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

Baroness Hoey Excerpts

Monday 4th December 2023 Lords Chamber

Moved by

[Baroness Hoey]

That this House regrets that, while the Windsor Framework (Retail Movement Scheme: Public Health, Marketing and Organic Product Standards and Miscellaneous Provisions) Regulations 2023 give practical effect to provisions in EU Regulation 2023/1231 which lessen the disturbance caused by the Irish Sea border, (1) they do not remove the border or the need for expensive and disruptive customs and sanitary and phytosanitary paperwork, and border control posts, (2) Article 14 of EU Regulation 2023/1231 reserves the right for the European Union to reverse provisions afforded by these Regulations that make the border less burdensome, and (3) on both counts, these Regulations are associated with an initiative that violates the territorial integrity of the United Kingdom.

Relevant document: 51st Report from the Secondary Legislation Scrutiny Committee, Session 2022-23.

[Baroness Hoey (Non-Afl)]

My Lords, I bet that when the people in the Whips’ Office saw this regret Motion, they probably said, “Oh not again!”, as this comes just a few weeks after we had a similar but slightly different regret Motion from the noble Lord, Lord Dodds of Duncairn. However, I make no apologies for moving it. It is nice to see a different Front Bench; I welcome the noble Lord, Lord Harlech, who will respond. The noble Lord, Lord Benyon, has probably had enough of the Windsor Framework; he has gone to COP 28, which is perhaps a slightly better place for him to be tonight.

As I said, I make no apologies for this. It is an opportunity for those of us who live in Northern Ireland and who live day-to-day with the increasingly ridiculous Windsor Framework to try to ensure that noble Lords, and particularly those who genuinely care about Northern Ireland and the union, understand more about how it is being implemented and how the continued Irish Sea border affects the everyday lives of many people in Northern Ireland. Noble Lords should realise how profound are the political and constitutional ramifications for the union of statutory instruments such as this.

If you look at the statutory instrument, it is almost like gobbledegook, but of course most statutory instruments are. I am not a lawyer, but I thought it was pretty difficult to understand and seemingly very bureaucratic. Then, when I went to visit a local butcher and heard from him just how difficult it was—he showed me all the paperwork and the forms he had to comply with to bring in what he had always been bringing in: some special cheese from Scotland—it made this statutory instrument seem quite simple.

It is important that we first look at what this SI does. It is important to remember that the provisions listed in column 2 of Schedule 1 are treated as applying to the extent that the corresponding EU instrument in column 1 does not apply by virtue of article 1(2) and chapter 2 of EU regulation 2023/1231—I said this was quite complicated. This results in the disapplication of EU standards in favour of GB standards, where column 1 lists EU legislation and column 2 lists different GB legislation.

On this basis, the most striking thing is that consideration of Schedule 1 conveys that, while there may be some scope for disapplying EU legislation, it remains overwhelmingly in place and binding. In short, this way of presenting the potential suspension of some 60 EU laws is in fact a really good way for the Government to have highlighted the extent to which, even under the so-called green lane, we in Northern Ireland remain subject to EU laws.

The point needs to be seen in the context of the fact that, since January 2021, Northern Ireland has so far been subject to around 700 new regulations and laws that have simply been imposed in a way that would never have been contemplated in any other part of the world, never mind any other part of the United Kingdom. That begs the question: how can our Government have allowed part of our country to be treated so differently and separately, under the separate legislation of the EU?

How did we get here? Of course, we all remember 27 February. When the Prime Minister announced the Windsor Framework, he expressly told the country that he had removed any sense of a border in the Irish Sea. Since then, we have been told again and again that the purpose of the Windsor Framework is to reconnect Northern Ireland into the same internal market as Great Britain, giving effect to a UK single market for goods: unfettered access—those are words that the Government love—for goods across the UK’s internal market for goods. Being in a single market for goods mean that goods can move freely within that internal market without encountering any internal border obstacles, but the legislation crafted to give effect to this supposedly great breakthrough of the Windsor Framework, including these regulations, demonstrates that, far from removing any sense of border in the Irish Sea, the Windsor Framework confirms the reality of the border in the Irish Sea.

The legislation means that, rather than laying the foundation for the movement of goods from one part of the UK to another, unfettered by a customs or SPS border, we have the movement of goods, subject to the huge cost of a customs border, SPS border, paperwork and checks. Pretty soon after 27 February, we realised that, notwithstanding the Prime Minister’s claim to have removed any sense of border, the border had remained completely in place through the red lane. Anyone moving goods on the red lane has to trade with one part of the United Kingdom as if it was a foreign country. This is crucial, because it means that, even if the green lane created a lane through which some goods could move as freely from Scotland to Northern Ireland as from Scotland to England—that is, within a single internal market for goods—that would still constitute a hugely controversial change to the extent that other goods destined for Northern Ireland would have to go on a red lane, as if travelling to a foreign country.

