Parliamentary procedure: Negative
This instrument seeks to ensure that official controls and checks on agri-foods imported from GB and destined for the EU can be carried out at ports in Northern Ireland (NI). It grants the Secretary of State for the Department for Environment, Food and Rural Affairs powers to expand and enhance existing port facilities in NI and to direct recruitment and employment of staff. Defra says that these powers will be necessary to implement either a negotiated solution with the EU to address the “social, political and economic difficulties that the [Northern Ireland] Protocol has caused”, or the Northern Ireland Protocol Bill which is currently before the House and includes powers that would also require the enhancement of infrastructure at NI ports. While we do not have any comments on the instrument itself, we note the ongoing negotiations with the EU and the significant political concerns and sensitivities that exist around the UK Government legislating in the absence of an NI Executive and NI Assembly and around border facilities in NI. We have received submissions which highlight these concerns. We have published the submissions on our website.
The Regulations are drawn to the special attention of the House on the ground that they are politically or legally important and give rise to issues of public policy likely to be of interest to the House.
1.These Regulations have been laid by the Department for Environment, Food and Rural Affairs (Defra) under the European Union (Withdrawal) Act 2018 alongside an Explanatory Memorandum (EM). The purpose of the instrument is to ensure that official controls and sanitary and phytosanitary (SPS) checks can be carried out at ports in Northern Ireland (NI) on agri-foods imported into NI and destined for the EU. The instrument enables the Secretary of State for Defra to enhance and expand existing port facilities in NI, including through staffing.
2.According to Defra, the NI Executive agreed in 2020 that the NI Department for Agriculture, Environment and Rural Affairs (DAERA) would build the facilities to enable official controls and deliver SPS checks, as required by the Protocol on Ireland/ Northern Ireland (“the Protocol”) to the Withdrawal Agreement between the UK and the EU. Such controls and checks are used to verify compliance with rules on the safety and quality of food, feed, plant health, animal health and welfare in the food production chain.
3.Defra says that, to date, the necessary construction has not taken place because of “wider concerns about the Protocol’s implementation”, and that to address the “social, political and economic difficulties that the Protocol has caused”, the UK Government are putting in place revised arrangements for the operation of the Protocol.
4.According to Defra, this includes preparing the delivery of so-called “red and green lane” arrangements for the movement of SPS goods. While the green lane would provide arrangements for the flow of internal UK trade under a new trusted trader scheme, red lane arrangements would mean that goods going through NI to the EU would be subject to full EU checks and controls and full customs procedures. This requires the enhancement of existing temporary SPS facilities at ports in NI. The Department says that while delivery of these facilities is a devolved responsibility, in the absence of a NI Executive and NI Assembly, the UK Government is taking this forward.
5.According to Defra, this instrument grants the Secretary of State powers which will be necessary to implement either:
6.Defra says that because “these powers are not yet in force, and the infrastructure improvements have a significant lead in time, it is appropriate to use the existing powers available”. The instrument gives the Secretary of State for Defra the power to do anything that she considers appropriate in connection with the construction of facilities for the purpose of carrying out official controls, and to direct the competent authority in NI to recruit and employ the required staff.
7.Lord Benyon, Minister for Biosecurity, Marine and Rural Affairs, has written to Lord Jay of Ewelme, Chair of the Protocol on Ireland/Northern Ireland Sub-Committee, about the instrument,1 highlighting that “acting to deliver these facilities is pivotal to securing a viable and sustainable way forward on the Protocol in relation to EU-destined goods”. The letter emphasises that the instrument has been laid in “full recognition of the ongoing responsibility of [DAERA] in this area, including maintaining the appropriate staffing levels for those SPS facilities and other administrative matters”. The letter states that if the NI Executive is restored, the “intention would be to engage on the scope for returning responsibilities back to the Executive where there was agreement to this”.
8.We have received several submissions about the instrument, including from the Democratic Unionist Party, the Road Haulage Association and a number of transport, logistics and haulage companies. We have published the submissions on our website.2 Some of the submissions reflect deep concerns about the wider impact of the Protocol, including in relation to the integrity of the UK, the right of people in NI to self-determination and the legal basis of this instrument. We offer no comments on these concerns which appear to go beyond the scope of the instrument and the remit of our Committee.
9.We did ask the Department, however, about concerns expressed in the submissions about the impact of the introduction of controls and checks in NI on businesses, consumers and the flow of goods between GB and NI, and about a lack of consultation with relevant stakeholders. Defra explained that it did not consult publicly on this instrument because the Regulations deal with the implementation of an existing commitment, by allowing for the expansion and enhancement of facilities that carry out official controls, rather than introduce new policy, and that it had always been clear with industry that there would be full checks and controls on goods destined for the EU Single Market in any outcome. The Department added that it engaged substantially with industry in relation to internal UK trade when it was developing the policy on the Protocol and the proposed red and green lane approach. We note that the Department has committed to continuing its engagement with industry as construction at border facilities progresses.
10.While we do not have any comments on the instrument itself, we note the ongoing negotiations with the EU and that there are significant political concerns and sensitivities around the UK Government legislating in the absence of an NI Executive and NI Assembly, and around border facilities in NI which have been expressed in the submission that we have received. We draw the Regulations to the special attention of the House on the ground that they are politically or legally important and give rise to issues of public policy likely to be of interest to the House.
1 Department of Environment, Food and Rural Affairs, Northern Ireland Protocol Bill: Sanitary/Phytosanitary Facilities in Northern Ireland (28 December 2022): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1126848/20221228_-_SPS_Facilities_NI_-_Lord_Benyon_to_Committe_Chairs_-_final_signed.pdf [accessed 24 January 2023].