Official Controls (Amendment) Regulations 2024

Wednesday 29th January 2025 Lords Chamber

Motion to Approve

20:26

Moved by

[Baroness Hayman of Ullock]

That the draft Regulations laid before the House on 19 November 2024 be approved.

Relevant document: 10th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument).

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Baroness Hayman of Ullock) (Lab)]

My Lords, this SI is required as part of the implementation of the border target operating model, which aims to deliver a streamlined approach to imports that protects public, plant and animal health and minimises friction at the border. The instrument uses powers conferred by the Retained EU Law (Revocation and Reform) Act 2023, also known as the REUL Act. The changes it implements fall into three main categories.

The first category of measures provides a long-term legislative framework for sanitary and phytosanitary controls that have already introduced, but takes this beyond the reliance on temporary powers such as the transitional staging period. I will give some examples of how the instrument does this. It amends the definition of an official certificate to include digital documents, which will facilitate fully electronic and digital import documentation. It expands the definition of a documentary check to include remote examination or by automated means. We are also making it possible to remove the requirement to carry out documentary checks on all imports, so that checks can be made based on risk. The instrument also provides the power to allow for inland border control posts for reasons other than geographical constraints, and gives government the power to determine whether to designate allowing greater control to place border control facilities and resources with biosecurity, trade and food security priorities.

The second category of measures allows for a response to risk so that conditions governing the import of animals and animal products can be updated administratively. This will uphold our obligations to protect biosecurity and public health while facilitating trade, and will mean that competent authorities, devolved Governments, the Food Standards Agency and Defra will be able to amend and manage biosecurity controls in response to changing risks. Additionally, animals and animal products can be categorised based on risk, including the ability to exempt low-risk categories from unnecessary checks, which will align our animal control measures with plants and plant products.

The third category of measures allows policies to reduce burdens and allows the extension of policies to non-EU goods. Implementation of these future policies would require further legislative change, but we propose to have the powers in place now in order to provide for future flexibility so that we can respond quickly to risk.

However, there are two policies that have impact from the date this instrument will come into force. First, it allows diagnostic testing of plants and plant products to be undertaken at a border control post, instead of such tests needing to take place at official laboratories. This will significantly reduce the time that certain perishable goods will be held.

The second is the use of enhanced enforcement powers to require and pursue full cost recovery of the common user charge for goods entering through government-run border control posts. This is vital to ensure full cost recovery of the operating costs and ensure that businesses pay charges for their import activity.

These changes will have no impact on the Windsor Framework and do not bring in additional checks on the west coast of Great Britain. The Scottish and Welsh Governments has consented to these amendments.

20:30

I now draw the House’s attention to a submission that we received from Friends of the Earth. It shared its concerns about checks being made away from BCPs, the frequency of checks being based on risk, how misdeclaration would be handled, performance monitoring and whether we are acting within the powers in the REUL Act. In our response, we explained that this instrument only provides provision to be made for documentary, identity and physical controls to be undertaken at places other than border control posts or control points, and that we have robust, evidence-based risk modelling that can place SPS into categories based on the inherent risk that the product poses to animal, food, biosecurity and public health.

For animals and animal products, the default documentary rate remains at 100% and, while low-risk goods do not require certification or routine checks under the new approach, we are still able to detain these goods for checks based on intelligence. By next year, we will be regularly reviewing the risk categories and we have existing surveillance programmes to ensure that any emerging risks are detected and dealt with in a timely manner. Finally, the REUL Act is being used within its powers to replace the provisions under assimilated law that was inherited from the EU, and to create new provisions that achieve the same or similar objectives.

The Secondary Legislation Scrutiny Committee asked about the use of administrative rather than legislative powers in other areas of import controls. Our response explained that, while powers exist to control imports through statutory instruments, administrative powers are required to ensure that changes to import conditions can be made rapidly in response to emerging biosecurity and food safety risks with trading partners that are approved to export into Great Britain. The amendments reflect and build on changes already made since the United Kingdom left the EU to refine our listing procedures for imports of animals and animal products in ways that provide the flexibility and responsiveness needed to protect biosecurity and facilitate trade. The committee noted Defra’s explanation and was reassured about the use of administrative rather than legislative powers in this specific policy area.

The Government are committed to removing trade barriers, including through looking to negotiate an SPS agreement with the EU, but this will clearly take some time. This instrument therefore is needed to implement the policy that industry has been preparing for and, importantly, to ensure that biosecurity is maintained between now and any agreement taking place.

These regulations will ensure that the controls already in place are enduring. They implement a responsive border to protect the United Kingdom from emerging pests and disease, while at the same time supporting businesses with processes that are as simple and effective as possible.

Amendment to the Motion

Moved by

[Baroness Hoey]

At end insert “but that this House regrets that the draft Regulations further distance Northern Ireland from the United Kingdom and embed it further under European Union control.”

[Baroness Hoey (Non-Afl)]

My Lords, the Official Controls (Amendment) Regulations are in my view deeply problematic, because they effectively render for SPS border purposes that Northern Ireland, along with the rest of the world, is a third country in relation to the rest of the United Kingdom. These regulations have for UK citizens living in the part of the UK called Northern Ireland what I call a deeply othering implication whereby we are set apart from our own country, with the rest of the world.

Let me be clear: when I fly back to Northern Ireland each week from your Lordships’ House, I am in effect entering the European Union when it comes to all laws relating to goods. I am entering its single market and its customs code, which is of course why the EU insists on the Irish Sea border to distinguish and give effect to the fact that, under this regulation, you are entering EU territory.

The Minister has sought to justify this by saying that the Government are seeking to protect the biosecurity of Great Britain and that this is not new but the stated purpose of their border target operating model, which was subject to public consultation. I have to tell the House that I and the other noble Lords who are opposed to these regulations are very aware of these points, which do nothing to remove the central injustice of the effect of these regulations on the body politic of the United Kingdom. I understand why the noble Baroness still attempts to justify the regulations, because she may not feel that it is her responsibility to engage with the central injustice, but I and others certainly can and that is what I want to highlight in this debate tonight.

I start by stating that a most basic function of a Government to its people is the provision of their security, and a critical component of security is biosecurity. The Government cannot just be allowed to abdicate their biosecurity responsibilities for Northern Ireland to the European Union, any more than it would abdicate its responsibilities for any other aspect of the security of Northern Ireland or other part of the UK to another country or group of countries. Surely this is a basic moral imperative. In case of any doubt, Article 1.2 of the Windsor Framework states:

“This protocol respects the essential state functions”


of the United Kingdom.

We all know that, before the imposition of the Irish Sea border, Northern Ireland was deemed to be in a different SPS zone from the rest of the United Kingdom. But what was never in doubt was, first, that Northern Ireland was part of the United Kingdom and not a third country in relation to it and, secondly, that, as such, the biosecurity of Northern Ireland was as much a responsibility of the UK Government as the biosecurity of GB. In this context, while any Government confronted by the outbreak of a biosecurity threat in a particular part of their territory will seek to limit movements to protect the rest of their territory from that outbreak, at no point is that part of the state relinquished such that it ceases to be part of the ultimate biosecurity identity of the state in which it is located. Ultimately, our security was held in common by the union that is the United Kingdom.

The difficulty with these regulations is not simply that their focus is on the biosecurity of Great Britain, as if the biosecurity of Northern Ireland did not matter, but that they are construed in terms that effect the casting aside of Northern Ireland for biosecurity purposes so that it is no more the concern of the UK Government than any other part of the world, the rest of the world being conflated with it into the same zone of third countries. This othering, as I mentioned earlier, transforms Northern Ireland from being part of the UK body politic for biosecurity purposes into something outside it. This is a hugely controversial issue, because one of the most basic questions of political identity pertains to who you join with when your back is against the wall in the context of a security crisis. Who are the people with whom, in the words of John Stuart Mill, “our lot hangs together”? With whom do we say “we”? These are not trifling matters that can be adjusted on a whim. The people of Northern Ireland cannot be lifted out of their security identity and become, like the rest of the world, a potential threat to the biosecurity of Great Britain from which Great Britain must be protected by the Irish Sea border.

