My Lords, it is a pleasure to follow the noble Baroness, Lady O’Loan, and to take part in the debate. There are two aspects to the package that the Government have brought forward. One is the Command Paper itself, which contains much in the way of the presentation, justification, pledges and promises of new bodies and so on. I hope that there will be an opportunity, at some time in the near future, to debate in full the Command Paper, because what we are also dealing with tonight is the second aspect of the package: the legal instruments and provision. They are what really matter, because it
is only legal change—by legislation—that can alter the current arrangements under the protocol/Windsor Framework.
What do these statutory instruments actually do? In essence, the critical question for many unionists in Northern Ireland, from various parties and none, is: do they remove the Irish Sea border and its cause—the subjection of Northern Ireland to foreign jurisdiction regarding the production of goods and agri-food, a large part of our economy?
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Looked at objectively, clearly and forensically, the answer is that, clearly, they do not. Whatever else they represent, they do not remove, at all, the serious constitutional, democratic and, for many, economic damage of the Windsor Framework. However, I accept that they do provide reassurances, clarifications and modifications to certain procedures in how the Irish Sea border and EU jurisdiction operate in practice. Many will see positives in that, and I fully understand it. However, these are all within the context of the continuing application of the framework and the protocol, since not a word of the protocol has changed.
I accept that, in the overall package that has been put forward by the Government in their Command Paper, there are things which are positive, which have been referenced already, such as the east-west council, InterTrade UK and the changes to the budget with the new formula, although I share the concerns about the intervention that appears to be taking place in terms of revenue raising. On the one hand, we are told by many that we need to get devolution back to allow Northern Ireland politicians to make decisions; then, almost immediately, we have senior politicians, including former Secretaries of State, warning that if Stormont does not act in a certain way, Westminster will intervene —so much for respecting the Sewel convention and devolution. I commend the work in other areas too and congratulate those who have been involved in achieving this. There are some significant promises and pledges, although we have heard some of them before; I hope that this time they will be delivered.
Coming back to the legislation, which is the key and operable part of what changes or does not change as far as the current position is concerned, these regulations are being made under Section 8C of the European Union (Withdrawal) Act 2018. These enable Ministers to make regulations for the purpose, importantly, of implementing the Northern Ireland protocol and for related purposes. That is the purpose of the section under which these relations have been found—to implement the protocol. That guides us in terms of what is presented in these SIs.
The Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024 contain five parts. First, we have the new provision, inserted into Section 38 of the 2018 Act, about the union. It is positive in words and declaratory in nature. I take no issue with its contents. However, it does not and cannot change or reduce any obligation under EU law in Northern Ireland. It is not operable or effective, nor has it any efficacy in terms of changing anything that is applied to Northern Ireland under the protocol following the Windsor Framework.
The second change under these regulations is that there will be a new Section 38A, which is said to future-proof Northern Ireland against any future UK-EU agreement which relates to the subject matter of the framework and creates a new regulatory border between Great Britain and Northern Ireland. However, paragraph 7.13 on page 4 of the Explanatory Memorandum states that:
“This provision does not apply to decisions or agreements made under the existing Windsor Framework”.
That is everything that currently applies, and which creates a regulatory border or which will continue to create new regulatory borders under the current Windsor Framework. Nothing is affected that alters that position. If it is wrong and the Government recognise that they need to legislate to prevent regulatory borders in the future, then what about the present position—or the new borders that can be created under the current Windsor Framework? We saw, on the issue of Parliaments binding their successors, how easily the Acts of Union themselves were set aside—“subjugated” according to the High Court, “modified” according to the Appeal Court—but all set aside when new legislation was brought forward.
The third change relates to Section 7A of the 2018 Act. It clarifies that the application of Section 7A is subject to the Stormont brake. Section 7A, as the Explanatory Memorandum explains, is, in the Government’s words, the “conduit pipe” by which EU law flows into Northern Ireland and takes precedence over UK law, whether made at Westminster or in the Assembly. There is nothing new in that; the Stormont brake is already in law, so this is a presentational matter. We have already debated the Stormont brake. The noble Lord, Lord Hain, has pointed to the difficulties with it. Our Select Committee on the protocol—on the Windsor Framework as it now is—on which I have the honour to serve, has looked at this and taken evidence on the very difficult and limited circumstances in which the Stormont brake operates only in relation to new law or to changes to existing law. Remember that the 300 areas of law to which Northern Ireland is subject under Annexe 2 to the protocol itself are not affected at all by the Stormont brake; the Stormont brake does not apply to them.
Fourthly, new Section 13C provides for statements to be made regarding Bills that affect trade between Northern Ireland and another part of the UK. What is the actual effect of this? The Explanatory Memorandum —I sometimes find the Explanatory Memorandum more illuminating than many other things that are brought to bear in relation to statutory instruments—states that this is simply a new “transparency obligation”. That is all. Section 13C requires a statement from the Minister that, in his view, the Bill does not contain provision having significant adverse effect on trade with Northern Ireland. However, the very next subsection gives the Minister a get-out: if he cannot make such a statement, he just declares that he cannot but that he wishes to proceed anyway, and that has to be in the form of a Written Ministerial Statement. I do not underestimate the importance of Written Ministerial Statements, but they do not bind in any shape or form this Government from deviating when it suits them from Northern Ireland. Lots of claims have been
made about this in recent days. In response to concerns raised on the Tory Back-Benches, Ministers were at pains to reassure them that the deal does not constrain the Government from freedom to diverge from Brussels rules.
