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Grand Committee

Volume 832: debated on Tuesday 19 September 2023

Grand Committee

Tuesday 19 September 2023

Arrangement of Business


My Lords, we are not expecting any Divisions in the Chamber but, just in case there is one while we are sitting, this Committee will adjourn as soon as the Division Bells ring and will resume 10 minutes later.

Representation of the People (Postal and Proxy Voting etc.) (Amendment) Regulations 2023

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Representation of the People (Postal and Proxy Voting etc.) (Amendment) Regulations 2023.

Relevant document: 47th Report from Secondary Legislation Scrutiny Committee

My Lords, in moving this Motion, I will also speak to the Representation of the People and Recall Petition (Northern Ireland) (Amendment) Regulations 2023 and the Local Elections (Northern Ireland) Order 2023. I ask that the three statutory instruments, laid before the House on 6 July and 4 September, be approved. The changes set out in these instruments deliver on our manifesto commitment to protect the integrity of our democracy, as legislated for by Parliament through the Elections Act 2022.

I will set out the key provisions of the instruments, turning first to the Representation of the People (Postal and Proxy Voting etc.) (Amendment) Regulations 2023. The Elections Act introduced a requirement to reapply for a postal vote at least every three years in Great Britain. This will help electors stay alert about the arrangements that they have in place, ensure that a person’s eligibility to vote by post is reviewed on a regular basis and reduce the risk of redundant postal ballots being issued. To make this transition as smooth as possible, this statutory instrument allows existing long-term postal voters’ arrangements in Great Britain to continue until 31 January 2026, giving those postal voters more time to make a fresh application under the new system.

Existing postal voters will be clear on when and how they need to make a new application, as electoral registration officers are required by the instrument to make those whose postal vote is due to expire aware in advance and outline the new application process. This will then remain an obligation on EROs for future postal voters. I appreciate that this will mean a change for long-term postal voters, but empowering them to stay informed and in control of their vote is a positive step. This measure will also help to prevent voters from being unduly pressured into having a postal vote and using it under duress.

There is concern that, under existing arrangements, electors can be coerced into appointing a proxy to control how they vote. The new arrangements will ensure that the scope for fraud is reduced by limiting the number of electors for whom a person may act as a proxy. The instrument therefore introduces a limit to the number of electors for whom a person may act as a proxy to four, of which no more than two can be domestic electors—that is, an elector who is not registered as an overseas or service voter. It will update all relevant prescribed forms to make sure that the new limits are set out.

This statutory instrument also introduces an identity check at the point of application or reapplication for a postal or proxy vote. The elector will be required to provide their national insurance number, which will be checked against DWP data, or, where they cannot, they will need to give a reason why as part of the application. Where an individual does not have a national insurance number, the electoral registration officer may request other specified documentary evidence or an attestation to demonstrate their identity. This process is one that electors are already familiar with and has been in place for the register to vote service since 2014.

The success of the register to vote service is an example of how we have made sure that our elections are modern and accessible. We are building on that work with this instrument. It creates a new digital route for electors in Great Britain to apply online to vote by post or by proxy. The digital service for applying for absent votes will be launched when the regulations come into force. I can assure noble Lords that, as was the case for the voter authority certificate service, the user journey and the administrator-facing portal are being carefully developed and will continue to be improved during the public beta phase to ensure that they meet the high standards expected of all government services.

The revisions of postal and proxy rules will apply to all elections reserved to the UK Government in Great Britain, as will the online application service. The proxy voting rules will also apply in Northern Ireland and the digital service will be introduced in Northern Ireland at a later time.

I turn now to the two statutory instruments making provisions specific to Northern Ireland elections. These instruments implement the same proxy limits as set out for elections in Northern Ireland. The Elections Act places a duty on the chief electoral officer to provide lists of dates of birth to polling stations in Northern Ireland for the purposes of checking a voter or proxy’s exact date of birth in specific circumstances.

These instruments ensure the protection of the sensitive personal information that the lists contain so that only the police and the courts may access them. Existing legislation allows the retention of entries on the Northern Ireland register following a canvass. This instrument extends that provision, which will avoid a cliff-edge loss of electors from the register. I assure your Lordships that data checking carried out by the chief electoral officer has given a high degree of confidence that the voters concerned are entitled to remain on the register. The Electoral Commission is supportive of extending the period of retention.

These two instruments will strengthen the integrity and security of our absent voting, while ensuring that our processes remain accessible for voters and in step with modern standards. I commend them to the Committee.

My Lords, I thank the Minister for that comprehensive introduction. We have to think about the context in which we are considering these statutory instruments. I will contain my remarks to the first one, about postal and proxy voting overall.

The context is that, just this month, the Electoral Commission’s report on the May elections noted that there had been a significant exclusion of people who wanted to vote from being able to vote by the process of voter ID. The Electoral Commission concluded that poorer people, people with disabilities and those from minoritised communities were significantly over- represented among that group. The Electoral Commission said that hundreds of thousands of people could be excluded from exercising their vote in the next general election. I note that, like many Members of your Lordships’ House in debates on the Elections Act, the commission made urgent recommendations to allow for a wider list of documents for voter ID and to allow other voters to attest to the identity of a voter who is with them at the time. In this context, can the Minister explain why, in its reflections on the election, the Department for Levelling Up, Housing and Communities failed to mention any of the Electoral Commission’s criticisms and described the rollout as “very encouraging”?

That is important in the context of these changes, which I now come to the detail of. First, under Section 3 of the Elections Act, we are looking at a time limit of three years for postal voting, when there is currently no limit. It is possible to look at this in two ways. The first is people being reminded that they have a postal vote. I am sure that some Members of your Lordships’ House have knocked on people’s doors and said, “Have you got a postal vote?”, and they reply, “Oh, I think so. I am not sure”. Obviously, people being reminded of where they are and being reminded to renew is not a bad thing. However, I also think of the many, often but not always elderly, voters who have a pattern: they know exactly what their involvement in elections is and they have been doing it for decades. This is a disruption that could see them lose their right to vote, if they are unable to leave the house to go to a polling station on polling day and they expect their postal vote to turn up, but it does not—and, the day before, they ring the council and it is all too late.

In that context, I have a specific question regarding the operation of Section 3. Will local election returning officers be able to use methods other than post? We all know that, these days, hardly anything arrives in the post except flyers and advertising leaflets. People tend to throw the whole lot in the bin sometimes. Will there be text messages and emails, or will they be encouraged to knock on doors, if they have sufficient capacity? What is envisaged about that three-year reminder?

I come to Section 6 of the Elections Act, about the limit of four on the number of proxy votes. Again, this goes both ways: you can imagine a situation where a family has genuinely sat down and agreed how they want their votes to be exercised by proxy, where this could exclude people from exercising their vote. But I also see the concerns here, so Section 6 is perhaps something to keep an eye on to see how many complaints come in and what the situation is.

Finally, because I do not get to do it very often, I welcome the Government’s move to enable absent vote applications to be made online rather than the current paper process. This is an obvious small piece of improvement. However, will the paper process remain for people who are unable to navigate the online process, as is still the case for many people? I also welcome the digital identity checks for absent voter applications. Again, that seems to be a modernisation.

Introducing the SI, the Minister said that the Government want a modern, accessible system. This SI makes a couple of small steps forward, but we cannot forget the context: hundreds of thousands of people are going to be excluded from voting in the next general election unless the Government change the arrangements for voter ID.

My Lords, before I make any comments, I wish my noble friend Lady Scott well since she handles election matters in most circumstances. I think the whole Committee would wish to do so. Although she was not necessarily due to handle this Committee, I think it is appropriate in these circumstances so to do.

I will follow the comments by the noble Baroness, Lady Bennett, in relation to elections by looking at elections in the context of two major changes that we are seeing. The noble Baroness, Lady Bennett, touched on one: the range of changes we are seeing in relation to elections law as part of the Elections Act, which I broadly support.

The other is that we are watching the development of election events, almost. Historically, people used to register on the electoral roll and that was an ongoing process. What we see nowadays is an immediate massive surge in registration at the point of an election, whether a local or a general election. The implications of that are that EROs and elections administrators face an enormous burden. We should not underestimate that burden, particularly because as legislators we are imposing ever more elections on the system. One thinks of mayors and regional mayors, and we now have environmental plans. Two years ago people in Liverpool went to vote in five different elections; they had multiple votes to cast. That is likely to continue. Therefore, the burden on elections administration is very substantial indeed and seems to be ever growing.

The noble Baroness, Lady Bennett, referred to the Electoral Commission’s comments in relation to voter ID. There has been pressure from other directions. The Electoral Commission not only referred to possible qualifications in terms of documents that may be produced but made other recommendations. I would appreciate an indication as to whether the Government intend to work with the Electoral Commission and other bodies to introduce any of the changes that are referred to in its report before a general election or the next local elections. The other day I discussed this with the noble Lords, Lord Rennard and Lord Wallace, and the timetable would be very tight, but it is another part of the burden that we are imposing on electoral officers in councils.

I do not know whether the noble Lord, Lord Bruce, is going to raise the burden of overseas voter registrations —which will come at some later stage—but, just in case he is not, I do so on behalf of the noble Lord, Lord Wallace, while I have the floor. It is a fairly complex matter. I have been in communication with the Government because, with all-party support, I was lucky enough to get the Ballot Secrecy Act through this House and the other—it has become legislation. That is another burden that will be imposed on electoral officers in councils.

I have written to my noble friend Lady Scott about my legislation and she has indicated that there will be an SI at some stage. Can my noble friend indicate when that will come forward, as that will be yet another piece of legislation? When writing to my noble friend Lady Scott, I raised the Ballot Secrecy Act; I do not expect my noble friend the Minister to respond to this, but I questioned whether the briefings provided were accurate and consistent and raised other issues around elections, referenda, recall petitions and the like. I got answers to questions I had not asked, rather than to those I had. In one case, I did get an answer—I did not like it, but I accepted it—but in two others I got answers to questions I had not asked. My noble friend Lady Scott has offered to discuss this further with me. At this point I formally say, “Yes, please”, whether that is with her or another Minister, and with officials.

What concerns me most about the proposals before us today is that, as I have argued on a number of occasions, reducing the burden on elections officials would most effectively be achieved by allowing voters access to the register on a read-only basis. I referred just now to a substantial electoral event when literally millions of people go online and try to register, but have no way of knowing whether they are already on the electoral roll. The research that has been undertaken shows that somewhere over a third of all applications made to register online were unnecessary because the people were registered beforehand.

In evidence to a Select Committee on which I served, the Government identified the notional cost of read-only access. I think we indicated at the time that we did not believe the figure we had been given, and I still do not. It was an excessive figure. If Ireland can do it in a relatively small economy, we can do it also. I foresee a problem with people registering online for their postal votes. They will be registering without knowing whether they are on the electoral roll and then applying online for a postal vote. This burden will be in the middle of an election period, when the returning officers and their staff will be facing a massive task. We will now have people trying to register to vote when they do not need to and trying to register online for a postal vote when they probably cannot.

As the noble Baroness, Lady Bennett, identified, people will still be able to apply by paper application. I am fairly sure—speaking as somebody who has been involved in elections in the Tory party with my noble friend Lord Mott on previous occasions—that the political parties will not stop encouraging people to put in paper applications. Of course they will not, so all the applications online will come on top of all the paper applications. People will be trying to register when they do not need to and trying to apply for postal votes when they possibly already have a paper application, and we could have local elections and a general election on the same day. The risk of over- burdening the staff in these circumstances is substantial.

I conclude with another observation. I was written to on 21 July indicating that this review of online applications would begin in 2024. Some time at the end of July or in early August, returning officers and the software companies responsible for this were told, apparently without notice, that it would be not 2024 but 2026.

I am not sure why the change has been made. I can see some advantages in doing so, but it was somewhat odd to receive a letter on 21 July saying that it would start in 2024, and then, something like 10 days later, for returning officers and the software companies to be notified that it would be two years after that. If possible, can my noble friend indicate what the thought processes were, if it is clear? As I say, there may be benefits in doing so but the notification that people received was slightly surprising.

I have covered a number of issues. I do not mind if my noble friend writes to me on one or two of them, but I think they are relevant to the matters before us this afternoon.

My Lords, I want to address the point about the retention on the electoral register in Northern Ireland of the 100,000 electors who would otherwise be removed from the register at the end of the retention period—that is, 1 December this year—but who will remain on the register for a further year under the draft representation of the people and recall petition regulations.

I think the Minister indicated that people were satisfied, the Electoral Commission included, that those people were eligible to remain on the register. I would be grateful if he could just elaborate on how that has been established. If it has been established that they are eligible to be on the register other than by sending in the completed return, what lessons can be drawn from that in terms of people being registered generally? If that can be done easily, and these people can be checked, can we learn something from that process?

I note that the Secondary Legislation Scrutiny Committee asked the Northern Ireland Office about a more permanent solution to this issue, and the NIO responded that it was working with the Chief Electoral Officer for Northern Ireland on a plan to get these individuals successfully re-registered, including engaging with the Northern Ireland political parties, registration drives, writing to the individuals concerned in the latter half of next year, and so on.

Can the Minister indicate whether any consideration has been given to the ideas the Electoral Commission was talking about even in today’s newspapers in Northern Ireland, about providing a means by which, for instance, when people register for new driving licences, and so on and so forth, information can be shared in some way, either directly or indirectly, to speed up the process of registration? Today in the newspapers the Electoral Commission was talking about a fifth of all eligible voters in Northern Ireland—300,000 people—being either wrongly registered or not registered at all, and it suggests that this is one way of increasing the number of people registered. But I note that when the NIO responded to the Secondary Legislation Scrutiny Committee, it did not mention that particular idea among the various initiatives that it talked about. Instead, it talks about

“asking the Electoral Commission … to use all their available communication avenues to encourage anyone who has not recently registered to do so”.

I would be grateful if the Minister, when he comes to respond, could deal with those points.

My Lords, I thank the Minister for introducing and explaining the purpose of these instruments.

To take a step back—the noble Lord, Lord Hayward, made these points—the process of registration and indeed now voting with ID is becoming more complicated, both for the voter and for those who administer elections. Some of us have some degree of suspicion about the Government’s motives, which is why it is important to scrutinise these things and ensure that what is being done is administratively sound rather than politically expedient. The noble Baroness, Lady Bennett, alluded to the concerns raised over the local elections.

We need to be clear that what is being proposed here, first, is fair and objective in increasing efficiency and, secondly, will not make it more difficult for people to register or to vote. Millions of people are not registered. Sadly, Scotland has the lowest number of registered voters at only 81%. Clearly, if being on the register or being a postal voter has to be renewed, for example, that might make it more difficult to maintain that degree of participation. All voters should be encouraged as far as possible to register and to vote; no regulations should be brought in that discriminate against any particular class of voter, if I can put it that way. The feeling at the moment is that this is not the Government’s position.

In passing, on the limitation of proxy voters to four, two of whom could be domestic voters and two overseas, I hope the Minister will forgive me if I say that I sometimes think the Government are more interested in getting votes from overseas people who do not live here than making sure that people who do live here actually vote. To that extent, I am not sure whether restricting the proxies to two domestic voters has practical implications that will effectively exclude people who are currently able to vote perfectly legally and properly. It is a question of whether the bureaucracy is excessive or justified and proportionate.

The proposals seem reasonable on the face of it. However, the Minister said in his introduction that, although we will have an extension for a year, thereafter people will have to renew their postal vote on a regular basis. I guess people will get used to that over time but, with regard to the committee’s report and the quote it got from the Government about the role of the political parties in encouraging people, that is of course a legitimate thing for political parties to do but it is also the responsibility of the state to ensure that people can vote and know how to register to vote.

However efficient political parties are, none of us speaks to every voter, much as we might wish we could, and therefore we require other things. I seem to recall that, years ago, the postman used to be part of the process of registration. That was a standard process; they would knock on the door one day—possibly more than once—and ask to check the register. That is not being done now; door-to-door registration seems to have gone. Online registration is fine, subject to safeguards, but we need to get to a situation in which registration is understood, simple, quick and straight- forward. It is important to eliminate personation, fraud and misrepresentation but, as has been said on a number of occasions, the evidence across the country—although Northern Ireland possibly had problems in the past, and maybe still does—is that the problems are relatively small.