The presenting difficulty is even worse than that. Biosecurity threats are, by definition, greatest from those who are not part of you but close. Northern Ireland, therefore, is reconfigured by these regulations not just to be a third country but the greatest third-country biosecurity threat to Great Britain on account of being the closest third country to Great Britain, separated by just a dozen nautical miles of British territorial sea in the North Channel.

In addition to reconfiguring Northern Ireland into a third-country threat to the biosecurity of Great Britain rather than part of the United Kingdom that is still the responsibility of the UK Government, these regulations imply that, as a third country, the biosecurity of UK citizens living in that part of the United Kingdom that is not Great Britain is not the responsibility of the UK Government. This rather suggests that there is no equivalent UK biosecurity legislation covering Northern Ireland because, if such legislation existed, while being in some senses in separate zones, ultimately the fact that the UK is a single state means that UK legislation pertaining to the biosecurity of Northern Ireland would need to relate to the equivalent UK legislation pertaining to the biosecurity of Great Britain and vice versa.

I raised this twice when we debated biosecurity regulations on 10 December 2024. The Minister in her response sought to respond, but I intervened to make the point clearer as it was being missed. I said at column 1694:

“If goods coming from the Republic through Northern Ireland into Great Britain have to be security-checked for phytosanitary and all the other reasons, why are people in Northern Ireland then left with nothing? How does the Minister know that we are not going to be poisoned or threatened by some kind of problem that she feels will come through to Great Britain?”


The Minister responded:

“I completely get the point that the noble Baroness is making. Our international commitments, and the Trade and Cooperation Agreement, require us to treat EU goods equally, regardless of the entry point. As she is aware, there is a lot of legislation already in place. There are issues within the Windsor Framework. There are matters that we need to discuss with the EU as we go forward with the EU reset that has been discussed”.—[Official Report, 10/12/24; col. 1694.]


Well, that did not really answer the question: how does the UK discharge its equal essential state function to protect the biosecurity of the people of Northern Ireland and how does that legislation relate to the GB legislation?

Perhaps I can attempt to give the real answer and then the Minister will have the opportunity to correct me if I am wrong. The truth is that the UK Government have, in violation of Article 1 of the Windsor Framework, abdicated their essential security function in Northern Ireland in relation to biosecurity and effectively allow goods to flow in freely from the EU, outsourcing their essential state function in biosecurity to the EU and its legislation. The only biosecurity function and legislation that the UK Government now seek to provide relates to Great Britain and they set out that function in this and other legislation in terms that not only do not apply to Northern Ireland but reconfigures Northern Ireland from being part of the same biosecurity identity as the rest of the UK.

In all of this—and this might sound surprising—the regulations before us today give great grounds for hope. That sounds rather strange, given everything else I have said, so let me explain. These regulations contain three central components. First, they make provision for an SPS border to protect Great Britain from goods coming from the Republic of Ireland and the wider EU. Secondly, they do so along the Irish Sea rather than on the international boundary on the UK-Republic of Ireland land border. Thirdly, they make provision for that border to be upheld without hard-border infrastructure.

Under these regulations, those wanting to move goods from the Republic and wider EU into Great Britain by way of Northern Ireland are, under Regulations 16 and 17, no longer required to pre-notify to a border control post but can pre-notify instead to authorities based anywhere in GB, and, under Regulations 14, 7 and 11, they are no longer required to attend a border control post on the border and can be directed to SPS facilities away from the border, in some cases in Northern Ireland and in some cases in GB—and in some situations checks can take place at the place of destination.

This is a huge breakthrough, but it makes these regulations completely unsustainable. The justification for moving the border between the Republic of Ireland and the UK to the Irish Sea was that, if a hard border was erected along the actual international border, it would be provocative and terrorists would attack the border infrastructure and anyone employed in staffing the border.

It was never that the border cannot be where it is. The whole point of the Belfast/Good Friday agreement was and is to recognise that unless and until there is a border poll and a majority of people in both Northern Ireland and the Republic vote for Northern Ireland to leave the UK and become part of the Republic, the international border remains where it is and Northern Ireland remains in the UK.

In this context, a border without infrastructure has long existed across the island of Ireland for multiple purposes: tax, excise and legislation. We even have miles into kilometres and pounds into euros when we cross the border. Checks happen there. During Covid, the Republic conducted border checks and people moving south were stopped in their cars. Recently, we saw Irish police seek to enforce the border for immigration purposes. The difficulty presented by Brexit—I say this particularly to the noble Baroness, Lady Suttie—was not that there should be a border, because there already was a border. It was thought that adding an SPS and customs border to the excise, tax and legal border would require permanent infrastructure that might be attacked: a hard border.

20:45

What the regulations before us today demonstrate is that the SPS border for goods moving from the Republic into Great Britain does not need to be a hard border. In so doing, they sweep away the justification for putting the border in the wrong place. This is a huge issue for three reasons. First, the repercussions of putting the border in the wrong place, in violation of the international border, has been to disenfranchise the people of Northern Ireland—not just in relation to one law or 300, but in relation to a staggering 300 areas of law. This constitutes the biggest reversal of democracy in the history of these islands. While our current legal arrangements declare that the people of England, Wales and Scotland are worthy of the right to stand for election to make all the laws to which they are subject, they tell us, the people of Northern Ireland, that we are worthy of the right to stand for election to make only some of the laws to which we are subject.

Secondly, this arrangement violates the territorial integrity of the UK and is thereby contrary to international law. Thirdly, this arrangement, while consistent with domestic law in the Northern Ireland Act 1998, as amended, is contrary to international law, as set out by the Belfast/Good Friday agreement’s consent, cross-community consent and democracy principles.

The enormity of these repercussions is such that the notion that the desire to avoid a hard border across the island of Ireland for customs and SPS purposes was such that they could be disregarded never made any sense. However, in the context of the regulations before us today making it plain that it is acceptable to have an SPS border processing goods from the Republic and the EU into the UK without hard infrastructure on the border, the entire justification for having the border in the Irish Sea is not only swept away but replaced by an urgent imperative to relocate it where it should be, at the international border. The provision of the border in the right place by means of the mechanism in these regulations—pre-notification and the use of SPS checks away from the border—means that there is no need for the UK Government to abdicate their biosecurity responsibilities to the people of Northern Ireland. In the context of the provision of the border, as provided for by these regulations, in the right place rather than the wrong place, Northern Ireland can cease to be a third country in relation to Great Britain, just as Great Britain can cease to be a third country in relation to Northern Ireland.

So, while I warmly applaud the mechanism in these regulations, which is, at least as far as the SPS border is concerned, a complete game-changer, I have to stand against these regulations not just because they are in the wrong place and responsible for all the earlier points I made about the damage to democracy but because they demonstrate that their being in the wrong place with these socially destructive effects is completely unnecessary and something that actually compounds the injustice.

The Government, as part of their reset with the European Union, must now embrace the more robust infrastructure-free border that was initially proposed way back, from within the EU, with mutual enforcement, which is now provided for by Bill proposed by the Member of Parliament for North Antrim, Jim Allister—the European Union (Withdrawal Arrangements) Bill—which is currently in another place. In doing so, the Government would very quickly restore to themselves their essential state functions in biosecurity as they relate to Northern Ireland as well as Great Britain, re-enfranchise 1.9 million UK citizens, restore the territorial integrity of the UK, and make negotiating a trade deal with the United States—something that will be virtually impossible while part of the UK has been left in the EU—possible. Most of all, the Government should stand up for the union of Great Britain and Northern Ireland and stop our country being torn apart. I beg to move.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I welcome my noble friend the Minister to the Front Bench, as well as the noble Lord, Lord Caine, on behalf of the Opposition, and the noble Baroness, Lady Suttie, on behalf of the Liberal Democrats. I declare my interest as a member of the Secondary Legislation Scrutiny Committee in your Lordships’ House, a member of the UK-EU Parliamentary Partnership Assembly and a member of the Government’s Veterinary Medicine Working Group—which is all related to the European Union.

