Lessons on being a rule-taker

The Government’s proposed EU reset creates a reason for people in GB to look closely at the way in which the EU is legislating for Northern Ireland.

One example which provides a real cautionary tale about the danger of becoming a rule taker, of which everyone in the UK should be aware, pertains to the impact of EU law on the NHS.

Public support for the NHS is greater in the UK than almost any other institution. Polling conducted by the Health Foundation to coincide with the 75th anniversary of the creation of the NHS showed that 72 per cent believed: “The NHS is crucial to British society and we must do everything to maintain it”.

In this context the UK Government faced a real problem when in February 2024 the British Dental Association called out the implications of Regulation (EU) 2024/1849 which banned the use of dental amalgam in the EU, and thus Northern Ireland, completely from 1 July 2026.

The British Dental Association pointed out that if the use of dental amalgam was banned in Northern Ireland from 1 July 2026 this would “break” NHS Dental Services. The presenting difficulty is that the alternative to dental amalgam is both more expensive to buy and apply. In the face of these new cost increases NHS Dental services in Northern Ireland would become unsustainable. 

Far from upholding the best interests of Northern Ireland, the Windsor Framework was about to take out a critical aspect of one of our most treasured national institutions, the NHS Dental Service.

Of course, there was no great surprise that Brussels should generate legislation singularly ill-suited to Northern Ireland because none of its legislators represent Northern Ireland. This sort of thing is part and parcel of the folly of submitting to a foreign legislature.

The UK Government recognised that allowing the Windsor Framework to become something that posed an existential threat to an aspect of one of our most prized institutions would create an Irish Sea Border crisis.

Labour set to work on this after the General Election and quickly extracted a solution that, at face value, sounded great. On 19 July 2024 the European Commission announced that instead of the ban taking effect in Northern Ireland on 1 July 2026, it would not take effect until 1 January 2035.

However, when we begin to examine the basis for the new legislation, alarm bells begin to ring.

Of huge concern, the basis for asserting that the use of dental amalgam will not become illegal on 1 July 2026, was not a change in the relevant legislation, but something called a “Commission Notice” which can only be used to “interpret” the law. This creates two problems:

First, while there can be scope for “interpretation” so long as the interpretation remains accountable to what the law says, that plainly does not apply in this case because the “interpretation” applied by the Commission to the legislation bears no relation to the relevant text.  Indeed, this Commission Notice draws us into farce whereby it effectively says that when the regulations say that the use of amalgam is banned from 1 July 2026 onwards, what they really mean is 1 January 2035 for Northern Ireland, when they say no such thing.

Second, this problem is compounded by the fact that the Commission Notice comes with a warning. While all such Notices are subject to the less than reassuring qualification that they are without prejudice to the role of the European Court of Justice in the application of the law in question, in this instance the Commission (perhaps not surprisingly) appears to have felt the need to cover itself with something stronger. The Notice is preceded in very large capitals with the heading, “DISCLAIMER”: “While this Notice seeks to assist authorities and operators, only the Court of Justice of the European Union is competent to authoritatively interpret Union law”.

Thus, Northern Ireland is disadvantaged by the Windsor Framework not only by the indignity of having a law imposed on us by a foreign Parliament, which places one of our most treasured institutions in jeopardy. We are now from July 2026 further humiliated with a sticking plaster solution that discriminates against the people of Northern Ireland by placing our NHS Dental Services on a far more precarious legal foundation than equivalent services in relation to the rest of the UK. If the Court is ever asked to interpret the law, it will have to interpret the law, not the Commission Notice which is not law. In this context it is logically inconceivable that it could reach any conclusion other than the use of amalgam in Northern Ireland was banned from 1 July 2026.

In all of this it would be remiss not to note that it is the height of irony that this indignity should be meted out on Northern Ireland during the month of our annual celebrations marking the Glorious Revolution of 1688 and the advent of constitutional government wherein the King, the executive arm of government, was formally made subject to the law. The Commission is the EU Executive and, in producing its Commission Notice, it has effectively sought to change the law without reference to its Parliament. While there is, of course, a far greater injustice in this case because the executive and legislature in question are foreign and have no business making our laws in any event, it is particularly inappropriate to bring a “solution” to Northern Ireland that arises from an executive effectively changing the law without the agreement of its Parliament.

Regardless of our chances of getting away with using amalgam until 31 December 2034, there can be no doubt that this demeaning episode has illustrated with unrivalled clarity the absolute absurdity of the Windsor Framework. No other self-respecting people would tolerate being treated in this way. Why should we?

The truth is that the reset is a carefully designed strategy to destroy Brexit by robbing it of its moral purpose and rationale — taking back control — by requiring that GB does the exact opposite and gives more control away, as we have already been required to do in Northern Ireland.

Instead of pursuing the reset through the Government’s European Partnership Bill, making Great Britain a rule taker as well as Northern Ireland, we should adopt my EU Withdrawal Alternative Arrangements Bill which would remove the Irish Sea Border and protect the integrity of the UK Internal Market through Mutual Enforcement without creating a hard border with the Republic of Ireland. This would place the NHS, and every other aspect of our national life — including our democracy — on a secure and dignified UK foundation.