The noble Lord, Lord Hayward, shakes his head, so let me concur: it is of course important that the procedures are robust, but not so robust that they act as a deterrent and a discouragement. We need people to vote. My parting shot is that the behaviour of politicians has been such that the motivation to vote has been diminished quite substantially. There was an interesting report today by the Institute for Government saying that this Government—not today’s Government but the Conservative Party in government—have pushed the boundaries of our constitution, unwritten as it is, beyond acceptability; I think that is how it expressed it. Some of us feel that is exactly what has been going on—not in these particular instruments but in the backdrop to them.

One other question we are not debating today concerns the rights of EU citizens. We have an extraordinary situation whereby Commonwealth citizens from anywhere in the Commonwealth who are resident in the UK have an automatic right to vote and stand in any election, whereas European Union citizens previously were allowed to vote and stand in local or subsidiary elections to the Westminster on. I note that Scotland and Wales have legislated that that right should continue, but the Government apparently want to reduce their eligibility in England. It is outside the terms of this debate, but it would be interesting to know whether the Government really intend to go with that. It would seem a bit odd if, because they can do so, Scotland and Wales take a different course. The question arises: does Northern Ireland, with an Assembly, have the right to follow Scotland and Wales if it wishes to do so? It may not wish to do so, but does it have the right?

With those comments, I say that, although we can understand the purpose behind this, the Government should recognise that there is genuine concern about where all this might be leading. It is making life much more complicated for everybody. The Electoral Commission has not always covered itself with glory. Indeed, one of my reservations about the Electoral Commission is that, in some ways, understanding of the gritty political process seems to be a little absent.

I think I can say, as an aside, that my former agent has just been appointed to the Electoral Commission on the basis that it wants to hear more about the practicalities of activism. I know that she will certainly raise her voice. Whether she will change the dimension I do not know, but there have been occasions when the Electoral Commission, in my view, has shown itself remarkably lacking in political understanding. It is important that it gets a little sharper at that.

That said, of course we support these instruments. The Government need to know that they will be scrutinised —by people such as the noble Lord, Lord Hayward, and my noble friend Lord Wallace; this is not my area of specialty. We value very much what the noble Lord, Lord Hayward, does in this area. He goes into it in detail, and I am confident that he will go on doing so, as will my noble friend Lord Wallace and others. The Government need to be on notice: we accept this, but we will watch closely to see what the outcome is and whether it is fair, just and proportionate in its application.

My Lords, I too send my best wishes to the noble Baroness, Lady Scott, who is not here today, as the noble Lord, Lord Hayward, mentioned. We wish her the best of health. This is a very interesting debate, and I thank the noble Lord, Lord Mott, for sharing the intent of these instruments.

We on these Benches support both Northern Ireland instruments, which are uncontroversial implementations of the Elections Act 2022. As other colleagues mentioned, the draft representation of the people regulations would bring changes regarding postal and proxy voting, otherwise known as absentee voting. We do not seek to refight the battles that took place over aspects of the regulations during the passage of the Elections Act 2022. However, we have concerns, particularly about time-limiting absentee voting methods and the confusion they may cause voters who rely on absentee ballots to cast their vote.

We have concerns regarding the implementation of a three-year limit on postal voting, which this instrument helps to bring into force, as set out in the Representation of the People (England and Wales) Regulations 2001. There will likely be some confusion from many who are accustomed to the current voting system. Furthermore, the unexpected lapse could inadvertently result in their becoming disfranchised. The regulations would bring in a requirement to notify the absentee voter about the expiry of a postal vote and when it will come to an end, but that may not be enough. Will the Minister clarify what steps will be taken to ensure that no one becomes disfranchised as a result of the new regulations?

The changes will place an increased workload on election services staff, who do a fantastic job making sure that our elections run smoothly. The Association of Electoral Administrators is already reported to be struggling due to recent changes and the staffing crisis. What action are the Government taking to ensure that electoral services staff are getting the resources they need to ensure that our elections continue to run smoothly?

We welcome the modernisation of the absentee voting system via a new online digital system. This is expected to help increase the accessibility of postal and proxy voting, making it easier for people to take part in democracy. Across the country, this will provide easy access to the absentee voting system. However, there are potential concerns regarding the implementation stage. Will the Minister update the Committee on progress regarding the implementation of the new digital system? When will it be ready to launch? Crucially, what safe- guards are in place to ensure the full security of electoral record data? The media reported in August that confidence in the UK’s electoral regulator has been thrown into question—a point made by the noble Lord, Lord Bruce —after it emerged that a hostile cyberattack accessing the data of 40 million voters went undetected for a year, and the public were not told for another 10 months. It is not known who the attackers were. Was it a foreign country or a criminal gang?

I will finish by making a point in relation to the digital process. There is a digital process in Northern Ireland already, I believe. There have been some concerns about people losing their digital number. It is not like resetting a password: if you lose your digital number, you have to make contact with the Electoral Office for Northern Ireland. It can take days before your digital number is returned to you. What lessons have been learned from that? Is there any way to make sure that we improve and speed up the process? Ultimately, the concerns raised by noble Lords—

I know from speaking to colleagues across Northern Ireland that the digital registration number—the DRN—has been probably the single biggest problem in recent elections. It is important to note that concern has been raised at times in relation to the Electoral Commission; again, that is something we are keen not to see repeated. There has also been slowness among those dealing with registration in getting back to people and saying that there has been an error with the DRN or that a DRN has not been supplied. The end result is that, if someone is looking to register relatively close to an election, by the time they realise that something is faulty with their application, it has gone beyond the time. It is important that there is a level of recognition there and that we learn from experience to head off that problem.

The noble Lord makes a critical point. We have to make sure that these issues are dealt with in a speedy, efficient manner; otherwise, it damages democracy and people lose faith in the system.

Noble Lords have made a number of good points in this debate. I want to touch on what our in-house expert, the noble Lord, Lord Hayward, said about the idea of repetition. How do we ensure that people are getting their forms in and know whether they are on the electoral register? What are the Government doing to ensure that we can save time, be more efficient and make it easier for people to vote?

That is a number of questions for the Minister. I look forward to his response.

My Lords, I thank everybody who has taken part in this debate for their time and incredibly valuable contributions. It is always slightly concerning for a Minister to stand here, having had only 31 years’ experience of working for a political party, when my noble friend Lord Hayward is also in the Room. I am very aware of the level of expertise and knowledge here today.

The noble Lord, Lord Bruce, mentioned regulators, the Electoral Commission and understanding the nitty-gritty of how a political campaign works and how political campaigns operate on the ground. I do not know his former election agent but I am delighted that she will be joining the Electoral Commission.

I thank my noble friend Lord Hayward and the noble Lord, Lord Khan, for passing on their best wishes to my noble friend Lady Scott; I will take them to her personally. I should also put on the record my thanks to the noble Baroness, Lady Bennett, for welcoming “some” of what the Government are currently looking to do. I am a great believer in small steps, and I am very happy that we are making some progress.

Before I respond to some of the more substantive points made today, let me say this: I believe that everybody taking part in this debate believes in democracy and fair elections. That is why we are here. I know that a number of noble Lords mentioned that in their contributions, but it is an important point to make before I getting into responding directly.

On the point from the noble Baroness, Lady Bennett, about voter ID, we are pleased and encouraged by the first rollout of voter identification in Great Britain. We are also pleased that the vast majority of voters in polling stations, 99.75%, were able to cast their vote successfully. We are incredibly grateful for the work that local authorities and other partners undertook in delivering this change.

I am pleased that the Minister qualified that figure by noting that it is the people in polling stations. What evidence do the Government have, or plan to gather, for people discouraged from even thinking about voting or going to the polling station? Of course, they are not included in that figure.

I thank the noble Baroness for that intervention. I am going to make some progress in my comments. As set out in the legislation, the Government will be evaluating the implementation of voter identification to understand the impacts on the sector and electors and to aid ongoing implementation of the policy. That evaluation is ongoing and we will publish the first report of our evaluation in November. We will consider the recommendations made by the Electoral Commission as part of our evaluation.

The noble Baroness, Lady Bennett, also mentioned methods of communication. As I have just moved house and have applied to join a new register, I know that the level of communication from electoral administrators is incredibly strong, with text messages, emails and post in the more traditional way. I think we are seeing electoral registration officers around the country embracing all the different tools available to them but, in the end, how best to manage applications and contacts with electors is a decision for local EROs. From my recent experience, I know EROs have a very good understanding of how best to communicate with voters.

My noble friend Lord Hayward mentioned the burden on administrators. They do a very good job on behalf of us all. Officials have been working and will continue to work carefully and closely with the sector on planning the implementation of this policy. A first new burdens grant payment of nearly £400,000 was provided to local authorities in August for the implementation of the changes to postal and proxy voting, along with detailed methodology of how that funding allocation was made. Further grant funding will be provided in April 2024, once again supporting ongoing delivery ahead of the May 2024 elections. We have completed robust modelling of the policies, but we appreciate that introducing any new service could fluctuate. That is why we already have a process in place through which local authorities will also be able to claim additional new burdens funding retrospectively via a justification-led bid to facilitate them in carrying out new duties. We remain confident in their ability successfully to deliver these changes.

Electors can also check with their ERO if they are registered for a postal vote.

A number of noble Lords mentioned limits on proxies and whether they are necessary. The noble Baroness, Lady Bennett, saw both sides of this argument. I have a few comments to make on it. As many noble Lords will know, currently someone may act as a proxy for up to two electors and an unlimited number of close relatives in each constituency or each electoral area at a local election. This means they would potentially hold a large number of proxy votes at the same time, which clearly should not be the case. This could give rise to situations where a number of people could be coerced into appointing proxies who could then use those votes to affect the outcome of a poll. Limiting the number of people for whom someone may act as a proxy, regardless of their relationship, is a proportionate response to concerns about abuse or potential abuse of those votes.

The noble Lord, Lord Bruce, mentioned instruments relating to EU voting and candidacy rights. The instruments dealing with voting and candidacy rights will be debated by the House next month. However, I note that electoral law is excepted in Northern Ireland, while it is devolved as it relates to the Scottish Parliament and the Senedd in Wales.

My noble friend Lord Hayward talked about changes to the timeline for the transition period for existing postal voters. It is true that we originally intended to begin transition to the new arrangements this year. However, we took a decision to allow more time for voters and administrators. All existing postal voters now have until January 2026 to apply.

I turn to the comments and questions from the noble Lord, Lord Dodds, although I am very happy to write to him immediately after this debate and have further discussions about them. I note that there are concerns about the effect of the retention measures on the register and agree that the accuracy of the register and ensuring that only persons eligible to be registered are in fact registered is paramount to protect our democracy and confidence in the electoral system. However, as I mentioned, there are no concerns here that the electors being retained on the register are not entitled to be registered.

Existing provisions set out that, where the chief electoral officer can accurately assess using local data and DWP data that the non-responder is eligible to be on the register at the address at which they are registered, they may be retained on the register for two years. We are extending this period by just a year to ensure that the register is as complete as it can be for any elections which may be held next year. It is also important to note, as I referred to earlier, that the Electoral Commission supports the extension of the period of retention. Additionally, its report into the accuracy and completeness of UK registers published yesterday found that Northern Ireland registers are at the highest levels of accuracy and completeness ever recorded. However, as I mentioned, I will make sure that we write to the noble Lord with a bit more detail, particularly on his points about when people apply for a driving licence and the sharing of data.

A number of noble Lords mentioned the impact on administrators. Briefly, officials have been working and will continue to work very carefully and with the whole sector. It is important that we keep that under regular review.

Voters understanding the requirements and confusion about them was highlighted strongly by the noble Lord, Lord Khan of Burnley. I reiterate that, for existing postal voters with a long-term postal vote arrangement in place, it will automatically be extended until 31 January 2026 and they will not need to reapply until then. EROs will be required to contact them to inform them of this before this date. Should the elector not choose to reapply before 2026, they will be contacted again to inform them that their postal voting arrangement has been cancelled.

For those with a proxy arrangement already in place, EROs will be required under these provisions to communicate to that elector the need for them to reapply in advance of their arrangement coming to an end under the transitional arrangements on 31 January 2024. Should the elector not choose to reapply by this date, the ERO must contact the elector again to inform them that their proxy arrangement has been cancelled. New postal or proxy voters will be able, as now, to visit either their local authority website or the Electoral Commission site to understand what options are available to them and all elector guidance will be updated to reflect the new regulations.

A number of noble Lords, particularly the noble Baroness, Lady Bennett, mentioned making sure that the digital service has strong accessibility for all voters. We all agree that accessibility is a very important factor in building any new digital service. As with other GOV.UK services, we adhere to strict usability and accessibility guidelines. Online systems also support some disabled people, as use of technology, such as screen readers, enables them to undertake activities themselves whereas the paper environment is more difficult to deal with.

The service is currently being thoroughly tested to ensure that the needs of a range of electors are considered in the user journey. Testing of the service in private beta has so far been carried out with 3,604 electors and 11 electoral registration officers from across England, Wales and Scotland. Those participants were users from a range of different demographics, including different age groups and electors with varying experience of using digital systems. To be clear, for electors who are perfectly comfortable with the existing paper-based application process, that is not being removed by this service. The online system is being made available in addition to the existing paper route.

Coming to the end of my responses, in regard to digital-readiness, the Government are committed to delivering the online absent vote application service, which ensures that the process of applying for an absent vote is made more efficient for electors and administrators. As is the case for all new digital products and services, the online absent vote application service has undergone significant design, development and testing to ensure that it is ready for launch. To this end, the electoral sector has been heavily involved in the testing of the digital service, its feedback being critical in informing ongoing development and refinement.

We will continue to work closely with local authorities’ elections teams and with election sector stakeholders, including the Electoral Commission and the Association of Electoral Administrators, to support the sector with the rollout of these changes and the launch of the digital service.

I conclude by thanking all noble Lords for taking part in this debate and I commend the regulations.

Motion agreed.

Representation of the People and Recall Petition (Northern Ireland) (Amendment) Regulations 2023

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Representation of the People and Recall Petition (Northern Ireland) (Amendment) Regulations 2023.

Relevant document: 51st Report from Secondary Legislation Scrutiny Committee

Motion agreed.

Local Elections (Northern Ireland) Order 2023

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Local Elections (Northern Ireland) Order 2023.

Relevant document: 51st Report from Secondary Legislation Scrutiny Committee

Motion agreed.

Airports Slot Allocation (Alleviation of Usage Requirements) (No. 2) Regulations 2023

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Airports Slot Allocation (Alleviation of Usage Requirements) (No. 2) Regulations 2023.

Relevant document: 49th Report from Secondary Legislation Scrutiny Committee

My Lords, these draft regulations were laid before Parliament on 18 July, and noble Lords will recall that similar regulations have been debated previously on a number of occasions. The regulations seek to ensure minimal customer disruption as the aviation sector recovers from the pandemic. The regulations will be made under powers conferred by the Air Traffic Management and Unmanned Aircraft Act 2021, also known as ATMUA. Following the UK’s departure from the European Union, this legislation created a more flexible set of powers for Ministers to implement alleviation measures for airport slots related to the impacts of Covid-19, subject to a vote in both Houses. This allows the UK to adapt its approach to minimise disruption to consumers and best support the recovery of the aviation sector.

Ordinarily, airlines must operate their airport slots 80% of the time to retain the right to those same slots the following year—this is known as the 80:20 or “Use it or lose it” rule. This encourages efficient use of scarce airport capacity. As a result of the impact of Covid-19 on air travel demand, alleviation from current slots rules has been provided since summer 2020.

The department has seen a strong recovery in passenger demand during 2023, but there remains continued uncertainty and lack of resilience in the industry, and demand on some routes remains below the levels seen before the pandemic. These factors are affecting both demand, in terms of returning passengers, as well as supply-side factors, such as aircraft availability and staffing. These are adding to a “long Covid tail” in rebuilding resilience in the sector.

Aircraft that were out of service during the pandemic are spending much longer in maintenance and overhaul than would normally be the case. This is compounded by difficulties stemming from the pandemic in the wider supply chain affecting access to spare parts across the global supply chain. This is having a long-term impact on the resilience of the sector that is attributable to the pandemic. Although the industry has taken steps to address these challenges, they are expected to remain an issue during 2024.

