Windsor Framework (Enforcement etc.) Regulations 2023
(Limited Text - Ministerial Extracts only)
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Lord Benyon
That the Grand Committee do consider the Windsor Framework (Enforcement etc.) Regulations 2023.
Relevant document: 51st Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)
The Minister of State, Department for Environment, Food and Rural Affairs (Lord Benyon) (Con)
My Lords, I beg to move that the draft Windsor Framework (Enforcement etc.) Regulations 2023, which were laid before the House on 4 September, be considered.
The purpose of the instrument before the Committee is to implement arrangements agreed under the Windsor Framework, which was announced by this Government in February this year. This framework fundamentally recasts the old Northern Ireland protocol to restore the smooth flow of trade within the UK internal market, safeguard Northern Ireland’s place in the union and address any concerns over a democratic deficit. Importantly, this instrument does not establish those arrangements themselves but provides Northern Irish authorities with the powers to ensure their proper functioning. This guarantees protection for Northern Irish consumers in line with that in the rest of the United Kingdom.
First, the Northern Ireland retail movement scheme establishes a new sustainable, long-term legal framework for trade in retail agri-food goods between Great Britain and Northern Ireland. The new scheme will allow traders moving agri-food goods destined for the final consumer in Northern Ireland to benefit from a unique set of arrangements. These arrangements enable consignments to move based on a single certificate without routine physical checks. This will be on Great British public health, marketing and organics standards, as well as catch documentation requirements for certain species of fish.
In total, the Windsor Framework secures the disapplication of more than 60 EU regulations on goods moving to Northern Ireland via the scheme. The application of GB standards to these goods ensures a common approach across the UK. The scheme will be available to all such traders, including retailers, wholesalers, caterers and those providing food to public institutions such as schools and hospitals.
Baroness Anderson of Stoke-on-Trent (Lab)
My Lords, this has been a genuinely fascinating debate and, as ever, shows the complex nature of every issue when we look to our post-Brexit environment. I thank the Minister for his overview of this statutory instrument and for the correspondence I received from his fellow Minister, the noble Baroness, Lady Neville-Rolfe.
This legislation is vital to the implementation of the Windsor Framework and, as His Majesty’s Opposition made clear in the other place, we support a negotiated outcome with the European Union. For the avoidance of doubt, while the Labour Party does not believe that the Windsor Framework is perfect, we do believe it is a substantial improvement on what came before.
His Majesty’s Opposition supported this instrument when a vote was called in the Commons. Again, this was not a wholehearted endorsement of what the Government have achieved—as we have heard today, important gaps remain—but a reflection of our belief that these issues must be resolved through negotiation rather than threats or unilateral action.
This is why I am so grateful to members of the Secondary Legislation Scrutiny Committee, including my noble friend Lady Ritchie, for their reflections on the recent set of Windsor Framework SIs, and for consistently considering the views of colleagues with divergent opinions. As well as key stakeholders, different organisations and political parties may reach varying conclusions on the Windsor Framework, but we should all be able to feed these into the process and have our views heard.
The Windsor Framework was announced in February and many of the changes within it will be operational in just a couple of weeks, so it is concerning that these instruments have been brought forward for consideration only in this short September sitting. I fear that this is something of a pattern, not just in relation to the Windsor Framework but more generally in the tabling of SIs. Can the Minister advise on why this process has been so delayed in both Houses?
In the debate in another place, my right honourable friend and colleague Hilary Benn asked a number of questions and Minister Spencer committed to following up on a number of points in writing. Does the Minister have a copy of this correspondence, and does he wish to read any of its contents into the record? If it has not yet been sent, can participants in this debate be included in the correspondence?
Northern Irish consumers will soon enjoy access to a greater number of goods than was possible under the old protocol. The lifting of restrictions on seed potatoes and certain pre-packed meat products is especially welcome as that is important for farmers and producers on both sides of the Irish Sea. But it is important to note that restrictions remain on some items, including a number of shrubs and trees, many of which are still under review, as raised by the noble Lord, Lord Dodds. Can the Minister update us on the timing of the review and when we can expect additional trees and shrubs to be added to the green lane?
