Official Controls (Plant Health) and Phytosanitary Conditions (Amendment) Regulations 2025

Lord Dodds of Duncairn Excerpts

Monday 9th June 2025 Lords Chamber

[Baroness Hoey (Non-Afl)]

My Lords, I congratulate the noble Lord, Lord Frost, on praying against this. It is really good to see someone from the Conservative Party actually praying against these regulations. In his wide-ranging contribution, he highlighted some of the real issues that we should be discussing. Perhaps it might be helpful if sometimes we were not discussing these issues so late at night. I also congratulate him on his patience, because I think he prayed against this some months ago and, of course, the regulations are already in place.

These regulations are hugely controversial because they undermine the territorial integrity of the United Kingdom, giving effect to the division of the UK into two parts. Although it is correct that, for epidemiological purposes, Northern Ireland has been treated on the same basis as the rest of the island of Ireland since before the imposition of the Irish Sea border, the idea that this somehow neutralises the problem associated with the border and these regulations is just unsustainable. There is all the difference in the world between the effects of being treated as part of the same epidemiological unit as the rest of the island of Ireland, while remaining within the international SPS borders of the United Kingdom, and being treated as part of the same epidemiologist unit as the rest of the island of Ireland, while being moved from within the international SPS borders of the UK into the international SPS borders of the EU.

What makes these regulations really toxic to me and to others is the fact that they have been given effect through the SPS border enforcement framework provided by the Official Controls (Amendment) Regulations 2024. As such, not only do they divide the UK by means of an international SPS border but they do so on the basis of a justification that their enforcement mechanism sweeps away, pulling the rug from beneath the feet of the entire Irish Sea border project.

The Government’s justification for moving both the customs and the international SPS border from the international border was that the only way we could have such a border was as a hard border and they did not want a hard border on the international border and therefore agreed to the movement of the border to the Irish Sea.

However, the enforcement mechanism for the regulations before us today demonstrates that the border can be enforced without SPS infrastructure on the border, so the Government’s justification for moving the border disappears, making the constitutional ramifications of the regulations before us today very toxic and controversial.

When I raised this problem on 29 January in the debate on the Official Controls (Amendment) Regulations that provide the framework for the enforcement of the regulations before us today, the Minister stated:

“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”.—[Official Report, 29/1/25; col. 359.]


But that is incorrect.

Although the movement of the SPS border from the international border to the Irish Sea was obviously part of the Windsor Framework, the removal of the central justification for moving the border, by means of the way in which the regulations before us today will be enforced, was not in the protocol, nor in the amendments that resulted in it being renamed the Windsor Framework. That is the whole point.

It is with the demonstration that the border can be enforced through an SPS infrastructure away from the border, through the enforcement regime for the regulations before us today, which has become apparent only this year, that the whole justification for moving the border has been removed.

On 4 March, the honourable Member for North Antrim raised the very same point in another place. Interestingly, on that occasion the Secretary of State said:

“The answer is this: as a sovereign country, it falls to us to decide how we check goods that arrive in our territory … It is for sovereign countries to determine what checks they apply. The same truth applies to the European Union; it has a single market”.—[Official Report, Commons, 4/3/25; cols. 253-54.]


What the Secretary of State was saying simply has the effect of saying that the problem highlighted is indeed a reality, but seeks to validate this on the basis that the way the border works is the decision of the UK Government for goods moving from Northern Ireland to GB and of the EU Government for goods moving from GB to NI. As such, it simply acknowledges the current situation but does not engage with the problem that it presents.

The point is that doing this completely removes the justification always given for taking the extraordinary step of agreeing to move the customs and SPS border from the international border to the Irish Sea, namely that this was the only way to avoid having a hard border, when our Irish Sea border arrangements demonstrate that this is not true. So I ask the noble Baroness again: who is right, she or the Secretary of State in the other place?

This is a huge issue, because of the costs associated with moving the SPS border away from the international border, even, as we know, as that border serves as the border for tax and excise purposes, for purposes of currency, for many other legal purposes and indeed more recently for immigration purposes, because the Republic now carries out immigration checks along the border. So it constitutes the most extraordinary reversal of democracy.

We are aware of countries that are not democratic and we want them to become fully democratic. But what has happened in Northern Ireland, by contrast, because of the needless movement of the customs and SPS border, is really extraordinary. We have seen the disenfranchisement of 1.9 million people in 300 areas of law—not just bits of law but areas. This makes the Government’s position completely unsustainable. They cannot say, as the Secretary of State said, that it is fine to agree to move the border when the operation of the Irish Sea border, GB to NI, demonstrates that the only justification for doing so does not exist.