The Government have therefore designed a package of measures for the winter 2023 season that sees the normal 80:20 rule on slots usage stay. However, it is combined with some limited flexibility through a small pre-season hand-back allowance and a continuation of the previously adopted justified non-utilisation of slots measures.

When the pandemic initially struck, the 80:20 rule was fully waived to avoid environmentally damaging and financially costly flights with few or no passengers— so called ghost flights. The Government then offered generous alleviation while travel restrictions remained and demand was uncertain. The Government re-established the normal 80:20 usage ratio for summer 2023 and this will continue for winter 2023.

As required by ATMUA, the Government have determined that there is a continued reduction in demand, which is likely to persist, and consider that further but limited alleviation measures are justified for the winter 2023 season; this runs from 29 October 2023 to 30 March 2024. This package was developed following consultation with the industry and, of course, careful consideration of its responses.

The instrument being considered today applies to England, Scotland and Wales. Aerodromes are a devolved matter in Northern Ireland. As there are currently no slot co-ordinated airports in Northern Ireland, the Northern Ireland Executive agreed that it was not necessary for the powers in the Act to extend to, or apply in relation to, Northern Ireland.

In this instrument, the Government have focused measures on a return to business as usual. The Government are mindful of the need to balance supporting the sector through sensible and proportionate measures to aid its recovery—and, indeed, to protect consumers from disruption—with offering excessive alleviation, which would potentially distort competition.

There are two key provisions. The enhanced justified non-utilisation of slots provisions were first introduced for winter 2022. These act as a safety net for airlines if new restrictions are introduced and they can justify not using those slots. The second provision is a limited slots hand-back. For this winter season, the Government will allow carriers to claim alleviation on up to 5% of their slots at any airport, handed back before the start of the season.

The Government have offered this opportunity in the expectation that industry will deliver a realistic schedule for winter 2023, thereby minimising last-minute cancellations and delays. These measures will cover the winter 2023 season only. My department is considering whether further alleviation is likely to be justified for future seasons. I beg to move.

My Lords, I thank the Minister for her explanation. It is a pity that these regulations are now up against such a tight timescale for their introduction. That is, of course, due to delays. The Secondary Legislation Scrutiny Committee—from which the noble Baroness, Lady Ritchie, and I have just run to be here this afternoon—gave adverse reports on the previous presentation of the regulations, not for what they contained in respect of legislation but because they failed to explain it fully. There was a poor Explanatory Memorandum, especially in relation to the consultation responses and the policy background. As this now stands, it gives a clear explanation of a very complex policy; it is a situation with many factors at play.

The Minister will know that I have been supportive of the alleviation of the 80:20 rule in the face of Covid challenges. I will not argue with the need to continue, but the situation is now even more complex because the dysfunctions in the aviation industry are now as much about managerial capacity failings as they are about failings from the problems coming from the Covid overhang. I am therefore glad to see, from paragraph 7.4 of the Explanatory Memorandum onwards, a detailed explanation of the reasons an airline can give for the non-use of slots. There have been numerous tales of alleged abuse of the temporary rules by some airlines in order to flex their muscles in the marketplace. We must guard against anti-competitive practice, which makes it hard—even impossible—for new entrants to come into the market.

Similarly, I was pleased to see, from paragraphs 7.6 to 7.8 of the EM, the rules on the 5% hand-back. It is good to see that we as a country are to remain in line with the EU, because that is clearly sensible in such an innately international industry.

On the consultation, it was clear from the report that the airlines and airports did not all speak with one voice; they had varied opinions. So there is a real debate to be had; it is clear that this has to be the Government’s best estimate of how to deal with the issues fairly.

From the responses, it was also clear that the Government’s stats on the return of customers to the market—paragraph 7.2 of the EM talks about the market being at 88% of what it was in 2019—are affected by the recruitment issues in the industry and problems with NATS, both of which seriously deter potential customers. Noble Lords have only to talk to people, particularly those in business who are considering flights where they must get to where they are going on time, to know that the inefficiencies in the industry, such as the uncertainty around flights over the summer and the problems as a result of air traffic control issues, deter people and encourage people in business to go for Zoom meetings, which are a sensible and realistic alternative for them.

I know of two families who cancelled their international holidays this summer to take a holiday in Britain. That is good news for the British tourism industry, but it etches away on the number of people using the market and taking flights. All told, that is not necessarily a bad thing, is it? But it affects the statistics. I believe that the 12% drop is a reflection of airlines and airports in particular needing to accept that the drop in business travel is probably more or less permanent, because Zoom is here to stay. It will not replace all business travel—far from it—but it will replace a large part of it. My question for the Minister is this: at what point do the Government need to say to the industry, “You need to get on with things as they are and put an end to the alleviation of the rules on this”?

After all, the Government made that point in relation to trains and buses some time ago. They said to those industries that, although their markets remain changed and have not recovered, they have to cope with the situation as it is. They continue, just like the airlines and aviation in general, to face recruitment challenges. How many more of these can we reasonably expect to except? There is no justification for the Government to protect one particular industry from inefficiencies and uncertainties in the market when they do not protect other parts of the same broad sector.

My Lords, I would like to make a declaration of interest, although it is not required within the rules. I am a British Airways pensioner, which is a significant part of my lifestyle after 20 years in the industry.

I thank the Minister for introducing this SI. I do not know whether it is something to do with my dying brain, but I found the Explanatory Memorandum somewhat difficult to follow, and I thank my associate, the noble Baroness, Lady Randerson, for giving the EM a good beating on my behalf. I had some difficulty understanding it, but I thank the Minister for ensuring that this time there was a telephone number in the document.

The concept divides into two parts. One is the tools available and the other is the need. As far as I could tell, the tools available are roughly the same tools as we had for this winter. If that is not true, I would be grateful if the Minister could put me right, but if they are not the same, I think they are substantially the same. Are the problems facing airlines sufficiently serious to resurrect this set of tools? Clearly, the department thinks the answer is yes. I am content with the reasoning for winter 2023-24 that this SI should succeed and the tools become available.

However, I think that creates some questions. The principal question is: is the exceptional becoming the norm? If it is, and if the Government concur with me that it is looking dangerously close to that, we need to move to a more permanent arrangement because the notice that operators will get under these systems continues to be very short. It would be much more satisfactory if the industry were able to plan further ahead against a more stable environment or regime. If there is an agreement that it should move ahead, there is a need for a more numerically supported case. For instance, an issue that is brought out is the availability of spares. I am sure that is a problem, but we need to know just what impact it is having.

The reason given for these rules is that the consumer needs stability, volume, frequency and all that. I am sure that is true, but it is important that we do not lose sight of the fact that the application of these rules and the extent to which they allow operators not to operate have an impact on the balance between established operators and potential new entrants. That has to enter the balance between the solution and the extent to which these tools are enhanced or diminished. The question then becomes: how do you determine the right balance? I argue that the right balance is the general good. Having faced the problem in transport of how you define the general good, it is an important question that deserves debate—well ahead of the introduction of the next set of rules. I hope that the Minister will agree that a more in-depth look at this problem, with the possibility of producing a more permanent set of rules, can be considered.

My Lords, I am grateful to both noble Lords for their contributions to this short debate and for welcoming the regulations in general. I will take a few minutes to go through some of the points raised.

The noble Baroness, Lady Randerson, started by noting the Explanatory Memorandum. I am now in a situation where I am not sure I will ever get an Explanatory Memorandum right, but we do try, and I hope she will appreciate that. We have them read by a senior civil servant not connected with the policy. The criticism of this one was that it was too light in certain elements, so we added more in. Sometimes they then become too hefty, particularly as noble Lords will have seen these regulations many times previously in different forms. We will continue to do our very best when it comes to the SLSC and keeping everybody happy and, more importantly, informed, both in your Lordships’ House and beyond, about what the Government are trying to do and explaining that position. That is incredibly important. It remains top of mind, and I will continue to try to do my best.

On the point the noble Baroness raised about the aviation industry in general, I do not think it is under- performing as much as she thinks it is. It had a very successful summer. Apart from the issue at the end of the summer, I was not made aware of any issues to make me feel that the industry was underperforming. The major airports were amazing, particularly when I travelled through. I found that there were no queues. Bar the NATS outage, which, as noble Lords know, the CAA is investigating, and the wildfires, which of course are a factor beyond the airlines’ control, the industry performed really well.

The noble Baroness mentioned recruitment. There is no recruitment problem. The aviation sector over- recruited on purpose to ensure that we did not see a repeat of what happened in summer 2022. I will hold the next Aviation Council in a couple of weeks and obviously I will reflect with it on how it felt the summer went, but in broad terms, bar one or two issues—there will always be one or two—it stood up pretty well.

I do not believe that we will produce a report as a result of that meeting because, if we discuss performance, those meetings are very much ad hoc check-ins. We cover more substantive issues, such as airspace modernisation; I believe that the next one might be on slot reform, which might be interesting. The minutes of the meetings are published on GOV.UK, so the noble Lord might wish to look at that.

The noble Baroness, Lady Randerson, will know that slot oversight and enforcement are done by a third party, ACL, which is entirely separate from government. We do not have any involvement at all—rightly so—in the way in which it oversees and enforces slots. If the noble Baroness is aware of anomalies, I would be grateful if she could let me know; I will raise them with ACL, because that is how it is supposed to do its job. It does a very good job in many circumstances; indeed, it does slot oversight not only in the UK but in many other countries because it is that good.

I come on to the issues around the consultation and whether the decision was marginal. The noble Lord, Lord Tunnicliffe, asked how we reached the decision. The noble Baroness, Lady Randerson, suggested that the decision from the consultation was not necessarily a slam dunk; I absolutely agree. Last time I stood here to discuss alleviations with noble Lords, I probably implied in my closing speech that we were done and were not going to do any more; I was expecting that. It was a very marginal decision. The noble Baroness asked at what point we will say to the airlines, “That’s that”. We have already said it. The industry is well aware that we expect it not only to recover but to go beyond. In my view, some improvement in resilience is required; I will also discuss that with the airlines.

What became clear were the issues with the supply chain and how they may impact certain airlines. It is interesting that the two-week period during which the hand-back could take place has now closed; it closed on 14 September. Airlines were able to hand back 5% of their slots. The airlines handed back an average of 2.8% of their slots, so they did not reach 5%; I did not expect them to do so, but I am concerned about consumers, be they business or leisure travellers, getting the service they need. I hope that this will be helpful.

The noble Lord, Lord Tunnicliffe, asked what we did last winter. I had forgotten this: last winter, we were still on 70:30 slots alleviation with the “Use it or lose it” rule and we offered a 10% hand-back. We are boiling the frog quite quickly in getting the airlines back to where we want them to be, because I do not want this to become the norm. There is an opportunity, though, to look at slots more generally. The noble Lord will be delighted to know that I hope to publish a consultation on longer-term slots reform later this year; it will be a meaty document giving everyone in the industry and your Lordships’ House a lot to think about. It is within that consultation, I think, that we will have a conversation around what the general good is and how we want slots to work, making sure that we balance existing providers with legacy slots and new entrants, which we know can sometimes come in and shake things up very successfully.

I believe that I have covered all the issues raised.

Motion agreed.

Misuse of Drugs Act 1971 (Amendment) Order 2023

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Misuse of Drugs Act 1971 (Amendment) Order 2023.

Relevant document: 51st Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

My Lords, this order was laid before Parliament on 5 September. It proposes an amendment to paragraph 1(a) of Part 3 of Schedule 2 to the Misuse of Drugs Act 1971 to control nitrous oxide under class C of that Act.

After increasing reports of the harms associated with its misuse, the Government commissioned the Advisory Council on the Misuse of Drugs in September 2021 to undertake an updated harms assessment of nitrous oxide. The Government also asked the ACMD to recommend the appropriate legislative control of nitrous oxide.

I am grateful to the ACMD for its updated harms assessment, published in March 2023. While the ACMD did not recommend the control of nitrous oxide under the Misuse of Drugs Act in its assessment, it noted concerning health harms including nerve damage. Its assessment also highlighted anecdotal reports about the association of nitrous oxide with anti-social behaviour as well as the widespread use and availability of the drug, particularly among children and young people.

The Government carefully considered the ACMD’s thorough report and considered a range of factors before reaching a decision. Of particular concern is the popularity of nitrous oxide, given that it is the third most misused substance among 16 to 24 year-olds in England and Wales, with approximately 230,000 young people inhaling it in England and Wales in the year ending June 2022.

In addition to the high numbers of young people misusing nitrous oxide, the ACMD highlighted anecdotal reports of an increase in neurological harms. Noble Lords may have heard of a small number of tragic cases in which young people have been paralysed, or died, following nitrous oxide misuse. Neurology units around the country have reported frequent cases of nerve damage. While many cases of this damage can be treated and even reversed though treatment, sadly not all can. Contrary to the belief of some who might argue that this is a perfectly harmless drug that many people use without consequence, nitrous oxide is not safe to use without medical supervision. Beyond the harmful effects on users themselves, there have been several cases that serve as a testament to the devastating consequences of driving under the influence of nitrous oxide.

In considering our approach, we have also reflected on the reports from those working in front-line policing and night-time industries, and from parliamentarians, about the public effects of nitrous oxide misuse.

People have a right to expect public areas and their neighbourhoods to be safe and clean, even quiet, but in recent years the sight of discarded small silver nitrous oxide canisters, and even more recently the oversized canisters seen on our streets, have become more commonplace. To cite a recent example, an estimated 13 tonnes of discarded canisters were collected in the Notting Hill Carnival clean-up operation. It is entirely unreasonable to expect people to sidestep the paraphernalia and mess associated with nitrous oxide misuse. Neither should anyone have to feel threatened by anti-social behaviour associated with its misuse.

The Government are taking decisive action to tackle anti-social behaviour through a comprehensive action plan, and noble Lords may recall that in March we announced our intention to ban nitrous oxide. As a result of the considerations I have outlined, the Government are taking action beyond that recommended by the ACMD and seeking to control nitrous oxide as a class C drug under the Misuse of Drugs Act. We are doing this to introduce tougher consequences for the supply and misuse of nitrous oxide, and to deter people from harming not only themselves but others.

At present, nitrous oxide is subject to the provisions of the Psychoactive Substances Act 2016 as it is a psychoactive substance. The 2016 Act contains offences for the production, supply, possession with intent to supply, import or export of a psychoactive substance where a person

“knows, or is reckless as to whether”

it will be consumed “for its psychoactive effects”. It does not, however, contain an offence for the simple possession of a psychoactive substance, other than in a custodial setting.

The control of nitrous oxide as a class C drug under the Misuse of Drugs Act would also make it an offence to possess nitrous oxide, unless for a legitimate use. This would mean higher penalties and enforcement provisions. Those found in unlawful possession of the drug could face up to two years in prison, an unlimited fine or both. Meanwhile, those who supply or produce nitrous oxide could face up to 14 years’ imprisonment.

We are conscious that there is a wide range of legitimate uses of nitrous oxide. We are aware of its use in healthcare, including dentistry, industry and catering. To enable legitimate uses to continue, a further related statutory instrument will come into force simultaneously with this order. This would amend the Misuse of Drugs Regulations 2001, scheduling nitrous oxide under those regulations to provide certain exemptions from the offences under the Misuse of Drugs Act 1971, including medical use, and to provide legitimate access to nitrous oxide for legitimate uses, including in industry and catering.

Drug misuse ruins lives and adversely affects society as a whole. The Government have a responsibility to protect the public—their safety and their health—and that is why we are proposing this action. As I have set out, nitrous oxide harms not only people but communities and must be subject to stricter controls. I commend this order to the Committee.

My Lords, I have a quick question about the overall legislation encompassed here. I am not unaware of the impact of people taking drugs, but at times it seems to me that the Home Office automatically wants to ban everything, with the net result that we drive more and more illegal activities into the hands of criminal gangs. Every time one does that, there is a risk that, rather than feeling better and achieving something, we just enlarge the black market of yet another section of society.