This instrument deals with enforcement powers, aiming to provide what paragraph 7.1 of the Explanatory Memorandum describes as
“the pragmatic and proportionate enforcement of GB public health, marketing and organics standards in NI for goods moved”
under the new schemes. His Majesty’s Government insist that there will be
“no impact on traders who abide by the terms and conditions and regulations that govern the scheme”.
Does the Minister really endorse that statement? There may be no enforcement impact, but there is a practical impact on businesses, which have to adjust to new procedures as well as covering new and different costs.
Also, as the Secondary Legislation Scrutiny Committee notes and as my noble friend Lady Ritchie raised, there has been no formal consultation on these measures, although there has been informal engagement with a range of stakeholders. Given the lack of formal consultation prior to the changes, can the Minister confirm whether there will be any post-implementation review? If so, when? How will that process work?
It is imperative for us all to make this work. While we support the negotiated settlement reached earlier this year and hope it will lead to a marked improvement in the experiences of Northern Ireland businesses and consumers, I sincerely hope that, moving forward, whether on the Windsor Framework or other issues, His Majesty’s Government will make a renewed effort to work with parties and communities in Northern Ireland, rather than imposing policy on them. I look forward to hearing from the Minister.
Lord Benyon (Con)
I thank noble Lords for their contributions to this debate. A number of questions have been asked; I will endeavour to answer them all. I will start by answering the point that the noble Baroness, Lady Anderson, just raised. We want power-sharing to restart and decisions about the lives of people and businesses in Northern Ireland to be taken by people in Northern Ireland. We really do want to see that happen as soon as possible, of course.
I will tackle the points more or less as they were raised, but I apologise if I mix them all up. The Windsor Framework achieves a long-standing UK government objective to restore the smooth flow of trade within the UK internal market by pursuing a green lane for the movement of goods from GB to Northern Ireland, supporting Northern Ireland’s place in the UK. It restores the smooth flow of trade within the UK internal market by removing the unnecessary burdens that have disrupted east-west trade. At the same time, the Windsor Framework recognises the need to protect the biosecurity of the island of Ireland, which, as the noble Baroness, Lady Ritchie, pointed out, has been treated as a single epidemiological unit for decades. It is the case that some checks, such as those on live animals, were required from GB to Northern Ireland prior to EU exit and before the old Northern Ireland protocol was implemented to protect the integrity of this single epidemiological unit. I say to the noble Lord, Lord Morrow, that this is about achieving unfettered access for Northern Ireland to Great Britain in trade terms, but this SI is about Great Britain to Northern Ireland.
A number of noble Lords asked about the practical consequences, so let us discuss what would happen if this SI were not taking place or if it were not approved by Parliament. The consequences would be the UK failing to comply with its legal duties and international obligations under the Windsor Framework. This statutory instrument forms part of the Defra Windsor Framework legislation that must be in force by 1 October 2023. It is therefore also required to establish, maintain and support the arrangements agreed under the Windsor Framework.
Specifically, this SI in Defra’s legislative package is required to enable the necessary enforcement of GB standards for goods moving under the Northern Ireland retail movement scheme when placed on the market in Northern Ireland. To protect public health and ensure food safety in Northern Ireland, authorities in Northern Ireland will be able to check and remove non-compliant goods from sale. That will ensure that consumers in Northern Ireland are protected by the same high standards as those in Great Britain. The risk of not proceeding would be insufficient public health and food safety protections for consumers in Northern Ireland, meaning that Northern Ireland consumers were less well protected than those elsewhere in the United Kingdom, severely undermining consumer confidence in the Northern Ireland food system. That risk is significant, and any non-legislative alternatives fall short of addressing it.
Lord Dodds of Duncairn (DUP)
Is the Minister implying that until the moment when the checks will be done, Northern Ireland has been at grave risk for many decades as GB goods and agri-food produce flowed into Northern Ireland? Is he saying that for all those years we were at terrible risk?
