From farm to fork? Brexit and the International Plant Protection Convention

Abstract

Import and export controls ensure plant pests and diseases harmful to food production, the plants across our landscape, and ecosystem services, are not moved during trade. The ‘International Plant Protection Convention’ (IPPC) provides the framework for applying preventive measures where they are technically justified, and stipulates controls are not to be used as arbitrary restrictions on international trade. This article examines the aims of the Brexit trade agreements and reviews their alignment with the IPPC and other World Trade Organisation agreements. It argues that unjustified controls have been applied under the guise of protective requirements (contributing to EU-GB trade disruption) and identifies a divergence at the point of regulatory implementation of these laws and treaties by official bodies on both sides. The article reviews the position of Northern Ireland, which, to avoid a ‘hard border’ on the island of Ireland, remains under the European Union (EU)'s plant health (phytosanitary) regime. Reflecting on legislative options available to bring the application of plant health regulations into alignment with the IPPC (such as dispute resolution), these options remain unused. However, the possibility of utilising ‘import authorisations’ would leave neither Great Britain nor EU Member States exposed to any greater environmental risk than that under the single market.

Introduction

The fruits and vegetables we eat, the plants and seeds from which they grow, the plants in our gardens and that make up our landscape are all economically, socially, and environmentally important. The total annual value of plants to the UK from agriculture, carbon sequestration, air filtration, biodiversity, mental health benefits, and others is estimated to be £15.7 billion per year. ¹ However, these plants are also all at some risk from pests and diseases. The risk of introducing harmful organisms to areas outside their endemic environment has increased as trade in commodities has grown, from salads available all year round, to exotic trees in gardens. To manage this risk, laws seek to prevent the introduction and spread of pests and diseases through controls and measures focused on assuring plant health. This paper argues that, despite the International Plant Protection Convention (IPPC) requiring plant health import and export measures to be technically justified and not to amount to an arbitrary restriction on international trade, the EU-GB movement of plants and produce is subjected to unjustified controls post-Brexit. Even though there is alignment of the EU-UK post-Brexit trading agreement with the IPPC, the current controls unnecessarily contribute to trade disruption. The paper demonstrates the point of divergence as being at regulatory implementation level, with controls being applied under the guise of protective requirements, but which were actually excessive. Thus, this article will demonstrate that political context and pressures post-Brexit contributed to the introduction of unnecessary regulatory controls.

Previous scholarship and debate have predominantly focused on the implications of Brexit for agricultural economy and policy. ² This research fills the gap in a limited scholarship on the regulatory plant health perspective; an aspect which has moved up the agenda post-Brexit as the impacts of controls to protect plant health and the wider environment have resulted in border delays and restrictions on plant and produce movements. A low level of awareness on plant health matters has previously been noted in the scholarship, ³ and while it had been hypothesised pre-Brexit which controls may be implemented, ⁴ this article examines the language of plant health agreements and considers the extent of alignment with the implementation of measures against pests and diseases moving in trade, and the impact on their protective aims.

While there were many problems that Brexit negotiations had to overcome, from migration to devolution, and the focus in academic scholarship in agri-food tended towards Common Agricultural Policy rather than plant health, the significance of this article is two-fold. It sheds a new light on how the political climate effectively changed the rules that existed at international level, whereby politicisation led to overregulation in pest control. In addition, the importance here goes beyond the intrinsic health of plants and extends to the resulting risk to food provision and therefore food security from the overregulation of EU-UK trade.

The article begins by outlining what constitutes ‘plant health’, and how the risk from harm due to international trade led to agreements including the IPPC and a World Trade Organisation (WTO) treaty. The second section explains the use of international standards and regional organisations for protecting plant health, which reflect and respond to the similar pest-host relationships in geographical areas, such as the EU-UK. From reviewing the plant health laws of the UK and EU, the article critically considers the alignment of the post-Brexit EU-UK trading relationship with international plant health agreements and the divergence in their application, including reference to the unique position of Northern Ireland and the political context of Brexit. The article concludes that unjustified controls have therefore been applied under the guise of protective requirements and to that end considers dispute resolution mechanisms and other IPPC-compliant approaches provided in the agreements, which could improve the flow of plant and food trade without harming plant health or the wider environment.

Why ‘plant health’?

