The Tobacco and Vapes Bill risks unravelling Windsor Framework

Telegraph

4 hours ago

As a former Solicitor General and Chair of the Northern Ireland Affairs Select Committee, I am no stranger to the legal complexities that arise when Westminster legislation intersects with our post-Brexit arrangements in Northern Ireland. Yet even by those standards, the Tobacco and Vapes Bill now before Parliament represents an extraordinary and avoidable collision course with the law.
Ministers have sheepishly suggested that the Bill does not affect trade between Northern Ireland and the rest of the UK. That is a surprising conclusion, and, in my view, a legally indefensible one. As someone who helped oversee the legal machinery of government, I can say this plainly: legislation that purports to apply across the UK but cannot lawfully operate in Northern Ireland is both constitutionally and legally incoherent.
The problem is relatively straightforward. Under the Windsor Framework, Northern Ireland continues to follow key parts of EU law to maintain access to the EU Single Market for goods. One such law is the 2014 EU Tobacco Products Directive, which mandates that tobacco can be legally sold to adults aged 18 and over. The UK Bill proposes a generational ban, effectively criminalising the sale of tobacco to anyone born after 2008. The contradiction is obvious.
If the Bill applies UK-wide, Northern Ireland will be out of step with EU law. If the Bill is not enforceable in Northern Ireland, then the UK's internal market will be fragmented. Either outcome exposes the UK to legal challenge and breaches the treaty obligations we signed only last year.
The Windsor Framework is not merely political scaffolding; it is now part of an international treaty that carries direct effect in UK law. As I saw time and again during my tenure as Chair of the Northern Ireland Affairs Select Committee, the unique legal position of Northern Ireland requires careful and nuanced handling. Blunt instruments like this Bill risk unravelling the hard-won gains of recent years.
The legal risk is not hypothetical. The courts in Northern Ireland – in cases such as Dillon v Secretary of State for Northern Ireland, have confirmed their power to dis-apply UK legislation that contravenes the Framework. The relevant test, long established, would be easily met here. The right to purchase legal goods, like tobacco, is an economic right protected under the Framework and the Good Friday Agreement. To remove that right in Northern Ireland, by domestic legislation that conflicts with EU law, would be a direct breach of both. It is simply inconceivable that such a law could stand in Northern Ireland without falling foul of the courts.
I say this not as a political opponent of the Bill's objectives, (I actually voted in favour of the Bill in principle under the last government) but as a KC who has spent years navigating the legal thickets of post-Brexit Britain. The law matters. International obligations matter. Our constitutional order depends on Parliament respecting both. I have been greatly disappointed by the level of forensic legal rigour applied to the Bill that is required for it to get muscular enough to be considered remotely workable.
The choice now before Parliament is not whether to press ahead with the generational ban.
It is whether to press ahead lawfully. That cannot be done until the UK secures agreement through the UK–EU Joint Committee or expressly exempts Northern Ireland from the scope of the Bill.
Until then, the Government must pause this legislation. Anything less risks breaching international law, undermining the internal market, and inviting yet another avoidable constitutional crisis.