something remarkable. I do not want again to go over when the Prime Minister came to Northern Ireland to tell us how wonderful this was. We are now seeing that detail, which was never looked at by many in the press lobby, who lapped up what the Prime Minister said to spin it to people in Northern Ireland that it would be brilliant. There has been criticism of Conservative and Labour Members of Parliament—but particularly Conservative and Unionist, who I would have thought would have more sense than to be taken in by a bland statement about how wonderful it would be. Many of those Members of Parliament said to move on to something different because they were fed up with it. That is not going to happen, and as the noble Lords have said, the deal is unworkable. It may not seem it at the moment, because of all that has been said about it being very early days and the structures not being in place. There is a feeling that we must be as careful as possible not to be too diligent because it should look like it is working normally, and that trade is moving back and forth just as if there had never been an Irish sea border.

Anyone reading the detail of these regulations can see clearly that the green lane is not a green lane. It is nonsensical to say that it is. It does not give unfettered access: that term is used, in my view—and, I hope, that of noble Lords—for free movement within a single market, which automatically would not have to face customs, SPS borders or border control posts.

The alternative arrangements made by the Windsor Framework are simply an alternative form of border arrangements. They do not remove, as the Prime Minister said they would, any sense of a border in the Irish Sea. This deals just with trade issues, not things such as people going as foot passengers to Cairnryan, as I mentioned in Committee the other week, and being told to get there early to go through border control. It is unbelievable that that can be said to people moving within their own country and that any Government would allow this to happen. It is extraordinary that this so-called Conservative and Unionist Government have allowed it.

As has been referred to, the very important European Union document from which all of this comes is EU regulation 2023/1231 of the Council of 14 June 2023 on

“specific rules relating to the entry into Northern Ireland 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 Northern Ireland”.

Do not get me started on pets. I know that they are not the subject of this SI, but in the detail of this many-paged regulation, under article 12 there are three pages on what you will have to do to take your pet with you from London when visiting family in Northern Ireland. Yet the Prime Minister said there would be no problem—pets would be moved without you having to do a single thing. It is outrageous. It has not come into effect yet and, presumably, we will get a detailed SI on it, but I warn every pet owner in Northern Ireland that, if they think this is sorted, they are very mistaken.

The section of this document—which refers to all the issues we are discussing today—that is so shocking, as has been referred to already, is article 14. It will allow the European Union when it suits it, when the time is right and it wants something else to have a go at the United Kingdom for, to stop the green lane completely. It can say that, if we are not doing it properly—and it can always find some reason to say that it is not being done properly—it will stop the green lane.

We have left the EU—supposedly. Northern Ireland has not, as we know, although people had the same ballot paper, as I keep reminding people. It did not say: “If you vote to leave, you’re not actually going to leave. Only a little bit will leave, and the rest of you will stay within the EU”. This document shamelessly pertains to the Government not just of Northern Ireland but of the United Kingdom, to divide us into two. It is very different from all the other rules that apply to Northern Ireland, which apply to the EU as a whole and to Northern Ireland because it is part of the EU in that respect. However, this regulation applies just to the UK. Not only does it divide it in two, but it is far more humiliating than anything we were subject to as a member of the European Union because we have not made it.

Let us be honest. The European Union is still in charge of a substantial part of the United Kingdom and still governs Northern Ireland in many ways, this time without any involvement from us. I will not even mention the Stormont brake because it is not really relevant today, but it is complete and utter nonsense. Everyone knows that it is, but no one in the Government wants to admit it.

I could go on for a long time, but I expect that most noble Lords know the real situation. This will go down in history as one of the greatest insults of a British Government to the British people. I completely support devolution not coming back to Northern Ireland until this is sorted. Why should any Member of the Assembly even attempt to work this, as they would have to do if they were back in the Assembly? If the United Kingdom Government care enough about Northern Ireland and want devolution, they must accept that they need to go back to the European Union and take back control of Northern Ireland because Northern Ireland has been taken away from the United Kingdom. That will not lead to devolution or a solution to the issues in Northern Ireland.

I hope that the Minister, who has been put in a difficult situation, will be able to respond to some of the details. Can he answer a simple question based on something that happened to me last week? I ordered some bulbs from a company advertised in the Daily Telegraph or the Sunday Telegraph. It took my money, which went through instantly, and I was told that I would receive them in a few days’ time. Three days later, the money was back in my account and I had a little note saying, “Sorry, we don’t send to Northern Ireland any more”. That is happening over and again. It is a divergence of trade. Article 16, as was mentioned, should have been brought in months ago. This is a disgrace. Even if he cannot respond in any other way than his brief, I hope the Minister realises deep down that this is outrageous.

Photo of Baroness Lawlor Baroness Lawlor Conservative 6:45, 18 October 2023

My Lords, I support the noble Lord, Lord Dodds, and I am very pleased that he has raised his concerns about these regulations on retail and plant safety made under the Windsor Framework. I share those concerns on two main grounds.

First, there is the impact on trade, about which noble Lords have spoken. I draw your Lordships’ attention again to the report of the European Affairs Committee’s sub-committee on the Windsor Framework in respect of plant trade. It pointed out that plants such as prunus, hazel and hawthorn are on the prohibited list. As noble Lords know, these are vital to the hedgerows and ecosystems of both islands. We ought to look at the problem of trade as a whole.