Lord Benyon (Con)
No, of course not, but we want to have the same measures in place in Northern Ireland that people in Great Britain have. It will also ensure that for certain plants and other objects, which I have already discussed, moving from GB to Northern Ireland under the Northern Ireland plant health label scheme sufficient enforcement powers are available in GB and Northern Ireland. Without those enforcement powers, there would be a risk that biosecurity concerns related to non-compliance with the Northern Ireland plant health label scheme would be insufficiently addressed.
Consultation was raised by a number of noble Lords. Due to the timescales for the introduction of this statutory instrument, as conferred by the legal text of the Windsor Framework, to which the UK is a committed signatory, and the urgency of ensuring effective enforcement provisions are in place, it has not been possible to consult on this document. However, the arrangements agreed under the Windsor Framework are based on extensive engagement with industry and stakeholders in Northern Ireland over the past two years.
Defra continues to engage with businesses through regular forums, including the weekly NI-GB Food Supply Chain Forum, frequently attended by over 200 representatives of organisations across the supply chain, alongside ad hoc engagement. In addition, we have published detailed guidance regarding the Northern Ireland retail movement scheme online and are running a series of training sessions for businesses on how to move goods under the Windsor Framework arrangements. We responded to concerns that were raised through this process and we continue to have engagement with businesses, including sharing early versions of guidance with key retailers and consulting businesses wherever flexibilities regarding the scheme, or pragmatic solutions to challenges, are forthcoming. We continue to build our offer to businesses, including: running a fortnightly whole supply chain forum that is regularly attended; a weekly engagement call with retailers; weekly webinars; training sessions; guidance published on GOV.UK; the circulation and regular iteration of a new frequently asked questions document; a dedicated inbox traders can direct their questions to; and, as I say, more engagement besides.
The noble Baroness, Lady Ritchie, and a number of others talked about the impact assessment. A de minimis assessment has been completed for this statutory instrument, in line with standard practices and thresholds for the evaluation of impacts where these are expected to fall under £5 million. The overall impact of the Windsor Framework is positive, as it aims to ease the movement of goods between Great Britain and Northern Ireland, and this statutory instrument is a necessary part of implementing the framework. We have evaluated the specific impact of this SI. There are no significant costs to businesses, no significant impact on charities or voluntary bodies and no significant impact on the public sector.
The noble Lord, Lord Morrow, raised a further point on disapplication. Disapplication and derogations from EU law agreed under the Windsor Framework mean that the EU has to change its law, which of course it has to do under EU regulations. This is none the less implementing the bilateral agreement between the United Kingdom and the EU. The Windsor Framework takes effect through a range of mechanisms, including amendments to the text of the framework formally known as the Northern Ireland protocol, unilateral and joint declarations, and new UK and EU legislation. The EU has made new legislation to implement its obligations under the bilateral agreement between the United Kingdom and the EU.
The noble Baroness, Lady Ritchie, asked about the SPS veterinary agreement. We have always been clear that the UK Government could not accept a veterinary agreement that is based on dynamic alignment with EU rules in perpetuity, and the EU has only ever proposed a veterinary agreement that is based on dynamic alignment. Through the Windsor Framework, the UK Government have committed to the construction of SPS inspection facilities. The Secretary of State for my department took powers earlier this year to progress construction of SPS inspection facilities. Permanent facilities will be ready by 1 July 2025 and an additional, temporary product inspection facility at Belfast port has been constructed and will be ready to conduct additional sanitary and phytosanitary checks from 1 October 2023 as the new schemes go live. I know there has been consultation between DAERA and the EU: that was happening last week and I know there was some involvement in that.
The noble Lord, Lord Dodds, asked why this SI was not laid earlier and why additional scrutiny was not possible. He mentioned the parliamentary Recess. I just say that it was not possible to lay these regulations earlier. The Windsor Framework was agreed on 27 February. Since then, detailed policy development and further engagement with the EU and with devolved Administrations has been required to finalise the arrangements. As this SI implements these arrangements, it was not possible to lay this SI before finalising the details. Some provisions within the Windsor Framework (Retail Movement Scheme) Regulations were required to take effect on 1 September. This was to ensure that traders have sufficient time to register for the scheme ahead of it taking effect on 1 October.