A very interesting YouGov poll was published in the last few days; it showed that the public in the UK wanted to join the EU again. This cannot be discounted, and I would like to leave that point with the Government. An interesting analysis was provided by Piers Morgan—who would not exactly have been seen as a remainer—who said he cannot see why the reset does not involve rejoining the European Union. Little benefit has come out of Brexit for the people of the United Kingdom, and we should make that point quite clear.

I support this statutory instrument, which is also supported by Logistics UK, which has had major problems with the border target operating model and its implementation. However, it makes the case for the single trade window, which is not reflected in this particular legislation. As I have already said to my noble friend the Minister, this is an issue which requires legislation. As my noble friend the Minister has said, there are some benefits in this statutory instrument which need to be highlighted, including amendments to provide a long-term legislative basis for the border target operating model beyond temporary powers.

The organisations involved in haulage and in bringing in and transporting plants and animals have no fundamental objection to this. However, they feel there is a risk that giving the BTOM a long-term legislative basis reduces the pressure on the Government to make a comprehensive veterinary and SPS agreement with the EU. I know my noble friend the Minister has already referred to this in her speech, and it is one of the areas that we have looked at in the Veterinary Medicine Working Group. I would be most pleased if my noble friend the Minister could confirm the ongoing situation.

This statutory instrument includes amendments to extend policies which are currently applied only to EU goods to goods from the rest of the world. This makes sense, as it will mean that rest of the world goods imports do not have an unfair advantage over EU goods regarding the border target operating model’s bureaucracy and costs. It also provides amendments to allow the BTOM to be updated more responsively to biosecurity risks. This sounds sensible if it is used only in cases of genuine biosecurity risk. It would be problematic if changing risk classifications became a way of raising more revenue for the Government.

In short, there are minor issues that are benefits in this statutory instrument. As a member of your Lordships’ Secondary Legislation Scrutiny Committee, we raised the point about administrative powers, which my noble friend the Minister addressed in her opening comments. However, there is disappointment that safety and security declarations will be made via the Government’s existing sub-optimal service, rather than the single trade window. That is why organisations such as Logistics UK—from which I have received representations and a briefing—in their spending review submissions to the Treasury have called for the development, thorough testing and introduction of a single trade window which efficiently and effectively operates as one border portal, and which is interoperable with international systems, to reduce the bureaucratic and cost burden on businesses. Can my noble friend say what the possibilities are of this happening?

In supporting this statutory instrument, I look forward to seeing the reset being promoted by the Government leading to a more enduring solution for all the people of the UK, including those in Northern Ireland. We need to ensure that there is less trade friction, but that is why we have the Windsor Framework and the BTOM; they are both devices to manage the trade friction that would not have been there if we did not have Brexit. It all comes back to that horrible little subject. Many who once were Brexiteers now see that there is little value in it and that we should be reverting back to where we once were.

[Lord Dodds of Duncairn (DUP)]

My Lords, I am grateful to the Minister for introducing these regulations and explaining them in such detail. I congratulate the noble Baroness, Lady Hoey, on tabling the regret amendment, which means that the matter can be debated properly in this Chamber and given the scrutiny that it deserves. Far too many of these regulations are being laid by negative procedure and affirmative procedure and are being brought to the Grand Committee. The full scrutiny of Members in this Chamber needs to be brought to bear on the contents of these regulations, because they have significant effects. A lot of them are very technical in nature—when you listen to the Minister introduce the matter, it sounds extremely technical indeed —but when one delves into it, one can see the significant ramifications, as the noble Baroness, Lady Hoey, pointed out in her forensic analysis of the regulations, and the effects and implications that they have.

I am sure that the Minister, having listened to her noble friend Lady Ritchie of Downpatrick, will go away and say that the answer to this is to persuade the Prime Minister to come out publicly and declare his wish to rejoin the European Union. He may try to resist that, for obvious reasons, not least that it would further diminish his standing with the people of the United Kingdom. There will be those who say that the answer is to undo Brexit, but I think that that debate is long gone. The issue that we are debating is how Brexit is done. The problem that we have in Northern Ireland is not the fact that we had Brexit but the fact that Brexit has been done in a way that separates Northern Ireland, wrongly, undemocratically and unconstitutionally, from the rest of the United Kingdom. Brexit can be done and must be done, if the institutions at Stormont are to endure in the long run, in a way that does away with the current problems.

On the issue at the heart of these regulations—the biosecurity of Great Britain, as the noble Baroness, Lady Hoey, explained at length—we had a recent example of the problem that is being created. On 16 January, the Defra Minister in the other place, Daniel Zeichner, told Members of Parliament about the steps being taken by His Majesty’s Government to protect people from foot and mouth disease in Great Britain. He said:

“The Government have taken decisive and immediate action. The import of cattle, pigs and sheep from Germany has been stopped to protect farmers and their livelihoods”.


The Minister did not talk about Northern Ireland voluntarily, but, when he was challenged, he said:

“Northern Ireland farms are just as important. In Northern Ireland, the controls will apply to meat and live animals moving from a 3 km protection zone and a 10 km surveillance zone surrounding the affected premises in Germany. Those products cannot be moved to Northern Ireland”.—[Official Report, Commons, 15/1/25; cols. 331, 336.]


The biosecurity of Great Britain was so important that the import of all cattle, pigs and sheep from Germany had to be stopped immediately. By contrast, cattle, pigs or sheep could come to Northern Ireland from anywhere in Germany, so long as they did not come from a 10 kilometre surveillance zone surrounding the affected premises.

The levels of protection the UK Government insisted on for Great Britain, and rightly so, could not have been more different from those the EU provided for Northern Ireland, the UK having abdicated its biosecurity responsibilities in relation to Northern Ireland, as the noble Baroness said. In this context, the claim by the Minister in the other place that Northern Ireland farms are just as important looks limp, pathetic and absurd.

21:00

The next day, businesses began cottoning on to the problem and asking Defra how the protections the Minister had spoken of in relation to Northern Ireland could be enforced. How were people to know whether the imports were coming from one part of Germany or another? Britain had taken the wise decision to ban it all to be absolutely sure. A bit of scrambling was done within Whitehall, which produced a bit of panic, followed by an announcement before the end of the day that all beef imports from Germany to the island of Ireland had been banned. That is such a chaotic, unacceptable way to proceed, especially in the context of these regulations, which make it clear that it is possible to enforce an SPS border without hard infra- structure, as the noble Baroness, Lady Hoey, outlined. There is no need for Northern Ireland to be fobbed off with EU biosecurity protections that will be changed only when there is some kind of crisis and, apparently, when the Republic of Ireland is given a special dispensation to keep the UK Government onside.

This is very real, recent, living example of how Northern Ireland is being treated completely differently compared with the rest of the United Kingdom on something that potentially affects the agri-food industry in Northern Ireland, and the health and welfare of British citizens in Northern Ireland. Of course, this all applies because sanitary and phytosanitary imports into Great Britain are controlled in one way but in Northern Ireland we are left under the jurisdiction of the European Union because of the Windsor Framework/protocol.

This is the outrageous constitutional position that Northern Ireland finds itself in, with all the undemocratic consequences that flow from it that deny the representatives of the people of Northern Ireland—unionists, nationalists and others, because there are people who do not designate as either, as we know—here or at Stormont any say in the laws that govern them in all these areas. That should alarm all parties in Northern Ireland but seems to be welcomed by nationalists. The SDLP, Sinn Féin and the Alliance Party revel in the fact that the EU makes these laws and, as elected representatives in Stormont on the so-called Democratic Scrutiny Committee, want hardly any scrutiny of these matters because everything that comes from Europe must be wonderful and cannot possibly cause any damage. All the evidence, of course, is that real hardships, frictions and difficulties are being caused.