My second concern is about who can send or receive these items. To the best of my knowledge, unless you are a registered provider you cannot use the green lane. This will eliminate internet providers, many of which are small businesses that rely on internet trade. It will undermine such providers’ competitiveness. Needless to say, I am also concerned about the impact of these regulations on producers in Northern Ireland, who will suffer a competitive disadvantage vis-à-vis the Dublin Government’s arrangements with the EU.

Finally, the constitutional status of Northern Ireland should prompt His Majesty’s Government to rethink the whole premise of the Windsor Framework. I understand that it is an easement, but it should be seen as an easement in some respects for certain areas of trade and certain traders. It should not be seen as an end in itself until the whole arrangement respects the constitutional status of Northern Ireland under both the Good Friday/Belfast agreement and the protocol. The noble Lord, Lord Dodds, referred to Article 1(2), but the whole protocol respects the constitutional status of Northern Ireland. We are undermining that by giving our consent to regulations that do not accept the premise of the Good Friday/Belfast agreement or even the Northern Ireland protocol.

Photo of Lord McCrea of Magherafelt and Cookstown Lord McCrea of Magherafelt and Cookstown DUP

My Lords, at paragraph 7.10 the Explanatory Memorandum says:

The Windsor Framework establishes a new, sustainable and durable framework for GB-NI trade … This instrument is required in order to implement the Framework”.

In coming to consider the regulations before us, it is possible to assess whether they are worth while only if noble Lords first ask what their purpose is? As other noble Lords have mentioned, both instruments relate to EU Regulation 2023/1231, whose object is to affirm and effect two different border arrangements, one of which is less destructive than the other. As such, the regulations are not about removing any sense of border in the Irish Sea, as the Prime Minister suggested, but rather they are concerned with providing two different border experiences. Notwithstanding their differences, they are both united in upholding a border that can be negotiated only with an export number, customs and SPS paperwork—the extent of which, as my colleagues have said, varies depending on which set of border arrangements you use—at least 100% documentary checks, 5% to 10% identity checks and some physical checks at border control posts. This plainly does not give effect to the reintegration of Northern Ireland into the UK single market but, rather, puts in place mechanisms to process the challenges arising from the fact that, rather than Northern Ireland being integrated and enjoying unfettered customs and SPS access, fettering is being put in place, with costs and profit-loss margins recalculated and commercial decisions revised accordingly.

Given that rather than removing the border, these regulations are concerned just with the details of the border arrangement and the extent of SPS border bureaucracy and cost, the question necessarily arises about whether it is right to support regulations that have the effect of affirming and effecting aspects of the border and EU Regulation 2023/1231. The question is: why have a border? What is it for? It is there to protect the integrity of the different legal regime that exists in Northern Ireland from what might come to Northern Ireland and from the different legal regime that exists in Great Britain. That confronts us with a central difficulty that some might be willing to paper over and ignore but that we unionists living in Northern Ireland have not the luxury of ignoring: the fact that every one of the different laws in Northern Ireland is a result of legislation that has been imposed on us by the EU without our consent.

The Windsor regulations are concerned with navigating the border and thus affirm it in at least two ways. First, they authenticate the border by making provision for dealing with it through EU regulation 1231, which is based on the existence of the border. Secondly, in engaging with the EU regulation that I have mentioned, the regulations inevitably authenticate the principles set out at the heart of Article 14: that the EU can impose a division on the body politic of the United Kingdom as exists between separate states. Some 700 different pieces of legislation have been imposed on us since January 2021, and of course over time the divergence will become greater as more new EU laws are passed and as more laws are made by Westminster. EU laws will be imposed on Northern Ireland without any representation or democratic accountability. I ask Members of your Lordships’ House whether that is acceptable? Would it be acceptable for England, Scotland or Wales? Why, then, for Northern Ireland? The border created by these regulations must be rejected not only because it places obstacles between Northern Ireland and our main market in GB but because it is a symbol of our denial of full democratic rights within the United Kingdom. It tells us, the long-suffering people who have recently endured a murderous campaign for over 30 years, that while the people of England, Wales and Scotland are worthy of the right to stand for election to make the laws to which they are subject, the people of Northern Ireland are not. The right that we should enjoy, being British, is having a common citizenship with every other citizen of the United Kingdom, but these regulations prove otherwise and therefore ought not to be accepted.

When we carefully consider what we are asked to support today in these regulations, I say so much for respecting the territorial integrity of the United Kingdom and the consent principle which we were told lay at the very heart of the Belfast agreement. The agreement said

“it would be wrong to make any change in the status of Northern Ireland save with the consent of a majority of its people”.

It prohibits any change in the constitutional status of Northern Ireland that involves a shift away from government by the United Kingdom towards more government by the Republic of Ireland or the EU, save with the consent of the majority of the people of Northern Ireland. The words “any change” include the threat that often emanates from some Members opposite, that if unionists do not get back to Stormont, Northern Ireland will be governed by a cabal of UK and Republic of Ireland Ministers. In reality, the suggestion is to bin the central principle of the Belfast agreement—an international agreement, we are told, that numerous Governments across the world heralded as historic and must not be broken; it is set in stone. However, the Government have chosen to mark the 25th anniversary of the Belfast agreement by rejecting parts of it in agreeing the Windsor Framework and hoping that no one notices.

