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

Lord Jackson of Peterborough Excerpts

Monday 4th December 2023 Lords Chamber

[Lord McCrea of Magherafelt and Cookstown (DUP)]

I will follow on from my noble friend Lord Morrow, and I am interested in the questions that have been asked. A lot of those questions surely should have been asked at the time of the negotiations between the United Kingdom Government and the European Union. That was the time to ask those questions and answer them, rather than leaving Northern Ireland in the present precarious position that it is, without Stormont being able to function.

The real impact of the regulations before us today, in providing what is actually an alternative border experience rather than a border-free experience of the kind suggested by talk of putting Northern Ireland back in the same internal market for goods as the rest of the United Kingdom so that goods can move unfettered across the United Kingdom, is very far-reaching. Indeed, it is so far-reaching that it requires me to ask the Government to reflect further on their stated position, as set out during the debate on the previous set of Windsor regulations, on 18 October. In responding to that debate, the message from the Government Front Bench was 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”.—[Official Report, 18/10/23; col. 269.]

That was the statement that was made.

One of the reasons why the United Kingdom is believed to have been the first country to industrialise is that it was the first country to identify the economic opportunities arising from removing internal barriers to trade, so as to create a coherent internal market for goods, coextensive with the boundaries of the kingdom. The definition of “internal market” was thus the removal of all internal border fettering, so that goods could move completely freely within the United Kingdom. It was the economic opportunities secured by this freedom that other countries identified and sought to exploit over many years.

In the context of the established meaning of “internal market” following these developments, you cannot have an internal market divided by a customs and SPS border. If you have an internal market and divide it with a customs and SPS border, you no longer have one internal market but two internal markets.

The key point here is that an internal market is secured by a right to trade between A and B. German businesses have a right to trade with Japanese businesses and vice versa. Having this right to trade, however, does not have the effect of putting Germany and Japan in the same single market. This means that businesses trading between these two countries have to encounter border formalities. In other words, goods in Germany do not enjoy unfettered access to Japan any more than Japanese goods enjoy unfettered access to Germany. If, however, the border were removed and Germany and Japan were placed in the same internal market, not only would businesses in Germany have a right to trade with Japan and vice versa but their goods would also enjoy unfettered access to Japan, just as Japanese goods would enjoy in relation to Germany, within the newly created internal market.

It simply is not possible to take the regulations before us today or, indeed, other Windsor regulations, and assert, as government Ministers continue to do, that they help to

“restore the smooth flow of trade within the United Kingdom internal market”

or unfettered access. The truth that the regulations before us today confirm is not that Northern Ireland’s place in the United Kingdom internal market has been restored, securing unfettered movement within the United Kingdom internal market. Rather, giving effect to EU regulation 2023/1231, they confirm the termination of the UK internal market for goods and its replacement with a GB single market for goods, which no longer embraces Northern Ireland.

It might be correct to argue that the suspending of 60 EU standards by these regulations eases the flow of goods in some senses—although the requirement for “Not for EU” labels off-set this benefit—but it does not ease the flow of goods within the UK internal market; that is not true. Rather, it eases the movement of goods across an international customs and SPS border between the two different internal markets for goods that the UK now covers.

In the same way, it is time for the Government to level with the British people and acknowledge that, rather than giving effect to a green lane, the regulations before us give rise to an alternative red lane. They also need to be honest and acknowledge that, far from reintegrating Northern Ireland within a UK single market for goods, the regulations confirm that the UK single market for goods no longer exists. It has been replaced, for the first time since 31 December 1800, with a Great Britain internal market for goods, and Northern Ireland has been placed in a different internal market for goods governed by a polity of which it is not a part.

In this, I greatly welcome the timely intervention this week in another place by the right honourable Dame Priti Patel, the Member of Parliament for Witham, who was Home Secretary from 2019 to 2022. She reminded us of the 2019 Conservative manifesto which pledged, on page 44, to

“ensure that Northern Ireland’s businesses and producers enjoy unfettered access to the rest of the UK and that in the implementation of our Brexit deal, we maintain and strengthen the integrity and smooth operation of our internal market”.

She was very clear that Windsor—and thus the regulations before us today, which seek to give effect to it—is not in any way consistent with that pledge. In other words, the Government have broken their election pledge.

Dame Priti Patel wrote:

“For me, as a Conservative and Unionist, maintaining the integrity of the internal market should have been a red line in negotiations with the EU and while the Windsor Framework does improve the situation with some goods facing fewer barriers, the flow of trade between Great Britain and Northern Ireland is still being disrupted. Northern Ireland also faces the ongoing imposition of EU rules affecting certain parts of its economy, which undermines democracy”.