This statutory instrument demonstrates that the actual deal is far, far worse, because the green lane facilitated in part by these regulations is not green. We live in an age of growing cynicism about politics in which there is voter apathy and disaffection, and that is increasingly a problem. Central to that is a perception that politicians can be less than straight with the public and seek to pull the wool over people’s eyes by using language to obscure, rather than shine light, on the presenting situation.

The Windsor Framework, effected by these and other regulations, provides one of the most stark and worrying manifestations of this tendency. The notions of red and green are not empty images; they convey meaning, even when considered apart from borders. Red conveys the fact that you will be stopped; green, the sense that you can move through freely. When we turn our attentions to questions of the border, when there are goods entering the UK single market from beyond the United Kingdom, we are confronted with two lanes, red and green. If you are bringing goods into the European single market, you have to go through the red lane and present customs and SPS paperwork and encounter a border control post and potential checks. By contrast, the green lane is for someone coming into the EU single market without any goods, and they can move freely. In this context, it is completely cynical, first, to claim to have removed any sense of a border in the Irish Sea when it remains very much in place, and then to suggest you are providing a green lane, implying unfettered access, when these regulations make it absolutely clear that that is not the case.

In reality, the regulations in this statutory instrument communicate the fact that if you travel on the so-called green lane, you remain subject to the customs and SPS border and certainly do not enjoy unfettered access within the territory of the United Kingdom. In order to access the green lane, you must obtain authorisation, and to do so you have to provide information for “customs purposes”. This is set out very plainly in Articles 7 and 9(2) of the joint committee decision 1/2023, which gives effect to the Windsor Framework. This embeds, even in the operation of the mythical green lane, an internal UK customs border between GB and Northern Ireland.

It follows, obviously, that there is no route to removing the Irish Sea border by any tinkering. That is of course the Democratic Unionist Party’s third test. There is no route which does not involve at least fundamentally altering and thus reopening the Windsor Framework debate and, to restore Article VI of the Acts of Union, disapplying Section 7A of the European Union (Withdrawal) Act 2018, in so far as it creates inconsistency with the Acts of Union, as said by the Supreme Court.

Of course, you might be subject to a few fewer SPS demands if you go in the green lane, but you will still be subject to customs and SPS requirements as if trading with a foreign country—or, per the terminology used by the Government in one of their SIs to describe Northern Ireland, a third country. How insulting that is to the people of the United Kingdom living in Northern Ireland. You will still have to have an export number, as if you are trading with a foreign country. You will still have to encounter the significant costs of needing to have customs and SPS paperwork, because you will be leaving one internal market for goods and entering another. You will still have to be subject to 100% documentary checks, and you will still have to go through a border control post and be subject to between 5% and 10% identity checks, along with some physical checks, because you are leaving one internal market for goods and entering another.

As if that is not enough, you will still have to embrace additional frictions in return for accessing the so-called green lane. You will have to apply successfully to join the trusted traders scheme and maintain your membership of it, and you will have to embrace the cost of producing “not for EU” labels. Is it any wonder that hundreds of businesses in Great Britain are now putting on their website a line that simply says, “We no longer send goods to Northern Ireland”?

In this context, the attempt to describe this arrangement as giving effect to a green lane is deeply, deeply misleading and, I believe, shows modern politics at its absolute worst. The Government should know better than to try cynically to pull the wool over the eyes of the people of the United Kingdom. I call on the Government to level with people, be honest, acknowledge the truth and not try to hide it in words. The truth is that the border remains in the Irish Sea, and that what the Government have managed to secure is two different red lane border experiences. The movement of goods continues to be subject to a border experience, with both bureaucratic requirements and checks as goods leave one internal market for goods and enter another. It just happens in different ways, which can perhaps be described as “the standard red lane experience” and “an alternative red lane experience”.

Moreover, the alternative red lane experience which is affected by these regulations is provided only at the pleasure and agreement of the European Union. Article 14 of EU Regulation 2023/1231, to which these regulations relate and without which they would be completely meaningless, reserves to the European Union the right to withdraw the alternative red lane experience. Thus, the effect of these regulations, to which this Parliament has agreed, is entirely dependent on the European Union. Noble Lords could pass regulations and at some point, the European Union could make them effectively null and void using Article 14.