While the word ‘plant’ may have initially brought to mind ornamental forms of shrubs as seen in gardens, the definition of a plant under the European Union (EU) and United Kingdom's (UK) ‘Regulation 2016/2031 on protective measures against pests of plants’ (PHR), is wide ranging. ‘Plants’ under Article 2 of the PHR are indeed defined as living plants, but the definition also includes, inter alia, seeds intended for planting, fruits and vegetables, bulbs (such as daffodils), propagating material such as rootstocks, cut flowers, branches, leaves, and pollen. ⁵ Pests and diseases of plants (‘pests’) also come in many forms, such as insects, fungi, viruses, and bacteria, which in their endemic environment have typically developed a stable relationship with their host plants. ⁶ Pests can also be controlled by breeding in resistance; through good plant husbandry; or the use of controls, such as chemicals. ⁷ However, introducing a pest to a new location that has sufficient host plants of limited resistance and little competition can result in an imbalance and lead to an outbreak, ⁸ such as with ‘Dutch elm disease’, where sufficient measures were not applied in time for the disease to be controlled, resulting in the death of most European and UK elm trees. ⁹

Plants therefore require protective measures against pests being introduced, not just due to their ornamental value but also because of their provision of food. Such measures can be applied both to what we directly consume and to the crops from which they are produced, as well as the crops that sustain livestock and those providing ecosystem services. ¹⁰ Introduced pests also have impacts beyond harming ornamental and food-producing plants, with reports that the residential property value in the USA has lost an estimated $830 million each year due to infestations of Emerald Ash Borers and Asian Longhorn Beetles. ¹¹ Moreover, to exemplify the scale of plant movements, in 2019 imports to the UK from the rest of the world totalled just over 17.5 million tonnes in plants, planting material, food, crops and forestry material, with over 4.5 million tonnes exported from the UK to the rest of the world; the majority of both these imports and exports being food and crops. ¹² The protection of plants from pests therefore has both economic and societal consequences.

While it is unlikely that most pests are moved intentionally (as plants infested with pests are not conducive to repeat business nor a good reputation), and in its usual environment a bacteria or insect may not be considered a pest at all (being balanced by natural factors), it remains that the action of moving the pest into a new area can lead to plant health problems. ¹³ A risk analysis on the introduction of host plants would consider pest–host–environment factors, but this is usually beyond what could be reasonably expected from a grower or exporter. ¹⁴ Therefore, with the market unable to effectively regulate the movement of pests, and international trade having increased the risk of introducing pests to new areas beyond their natural range and rate of spread, plant health laws have emerged to manage the risks associated with trade and their potential for leading to market failure, while enabling some plant movements to continue, along with their economic and food supply benefits.

International plant health

In 1952, the IPPC of the Food and Agriculture Organisation of the United Nations (FAO) came into force. ¹⁵ The IPPC is a multilateral treaty for international cooperation, the most recent update of which entered into force in 2005, ¹⁶ and which has 184 contracting parties. ¹⁷ According to the Convention, these parties have recognised the need for international cooperation to control and prevent the introduction of plant pests, and for this to be achieved through the application of harmonised phytosanitary measures towards quarantine, and regulated non-quarantine (RNQP), pests. The IPPC acknowledges that it is not pests, per se, that are the risk to plants, but those that upon entry are able to establish (and in some cases spread to the wider environment) and could cause economic damage, ¹⁸ with fresh produce considered a lower risk pathway for pests to establish than would be the case from plants that are to be planted. ¹⁹

The IPPC expects each contracting party to designate a national plant protection organisation (NPPO) as an official body responsible for implementing the Convention's obligations. ²⁰ National plant protection organisation are responsible for, inter alia: inspecting and issuing phytosanitary certificates when regulated items are being exported to other contracting parties; inspecting imported consignments of regulated articles; the surveillance of growing plants to report on occurrence, outbreak, controls and spread of pests; and conducting pest risk analyses. ²¹ Parties to the IPPC agree that ‘technically qualified and duly authorised’ public officers issue phytosanitary certificates in accordance with international standards, and model certificates are annexed to the Convention, which include the certifying statement to which consignments must conform, with additional declarations permissible where ‘technically justified’. ²²