The Windsor Framework and its forerunner, the Northern Ireland protocol, were mischievously sold on falsehood. Learning the lessons of the past, unionists are fed up with successive Governments’ spin and will not be beguiled by it, but we will carefully scrutinise the substance. I notice that the spin continues—my noble friend Lord Weir referred to it—because the Government suggest that what is happening under the present arrangements, which started only on 1 October, is a resounding success, when, in fact, it has not been really implemented. That undermines credulity, but it satisfies the government spin-makers. We are told to welcome warmly the PM’s amazing achievement with Europe concerning the Windsor brake. However, it is a convoluted complaints procedure which, when the dressing is removed, has as much chance of succeeding as a genuine brake on Europe as refloating the “Titanic”.

In conclusion, let me refer to the desire expressed by many in your Lordships’ House concerning the re-establishment of the Executive at Stormont—we usually hear it in every debate and I have no doubt we will be told it once again. I suggest to those who are going to speak today on that issue that they had better search their own hearts, because they have a way to start that Executive again, and that is by having the consent principle right across the community accepted, which we are told is the very basis and heart of the Belfast agreement. They say that when it suits, of course.

I also think that it is very interesting that today we are talking about the Windsor Framework and Northern Ireland business, yet not one nationalist is in the House to hear or be a part of this debate. Neither are those who usually speak up for them and parrot the nationalist line—they are also absent from the Opposition Benches. Where they have got to, I do not know, but everything must be very important for them to be removed from this specific debate. Or is it rather that they feel that what they have got under the Windsor Framework, done by the Government, is really all they need done, so they do not need to say anything more?

The Government have had the seven tests set down by the DUP for some time now, and we await their response. I know that some within government have expressed extreme frustration with the DUP, for they claim that they have provided sufficient fig leaves for the DUP leader to get back into Stormont. I find that statement from a Government Minister deeply insulting. Surely everyone knows that fig leaves were not able to cover Adam and Eve in the garden, and they will not be able to cover any grubby deal done by the Government over the heads of the people of Northern Ireland when it deals with the constitutional future of our children and the generations to come.

The Prime Minister must realise that any policy decision to go back into Stormont is the sole competence of the DUP party officers, and they will carefully and fairly scrutinise any government proposal—bearing in mind how successive Governments have dealt with unionists over many years, they need to carefully scrutinise it all. Over the years, the decisions taken by our party were not taken simply to be popular; they were taken in the best interests of the people of Northern Ireland. That again will be the basis of any future decision that we will make, and no other spin will be sufficient to make us break our firm resolution.

Photo of Lord Browne of Belmont Lord Browne of Belmont DUP 7:00, 18 October 2023

My Lords, I am not convinced that the regulations before us today are intra vires, for exactly the same reasons I doubt that the Windsor enforcement regulations are intra vires. I set out in detail the reason why I am unconvinced about this in my speech on the enforcement regulations when they were debated on 19 September, but the Minister did not respond at that time. I do not intend to repeat my speech of a month ago today in full and want to move on to address some additional points today, but I begin by drawing it again to the attention of the Government and asking for a response, not merely in relation to the enforcement regulations but the retail movement scheme regulations and the plant health regulations we are debating today.

In brief, while I acknowledge that the regulation-making powers are quite broad, they are not infinitely elastic, but held accountable to a fixed reality: the language of the protocol, now renamed the Windsor Framework. Both these sets of regulations have at their heart and give legal effect to EU Regulation 1231/ 2023. As we have heard, that affirms and effects the division of the UK into two, for the reasons that have been set out by the earlier speakers. This is a hugely important matter for the Windsor Framework retail movement scheme, plant health regulations, as well as the enforcement regulations 2023, because Article 1(2) of the protocol states, as I said on 19 September:

“‘This Protocol respects the essential State functions and territorial integrity of the United Kingdom’.

It is made directly effective in UK law by Section 7A(l)(a) of the European Union (Withdrawal Agreement) Act, requiring that

‘all such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the withdrawal agreement’ are applied.

How can Article 1(2) be applied if attempts are made to implement other parts of the protocol that have the effect of actively disrespecting the territorial integrity and essential state functions of the United Kingdom that it insists on respecting? I can see that, if the regulation-making power were for the purpose of giving effect to certain articles of the protocol and not others, this vires difficulty may not necessarily apply. But the regulation-making power simply references the protocol/Windsor Framework, which means that it must be taken as a whole. That means that any Act that purports to implement it cannot contradict any part of the protocol, including Articles 1 and 2”. —[Official Report, 19/9/23; cols. GC 287-88.]

The same problem also arises because of the trade diversionary effects of both sets of regulations before us today and the trade diversionary implications of preparing for them. It is now known that the amount of product coming from Great Britain to Northern Ireland is significantly less than previously, with an increased number of empty trailers on the return journey. How can it be appropriate for the Government to introduce legislation within the confines of the regulation-making power to give effect to legislation which is supposed to be accountable to the Windsor Framework, when its actual consequence is to create trade diversion, which Article 16 of the Windsor Framework expressly states is inimical to the purpose and intention of the Windsor Framework, such that if this is the result, the parties may derogate from the treaty? I very much look forward to what the Minister has to say.

In order to understand the regulations before us today, and particularly the green lane that they purport to help construct, it is useful to look at how signage works in the rest of the European Union. Moving from one European Union jurisdiction to another, you are effectively presented with three lanes. The blue lane is for any goods moving from one EU jurisdiction to another EU jurisdiction. There is no paperwork and there are no checks. Then there is a red lane. This is for any good that has to be declared and subject to customs and potentially SPS paperwork and checks. Then there is a green lane, which means you can move freely, because you have nothing to declare. However, here in Northern Ireland, as a unionist, I particularly know what a fake green is when I see it. The truth is that what the regulations before us today offer is not an arrangement that, in the words of the Prime Minister,

“removes any sense of a border in the Irish sea”, —[Official Report, Commons, 27/2/23; col. 571.] such that he could then, and we can now, talk about the regulations before us today as giving effect to aspects of the green lane.

