Windsor Framework (Retail Movement Scheme: Public Health, Marketing and Organic Product Standards and Miscellaneous Provisions) Regulations 2023

Baroness Butler-Sloss Excerpts

Monday 4th December 2023 Lords Chamber

[Lord Morrow (DUP)]

I think that Northern Ireland, which we are constantly told is an integral part of the United Kingdom, should be treated as such. If you own a farm, it is your responsibility to fence your livestock in; it is not my responsibility as a neighbour to fence your livestock out.

[Baroness Butler-Sloss (CB)]

I wonder if I might ask a question. Will the noble Lord say what ought to be the implications of the land border with the EU?

[Lord Morrow (DUP)]

The land border with the EU could have been very easily resolved, because there were moves and proposals at the time. It could have been a simple, straightforward piece of work, with cameras being put up, but the EU said absolutely not. What did it do? It then split Northern Ireland and insisted on border customs, which are not yet completed but will be by 2025. Now we have Northern Ireland sitting in isolation from the rest of the United Kingdom, and that will never be acceptable.

--- Later in debate ---

[Baroness Foster of Aghadrumsee (Non-Afl)]

I acknowledge what the noble Lord has to say, but he will know that the people of Northern Ireland will decide. That is why it is so important that people recognise that the United Kingdom is good for Northern Ireland and a beneficial place for Northern Ireland to be. I really wanted to reference that today.

I want to refer to the Joint Committee’s scrutiny of the SI. I pay tribute to the noble Baroness, Lady Hoey, for tabling this regret Motion; otherwise, the SI would not have been debated. Even the Joint Committee was clear in its assessment that this was a politically sensitive issue, and therefore—it did not say as much as this, but it is what I would argue—it certainly should have been carried through by the affirmative procedure. Even in Northern Ireland, if a Minister takes a decision that is novel and contentious, it has to come to the full Executive for discussion. I posit the view that this setting up of the regulations for the green and red lanes is something that should have come for fuller examination. I look forward to the Minister giving us the reasoning for why this went through on the negative procedure.

It is not just that it went through on the negative procedure; worse than that, it came through in the summer when there was no opportunity for parliamentary scrutiny before the scheme went live. The scheme came into being on 1 October this year but here we are in December, and only because the noble Baroness, Lady Hoey, tabled a regret Motion debating the scheme. The procedure for this SI has been very poor indeed.

The third issue—the first two were that it should have been by the affirmative procedure and that it should not have gone through in the summer months when there no possibility of discussion—is that the Joint Committee refers to the fact that it is concerned about the lack of an impact assessment or even basic impact information. I was listening to the previous debate on the regret Motion tabled by the noble Baroness, Lady Lister, on immigration fees and the reference to there not being parliamentary scrutiny of that issue. Here we have an entirely new scheme being set up for goods moving from Great Britain into Northern Ireland, and we are discussing it two months after it came into operation only because the noble Baroness, Lady Hoey, brought it to the Floor. Surely the Government must recognise that that is not an acceptable way to deal with an SI of this significance. It should have been brought to the Floor at least for debate so that parliamentarians across the two Houses could make their voices heard and ask questions of the relevant Government Ministers. I hope the Minister will be able to give us some indication of why it was felt appropriate to bring in this important SI by negative resolution.

[Baroness Butler-Sloss (CB)]

My Lords, I entirely support what the noble Baroness, Lady Foster, has just said, but the earlier speeches by noble Lords have raised a rather deeper issue. Speaking as an Englishwoman married for 64 years to an Ulsterman from County Down, I would like to stress how much English people care to keep Northern Ireland as part of the United Kingdom. I have never yet met anyone who did not want that to happen. It is important to say that at this moment, because what is being talked about is the importance that Northern Ireland attaches to the United Kingdom—but the United Kingdom should remain with Northern Ireland as an important and very valued member.

I would like to ask the Minister this, as what worries me particularly is not so much the failure to do what should have been done in the past, which I entirely understand from what noble Lords have said, but that we really have to live in the real world, which is today. What are the Government going to do to put it right and create a situation in which Northern Ireland is, in all reality, a total member of the United Kingdom internal market?

[Lord Browne of Belmont (DUP)]

My Lords, in this 25th anniversary of the Belfast/Good Friday agreement, the regulations before us today are profoundly destabilising. The Windsor Framework has subjected itself to the Good Friday agreement by devoting its first and second articles to serving the prior agreement. Article 1 subjects Windsor to the Good Friday agreement consent principle, recognising the territorial integrity of the UK—the thing that the Republic of Ireland refused to do until the Good Friday agreement with the UK—and to protecting the 1998 agreement in all its dimensions, while article 2 explicitly subjects the Windsor protocol to the human rights protection in the Good Friday agreement. This is critical, because Article 30.2 of the Vienna Convention on the Law of Treaties states:

“When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail”.


Thus the Windsor Framework effectively subjects itself to a prior treaty—the Good Friday agreement—and the territorial integrity of the UK this side of a border poll.

To that end, the regulations before us plainly contradict article 1.2 of the Windsor Framework, which creates an imperative for respecting

“the essential State functions and territorial integrity of the United Kingdom”.

Arguably, the most essential state function of all is the provision of security, which finds expression on a number of bases including military security, cybersecurity and biosecurity. Yet the Explanatory Memorandum accompanying these regulations states:

“The purpose of this instrument is to support trade between Great Britain … and Northern Ireland … whilst protecting the biosecurity of the island of Ireland, following the agreement of the Windsor Framework”.


Of course, it is very healthy for a state to have regard to the biosecurity of neighbours, but this must be a secondary obligation to having regard to the biosecurity of its own citizens, who pay taxes and may be asked to make the ultimate sacrifice in time of war. Yet neither the regulations before us nor the Explanatory Memorandum make any reference to the biosecurity of the United Kingdom. Instead, they talk only about having regard for the biosecurity of the island of Ireland as a whole.

Implicit in the deconstruction of the UK, by way of deconstructing its essential state functions, is the reframing of questions of security and risk so that they no longer pertain to the United Kingdom of Great Britain and Northern Ireland, but rather ask Great Britain to view risk and biosecurity separately, and independently from Northern Ireland, whose biosecurity is now set for some purpose at a Republic of Ireland-EU level. Crucially, this is not simply a process of separation, but a process of separation against each other, such that one does not simply cease viewing Northern Ireland within one’s biosecurity; one is asked to assess one’s biosecurity against that of Northern Ireland. The disciplines imposed by the protocol on biosecurity risk assessments give rise not just to an othering process, in the context of which Northern Ireland is no longer part of the same political “we”, but to the pathologising of Great Britain as an “other” that is also the source of a threat. This is completely destructive to the UK body politic and UK political demos.