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

Lord Frost Excerpts

Monday 9th June 2025 Lords Chamber

Moved by

[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.

--- Later in debate ---

[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.

Motion withdrawn.

Official Controls (Amendment) Regulations 2024

Lord Frost Excerpts

Wednesday 29th January 2025 Lords Chamber

[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?