In reality, the Windsor Framework, as the regulations before us today powerfully testify, effects and affirms a border where no border has a right to be. EU regulation 2023/1231, which it is the purpose of these retail movement and plant health regulations to operationalise—and without which they make no sense and cannot be understood or assessed—is about making provision for an alternative and less disruptive border experience than one would otherwise have. However, two things must be understood. First, the alternative arrangements are alternative border arrangements and thus the border remains very much in place and can be negotiated only if you have an export number, apply to join the trusted trader scheme and are accepted, fill in SPS forms, and are potentially subject to some checks at border control posts.

Secondly, article 14 of EU regulation 2023/1231 makes it absolutely clear that the EU reserves the right to remove this border experience in favour of the most disruptive available that it could mete out between itself and a foreign country. In that sense, the Windsor Framework does not get rid of any sense of the border in the Irish Sea any more than it creates a green lane. Its actual effect is to confirm the presence of the border in the Irish Sea and to introduce two red lanes, one of which is less demanding than the other, but which defaults to full disruption at the behest of the European Union.

Neither arrangement reconnects Northern Ireland to the UK single market, which can happen only when it is given unfettered access, which means access without the fettering of customs or SPS requirements as per trade movements between Scotland, England and Wales, or trade movements within any single market. Indeed, rather than reconnecting Northern Ireland to the UK single market, the purpose of the regulations today is to define two different levels of fettering at the border.

Therefore, rather than removing the border, the purpose of these Windsor regulations is to effect and affirm it. This makes it absolutely clear that talk about green lanes is totally confusing and, frankly, misleading. It generates an impression of a green light, of the coast being clear, and so on, but nothing could be further from the truth.

However, in order to really understand the regulations before us today, we need to see them in context, because the truth is even more awkward. Under the border target operating model, it is widely recognised that it is much easier to move goods from the EU into GB than to move goods from GB to the EU. This has immediate consequences for Northern Ireland because all red-lane goods movements between Northern Ireland and GB, which are in the same country, are subject to more fettering than movements of goods from the EU to GB—between different countries.

To this one might say, “But what about the green lane?”—which is of course a red lane. In the first instance, Northern Ireland is part of the same country as the rest of the UK and so should not be disinherited from its own single market by the imposition of any kind of border obstacles. In the second instance, when we study the particular manifestation of the red lane that masquerades as a green lane, we find that some companies regard the burdens associated with it as so onerous that they actually prefer the other red lane. For example, Lynas Foodservice has said that it intends to move 75% of its products on the red lane; in other words, we will have accepted an arrangement that places the interests of GB more with those of France, Germany, Bulgaria and Estonia than with Northern Ireland, because we will want to make it easier for goods to be traded between those countries and Great Britain, in terms of fettering, than with part of our own country. We will have done this, even as we know that through the EU we are offering easy access to our market to those countries—France, Germany, et cetera—that are refusing to respect the territorial integrity of the United Kingdom, imposing both economic disadvantage and the partial disenfranchisement of part of the UK.

I am happy to support this Motion to Regret.

Photo of Lord Weir of Ballyholme Lord Weir of Ballyholme DUP 7:15, 18 October 2023

My Lords, I do not intend to stray beyond the two statutory instruments themselves, but they are symptomatic and symbolic of the wider problems with the Windsor Framework. First, the retail movement SI in particular goes to the very heart of the Windsor Framework arrangements and, secondly, the SIs very much epitomise the fact that the concerns that have been there from the start of the Windsor Framework have not just not been removed but have in fact been reinforced by these regulations. Indeed, the reassurances that were given, particularly by the Prime Minister at the time the Windsor Framework was signed, have been shown to be spin, and these regulations highlight that they were fairly meaningless.

Proponents of these regulations may point to some very marginal improvements on what was there with the protocol. If you are a seed potato farmer, you will at least be able to import, whereas that would have been banned beforehand, and there is a little bit less paperwork. However, if we compare the situation as proposed in these regulations—which indeed has been retrospectively imposed on Northern Ireland, because we are debating after the fact, in effect—with either what was there prior to the situation or even in terms of the grace periods or the STAMNI arrangements, we see that we are in an infinitely worse position. Indeed, any changes that have made are very much at the grace and favour of the European Union, as has been indicated by regulation 1231, which states, as been said by others, that if there is a discontent from the EU with the operation of the procedures, yes, it will consult with the UK Government but it alone will then have the power to set aside these arrangements and impose, in effect, a completely red-lane arrangement on all trade going into Northern Ireland.

It is worth pausing for a moment to think about that. What is contained within the regulations before us today in terms of retail movement is designed to apply only to the so-called green lane; it is supposed to apply only to trade where the end use is in Northern Ireland. This is not about trade which will cross into the EU, and not even about trade that is at risk of travelling into the EU; it is about trade which is entirely within the United Kingdom. Yet the final and unilateral say on this lies with the European Union.