I have had the misfortune of having to nurse back, with friends, people who have become drug addicts. I was also offered nitrous oxide from a large container in the lift on the Elephant and Castle Tube line on 18 June. I have seen groups of people using it and proffering it to me. But while I accept the order as it stands, I wonder whether there should be a broader review of the Misuse of Drugs Act because of the implications of driving so much into the hands of criminal gangs and youngsters. We have debates about county lines and the like, which all seem to point in the same direction: we are quite happy to ban things, but there ought to be other solutions to this and other problems.

I thank the Minister for his statement, but on this side of the Room we are disappointed with these proposals and feel that they will do little to prevent harm. We feel they will make matters worse, not better, as we believe in a health-first and reduction approach to drug control.

This order will categorise nitrous oxide, also known as laughing gas, as a class C drug and make it illegal by the end of the year. As a result, those found in unlawful possession of the drug could face up to two years in prison or an unlimited fine, with up to 14 years for supply or production. The Government already have powers to tackle suppliers of the drug under the Psychoactive Substances Act 2016, which made it an offence to supply nitrous oxide if a person knows it will be used for its psychoactive effects. The Government now seem intent on using the Misuse of Drugs Act 1971 to deal with what is mainly a small-scale anti-social behaviour and littering problem. This seems inappropriate. It is the legislative equivalent of taking a knife to a spoon fight.

The Government’s own Advisory Council on the Misuse of Drugs does not agree with their approach. It said:

“Based on this harms assessment, the Psychoactive Substances Act 2016 remains the appropriate drug legislation to tackle supply of nitrous oxide for non-legitimate use. There is, however, a need for enforcement of the Psychoactive Substances Act 2016 to be supported by additional interventions designed to reduce health and social harms”.

Based on this harms assessment, their own advisory council does not support the reclassification.

We believe that these proposals are ill thought out and unsupported by the evidence. They have not been properly consulted on and will have negative impacts, pointlessly criminalising many young children. The Government’s impact assessment states that

“nitrous oxide has a large proportion of users aged 17 and under who consume it”,

as the Minister recognised in his speech. For the offence of possession of a class C drug, its high estimate is 16,400 children a year, resulting in 2,000 children being charged, 1,600 receiving cautions and 7,500 being subject to community resolution.

Criminalising young people will have lasting harm on their future life chances. The Government’s ACMD stated that the penalties under the 1971 Act would be

“disproportionate for the level of harm associated with nitrous oxide and could have significant unintended consequences”.

At the same time, the Government have brought forward no useful proposals to control the sale of nitrous oxide to children and young people, nor to educate and warn young people of the dangers of their use. The ACMD said there is a need to enforce existing legislation under the 2016 Act.

The consultations have been cursory at best, or missing altogether. The consultation with industry about the impact of a class C classification found widespread opposition. The police have had no real public say, and the public consultation was limited to only eight weeks. Although this might make for good red-top headlines, it makes for badly thought-out legislation—legislate in haste, repent at leisure.

Nitrous oxide is widely used for legitimate purposes in many sectors of the economy. The ACMD stated that control under the 1971 Act could

“produce significant burdens for legitimate medical, industrial, commercial, and academic uses”.

The Government state that their intention is not to “unduly burden” industry as a result of the reclassification, but this will be its exact impact, according to those consulted. According to the Government’s impact assessment, the reclassification is estimated to cost around £68 million in total, with £48.1 million in direct costs over 10 years split between £18.4 million for the prison system, £16.3 million for legal aid and £13.3 million for the courts. There are also estimated to be costs of £19.8 million for the police. No new money has been made available for the current spending review period. This money is not generally available in the system and, if it is spent on these measures, we believe it would have little public benefit.

On 14 September 2023, the House of Lords Secondary Legislation Scrutiny Committee drew this statutory instrument to the attention of the House, saying:

“The Government are entitled to take a different approach to that recommended”—

by the ACMD—

“based on its ‘broader view’ of the issues. However, in so doing it should establish robust methods of analysing and reporting on the effects of the policy, including committing to a post-implementation review. Such analysis should cover any concerns raised by the police and other interested parties”.

I press the Minister to commit to a full post-implementation review, assuming these measures go ahead.

The Government have not conducted a public consultation on the reclassification, because they were already “minded to introduce” a ban. Consultations can have several purposes, and this is not an adequate reason for dispensing with one, particularly where key stakeholders have expressed reservations. This should not set a precedent. The views of the police and other interested parties are almost entirely lacking and should have been set out in more detail, regardless of whether they support or oppose the reclassification. Can the Minster clarify whether the police supported this reclassification? This order has been drawn to the special attention of the House on the grounds that there appear to be inadequacies in the consultation process relating to the instrument.

I ask the Government to think again about the reclassification because, on this side, we believe that a health-first, harm-reduction approach is badly served by these proposals. To meet these objectives, we call on the Government instead to do more to control the sale and to educate young people about the dangers.

My Lords, I thank the Minister for his statement and the noble Earl, Lord Russell, for the points he made. Although I do not agree with the central tenet of what he said, he made some interesting points which need an answer. He has started a more general debate which is long overdue.

We support the SI, which brings nitrous oxide under the control of the Misuse of Drugs Act 1971 as a class C drug. As the Minister outlined, unlike the 2016 Act, it makes possession an offence. That goes against the advice of the ACMD, but we believe that the Government are correct in their evidence to do so. In fact, in the Explanatory Memorandum, the Home Office helpfully points out that in 2008 the then Government went against the advice of the ACMD when they—one Member of the Committee was in the Home Office at the time—took the decision to move cannabis from class C to class B, which I believe to have been correct, the reasons for which will be evident in what I will say about nitrous oxide.

As the Minister pointed out, 230,000 young people across our country are affected by nitrous oxide. That is an astonishing figure. What are the Government supposed to do in the face of that—just ignore it? I know the noble Earl, Lord Russell, would say, “Of course I’m not suggesting ignoring it, but there are alternative ways of dealing with it”, but the Government have a responsibility. It is good to see a large number of colleagues from Northern Ireland, because this extends across the whole of the UK.

As the Minister said, nitrous oxide is the third most misused drug among young people, and there is increasing evidence of harmful neurological effects. Rereading the comments made in the other place, I was struck that Justin Madders MP highlighted a London Ambulance Service survey that showed a 500% increase in the number of nitrous oxide incidents between 2018 and 2022. Beyond that, as many of us will know, is the impact on anti-social behaviour, as pointed out by many colleagues in the other place, including my honourable friend Alex Norris MP:

“Nitrous oxide causes significant problems in our communities”. —[Official Report, Commons, 12/9/23; col. 851.]

Many other Members of Parliament made the same point.

I am sure the Minister will agree that these communities are fed up with the nuisance and litter—as he pointed out—of the canisters and other materials in our streets and parks. As I said before, the Government needed to act. I believe that 13 tonnes of nitrous oxide canisters and other material were collected after the Notting Hill Carnival—13 tonnes of waste. What sort of impact does that have on young people walking around? What does it say to young children of three or four, or older people, or the majority of people who abide by the responsible way to behave in our communities? I understand that the noble Earl, Lord Russell, and others would not say that we should ignore that, but somewhere along the line you have to say, “This is not acceptable and we’re going to do something about it”. The Government are quite right. At the end of my remarks, I will come back to this to address a point made by the noble Lord, Lord Hayward.

I have some questions for the Minister, as there are some legitimate questions to ask. The Government’s figures say the SI will have an expected cost of £68 million to the police, courts, Probation Service and prisons. There is to be no additional funding to support that. Can the Government say why, and how it is to be funded? For example, their estimate is that there will be a need for 26 additional prison places. How will that be achieved, given the current crisis? Will this just be subsumed within it? Is there an expectation that it will be sorted out?

I agree very much with the noble Earl, Lord Russell, and the noble Lord, Lord Hayward, about the need to assess the effectiveness of the SI and monitor what happens. The Secondary Legislation Scrutiny Committee called on the Government to make sure that that was properly reviewed. I would like to understand exactly what the police view of the SI is and their—or the Government’s—expectation of increased prosecutions.

As Kit Malthouse pointed out, enforcement will be essential; otherwise, this becomes just another meaningless law. Obviously, the police will have guidance with respect to how this law is enforced. I agree that there must be flexibility. However, it would be helpful if the Minister could confirm the following. A police officer on the street will have flexibility in determining how they deal with someone who is caught in possession of nitrous oxide. It is not automatic that they will be arrested and will have a criminal record. That flexibility on the part of a police officer on the street is important—but it is also important that they have the flexibility to arrest on the basis of possession and can deal with the situation on the basis of the offence of possession. That will be an important step forward.

As I said, the ACMD did not recommend a change in the legal treatment of nitrous oxide but it suggested a number of other interventions, such as restrictions on direct consumer sales, smaller canisters to tackle non-legitimate supply, and the need for a public education programme. Can the Minister say a little more about these non-legislative changes that the ACMD said were important? I agree with the thrust of this, that there should be a change to the legislation, and this should be a class C drug. However, it is also important to recognise that the ACMD made other recommendations; it would be interesting to hear the Government’s view on what they will do in respect of those.

The Minister dealt with the question of the SI not impacting on the legitimate use of nitrous oxide. Can the Minister confirm that in the debate in the other place it was raised that the new SI proposed to deal with this will mean that there will not be any sort of policy gap between the new offence and ensuring that dentists and others with legitimate uses for nitrous oxide can carry on using it without any risk to themselves? We think the Government are right to act, but they need to make more of the damage to individuals, the link to ASB and the impact on communities.

As has been pointed out, if you look at where drugs laws have been relaxed, such as in San Francisco or Portland, there is absolutely no evidence that it reduces the harm caused by drugs. On the contrary, it increases the harm in those communities. That is the important point, and it would be interesting to have this debate around what the noble Lord, Lord Hayward, said. The Minister, Chris Philp MP, raised this in the other place, but I think we sometimes need to make more of that—

To clarify, I was asking a question, not necessarily advocating that the legislation should be relaxed. I asked whether, instead of banning, you might go for regulation or some other option. I was not putting forward any particular option.

I thank the noble Lord for that clarification. I did not mean that; I am sorry if I gave the impression that I did. I think there is a necessity to review this. I want to quote Chris Philps, a Conservative Home Office Minister who I thought was absolutely right—“liberal” is not meant in a Liberal Party sense here. He said:

“I do not accept the thesis that we can have treatment only if we liberalise drug laws”.—[Official Report, Commons, 12/9/23; col. 868.]

I absolutely agree with that comment. Too often, it becomes a debate between someone who says we should have tough drug laws or someone who says we should have treatment and more diversion. Surely, the question is how we ensure that we have the correct balance between the two. We need drug laws that are harsh and effective in dealing with those who supply drugs, in particular, as well as with possession. However, alongside that we need to have appropriate community action: diversion, youth activity and employment, as well as treatment where necessary. That false dichotomy between the two does not help the debate.

As I say, we support the measures that the Government have brought forward. I hope that the questions I have raised are also helpful. Again, the Government need to do more to show people the evidence about what happens—the harm caused—when you relax drug laws and allow some of the liberalisation that is being called for. It is a false dichotomy to say that you must have either harsh drug laws or treatment. Surely, we need to put both together to ensure that we have the effective drugs strategy that we need.

My Lords, I thank all three noble Lords for their contributions to this important debate. A number of interesting points have been made. I will attempt to address them but, first, I thank the noble Lord, Lord Coaker, and the Labour Party for their support. Obviously, I regret the fact that the Liberal Democrats are unable to support this important public health and safety measure.

The Government disagreed with independent experts on this matter, as was noted by all the speakers in the debate. Turning to questions about that decision, we are of course grateful to the ACMD for its detailed report. ACMD advice is an essential part of our decision-making and we continue to have complete faith in its quality and rigour. However, the Government are entitled and expected to take a broader view, taking into account other relevant factors, which was necessary in this case. The ACMD referred to reports of increased neurological and social harms, such as drug driving and littering, associated with nitrous oxide misuse. This is alongside its widespread availability for illegitimate use and high usage, including among children and young people; I referred in my opening remarks to the large canisters that are now readily available.

As the noble Lord, Lord Coaker, noted, anti-social behaviour and visible drug use are issues of significant public concern, and we know that the harms of nitrous oxide misuse are being felt by communities. For that reason, the Government decided to go further than the ACMD’s advice to protect the public and seek to control nitrous oxide under the Misuse of Drugs Act 1971 as a class C drug. This will provide law enforcement with more tools to take action against illegitimate supply and use. As the noble Lord, Lord Coaker, helpfully pointed out, this is not the first time that a Government have disagreed with the ACMD: in 2014, for example, khat was controlled under the Misuse of Drugs Act 1971 contrary to the ACMD’s recommendations. I am also grateful to the noble Lord for mentioning the 2008 decision that reclassified cannabis as a class B drug against the advice of the ACMD; I applaud his decision then.

The Government consulted on this issue. We fulfilled our statutory consultation requirement to seek the views of the ACMD and considered its report carefully. However, as I just said, the Government are entirely permitted to take a broader view; the reasons for this are set out in our response to the ACMD, published on 27 March, which outlined the clear health and social harms associated with nitrous oxide use that led the Government to control the substance under the Misuse of Drugs Act.

The Government also undertook a public consultation to ascertain the nature and scale of legitimate use of nitrous oxide before formulating this policy, the results of which were published on 5 September. Provisions to enable legitimate drug use will be set out in a following SI that will come into force at the same time as this order, which is the normal legislative process for controlling a substance under the Misuse of Drugs Act 1971. So, in answer to the question from the noble Lord, Lord Coaker, there will be no gap.

On police support, we have heard from some in front-line policing who welcome these new powers. The National Police Chiefs’ Council is also supportive of this ban.

With regards to the treatment aspect, I could not agree with the noble Lord, Lord Coaker, more. It is never an either/or situation; it is a “both” situation. In relation to access to treatment, I refer Members to the Government’s drug strategy, From Harm to Hope, which was published in December 2021. It is clear about our ambition to achieve stigma-free treatment, providing the full positive effect of treatment services for those seeking help. Through this strategy, we are investing more than £2.8 billion over three years to support people through treatment and recovery; it includes support for those who have used a range of drugs, including nitrous oxide, and are suffering health harms. In the light of the reported rise in harms to individual users and society associated with heavy nitrous oxide use, we believe that it is necessary to take action also to restrict access to this harmful drug and reduce its misuse by, as I said, classifying it as a class C drug.

As regards legitimate use—obviously, those were legitimate questions from noble Lords—we are conscious of the need to ensure that our approach enables the continued use of nitrous oxide for legitimate and lawful purposes, of which there are many. The Government accepted the ACMD’s recommendation to consult on legitimate uses, as I said. We published our response on 5 September. That information is now being used to design the regime that will enable lawful use for legitimate purposes.

The exact proposals are still being drawn up and will be set out in a subsequent statutory instrument, as I said. However, it is worth repeating that the order we are debating today will come into effect at the same time as the accompanying amendments to the Misuse of Drugs Regulations 2001, so there will be no gap between the control of nitrous oxide under the Misuse of Drugs Act 1971 and provisions enabling its legitimate, lawful access.

The noble Earl, Lord Russell, asked about the risk of criminalising young people. That is a perfectly valid concern: will it result in the overcriminalisation of young people in particular given that the drug is so prevalent among those aged 16 to 24? However, we can assure the Committee that the Government seek a proportionate approach, in answer to the question of the noble Lord, Lord Coaker. We entrust that task to law enforcement agencies, which have a range of powers at their disposal to enforce the law—including out-of-court disposals, which are non-criminal sanctions, where they judge those to be proportionate and effective.

It is also our intention that the ban should have a preventive effect so that, over time, it reduces the number of users, in particular children and young people. We will update education resources for schools, directly accessing the children who may be at risk of becoming users. Those resources will describe the harms of drug taking and will communicate the new law to children. I also talked to the director of communications at the Home Office this afternoon before coming here; he assures me that work on this is well under way and, indeed, innovative.

I finish by saying to the noble Earl, Lord Russell, that the damage to their life prospects—

I am sorry to interrupt but the point that the Minister just made is really important; I know that other noble Lords are waiting for the next SI. If you are talking about young people and the director of communications at the Home Office is talking about innovative work, it is no good putting a press release out to the BBC. It must be on all the various platforms that young people look at. I am sure that the director of communications is on top of that but can the Minister ensure that this is on social media, whatever that means now, and is not just a press release to the BBC?

