Official Controls (Plant Health) and Phytosanitary Conditions (Amendment) Regulations 2025
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Lord Frost
That this House regrets that the Official Controls (Plant Health) and Phytosanitary Conditions (Amendment) Regulations 2025, laid before the House on 8 January (SI 2025/13), provide for further constitutional separation between Northern Ireland and the rest of the United Kingdom.
Relevant document: 15th Report from the Secondary Legislation Scrutiny Committee
Lord Frost (Con)
My Lords, the regret Motion standing in my name tonight is on a very technical piece of legislation, but one that raises huge matters of principle for this country. That is why I thought it right to ensure, however belatedly, that the issues are debated and are not lost from public or parliamentary view. In speaking tonight, I want to do three things. The first is to set out my concerns about this specific legislation. The second is to set it in the context of the wider Windsor Framework arrangements. Finally, I want to speculate and to ask the Minister a few questions about the implications for the Windsor Framework of the SPS agreement reached, at least in principle, with the EU on 19 May.
First of all, in brief, the legislation updates in various ways the controls that apply to the import of plants into Great Britain to protect against certain high-risk plant pests. I will not go into the detail. I thank the Secondary Legislation Scrutiny Committee for highlighting it as legislation of interest; the committee did so on the back of a memorandum from the honourable Member Jim Allister in the Commons and a response from Defra. Mr Allister’s memorandum, the concerns of which I entirely share, and the Defra response, which seems to largely miss the point, together set out the core problem.
These regulations, as I say, provide for new controls on the import of plants from other countries, including the EU, which for these purposes includes Northern Ireland. In other words, Northern Ireland is in a separate SPS zone from Great Britain. The implications of this are significant. The legislation says that there is a new list of pests from which HMG want to protect Great Britain. Yet, Northern Ireland is part of the UK as well. Why do the Government not wish to protect Northern Ireland, too? The answer, of course, is that they cannot do so; they must, in fact, rely on the EU’s own biosecurity controls, which are the only controls in force in Northern Ireland. The British Government have no legislative or legal control over biosecurity in Northern Ireland.
In any world, biosecurity is an essential state function of any country, for it must be performed by the state. Article 1(2) of the Northern Ireland protocol says that it
“respects the essential State functions”.
In this case, however, that state function is outsourced to another state. Many might argue that itself is not compatible with the operating of the protocol. The Government attempt to deal with this problem by arguing that the EU’s controls are just as good as ours and therefore we have no reason to be concerned by the situation. Indeed, when we were last debating this, on 29 January, the Minister said:
“I want to stress that the EU takes its biosecurity responsibilities for something like foot and mouth extremely seriously”.—[Official Report, 29/1/25; col. 360.]
She was effectively admitting then that those responsibilities are not ours but the EU’s.
I do not know whether it is true or not that the EU takes its responsibilities seriously. In one sense, it does not matter; there is nothing we can do about it. We can try to persuade the EU through the joint committee process to put similar rules in place in Northern Ireland, if it has not done so in the whole of the European Union, but it is only persuasion; we have no power and we are supplicants to the EU in this and many other areas. In short, we can legislate for GB but not for Northern Ireland. That remains the situation, and it is a very unhappy one.
This brings me to the second area I want to discuss, which is the broader picture into which this legislation fits. Tonight’s SI is a specific case of the general problem, which is the Windsor Framework. Under this arrangement—which, regrettably, the previous Government agreed to—a process is under way which is contributing to the separation between Great Britain and Northern Ireland. That is what is happening, and that is at the root of the political problem.
To look back a little, the Windsor Framework ultimately stems from the 2017 joint report between this country and the European Union, and the commitment that was made in that report to align Northern Ireland with the EU single market and customs in default of any other solution. Once that commitment had been made, it then became inevitable that the EU would never try to find any other solution. That is why the original Northern Ireland protocol had to be agreed in 2019, effectively under duress, as the only way of delivering the referendum result, once the option of leaving the EU without a deal had been closed off by Members of this Parliament.