Many reassurances were given at the time of the Windsor Framework: we were told that it would restore the UK internal market and lead to unfettered access in both directions. Indeed, I believe that one of the phrases used was that it would remove any sense of an Irish Sea border, and on one occasion the Government said about the paperwork, “This isn’t going to be any different from if you are transporting goods between Southampton and the Isle of Wight”. I confess I have not travelled, or indeed sought to transport, goods between Southampton and the Isle of Wight, so I am not aware of whether a customs declaration is required, or indeed an export number, or of whether a firm doing that has have a trusted trader status. One would assume that there would be several complaints from the MP for the Isle of Wight if goods coming from Southampton had to go through border posts, let alone if there had to be declarations on every consignment or inspections. That has clearly been shown to be a level of spin.

We then come to inspection checks. We know that documentation has to be provided for 100% of goods, and we know that where there is intelligence that would suggest that goods could be taken across the border, there will be physical checks. However, we are told also that between 5% and 10% of consignments— I think the suspicion in the haulage industry is that it will remain close to 10%—will be physically checked by way of an inspection. That is not a quick glance in the back of a van. Let us remember that to comply with these regulations, every consignment coming into Northern Ireland will have to be sealed with a special seal; that will have to be removed, then replaced, presumably, after the inspection.

It is interesting to compare that level of inspection with territories which, for instance, abut the European Union. There is one Russian enclave within the European Union, Kaliningrad, and goods have to be transported between Kaliningrad and mainland Russia through Poland and Lithuania. Yet the EU instructions, even post sanctions, are that they are to intervene where they believe there is the breaking of sanctions, but otherwise, there is to be no impeding of road transport of goods between Kaliningrad and Russia. There is not a 10% level of inspections there. It seems remarkable that, potentially, goods moving between Great Britain and Northern Ireland are going to have a higher level of inspection than in a sanctioned Russian state.

Similarly, on diversion of trade, this is not simply an anxiety; it is a reality. For example, in preparation for this, one of the largest supermarkets, Tesco, showed us slides indicating how it plans to divert trade through the Republic of Ireland. Morgan McLernon, the wing of the largest hauliers in the United Kingdom, has made redundancies in Northern Ireland because it is going to shift its operations to the Republic of Ireland. The testimony of hauliers, which has been given on a number of occasions to the committee, is that this is leading to a considerable level of divergence—let alone the fact that a lot of smaller traders, if they are going to trade fairly infrequently with Northern Ireland, will simply take the view that it is too much hassle.

The restoration of the internal market cuts another way, which has not been mentioned. Government documentation refers to the transportation of goods, and to standards that apply in Great Britain to goods going to Northern Ireland. It also states: “However, enforcement powers against EU standards will remain for goods produced in Northern Ireland”. If we take the port of Larne as an example, you can transport goods from Glasgow to Larne, and they can be sold in Larne according to GB standards. However, the very same shop will not be able to sell goods produced in Larne itself to GB standards. Northern Ireland companies are not even put on a level playing field with the rest of the United Kingdom.

Turning briefly to plant health, given that some of the Government’s answers on these issues have tended to be opaque at best, I may be in a better position to elucidate for the noble Baroness, Lady Hoey, regarding her bulbs. It is pretty clear from the legislation that the dispensation the EU has given us on a grace-and-favour basis to transport plants, bulbs and seed potatoes applies only where they can be brought in to a professional operator recipient. To be fair, the company probably did apply the law correctly, but it would appear that the noble Baroness, Lady Hoey, is not entitled as an ordinary consumer to receive those goods. During the recent recess, I was in Prague. Had I decided in Prague to get some bulbs or seed potatoes and made arrangements there for them to be imported to Belfast through the EU, that would have been an awful lot easier, to be perfectly honest, than trying to get them from mainland Great Britain. That is the kind of Alice in Wonderland territory we are in.

A dispensation was generously given in the Windsor Framework that 11 species which were previously completely banned from Northern Ireland could now be brought in. We were told by some in the horticultural industry that they hoped that this would be the start of a process. Some 35 other species were banned, and their hope was that gradually, one by one, that figure would be reduced. I look forward to the Minister explaining whether there has been any further progress on widening what can be brought into Northern Ireland.

These regulations are the symptom of a much larger problem. The reality is that no one who has concerns about the Windsor Framework, particularly those of us on the unionist Benches, seeks anything extraordinary. All we are seeking is restoration of the constitutional status. All we are seeking is the restoration of the UK internal market, and the removal of the sea border. Funnily enough, those were exactly the promises made by the Prime Minister. All we are seeking is for the Prime Minister to fulfil what he promised and turn rhetoric into action.

Photo of Baroness Suttie Baroness Suttie Liberal Democrat Lords Spokesperson (Northern Ireland)

My Lords, this has been an at times impassioned debate and we have heard comprehensively, I think it fair to say, from the DUP and one point of view. I listened carefully to the many points made by the noble Lord, Lord Dodds, and his colleagues. While I have some genuine sympathy with many of his concerns, I none the less think that the Windsor Framework, as the recent report from the Northern Ireland Protocol Sub-Committee said, marks a significant step forward and is an improvement on what went before. It is far from perfect, but, as we have said many times from these Benches, these proposals continue to stem from incompatible promises that were made to the people of Northern Ireland as a result of Brexit.

There is also little doubt that there is a case for further pragmatic changes to be made in future, based on the realities of how these mechanisms work in practice for the people and businesses of Northern Ireland. Just so that I do not disappoint the noble Lord, Lord McCrae, I will give my statutory plea to noble Lords from the DUP: I genuinely believe that their case would be much more powerfully heard if there were a return to a functioning Executive and Assembly in Northern Ireland. Indeed, as Sir Jeffrey Donaldson said at the DUP conference last weekend:

“Having no say in our future will not be a recipe for success … having local institutions that succeed in delivering for everyone in Northern Ireland is an essential element of our case”.