I am very happy to reassure the noble Lord on that point because I asked him the same question. He said, “Yes, absolutely, of course it will be. There is no point in shoving something through their letterbox”. I agree with him; we need to find alternative letterboxes, I suppose.

As I was saying to the noble Earl, Lord Russell, the damage to children’s life chances is certainly not as lasting as the neurological damage that they may suffer.

In answer to my noble friend Lord Hayward, I do not believe that the ban will provide criminal gangs with an opportunity to profiteer from supply; it will only shrink the space for them to do so. Nitrous oxide is already being supplied illegally for misuse by lone dealers and criminal gangs. These measures will give the police and enforcement agencies greater powers to stop illegal supply.

My noble friend also asked me about a possible review of the Misuse of Drugs Act. There are no plans to conduct a review of that that I am aware of. However, in July 2022, the Home Office launched a consultative White Paper—Swift, Certain, Tough: New Consequences for Drug Possession—which proposed new policies to reform the way the criminal justice system deals with adult drug possession offences, particularly tackling so-called recreational drug use. That consultation closed in October 2022. An analysis of the responses is under way.

The outcome of this analysis and the responses provided will obviously help to inform future policy direction in dealing with low-level position offences. A government response to the consultation will be published in due course. Of course, the Government keep drug legislation under review and will reconsider the status of particular substances where it is appropriate to do so, obviously while continuing to take into account advice from the ACMD.

All three noble Lords asked me about the expected costs of the policy, in particular its effect on prison places. As has been noted, the central estimate for custodial sentences is 200 per year. We are confident that there will be capacity for this potential increase given that prison occupation is already at 99% capacity. When we estimated the impact on prison places, we also looked at the average custodial sentence length and considered that alongside the volume of custodial sentences estimated per year. It results in an annualised estimate of 26 prison places across the UK. We are taking action to reduce the pressure felt on the prison estate, including expanding capacity by an additional 2,400 places beyond the 20,000-place build programme since September 2022, so we will always have the capacity to serve the needs of the courts.

Noble Lords asked about the increasing cost of the policy. I cannot really go into detail on that because there are so many variables in working out impact assessments of this type, as will be obvious. However, there are record numbers of police officers operating in this country now—more than there have ever been before—and I certainly believe that they have the capacity to deal with this.

In closing, I hope that I have answered all the relevant questions. I once again offer my thanks to all who participated. I am grateful for the insights and the challenge that has been brought to bear on this debate. This is an issue that must be confronted and dealt with before it gets worse. Public health and public safety are vital, as is the effort to tackle anti-social behaviour.

Before I commend this order to the Committee, I have just remembered that I have forgotten to say one thing, which is about an ongoing review. On 16 June, we committed to a post-implementation review of the control of nitrous oxide under the 1971 Act, as outlined in the Minister for Crime, Policing and Fire’s response to recommendations 2 to 7 of the ACMD’s updated harms assessment. That was published on GOV.UK. I am quite sure that noble Lords will remind me if that is not forthcoming but, for now, I commend the order to the Committee.

Will the Minister say a quick word about what else the Government are doing to regulate and stop the sale of these things, particularly to young people? He commented on the number of people who are using this drug. We are now criminalising them. What more are the Government doing to make sure that these things are not sold to children in the first place?

I think I have already answered that question with regard to criminal gangs. At the moment, of course, it is freely available through a number of perfectly legitimate channels. Obviously, guidance will be incredibly important. People who are selling it at the moment, particularly to children, need to understand their new responsibilities and the fact that they will be committing a criminal act. The fact is that the penalties for this are quite severe so I suggest that they would do well to pay attention to what they are doing and not fall foul of this law.

Motion agreed.

Windsor Framework (Enforcement etc.) Regulations 2023

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Windsor Framework (Enforcement etc.) Regulations 2023.

Relevant document: 51st Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

My Lords, I beg to move that the draft Windsor Framework (Enforcement etc.) Regulations 2023, which were laid before the House on 4 September, be considered.

The purpose of the instrument before the Committee is to implement arrangements agreed under the Windsor Framework, which was announced by this Government in February this year. This framework fundamentally recasts the old Northern Ireland protocol to restore the smooth flow of trade within the UK internal market, safeguard Northern Ireland’s place in the union and address any concerns over a democratic deficit. Importantly, this instrument does not establish those arrangements themselves but provides Northern Irish authorities with the powers to ensure their proper functioning. This guarantees protection for Northern Irish consumers in line with that in the rest of the United Kingdom.

First, the Northern Ireland retail movement scheme establishes a new sustainable, long-term legal framework for trade in retail agri-food goods between Great Britain and Northern Ireland. The new scheme will allow traders moving agri-food goods destined for the final consumer in Northern Ireland to benefit from a unique set of arrangements. These arrangements enable consignments to move based on a single certificate without routine physical checks. This will be on Great British public health, marketing and organics standards, as well as catch documentation requirements for certain species of fish.

In total, the Windsor Framework secures the disapplication of more than 60 EU regulations on goods moving to Northern Ireland via the scheme. The application of GB standards to these goods ensures a common approach across the UK. The scheme will be available to all such traders, including retailers, wholesalers, caterers and those providing food to public institutions such as schools and hospitals.

Secondly, the Northern Ireland plant health label regime will remove the requirement for plants for planting and used farming or forestry machinery to be accompanied by expensive phytosanitary certificates, costing businesses around £150 per movement. Instead, operators will be able to register and become authorised to issue and attach a Northern Ireland plant health label for goods moving from Great Britain to Northern Ireland. This will significantly reduce the costs for businesses moving these goods to Northern Ireland. The Northern Ireland plant health label is based on the existing UK plant passport regime, which controls plant health in the rest of the UK, ensuring freedom from pests. Previously banned seed potatoes will once again be available in Northern Ireland from other parts of the UK and will also move under the Northern Ireland plant health label scheme. Specifically, this instrument will allow for the sufficient, pragmatic and proportionate enforcement of key elements within these new schemes.

First, as agri-foods entering Northern Ireland under the Northern Ireland retail movement scheme can now meet the same public health, marketing and organic standards that apply elsewhere in the UK, relevant bodies in Northern Ireland need the powers to ensure compliance with these standards. This instrument ensures that existing Northern Ireland powers can be used in respect of goods that move under the scheme, including the ability to remove non-compliant goods from sale and to act against non-compliant businesses. Such powers are already in place in Northern Ireland in respect of EU standards; as such, this does not represent a widening of enforcement powers or additional responsibility for businesses. Importantly, this will ensure the continued protection of public health, consumer interests and food safety in Northern Ireland, guaranteeing that consumers in Northern Ireland will benefit from the same high standards as the rest of the United Kingdom.

This instrument provides the necessary enforcement powers to ensure compliance with the Northern Ireland plant health label regime, in line with what already exists in the rest of the UK. It affects only businesses that make use of this regime and is no more burdensome than it is for British businesses operating within the plant passport regime. This will ensure that authorities in Great Britain and Northern Ireland are able to manage non-compliance with the Northern Ireland plant health label proportionately, utilising the existing domestic plant health enforcement regime. These measures are intended not to burden lawful traders but rather to create an equitable ground for businesses and protect the interests of consumers in Great Britain and Northern Ireland. As noble Lords would expect, these measures will have no impact on traders who abide by the relevant Great British standards for agri-food goods and the terms and conditions of the Northern Ireland plant health label scheme.

As we move forward with the Windsor Framework, let us not forget its profound implications for trade and the economy. This framework is an innovative solution. It removes the Irish Sea border for goods remaining in the UK and provides a stable legal foundation for trade, allowing everyday goods to move more easily, while adhering to the highest standards and protecting biosecurity on the island of Ireland. These new arrangements ensure that consumers in Northern Ireland can access goods that are available across other parts of the UK and that they are protected by the same high standards as consumers elsewhere in the UK.

I hope I have reassured your Lordships of the purposes and aims of this statutory instrument as a critical part of the Windsor Framework. I hope noble Lords agree that this is a positive step forward for businesses and consumers. I beg to move.

My Lords, the ostensible purpose of the Windsor Framework (Enforcement etc.) Regulations 2023 is to make provision for the enforcement of GB standards rather than EU ones in Northern Ireland with respect to public health, marketing and organic products. That sounds like a step forward in efforts to repatriate powers from the EU to the UK. For reasons that I hope to demonstrate, however, quite the opposite is the case.

These regulations can be understood only if read in tandem with the Windsor Framework (Plant Health) Regulations 2023 and the Windsor Framework (Retail Movement Scheme: Public Health, Marketing and Organic Product Standards and Miscellaneous Provisions) Regulations, to which they make repeated reference and which were also laid before Parliament the week before last. Furthermore, none of these regulations can be understood apart from Regulation (EU) 2023/1231 of the European Union—otherwise known as the “SPS regulation”—which was passed on 14 June this year and without which none of them make sense. That regulation is the sun around which the regulations we are considering today, and their fellow regulations, orbit, such that it is not possible to scrutinise and understand the Windsor Framework (Enforcement etc.) Regulations 2023 without also understanding Regulation (EU) 2023/1231.

Before I comment further on the said EU regulation for the purpose of understanding the regulations before us today, I will first set out its centrality to these enforcement regulations. Regulation 3(2) of the Windsor Framework (Enforcement etc.) Regulations 2023 states that, in the regulations, reference to “the SPS Regulation” is a reference to EU Regulation 2023/1231. Meanwhile, Regulation 9(1)(b) of these enforcement regulations defines where the enforcement provisions fall, which is subject to

“Article 1(2) and Annex I to the SPS Regulation”.

Moreover, the regulations reference

“Northern Ireland plant health label”

42 times, defining the term on a basis that again takes us in two steps to Regulation (EU) 2023/1231. Regulation 3(2) of these regulations states that

“‘Northern Ireland plant health label’ has the meaning given in regulation 2 of the Windsor Framework (Plant Health) Regulations 2023”.

Regulation 2 of the Windsor Framework (Plant Health) Regulations 2023 defines “Northern Ireland plant health label” in turn by Regulation (EU) 2023/1231, stating that

“‘Northern Ireland plant health label’ has the meaning given to ‘plant health label’ in Article 2(22) of the SPS Regulation”.

Thus, central to the task of scrutinising and understanding the Windsor Framework (Enforcement etc.) Regulations 2023 before us today is understanding the SPS regulation, namely Regulation (EU) 2023/1231.

Anyone who has believed government claims to have “got Brexit done” and “taken back control” will be rudely awoken from that particular fantasy by the experience of reading Regulation (EU) 2023/1231. Unlike those EU regulations that apply to Northern Ireland because they apply to the EU as a whole and thus to Northern Ireland, this regulation, which was passed in June, is curious because it applies narrowly and specifically to the Government of the United Kingdom and not to any other part of the EU—even though the legislation was supposedly made some years after Brexit for the UK by the EU legislature, now without any UK representation. Formally, it is designated as this:

“Regulation (EU) 2023/1231 of the European Parliament and of the Council of 14 June 2023 on specific rules relating to the entry into Northern Ireland from other parts of the United Kingdom of certain consignments of retail goods, plants for planting, seed potatoes, machinery and certain vehicles operated for agricultural or forestry purposes, as well as non-commercial movements of certain pet animals into Northern Ireland”.

Although it is often said that the protocol/Windsor Framework has made Northern Ireland a vassal state of the EU, this legislation demonstrates that, in touching what people can do in the rest of the UK, there is a clear sense in which the vassal status to which we have been submitted impacts not only Northern Ireland but the whole United Kingdom.

EU regulation 2023/1231 makes provision for some goods to be subject to less exacting SPS border requirements than would otherwise obtain if traders submit to certain restrictions, which it is the purpose of the Windsor Framework (Enforcement etc.) Regulations 2023 to enable compliant traders to access.

Specifically, if those in the wider UK bringing goods to Northern Ireland are moving SPS retail goods to a confirmed Northern Ireland consumer with an address in Northern Ireland, and if those goods bear “Not for EU” labels—which are being phased in across a number of stages—and are subject to 10% to 5% identity checks at border control posts, and if the retailers in question have applied to join the trusted trader scheme and successfully obtained and kept trusted trader status, then, and only then, will they benefit from a simplified single SPS certificate.

The implications flowing from this are far reaching. First, contrary to the protestations of the Government, this is not unfettered access, which is the term used for free movement within a single market that, by definition, encounters neither a customs nor an SPS border, nor border control posts. So the first thing we must be clear about is that the alternative border arrangements that the Windsor Framework (Enforcement etc.) Regulations 2023 help effect do not remove, in the words of the Prime Minister,

“any sense of border in the Irish Sea”.

What they do is facilitate an alternative border experience in which the regulations before us today play an enforcement role, but it is still a border experience—a border whose function is to uphold the integrity of the separate legal regime that now exists in Northern Ireland, which is the result of our disfranchisement. That is an important point that must never be forgotten. The border is not just a dreadful inconvenience with far-reaching negative economic consequences but the symbol of our disfranchisement and humiliation.

Indeed, the EU has not only gone to great lengths to impose its disfranchisement policy on us but, with the connivance of our own Government—who are supposed to protect and defend us through the “all for one, one for all” covenant that makes any body politic possible—rubbed salt in the wound by having the gall to suggest that, rather than being the source of acute embarrassment, the product of our disfranchisement, which is the different legal regime to which we are subjected, should be dignified such that it is deemed worthy of protection through the provision of a border, cutting our country in two, and upheld through the provision of border control posts.

Secondly, the alternative arrangements that it is the purpose of the Windsor Framework (Enforcement etc.) Regulations 2023 to enforce are not transferred to us that we can hold and claim them for ourselves. They are offered by the EU only subject to certain EU regulations that it polices and enforces. In this regard, the most important article of EU regulation 2023/1231, without which one cannot understand the Windsor Framework (Enforcement etc.) Regulations 2023, is article 14.

Article 14 defines where the power lies and where the buck really stops. In article 14(5), the EU reserves the right to remove the alternative arrangements and press for its full pound of flesh against the full international border that ultimately remains as in place under Windsor as under the protocol, at which point the Windsor Framework (Enforcement etc.) Regulations 2023 will become irrelevant. It states:

“If the United Kingdom fails to comply with the conditions laid down in paragraph 1, point (c), or in paragraph 2, point (a) or (b), of this Article, the Commission shall adopt a delegated act in accordance with Article 17 to supplement this Regulation by suspending the application of Articles 4, 5, 6 and 9 to 12”.

In those 57 words, the true sovereignty implications of the Windsor Framework and the Windsor border are exposed and laid bare.

In that sense, anyone voting for the Windsor Framework (Enforcement etc.) Regulations 2023 would effectively be saying: we will ask for alternative border arrangements even though we know that, in doing so, we not only accept the reality of the border in the alternative border arrangements, rather than the removal of any sense of border in the Irish Sea, but consent to an arrangement that has at its heart the right of the EU to, in the final analysis, press for the most destructive possible expression of the border and its right and freedom to operate politically on the basis of that reality.

In recognising that fact we must, of course, not forget that that would be in addition to the full destructive manifestation of the border that the EU is already insisting on from 1 October with the advent of the red lane. There is no green lane default safeguard here for the UK, only an EU default safeguard to 100% red lane arrangements. Thus, far from removing any sense of border in the Irish Sea, the Windsor Framework (Enforcement etc.) Regulations 2023 authenticate and give life and credibility to an arrangement that cements in and makes permanent, as default, a full international border, cutting off Northern Ireland from the rest of the United Kingdom.

Finally, I note in passing that, as well as being the subject of the Windsor Framework (Enforcement etc.) Regulations 2023, enforcement is also completely central to the Windsor Framework (Retail Movement Scheme) Regulation 2023, Regulation 11 of which requires the competent authorities to assess goods coming into Northern Ireland on the basis of potential risks, such as disease. However, Regulation 11(2)(b) and (d) to (f) then bizarrely define risk in terms of capacity to conduct checks with respect to available staff and facilities. An enforcement requirement is thus made and effectively withdrawn in the same regulation on grounds of lack of capacity. Is this not a cynical device for encouraging people to conclude in the aftermath of 1 October that Windsor has been a lot less disruptive than usual because this will prevent us seeing what it is really like until July 2025 when the border control posts are ready? Have His Majesty’s Government discussed with the EU the implications of Regulation 11(2)(b) and (d) to (f) on the capacity of the border to meet both the demands of EU Regulation 2023/1231 and the demands of the red lane between 1 October 2023 and 31 July 2025? Have His Majesty’s Government been forced to give an assurance to the EU that Regulation 11 will be repealed, in whole or in part, on 1 August 2025 on completion of the border control posts at Larne, Warrenpoint, Foyle and Belfast?