Fifthly, there is an amendment to Schedule 6A to the Northern Ireland Act 1998, to provide for the review mechanism procedure after the 2024 vote later this year—the so-called “democratic consent” mechanism. This review will be a significant milestone, but remember: the rules of the Assembly were deliberately changed. I well remember the debate in Committee on that matter in December 2020. Everybody who was present from Northern Ireland railed against the fact that here, for the first time in the Northern Ireland Assembly, a significant vote would be done by a majority vote, not by a cross-community vote; the cross-community safeguard was swept aside. Now we have a review which is designed to ensure against the vote being taken simply by a majority and not on a cross-community basis in November or whenever it will be held. How can we ensure that we get cross-community support having done away with the cross-community voting mechanism?
The second SI is on unfettered access. The issue in Northern Ireland has not been about access from Northern Ireland to Great Britain but about Great Britain to Northern Ireland. We were told from day one that there was no issue about access from Northern Ireland to Great Britain. The fact that we now have to put all this in law and in statutory form illustrates the nature of the problem of who controls trade between Northern Ireland and Great Britain. The issue here is about legal access, but it is about more than that. It is about competitiveness of businesses in Northern Ireland in their own market and in Great Britain, because Northern Ireland companies will be subject to producing according to EU standards. They may have the legal right of access to the market in Great Britain, but they will be competing against other businesses in Britain that could be producing to standards that are different from EU standards—less onerous perhaps or cheaper. It is not a question only of having legal access but of having a competitiveness in your own market. Why should businesses in Northern Ireland that are trading within Northern Ireland or within the United Kingdom be subject to EU law in terms of their production and so on? It does make any sense. It is not necessary for the protection of the EU single market .
The Minister mentioned guidance provisions that the Secretary of State can issue to appropriate authorities on access arrangements to Northern Ireland. Again, he did not mention that, on the very next line of the legislation, there is a provision that allows the Secretary of State to
“revise or revoke (in whole or in part) any guidance issued under this section”.
There is not much of a safeguard there in terms of that aspect of it.
I have gone through the statutory instruments and the changes in the time that is available, but I wish I had more time to go through them in even more detail. One thing, however, is clear: try telling people in Northern Ireland who are ordering plants and seeds
and stuff from the rest of the United Kingdom that they can get those delivered to their home. They cannot. That is an Irish Sea border. Try telling people after the debate we had on the Rwanda Bill last night, in which Northern Ireland is still subject to the EU Charter of Fundamental Rights, that there is not some kind of Irish Sea border. That is the result of the Windsor Framework protocol still being in place.
We will debate the animal welfare legislation next week. The reason why banning live exports does not apply to Northern Ireland—whatever you may think of the issue, whether you are for it or against it—is that we cannot decide for Northern Ireland. It is decided for us because we are under EU law on that matter. None of that has been changed by this Command Paper.
On the lanes, three-quarters of non-exempted sectors of manufacturing in Northern Ireland—engineering, electronics, chemicals, et cetera—comes from companies with a turnover of more than £2 million. They are left under full red lane EU border controls as if importing from a foreign country, even when goods are staying in Northern Ireland or moving back to Great Britain. The Government have portrayed the red lane—I am hearing this all the time—as “This is for everything that is going into the Irish Republic or the European Union”. That is not the case. The manufacturing sector does not say that that is the case. It says that even stuff it is producing for the internal market has to go through the red lane.
As for the green lane, we are told that it has been scrapped and replaced by a new UK internal market system. But in the Windsor Framework Command Paper last year, there was reference to the UK internal market scheme, and then it had in brackets “or the green lane” in paragraph 10. The real test—and I ask the Minister to respond to this when he replies to the debate—is: which of the regulations or SIs setting up the green lane is going to be replaced or removed? Will it be the Windsor Framework (Retail Movement Scheme) Regulations 2023, the Windsor Framework (Enforcement etc.) Regulations 2023 or the Windsor Framework (Plant Health) Regulations 2023? Are any of those going to be taken away and replaced, modified or changed in any form? They are not here in front of this House tonight. They set the rules. Whatever else these SIs do—and some of it might not do any damage whatever to the union and might be positive in some respects—they do not undo the problems that we have with the framework. Can the Minister tell us whether EU regulation 2023/1231, which governs the trade between Britain and Northern Ireland for many types of food, is going to be modified or changed?
We do have the Assembly back now in Northern Ireland. The fact of the matter is that that means that we cannot just go on ignoring the matters relating to the Irish Sea border or the framework or the protocol. There are people who would now prefer that it goes away. However, for unionists in Northern Ireland not to highlight these matters, not to show the damage that has been done, not to demonstrate the iniquity of the constitutional and democratic injuries that have been done to the people of Northern Ireland, would be to simply accept and acquiesce in all of this. If we are to have any prospect of making any change in the
review later on this year, or in the TCA talks next year or whenever, we will not achieve any progress if none of these issues is being highlighted, because people will say, rightly, “There is no issue; everything has been agreed or accepted”. We must, therefore, continue to put a spotlight on these issues. We owe it to the people of Northern Ireland to keep doing that, and certainly on these Benches we will.
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