Two directions of travel were then possible. The first was that the protocol arrangements would be seen to be difficult to work in practice, would come under pressure, would not last and the protocol itself would end up being removed or overridden. The Johnson Government, both when I was responsible for this issue and under my successors, sought to achieve this, first by negotiation and then by the Northern Ireland Protocol Bill. As we know, that Bill fell and with it fell any effort—for the time being anyway—to deal with the legal situation created by the protocol.
The other possible direction of travel was the one that has been taken since that point, whereby British Governments have reconciled themselves to the protocol arrangements and actively supported them. That is what the Windsor Framework represents. The British Government are now actively committed to defending these arrangements—a situation in which another entity decrees what must happen in part of our own country.
Not only is that intolerable in itself on that basis; it has two consequences. First, this new reality, in which our Government actively support these arrangements, leads to a different future because other actors start adjusting to it. For example, on trade, between 2020 and 2023 the value of goods purchased by Northern Ireland from Ireland went up twice as fast as the value of goods purchased by Northern Ireland from Great Britain. There is persistent evidence that companies in Great Britain are less inclined to supply Northern Ireland because of the complexity of the rules. The Northern Irish companies are finding suppliers in Ireland instead, and therefore trade diversion is taking place. I note that trade diversion is an explicitly specified reason in the protocol for the use of the safeguards in Article 16.
The second consequence is that it leads to a situation that is well known but needs to be dwelt on: British Governments are inhibited from legislating differently from the EU in areas covered by the Windsor Framework for fear of opening further the gap between Great Britain and Northern Ireland. There is plenty of evidence that this is happening. It was part of the reason why the previous Government were so reluctant to remove, fully and completely, retained EU law from the statute book and it was part of the inspiration behind the product regulation Bill, currently going through the Commons, which will allow Ministers to align us further with the EU by legislative fiat.
This is the heart of the political and legal problem, and all attempts to mitigate it—including, I am sure, in the important work of the noble Lord, Lord Murphy, and his review of the protocol—will come up against this central fact: the willing agreement of the Windsor Framework was a serious mistake. I am afraid that it has caused profound damage to our national interests and will continue to do so.
I know that some noble Lords with an interest in Northern Ireland—and others with a broader interest in Northern Ireland politics—regard this view as intolerably simplistic. They say that the only way to make things work in Northern Ireland is to live with complexity, to accept ambiguity and to be resolute for equivocation. They say that the only way to keep viable the political arrangements created by the Belfast/Good Friday agreement is to pretend to believe they can do two things at the same time: be simultaneously a route to Irish unity for some and a guarantee of Britishness for others under unionism. Maybe you can do that in words, but you cannot do it in real life. Every political, economic and legal development affecting Northern Ireland tilts the balance one way or the other between—to use the jargon—east-west and north-south. But I am afraid that nothing has tilted it more than our acceptance, in the Windsor Framework, of the fact that laws in Northern Ireland are not made by people in Northern Ireland or anywhere else in the UK.
I feel that, in the long run, these arrangements will have to go. One day, a different route will have to be taken and something like the proposed mutual enforcement arrangements will have to be put in place. The Windsor Framework will have to be ditched, and UK laws will have to apply in Northern Ireland as they do anywhere else. I do not think that the current arrangements can stand.
I turn to the third area I want to discuss. I have previously made points like the ones I have just made, as have many others. But since I last made them, one important new element has been added to the situation: the 19 May reset deal and the proposed SPS agreement between us and the EU. I will speculate a little about what this might be and what implications it might have for the legislation we are discussing tonight and other such legislation in the same series. I ask the Minister to respond to some questions.
It is said in the communiqué that the putative agreement
“would result in the vast majority of movements of animals, animal products, plants, and plant products between Great Britain and the European Union being undertaken without the certificates or controls that are currently required by the rules … These same benefits would be extended to the movements between Great Britain and Northern Ireland, through the interplay of the Windsor Framework and the SPS Agreement, so long as the SPS Agreement is fully implemented”.
It goes on to be quite clear about the legal basis for this dynamic alignment: that the UK must accept EU legislation in the SPS area without any formal say in the matter. In other words, the arrangements that are so unacceptable democratically and legally in Northern Ireland are to be extended to the rest of the United Kingdom as well. That is a huge price to pay in national sovereignty and control.