In truth, no self-respecting country should agree to any arrangement that involves the disfranchisement of all its citizens in 300 areas of law, for any reason. However, to do so in a context where one’s own arrangements demonstrate that this is completely unnecessary suggests that the United Kingdom has become the first country in the world that is prepared to prioritise acquiescing to the requests of other countries that its own arrangements demonstrate are needless when the price is trading the citizenship of its own people.

I have to say that the Secretary of State himself bears a unique responsibility, because he brought before Parliament what became the Benn Act, the effect of which was to greatly weaken the negotiating position of the then Government. Had he not tied their hands, it is highly unlikely that we would have ended up with the protocol, because there is no doubt that the European Union would have feared the implications of a no-deal Brexit and might not have been quite so unreasonable.

Nevertheless, as the noble Lord Frost said, many of us thought at the time when all of this went through that it would only be temporary. I am very sad that the incoming Government have not seized on the opportunity with this so-called reset to actually try to get the European Union to see sense. The Secretary of State’s intervention ensured that there had to be a deal, without the risk of no deal, and the price of that, which he and others certainly wanted, was that the people of Northern Ireland have become a commodity, traded to give the people of Great Britain the assurance of the trade and co-operation agreement.

The regulation before us today puts in focus once again the abandonment of 1.9 million people of the United Kingdom. I am not going to go over it again, but last time I read out the letter from young people from Northern Ireland who talked about the Government lecturing young people about the importance of active citizenship, only to argue that they did not actually have active citizenship in that part of the United Kingdom. I would also say that they are very grateful that the noble Baroness, Lady Anderson, has now agreed to meet them, and they are looking forward to that.

All of what is being said now and will be said by others has huge implications for the review by the noble Lord, Lord Murphy, which is required by paragraph 7 of the unilateral declaration of 2019 to consider both the operation of the Windsor Framework and the implications of moving away from it, which is possible only if we all consider the alternatives to the current arrangement. The noble Lord, Lord Murphy, must consider the alternatives in detail, including, as the noble Lord, Lord Frost, said, mutual enforcement, which was originally what the EU favoured back in 2019, but things have moved on since then.

We have had to come to terms with the very destructive impact of the operation of the Windsor Framework on democracy, trade and the diversion of trade—why has Article 16 not been invoked?—the effect of those wishing to buy goods from GB businesses and, most importantly, driving a wedge between one part of our country and another. As the noble Lord, Lord Frost, said, this cannot continue. It cannot be sustainable. Mutual enforcement can be a solution to address the UK/Republic of Ireland land border challenge. While it may have been passed over in 2019 because some people felt that it was not the solution, now that we have seen what was the solution, mutual enforcement most certainly represents the best available option in 2025, and discussing these kinds of regulations and the effect on people in Northern Ireland really should make noble Lords sit up and think that something has to change.

[Lord Dodds of Duncairn (DUP)]

My Lords, it is a great pleasure to follow the noble Baroness, Lady Hoey. I agree with virtually every word that she has said. I congratulate the noble Lord, Lord Frost, on bringing this regret Motion before your Lordships’ House this evening. It is extremely important, as I have said on numerous occasions during these types of debates. I welcome that, while it is not a great turnout, it is a much better turnout than we normally have for these statutory instrument debates. We are privileged to have so many people taking an interest. We guarantee that there will be such opportunities in the future, as we examine European legislation.

--- Later in debate ---

Defra has allocated £190 million for the construction of border control posts, which are supposed to become operational next month. That is concreting in the division of our country into two. Noble Lords might try to imagine what £190 million would do to our health service, to our policing service and to our building of new homes, and how many nurses that would create, and how many doctors. But no, it is going into building this massive apparatus to create the sea border. The day that Northern Ireland ceases to be a third country—

[Lord Dodds of Duncairn (DUP)]

Does the noble Lord also accept that, as well as those capital costs, which are very significant, we have to add the £450 million-odd going into the Trader Support Service, the Movement Assistance Scheme and other schemes, adding up to hundreds of millions of pounds being thrown down the drain at a time when we are told that there is no money available for public services?

[Lord Morrow (DUP)]

I thank my colleague the noble Lord, Lord Dodds, who is forensic on this issue. He has again pointed out that the figure I have mentioned is but a fraction, and I thank him for making that point.

In the second instance, as the Explanatory Memorandum makes plain, if the UK Government judge that Heterobasidion irregulare, known to cause annosus root and butt rot, poses a non-acceptable risk to GB, would that not also pose an unacceptable risk to the rest of the United Kingdom? Similarly, if the United Kingdom Government have judged that specific import requirements must be imposed in relation to—this has been referred to—Popillia japonica, which is simply a Japanese beetle, because it is spreading in Europe, and that therefore it warrants additional measures to prevent its entry into GB, does the spread in the rest of Europe not similarly constitute a threat to the biosecurity of Northern Ireland? If the Minister’s answer is to be the same as her answer to us of 29 January on the related biosecurity foot and mouth question, I say respectfully that that will not do.