Unfortunately, we have seen in recent days a development whereby the mechanism that was trumpeted by Rishi Sunak and others as a means of giving Stormont a brake on the application of EU law has been shown to be nothing of the sort. It is a dodgy brake, which is normally a subject matter for dodgy car salesmen, but in this case a dodgy politician and others portrayed the brake as something it is not. It is not a Stormont brake, for instance, because Stormont does not have the final say. Many of us argued that at the time; were dismissed by people in this House, people in the other House and by our political opponents, but we have been proved absolutely right. That cannot, therefore, be pointed to as a means of cutting the pipeline of European law, as people suggested that it would.

As the noble Baroness, Lady Hoey, said, these regulations illustrate the folly of the approach that Northern Ireland had to be aligned with European law for single market purposes, for the purposes of agri-food production and so on and so forth because that was the only way to avoid a hard border and the carrying out of checks along the border. We can now see from these regulations that it is perfectly possible to preserve the sovereignty of our country and ensure that there is no so-called hard border. This can be done by sending, for instance, as is said in these regulations, electronic pre-notification, requiring some lorries to attend a facility for checks that do not have to be at the border on an at-risk, intelligence-led basis. What could be wrong with that?

We are going to have this for goods coming from the Republic of Ireland through Northern Ireland into Britain, but we cannot possible have it for goods coming from Northern Ireland or from Britain into the Irish Republic. Oh no; that would be contrary to the Belfast agreement, for some reason, and to any right and rational approach. Of course it is not. If it is perfectly possible to do it in one direction, it should be possible to do it in the other. This is perfectly sensible.

The fact of the matter is that successive UK Governments have buckled in the face of EU resistance to sensible outcomes, suggestions and proposals. Instead, we have a needlessly complex, undemocratic and unconstitutional framework that denies the democratic right of the people of Northern Ireland. This cannot and will not endure. Some people tell us, “Oh, it’s a complete waste of time to talk about these things. It’s all over. You shouldn’t waste your breath talking about them”. As long as we have people in Northern Ireland who are denied their constitutional and democratic rights and as long as we have this needless friction between the economy of Northern Ireland and our biggest market in the rest of the United Kingdom, we will continue to raise these matters. We will highlight and put the spotlight on them. I am not a defeatist in these matters. I believe that a point will come where people will realise that this entire monstrosity cannot endure in any sensible, pragmatic or practical way.

We had a vote in the Northern Ireland Assembly in December, which said by a majority vote that these arrangements should continue. The normal way in which the Assembly makes decisions on any crucial matters is by cross-community vote—a majority of unionists and a majority of nationalists. As the noble Baroness, Lady Ritchie, and other noble Lords from Northern Ireland will know, we have not had majoritarianism or majority voting on major issues in Northern Ireland for well over 50 years. However, this vote was rigged so that only a majority was required to ensure that unionists —despite every single one of them voting against—would have to have imposed on them arrangements which they do not support.

I note that, as a result of that vote going through on a majority, the noble Lord, Lord Murphy, has been tasked with undertaking the independent review. I have the greatest respect for the noble Lord. He has immense experience of Northern Ireland and has always acted in a way which has evoked trust and respect from all communities and all sides in Northern Ireland. I look forward to working with him as part of this review, but he will know—as all noble Lords need to know—that the fundamental problem with this protocol/Windsor Framework is the lack of cross-community consent. Every single unionist in this Westminster Parliament and every single unionist in the Stormont Assembly opposes it and votes against it. Their views seem to be cast aside, which is something that will have to be addressed.

[Lord Bew (CB)]

My Lords, I support this legislation but I accept completely the argument made by the noble Baroness, Lady Hoey, and the noble Lord, Lord Dodds, about it throwing a light on the flexibility. I think the noble Baroness, Lady Hayman, used “flexibility” four times in her introduction. The flexibility, the methodology, which is in place here was exactly what the noble Lord, Lord Frost, might remember the EU describing as the usual unicorn thinking—nonsense, fantastical thinking. Now we discover that, when it suits the EU, you can be amazingly flexible and light-touch with what you are going to do. That point has to be conceded and I will return to it.

Since we are talking about the basic state functions of the United Kingdom, which we are today, perhaps the Minister might say, when she concludes, whether the UFU, for example, has expressed opinions about this legislation to the Government. More generally, with respect to the Windsor Framework, is the business community sending messages about the broad working of that framework? That is really quite an interesting area.

Let me return to the issue of biosecurity. The original much-loved—or much-hated—protocol of 2019 said that the UK retains its basic state functions. One of the things that happened between that original protocol and the Windsor Framework of 2023 is that there was, shall we say, a serious discussion between the United Kingdom and the European Union as to what its basic state functions were. It was resolved, for example, that the original position in the 2019 protocol that certain medicines should not be available in the EU’s agreement with Northern Ireland was wrong, and that the basic state functions of the United Kingdom implied strongly that all the medicines that the United Kingdom Government believed should be available in the hospitals should be there. That is one of the clear-cut victories of the Windsor Framework, from a unionist point of view. That issue of medicines was the top item in the DUP election manifesto for the recent Assembly elections and it is rare that parties get the top item.

I am drawing attention to the importance of the concept of basic state functions and pointing out what happened—by the own account of the noble Lord, Lord Dodds—on the question of biosecurity. I want the Minister to confirm, as she may later on, whether the UK has abdicated its responsibility for basic state functions for Northern Ireland on biosecurity. Rather like in the case of medicines, it turned out that it had not. The developments as described by the noble Lord suggest, again, that it is an example of how the UK then responded to the fact that it had basic state functions in this area. I do not think there is evidence that the UK has abandoned its concept of having basic state functions in Northern Ireland which have to be maintained.

More broadly, let me again express sympathy for the noble Baroness, Lady Hoey, on her regret amendment. There is no question that two things came together politically in 2016 or 2017. One was the near defeat in the general election of the May Government, which hugely weakened the hand of the British Government in negotiations with the European Union; the other was a shift in Irish elite opinion from a view that it might be possible to do certain checks on the Irish land border and so on. This was discussed in Dáil committees and in a number of books, and it is perfectly clear that there was a shift. Those two things came together to produce the outcome of the 2017 joint agreement, which was international law.

When Michel Barnier said that David Davis was ridiculous to stand up in Parliament a couple of days later and say that it was not international law, he was quite right. But it is also clear from the same book that Michel Barnier’s concept of the significance of European law for the functioning of the institutions of the Good Friday agreement was massively exaggerated, maybe by a factor of 60. It is clear that what he was suggesting at that level was as wrong as what David Davis was suggesting.

That is the context of the much-hated protocol on Northern Ireland. I absolutely accept that there is bad faith on the Irish Government side. It involves a betrayal of the Good Friday agreement and the framework document, both of which insist that there are two economies on the island of Ireland. Now, magically, out of nowhere, it is declared that there is one economy on the island of Ireland and the British Government have a responsibility to support the island economy. I am not saying there is not an island economy in, say, parts of the agricultural industry; I am saying that as a totality the island economy is not a very significant reality.

21:15

When I first started to argue that, the SDLP argued very strongly, but Sir George Quigley, chairman of the Ulster Bank and a very fine man, famously used to argue strongly the case for an island economy in the 1990s. There is one dramatic proof, however, of the argument. The Ulster Bank no longer exists in the Irish Republic, having once been very strong. The island economy is more of a rhetorical trope than a reality. The significance of the Windsor Framework is that we finally step off this and it supersedes, quite explicitly—page five is very clear on this—the language of both the protocol and the joint EU-UK accord of 2017.

That is where we are. It is a messy compromise. It does not get rid of the Irish Sea border, and I will to come to that, but it deals—with many of the side-effects that have been correctly noted by the noble Baroness, Lady Hoey, and the noble Lord, Lord Dodds—with a number of the obvious defects of the original settlement and places Northern Ireland in a better place: a place that has allowed the return of the functioning of the institutions of the Good Friday agreement.