The phraseology of the declaration is important. What the UK has to do is clear; what the effect will be is less so. The Government have at times given the impression that there will be unfettered agri-food trade once the agreement is in place, but that is not what the words say. Agri-food is not all food: it does not include certain processed animal or plant products and many drinks—for example, Scotch, our biggest food and drink export. The Windsor Framework’s arrangements themselves cover more than just SPS movements.
I ask a few questions to conclude my remarks. First, the reset text says that “the vast majority” of movements of SPS goods will be covered by the agreement. Can the Minister say which goods are not covered and will therefore be covered by the existing Windsor Framework arrangements?
Secondly, for goods that are covered by the new arrangements, will the other non-SPS aspects of the Windsor Framework process remain in place for movements from GB to Northern Ireland? Specifically, can the Minister confirm, either now or later in writing, that the customs arrangements required under the Windsor Framework will remain in place, as surely they must unless we are joining some sort of customs arrangement as well. SPS movements will remain secondary customs movements as now, and therefore even when this new arrangement is in place for SPS goods, there will still remain a process and customs barrier between Great Britain and Northern Ireland.
Finally, can she confirm—to help us understand the difference between now and the future—whether the specific piece of legislation we are discussing tonight would be needed in future when the SPS agreement is in place? If not, is that because in future the biosecurity not just of Northern Ireland but of the whole of this country will be protected under EU legislation rather than our own?
I conclude that the Windsor Framework is leading this Government and this country into deeper, more dangerous waters with every day that passes. It must one day be removed, and one day I hope it will be. I beg to move.
Lord Hannay of Chiswick (CB)
My Lords, I will address principally the arguments that the noble Lord, Lord Frost, used in the third part of his speech—the ones that relate more generally to the SPS agreement that on 19 May our Government and the European Union agreed to negotiate.
When I listened to the noble Lord introducing his regret Motion, I hardly noticed any recognition of the fact that we would not be discussing this tonight were it not for his dereliction as a negotiator, when the negotiations were being carried out, to find any protection for the extremely valuable agri-food exports that we make to the other countries of Europe. Nothing was done about that when he was a Minister in the Johnson Government, and no attempt was made to negotiate provisions in the trade and co-operation agreement with the EU aimed at protecting those valuable exports and the people who produce them.
It seems to me that he was also, apparently, unaware of the fact that the SPS agreement, if negotiated successfully—which the Government agreed to attempt to do on 19 May, as did the European Union—would have many additional aspects that could be of great value. Those, of course, are the ones that relate to Northern Ireland, because it is rather clear that if there were an SPS agreement, quite a lot of the problems that have arisen in the operation of the Windsor Framework and the arrangements for trade between Northern Ireland, the rest of the United Kingdom and the rest of Europe would simply fall away. They would not be necessary. That in itself is surely a major prize to reach for.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Baroness Hayman of Ullock) (Lab)
My Lords, I thank the noble Lord, Lord Frost, for introducing this Motion and noble Lords who have contributed to the debate today with such passion and energy. I have, as ever, listened very carefully to all the concerns that have been raised, but I want to draw the attention of noble Lords back to the very positive impact that this legislation has.
Protecting our biosecurity is of paramount importance to address the climate and biodiversity crisis. This instrument introduces and amends protective measures against high-risk plant pests in Great Britain, as identified by our risk and horizon scanning process. As a result, this instrument protects biosecurity and supports trade in the UK. As part of these technical changes, this instrument recategorises certain plants and plant products, again following the completion of the risk assessments, as committed to under the Border Target Operating Model. This is part of an ongoing technical review of plant products subject to plant health import requirements and maintains the GB plant health regime as risk-based and proportionate. This instrument also amends certain official control measures to exclude large plants, plant products and other objects from the requirement for unloading in an area with a roof. This provision enables the implementation of appropriate biosecurity standards in those cases.
I emphasise that this instrument does not separate Northern Ireland from the rest of the United Kingdom or treat Northern Ireland as a third country. Indeed, several of the measures in the instrument actually ensure that Great Britain is applying measures already in place in Northern Ireland. I am sure that noble Lords will not be surprised when I remind the House that the island of Ireland has been treated as a single epidemiological unit for decades. Under this regime, Northern Ireland implements official controls and additional protections in response to pest risks to maintain its biosecurity as part of the island of Ireland.