My Lords, I thank the Minister for his presentation of these Windsor Framework regulations. I have to declare an interest as a member of two of your Lordships’ House’s committees, the Secondary Legislation Scrutiny Committee and the European Affairs Committee’s Sub-Committee on the Protocol on Ireland/Northern Ireland. Last week in the Secondary Legislation Scrutiny Committee we considered these regulations.

I come to this debate as someone who supports the Windsor Framework and wants to see it implemented for the good of business development, so that people and businesses can avail themselves of access to the UK internal market and the EU single market. There needs to be a driver for that process. I note rather sadly that we do not have political institutions as per the Good Friday agreement up and running at the moment. I also note an indication on BBC Radio Ulster that the UK Government intend to drive on with the implementation, from their perspective, of the Windsor Framework. Can the Minister confirm that in summing up and whether that indicates that the Government have a little confidence in the resumption or restoration of political institutions?

Although I have indicated my support for the Windsor Framework, there are certain issues with the regulations, which were raised last week in our Secondary Legislation Scrutiny Committee. There is a pattern across a lot of these SIs; there is a lack of a proper Explanatory Memorandum in some instances and of a proper impact assessment. The Explanatory Memorandum says:

“A De Minimis Assessment for this instrument has been completed”.

However, the advice given to our committee stated that there was a lack of a proper impact assessment. Maybe the Minister can advise us on why that was the case.

Can the Minister also indicate what consultation took place with stakeholders? We were told that there was consultation with businesses, but what businesses and how many, and who was consulted? I do not think the wider community would have taken part in this consultation. However, I talked to a business representative last Friday and they were most anxious that the simple detail was provided to businesses. When our protocol committee undertook our assessment and evidence-taking on the Windsor Framework in the spring and early summer of last year, and when we published our report at the end of July, there was a clear indication from all businesses that gave us evidence that there was a lack of detail regarding labelling and the implementation framework. That implementation framework enforcement is in these regulations, so it is sad to say that only some six to seven months later do we have the legislative framework. If that had been in place earlier, we would not have had the same level of complaints from the business community. We simply want to get on with proceedings.

Today in our protocol committee we were giving consideration to future short inquiries. One area where there has been a lack of information, and simply an extension of the grace period, is the whole area of the SPS agreement for veterinary medicines to the end of 2025. Can he say, as a Defra Minister, when there will be final negotiations and a final decision on that SPS agreement for veterinary medicines? After all, the agri-food industry is vital to Northern Ireland and our economy. I fully accept and agree with the point that, as regards animal health, Ireland is considered as a single epidemiological unit. I believe in the protection of food safety, so I want to see these regulations implemented as quickly as possible. It is sad that they were not available earlier in the year for businesses to answer their many queries on labelling and enforcement. Perhaps the Minister can also indicate when the permanent SPS infrastructure at the ports of Belfast, Larne and Warrenpoint will be completed.

My Lords, it is a pleasure to follow the noble Baroness, Lady Ritchie, with whom I have the pleasure to serve on the Northern Ireland protocol Select Committee, to which she referred. I endorse what she said about the need to get resolution on veterinary medicines. We heard evidence last week, from the Ulster Farmers Union and others, about the serious implications of the failure to resolve that issue. The indications coming out of Brussels are that it is not interested in a solution that would guarantee the continued flow of Great Britain vaccines and other medicines for veterinary purposes to Northern Ireland. I would like a timescale from the Minister of when he expects farmers and the agri-food industry in Northern Ireland to be reassured that that matter will be resolved so that they can continue to access British veterinary vaccines and other medicines in the same way that they do now.

Unlike the noble Baroness who just spoke, I do not regard the Windsor Framework/Northern Ireland protocol as a fair and balanced resolution to our problems with the free flow of trade between parts of the United Kingdom. This is very much a process that has protected certain parts of the Belfast agreement, as amended by the St Andrews agreement—namely, the north-south arrangement—but that has completely trashed the east-west relationship and the strand 1 relationship at Stormont. We can see that because there are no functioning institutions of strands 1, 2 or 3. People say that the Windsor Framework and the protocol are designed to protect the Belfast agreement, but show me the evidence of that. It has trashed the Belfast agreement and its institutions.

The Windsor Framework is now being implemented by a series of statutory instruments, through both negative and affirmative resolution. The noble Baroness referred to news reports about the Government taking further powers—that may well be. It sometimes makes you wonder why they talk about wanting to get the Assembly back so much, because all they do is keep taking powers from it and devolved Ministers. There is not much regard for the Sewel convention or any of that, and then they ask people to go back and administer less and less of what they should be administering. For vast swathes of our economy and the agri-food industry, no Member of the Northern Ireland Assembly of any party—unionist, nationalist or whatever—or any MP from Northern Ireland has any powers to make any laws in those areas. We are told that the Assembly must get back to administer Northern Ireland, but those powers have been taken away from Northern Ireland and from elected representatives in the other place and this House.

These are fundamental issues; they are not small matters but fundamental constitutional, political and economic issues. That is why we feel so strongly about these areas, and we will continue to expose a Government who claim to uphold the union but continue, as my noble friend Lord Morrow exposed in considerable detail, to implement EU laws over part of the United Kingdom. That is the nub of the problem.

This statutory instrument is one of those related to the Windsor Framework/Northern Ireland protocol, and it requires an affirmative vote in Parliament. The retail movement scheme statutory instrument, which was laid during the Summer Recess, is being implemented under the negative resolution procedure. Other important statutory instruments required to build the Irish Sea border and conform internal UK trade arrangements— I stress “internal”—with EU law are also being tabled by this Government under the negative resolution procedure.

The Secondary Legislation Scrutiny Committee has examined the regulations in front of us, as well as others. They are interlinked, as has been said, yet we have not been able to debate them—so far, that is; I am sure that we will find ways of getting them debated in due course. Up to now, the Government have not sought a debate on some of the most important regulations, including on the retail movement scheme itself. That is deeply regrettable.

Our party, the Democratic Unionist Party, made extensive submissions to the Secondary Legislation Scrutiny Committee; indeed, it was the only organisation to do so. I am glad that the committee has taken note of our concerns. It expressed concern about the lack of an impact assessment or even “basic information”, as it put it. It said that the absence of such information and the way in which secondary legislation is laid before Parliament are concerns that it has raised repeatedly.

This is not unique to delegated legislation. We as Members of your Lordships’ House have the same problem concerning basic information and factual answers all the time. The Government seem unable—or, perhaps more accurately, unwilling—to answer factual questions that are tabled through parliamentary Questions. Can the Minister explain in detail how he answers the criticisms of the committee?

The Explanatory Memorandum to the regulations that established the Northern Ireland retail movement scheme states that an impact assessment will be published in due course. Can the Minister tell the Committee today when that is likely to happen? The SLSC points out the fact that the retail movement scheme came into force during the parliamentary recess, denying Parliament the opportunity to form a view and expresses concern about the timetable. How does the Minister respond to that specific criticism?

As the noble Baroness, Lady Ritchie, said, there is a clear pattern of behaviour here. That needs to be called out. It is right that we hold the Government to account over not only the substance of what they are doing but the way in which they are doing it in the face of consistent, detailed, forensic criticism from your Lordships’ Secondary Legislation Scrutiny Committee. It is not good enough to continue simply to ignore that; the Government must answer.

In the Government’s view, these regulations, along with all the others that I have referred to, are necessary to build and erect an Irish Sea border between one part of the UK and the other. Anyone who claims otherwise is simply not looking at the facts. The Minister said—I think I picked him up right—that this removes the Irish Sea border. I ask the Minister and other noble Lords to read the report on the Windsor Framework from the Protocol on Ireland/Northern Ireland Sub-Committee, which we published earlier this summer and in which that idea is completely disproved. It is not the statement of any political party; it is the statement of a cross-party committee that consists of remainers, Brexiteers, unionists, nationals, Conservatives, DUP, Labour and Lib Dems. That is the report. I challenge the Minister to read it and then see whether he comes to the same conclusion.

The Government’s argument is essentially: “Well, it’s better than the original form of the protocol. You should be grateful and thankful for that and take it”. Of course, many people—including the SDLP, the Alliance Party, Sinn Féin, the Irish Government and many Members of your Lordships’ House—wanted to see the original implemented rigorously and argued that it should be even though all sides now acknowledge the damage that that would have done to Northern Ireland’s economy, politics and constitutional position. Now we have the same people urging us to accept the Windsor Framework, saying, “Well, it’s slightly better”. That argument does not wash with those of us who believe that as citizens of the United Kingdom, we are entitled to the same rights as everyone else in the United Kingdom.

It is not unfettered access that is being delivered. As my noble friend Lord Morrow said, this certainly does not deliver what the Prime Minister promised the people of Northern Ireland about doing away with any sense of a border. These regulations are being brought in not to implement a British Act of Parliament but to implement EU regulation 2023/1231.

Under the framework, it is the EU that dictates the law under which goods move from one part of the United Kingdom to another. Let us think about that for a moment. There is no democratic oversight or input into the development of such laws by anyone elected in Northern Ireland. Of course, the relevant EU law can be amended, changed or removed at any point, but only by the EU—I repeat: only by the EU. If the EU decides that it does not like the way that the so-called “green lane” is being operated, it can force everybody into the red lane.

The Government have of course failed to get any kind of reciprocal arrangement the other way. The new arrangement will result in trade diversion; indeed, it is already happening. The argument is that it would have been worse under the original protocol. That is not justification for the diversion which will undoubtedly take place. We have already heard from Tesco, for instance, about implications for it of this framework. Goods coming into Northern Ireland will now be examined to ensure they comply with GB standards.

Will the Minister explain whether goods produced in Northern Ireland itself for the Northern Ireland market, or for the GB market for that matter, can now be made, manufactured or produced so that they comply with UK or GB standards? Or, is it the case that they must meet EU standards while people importing from the rest of the United Kingdom do not have to, and therefore Northern Ireland businesses could become less competitive? I would like a clear answer to that because businesses in Northern Ireland are very interested in the costs of this regulation for them, which may not apply to their competitors.

On the issue of seed potatoes, can Minister tell us whether they can be sold to the public in retail outlets, such as garden centres and so on? Can the Minister tell us how many plants and species of trees remain banned? We have had a list of those that the Government have asked the EU to allow into Northern Ireland from the rest of the United Kingdom. Will the Minister spell out in detail which will not be able to be moved from Great Britain to Northern Ireland?

It is important to say in conclusion that the Windsor Framework does not live up to the hype that the Prime Minister gave it when he launched earlier this year. As our report sets out, the key conclusion is that the Windsor Framework makes things worse for many businesses compared to what they have experienced until now because of the grace periods, derogations and so on. The original protocol was unworkable; it could not be implemented. That is what led to the grace periods and easements. Now they are being done away with and replaced with the full implementation of the Windsor Framework. It renders us worse off in respect of the Irish Sea border and creates greater checks and barriers to trade with the rest of the United Kingdom compared to what we have experienced thus far even if it theoretically—this is what the Government’s case rests on—improves the original, disastrous form of the protocol.

I am glad of the opportunity to debate these matters. I urge the Government to take on board the criticism of the Secondary Legislation Scrutiny Committee and bring these matters for debate so that we can explore myth versus fact, law versus politics. Then we will have a proper understanding of what really is at stake for Northern Ireland.

My Lords, it is a pleasure to follow my colleagues, my noble friends Lord Morrow and Lord Dodds, in this debate.

One way in which the constitutional importance of the Windsor Framework (Enforcement etc.) Regulations before us today is evidenced is in the decision to describe the alternative standards that are, in some cases, to be enforced in Northern Ireland as GB standards rather than UK standards. If that is so, and standards are to be applied across the whole of the United Kingdom that currently operate only in GB, and which would have been applied to the UK as a whole had we left without a deal that sought to dismember our body politic, they become UK standards, not GB standards.

Why then does the Explanatory Memorandum on these enforcement regulations not designate them as UK standards? Instead, it states that the purpose of the regulations is to:

“Ensure that appropriate enforcement powers are in place for retail agri-food goods moved from GB to NI under the Northern Ireland Retail Movement Scheme, which meet GB public health and marketing standards … catch documentation”—

as the Minister has already quoted—

“requirements for certain species of fish, and organics standards (referred to as ‘relevant GB standards’) and are placed on the NI market”.

Given that the EU jealously guards its default right to press for its full pound of flesh against the default full border set out in Article 14 of EU Regulation 2023/1231 to which the Windsor Framework (Enforcement etc.) Regulations 2023 are wholly submitted and without which they become entirely meaningless, the EU regulations need to remain in place, at least in some ways. They are not removed, just made non-binding for the duration of the EU’s pleasure. In that sense, the EU plainly does not want the standards to be made to sound entirely natural and thus properly permanent, so they are categorised as GB standards because it implies that even when governance standards are UK-wide, they are still somewhat foreign if they apply in Northern Ireland.

Moreover, this arrangement is also helpful to the Government as they seek to address the challenge of the border control posts under construction between now and July 2025. If the standards were described as UK standards, the use of border control posts for 10% to 5% identity checks and other risk-based checks would be like using border control posts within any part of this United Kingdom. By contrast, defining the relevant standards as GB standards makes the deployment of border control posts seem less controversial because it will enable the Government to claim that these border control posts should not be understood as border control posts in any normal sense as their purpose is actually to give effect to rather than undermine our sovereignty by simply imposing standards that arise from within the United Kingdom Government within the borders of the United Kingdom.

The Government may feel that this presentational approach is to their advantage as they seek to bow to EU demands to disrespect the territorial integrity of this United Kingdom. However, it is also to their disadvantage in creating a new impression that brings two difficult and embarrassing questions into focus.

The Explanatory Memorandum to these Windsor Framework (Enforcement etc.) Regulations is clear that the purpose of the application of GB standards is for protecting the biosecurity of the people of Northern Ireland. Specifically, it states:

“Part 3 of this instrument ensures that appropriate enforcement powers are also available in NI to protect NI consumers in cases where retail agri-food goods, moving from GB to NI under the Northern Ireland Retail Movement Scheme and placed on the NI market, do not comply with the relevant GB standards”.

The first difficult question arises from the fact that this suggested commitment to the biosecurity of the people of Northern Ireland is that it necessarily creates the basis for biosecurity within Great Britain because it implies that even while the goods have either been created in Great Britain or have come into Great Britain, we cannot be confident that they are to Great Britain standards. In making this assertion, the Government are admitting that the UK is failing its citizens living in Great Britain in a most basic way with respect to their biosecurity. That must be of huge concern to anyone living in Great Britain and to all the Members of this Committee and House who represent GB constituencies.

The second difficult question that arises from the Explanatory Memorandum is that if it is so important that we uphold GB biosecurity standards in Northern Ireland that we must spend millions in the provision of border control posts within the United Kingdom, why is it acceptable to have a completely open border to the south of Ireland, with another country entirely? In a context where the EU said to the UK, “Given that we cannot have a hard border across the island of Ireland, we must have checks on goods coming to the island of Ireland through Northern Ireland ports to EU standards, or standards that we are prepared to tolerate, in order to protect our biosecurity”, why did the UK Government not say, “Okay, but you must understand that if we are to accept that, we must obviously make equal and opposite demands so that all goods entering the island from ports in the Republic are checked to UK standards”?

If it is important to check goods coming into Northern Ireland from Great Britain to Great Britain standards, where those standards should have already been enforced, why is it not equally important to protect the people of Northern Ireland from goods coming in from elsewhere to the same standard? The people living in Northern Ireland are the same people. They will not be damaged by goods that fail to meet GB standards if they come from Great Britain but are completely immune to the danger arising from the same goods travelling from somewhere else into Northern Ireland and failing to meet GB standards because they come from elsewhere.