The levels of protection that the UK Government insisted on for GB—and rightly so—could not have been more different from those that the EU provided for Northern Ireland. The UK has 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 quite limp, downright pathetic and absurd.

The Minister responded, saying,

“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”.—[Official Report, 29/1/25; cols. 359-60.]

That may not be as reassuring as some would perhaps want it to be, because we have heard this evening a charge of a dereliction of duty. Would there be any remote possibility that Europe could show a dereliction of duty at times too, or have we just to utterly trust it? Quite frankly, I am one who would not be prepared to utterly trust it. It is not enough to say that in Northern Ireland biosecurity standards are now determined by a different country from the rest of us, whose Government you do not elect and cannot change, but not to worry as they are very good in their duties. That is not acceptable any more.

The answer also fails the Windsor Framework because it demonstrates how its operation is now failing in its own terms. Article 1 of the Windsor Framework is designated as having very specific function by means of its heading, “Objectives”. I will not go into those because my colleague, the noble Lord, Lord Dodds, has already articulated that very well. If the Government are to fully and faithfully implement the Windsor Framework, the task of ensuring that its operation is faithful to those objectives is plainly of the utmost importance.

Furthermore, the objectives include a requirement that the Windsor Framework respects the territorial integrity and essential state functions of the United Kingdom. The regulations before us today do neither; they divide the United Kingdom of Great Britain and Northern Ireland into two, with an international SPS border, disrespecting the territorial integrity of the United Kingdom of GB and Northern Ireland. They testify to the fact that an essential state security function has been passed from the UK to the European Union, in whose legislature, Executive and judiciary the UK is not represented.

In her response to the debate, I very much hope that the Minister will not suggest that a veterinary agreement with the EU is the answer, for I must tell the House emphatically that it is not. If the Government negotiate an SPS agreement with the EU that will not remove the Irish Sea border or restore the territorial integrity of the United Kingdom, because the United Kingdom will still be divided into two by an international customs border and subject to EU law in all manner of areas—law that we do not make and cannot change—that is just not acceptable. We will still be subject to the EU customs code, which deems that Great Britain is a foreign country in relation to Northern Ireland.

In this, it is my purpose not to offer a counsel of despair—far from it. The truth is that the way the Government are managing the movement of non-qualifying Northern Ireland goods from Northern Ireland to GB, in respect of these and the other SPS regulations, through the Official Controls (Amendment) Regulations and without SPS checks on the border, already provides the answer of how to manage the SPS checks on the international border. However, things can be made even more robust by adopting mutual enforcement, which has already been mentioned by a number of speakers this evening. That has been developed within the EU Commission by Sir Jonathan Faull, together with the academics Professor Joseph Weiler and Professor Daniel Sarmiento, and it provides a means of protecting the integrity of both the United Kingdom internal market for goods and the EU internal market for goods without a hard border across the island of Ireland. I pose the question: what is so desperately wrong with that, when, in fact, it does not hurt either territory? There has to be some other reason that the Government must tell us.

If the current delivery mechanism of the Windsor Framework was exchanged for SPS checks away from the border, as is already the case on west-east movements together with mutual enforcement, the objectives of the Windsor Framework, as set out in Article 1, would be clearly met. Not only would the territorial integrity and the essential state functions of the United Kingdom be respected but the other components of the objectives of the Windsor Framework, as set out in Article 1, could then be fulfilled: namely, protecting the Good Friday agreement in all its dimensions. While I will not digress on that point, the reasons that the current Windsor Framework, far from protecting the Good Friday agreement in all its parts, constitutes the greatest existential threat to the 1998 agreement were eloquently set out recently in an important article in one of our local papers.

There are some strong advocates in this House for the Belfast agreement, and I fail to understand why they are silent on this matter, because it is not being protected. I appreciate that, in 2019, the EU decided that it preferred the Irish Sea border to mutual enforcement, but now we are in a situation where it is clear, in 2025—in part courtesy of the regulations before us today—that the changes necessitated by the Windsor Framework are causing it to contradict, violate and undermine its own objectives as set out by Article 1. The issue must be revisited as a matter of urgency.

In conclusion, I hope that the regulations before us today can rapidly be withdrawn and replaced by regulations that are not implicated in the division of the United Kingdom into two and in the ceding of essential state functions to an entity of which we are not a part. I stress, lest the Minister might be tempted to point this out, that Northern Ireland has been part of the same epidemiological unit since long before the introduction of the Irish Sea border. This point is well understood and is not relevant, because it was never objected to. What is objected to is Northern Ireland being divided from the rest of the United Kingdom by a customs border and an international SPS measure which necessitates Northern Ireland being disenfranchised in hundreds of areas of law.