I want to say something about the Irish Sea border. For a long time, traditional unionism defined itself by saying that the arrangements in 2017, 2019 and so on—checks of any sort in the Irish Sea—were an affront to the Act of Union. Nobody bothered to read the Act of Union. Articles in the Act of Union bring in a much stronger Irish Sea border than anything envisaged, and a much greater range of checks than anything agreed, in this document. At the time, that was actually a complaint of Irish nationalists. They said it was not the simple deal that they were offered. Unionists took the view that it was a price worth paying, and they paid it for most of the 19th century. In the 20th century, Safeguarding the Union again shows that there is an Irish Sea border. There are checks and payments on many products going between the rest of the United Kingdom and Northern Ireland.

The point is that unionists again agreed in debates in this House—more accurately, in debates in the other place—that this was a price worth paying. That is the question that unionists have to face up to now. This is a compromise reached between the United Kingdom and Europe. The balance of forces in the Houses of Parliament is perfectly clear. However interesting the Allister Bill is, there is no possibility of it gaining even the slightest traction in the other place. The question is very simple: is it the case, as was the case with traditional unionism, that this deal, which is clearly an improvement, a price worth paying for the continuation of the union? There is no other case—we know what unionists decided in the 19th century and 20th century. The question is: what will they decide in the 21st century?

[Lord Morrow (DUP)]

My Lords, I strongly agree with everything that the noble Baroness, Lady Hoey, has said. The whole rationale for the Irish Sea border was that there could not be a hard border in the island of Ireland. It was never that there could be no border, not least because the Good Friday agreement confirmed that the international border remains where it is unless a majority of people in Northern Ireland vote to leave the UK for the Republic and a majority of people in the Republic vote to absorb Northern Ireland, which of course has not happened. The international border is clearly present, not least in relation to tax, excise, legislation, et cetera. These regulations, however, demonstrate to us that a border without a permanent infrastructure can provide an acceptable way of managing SPS goods coming from the Republic and wider EU into GB by means of pre-notification and SPS checks on the border.

In doing so, they remove the justification for moving the SPS border from the international border to the Irish Sea. In so doing, they remove the attempted justification for its many injustices. The methodology of these regulations makes it impossible for the UK Government to justify keeping the border in the Irish Sea. In doing so they, first, abdicate their biosecurity responsibilities in relation to Northern Ireland. Secondly, they effectively expel Northern Ireland from the UK biosecurity identity. Thirdly, they disenfranchise the people of Northern Ireland, at least in relation to SPS legislation. Fourthly, they disrespect the territorial integrity of the United Kingdom by allowing 27 other states the right to make the laws of part of the United Kingdom in this area.

These regulations highlight a better way but then fail to follow through on their discovery by needlessly keeping the border in the wrong place. They must be rejected and the Government must come back with new legislation, such as the mutual enforcement Bill currently before the Commons, that at least places the SPS border, along with the tax, excise and legislative border, on the international border.

In making this case, I ask the Minister to recognise the basic injustice that underpins these regulations and not to try to justify them on the basis that—notwithstanding the fact that these regulations demonstrate it is unnecessary to have the Irish Sea border dividing our country in two—we must continue to stand by the division of our country because of the UK Government’s agreement with the EU.

In making this point, I remind the House that international law, as has already been referred to, is very clear that treaties are not inviolable because they are treaties. There are laws about what makes a treaty valid quite apart from when the parties of the treaty are happy to sign up to them. For example, the UN Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States, in accordance with the Charter of the United Nations, censures anything

“which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples”.

It further states:

“Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country”.


Lest anyone should be in any doubt about the importance of these principles, the declaration also affirms:

“The principles of the Charter which are embodied in this Declaration constitute basic principles of international law, and consequently appeals to all States to be guided by these principles in their international conduct and to develop their mutual relations on the basis of the strict observance of these principles”.


Furthermore, it states:

“Where obligations arising under international agreements are in conflict with the obligations of Members of the United Nations under the Charter of the United Nations, the obligations under the Charter shall prevail”.


When we have at our disposal a means of avoiding our division, whether it be through an alternative expression of these regulations that apply their methodology to the international border or through the mutual enforcement Bill currently in another place, it is simply unconscionable that we should entertain anything less.

In this context, I was very pleased to see that these regulations were voted against in the Division in another place by none other than the leader of the Opposition, the shadow Chancellor, the shadow Defence Secretary, the shadow Business and Trade Secretary, the shadow Transport Secretary, the shadow Culture Secretary, the shadow Housing, Communities and Local Government Secretary, the shadow Science, Technology and Innovation Secretary, the shadow Scotland Secretary and the shadow Welsh Secretary. That is quite a conglomeration of people who see this for what it is.

I would like to go on the record to thank them and the other Members of another place who voted against these regulations—and again, here tonight, I would urge all noble Lords to do the same. May I say this? I will say it very gently. These regulations in the main, in Northern Ireland, are welcomed by those who have united Ireland aspirations. It suits their political ideology and agenda, but we are more interested in fairness—and we think that this House, this place, should give us that at least.

[Lord Frost (Con)]

My Lords, I rise to support the regret amendment moved by the noble Baroness, Lady Hoey. She has made most of the main points in her remarks and I can only endorse them. It is getting late and it is not right to rerun the bigger arguments about Brexit at this moment, but I want to respond briefly to the noble Baroness, Lady Ritchie of Downpatrick. If we are quoting polls about public opinion, I saw a poll tonight saying that 52% of Brits were ready to leave the ECHR now. So, perhaps you pay your pollster and take your choice about the state of public opinion, I guess.

However, it is important to focus on the fundamentals of the situation we are discussing tonight, which these regulations give rise to. The regulations testify to something we always feared, which is that differential arrangements for Northern Ireland, in which it remains closer to EU laws and rules, would end up becoming semi-permanent, contributing durably to separation between Great Britain and Northern Ireland. That is what is happening. That is at the root of the problem.

This was entirely foreseeable, ever since the joint report between the UK and the EU in December 2017, which the noble Lord, Lord Bew, referred to. I would agree with him, except to say I would regard it not as international law but more as a political agreement between parties. But that is history now. Nevertheless, it was that that made the original commitment to align Northern Ireland with the EU single market and customs, in default of any other solution. Of course, it then became inevitable that the EU would never try to find any other solution, and the UK has never been able to escape from the consequences of this rash and damaging commitment. It was that that led to the agreement of the original Northern Ireland protocol in 2019—under duress, as I argue—as the only way of delivering the referendum result, once Members of this House, and of the other, had closed off the option of leaving the EU without an agreement.

The Johnson Government, both when I was responsible for this issue and under my successors, did their best to deal with the unsatisfactory nature of that protocol, culminating in the Northern Ireland Protocol Bill, so intensely disliked in this House, too. That Bill fell, and soon that Government, having promised one thing, then did another and agreed the Windsor Framework. This has done little to improve the situation in practice. But the big change it did make to the political situation was that, instead of trying to remove them, the British Government were now actively committed to defending these arrangements, based on the protocol. That meant defending EU interests rather than UK interests in areas covered by the protocol in Northern Ireland. This is at the root of the political problem that these regulations symbolise. In my view, as I have said many times and carry on saying, it was a serious mistake that caused profound damage to our national interests, and the Windsor Framework will one day need to be corrected.

Since then, we have seen a stream of regulations implementing the Windsor Framework, one set of which we are discussing tonight. Most of them have contributed to reinforcing the division between Great Britain and Northern Ireland, and so it is with today’s regulations designed to reinforce the SPS border between Northern Ireland and Great Britain. The noble Baroness, Lady Hoey, is absolutely right to point out that the effect of the Windsor Framework and these regulations is that HMG are abdicating their biosecurity responsibilities for Northern Ireland to the EU. I agree with her that this can hardly be consistent with Article 1.2 of the protocol, which supposedly respects the essential state functions of the United Kingdom. Others have asked him, but I also ask the Minister whether he agrees that biosecurity is an essential state function of the United Kingdom. If so, how is it compatible with these regulations?