It is completely wrong to seek to protect people in Northern Ireland to standards designated as Great Britain standards instead of UK standards. The idea that people within the United Kingdom need to be protected by standards existing within the United Kingdom through border control posts between one part of this United Kingdom and another is as absurd an application in the UK as it would be in any other state that had not embraced Alice in Wonderland politics.

How could the UK so lack self-belief that it readily turns itself into Alice in Wonderland at the behest of the EU? The humiliation of our body politic to the EU is surely now more pronounced than it ever was between 1973 and 2020, such is the Brexit deal humiliation to which the Government have subjected us. All this talk of enforcing GB standards in the Windsor Framework (Enforcement etc.) Regulations 2023 really amounts to is an attempt to dress up the implication of what is actually being effected—a border that insults the intelligence not only of the people of Northern Ireland but of the people of the wider United Kingdom. If ever there were a Government to be weighed in the balance and found wanting, this is surely it.

My Lords, having listened to my noble friends, it is doubtful that these regulations are intra vires. They are tied umbilically to regulation 2023/1231, which, as we have seen, rather than removing the border down the Irish Sea, bestows on it an alternative set of border arrangements which, while in some ways are less demanding, remain border arrangements—and ones that, crucially, are predicated on Article 14, which gives the EU the default right to press its full rights against the border it has thrust across our country. The EU regulations consequently disrespect the territorial integrity and the essential state functions of the UK, both by dividing it with an international border and asserting the default right to control that border within our country.

This is a hugely important matter for the Windsor Framework (Enforcement etc.) Regulations 2023 because Article 1(2) of the protocol states:

“This Protocol respects the essential State functions and territorial integrity of the United Kingdom”.

It is made directly effective in UK law by Section 7A(l)(a) of the European Union (Withdrawal Agreement) Act, requiring that

“all such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the withdrawal agreement”

are applied.

How can Article 1(2) be applied if attempts are made to implement other parts of the protocol that have the effect of actively disrespecting the territorial integrity and essential state functions of the United Kingdom that it insists on respecting? I can see that, if the regulation-making power were for the purpose of giving effect to certain articles of the protocol and not others, this vires difficulty may not necessarily apply. But the regulation-making power simply references the protocol/Windsor Framework, which means that it must be taken as a whole. That means that any Act that purports to implement it cannot contradict any part of the protocol, including Articles 1 and 2.

Some might say that the power affords the Minister significant latitude. That may be the case, but the power is not a power to do anything; it is constrained by references to the protocol—now the Windsor Framework. Although the Minister may have freedom, this plainly does not extend to directly contradicting any part of the framework, which these regulations plainly do, in acting in direct opposition to Article 1(2).

The Windsor Framework enforcement regulations are also problematic because, unlike most forms of legislation that do not have an impact until they formally come into effect, businesses have been busily restructuring in preparation for the regulations, as part of the retail movement scheme—first announced as the green lane in February. For some months, Asda has started to use “not for EU” labels. This means that, unusually, we can already see something of the effect of these regulations. Moreover, their actual consequence has been plain to see since 14 June, if not before, when the EU regulation 2023/1231, to which they relate and without which they make no sense, came into effect.

Many businesses have made it clear that relying on the retail movement scheme and its enforcement mechanism, as set out in these regulations, is too complicated, and it is too expensive for the retail movement scheme to simply take over from the old and very light-touch scheme for temporary agri-food movements to Northern Ireland—STAMNI—which it replaces, such that supermarkets can continue to function on the basis of the old GB-NI supply chains that attended and defined what was the UK single market for goods until the end of 31 December 2020, giving effect to UK economic nationality.

In this context, big supermarkets I have already referred to, such as Tesco, have been restructuring their supply chains to move as much as possible of what previously came from Great Britain to Northern Ireland so that, after 1 October, it comes from the Republic of Ireland to Northern Ireland. One might respond to this by arguing that, to the extent that these regulations apply GB regulations, their enforcement component cannot have a trade diversionary effect. There are two difficulties with this assertion. In the first instance, to the extent that the deployment of these standards is through an SPS certificate—in relation to which one must have an export number and have obtained and kept membership of the trusted trader scheme, negotiated a border control post and provided “not for EU” labels—this all amounts to costs that do not apply to goods movements in other parts of the United Kingdom. This is an increased cost compared to STAMNI.

In the second instance, the impact of the retail movement scheme in terms of enforcement regulations does not simply determine where GB regulations apply. It also determines, by implication, where they cannot apply and where EU regulations, the presence of which was obscured by STAMNI, will now take effect.

The trade diversionary implications of preparing for the Windsor Framework (Enforcement etc.) Regulations 2023, and thus EU regulation 2023/1231, without which it and the other retail movement scheme legislation makes no sense, was brought home with particular clarity in the case of Tesco, through a slide at a recent presentation to retailers. The heading was:

“Packaged Food approach. For products currently moving from GB to NI”.

It said that, under the retail movement scheme, it would be important to restructure to get as many of these goods as possible from the Republic of Ireland to avoid the green and red lanes. Under the heading “Ireland Supply Routes”, the slide said:

“1. More Direct from the EU. 2. Move all common products from the ROI to NI stores. 3. Align some range with the ROI range”.

Of course, this is not to suggest that there will be no use of the green lane but rather that, together with the red lane, the green lane, as defined by various SIs published since August, including the Windsor Framework regulations, is already driving trade diversions. The fact that one can already see that trade diversion is the straightforward result of replacing STAMNI with the retail movement scheme facilitated by the Windsor Framework enforcement regulations, even before they formally come into effect. It demonstrates that, rather than fixing the problem with the Northern Ireland protocol/Windsor Framework, these Windsor Framework regulations have actually helped to call it out, in terms that were always recognised as fatally problematic by the drafters of the protocol/Windsor Framework, such that they justify derogation from it.

Article 16 of the protocol, which is directly effective in UK law, and which many Members of the House of Lords criticised the Government for not triggering ahead of introducing the Northern Ireland Protocol Bill, represents the mechanism to use if the protocol is failing. Failure is defined by Article 16 in the following terms:

“If the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade, the Union or the United Kingdom may unilaterally take appropriate safeguard measures. Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. Priority shall be given to such measures as will least disturb the functioning of this Protocol”.

The interesting thing about the form of words employed here by the drafters is that the diversion of trade is recognised to be such a serious matter that, even if it does not lead to

“serious economic, societal or environmental difficulties that are liable to persist”,

Article 16 can still be triggered, just because it results in a diversion of trade.

Of course, that is not at all surprising, because trade flows that are definitive of a single market are definitive of the economic nationality that underpins the modern nation state. As such, they are of an entirely different constitutional effect to trade flows between economies. They could not be cut away without shaking the very foundation of the polity in question. The trade diversionary implications of the retail movement scheme, as evidenced by Tesco’s presentation, have had a clear impact on the haulage sector, which has experienced a significant reduction in goods travelling from Great Britain to Northern Ireland since the announcement of Windsor, and the replacement of STAMNI with the retail movement scheme that it is the purpose of these regulations to implement.

Following the reduction in the operations of another haulage company servicing the UK market, Americold, the recent announcement that Morgan McLernon—it is the Northern Ireland wing of Culina, the largest UK-wide haulier of chilled and ambient products, the business of which is defined in UK terms—is to be closed, which the management blamed specifically on the implications of Brexit, provided a real-life demonstration of the reality of trade diversion, which the announcement of the replacement of the STAMNI scheme with the retail movement scheme through these regulations has accelerated. If the Government persist with these regulations, the trade diversion that they are creating will make it very difficult for them not to trigger Article 16. The Government should abandon the regulations and keep the STAMNI scheme in place.

When challenged on this point, the only defence that the Government have given is that the trade diversion resulting from the Windsor Framework, which it is the purpose of these regulations partly to effect, will be less than under the protocol. There are two difficulties with this defence. First, it does not deal with the central difficulty: Article 16 does not afford a basis for derogation if trade diversion is worse than that caused by the Windsor Framework, but simply on the basis of trade diversion. Secondly, the Government’s assertion that trade diversion under the Windsor Framework will be less than under the protocol is in any event deeply problematic. In truth, the protocol was completely unimplementable and would have caused supply chains to crash, generating a political crisis that would have, within the space of a few days, completely destroyed the credibility of the protocol such that it would have had to be abandoned and replaced with an honourable arrangement respecting the territorial integrity of the UK. Thus, its capacity to generate greater trade diversion than the Windsor Framework was entirely theoretical because it could never have lasted long enough really to create trade diversion.

Today, we need to decide whether the UK body politic is worth preserving and celebrating. I passionately believe that it is. I will certainly oppose the regulations.

Finally, can the Minister say when the European Union will inspect the border control posts to confirm that they are to its satisfaction in order for the green lane to commence on 1 October?

My Lords, the regulations in front of us today deal with one specific aspect—a major aspect—of the Windsor Framework but, in another way, they are symptomatic of the wider problems in terms of the Government’s presentation of the Windsor Framework and the substance of the framework.

Turning first to the Government’s presentation, we have had a plethora of spin since the signing of the Windsor Framework. Indeed, when the England one-day international squad was announced the other day, I was surprised that, given the amount of spin, no government Minister had made it into the final 15. We saw at the time of the Windsor Framework the presentation of a veritable utopia for Northern Ireland. We were very much getting the best of both worlds. Some of that has been echoed by some of the phrases that have been mentioned today. There was no direct reference to unfettered access but we were told that this would create smooth access between Great Britain and Northern Ireland. It was reiterated that it would remove the Irish Sea border—that was quoted by my noble friend Lord Dodds and I think I am accurately quoting what was said by the Minister today—and that we would have a situation in which there was a common approach to trade across the whole of the United Kingdom. All those things are a level of spin.

The best that can be said in relation to some of the proposals is that, in certain aspects, they may not be quite as bad as the protocol. However, let me draw on an analogy from my own life. About two years ago, roughly speaking, I underwent surgery. There was a certain level of uncertainty going into that surgery and I ended up with a toe being amputated. When I came round, I was ultimately glad that it was not two toes or a foot that had been amputated—what actually happened was clearly preferable to that situation. Was it analogous to the position that I had been in prior to that, with 10 toes? No, it was not. It certainly was not the best of both worlds, seen as some great leap forward. So it is with the regulations in front of us today.

We are told that this measure creates smooth access, and on other occasions unfettered access, with the rest of the United Kingdom—that is, it removes the Irish Sea border. However, as my colleagues have indicated, at best it can be said that it creates an alternative form of border in the Irish Sea. On the reality, let us again take one of the things said by the Minister: that it was a common approach across the United Kingdom. The analogy that was drawn in the Government’s Command Paper at the time of the Windsor Framework was that this would be the same type of paperwork as if you were transporting something from Southampton to the Isle of Wight.

However, anybody who takes a look at the regulations in detail will see, as has been indicated, that there will be SPS forms and an export number will be given. There will be border control posts and there will be a requirement that anybody who is looking to transport goods through this provision will have to be part of a trusted trader scheme. Indeed, if they fall foul of that, they could be excluded from that trusted trader scheme. I ask this genuinely: is this supposed to create a similar position and a common approach across the United Kingdom? Is that the case if we are transporting goods from Glasgow to Carlisle or from Southampton to the Isle of Wight? It is patently not the case. If the Government were to show at least a little bit of honesty and were to say that this is not the same level of burden as would be there under the original protocol, they could make that argument—but that is not what they have been saying and what they are saying is not the reality of the situation.

Similarly, as indicated by my noble friend Lord Dodds, what we have here—we should remember this specific aspect—is not about goods that are moving from Great Britain to Northern Ireland, to the European Union and to the single market. It is not even about goods that are deemed as being at risk of going into the European Union; then, at least, we could see some reasons for the levels of checks. This is specifically about goods of which it has to be proved that their end destination is within the United Kingdom, yet we have all these new burdens that have been put in place. There is a situation, as was indicated and outlined by my noble friend Lord Morrow, where this is in effect permitted to happen only at the grace and favour of the European Union. What if something that is entirely internal to the United Kingdom should be felt by the European Union not to be working or is in some way not acceptable to it? It could be withdrawn at a later stage on that basis.

Similarly, in terms of the practical realities, it is understandable that my colleagues and I will be deeply exercised about some of the wider constitutional implications of this. However, as has been highlighted by a number of colleagues, this also has deeply practical implications for trade. Mention has been made of the Tesco situation—I suspect that that will not be a unique situation—where the additional burdens that have been put in place by these regulations will lead to a direct divergence of trade. This is not some sort of ghost in the machine or empty threat; it is beginning to happen in reality, as we have seen. It is beginning to happen in reality with regard to haulage firms, where there is that divergence of trade. The reality is that, if you have a large company such as Tesco and if the supply chain is coming from the Republic of Ireland and other parts of the EU, it is a much better way of bringing goods into Northern Ireland. How much more difficult will it be for small and medium-sized firms, which are faced with the same level of bureaucracy but are not generating the same volume of trade? It is actually a much easier route.

That has implications for Northern Ireland, but it also—and this has been somewhat overlooked—has major implications for Great Britain too. If it is felt that accessing goods from the Republic of Ireland is an awful lot easier than accessing them from Great Britain, that will mean that British firms within mainland Great Britain will miss out on trade to Northern Ireland. It will have an economic impact for them as well.

Finally, on the concerns over these regulations, it has been highlighted by the committee that deep concerns have been raised in relation to process in terms of the way that this legislation has been brought forward. Mention has been made of the fact it was laid in the summer at a time when Parliament was not sitting, so there are issues around timing. There are issues around consultation, which does not seem particularly transparent at the very least. If we are most generous and say that there has been some level of consultation, none of us are particularly aware of what consultation has taken place. We are told that at some point in the future there may well be an impact assessment, but it has not been brought forward.

If it was one of those three things, that could perhaps be overlooked, but the combination of all three leads to only one of two conclusions or indeed to a combination of both. Either the Government in their approach to these regulations have been utterly disrespectful to Parliament in disregarding proper parliamentary process, or alternatively, by avoiding an impact assessment and minimising consultation by putting it out at a time when there is not the level of scrutiny, the Government seem to be sending out a signal that they are not particularly comfortable with close examination and scrutiny of these regulations because it would be seen that what is being put forward does not match up to what is there on the tin and what was said in the first few days of the Windsor Framework.

In terms of a positive way forward, it must surely be that the Government need to continue discussions to produce solutions which deliver what they said they were putting forward a number of months ago. That does not seem to be an unreasonable request from politicians in Northern Ireland—the effective removal of the Irish sea border. Similarly, the Government need to find political solutions which both communities can buy into because it is abundantly clear that what is there through these regulations and the wider political context is not bought into by the Unionist community within Northern Ireland.

By contrast, that is the positive way forward and the route which I urge the Government to take. This is why it is concerning—and we know that a lot of games will be played around this—that there is talk of the Government simply jumping in and imposing solutions which simply disregard where Unionist opinion, and indeed wider opinion within Northern Ireland, lies. That is a route of madness, and we need, as we have seen throughout decades in Northern Ireland and perhaps learned to our cost, to get solutions to which there is buy-in by both communities.

The Government are in danger of repeating the phrase that was used about the Bourbons: that ultimately they forgot nothing, and they learned nothing. Let us not see the Government go down that route. Even at this eleventh hour, they should start taking actions which respect all opinion within Northern Ireland and the integrity of trade within the United Kingdom.

My Lords, the noble Lord, Lord Benyon, has set out the rationale for this SI. Others have contributed to the debate and given a less enthusiastic reception, to say the least. I regret that my knowledge of the history and the subject matter is far less than that of those sitting opposite me. It would be churlish to suggest that if we had not left the EU, we would not be debating this SI this afternoon. However, this SI will be an improvement for Northern Ireland on the bureaucratic regulations it is currently operating under, although I accept that others will not agree with this.

The Windsor Framework will create the new Northern Ireland retail movement scheme, which will enable consignments to move around on the basis of a single certificate, without routine physical checks and on the basis of GB public health, marketing and organics standards. This will apply to agri-foods, wholesalers, caterers, et cetera, including those supplying food to public institutions, such as hospitals and schools. All this seems good to me.

