Official Controls (Plant Health) and Phytosanitary Conditions (Amendment) Regulations 2025
Lord Hannay of Chiswick Excerpts(1 week, 6 days ago)
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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.
UK Fishers: EU Agreement
Lord Hannay of Chiswick Excerpts(2 months, 3 weeks ago)
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Lord Hannay of Chiswick (CB)
My Lords, will the Minister confirm that, following the trade and co-operation agreement, the Government will enter into post-2026 fisheries issues at the time laid down for that and not at any artificial date, and that they will negotiate in good faith and in good time on that timetable and not on any artificial proposal to advance that date?
Baroness Hayman of Ullock (Lab)
We will always negotiate in good faith. Regarding any new negotiations, we do not have any talks with the EU currently scheduled. We are content with the existing agreement and with the full and faithful implementation of the TCA post-2026 fisheries access arrangements. However, we will of course listen to the EU and the industry, and we intend to continue to protect the interests of UK fishers.
High Seas Treaty
Lord Hannay of Chiswick Excerpts(3 months, 1 week ago)
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Baroness Hayman of Ullock (Lab)
To confirm, the UN ocean conference is a separate meeting. Therefore, it is not a deadline for ratification of the treaty, but we are committed to the ratification.
Lord Hannay of Chiswick (CB)
My Lords, does the Minister not recognise that with areas such as this in which the United States is not participating, it is even more important that we ratify promptly and show that such international arrangements can be made to work even without the United States?
Baroness Hayman of Ullock (Lab)
I can only reiterate our commitment to ratifying the treaty.
Food Import Requirements
Lord Hannay of Chiswick Excerpts(1 year, 4 months ago)
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Lord Douglas-Miller (Con)
I thank my noble friend. The last time I checked, we collectively voted to leave the European Union. The Government’s job is to implement the biosecurity checks to make sure that we are protected—not just our farmers and our consumers but the trade deals, which are worth billions of pounds a year to the UK economy.
Lord Hannay of Chiswick (CB)
My Lords, could the Minister find in his briefing pack the several occasions on which the European Affairs Committee of your Lordships’ House has recommended that there should be an SPS agreement with the European Union? If he looked at that, could he answer this question: how many of the new controls being imposed would be required if we had an SPS agreement with the European Union?
Lord Douglas-Miller (Con)
The noble Lord raises a very good point. I do not have the exact details of the requirement he is asking for, so perhaps the best thing I can do is write to him on that.
European Union: Trade Barriers
Lord Hannay of Chiswick Excerpts(1 year, 11 months ago)
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Lord Benyon (Con)
You have to slice and dice the different products that are exported to China. We had a very good pork meat export, which was stopped because of issues relating to Hong Kong. We want a system that is focused not just on imports and exports from our closest neighbours, vital though that market is. We want to make sure we are trading fairly with the rest of the world, which is why we will have a sanitary and phytosanitary border system in place that is understood right across the world and that facilitates safe trade.
Lord Hannay of Chiswick (CB)
My Lords, will the Minister explain why the Government are so firmly determined not to have an SPS agreement with the European Union, despite the fact that other third countries—for example, Switzerland and New Zealand—have such agreements? In what respect does the agreement reached in Brussels yesterday, by the Foreign Secretary and the vice-president of the Commission, on agrifood trade between Great Britain and Northern Ireland differ from an SPS arrangement?
Fishing: France
Lord Hannay of Chiswick Excerpts(3 years, 7 months ago)
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Lord Benyon (Con)
I am grateful to my noble friend. Licences for UK waters are issued on the basis of five reference years, and a French vessel has to prove that it has fished at least one day a year in four of those five years. On the basis of that, I think I am right in saying that we have issued 98% of all licences applied for by French vessels to fish in our territorial waters. So, I am clear that we are doing our bit to stand by the terms of what has been agreed with the EU. It is for them to resolve the allegations they have made and the circumstances of this particular dispute.
Lord Hannay of Chiswick (CB)
My Lords, does the Minister appreciate that the House would be in a better position to understand the facts of this extremely complex matter if only the Government had reported to this House and its committees what was going on—this issue has been brewing for several months now—and will he remedy that? Does he agree that this is a moment when it would be good if both Governments could put away their megaphones and do a bit of real diplomacy?
Lord Benyon (Con)
It is actually longer than that. I hate to disagree with the noble Lord, who knows so much about these matters, but I can remember a dispute in the Baie de Seine long before Brexit, so this has been a disputed area of fisheries. However, I can tell him that we are in the business not of escalating this dispute but of resolving it for the benefit of the fishing industry and the sustainable harvesting of marine benefits. There is no desire for this to be escalated any more. It is for the European Commission, as part of the TCA process, to address the accusations and threats made by the French Government.