This instrument also upholds the Government’s policy of unfettered market access in relation to qualifying Northern Ireland goods. Indeed, the Windsor Framework underscores Northern Ireland’s place in the UK. The UK Government want to see the Windsor Framework’s benefits realised for the benefits of businesses and people in Northern Ireland, and right across the UK, in a manner that meets our international obligations, so I am pleased to state that the devolved Governments gave their consent for these regulations to extend across Great Britain. The UK Government and all devolved Governments will continue to work closely together on plant health issues via the UK plant health provisional common framework.
Noble Lords may be interested to note that I had a meeting only this morning with representatives from all devolved Governments—with Ministers—to discuss the BTOM in the context of the SPS agreement. I have listened carefully to the points made by the noble Lord, Lord Frost, in support of his Motion, and to other contributors in today’s debate, and have been struck by our shared commitment to protect UK biosecurity.
I also thank the noble Baroness, Lady Grender, and the noble Lords, Lord Bew and Lord Hannay of Chiswick, for supporting the SI this evening. In respect of the late hour, I will address the noble Lord’s points that relate directly to the legislation which is in front of this evening. I will go through Hansard and any questions that I have not answered I will answer in writing— for example, on the fees, for which I do not have the details with me.
The noble Lord, Lord Frost, asked why the SI applied only to GB. As I said, the island of Ireland has been treated as a single epidemiological unit for decades. The important thing that these regulations are doing is amending the GB-specific phytosanitary legislation to ensure that the biosecurity risks posed to the United Kingdom are addressed. These are already covered in Northern Ireland. We will continue to work closely with Northern Ireland on plant health issues. Northern Ireland will continue to play a full and comprehensive role in technical and policy decisions via the UK plant health provision or common framework.
The noble Lord, Lord Morrow, referred to the Explanatory Memorandum and third countries. To reassure him, this SI applies phytosanitary controls to European Union and rest of the world goods when entering Great Britain. That is the third country mentioned in the EM. A number of noble Lords mentioned the SPS agreement, asking what was in it and what checks would remain. The agreement will cover SPS standards and controls and wider agri-food rules related to food labelling, organics, key marketing standards and compositional standards, as well as pesticides. This is regarding checks, specifically. This will further bring down costs for UK businesses by removing the majority of regulatory trade barriers to agri-food trade, hopefully helping with the trade drop that the noble Lord, Lord Bew, referenced earlier.
We want to get the best deal for British businesses and British people. There is a very limited scope of application to the agreement. We are making commitments to regulate consistently only where that commitment removes a barrier to trade. The EU cannot unilaterally dictate the regulations which the UK must implement. The UK will have to agree and then implement any new rules. It is not like when we were a member state and EU law could flow into the UK even if we had voted against it. We are not returning to those arrangements. This is about regulating in the same way in some limited areas where the UK will also have a role in shaping the relevant laws as they are designed. Again, with regard to the SBS agreement, I have been asked for some specifics, but, because detailed negotiations are ongoing, I cannot provide that information at the moment. But it will come to the House in due course.
The noble Baroness, Lady Hoey, asked why the SPS border has to be in the Irish Sea. The Windsor Framework recognises Northern Ireland’s unique circumstances and therefore prevents the hard border on the island of Ireland. There is a need to maintain the biosecurity of the island of Ireland. Some pests that could pose a risk to Northern Ireland, such as protected zone pests, are present in Great Britain. Therefore, it is appropriate to have procedures in place to ensure compliance with the applicable requirements.
Baroness Hayman of Ullock (Lab)
To be honest, I am not going to take any interventions; it has gone 11 pm.
On plant health threats, the UK Plant Health Service, as I mentioned earlier, has Defra, the Scottish Government, the Welsh Government, the Northern Ireland Executive, DAERA and the Forestry Commission as part of it. So it is properly considered and looked at. The noble Lords, Lord Dodds and Lord Roborough, talked about the removal of border checks putting biosecurity at risk, looking in particular at the rising pest risk in the EU. The agreement will explicitly allow for the UK to take action to protect biosecurity. This will mean that the UK has access to EU databases and other systems to help us do this. This is a big benefit. The common understanding is that the UK should be able to take targeted action to protect its biosecurity in public health, in the same way as member states can in the EU.