She concluded:

“No business should face a barrier or restriction to trade between Great Britain and Northern Ireland and more work is needed to achieve this outcome. Technology, common sense and a dose of good faith should be at the forefront of the solutions needed to remove these barriers and put an end to the tentacles of EU control over Northern Ireland. The Government needs to act and the Conservative Party’s manifesto at the next General Election must reaffirm our commitment to Northern Ireland and the importance of securing the integrity of the internal market within the UK”.


On her latter point—that they have indeed scrapped their previous promise in the last manifesto—it will take more than words in an election manifesto to prove that they are as good as they say. Some of us are aware that, in the Brexit negotiations, the EU did everything within its power to humiliate the United Kingdom for having the audacity, through the authority of the ballot box, to leave the EU. It has deviously but deliberately sought to undermine the unity of the United Kingdom.

I tell noble Lords, this House and the Government Front Bench: do not treat unionists as fools. We know a good deal when we see it, but we also know a bad deal when we see it. Surely, after all that we have endured over 30 years of IRA terrorism, we have a right to expect that a Government with the title “Conservative and Unionist Party” would tell us the true facts of the protocol and the Windsor Framework. I believe the Windsor Framework is but another part of the gameplay to destroy the union.

There are those who believe they can sleepwalk unionism into a united Ireland by stealth; but unionism is awake and alert, and is aware of the treacherous plan and will not comply. Any action of this Government in response to genuine unionist concerns over the Windsor Framework will be judged in the light of the seven tests already set by the DUP and clearly endorsed by the unionist electorate. Tinkering, sleight of hand or double-talk will not be acceptable. Actions will speak louder than words. I believe that wisdom will demand careful scrutiny of anything that the Government propose.

[Lord Jackson of Peterborough (Con)]

Does the noble Lord concur with me, having been involved intimately in the Brexit negotiations in 2017 and 2018, that proposals had been worked up by Lars Karlsson, a customs expert who worked on the Norway/Sweden border, for technical solutions for a frictionless border that were first presented to the European Parliament in November 2017 and subsequently to this House and the other place, but they were ignored, particularly by the EU and the then May Government? That answers the specific issues raised by the noble Lord and the noble and learned Baroness, Lady Butler-Sloss.

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These examples are symptomatic of the wider problems. They show the scale of the difficulties that we still face and the scale of the action required. My noble friend Lord McCrea is right: this will be resolved not by words but by action by the Government. The Government need to take action to remedy the situation so that we can protect and restore the UK internal market and Article 6 of the Act of Union.

[Lord Jackson of Peterborough (Con)]

My Lords, I had not intended to speak in this debate, but I think it is important to follow the lead of the noble and learned Baroness, Lady Butler-Sloss, and examine the wider context. Incidentally, I strongly support the views of the DUP, which is a credit to the people for whom it speaks. I particularly note the comprehensive and detailed evidence it presented to the Secondary Legislation Scrutiny Committee, which I have read but not necessarily inwardly digested.

Noble Lords might know that I served for a year or so as special adviser to the then Secretary of State for Exiting the EU. I knew more than I could possibly have wanted to know about phytosanitary issues. We have to look at the wider context here: this is about not just the de jure decision of the UK as a whole to leave the EU but the de facto bifurcation of a sovereign country. It is not just about granular and technical issues relating to groceries and agricultural goods; it is about the fundamental right of a group of people to elect and dismiss representatives who are accountable to their electors.

The wider issue is quite obvious to those of us who have followed the European Union’s behaviour. Incidentally, the wider context of the Windsor Framework specifically is that the EU was effectively in breach of the TCA because it used the non-agreement of the Windsor Framework as a means to prevent the UK securing a deal on the successor to Horizon Europe. That was blackmail, frankly—but we should not be surprised by that because Martin Selmayr, who was chief of staff to Jean-Claude Juncker, stated way back in 2016 that the strategic geopolitical interests of the European Union were in making Brexit as difficult as possible for the United Kingdom and making sure that the United Kingdom of Great Britain and Northern Ireland did not have a long-term economic advantage over the EU. So it was always the case that it would weaponise Northern Ireland to cause as much difficulty as possible. That is the wider issue. In fairness, I agree that Tony Blair and John Major warned of these potential difficulties—although they were coming at the issue from a different angle, in opposing the Brexit vote.

