Brian Monteith: Another week, another headache with the Irish Sea border - this time in relation to tobacco

If it is not the economic statistics confirming real trade distortion is happening because of the Irish Sea border, it is a detailed paper by the Federation of Small Business reporting mainland businesses are simply giving up dealing with the province due to the bureaucracy being demanded of them.

Now another example of the absurdity inherent in the Windsor Framework has surfaced as a King’s Counsel opinion has now been made public arguing the Labour government’s Tobacco and Vapes Bill, currently passing through Westminster, is in breach of both the Windsor Framework and the Belfast Good Friday Agreement – and is a recipe for encouraging greater smuggling of contraband and lawlessness.

The reason this particular example is so bizarre is because it is self-inflicted by the UK government, which is insisting on passing its new restriction into law despite being advised by British and Irish politicians that it conflicts with EU law and therefore cannot be enforced in Northern Ireland.

The Tobacco and Vapes Bill proposes a UK-wide generational ban on tobacco sales for those born after 2008, but the Windsor Framework retains parts of the Northern Ireland Protocol, maintaining NI’s access to the EU Single Market for goods and alignment with certain EU rules, including the Tobacco Products Regulation (Directive 2014/40/EU). The directive permits legal tobacco sales to adults aged 18 and over, so applying the UK law in Northern Ireland would create inconsistency with EU law, violating the Windsor Framework which Labour wishes to preserve.

If the bill is implemented UK-wide, but is not enforceable in Northern Ireland, tobacco could still be legally sold in Northern Ireland to consumers at 18+ but banned in Great Britain for those born after 2008. This risks the rise of a black market via illicit cross-border trafficking from Northern Ireland.

The UK government is well aware that unilateral divergence in product regulation without Joint Committee agreement could give rise to legal challenge in domestic courts under the European Union (Withdrawal Agreement) Act 2020 and result in retaliatory action by the EU. Yet the health secretary Wes Streeting has carried on with the bill without making it compliant with the Windsor Framework by limiting its application to Great Britain.

When an opinion was sought from former Lord Chancellor and King’s Counsel, Sir Robert Buckland, he stated a legal challenge could be made to the bill’s measures under Article 2(1) of the Windsor Framework which, in accordance with Article 4, would directly disapply the relevant provisions of the Tobacco and Vapes Bill in Northern Ireland.

So yet another mess of their own making is just around the corner for the UK government.

Buckland has gone further and concludes the government bill is also in conflict with the 1998 Belfast Good Friday Agreement which includes “the right to equal opportunity in all social and economic activity…” – which can be construed to include being able to lawfully purchase goods and services such as tobacco products.

He added: “The fact that the government of the Republic of Ireland has, in contrast to the UK position, recently specifically considered and rejected a generational ban as likely to conflict with the 2014 EU Directive, and has opted to raise the minimum age for lawful sales of tobacco products to 21, is a useful source of support.

“Such a judicial review application would best be made in the Northern Ireland High Court, by a suitably interested party with standing. It is of course possible to bring the matter before the courts of England and Wales, but an application by, for example, a group of affected wholesalers or retailers in Northern Ireland, may be a more powerful one.”

The answer is simple enough: the UK government must either tear up the Windsor Framework so the UK can decide its own laws – or withdraw the Tobacco and Vape Bill and continue to operate under existing law which is compliant with the EU directive. Both answers are embarrassing to Streeting and Starmer but something’s got to give if a likely legal challenge is to be avoided.

• Brian Monteith is a former member of the Scottish and European parliaments.