In the past in Grand Committee, we have debated plant health certificates and sanitary and phytosanitary passports for plants. The Windsor Framework will establish a Northern Ireland plant health label, which will be known as the NIPHL, removing the need for plants to be accompanied by a phytosanitary certificate. This will be replaced by operators registering as a relevant competent authority to issue an NIPHL attached to the goods, allowing them to be moved from GB to Northern Ireland—this is a cheaper option. Seed potatoes, previously banned, will again be available in Northern Ireland. I remember well the previous seed potato- ban SI.

I note that the Northern Ireland retail movement scheme applies to fisheries regulations and catch documentation requirements for certain species of fish. Can the Minister please give a little more information on exactly which species of fish are affected by this regulation and in what way?

As well as plant movements, the SI will allow the movement of vehicles and machinery operating for agriculture and forestry purposes to be covered by the NIPHL scheme. Under the EU, the SPS—sanitary and phytosanitary—regulation disapplies some provisions in relation to retail agri-food goods moving into Northern Ireland under the Northern Ireland retail movement scheme. The Explanatory Memorandum states that the regulations subject to disapplication are set out under annexe 1 of the SPS regulation. However, I could not find any reference to the detail of this. Perhaps it does not have any material influence on this SI.

The Secondary Legislation Scrutiny Committee raised concerns over the laying of the statutory instrument during Recess, which I also find regrettable. Part 2 of the SI lists the detailed offences that the regulations cover. This list is extensive and hopefully inclusive. I could go on at length extolling the benefits of this SI in terms of the lifting of some of the burdens of legislation from Northern Ireland and enabling its trading arrangements to operate on a less bureaucratic basis. Generally, the measures covered in the SI are good and should be welcomed.

Paragraph 12.2 of the Explanatory Memorandum states that a de minimis assessment has been completed—the noble Baroness, Lady Ritchie, referred to this. The costs to businesses from the instrument are below the de minimis threshold. Since this work has been conducted in order to ascertain that the de minimis has not been reached, can the Minister say just how much the costs for businesses will be, even if this is below the de minimis threshold? The absence of an IA is regrettable but not surprising.

The Windsor Framework improves trade in Northern Ireland and, on that basis, it should be welcomed. Despite everything that has been said, I welcome this statutory instrument, but, given the grave concerns of DUP Members, I look forward to the Minister’s response.

My Lords, this has been a genuinely fascinating debate and, as ever, shows the complex nature of every issue when we look to our post-Brexit environment. I thank the Minister for his overview of this statutory instrument and for the correspondence I received from his fellow Minister, the noble Baroness, Lady Neville-Rolfe.

This legislation is vital to the implementation of the Windsor Framework and, as His Majesty’s Opposition made clear in the other place, we support a negotiated outcome with the European Union. For the avoidance of doubt, while the Labour Party does not believe that the Windsor Framework is perfect, we do believe it is a substantial improvement on what came before.

His Majesty’s Opposition supported this instrument when a vote was called in the Commons. Again, this was not a wholehearted endorsement of what the Government have achieved—as we have heard today, important gaps remain—but a reflection of our belief that these issues must be resolved through negotiation rather than threats or unilateral action.

This is why I am so grateful to members of the Secondary Legislation Scrutiny Committee, including my noble friend Lady Ritchie, for their reflections on the recent set of Windsor Framework SIs, and for consistently considering the views of colleagues with divergent opinions. As well as key stakeholders, different organisations and political parties may reach varying conclusions on the Windsor Framework, but we should all be able to feed these into the process and have our views heard.

The Windsor Framework was announced in February and many of the changes within it will be operational in just a couple of weeks, so it is concerning that these instruments have been brought forward for consideration only in this short September sitting. I fear that this is something of a pattern, not just in relation to the Windsor Framework but more generally in the tabling of SIs. Can the Minister advise on why this process has been so delayed in both Houses?

In the debate in another place, my right honourable friend and colleague Hilary Benn asked a number of questions and Minister Spencer committed to following up on a number of points in writing. Does the Minister have a copy of this correspondence, and does he wish to read any of its contents into the record? If it has not yet been sent, can participants in this debate be included in the correspondence?

Northern Irish consumers will soon enjoy access to a greater number of goods than was possible under the old protocol. The lifting of restrictions on seed potatoes and certain pre-packed meat products is especially welcome as that is important for farmers and producers on both sides of the Irish Sea. But it is important to note that restrictions remain on some items, including a number of shrubs and trees, many of which are still under review, as raised by the noble Lord, Lord Dodds. Can the Minister update us on the timing of the review and when we can expect additional trees and shrubs to be added to the green lane?

This instrument deals with enforcement powers, aiming to provide what paragraph 7.1 of the Explanatory Memorandum describes as

“the pragmatic and proportionate enforcement of GB public health, marketing and organics standards in NI for goods moved”

under the new schemes. His Majesty’s Government insist that there will be

“no impact on traders who abide by the terms and conditions and regulations that govern the scheme”.

Does the Minister really endorse that statement? There may be no enforcement impact, but there is a practical impact on businesses, which have to adjust to new procedures as well as covering new and different costs.

Also, as the Secondary Legislation Scrutiny Committee notes and as my noble friend Lady Ritchie raised, there has been no formal consultation on these measures, although there has been informal engagement with a range of stakeholders. Given the lack of formal consultation prior to the changes, can the Minister confirm whether there will be any post-implementation review? If so, when? How will that process work?

It is imperative for us all to make this work. While we support the negotiated settlement reached earlier this year and hope it will lead to a marked improvement in the experiences of Northern Ireland businesses and consumers, I sincerely hope that, moving forward, whether on the Windsor Framework or other issues, His Majesty’s Government will make a renewed effort to work with parties and communities in Northern Ireland, rather than imposing policy on them. I look forward to hearing from the Minister.

I thank noble Lords for their contributions to this debate. A number of questions have been asked; I will endeavour to answer them all. I will start by answering the point that the noble Baroness, Lady Anderson, just raised. We want power-sharing to restart and decisions about the lives of people and businesses in Northern Ireland to be taken by people in Northern Ireland. We really do want to see that happen as soon as possible, of course.

I will tackle the points more or less as they were raised, but I apologise if I mix them all up. The Windsor Framework achieves a long-standing UK government objective to restore the smooth flow of trade within the UK internal market by pursuing a green lane for the movement of goods from GB to Northern Ireland, supporting Northern Ireland’s place in the UK. It restores the smooth flow of trade within the UK internal market by removing the unnecessary burdens that have disrupted east-west trade. At the same time, the Windsor Framework recognises the need to protect the biosecurity of the island of Ireland, which, as the noble Baroness, Lady Ritchie, pointed out, has been treated as a single epidemiological unit for decades. It is the case that some checks, such as those on live animals, were required from GB to Northern Ireland prior to EU exit and before the old Northern Ireland protocol was implemented to protect the integrity of this single epidemiological unit. I say to the noble Lord, Lord Morrow, that this is about achieving unfettered access for Northern Ireland to Great Britain in trade terms, but this SI is about Great Britain to Northern Ireland.

A number of noble Lords asked about the practical consequences, so let us discuss what would happen if this SI were not taking place or if it were not approved by Parliament. The consequences would be the UK failing to comply with its legal duties and international obligations under the Windsor Framework. This statutory instrument forms part of the Defra Windsor Framework legislation that must be in force by 1 October 2023. It is therefore also required to establish, maintain and support the arrangements agreed under the Windsor Framework.

Specifically, this SI in Defra’s legislative package is required to enable the necessary enforcement of GB standards for goods moving under the Northern Ireland retail movement scheme when placed on the market in Northern Ireland. To protect public health and ensure food safety in Northern Ireland, authorities in Northern Ireland will be able to check and remove non-compliant goods from sale. That will ensure that consumers in Northern Ireland are protected by the same high standards as those in Great Britain. The risk of not proceeding would be insufficient public health and food safety protections for consumers in Northern Ireland, meaning that Northern Ireland consumers were less well protected than those elsewhere in the United Kingdom, severely undermining consumer confidence in the Northern Ireland food system. That risk is significant, and any non-legislative alternatives fall short of addressing it.

Is the Minister implying that until the moment when the checks will be done, Northern Ireland has been at grave risk for many decades as GB goods and agri-food produce flowed into Northern Ireland? Is he saying that for all those years we were at terrible risk?

No, of course not, but we want to have the same measures in place in Northern Ireland that people in Great Britain have. It will also ensure that for certain plants and other objects, which I have already discussed, moving from GB to Northern Ireland under the Northern Ireland plant health label scheme sufficient enforcement powers are available in GB and Northern Ireland. Without those enforcement powers, there would be a risk that biosecurity concerns related to non-compliance with the Northern Ireland plant health label scheme would be insufficiently addressed.

Consultation was raised by a number of noble Lords. Due to the timescales for the introduction of this statutory instrument, as conferred by the legal text of the Windsor Framework, to which the UK is a committed signatory, and the urgency of ensuring effective enforcement provisions are in place, it has not been possible to consult on this document. However, the arrangements agreed under the Windsor Framework are based on extensive engagement with industry and stakeholders in Northern Ireland over the past two years.

Defra continues to engage with businesses through regular forums, including the weekly NI-GB Food Supply Chain Forum, frequently attended by over 200 representatives of organisations across the supply chain, alongside ad hoc engagement. In addition, we have published detailed guidance regarding the Northern Ireland retail movement scheme online and are running a series of training sessions for businesses on how to move goods under the Windsor Framework arrangements. We responded to concerns that were raised through this process and we continue to have engagement with businesses, including sharing early versions of guidance with key retailers and consulting businesses wherever flexibilities regarding the scheme, or pragmatic solutions to challenges, are forthcoming. We continue to build our offer to businesses, including: running a fortnightly whole supply chain forum that is regularly attended; a weekly engagement call with retailers; weekly webinars; training sessions; guidance published on GOV.UK; the circulation and regular iteration of a new frequently asked questions document; a dedicated inbox traders can direct their questions to; and, as I say, more engagement besides.

The noble Baroness, Lady Ritchie, and a number of others talked about the impact assessment. A de minimis assessment has been completed for this statutory instrument, in line with standard practices and thresholds for the evaluation of impacts where these are expected to fall under £5 million. The overall impact of the Windsor Framework is positive, as it aims to ease the movement of goods between Great Britain and Northern Ireland, and this statutory instrument is a necessary part of implementing the framework. We have evaluated the specific impact of this SI. There are no significant costs to businesses, no significant impact on charities or voluntary bodies and no significant impact on the public sector.

The noble Lord, Lord Morrow, raised a further point on disapplication. Disapplication and derogations from EU law agreed under the Windsor Framework mean that the EU has to change its law, which of course it has to do under EU regulations. This is none the less implementing the bilateral agreement between the United Kingdom and the EU. The Windsor Framework takes effect through a range of mechanisms, including amendments to the text of the framework formally known as the Northern Ireland protocol, unilateral and joint declarations, and new UK and EU legislation. The EU has made new legislation to implement its obligations under the bilateral agreement between the United Kingdom and the EU.

The noble Baroness, Lady Ritchie, asked about the SPS veterinary agreement. We have always been clear that the UK Government could not accept a veterinary agreement that is based on dynamic alignment with EU rules in perpetuity, and the EU has only ever proposed a veterinary agreement that is based on dynamic alignment. Through the Windsor Framework, the UK Government have committed to the construction of SPS inspection facilities. The Secretary of State for my department took powers earlier this year to progress construction of SPS inspection facilities. Permanent facilities will be ready by 1 July 2025 and an additional, temporary product inspection facility at Belfast port has been constructed and will be ready to conduct additional sanitary and phytosanitary checks from 1 October 2023 as the new schemes go live. I know there has been consultation between DAERA and the EU: that was happening last week and I know there was some involvement in that.

The noble Lord, Lord Dodds, asked why this SI was not laid earlier and why additional scrutiny was not possible. He mentioned the parliamentary Recess. I just say that it was not possible to lay these regulations earlier. The Windsor Framework was agreed on 27 February. Since then, detailed policy development and further engagement with the EU and with devolved Administrations has been required to finalise the arrangements. As this SI implements these arrangements, it was not possible to lay this SI before finalising the details. Some provisions within the Windsor Framework (Retail Movement Scheme) Regulations were required to take effect on 1 September. This was to ensure that traders have sufficient time to register for the scheme ahead of it taking effect on 1 October.

A number of noble Lords mentioned seed potatoes. The Northern Ireland plant health label scheme means that previously banned seed potatoes will once again be able to move to Northern Ireland from other parts of the UK, while remaining prohibited in the Republic of Ireland. The movement of seed potatoes is permitted using a Northern Ireland plant health label, rather than a costly phytosanitary certificate. Great Britain seed potatoes can be moved between professional operators for commercial growing in Northern Ireland. Once seed potatoes have been planted and grown into potatoes for consumption, they can be sold, including into the EU. If the seed potatoes are grown to produce further seed potatoes that meet the requirements of Northern Ireland’s classification scheme, the harvested seed potatoes will be eligible for sale and marketing to consumers and businesses in Northern Ireland and the EU.

The Government are committed to ensuring that the Windsor Framework’s benefits are realised for the benefit of businesses and people in Northern Ireland and across the UK in a manner that meets our international obligations. Therefore, we continue to take forward work to implement the Windsor Framework and engage with Northern Ireland parties as part of those efforts.

A number of noble Lords mentioned trees. The EU’s risk assessment process for the movement of so-called high-risk trees will be expedited. Once approved, they will move from Great Britain to Northern Ireland, within the Northern Ireland plant health label. We prioritised removing bans on the movement of the plants and trees of greatest importance to industry: seed potatoes, which I have already mentioned, and the 11 most important GB-native and other commonly grown trees. Since the signing of the Windsor Framework, eight dossiers have been approved, with the ban on movement lifted on privet, hawthorn, apple, crab-apple and four species of maple. Another three dossiers, covering English oak, sessile oak and beech, are going through the process, with votes due imminently. We will continue to work with industry to make the case to lift the ban on other species, where there is a demand to do so. As dossiers are approved, they will be published on the plant health portal.

The noble Lord, Lord Browne, and others talked about whether this new arrangement was more burdensome than the STAMNI. The STAMNI was designed and implemented as a temporary measure to give retailers time to adapt to the requirements of the protocol. The Government have taken action to secure a sustainable, permanent exemption from these requirements for retailers. The Northern Ireland retail movement scheme provides a much broader scope than current arrangements in both the businesses that can benefit from these facilitations and the products eligible to move. For example, goods that meet GB public health, marketing and organics standards can move into Northern Ireland under the scheme. Goods that have been subject to additional certification, including certain chilled meat products such as sausages, will now be able to move under the single, per-consignment certificate.

Membership of the scheme is broader, too, covering hospitality, those providing food to the public sector and wholesalers supplying smaller retail outlets in Northern Ireland. Scheme membership can be easily updated, with businesses able to join and leave the scheme as their supply chains evolve.

These are important matters of detail. Can the Minister set out the trees and plants that are banned after the 11 dossiers have been fulfilled and all the rest of it? This is important because, as the Minister may be aware, the Secretary of State for Northern Ireland gave fairly fulsome assurances publicly on television, even when challenged by journalists, that all these matters would flow smoothly and there would be no inhibitions for plants, trees and so on coming to Northern Ireland. I would be grateful if the Minister set out in writing to me and other Members of the Committee what is allowed and what is banned; what may be sold through garden centres commercially and what may be sent to individual consumers.

On seed potatoes, I think the Minister said that professional companies could sell to other organisations. What is the position with selling directly to consumers so that people can buy these things at garden centres and so on? I know that he has set out some broad-brush things, but it is that sort of detail that really matters to people on the ground.

I entirely understand the need for detail; I want to get the detail right and, therefore, I will write to the noble Lord giving that absolute clarity.

The noble Baroness, Lady Bakewell, asked about fish. This SI simply ensures that the marketing and labelling standards for fish products in place in Great Britain are also in place and enforceable in Northern Ireland for products moving through the Northern Ireland retail scheme.

I think I have covered as many points raised by noble Lords as I can. I thank noble Lords for their contributions.

Motion agreed.

Committee adjourned at 7.26 pm.