I am not surprised about the passion of my noble friends in the DUP because this is a fundamental issue about the governance of our country, and we would not nonchalantly seek not to debate a similar proposal if it were about Devon, Surrey, Northumberland or Birmingham. Why should we effectively treat our citizens in Northern Ireland, who have decided to remain part of this sovereign nation, in a different and less advantageous way? For that reason, I welcome the regret Motion from the noble Baroness, Lady Hoey.

It is important to note, as I did earlier, that proposals that would have solved this issue were put forward. If noble Lords remember, there was the Malthouse compromise, a backstop and the Karlsson report on smart borders 2.0 and 2.1, which the noble Baroness, Lady Foster, referenced. There were opportunities to leverage technologies, such as CCTV, warehousing away from the border and trusted trader schemes, in order for there to be a mutually beneficial trading relationship that would not bring a hard border back or threaten the integrity and viability of the Good Friday agreement. But these were dismissed by the EU and, through Messrs Varadkar and Coveney exerting pressure day by day and week by week on a weak Government without a majority—the May Government—their position was allowed to succeed. We missed that opportunity. This gentleman is not some esoteric policy wonk; he was in charge of the customs of Sweden and did work all over the world, including the Middle East. He had great expertise and offered it to the Commission and the British Government. As I mentioned, he produced a comprehensive and practical report to the appropriate committee of the European Union, but it was dismissed.

For those reasons, I believe it is important that we continue to debate the Windsor Framework in the future because this issue is much more fundamental than the minutiae of trade, HGV movements and other issues—though they are important, as noble Lords have said. If this is pressed to a vote, I am afraid that, for the first occasion in this House, I will support the regret Motion from the noble Baroness, Lady Hoey.

[Lord Moylan (Con)]

My Lords, I will be brief. The noble Lord, Lord Morrow, referred to this instrument as a “humiliation”. I am not sure whether he meant a humiliation for the country or something else, but we can be in no doubt that it is a humiliation for Parliament that a foreign Parliament should send us an instrument—a law made by it with no reference to us—and invite us to cut and paste it into the form of a statutory instrument that we are required to rubber-stamp.

I cannot think of another democracy, inside or outside Europe, which would be willing to have laws made for the internal trade of part its own country and for part of its own territory by a foreign Parliament on this basis, with no participation or representation, and be expected to accept it and hand it on in this way.

We are told that the justification for accepting this humiliation—although this has not come up in the debate, as such—is that it is the price of maintaining the Good Friday agreement. That would not be an argument wholly without merit, if it had substance—but it has no substance, because the Good Friday agreement is not being maintained. It is not being maintained in its internal arrangements or on its east-west strands, or north-south. It is largely defunct; the only part of the Good Friday agreement that is still fundamentally alive is the question that Northern Ireland will remain part of the United Kingdom unless and until there is a vote that supports transferring it to the Republic of Ireland. That part of it remains alive; the rest is functionally dead.

So we are not actually achieving our objective in doing this, but meanwhile we accept the humiliation, which no doubt in a moment my noble friend is going to rise at the Dispatch Box and defend. With a name like Harlech, if he were proposing this in relation to Wales, I imagine that he would resile, and resile firmly from doing so, but in the case of Northern Ireland it appears to be acceptable, despite the manifest evidence that the claimed benefit of doing so is not actually arising. I look forward to hearing what my noble friend on the Front Bench is going to say.

But I look forward almost with more interest to what the noble Baroness on the Labour Front Bench is going to say. I have to take cognisance of the fact that I understand, or am told by outside interests, that there is the prospect or possibility of a Labour Government in the next year or so. I do not countenance it myself, but to hear what the Labour Party has to say about what it will do about this in government—and the noble Lord, Lord Weir, is correct that we need to look forward—is absolutely crucial on this matter. In my view, it will find that, if it thinks that this is going to be solved in some way by greater alignment of the whole of the United Kingdom with the European Union, it will quickly run into the fact that there is a price to be paid. The European Union will regard that there is a price to be paid for that alignment, in loss of opportunities elsewhere. Those hard decisions—and of course I am not expecting to hear the answer to those decisions today—will land very firmly at the feet of any incoming Government who might arrive in the next 12 months. The Windsor Framework and the arrangements put in its place are absolutely central to how any incoming Government respond to them. So in some ways, the most interesting speech of the day, I am sure, will come from one of the two noble Baronesses—I am not sure which—sitting opposite, and I look forward to it.