21:30

In all of this, as has been pointed out, there is nevertheless reason to be positive about one thing in these regulations: they concede the point that, even with a border that is as blindingly visible to all as the Irish Sea, checks and processes do not have to be conducted at that border but at a facility elsewhere. This obviously undermines the entire rationale for the protocol arrangements in the first place; these exist only because, as the noble Lord, Lord Bew, pointed out, we were told that anything else was impossible—a fever dream of crazed Brexiteers looking for unicorns in the negotiations. Instead, what the regulations before us demonstrate is the opposite: that the SPS border for goods moving from the Republic into Great Britain does not need to be a hard border. They sweep away the justification for having controls at the Irish Sea, rather than the land border, in the first place.

One day, this reality is going to have to be recognised. One day, a different route is going to have to be taken via that of mutual enforcement. The Windsor Framework is going to have to be ditched and UK laws are going to have to apply in Northern Ireland as they do anywhere else in this country. In my view, that is the only way forward. I do not think that the current arrangements can stand; they are overcomplex and create too many political problems and anomalies, and I do not believe they can work durably over time. I am sure that, with time, that is going to become clear. One day, they are going to be swept away and we will make this a properly United Kingdom once again.

Meanwhile, like the leader of my party, and, as has been noted, many other colleagues and right honourable friends in the Commons, if the noble Baroness pushes her amendment to a vote, I will vote for it and against these regulations tonight.

[Lord Elliott of Ballinamallard (UUP)]

My Lords, I will make only a few brief comments. I thank the Minister for bringing forward the legislation in the first place, and the noble Baroness, Lady Hoey, for her amendment. What she says is absolutely right, but the difficulties and problems did not start with these retained EU law animals, food, plant health and trade regulations. They started back with the weak negotiations with the European Union that gave us the protocol and then the Windsor Framework. That is where our problems have come from, and now we are seeing the outworkings of it—and this is just one of the outworkings.

On the issue around human medicine, I welcome the resolution that the noble Lord, Lord Bew, highlighted. Robin Swann, when he was Health Minister, secured that with the European Union. It is just a pity that we could not get the same resolution for animal health medicines, which is a massive issue for the agricultural sector in Northern Ireland. I know from discussions with the Minister that they are hoping to make progress on that, and we might hear something on that when she speaks.

I was pleased to hear the noble Lord, Lord Frost, say that we need to have a different route and that the Windsor Framework needs to be ditched. It is about time people started saying that and that we plan for a new resolution. The resolution that we got back in 2019 was disastrous for people in Northern Ireland and for small businesses, which are finding huge difficulties and problems in that respect.

Th noble Lord, Lord Dodds, mentioned the Stormont brake. It is pretty useless, even if it were implemented. I know we had a test case quite recently, but the reality is that, if the Stormont brake was accepted by the UK Government and put to the European Union, what in actual fact would happen to that legislation in Northern Ireland? We would not get the UK legislation then. We would be back to the old European regulations and legislation. We in Northern Ireland would be left in no man’s land, because we would have the new UK regulations and Northern Ireland sitting with a different regulation altogether. I have argued right from the start that it is pretty worthless, even if it were to be implemented, and I stand by that comment. Indeed, when we met officials in the Northern Ireland Assembly some time ago, they explained in very great detail that it would not be practical if it were to be implemented.

I just wanted to make those few brief comments. I support the amendment of the noble Baroness, Lady Hoey, but that is not where our problems are at the moment. Our problems are much wider and deeper. It was the poor negotiations that brought us the Windsor Framework in the first place.

[Lord McCrea of Magherafelt and Cookstown (DUP)]

Like my colleagues, I support the regret amendment put down by the noble Baroness, Lady Hoey. I preface my remarks by thanking the Minister for the gracious manner in which she has always dealt with concerns expressed by noble Lords, even when those opinions were very different from those of the Government. Her manner has been deeply appreciated.

The noble Baroness, Lady Hoey, and my colleagues who have spoken, have dealt with the specific technicalities of these regulations. I wish to deal with the underlying vehicle that has brought these regulations about.

By now, the Government must realise that the issues of the Northern Ireland protocol and the Windsor Framework will not go away and must be removed. They are a direct challenge to the territorial integrity of the United Kingdom, for through them Northern Ireland is no longer seen as a full and equal part of this United Kingdom. Rather, when leaving Great Britain to enter the other region of the United Kingdom —Northern Ireland—you are recognised as using an entry point to the EU under laws pertaining to goods. In 300 areas of law, Northern Ireland is subjected to laws not enacted in any other region of the United Kingdom, over which the people of the Province, through their elected representatives, have no say, and nor is there any democratic accountability. This is totally unacceptable.

It is well recognised that we got into this mess because the previous Westminster Government were anxious to get Brexit done, and the Irish Republic’s Government defiantly ensured that Northern Ireland was used as the bargaining chip—and ultimately all we were was collateral damage. Over the years, the people of Northern Ireland have witnessed some of the most harrowing terrorist atrocities from Irish republican terrorists because they dared to defend their British citizenship, only to be betrayed by successive Governments at Westminster. Indeed, many across the world cannot understand why our people are so loyal to Britain, but our allegiance and loyalty is not to any political party or Government here at Westminster, but to our King and country.

These regulations treat Northern Ireland as a “third country” in relation to Great Britain—that is, a foreign country—which is not only disrespectful, but insulting. Therein lies the constitutional issue at the heart of the protocol and Windsor Framework. As was stated in the committee in the other place, powers have been surrendered to the EU under regulation 2017/625 and the UK Government

“cannot provide for the entry of consignments of goods to the United Kingdom; they can provide for the entry of consignments of goods only to Great Britain”.—[Official Report, Commons, Fourth Delegated Legislation Committee, 8/1/25; col. 6.]

De facto, we have partitioned our United Kingdom with a foreign regulatory border.

The protocol/Windsor Framework was designed to make special provision for Northern Ireland that is not made for the rest of the United Kingdom—so they said. Our Government have handed over the passage of goods from one part of the United Kingdom to another to a foreign jurisdiction. That would not be acceptable in any other region of the United Kingdom. Why should it be acceptable to the law-abiding people of Northern Ireland?

We are witnessing the outworking of the Windsor Framework in the manner some of us warned of in previous debates. I and my colleagues in your Lordships’ House warned of the constitutional, democratic and—for many—economic damage of the Windsor Framework. I know there are those who would prefer that the matter of the Irish Sea border, the protocol and the Windsor Framework would just go away—“It’s as good as you are going to get”. But for unionists in Northern Ireland, not to highlight the damage that has been and is being done, and not to demonstrate the inequity of the constitutional and democratic injustice that has been inflicted on the people of Northern Ireland would be to acquiesce in all this. My colleagues and I are not willing to do so.

The Windsor Framework was built on quicksand and many of the promises made to the people of Northern Ireland in the selling of it are now exposed as falsehoods. The recent issue of the so-called Stormont brake, which I originally described in this House as something that could not stop a child’s toy tricycle, never mind the EU steam train, exposes the evident corrosion and decay in the Windsor structure. When will our Government have the courage to stand on their feet and face down the European Union, instead of bowing to its every demand? Can the Minister tell us what has happened to the Safeguarding the Union Command Paper and its outworking? How have this Government sought to defend the union, and what positive actions have been taken to do so?

I know there are those who have a defeatist attitude and suggest that nothing can be changed. I remind them that that was what we were told about the Northern Ireland protocol: it was set in stone; it came down, like the commandments, from heaven and could not be changed.

In conclusion, I have noted a change of heart, as did the noble Lord, Lord Morrow. When these regulations were voted on in the other place, only one Conservative Member supported them—only one, and the one was no surprise at all to anybody from the unionist community—and 65 Conservative Members voted against them. The noble Lord, Lord Morrow, mentioned some who are in the shadow Cabinet. I trust that many across this House will have courage to join us in the Division Lobby tonight in rejecting the regulations.

There are numerous other things I wish to say, but I will not detain the House any further. I commend to noble Lords the amendment brought by the noble Baroness, Lady Hoey.

