Customs Safety and Security Procedures (EU Exit) Regulations 2020

Baroness Bowles of Berkhamsted Excerpts

Thursday 10th December 2020 Grand Committee

[Baroness Bowles of Berkhamsted (LD) [V]]

My Lords, as the noble Lord, Lord Moynihan, has already reminded us, the news yesterday and today has highlighted fullness at our ports due to Covid, Christmas and Brexit stockpiling and a build-up of empty containers here while Asian exporters have a shortage. It is a useful reminder that logistics must be thought out well ahead—they are only going to get more complicated from January.

This SI is about outgoing not incoming goods, but I have a few questions about how it works and what can be taken into consideration. On the face of it, it looks simple enough: if there is disruption, flow rate can be made simpler by waiving pre-departure notices or modifying the time limits for submissions; it can be done on specific sectors and types of goods or at specific places to allow targeted mitigation; and the power lasts only six months.

Paragraph 2.2 of the Explanatory Memorandum says that the powers can be used only for border disruption, and paragraph 2.6 narrows that to:

“in the event that requirements for pre-departure declarations cause border disruption”.

However, I cannot find an exactly corresponding provision in the regulations. Regulation 2(2) states that it is

“to relieve disruption at or near places from which goods are directly removed from Great Britain”,

but it makes no mention as to cause. I presume that the legislation is correct and, therefore, that wider causes of disruption could trigger the use of the power even if that is not the current intention. Perhaps the Minister can confirm that. If the Explanatory Memorandum reflects the intent in practice, why does it not make that clear? Is it intended to have a wider contingency, or is it that it is difficult to assert causality in legislation? I understand that but, if so, why not draft the Explanatory Memorandum accordingly and give the causes more as practical examples of intention?

Looking at the legislation rather than the Explanatory Memorandum, and given the present circumstance that I just mentioned about congestion caused by imports, would a similar event, maybe through knock-on effects, qualify as a disruption near a place where goods are removed from Great Britain, because the ports have both incoming and outgoing goods? Do queues in Kent, incomplete or full Farage lorry parks count as a disruption near a place where goods are removed from Great Britain? Could, and would, this provision be used because of events that have no relation to the export of goods, such as civil protest or industrial action? If a major cause is congestion, what steps are being taken to distribute both exports and imports to other ports with capacity, to minimise the need for these powers and congestion in general? Can that be done at short notice?

A previous statutory instrument on no-deal planning made it clear that the waiver would be exercised only in relation to exports to countries where previously there was no need for documentation—basically the EU—but there is no similar mention or emphasis here. Presumably this means that waivers can be in respect of any and all countries. If that is the case, are there some countries for which there would never be a waiver because of greater security concerns? What international provisions are there about disruption? Is there anything in SAFE to enable this kind of suspension for disruption and are there examples of when and why it been done elsewhere?

I turn to a more general point: alongside requiring pre-departure declarations, there is a provision for risk assessment time, which is in Article 264 of EU Regulation 952/2013. The SI makes provision for that to be stipulated in connection with notices relating to the time limit for lodging pre-departure declarations. What is the usual current risk assessment time? Obviously it does not apply at the moment for EU goods, but it applies elsewhere, so there must be some available information. Is there a uniform target time? What is the time relationship between when the pre-departure declaration must be lodged and the risk assessment time?

Finally, what is the timescale for changing or bringing out a notice? How quickly would it be disseminated and expected to have an effect, and for what duration would it typically be expected to run? What happens to the live animal aspects, which the Minister mentioned, saying that they would use the same documentation? If the documentation is suspended, what happens to checks on live animals: are they abandoned, or will they run separately?

I do not really have any fundamental objection to the SI but, as the Minister will be able to tell from my questions, more surrounding information is really needed to put it in proper operational context. Brexit is an extraordinary event, but it is of some comfort to know whether international norms cater for extraordinary events or whether contingency measures that we have to take cause strain to those norms and, therefore, to other international relationships.