Instruments drawn to the special attention of the House
Official Controls (Extension of Transitional Periods) (Miscellaneous Amendments) Regulations 2024 (SI 2024/20)
Ship’s Report, Importation and Exportation by Sea (Amendment) Regulations 2024 (SI 2024/9)
Date laid: 9 January 2024
Parliamentary procedure: negative
These two instruments support the implementation of the Border Target Operating Model (BTOM) and the Windsor Framework. They bring to an end some of the temporary exemptions from border controls which were introduced following Brexit or align them with the implementation milestones set out in the BTOM. The instruments also include provisions to ensure that most Qualifying Northern Ireland Goods that move from Northern Ireland to Great Britain via the Republic of Ireland are exempt from the new border controls and continue to have unfettered access to Great Britain. The Government says that Border Control Posts (BCP) are prepared for the new controls, and that it has engaged with EU member states and businesses to raise awareness of the new arrangements. We understand, however, that the full implementation of the BTOM will require further legislation, and we note that concerns have been raised about the level of preparedness and the impact of the new controls on supply chains. We therefore do not share the Government’s confidence that the new BCP infrastructure and operators both in the UK and in the EU are ready. The House may wish to seek further assurance from the Minister on this. The House may also wish to ask the Minister how the agreement to restore power sharing in Northern Ireland will interact with the changes made by these two instruments.
These 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 two instruments support the implementation of the Border Target Operating Model (BTOM)1 and the Windsor Framework.2 The BTOM was published in August 2023 and sets out a new approach to importing goods from third countries into Great Britain (GB) after Brexit. It will be introduced progressively from the end of January 2024 and seeks to protect biosecurity while supporting trade. The Windsor Framework was agreed by the UK and the EU in February 2023 and includes provisions on arrangements for trade between GB and Northern Ireland (NI).
Changes made by SI 2024/20
2.This instrument brings to an end some of the temporary exemptions from border controls which were introduced following Brexit or aligns them with the implementation milestones set out in the BTOM. Specifically, the instrument ends the current exemptions for health certificates and phytosanitary certificates for goods classified as medium risk,3 so that certain plants, plant products and other objects which are imported from the European Economic Area (EEA), Greenland, Faroe Islands and Switzerland as a European Free Trade Association (EFTA) country need to be accompanied by a phytosanitary certificate from 31 January 2024. Similarly, medium risk products of animal origin, animal by-products and derived products4 will need to be accompanied by a GB import health certificate. High-risk goods such as certain plants, live animals and germinal products have required prenotification and to be accompanied by an appropriate certificate since 1 January 2021.
3.The instrument also extends the Transitional Staging Period (TSP), which would otherwise expire on 30 January 2024, to 29 April 2024 to align it with the milestones under the BTOM. The TSP was introduced after Brexit to ease temporarily the requirements for official documents and controls for some categories of animals, plants and other goods imported into GB from the EEA, the Faroe Islands, Greenland, and Switzerland. This included suspending temporarily the requirement for goods to enter GB through a Border Control Post (BCP), the requirement for all such goods to undergo documentary checks and the requirement to provide prior notification for certain goods. The instrument phases out these suspensions and easements within the TSP in line with the BTOM.
4.The extension is only until the end of April and there have been reports in the media of industry concerns about BCP readiness and capacity.5 We therefore asked the Department for Environment, Food and Rural Affairs (Defra) whether BCPs were prepared for the new controls from May onwards. The Department responded:
“Defra is confident that existing and new BCP infrastructure will have sufficient capacity and capability to handle the volume of expected checks outlined in the Border Target Operating Model, with robust, dynamic, and effective operational measures ready to call upon if needed. Defra will continue to work with existing BCP operators to ensure they are prepared, and the Government has built new infrastructure at critical locations. Operators have not expressed concerns regarding under-capacity, we are therefore not anticipating queues but will continue working closely with operators to address any concerns they may have.”
5.We also note that the Government explained in its response to a Written Question in December 2023 that it is “working with EU member states to ensure they are prepared ahead of implementation”, including through “a series of overseas visits to meet industry figures and raise awareness of the forthcoming controls” and through engagement “with the European Commission directly, and with EU Member States individually on a government-government level to ensure that EU authorities are prepared for the controls”.6
6.We understand that implementation of the next milestones of the BTOM in April and October 2024 will require further legislation, and that concerns have been raised about the level of preparedness and the impact of the new controls on supply chains.7 We do not share the Government’s confidence that the new BCP infrastructure and operators in the UK and in the EU have “sufficient capacity and capability” and are prepared for the phased introduction of the full controls under the BTOM. The House may wish to seek further assurance from the Minister on this and on the extent of continuing engagement with operators and other relevant stakeholders as the BTOM is implemented.