21:45

[Baroness Suttie (LD)]

My Lords, as ever, I thank the Minister, as did the noble Lord, Lord McCrea, for her detailed explanation of these regulations, as well as for her tireless work in trying to find solutions to this complex set of issues.

As is now customary in these debates, there are really two debates going on simultaneously. The first is on the details of the regulations before us, and the second is on the highly complex constitutional and worrying things that noble Lords opposite have been mentioning this evening. The noble Lord, Lord Frost, used the word “unsatisfactory”. It is true that the second area of concern is about the difficult relations between the EU, Great Britain and Northern Ireland following Brexit. As the noble Lord, Lord Bew, said, it is a messy compromise; that is the situation we find ourselves in. The noble Baroness, Lady Hoey, is right—as usual—in thinking that I am saying what I believe to be the solution to this, which is not the same as what she believes to be the solution to this problem.

We support these regulations; we think they are necessary as a stopgap before a full-blown SPS veterinary agreement is put in place. I repeat what I have said in previous debates, that I hope the new Northern Ireland Committee of this House will provide a useful mechanism for carrying out the much-needed greater scrutiny of many of these issues, as the noble Lord, Lord Dodds, said. He is quite right: there needs to be greater scrutiny of these regulations, and it is important that from time to time, we debate them in this Chamber, but I hope that your Lordships’ new Northern Ireland Committee will be able to look at these issues in great detail and perhaps carry out detailed inquiries, specifically on some of these issues regarding food and plant biosecurity.

Since we last had one of these debates, it is welcome that the noble Lord, Lord Murphy, has been appointed as independent reviewer of the Windsor Framework. As the noble Lord, Lord Dodds, said, he will bring a great deal of experience and wisdom to that role. It is also welcome, at least on these Benches, that the Government have not ruled out joining the pan-European customs union, which we believe will be greatly welcome as a first sensible step towards improving and deepening our relationship with the EU, as well as strengthening the economy. Obviously, the Minister is not the Minister for these issues, but I would like her to confirm that joining such a pan-European customs area would significantly reduce the bureaucratic burden for businesses, including many of those affected by these particular regulations.

Turning to the regulations themselves, I ask the Minister—as did the noble Baroness, Lady Ritchie—for an update on progress regarding the new SPS veterinary agreement. Is the Minister able to give some more information and detail on progress on that agreement and how long does she now think it will be until we are able to reach an agreement? Does she think there is any risk to animals and of animal-related disease during the period before such an agreement is reached? I believe that the veterinary SPS agreement was a Labour Party manifesto commitment, so I am absolutely sure that the Government are keen to make progress on this sooner rather than later.

In the Explanatory Memorandum attached to these regulations, paragraph 5.22 refers to

“debt recovery and collection costs for unpaid fees”.

Is the Minister able to tell us the total cost of unpaid fees and the average fee charge for the service provided? Is it the case that the non-payment of fees is endemic, or is it just a small proportion of the overall costs involved?

Finally, the Minister will remember that, at the time the previous Government were introducing border control posts, which, as other noble Lords mentioned, were not at the point of entry to the country but some miles away, there was genuine concern about the likelihood of some goods deliberately avoiding control posts, which could result in goods entering the country without the necessary sanitary and phytosanitary checks. The Minister touched on this a little in her introduction, but can she give further reassurances that there is no such likelihood of this happening either now or in the future?

Generally, from these Benches we support this SI as the next stage in a process which is already in train and which has so far been working fairly effectively, but we sincerely hope that an SPS veterinary agreement can be finalised soon.

[Lord Caine (Con)]

My Lords, I too am very grateful to the Minister for setting out the main provisions of the instrument before us this evening, and to the noble Baroness, Lady Hoey, for bringing the debate to the Chamber this evening. I also thank all other noble Lords for contributing to a debate which has, somewhat unsurprisingly, covered much familiar territory regarding the position of Northern Ireland following the United Kingdom’s decision to depart from the European Union.

As the noble Lord, Lord Dodds of Duncairn, made clear in his contribution, the statutory instrument before your Lordships this evening is very technical. If noble Lords will forgive me, given the lateness of the hour, I will not follow noble Lords into those weeds, if I can put it like that. Rather, I will turn briefly to the regret amendment in the name of the noble Baroness, Lady Hoey, whose criticisms, along with those of other noble Lords, I fully appreciate apply as much to the Government in which I and my noble friend Lord Frost served at various junctures as they do to the current Administration.

I do not intend to engage in a detailed defence of all that we did in government, but I hope that the noble Baroness and others who have spoken will accept that I genuinely respect the views that they have put forward this evening. I know they are deeply and sincerely held and reflect the views of a great number of people in Northern Ireland itself. It is therefore important that both the Government and the Opposition continue to listen to those concerns and, wherever possible, seek to address them. If that is the approach to be taken by the Government, they will certainly have our backing in doing so.

As a Minister, I was very clear that the Windsor Framework and the Command Paper Safeguarding the Union, which was published a year ago this Friday, represented considerable improvements on the original flawed protocol, and indeed the 2017 joint report, which, I am afraid to say, is the root of so many of the problems that we have faced, as the noble Lord, Lord Bew, has consistently pointed out. I also spoke on this before I became a Minister, when I was a member of the same committee as the noble Lord, Lord Dodds. It was very flawed.

As the House knows, I spent a great deal of time from the other side of the Dispatch Box implementing many of the provisions of the framework and the Command Paper, which in my view aimed to strengthen and future-proof Northern Ireland’s place within the United Kingdom and to protect the integrity of the UK internal market for the long term. But I never for one moment suggested that the framework or the Command Paper were in any way perfect, or necessarily the last word. Indeed, I remember that, when I took the Stormont brake regulations through your Lordships’ House, in my closing section I had a sentence in which I said that the framework was not the perfect agreement. It will not surprise some noble Lords to learn that my officials wanted me to strike out that sentence, and I had to reinsert it when I got to my feet in the House. So, I have never thought that the provisions that we brought forward in government were beyond any improvement.

It was and remains my view that, where there is evidence of disadvantage to Northern Ireland as a result of current arrangements, any Government have a duty to listen and to act, using the provisions and bodies that are in place to resolve problems, or indeed to bring forward proposals for more substantive change. We have heard this evening a number of suggestions from noble Lords across the House and the Opposition, under new leadership and new management, will look with an open mind at practical and workable solutions that are put forward to us. Of course, we also look forward to the conclusions of, and hope to participate in, the review being carried out by the noble Lord, Lord Murphy of Torfaen, along, in due course, with the Government’s response.

We should at all times in this House be guided by what is in the interests of the United Kingdom as a whole, and that must include an enduring commitment to delivering the best outcomes for our fellow citizens in Northern Ireland. I look forward to the noble Baroness’s reply.

[Baroness Hayman of Ullock (Lab)]

My Lords, I start by saying that I am very grateful to all noble Lords who have taken an interest in this instrument and for all contributions. I also thank the noble Baroness, Lady Hoey, for bringing her regret amendment before the House and enabling us to debate it in some detail. I am pleased to hear and welcome that she at least applauds the mechanisms contained in the regulations.

There have been many thoughtful and constructive points raised, and I think this reflects the importance with which noble Lords take our biosecurity. We have to maintain our biosecurity, but at the same time deliver the streamlined approach for imports that is needed to minimise friction at the border and at the same time protect our animal, plant and public health.

As I mentioned in my introduction, the instrument delivers measures to provide a long-term basis for the border target operating model beyond reliance on the temporary measures. It allows for border controls to be updated in response to risk and delivers powers to allow for certain policies to reduce burdens that will need to be delivered in the future.