The Government keep saying that the Windsor Framework protects Northern Ireland’s place in the UK internal market for goods. An internal market does not happen because different places can trade within it. Different places trade all the time in international trade between different internal markets—for example, a business trading from London with a business in New York. An internal market means that a business in one part of the internal market can trade with another part of the internal market without leaving it and thus without being subject to everything that has already been mentioned: a customs SPS border, paperwork, and border control posts. The regulations do not remove these. Under these regulations, trade between one part of our country still requires an export number, filling in customs and SPS border forms, being subject to 100% documentary checks and being subject to between 5% and 10% identity checks, which require stopping at a border control post, as well as some physical checks.

Similar arguments could be made here, calling on the Government to stop pretending that the regulations protect the place of Northern Ireland in the UK internal market for goods, when they actually demonstrate that the UK internal market for goods no longer exists and has instead been replaced with a GB single market for goods, placing Northern Ireland in a different single market. If only the Government would be honest.

In the previous Windsor Framework statutory instrument regret debate, I asked the Minister to define “unfettered access”. He answered that he wanted

“goods … to be traded within the United Kingdom in a similar way to anywhere within GB”. [Official Report, 18/10/23; col. 270]

I welcomed him saying that, but the logic of that is that the Government need to accept that they will have to go back to the European Union and stand up for their own citizens in the United Kingdom.

I know that many Government Ministers understand that this situation is untenable, and that there are many in the Labour Opposition who know that it is. Let us not forget that the Windsor Framework was put through on a vote to do with the consent principle, and then the whole thing was accepted, rushed through by a Prime Minister who was obviously frightened that, if people really understood it, it might have been voted down or at least have had a bigger vote against it. I know from many noble Lords who have spoken to me that, despite their vote for the Windsor Framework, they now realise it was a rushed attempt to be seen to do something about the protocol which everyone, even those in the Alliance Party who had called for its rigorous implementation, had realised had to go. But the hype and the misinformation—indeed, the lies that were told—about the framework made the old saying “the truth will find you out” so true.

--- Later in debate ---

[Lord Harlech (Con)]

I thank the noble Baroness for that clarification.

[Baroness Hoey (Non-Afl)]

My Lords, I thank the Minister for his response, particularly for his commitment to unionists and to the union. I appreciate that he has had to stray—or perhaps not—off his brief, which is business to do with Defra. Noble Lords will realise that the problem with a debate such as this is that we do not get many opportunities to discuss anything about the constitutional position of Northern Ireland and the wider aspects that the Windsor Framework has brought about. Tonight, although this statutory instrument has been widened, we have seen some of that debate. The Minister might suggest to his noble friend sitting beside him, the noble Lord, Lord Caine, that we have a proper debate, in government time, on the situation in Northern Ireland and the whole question of the constitutional position so that we do not have to have these statutory instrument debates.

Having said that, I thank everyone who has spoken. It has been a very interesting debate. I really appreciate that some noble Lords spoke who were not from Northern Ireland. I was particularly pleased that the noble Lords, Lord Jackson and Lord Moylan, spoke, as did the noble and learned Baroness, Lady Butler-Sloss, who made a comment which will resonate with many people—that the very quiet majority in Great Britain do support Northern Ireland being part of the union. The Government and His Majesty’s Opposition might sometimes bear that in mind.

Tonight we have seen general support for the regret Motion. It is interesting that we do not get many people speaking against it; we never seem to on Northern Ireland issues. It is simply the same numbers of us who come along, so it was particularly good to have those from outside Northern Ireland speak tonight. We also saw an agreement that there must be a fundamentally different approach from the Government to deal with this. It is not going to go away. It is not going to be accepted by pro-union people in Northern Ireland.

The noble Lord, Lord Dodds, referred to the many questions, debates and discussions that we had on the protocol. When I look back to them, everyone was saying how wonderful it was and how we must accept it. Then, suddenly, it shifted; everyone was saying, “No, no, we’ve got to change”, and that is when we got the Windsor Framework. We are now in that same position. The Windsor Framework is not going to work. It is not sustainable. It is not going to bring about democratic institutions again in Northern Ireland. We really must start thinking about why Northern Ireland was left out so much in the negotiations over the EU settlement. Even at this stage, the Government must rethink. I hope that the Labour Opposition, if they are going to be in government, will realise that this is something that they will have to deal with if the Government do nothing about it in the meantime.

This is a regret Motion. Every time that we have regret Motions we do not vote. People back in Northern Ireland and in other places say to me, “What’s the point of a regret Motion if you don’t actually show that you have regret?” Therefore, I would like to press this to a vote. I hope that at least some noble Lords will feel that, if they cannot actually oppose their Government on this and support my Motion, they can abstain.