I agree with that.

I will make a few brief comments on the regulations before us. It is deeply to be regretted that once again, an impact assessment has not been published. I agree with the Secondary Legislation Scrutiny Committee’s report, which said that, at the very least,

“basic information on the expected financial impact on businesses and the public purse should have been included in the explanatory memorandum”.

Even at this late stage, can the Minister commit to producing an assessment of the impact on businesses, so that we can have debates based on fact rather than anecdote? It is surely in the Government’s own interest to do so.

Like noble Lords from the DUP, I too question the decision to publish these regulations during the Summer Recess. Publishing them at a time when effective parliamentary scrutiny was not possible inevitably adds to our sense of distrust. Given that the Windsor Framework was agreed in February this year, it was surely possible to publish them before the Summer Recess. I seek reassurances from the Minister that the Government are confident that the temporary SPS infrastructure will be fit for purpose, given that the permanent infrastructure will not be ready until July 2025, as several noble Lords from the DUP said.

The Explanatory Memorandum states that the Government

“has considered and reflected engagement with interested stakeholders”.

Is it possible to publish a list of the people who were consulted? I remain convinced that transparency helps to generate the atmosphere of trust that has been so lacking during this whole process.

In conclusion, we on these Benches support the Windsor Framework and, by extension, the regulations we are debating today. However, I do understand many of the criticisms of the Government and the concerns expressed by the noble Lord, Lord Dodds, about the lack of transparency and consultation. I think it fair to say that the whole process leading to the Northern Ireland protocol and now the Windsor Framework has not exactly been a model of transparency and effective communication or consultation. I therefore hope that we can now move on to a more practical, pragmatic phase, learn from the mistakes of the past and make the Windsor Framework work for the people and businesses of Northern Ireland.

Photo of Baroness Anderson of Stoke-on-Trent Baroness Anderson of Stoke-on-Trent Opposition Whip (Lords), Shadow Spokesperson (Environment, Food and Rural Affairs) 7:30, 18 October 2023

My Lords, I thank your Lordships’ House for a truly comprehensive debate. Given the detail of the contributions and that these issues have been considered in depth during this debate and during the consideration of an associated statutory instrument prior to the Conference Recess, I will keep my contribution short.

We consider this legislation to be vital to the implementation of the Windsor Framework and, as we have consistently stated, we support a negotiated outcome with the EU. While the Labour Party does not believe that the Windsor Framework is perfect, it is a substantial improvement on what came before. Although it may be to the disappointment of some, the core tenets of the Windsor Framework are now in operation. While this regret Motion would not undermine it in legislative terms, supporting it—whether at this Dispatch Box or in the Division Lobbies should the noble Lord, Lord Dodds of Duncairn, decide to test the opinion of the House—would suggest that we believe that there is a viable alternative. We are unable to say that and therefore cannot support him.

For the avoidance of doubt, this is not a wholehearted endorsement of what the Government have achieved because important gaps remain, as we have heard. However, it reflects our belief that a negotiated outcome is preferable to threats or unilateral action and that once a deal is translated into an instrument of international law, it must be respected and upheld. Successive Conservative Governments have, at times, fallen short in this regard. We welcome that, on this occasion, Ministers are doing things by the book.

As I have said, the Windsor Framework is not a comprehensive framework and not every issue with the protocol has been fully resolved. There are several important changes to GB-Northern Ireland trade which strengthen the internal market, but there is still work to do. The Motion tabled by the noble Lord cites concerns around the speed of implementation and lack of public consultation. While we accept the public interest in, and general business support for, moving swiftly, I hope that he remembers my previous comments in relation to the consultation: stakeholders may have been able to make submissions to the Secondary Legislation Scrutiny Committee, but that is no substitute for a more formal process.

I have a few questions for the Minister. He will know that in recent days his noble friend Lady Neville-Rolfe provided a written update on the switch-on of the Windsor Framework arrangements. Can the noble Lord the Minister elaborate on the recent changes and confirm how businesses can provide feedback on their operation? We have just returned from the Conference Recess. Many of us in your Lordships’ House would have welcomed the comments from Sir Jeffrey Donaldson, the leader of the DUP, which suggested that progress was being made in discussions around the Windsor Framework and the all-important restoration of the Northern Ireland Assembly and Executive—a sentiment he also alluded to in the other place today. On that note, can the Minister provide any update to the House on the DUP’s proposal for the establishment of an east-west council to deal with issues relating to GB-Northern Ireland trade?

It is imperative for all of us to make this work. While we support the negotiated settlement reached earlier this year and hope that it will lead to a marked improvement in the experiences of Northern Ireland businesses and consumers, I sincerely hope that moving forward, whether on the Windsor Framework or other issues, His Majesty’s Government make a renewed effort to work with and listen to parties and communities in Northern Ireland, rather than imposing policy and legislation on them. I look forward to hearing from the Minister.

Photo of Lord Benyon Lord Benyon The Minister of State, Department for Environment, Food and Rural Affairs

My Lords, I thank the noble Lord, Lord Dodds of Duncairn, for tabling this Motion, and all noble Lords who have contributed to this debate today. I pay great tribute to him and his colleagues. I entirely understand the passion that underlies their concerns about this. All of us who have had knowledge and understanding of the situation in Northern Ireland over a great many decades appreciate the underlying emotions that exist on issues relating to this. Trade is so important to every person in Northern Ireland for all of us who care about the union.