I will, however, do my best to respond to the points that noble Lords have raised during this debate. First, I repeat, as I have done in previous debates, that I take very seriously the concerns raised by noble Lords regarding certain legislation that has been implemented following Brexit. I think we would all agree that such legislation is not exactly perfect. On that note, I very much welcome the noble Lord, Lord Murphy, who will be carrying out the independent review into post-Brexit trading arrangements with Northern Ireland. This has been welcomed by other noble Lords, including the noble Lord, Lord Dodds, and the noble Baroness, Lady Suttie. As the noble Baroness also said, we have a new Northern Ireland committee. That is a really important step because, we hope, it will have the opportunity to look in more detail at some of the wider concerns that are regularly being raised by noble Lords.

A number of comments were made and questions asked around whether members of the public in Northern Ireland will be left unprotected because the SPS controls apply just to goods entering GB. I reiterate at this point, as the Minister with responsibility for biosecurity, that it is a real responsibility. I take it very, very seriously, and I reassure noble Lords that, whatever current legislation means that I can or cannot do, biosecurity is right at the top of my list to protect this country. If we do not, the implications are just too appalling.

We are utterly committed as part of that to protect the biosecurity of the island of Ireland, which is and remains a long-standing single epidemiological unit. Northern Ireland continues to be protected under the biosecurity regime of the EU, in line with the Windsor Framework. Under this regime, Northern Ireland implements official controls and additional protections in response to risks, such as measures related to pest-free areas, traceability and additional notification requirements for the highest-risk goods to maintain the biosecurity of the island of Ireland. Again, I stress that I and the department, Defra, work extremely closely with DAERA; I am in regular contact with the Minister and senior officials there. We must have a robust biosecurity regime, we have to have high standards and those high standards must be for now and protected into the future.

22:00

That includes our negotiations with the EU regarding SPS agreements and veterinary medicines agreements. A number of noble Lords asked about this, particularly my noble friend Lady Ritchie and the noble Baroness, Lady Suttie. I cannot give any detailed information beyond saying that this is right at the top of our agenda. We are working extremely hard on it. I was gratified to see some very positive press from the EU regarding those discussions and the reset. We are continuing to rebuild that relationship and stress the areas that are of particular importance to us. As soon as I have any further information, I will of course share that with noble Lords.

There was mention that this SI treats Northern Ireland as a third country. I remind noble Lords that Article 3(2D) of the Official Controls Regulation, which is what this SI amends, defines any country or territory outside of the British islands as a third country. That means that Northern Ireland is not considered to be a third country under these regulations as defined. Requirements on movements from third countries do not apply to movements to GB from Northern Ireland.

I was also asked why SPS checks and controls take place away from the border between Northern Ireland and Ireland. This was obviously part of the Windsor Framework and was approved at the time by Parliament. We cannot unpick that through this SI, but, again, these things can be looked at by the work that the noble Lord will be carrying out if the committee is interested in doing so.

The noble Baroness, Lady Suttie, also asked whether checks could be missed with the new system. Just to confirm, consignments that are called into Sevington border control post for an inspection will have completed the necessary customs declarations and pre-notifications and will not be legally cleared for sale or use within the UK until they have been checked and cleared by the BCP. If, however, the importers fail to attend, the port health staff will commence any necessary action. Any placing of goods on the market will be illegal and the relevant local authority is then able to take the appropriate action—for example, it can recall the item from sale and potentially take legal action. The risk of any legitimate commercial loads not attending Sevington border control post is mitigated by robust, data-backed enforcement options. To further mitigate any animal disease risks, it is illegal in the UK to feed catering or domestic food waste to livestock, including pigs. However, we are aware that that is a possibility, and we are looking at it very carefully to ensure that it is not going to become a problem.

The noble Lord, Lord Dodds, asked about the foot and mouth outbreak and issues with Germany. As he said, measures were announced on 14 January that applied to imports from Germany into Great Britain, and he rightly laid out the situation that Northern Ireland is in as being part of the EU regulations and the fact there is a surveillance zone in Germany. I want to stress that the EU takes its biosecurity responsibilities for something like foot and mouth extremely seriously. There had not been a foot and mouth outbreak in Germany since 1988, so this is very significant for them. We are in regular contact with Germany. It will not want that disease to spread anywhere, so it has brought in what it considers to be the most stringent measures that are required without impacting too many other farms unnecessarily. We are in regular contact with German officials and the chief veterinary officer there, because we do not want to see any impacts into Northern Ireland any more than the noble Lord does.

There will be additional health requirements that will apply to the movement of live animals from outside the zones in order that measures to protect farmers in Northern Ireland are strong and to ensure that there are additional measures in place.

I thank the noble Lord, Lord Bew, for his contribution. He has a lot of knowledge around these issues, and I think his contributions always make you think about the bigger picture, how we are where we are and how difficult it is to unpick and move forward. I thank him for that. He asked specifically about business. I assure him and other noble Lords that as we have been bringing forward further legislation around the BTOM, I have had a number of round tables with businesses from all sides—retailers, producers and logistics—to get their feedback. We are now looking at how we can improve things from their perspective. Clearly, they are keen to have as few checks as possible while managing biosecurity at the same time.

It is late. It is just gone 10 pm. I hope I have answered all your Lordships’ questions. On any that I have not, I will, of course, write to noble Lords with further information. As I have outlined, the measures make vital amendments for us to continuing implementing a global, risk-based import model for sanitary and phytosanitary goods, upholding the need for effective border controls that support businesses with import processes that are as simple as possible.

I think it is also worth noting that parliamentarians in this House and the other place will continue to be able to hold me, other Defra Ministers and the department as a whole to account through all the usual means for the ways in which the powers in this instrument are exercised. I am also sure that the issues that have been raised beyond the scope of the statutory instrument will be raised in more detail in the regular meetings that I am now having with noble Lords from Northern Ireland. On that note, I sincerely thank the noble Lord, Lord Morrow, for his kind comments about the way that I have tried to listen, understand and work with noble Lords in a very complex area.

[Baroness Hoey (Non-Afl)]

My Lords, first, I thank the Minister for her usual generous response and the way she has handled all these SIs, where a lot of what is being said is outside her responsibility. We are very grateful as Members from Northern Ireland that she is willing to meet us so regularly to discuss some of the detail, even if, at the end, she is not able to change the substantial issue. Of course, we all know what it is.

The noble Baroness, Lady Anderson of Stoke-on-Trent, is in her place. I thank her for the way that she reached out to all the Northern Ireland Peers after the very bad storm to ask how we were. I thought that was a very nice gesture, and I thank her.

This has been an interesting debate. In my contribution, I was very technical and rushed to get it all in, so I am very grateful that Members sat and listened to that. I think we had a very good wider debate, as we always do when we discuss anything about Northern Ireland. I am particularly interested in what the noble Lord, Lord Frost, said, and I remind Members, if they have already forgotten—I hope they have remembered—that on Friday it will be five years since we left the European Union. I say “left”. Northern Ireland has not left, and that is still part of the thing, so when the noble Baroness, Lady Suttie, continues to say that it is all about Brexit, Northern Ireland has not had Brexit, although some of us have.

The thing that has most encouraged me over a number of SIs is how things have been changing. Originally, the Conservatives voted against any change to statutory instruments, and then on the previous vote, they abstained. Tonight, I understand that it is a free vote, so who knows what will happen the next time we have a statutory instrument? I say to noble Lords that we are going to continue to put these issues. It is the only place we get a proper debate.

I congratulate the noble Lord, Lord Murphy of Torfaen, and thank him for sitting through all this tonight. I hope that it has helped in his inquiry and that he will reach out to all of us—particularly those of us who are not necessarily in a particular political party in Northern Ireland—during his look at how the Windsor Framework is working.

I thank all noble Lords. I agree with what the noble Lord, Lord Dodds, said about how we must have hope and look to change, and that we cannot take an attitude. I am never going to take an attitude of, “Well, this is happening. We’ve got to put up with it. Why don’t we just get on with it?”, which I am afraid is what one or two noble Lords say. We are not going to do that. Particularly as many members of the Government have been kept behind tonight—I hope, to listen—I am going to press a vote, because I want to get it on the record.

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Division 2

Ayes: 13

Noes: 30

Motion agreed.