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

Lord Weir of Ballyholme Excerpts

Monday 4th December 2023 Lords Chamber

However, Parliament has chosen to tie the regulation-making power to the full spectrum of obligations in the protocol. This means the only available sanction pertains to things mandated by some or all parts of the protocol that are not countered by others. In this context, the regulations plainly do not give effect to the protocol as a whole because they do not discharge the rights and responsibilities of Article 1(2). Far from respecting the essential state functions of the UK and its territorial integrity, the regulations seek actively to undermine those essential state functions such that they can only really pertain to Great Britain. I am happy to support the Motion in the name of the noble Baroness, Lady Hoey.

[Lord Weir of Ballyholme (DUP)]

My Lords, I am honoured to speak in today’s very important debate. I welcome the Minister, the noble Lord, Lord Harlech, to his place for the first opportunity to answer on the SI. I am sure it is the deepest regret of the noble Lord, Lord Benyon, who moved to a different portfolio—it is probably the one abiding regret he has—that he is no longer in a position to respond to various Windsor Framework debates. It must be a great source of pain to him.

This is a very important debate because, beyond the technical requirements of the SI, it goes very much to the heart of the problems, both in a current and future sense, with the arrangements in connection with the Windsor Framework. I agree very much with the tone of the noble and learned Baroness, Lady Butler-Sloss: what is important is not, arguably, what has gone on in the past, but where we are at present and where we will be in the future.

I press a particular emphasis on the future because, if anybody takes the time to talk, for example, to the haulage industry or those dealing with these issues on a day-to-day basis—as opposed to participating simply in a debate—they will tell you that the arrangements being put in place today are a mere shadow of the problems in days to come. In the absence of border control posts, any arrangements at present are of a light-touch nature; the real difficulties we will face throughout the United Kingdom will be in the future, whenever those border controls are fully built and operational. It is not just the question of where we land with this SI at present, but where it will take us in the future.

While there are many aspects of this I have concerns about, which other noble Lords have touched on, there is a microcosm of three issues that lie at the heart of our difficulties. First, when the Government produced the Windsor Framework, they massively overhyped what they had achieved. All of us, particularly those of us from Northern Ireland, value when people are being straightforward and honest with us directly. At the very least, we would have had much more respect for the Government’s position had they said, “In our negotiations, there are certain things we have achieved and have made a level of progress on, but there are a range of things that are still difficulties. There are a range of things we wanted to achieve but did not get success on”. That is not the position that they took when they reached the Windsor Framework earlier this year.

We were told that this would restore the integrity of the internal market and that it would provide unfettered access. There was some adjustment in the language, but the more watered-down version was that it would remove any sense of the Irish Sea border. I cannot remember whether it was a verbal comment or in the Government’s Command Paper, but they gave an assurance that the level of paperwork required to access the green lanes would be akin to moving goods from the mainland of Great Britain to the Isle of Wight.

Looking purely at the green lane and what is being put in place, any single movement requires customs paperwork, an export number, for the business itself to be part of a trusted trader scheme, for the individual consignment to be sealed so it cannot be interfered with in any way and a final address in Northern Ireland for it to be delivered to. There are many things that you can say about that—you may say that it reduces the SPS paperwork compared with what would have been there purely under the protocol—but the one thing you cannot say is that this is unfettered access. I am not aware that any of those regulations would apply, for example, using the Government’s example, when moving goods to the Isle of Wight from another part of Great Britain. In the context of the green lane, the comparison of unfettered access is that if somebody is looking to move goods from part of the European Union to anywhere in Northern Ireland, they can do so completely seamlessly—but that is not there under this SI for movements between one part of the United Kingdom and another.

Secondly, this SI represents something that the Government have accepted: a massive level of overreach by the European Union. I entirely understand that, if you are looking at this from an EU perspective, you want to do all you can to protect the European Union and its single market. But the focus of this SI is not on the regulations for the red lane movement; it is on movement entirely within the United Kingdom for goods that must have an end destination within the United Kingdom—it is important that we contextualise that. This is not about goods coming into another part of the United Kingdom that may be at risk of moving to the EU, because those are automatically put under the red lane system already. There is a level of overreach.

We are told that 60 EU rules will be disapplied—it took a lot of work to extract that information. We have been given a form of dispensation, but we get that at the grace and favour of the EU. As shown by EU Regulation 1231, it is a form of dispensation that the UK is being granted; we are still under the overall auspices of the EU. It is a conditional dispensation, because the EU, in Regulation 1231, gives itself that power unilaterally. If, for whatever reason, it feels that things are not working out or it changes its mind, it can withdraw this at any stage, so we are not being given the freedom of opportunity. Regular checks are also being placed on the green lane—whether it will be 10%, 5% or whatever level of variation. These are random checks; they are not done in a situation where there is any particular evidence of fraud or any level of suspicion.

I will give an indication of how much of an overreach that is. Take what should be a far more dangerous situation to the EU: movements of goods between Kaliningrad and Russia. Under the EU sanctions that were applied, the guidance given to EU countries was that they did not have to produce effective controls on movements of goods between Russia and Kaliningrad. That is the bizarre situation that we are in: there is a greater level of regulation of goods moving within the United Kingdom than goods moving between two parts of an aggressive nation that is involved in great war crimes against Ukraine—where the goods are physically passing through the European Union. That is the level of overreach that we are left with.

Thirdly, while the constitutional impropriety of this is clear, it is leading to practical issues and problems in the diversion of trade. The noble Baroness, Lady Hoey, mentioned that, for a lot of companies operating in Great Britain—we have seen examples of this already—if they do not have a large volume of activity within Northern Ireland, they will say, “Why should we bother with all the hassle of sending something to Northern Ireland? We will simply withdraw from that market”. That is damaging both to the companies in Great Britain—because it denies them the opportunity for trade—and to Northern Ireland customers, and it gives no alternative but for those goods to be sourced from within the EU rather than another part of the United Kingdom.