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.
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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.
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.”
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:
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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.
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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.
“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.