I have tabled New Clause 3 to the Tobacco and Vapes Bill to make the pretended application of the legislation to Northern Ireland both credible and tenable.
In this I am pleased to have been supported by all Northern Ireland unionist Members of Parliament.
During the Second Reading on the Tobacco and Vapes Bill in November, I pointed out that the ‘Generational Sales Ban’ (GSB) proposed by the Bill for the United Kingdom will not stand in Northern Ireland because it is plainly contrary to Article 24(1) of the EU Tobacco Products Directive (2014/40/EU) which prohibits effectively banning products the legislation deems to be legal. The standing of the Directive through the Windsor Framework is such that if ever Westminster or the Northern Ireland Assembly makes legislation for Northern Ireland that is contrary to it, the courts must, in the event of a legal challenge, strike it down.
In responding the then Minister, Andrew Gwynne, could provide no counter to my argument. He had to fall back on assertion, stating rather desperately: ‘I make it clear that this is a United Kingdom law. It covers all four nations of the United Kingdom, and we are assured that it complies with the requirements of the Windsor framework. This law will stand.’
The difficulty that the Government faces in this instance is that the presenting difficulty is far from speculative because unlike the last time when a similar point was made, the concern has now been validated by the actions of the courts.
When the Rwanda Bill was introduced, the point was made that, although it applied to Northern Ireland, this was effectively a sham because the legislation was plainly contrary to EU legislation in the Windsor Framework on the basis of which it would be struck down.
When challenged in the Lords on 29 January 2024, the minister Lord Sharpe replied is very similar terms to Mr Gwynne. ‘The Bill will apply fully in Northern Ireland in the same way as it does in the rest of the United Kingdom. This is explicit in the Bill and will always be the case, reflecting that immigration policy is a UK-wide matter.’
However, when the Rwanda Act became law, it was immediately challenged, and the courts duly struck down the offending provisions in relation to Northern Ireland.
In bringing forward the Tobacco and Vapes Bill, however, it is also more difficult for ministers to adopt the same posture as the previous government in relation to the Rwanda Bill because the Generational Smoking Ban proposal has already been addressed within EU and we have seen the response. Both Denmark and Ireland considered adopting similar legislation but decided against it because doing so would be contrary to EU Tobacco Products Directive (2014/40/EU).
But that is not all. Since Second Reading we have also benefited from the fact that the eminent constitutional legal authority, Jason Coppel KC has published a legal opinion on the Tobacco and Vapes Bill in which he agrees a Generational Smoking Ban is likely contrary to the directive and, in that event, it will be struck down.
My New Clause 3 fixes the presenting difficulty by subjecting section 7A of the European Union Withdrawal Act 2018 to the Tobacco and Vapes Bill. This means that where the requirements of the Tobacco and Vapes Bill contradict those of the Windsor Framework, they will overrule the Framework, so that the people of Northern Ireland can benefit from the protections provided by the Bill the same as any other UK citizens.
The Government must think very carefully about how its responds. It can repeat the charade of Second Reading and the charade of the Rwanda Bill but ultimately all this does is to compound the injustice of the Windsor Framework by taking the people of Northern Ireland for fools. In a context where they have the opportunity to bring forward the Bill as genuine UK wide legislation by means of simply inserting New Clause 3, any decision on their part not to do so exposes their apparent commitment to the union as a sham. If this government is really committed to the union, and to Northern Ireland, then it must embrace New Clause 3 to ensure that the protections afforded UK citizens in England, Wales and Scotland are also afforded UK citizens in Northern Ireland.
Jim Allister KC MP
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