Under the IPPC, any phytosanitary measures implemented are to be ‘limited to what is necessary to protect plant health’, ²³ and measures are to be ‘justified on the basis of conclusions reached by using an appropriate pest risk analysis or, where applicable, another comparable examination and evaluation of available scientific information’. ²⁴ Phytosanitary measures established by the contracting parties may be harmonised by international standards, ²⁵ which themselves are cooperatively developed by the contracting parties. ²⁶ The contracting parties should then consider these standards in their own phytosanitary activities. ²⁷ Known as ‘International Standards for Phytosanitary Measures’ (ISPMs), the first three ISPMs were approved at an FAO conference in 1995, ²⁸ and there are now 46 adopted ISPMs. ²⁹ International Standards for Phytosanitary Measures range from phytosanitary principles in ISPM 1; details on inspections for phytosanitary certification systems in ISPM 7; and phytosanitary certificate format and validity in ISPM 12. ³⁰ With the IPPC as the framework, standards add more detailed guidance on the application of phytosanitary measures, ³¹ providing the basis of a harmonised approach across NPPO.

In the same year as the first ISPMs were published, the WTO was established, along with its ‘Agreement on Application of Sanitary and Phytosanitary Measures’ (SPS), ³² which recognises the IPPC's role in international standards, guidelines, and recommendations. ³³ The SPS builds on the ‘General Agreement on Tariffs and Trade’ and acknowledges that while members should take measures to protect human and plant health, it desires that international trade measures are limited to the extent necessary; they are based on scientific evidence; are harmonised; and are based on international standards. ³⁴ In recognising that members may implement different measures to achieve their protective aims, the SPS concedes that such different measures may each achieve the required level of protection and so importing members should consider these options, which may result in bilateral or multilateral agreements on equivalence. ³⁵ The SPS trade agreement is therefore closely aligned with the protective role of the IPPC, not just by its reference to the IPPC specifically but with both recognising the balance required in permitting trade whilst also protecting plant and environmental health from injurious pests across the international community.

The complex means by which pests infect plants and proliferate, doing so across different countries and host plants, is considered together under the IPPC, which provides the basis for international cooperation against plant health threats. The IPPC provides the framework for the standardised development of phytosanitary measures, and for the organisations and roles of those responsible for their implementation. The regional interpretation of this will be considered in the next section. The primacy of the IPPC and its standards is recognised by the WTO, and the Convention and SPS both align in their recognition of the value of scientific information in applying measures. While providing protection to plants and the environment, controls are recognised as also resulting in a burden on trade, and these are therefore to be limited to what is necessary.

Regional plant health

The distribution of plant pests is impacted by aspects such as host availability and susceptibility, and climate, ³⁶ and the IPPC acknowledges such regional variations to the pests of concern will exist across contracting parties. ³⁷ The SPS also notes that when considering measures in relation to plant pest risks, the assessment should consider pest prevalence; potential establishment or spread of the pest; ecological and environmental conditions; potential loss of production or sales; and cost and effectiveness of eradication or controls. ³⁸ It is therefore more effective to consider the application of phytosanitary controls in geographical terms, rather than by political boundaries.

The IPPC provides for ‘regional plant protection organisations’ (RPPO), with regional standards to be established by them. ³⁹ With international trade being a route that can introduce pests to new areas, RPPO members should therefore have comparable phytosanitary situations. ⁴⁰ There are currently 10 of these intergovernmental RPPO, ⁴¹ with the EU and UK being members of the ‘European and Mediterranean Plant Protection Organisation’ (EPPO). ⁴² European and Mediterranean Plant Protection Organisation was formed mainly out of concern for the potato pest, Colorado beetle (Leptinotarsa decemlineata), ⁴³ and the potato has remained a focus in this region, being a major food crop and a host for many pests. ⁴⁴ In addition to implementing international standards, EPPO also produces regional standards as soft law recommendations to NPPO on phytosanitary measures, known as ‘PM standards’. ⁴⁵

While there may be similarities in pests and hosts among RPPO members, the pest and host profiles are not identical across members nor even across the area of a single member. For example, the fungus causing the Chestnut blight disease (Cryphonectria parasitica) is present in the EU, except in the Czech Republic and Sweden, ⁴⁶ and the bacteria causing the Fireblight disease (Erwinia amylovora) of many shrubs and trees is present only in parts of Italy and Spain. ⁴⁷ In recognising that areas of a member country could be designated free from specified pests, the ISPMs provide for pest free areas to be established, ⁴⁸ as well as pest free places of production and production sites; ⁴⁹ and places of low pest prevalence, ⁵⁰ therefore enabling the movement of plants between such pest-free areas.