A number of noble Lords mentioned seed potatoes. The Northern Ireland plant health label scheme means that previously banned seed potatoes will once again be able to move to Northern Ireland from other parts of the UK, while remaining prohibited in the Republic of Ireland. The movement of seed potatoes is permitted using a Northern Ireland plant health label, rather than a costly phytosanitary certificate. Great Britain seed potatoes can be moved between professional operators for commercial growing in Northern Ireland. Once seed potatoes have been planted and grown into potatoes for consumption, they can be sold, including into the EU. If the seed potatoes are grown to produce further seed potatoes that meet the requirements of Northern Ireland’s classification scheme, the harvested seed potatoes will be eligible for sale and marketing to consumers and businesses in Northern Ireland and the EU.
The Government are committed to ensuring that the Windsor Framework’s benefits are realised for the benefit of businesses and people in Northern Ireland and across the UK in a manner that meets our international obligations. Therefore, we continue to take forward work to implement the Windsor Framework and engage with Northern Ireland parties as part of those efforts.
A number of noble Lords mentioned trees. The EU’s risk assessment process for the movement of so-called high-risk trees will be expedited. Once approved, they will move from Great Britain to Northern Ireland, within the Northern Ireland plant health label. We prioritised removing bans on the movement of the plants and trees of greatest importance to industry: seed potatoes, which I have already mentioned, and the 11 most important GB-native and other commonly grown trees. Since the signing of the Windsor Framework, eight dossiers have been approved, with the ban on movement lifted on privet, hawthorn, apple, crab-apple and four species of maple. Another three dossiers, covering English oak, sessile oak and beech, are going through the process, with votes due imminently. We will continue to work with industry to make the case to lift the ban on other species, where there is a demand to do so. As dossiers are approved, they will be published on the plant health portal.
The noble Lord, Lord Browne, and others talked about whether this new arrangement was more burdensome than the STAMNI. The STAMNI was designed and implemented as a temporary measure to give retailers time to adapt to the requirements of the protocol. The Government have taken action to secure a sustainable, permanent exemption from these requirements for retailers. The Northern Ireland retail movement scheme provides a much broader scope than current arrangements in both the businesses that can benefit from these facilitations and the products eligible to move. For example, goods that meet GB public health, marketing and organics standards can move into Northern Ireland under the scheme. Goods that have been subject to additional certification, including certain chilled meat products such as sausages, will now be able to move under the single, per-consignment certificate.
Membership of the scheme is broader, too, covering hospitality, those providing food to the public sector and wholesalers supplying smaller retail outlets in Northern Ireland. Scheme membership can be easily updated, with businesses able to join and leave the scheme as their supply chains evolve.
Lord Dodds of Duncairn (DUP)
These are important matters of detail. Can the Minister set out the trees and plants that are banned after the 11 dossiers have been fulfilled and all the rest of it? This is important because, as the Minister may be aware, the Secretary of State for Northern Ireland gave fairly fulsome assurances publicly on television, even when challenged by journalists, that all these matters would flow smoothly and there would be no inhibitions for plants, trees and so on coming to Northern Ireland. I would be grateful if the Minister set out in writing to me and other Members of the Committee what is allowed and what is banned; what may be sold through garden centres commercially and what may be sent to individual consumers.
On seed potatoes, I think the Minister said that professional companies could sell to other organisations. What is the position with selling directly to consumers so that people can buy these things at garden centres and so on? I know that he has set out some broad-brush things, but it is that sort of detail that really matters to people on the ground.
Lord Benyon (Con)
I entirely understand the need for detail; I want to get the detail right and, therefore, I will write to the noble Lord giving that absolute clarity.
The noble Baroness, Lady Bakewell, asked about fish. This SI simply ensures that the marketing and labelling standards for fish products in place in Great Britain are also in place and enforceable in Northern Ireland for products moving through the Northern Ireland retail scheme.
I think I have covered as many points raised by noble Lords as I can. I thank noble Lords for their contributions.