Fisheries Bill [HL]
Lord Hannay of Chiswick ExcerptsTuesday 11th February 2020
(5 years, 4 months ago)
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Lord Hannay of Chiswick (CB)
My Lords, I suggest that the Fisheries Bill to which we are giving a Second Reading today is no more than a picture frame without a picture. What that picture will be—the detailed shape of Britain’s new post-Brexit fisheries policies—remains as shrouded in mystery as ever. I note that I am the first person speaking in this debate who has even recognised that quite a lot of this will have to be thrashed out in negotiation with the European Union and Norway and cannot just be decided unilaterally by us—although we will of course have a much bigger say than we had before we left the EU. Moreover, as with other aspects of post-Brexit legislation, the detailed implementation and filling-out of that picture is very much conferred in wide-ranging powers for the Executive, with only a pretty vestigial role for Parliaments and Assemblies.
Thirdly, while I note what the Minister said about fisheries being a devolved subject, and due account of that having been taken, there is not a lot about how the devolved Administrations in Edinburgh, Cardiff and Belfast are to be brought into policy-making for a sector of great importance to their economies and electorates—of proportionally greater importance, incidentally, than it is to the English economy.
That is quite a long list of gaps that I hope the Minister will fill when he replies to this debate. With regard to filling in the details of that picture, I have not the slightest intention of asking the Government to divulge their negotiating position in the talks, which will probably get under way in March—even if they knew what it was, which I rather doubt. I will be neither surprised nor particularly disappointed if the Minister says that at this stage he will not go into that detail. But it is important to go into those negotiations, which will inevitably be tough and difficult, with a set of realistic and realisable objectives, not just a collection of slogans and mantras—which is all that has been unveiled in the past three and a half years. We should also be prepared to reach compromises along the way, since an all-or-nothing approach would be all too likely to inflict damage well beyond the fisheries sector itself.
It is not rocket science to suggest that any decent deal will have to cover three crucial elements. The first, and most sensitive, will be access by other parties to fishing grounds lying within our exclusive economic zone and territorial waters. Secondly, there will need to be shared arrangements for fish stocks in those waters, particularly the North and Irish Seas and the English Channel. The third crucial item will be the tariff and phytosanitary control arrangements applying to both our exports and imports. If we gave total priority to one of those three, or excluded one of them from consideration, the results would not be as we wished.
Access to waters is a hugely sensitive issue. It is not a new one, nor did it first arise in the context of our membership of the European Union or the common fisheries policy. In 1964, when the Government of the day decided to extend Britain’s territorial waters from six to 12 miles, we negotiated the London Convention, which gave what were called historic rights to continue to fish in our waters to a number of European countries. At that time, it is important to remember, we were not a member of the EU, and the common fisheries policy did not exist. That has to be borne in mind, because that history will be on the table when we come to negotiate. It will not decide how we handle it, but it needs to be taken into account. That is not just a legal issue—I am not making a legal point here at all—but a political issue: what is pragmatic and practical. I believe that an all-or-nothing approach to that issue will work to our disadvantage.
There is then the hugely important issue of shared management and conservation of stocks. That must be a shared responsibility with the EU and with Norway, given the inconvenient tendency of fish not to know when they are crossing a boundary. In the earlier years of the common fisheries policy, that issue was badly mishandled and stocks were grievously damaged, with decisions taken that rode roughshod over scientific advice. That must not happen again, and I recognise that it is one of the aims of the Government in this legislation, which I welcome. We must not slip back into that period where the politics of allocating shared stocks gained over the science. Neither, again, should we take an all-or-nothing approach.
The third element is the trade in fish and fish products. Over the 47 years that we have been in the EU, we have benefited, of course, from zero tariffs, zero quotas and common phytosanitary rules. They have covered our exports and our imports of fish and fish products, both wild and farmed. Those exports have grown exponentially during that period. They are pretty substantial now, as they were not when all this started. That gives the possible outcome on access to fisheries markets great importance, and we should not delude ourselves that, if we acted in a way that led to the loss of those continental markets, we would be able to replace them quite easily, because that is not the nature of this highly perishable product.
On devolution, I will merely say that every aspect of our new fisheries policy will directly or indirectly involve the devolved Administrations, so it will be important to build them from the outset into the negotiating and implementing process—all the more so as fisheries are such an important subject for them. The alternative, to have a kind of running battle between the devolved Administrations and the UK Government, will only feed the fissiparous tendencies already undermining the unity of the United Kingdom.
