My Lords, in this 25th anniversary of the Belfast/Good Friday agreement, the regulations before us today are profoundly destabilising. The Windsor Framework has subjected itself to the Good Friday agreement by devoting its first and second articles to serving the prior agreement. Article 1 subjects Windsor to the Good Friday agreement consent principle, recognising the territorial integrity of the UK—the thing that the Republic of Ireland refused to do until the Good Friday agreement with the UK—and to protecting the 1998 agreement in all its dimensions, while article 2 explicitly subjects the Windsor protocol to the human rights protection in the Good Friday agreement. This is critical, because Article 30.2 of the Vienna Convention on the Law of Treaties states:
“When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail”.
Thus the Windsor Framework effectively subjects itself to a prior treaty—the Good Friday agreement—and the territorial integrity of the UK this side of a border poll.
To that end, the regulations before us plainly contradict article 1.2 of the Windsor Framework, which creates an imperative for respecting
“the essential State functions and territorial integrity of the United Kingdom”.
Arguably, the most essential state function of all is the provision of security, which finds expression on a number of bases including military security, cybersecurity and biosecurity. Yet the Explanatory Memorandum accompanying these regulations states:
“The purpose of this instrument is to support trade between Great Britain … and Northern Ireland … whilst protecting the biosecurity of the island of Ireland, following the agreement of the Windsor Framework”.
Of course, it is very healthy for a state to have regard to the biosecurity of neighbours, but this must be a secondary obligation to having regard to the biosecurity of its own citizens, who pay taxes and may be asked to make the ultimate sacrifice in time of war. Yet neither the regulations before us nor the Explanatory Memorandum make any reference to the biosecurity of the United Kingdom. Instead, they talk only about having regard for the biosecurity of the island of Ireland as a whole.
Implicit in the deconstruction of the UK, by way of deconstructing its essential state functions, is the reframing of questions of security and risk so that they no longer pertain to the United Kingdom of Great Britain
and Northern Ireland, but rather ask Great Britain to view risk and biosecurity separately, and independently from Northern Ireland, whose biosecurity is now set for some purpose at a Republic of Ireland-EU level. Crucially, this is not simply a process of separation, but a process of separation against each other, such that one does not simply cease viewing Northern Ireland within one’s biosecurity; one is asked to assess one’s biosecurity against that of Northern Ireland. The disciplines imposed by the protocol on biosecurity risk assessments give rise not just to an othering process, in the context of which Northern Ireland is no longer part of the same political “we”, but to the pathologising of Great Britain as an “other” that is also the source of a threat. This is completely destructive to the UK body politic and UK political demos.
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When the Government were challenged on these matters, they responded in terms which were deeply disingenuous, confusing two completely different things. They told the Secondary Legislation Scrutiny Committee, first, that the island of Ireland has been treated as a single epidemiological unit for decades and, secondly, that both GB and Northern Ireland benefit from laws to maintain their respective biosecurity. The problem with this response is that it implies that nothing of any great importance has changed, but the truth is that the implication of treating Great Britain and the island of Ireland as separate epidemiological units, when they are in the same single market and subject to the same legislation, is quite different from treating them as separate epidemiological units when they are in separate internal markets and subject to separate legislative frameworks.
No one is suggesting for a moment that Northern Ireland would be left without legislation aimed at providing biosecurity. The key point is that, over time, this will differ from that pertaining to Great Britain and, to the extent that the UK Government will not be responsible for the legislation pertaining to Northern Ireland, they will not be responsible for its biosecurity. The essential state function of the UK would thus not be respected in terms of UK biosecurity. Indeed, in introducing legislation to give effect to different biosecurity identities in separate single markets, the UK Government are giving effect to the division of the United Kingdom body politic, in that Northern Ireland now becomes a potential biosecurity threat to Great Britain and Great Britain a potential biosecurity threat to Northern Ireland.
While it is possible to recognise the sense in which two parts of the United Kingdom are separated by a body of water, and to insist on separate SPS checks on live animals crossing that body of water, that does not give licence for a state effectively to renounce its key constitutional responsibility as guarantor of the biosecurity of all the people of the United Kingdom. To pretend otherwise is to imply that Defra officials regard the United Kingdom of Great Britain and Northern Ireland as a category error. But, in a context where we live in a society of a political rather than an epidemiological foundation, epidemiological considerations do not afford Defra the right to dismember the United Kingdom. Defra has to discharge its biosecurity
responsibility in the context of recognising the actual boundaries of the United Kingdom, rather than any other boundaries it might prefer. In the absence of a vote in which the people of Northern Ireland remove themselves from the United Kingdom body politic, they remain firmly in that body politic, benefiting from the rights of living in a polity whose essential state functions, including in relation to biosecurity, are respected.
This biosecurity difficulty leads directly, as I have mentioned before, to a question about the vires of the regulations before us. There are two bases for arguing that these regulations are ultra vires. They are made on the basis of a regulation-making power set out in sub-paragraphs (a) to (c) of Section 8C(1) of the withdrawal agreement Act 2018. The power is either “to implement the Protocol” in sub-paragraph (a), or the withdrawal agreement in sub-paragraphs (b) and (c), which includes the protocol. In this context, it is not clear how the Government can provide a regulation-making power to do anything that is contrary to any part of the protocol.
If the regulation-making power was defined specifically in relation to certain aspects of the protocol or the withdrawal agreement and not others, such that one could draw a clear line from a coherent sanction in one part of the protocol or the withdrawal agreement to the regulation that is not contradicted by another part of the protocol—because the other part of the protocol is not part of the regulation-making power—the regulations would clearly be intra vires.
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.