The implementation and coordination of the Convention and measures at a regional level therefore provides both harmonisation across regions, while providing practical flexibility. This enables national sovereignty to be maintained in determining scientifically based measures against pests of economic concern, and thereby permitting trade where phytosanitary status can be assured, but without measures that are more than necessary. We will now turn to consider the EU approach more specifically.

Plant health in the EU

European Union-wide plant health requirements were provided under ‘Council Directive 77/93/EEC’, which, following the commencement of the single market in 1993, was substantially amended to provide for checks at EU borders and the free movement of plants within the Union. ⁵¹ In the years leading up to the Brexit vote, the EU's later Plant Health Directive 2000/29/EC ⁵² was in place, and implemented in the UK as, for example, The Plant Health (England) Order 2015. ⁵³ Domestically, the NPPO was, and still is, the Department for Environment, Food and Rural Affairs (Defra), ⁵⁴ although plant health matters are devolved to the individual nations. The Animal and Plant Health Agency is an Executive Agency of Defra, ⁵⁵ which operates under a Memorandum of Understanding with Defra and the Welsh Government whereby the Plant Health and Seeds Inspectorate provides the plant health inspection and certification functions across England and Wales. ⁵⁶ In Scotland, ‘Science and Advice for Scottish Agriculture’ (a division of the Scottish Government's Agriculture and Rural Economy directorate) is responsible for plant health, and in Northern Ireland it is the Department of Agriculture, Environment and Rural Affairs. ⁵⁷

The EU's 2000/29 Directive was recently repealed and replaced by EU regulations under the ‘Smarter Rules for Safer Foods’ (SRSF) approach, ⁵⁸ which came into force on 14 December 2019, and included the ‘Official Controls Regulation (EU) 2017/625’ (OCR), ⁵⁹ as well as the previously mentioned PHR. It is the OCR that designates competent authorities ⁶⁰ ; provides for official controls, ⁶¹ including measures for non-compliant consignments such as refusing entry and destruction; ⁶² and requires that specified plants under the PHR are subject to official controls at border control posts (BCP) upon entering the EU, ⁶³ including physical checks by an official plant health officer. ⁶⁴

While the OCR addresses sectors additional to plant health, such as animal health and welfare, the PHR focuses on protective measures for plants and aims to improve plant health through, for example: extending the plants to which plant health import controls apply; greater consistency of plant passport format (used for some internal movements of specified plants); and registering ‘professional operators’. ⁶⁵ Further regulations, such as ‘The Official Controls (Plant Health and Genetically Modified Organisms) (England) Regulations’, supplement the PHR and OCR to enable official controls and enforcement, including powers of entry; serving notices; and penalties. ⁶⁶ Implementing regulations then provide detail, an important piece of legislation being that of the plant health conditions, ‘Commission Implementing Regulation (EU) 2019/2072’, ⁶⁷ which, inter alia, lists the quarantine pests ⁶⁸ ; states tolerance levels for RNQP ⁶⁹ ; lists plants from third countries prohibited from entering the EU ⁷⁰ ; and states other special import requirements, such as the official statements to appear on the phytosanitary certificate. ⁷¹ From what was a delegated approach to plant health controls has now developed into direct regulation, in a bid to strengthen and harmonise implementation across the EU.

From the PHR text we can see its close development with the international requirements stemming from the IPPC. For example, as the IPPC recognises that plant pests tend to have geographical ranges, the PHR also acknowledges that ‘bio-geographical factors’ are important when aiming to avoid the introduction of pests that are not already present in an area, and therefore, while cities such as Ceuta are part of the EU, this and other specified areas are actually considered ‘third countries’ in plant health terms. ⁷² The measures implemented under the PHR are expected to be risk-based to prevent pest introductions from third countries, and it recognises the scientific opinions and studies from the IPPC and EPPO. ⁷³ Phytosanitary certificates required for consignments are also expected to comply with the IPPC requirements, ⁷⁴ and the PHR directly notes it ‘takes into account the IPPC, the Agreement on the Application of Sanitary and Phytosanitary Measures and the guidelines set out under them’. ⁷⁵

The plant health legislation of the EU has therefore gone through a recent period of change, both in terms of form (from a relatively linear Directive to multiple Regulations) and in substance with, for example, more plants coming under controls. The legislation has retained links with the IPPC and its implementation continued to acknowledge variations and similarities in plant health concerns across the EU through, for example, designating pest free areas and the extent to which the ‘third country’ term applied. With the EU and UK committed to implementing SRSF, while it could be considered as not an ideal time for further change due to Brexit, ⁷⁶ alignment would ensure the UK was (at least initially) implementing requirements equivalent to the EU. As we will then see, from the international level down to EU regulations, plant health controls in place were aligned and accepted; however, it was the change in political climate that resulted in overregulation of the movement of plants and produce.