We have before us two key pieces of legislation, the Windsor Framework (Retail Movement Scheme) Regulations 2023 and the Windsor Framework (Plant Health) Regulations 2023. Both play a pivotal role in the implementation of the Windsor Framework. I am pleased to announce that, as the noble Baroness, Lady Anderson, has said, the schemes are now live and trade between Great Britain and Northern Ireland is once again on a more stable and long-term footing. It is our fervent wish to successfully restore the smooth flow of trade within the UK internal market and safeguard Northern Ireland’s place in the union.

First, I would like to provide some background on the retail movement scheme regulations. The scheme establishes a robust and sustainable legal framework for the movement of pre-packaged retail agri-food goods from Great Britain to Northern Ireland. This framework offers traders a unique set of arrangements, reducing barriers to trade by facilitating the movement of consignments based on a single certificate, compared with hundreds of vet-signed certificates for individual products needed under the old protocol. One of the key benefits secured by this scheme is the disapplication of over 60 pieces of EU legislation for goods moving from Great Britain to Northern Ireland, ensuring a consistent approach across the entire United Kingdom. This means that goods which meet British public health, marketing and organics standards will be able to move to Northern Ireland.

We have a long-standing commitment to ensure that Northern Ireland’s businesses have unfettered access to their most important market, Great Britain. The Northern Ireland protocol guaranteed unfettered access for Northern Ireland’s businesses to the GB market. This was legislated for in the United Kingdom Internal Market Act 2020 and is reflected in the border target operating model. Furthermore, it has been raised in this debate that the instruments are contrary to the objectives of the Northern Ireland protocol listed in Article 1(2) of the Windsor Framework. In response to that assertion, I assure noble Lords that the Windsor Framework restores the smooth flow of trade within the UK internal market by removing the unnecessary burdens that have disrupted east-west trade. We are now able to achieve the long-standing UK government objective of restoring the smooth flow of trade within the UK internal market by pursuing a green lane for the movement of goods from Great Britain to Northern Ireland, supporting Northern Ireland’s place in the UK. We are confident that the Windsor Framework upholds our objectives to ensure that Northern Ireland’s place in the union is protected. Specifically, the framework allows for goods which meet British standards to be available in all parts of the UK, ensuring that consumers in Northern Ireland have access to the same goods as those elsewhere in the UK.

The plant health regulations pave the way for the smooth movement of plants and seeds for planting, seed potatoes and used agricultural and forestry machinery and vehicles between Great Britain and Northern Ireland when applying a Northern Ireland plant health label. The Northern Ireland plant health label scheme aligns closely with the current UK plant passport regime, making it familiar and accessible to all businesses engaged in the commercial movement of plants within Great Britain. This label will replace the need for plants and seeds for planting to be accompanied by a phytosanitary certificate, significantly reducing costs. Instead of paying £150 per movement into Northern Ireland, growers and businesses can now pay approximately £120 annually to be part of this scheme, which is the same as the cost for the UK plant passport regime.

Importantly, these regulations will also allow previously banned seed potatoes to be once again available in Northern Ireland from other parts of the UK while remaining prohibited in the Republic of Ireland. This will have a significant impact on trade between Scotland and Northern Ireland, with an estimated 2,500 tonnes of seed potatoes expected to move from Great Britain to Northern Ireland. The EU’s risk assessment process for the movement of so-called high-risk trees, a point raised by my noble friend Lady Lawlor, is being expedited. Once approved, they will move from Great Britain to Northern Ireland with the Northern Ireland plant health label. We prioritised removing bans on the movement of plants and trees of greatest importance to industry—seed potatoes and the 11 most important British native and other commonly grown trees. I assure my noble friend that hawthorn is under that definition.

The Windsor Framework has also removed the Irish Sea border for goods remaining in the UK, providing a firm legal foundation for trade and allowing everyday goods to move efficiently between Great Britain and Northern Ireland. It does so while protecting biosecurity on the island of Ireland, which has been treated as a single epidemiological unit for decades. It also safeguards Northern Ireland’s privileged access to the EU single market, which has been a clear demand from businesses to protect livelihoods. These regulations play a critical role in facilitating the seamless movement of goods between Great Britain and Northern Ireland, reducing trade barriers, and promoting a more efficient and cost-effective trading environment. They are essential components of the Windsor Framework; I hope therefore I can convince all noble Lords to support their implementation, as we debated before the Summer Recess.

Photo of Baroness Hoey Baroness Hoey Non-affiliated

Could the Minister clearly define “unfettered access”?

Photo of Lord Benyon Lord Benyon The Minister of State, Department for Environment, Food and Rural Affairs

I will refer to the noble Baroness’s bulbs. I do not know why the company she bought her bulbs from returned her money and did not wish for her custom, because the movement of plants, including bulbs, to consumers is possible if it is through a registered operator, including mail order and internet sales. I hope that one day bulbs from GB will adorn her garden in Northern Ireland. In direct answer to her question on unfettered access, I say that we all want is for goods—whether bulbs or anything else—to be traded within the United Kingdom in a similar way to anywhere within GB. I want to make sure that we are working towards that, and this is not perfect, as the noble Baroness, Lady Anderson, said—nothing that we pass through Parliament is perfect—but it is a considerable improvement and one that has been welcomed by many businesses in Northern Ireland. I hope that in moving towards that goal we will see greater understanding as the schemes are rolled out.