So it is a complex picture, but I see no reason why our fishing industry should not emerge quite a lot better placed than it is now, so long as we do not insist on negotiating overreach and do not play about with fancy ideas of linkages with other sectors, of the sort that were put forward recently by the Taoiseach when he suggested some kind of linkage with financial services. That would make a balanced fisheries deal on the three crucial decisions that I have suggested far more difficult to reach, and it would be a mistake if we went down that road.
Upland Farming
Lord Hannay of Chiswick Excerpts(6 years, 2 months ago)
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Lord Gardiner of Kimble
My Lords, we have said as a Government that we will commit the same sum of money until the end of this Parliament. No Parliament can bind its successors, but 2022 is the likely end of this Parliament given the cycle we have. If we are to keep people on the land, they need a viable income. They also need to live a contemporary life, which is why I specifically mentioned the work we are undertaking to improve connectivity in the uplands, where we are not as strong as in other rural areas, and where we need to commit money, which we are doing.
Lord Hannay of Chiswick (CB)
My Lords, will the Minister confirm as a matter of fact that remaining in a customs union with the European Union would achieve the objectives that all noble Lords who have asked questions—and the Minister—have agreed must be our objective?
Lord Gardiner of Kimble
Our objective is to trade freely with the European Union, the EU 27, our partners in what I hope will be a very productive and long-term economic arrangement. That is what we should aim for.
Fisheries: London Convention—Withdrawal
Lord Hannay of Chiswick Excerpts(7 years, 5 months ago)
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Lord Hannay of Chiswick
To ask Her Majesty’s Government under what authority they notified on 3 July 2017 the United Kingdom’s decision to withdraw from the London Fisheries Convention of 1962; and what account they took of the provisions of the Fishery Limits Act 1964 and of European Union Regulation 2371/2002 before making that decision.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Gardiner of Kimble) (Con)
My Lords, the London Fisheries Convention provides access to fish in UK territorial waters from six to 12 nautical miles. Similar provisions appear in the common fisheries policy. Article 15 of the convention permits parties to withdraw with two years’ notice. The UK gave notice on 3 July 2017, using prerogative powers. Before making this decision, we considered all relevant legislation, including the 2013 regulation that replaced the 2002 regulation and the 1976 Act that replaced the 1964 Act.
Lord Hannay of Chiswick (CB)
My Lords, I thank the Minister for that Answer and for his courtesy in fielding a number of importunate questions on this matter from me over recent months. He started by trying to answer a lot of questions that I did not ask, but he has now answered the question that I did and told us that the royal prerogative has been used for this purpose. I wonder whether he thinks that is a trifle risky, given the Government’s experiences in the Supreme Court over Article 50. It is quite clear that the Fishery Limits Act 1964, which came after the conclusion of the London convention, was designed to take into domestic law the provisions of the London convention. On 15 June 1964, when introducing the Second Reading of that Bill, the then Minister of Fisheries said:
“The purpose of the Bill is to establish the fishery regime in our waters for which the Convention provides”.—[Official Report, Commons, 15/6/1964; col. 946.]
Lord Hannay of Chiswick
Sorry; I thought that the Minister might wish to be reminded of what one of his predecessors at the Dispatch Box said. My question is this: does that not make the situation even more risky due to the way in which the Government have acted without a parliamentary process?
Lord Gardiner of Kimble
My Lords, I assure noble Lords that a great deal of consideration went into this matter. For instance, the Supreme Court made it clear that an Act of Parliament was not required where a treaty did not grant individual rights. We decided that we should trigger article 15 to give complete clarity, so that when it comes to us leaving the common fisheries policy we could have a clean slate on which to negotiate for all our waters. We are talking about between six and 12 nautical miles, but it is in the 12 to 200 nautical mile median line that the vast bulk of fishing takes place. The 1976 Act provides Ministers with the power to designate which countries can fish in UK waters. We are all looking forward to the negotiations, so that we can have sustainable fishing.
Brexit: Environmental Standards
Lord Hannay of Chiswick Excerpts(8 years, 4 months ago)
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The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)
My Lords, we have not yet heard from the Cross Benches, so we shall hear from them.
Lord Hannay of Chiswick
My Lords, when we pass the primary legislation, if we do, on the great repeal Bill, how are we to know what effect that will have when we will not by then have agreed the terms of our trade and many other matters with the European Union?
Lord Gardiner of Kimble
As I say, because of the construction of our environmental protections which are part through domestic law and part through our EU law requirements, all of it is coming back so that it will be exactly the same continuum of laws relating to environmental protection. That is the whole point of the great repeal Bill, so there is certainty for the consumer, the producer and business.