Plant health and Brexit

Following the UK's ‘Brexit’ referendum to leave the EU on 23 June 2016 and at the end of the transition period, as of 1 January 2021, the UK was no longer a member of the EU's single market and customs union. ⁷⁷ For many, Brexit symbolised having more control of UK democracy, borders, laws, and choices, although in practice the separation involved retaining some EU laws, along with a new trade agreement with the bloc. ⁷⁸ The approach towards plant health also changed domestically, through the UK's ‘taking back control’ of both policy formulation and legislation. This was a time of great change for the regulation of plant health particularly, as concurrently the 2000/29 Directive was being replaced by SRSF, so a new legal regime for plant health was being implemented by both the EU and the UK, while a new trading relationship between the two was also being negotiated.

For GB, the EU regulations and implementing regulations were retained through the Withdrawal Act, ⁷⁹ with operability changes and amendments later made to the GB versions through statutory instruments, which amended the OCR and the PHC. ⁸⁰ This mainly consisted of substituting and redefining terms, such as ‘the Member States’ and ‘the Union’ as ‘Great Britain’, and ‘third country’ to mean ‘any country or territory outside the British Isles’. With the EU likewise removing reference to the UK as being part of the Union in their plant health legislation, this instead defined each party as third countries to the other, meaning plant consignments would be required to move with phytosanitary certificates (as foreseen in the scholarship ahead of Brexit), ⁸¹ but therefore now requiring inspections to be carried out by officials, and thereby adding steps and greater regulatory involvement to UK-EU movement procedures. But although foreseen, why was increased regulatory involvement for plant health not questioned in light of the IPPC framework?

The ‘Political Declaration setting out the framework for the future relationship between the EU and the United Kingdom’ states that avoiding unnecessary barriers to trade is to be promoted, and reference is made to phytosanitary measures and WTO agreements. ⁸² The declaration notes that regionalisation based on epidemiological information should be recognised for phytosanitary measures. ⁸³ From negotiations, the ‘UK/EU and EAEC: Trade and Cooperation Agreement’ (TCA) was agreed, an objective of which is to ensure phytosanitary measures do not create an unnecessary barrier to trade. ⁸⁴ The TCA also refers back to the rights and obligations of the SPS. ⁸⁵ The Political Declaration and TCA therefore appear to be aligned with the SPS in recognising phytosanitary measures should not create barriers to trade (which itself aligns with the IPPC). Their aims all seemingly point in the same direction, with the Declaration's acknowledgement of regionalisation seemingly a nod to the regional EPPO ‘PM Standards’, to which the UK and EU are both party.

In taking a closer look at the language of these agreements, we see the similarity in wording across the IPPC, SPS, and TCA in relation to plant health controls and barriers to trade, highlighting their aligned approach. Article 26 of the ‘Vienna Convention on the Law of Treaties’ espouses the principle of pacta sunt servanda: ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith’. ⁸⁶ With treaties considered to make parties responsible for the obligations therein (the law of responsibility), although not law themselves, they do bind parties. ⁸⁷ This binding nature means the agreements become credible, predictable, and accountable, although the language of treaties and agreements is also important when it comes to their implementation: it is understood that language such as ‘shall’ typically denotes an obligation and specifying language such as ‘each party’ addresses this as an individual obligation. ⁸⁸ For measures not to be used as disguised restrictions or more than necessary, the IPPC's preamble and Articles only states this ‘should’ not be the case. However, the SPS then adds weight to this disguised restriction by placing it in the main body of text (Article 2) as a ‘shall’ obligation. For measures that are necessary and technically justified, the IPPC's Article VII point 2 refers specifically to ‘each contracting party’ and what they ‘shall’ do, which the SPS aligns with and refers to scientific principles and evidence. In not using measures to create barriers or delays to trade where similar plant health conditions exist and for measures to be proportionate to risk, the TCA aligns with both the IPPC and SPS and includes this as a ‘shall’ obligation.

