Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024 - Motion to Approve

Part of the debate – in the House of Lords am 8:15 pm ar 13 Chwefror 2024.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Lord Morrow Lord Morrow DUP 8:15, 13 Chwefror 2024

My Lords, I will not repeat in detail what has already been said but will briefly underline some of the most important points as I see them, before looking in more detail at some of the specific provisions in the regulations before us today.

The green lane has neither gone nor been replaced. Paragraph 10 of the Windsor Framework Command Paper, published triumphantly by the Prime Minister on 27 February 2023, states that the Windsor Framework

“puts in place a full set of new arrangements, through a new UK internal market system (or green lane) for internal trade”.

The Safeguarding the Union paper, by contrast, commits the Government to:

“Replacing the green lane with a default UK internal market system”.

The green lane and the internal market system are the same thing. You cannot replace something with itself. The Government are doing their best to pull off the sleight of hand of the century, but in my opinion they have failed. The people of Northern Ireland are not fools. These regulations change nothing fundamentally in what were called the red and green lanes until the week before last.

Call them what you like. While we have some innovations from the monitoring committee, Intertrade UK, and the new dispensation from the EU on those rest-of-the-world products that have been through UK customs being allowed to move from one part of the UK, that is GB, to another, that is Northern Ireland, the basics remain unchanged. This is demonstrated most clearly by the fact that the Windsor Framework (UK Internal Market and Unfettered Access) Regulations 2024, before us today, do not repeal or amend the legislation introduced last year to give effect to the green lane UK internal market system legislation.

As such, fundamentally, the legislation before us today leaves the Irish Sea border untouched. Goods that do not travel through the red lane will have to travel through the green lane—aka the UK internal market system—which requires the companies concerned to join the trusted trader scheme. In relation to that scheme, just yesterday the Trader Support Service contacted businesses which bring goods from Britain to Northern Ireland. In that correspondence, the Trader Support Service confirmed that Northern Ireland is treated as EU territory, with Northern Ireland products treated not as UK goods but EU goods. That speaks volumes.

Some of the companies have had this information brought to them. They have an export number and they complete both customs and SPS border paperwork, and are subject to 100% documentary checks, mandated by Regulation 12 of the unamended Windsor Framework (Retail Movement Scheme) Regulations 2023, and 10% to 5% identity checks, mandated by Regulation 13 of the same 2023 Regulations.

This confronts us with the central difficulty with the name of the “UK internal market system” and the title of the Windsor Framework (UK Internal Market and Unfettered Access) Regulations 2024 before us today. What they describe is not unfettered access or an internal market but rather the negation of both. The fact that in order for goods to cross from GB to Northern Ireland one needs an export number and to submit customs and SPS forms, albeit simplified, and be subject to 100% documentary checks and 10% to 5% identity checks, is not unfettered movement within the same internal market. If it was, there would be no need for an export number, and there would be no customs paperwork or customs documentary checks, and no identity checks at a border control post. These border demands give effect to fettered access, as goods move from one internal market to another. If we want to see unfettered access within an internal market, we need to look instead at goods moving from the UK to the Republic of Ireland, across the land border. Here there are no requirements for customs forms, simplified or otherwise, and no customs documentary checks and no identity checks.

Regulation 2 of the Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024 states:

The Windsor Framework is without prejudice to … Northern Ireland’s part in the economy of the United Kingdom, including its customs territory and internal market”.

That is simply declaratory. It makes an assertion, but we all know it is not true. The Windsor Framework places Northern Ireland in a different internal market for goods than the rest of the United Kingdom. These regulations, as we have seen, do nothing to remove the border in the Irish Sea which places Northern Ireland in a different internal market for goods and can be crossed outside the red lane only if you have an export number, if you complete customs and SPS paperwork, and if you are subject to 100% documentary checks and 10% to 5% identity checks.

Regulation 2 is supposed to provide reassurance on the basis that it states that the Windsor Framework is without prejudice to Parliament’s sovereignty over the Act of Union. What that really says is that, while Parliament has the power to stand up for the equal rights of all UK citizens and to reverse the arrangements flowing from the partial suspension of Article 6 of the Act of Union that have resulted in the partial disfranchisement of 1.9 million UK citizens who can no longer stand for election to make the laws to which they are subject in 300 different areas, Parliament is not intervening to put this right. What a tragedy. I am not sure on which planet being presented with these facts would be deemed to be reassuring. It is profoundly disturbing and suggests that, notwithstanding their ability to correct the present injustice, Parliament and the United Kingdom Government do not have the moral courage to stand up for all their citizens against the wholly unacceptable demands of foreign powers.

The SI then continues with evasion, hoping that it can avoid the need to take responsibility in the areas where hitherto it has not taken responsibility, by changing the subject and saying that it will not take any further irresponsible decisions, but ignoring the key issue—the irresponsible decision it has already taken to facilitate the partial disfranchisement of 1.9 million of its own citizens.

The EU might have a preference for managing a border in a particular way, but the United Kingdom and this Parliament cannot allow it to create the impression that its preferred way of handling the border is the only way of managing the border when other ways exist. Mutual enforcement may not be the EU’s preference, but in a context where that option exists and where the alternative involves the partial disfranchisement of 1.9 million people, violating the heart of the Good Friday agreement principle of consent and disrespecting the territorial integrity of the United Kingdom, the EU’s preference for managing the border cannot be the last word on the matter. What UK Government worth their salt could possibly settle for such a shameful outcome?

In this regard, it is important to remember that mutual enforcement is actually a way of managing the border that was developed within the EU by three supporters of the EU: Sir Jonathan Faull, the then director for competition policy and deputy director-general at the directorate general for competition in the Commission, Professor Weiler and Professor Daniel Sarmiento. It is also important not to forget that this solution was described by the Financial Times as a “win-win” and that, writing after the EU decided to reject mutual enforcement in favour of the current approach, Weiler wrote:

“( … We continue to believe that there were answers to all the objections that were raised, but the Commission team seemed to be locked into their repeated assurance that there were no alternatives to the backstop). Be that as it may … eventually the original backstop had to be modified, though at the price of a huge concession by Boris: the introduction, however disguised, of a customs frontier within the UK. But does anyone believe that is a stable solution?”

What we need now is not SIs but a Prime Minister who is prepared to stand up for our country: the UK. He should declare the Windsor Framework void on the basis that it is not a valid treaty because, despite Article 1, the effect of the framework is to disrespect the territorial integrity of the United Kingdom. That means that it is not a valid treaty. He should tell them that if they want to revisit the trade and co-operation agreement, they can, but they must realise that, going forward, the territorial integrity of the United Kingdom and the equal rights of its citizens to stand for election to make the laws to which it is subject are not up for debate.