7.The instrument also extends, until 29 April 2024, the temporary suspension of the specific requirement for meat preparations, such as sausages, which are imported into England from the EEA, the Faroe Islands, Greenland, and Switzerland, to be deep frozen, so that they can be imported in a chilled condition. Defra says that a permanent policy in this area is being developed, with the aim of bringing forward further secondary legislation to come into effect on 30 April 2024. This specific extension only applies to imports into England, but Scotland and Wales have taken forward equivalent legislation so that the same import rules will apply across GB in this area.8
8.Finally, the instrument limits the exemption from the requirement for prenotification which currently applies to certain goods entering GB from the Republic of Ireland (ROI), so that from 31 January 2024 it will apply only to Qualifying Northern Ireland Goods (QNIGs), which move from NI to GB via ROI.9 Non-qualifying goods which may pose a risk to GB biosecurity will be subject to proportionate import controls. We asked Defra whether QNIGs will be labelled, so that they can be identified easily and distinguished from non-qualifying goods. The Department responded:
“This instrument upholds the government’s policy of unfettered market access in relation to Qualifying Northern Ireland Goods and allows most QNIGs to enter GB indirectly via Ireland without the requirement to prenotify. An export declaration will need to be lodged, though this is required by Irish authorities, not UK authorities. At ports using the Goods Vehicle Movement Service (GVMS), hauliers will still need to complete a Goods Movement Reference (GMR), but for most goods movements hauliers will only need to state that they are moving QNIGs in their GMR. Hauliers and drivers should also be prepared to present commercial evidence confirming their goods are QNIGs which have merely passed through Ireland. This exemption from the requirement to prenotify for goods passing through ROI does not include live animals and germinal products, certain animal by-products and derived products not intended for human consumption, and high-risk food of non-animal origin. These goods will be required to prenotify and will be subject to the relevant SPS [Sanitary and Phytosanitary] checks and controls. Further, when UK Plant Passports are applied to QNIGs, required in certain cases for onward movement in the UK, a country code of GB(NI) is applied, and therefore these goods can be identified as originating from Northern Ireland.”
9.We note that despite the special arrangements for QNIGs, there will still be controls for certain goods moving from NI to GB via ROI.
Changes made by SI 2024/9
10.This instrument, in combination with a further instrument laid only before the House of Commons,10 applies full customs controls to goods arriving at specified locations in GB11 by sea from ROI, to ensure that these goods will be treated the same way as those imported from other EU countries. (Goods arriving at other locations in GB are covered by other legislation.) QNIGs that pass from NI to GB through ROI will be exempt to promote “unfettered access” between NI and GB.
11.HM Revenue and Customs explains that, following Brexit, full customs controls were introduced from 1 January 2022 for goods entering GB from most EU countries. This includes a requirement to lodge a customs declaration for goods arriving at certain locations in GB and restrictions on when these goods can subsequently leave the port. These controls were not introduced for goods entering GB from ROI to maintain continuity for NI businesses which routinely move goods in this way, while discussions between the UK and EU on the operation of the old Northern Ireland Protocol were continuing.
12.Under the Windsor Framework, the exemption for goods from ROI is now being removed. This instrument applies a specific part of these changes, ensuring that the restrictions on when goods can leave the specified locations in GB apply to goods arriving by sea from ROI, except QNIGs.
13.We note that at this stage it is unclear how the agreement to restore power sharing in NI will interact with the changes made by these two instruments. The House may wish to seek an explanation from the Minister on this.
1 Cabinet Office, ‘The Border Target Operating Model’ (August 2023): https://www.gov.uk/government/publications/the-border-target-operating-model-august-2023 [accessed 30 January 2024].
2 Prime Minister’s Office, ‘The Windsor Framework’ (27 February 2023): https://www.gov.uk/government/publications/the-windsor-framework [accessed 30 January 2024].
3 Medium risk plants, plant products and other objects are the plants, plant products and other objects which are listed in Part A of Annex 11 to the Phytosanitary Conditions Regulation (Implementing Regulation) (SI 2019/2072).
4 Animal & Plant Health Agency and Department for Environment, Food & Rural Affairs, ‘Guidance: Import risk categories for animal and animal product imports from the EU to Great Britain: summary tables’ (December 2023): https://www.gov.uk/government/publications/risk-categories-for-animal-and-animal-product-imports-to-great-britain/target-operating-model-tom-risk-categories-for-animal-and-animal-product-imports-from-the-eu-to-great-britain [accessed 30 January 2024].
5 See, for example, The Guardian, ‘New Brexit checks ‘pose existential threat’ to UK fruit and flower growers’, (22 January 2024): https://www.theguardian.com/politics/2024/jan/22/brexit-checks-existential-threat-uk-fruit-flower-growers [accessed 30 January 2024].
7 BBC News, ‘Brexit food checks will test Britain’s supply chains’ (30 January 2024): https://www.bbc.co.uk/news/business-68135059 [accessed 31 January 2024].
8 Meat Preparations (Amendment and Transitory Modification) (Wales) (Amendment) Regulations 2024 (SI 2024/17) (W. 6) and Meat Preparations (Import Conditions) (Scotland) Amendment Regulations 2023 (SSI 2023/367).
9 As defined by the Definition of Qualifying Northern Ireland Goods (EU Exit) Regulations 2020 (SI 2020/1454), see 31st Report (Session 2019–21, HL Paper 153).
10 Taxation (Cross-border Trade) (Miscellaneous Amendments) Regulations 2024 (SI 2024/12).
11 These specified locations are Roll-on Roll-Off (Ro-Ro) and other listed border locations, see: HM Revenue and Customs, ‘Locations which need a pre-lodged declaration’ (12 October 2023): https://www.gov.uk/guidance/check-which-locations-you-need-to-use-pre-lodged-declarations [accessed 30 January 2024].