The IPPC does recognise that contracting parties have sovereignty over the phytosanitary measures they choose to adopt, which allows parties to refuse entry, prohibit imports, and for phytosanitary measures to be added or changed if new information becomes available. ⁸⁹ The SPS accepts measures may be implemented that produce a higher level of protection. ⁹⁰ However, these binding forms each restrict the application of this sovereignty, in that the IPPC recognises that to ‘minimise interference with international trade’, measures shall not be implemented unless ‘necessary by phytosanitary considerations and are technically justified’, so as to be as unrestrictive as possible to trade. ⁹¹ Similarly, in Article 2 of the SPS and extended by Article 3, measures must be justified scientifically or through a risk assessment, or where the scientific information is insufficient. ⁹²

When it comes to the further detail provided in the TCA, Article 75 confirms that if there is a phytosanitary concern, import conditions shall be those measures that protect the importing party from the pest. ⁹³ This therefore provides the sequence of events, in that measures should only be applied after a phytosanitary concern has been identified. Article 75(2) states that exported plants should meet the phytosanitary requirements of the importing party, ⁹⁴ so if a party is categorised as a third country it would be expected that they should meet the requirements for third countries. However, Article 73(1) again balances this by stating phytosanitary measures may be applied to achieve protection based on risk assessments, and not to create unjustified barriers to trade. ⁹⁵ The TCA goes on to state that measures should not be applied as arbitrary or unjustifiable discrimination if identical or similar phytosanitary conditions exist, ⁹⁶ so it is therefore not sufficient to designate a party as a third country and require those relevant obligations are met; the measures must be justified.

In applying this to EU-GB plant movements, that the parties have the intention of applying third country requirements to each other does not excuse their implementation if they are not justified in the first place, due to similar phytosanitary conditions. Under Article 75(9) of the TCA, any change in the level of protection shall also include a transition period from publication of the change to application. ⁹⁷ Either party could claim that those third country requirements were already set in legislation and it was the membership of the third country list that changed, however coming back to whether measures are justified, the UK protection level in relation to the EU when part of the Union was equivalent (as specified plants were only required to move under a plant passport) and therefore it was the move to third country status that was the change, not a change to the level of protection that was at risk. It also does not seem that the TCA itself would be the means of that publication of change, as the EU's list of regulated pests was drafted when GB was part of that ‘territory’ pre-Brexit, ⁹⁸ again limiting the justification for any measures. It is not clear that a list of regulated pests specific to EU-UK trade was then produced, as both hard and soft law have GB represented as a third country. That, under Article 75(13) of the TCA, parties have a right to carry out import checks to ensure compliance does not preclude that those measures are first to be justified and point 14 again requires those checks to be based on the phytosanitary risk of the import and with minimum effect on trade. ⁹⁹

But despite the IPPC, SPS, and TCA's language, news outlets reported delays at borders and HMRC data shows the value of exports of fruit and vegetables from GB to the EU was down 44% in the first 15 months after Brexit. ¹⁰⁰ This was attributed to the introduced export requirements causing delays and thereby making movements of perishable goods unprofitable, ¹⁰¹ and businesses reducing trade with the EU. ¹⁰² Therefore, regardless of the aims of the Convention and the agreements, a divergence appears at the regulatory implementation of laws and treaties by official bodies. In considering the interpretation of the Convention, both parties went too far in seeking phytosanitary assurance of the EU-UK plant trade, and were thereby unnecessarily contributing to trade disruption.

Having left the EU, GB could no longer move plants to the EU using the EU's plant passport scheme for movement within the Union. It was expected that by retaining EU law through the EU (Withdrawal) Act 2018, this would initially provide continuity to the trading arrangement. ¹⁰³ In plant health terms, the opposite has been the case. In applying the PHC, restrictive measures were implemented to varying degrees by both parties. In some cases, particularly the EU, this was implemented as was typical for movements from unspecified third countries: the requirement for phytosanitary certificates for plants for planting, other specified plants such as cut flowers and fruits, and seeds, ¹⁰⁴ and with checks carried out at the border.