The noble Baroness, Lady Anderson, asked me about recent changes and the points raised by my noble friend Lady Neville-Rolfe. There has been a huge amount of engagement with business, and that will continue. We want to make sure that the east-west trading discussions continue. I also want to assure the noble Baroness, Lady Suttie, that we believe that even though some of the infrastructure is not yet built, the temporary arrangements are adequate; they are not perfect, and the sooner that we can have the more formal infrastructure in place, then we will see an improvement not just for trade but for the people who work there.

The Government recognise that it is vital that we are now able to restore the Northern Ireland Executive and Assembly. Although our retail movement scheme protects Northern Ireland from problems caused by regulatory divergence between the UK and the EU, we are seeing problematic divergence from the lack of an Assembly. We are, for example, unable to apply prohibitions on dangerous dogs UK-wide. Outside my departmental brief, we are seeing growing divergence on health waiting lists and core public services. I echo the points made by a number of noble Lords about the need to move towards some form of local democracy, which we put in place through the arrangements that have superseded the end of the sitting of the Assembly. I really welcome the comments made by the leader of the DUP indicating why it is important that decisions are taken locally.

I am grateful for this further opportunity to make the case for a greatly improved trading arrangement and for the valuable discussion. A number of points were raised of a highly technical nature, and if I have not covered them in my reply I am very happy to take them forward with noble Lords after this debate. I really hope I have gone as far as I can to convince the mover of this Motion to Regret, the noble Lord, Lord Dodds, and others to not push it to the vote.

Photo of Lord Dodds of Duncairn Lord Dodds of Duncairn DUP 7:45, 18 October 2023

My Lords, I am grateful to the Minister for addressing some of the points raised in the debate this evening. A wide range of issues have been discussed, and I am grateful to all noble Lords who have taken part. It has been extremely useful, and important indeed, for this Parliament to actually discuss these matters. It beggars belief that had it not been for this Motion to Regret, these matters of such fundamental importance—central to the Windsor Framework, according to the Government —would not have been debated at all in Parliament. I will put down a marker. If the Government are so proud of the Windsor Framework, why do they continue to shy away from debate on it? The Prime Minister rushed a quick vote on the Stormont brake when he introduced the Windsor Framework, and said it was a vote on the entire framework, but it has hardly been debated since—certainly not in government time. It is important that those of us who have a responsibility to properly scrutinise the Government in Parliament, especially on these matters of such constitutional and political import, take every opportunity to bring these matters to the Floor of the House and have them debated, and, if necessary, voted on.

The Minister in his response said that goods made to British Standards are now available in all parts of the United Kingdom as a result of the Windsor Framework. He omitted to say, “Except, of course, if they are made in Northern Ireland”. That is not an improvement. He said it removed the Irish Sea border for goods staying in the United Kingdom—no, it does not. If goods staying in the United Kingdom happen to be on a lorry with goods going to the Irish Republic, they have to go through the red lane, so that is not a correct statement. On the matter of bulbs raised by the noble Baroness, Lady Hoey, I will correct the record again: it is illegal for such items to be sold directly to consumers in Northern Ireland. Those are the facts. One of the problems we have had in this whole Windsor Framework and protocol debate is the spin that tries to make it out to be something it is not. Just be honest with people that this is the best you can get, but do not try to cod people in Northern Ireland that this is something that it is not. This is where the Conservative and Unionist Party has gone badly wrong in Northern Ireland. Ineptitude and a lack of engagement now passes for the top level—certainly in the top two at the NIO, whose policy seems to be to avoid engagement and discussion with anyone in Northern Ireland, lest they say something that causes further controversy and difficulty for the Government.

The protocol sub-committee on which I have the honour to serve made it very clear that the Windsor Framework may be a technical improvement on the original protocol, but it is not an improvement on the position with the easements and grace periods. It will be more burdensome, so again let us be accurate about the matter. As for the institutions of the Belfast agreement—the Assembly, the north-south body, the east-west body and all the rest of them—it is in the hands of the Government, this House and the other place to decide when devolution comes back. Let us restore equal citizenship; let us be honest with people; let us have the same rights as UK citizens, as the rest of our citizens—the right to make laws for our own country here at Westminster or in the Assembly. As my noble friend Lord Weir said, these are not matters in which we demand special privileges; we simply demand our rights as UK citizens.

Jeffrey Donaldson was quoted. We agree with devolution. I was a Minister in three different departments of the Northern Ireland Executive. We shared power with Sinn Féin, a party that is unrepentantly in favour of murder of our kith and kin, in order to get devolution and to move things forward in Northern Ireland, but we did so based on an equitable settlement which respected strands 1, 2 and 3 of the relationships within these islands. Those agreements have been trashed by the protocol and the Windsor Framework. They must be restored. As Jeffrey Donaldson said on Saturday— I notice that some people left out this part—the customs border was “unacceptable” in 2019 and 2021 and it is unacceptable today. So let us get on. The Government know what needs to be done, so let us get on and help them along their way. I hope that we restore those institutions sooner or later.

I do not intend to press this Motion to a vote tonight, but I reserve the right to bring all issues affecting Northern Ireland to the Floor of the House, unless the Government are prepared to do so of their own volition, to debate them and to vote on them, going forward.

Motion withdrawn.