The noble Lord, Lord Dodds, mentioned FMD protection for Northern Ireland. As he said, Northern Ireland is protected under the biosecurity regime of the EU. Northern Ireland implements official controls and additional protections in response to risk, such as measures related to pest-free areas, traceability and additional notification requirements for the highest- risk goods in order to maintain the island of Ireland’s biosecurity.
The noble Lord, Lord Lilley, and the noble Baroness, Lady Grender, asked about Popillia japonica. The noble Baroness rightly said that the reason these pests are mentioned in this SI is that the new requirements are already in place in Northern Ireland, so this is bringing the rest of GB into alignment with Northern Ireland; that is what the SI does.
Baroness Hayman of Ullock (Lab)
I have said I am not taking any interventions.
Lord Lilley (Con)
The Minister has not replied to a single point I made. If the bug does not exist in Ireland, why are we inspecting goods coming from Ireland?
Baroness Hayman of Ullock (Lab)
There are plenty of bugs that do not exist in our other countries and are far away that still have the propensity to come here or could possibly arrive here. Therefore, we need to be absolutely vigilant regarding any new potential pests and diseases. The noble Lord, Lord Roborough, talked about the devastating consequences if we do not do that, so we absolutely need to be doing this.
I just have a couple of points and then I am going to wind up, because it is getting late. I will go to Hansard and write on any outstanding points. The noble Lord, Lord Empey, mentioned the trade and co-operation agreement and that its review is due next year. I will take that back to the department and speak about the noble Lord’s concerns on this, because he made a very sensible and relevant point. I completely agreed with the noble Lord, Lord Bew, regarding compromise. It is an extremely important point to make and, if we are to move forward, compromise is going to be critical.
In conclusion, I emphasise that this instrument is a routine update that ensures that risk-based and proportionate biosecurity controls are in operation in Great Britain. Northern Ireland continues to be able to respond to pest risks specifically for Northern Ireland where needed, and will continue to play a full and comprehensive role in technical and policy decisions affecting the UK as a whole.
I remind noble Lords that I meet regularly with DAERA and the Northern Ireland Ministers and their team. Also, I understand that we have a regular meeting of our Northern Ireland Peers this Wednesday, so I am sure that we can pick up many of these issues and continue further at that meeting.
Finally, it is very late. It has gone 11 pm, so I thank all the staff who have stayed and supported us in the House at this late hour.
Lord Frost (Con)
My Lords, I too thank the Minister, the Front-Benchers, noble Lords who stayed late and, indeed, the staff who have kept the Chamber running this evening. This has been an important debate and I will not prolong the discussion.
I have some sympathy with the view expressed by my noble friend Lord Lilley that not all the detailed questions were answered—perhaps understandably— in the round-up. I hope the Minister will look through Hansard and, in particular, at the three specific questions I asked, in addition to others.
I thank all those Members of your Lordships’ House who expressed support for the points I made this evening. I even thank the noble Lord, Lord Hannay, although I suspect his frustration at Brexit might have led him not to pay full attention to everything I said. Indeed, I think we even agreed on one point, which is that an SPS agreement will not cover every barrier that currently exists on SPS.
In winding up, I will react in particular to the comments that the noble Lord, Lord Bew, made. He is absolutely reasonable in saying that one could have different degrees of dissatisfaction with the Windsor Framework arrangements while still thinking that any solution might be imperfect. That is true, and we do have different if often very strong degrees of dissatisfaction.
My concern would be whether it is a stable ending point, not merely an unsatisfactory one. We have heard, and the concerns expressed show, that it probably is not stable. The reality is that having part of your country governed by another entity is not stable. In the end, there are only two stable points: one is to extend the anomaly to the rest of the country—that seems to be the approach that the Government plan to take in the reset—and the other is to remove the anomaly where it exists, which is in Northern Ireland. I hope that is the direction that will be taken.
The issues have been fully aired tonight, if not exactly resolved, and I will not seek to divide the House. I beg leave to withdraw my Motion.