The EU applied their existing legislation to GB as a third country in full, however, in GB attempting to ease the resulting difficulties of trade, trade rules were then complicated for industry by GB diverging only some of their import requirements of the PHC in acknowledgment of previous working arrangements of when a Member State. For example, the ‘high risk plant’ requirement of risk assessment by the European Food Safety Authority before entry to the EU acts as a prohibition of a wide range of plants for planting from GB, such as birch and beech trees, and fruit trees such as apple and plum. ¹⁰⁵ While still regulated and notifiable, GB stopped short of barring these as imports from the EU. ¹⁰⁶ Looking closer at Article 42's designation of high-risk plants in the PHR, these are plants which, following a preliminary assessment, are considered to present an unacceptable level of pest risk, and therefore shall not be introduced from the third country concerned. ¹⁰⁷ As per Article 42(3) of the PHR, ‘Commission Implementing Regulation 2018/2019’ established the list of high-risk plants, which applied from 14 December 2019. ¹⁰⁸ Having therefore been a member of the EU when both these plant health regulations entered into force, the protections afforded by the conditions and restrictions can be considered as being relevant to GB as well, rather than being due to a risk posed to the EU by plants from GB. Indeed, while a member of the EU, GB itself had designated protected zones under Annex IX of the PHC for three of these high-risk hosts (Crataegus (such as hawthorn), Malus (apple) and Sorbus (such as mountain ash and rowan)), ¹⁰⁹ indicating instead there was a risk to GB coming from other Member States of the EU, but that the PHC enabled this risk to be managed without applying restrictions to movement from all Member States.

Having been officially inspected at export and a phytosanitary certificate issued, inspection on controlled commodities could also be carried out again upon import. GB has initially delayed implementing full import controls on the EU as a third country, and in the meantime applies Article 53 of the OCR by conducting physical and identity checks on consignments away from BCPs, with a Place of Destination scheme providing flexibility for trade while increased BCP infrastructure is developed. ¹¹⁰ The GB phased import regime means inspections (and therefore import delays) are only currently undertaken for high priority plants and products (e.g., all plants for planting and agricultural machinery). ¹¹¹ GB requires prenotification of some regulated fruit and vegetable produce, cut flowers, and seeds, but not a phytosanitary certificate and therefore no official inspection is required by EU inspectors before export. ¹¹² With the EU having noted in infringement procedures that the UK's import regime is not fully operational, ¹¹³ this would suggest the EU themselves are indeed conducting full checks and rigorously applying the third country requirements to GB, and guidance for exporters is that, for example, apple fruit is both regulated and notifiable when moving from GB to the EU and so full checks should be expected. ¹¹⁴ For such movements to the EU, GB has sought to limit delays, albeit by still applying EU-required phytosanitary measures, through the application of the Plant Health Exports Audited Trader Scheme (PHEATS). Here, authorised persons at eligible fresh fruit, vegetable, and cut flower businesses inspect their own consignments prior to export in accordance with their Biosecurity Control Management Plan, with phytosanitary certificates issued and audits carried out by official inspectors. ¹¹⁵ These approaches have not apparently been reflected by the EU, creating an unlevel playing field, which was not unexpected from Brexit.

It therefore seems through the application of even varying phytosanitary measures on both sides, that implementation has diverged from intentions. GB's amendments to their legislation appears to acknowledge the EU was not a typical third country and is therefore now better aligned with the IPPC, SPS, and TCA in terms of justified phytosanitary measures, and more so than the EU's strict interpretation of GB as a third country. Likewise, although the OCR, for example, permits movement of consignments inland and the frequency of physical checks at import to be determined according to risk, ¹¹⁶ this may help smooth the flow of trade. However, this does not address the root issue of whether phytosanitary measures are required in the first place. The end of the transition period was, after all, not a watershed moment where the true pest status of either party suddenly changed.

The Island of Ireland

Unlike the GB-EU regime, the regime that applies to NI is more aligned with the spirit and intentions of the Convention. The ‘Protocol on Ireland/Northern Ireland’ (NIP) within the Withdrawal Agreement entered into force on 1 February 2020, with all its provisions applying since 1 January 2021. ¹¹⁷ Under the NIP, it is the EU's sanitary and phytosanitary rules that apply in Northern Ireland, ¹¹⁸ however, movements of plants between NI and GB were considered third country consignments, with the relevant requirements applying as per movements between the EU and GB, such as phytosanitary certificates for the movement of regulated commodities. ¹¹⁹ An important factor though was to avoid a hard border on the island of Ireland to protect the 1998 ‘Good Friday (Belfast) Agreement’. ¹²⁰ The NIP does recognise the importance of the island's peace process, and asserts the shared aim of avoiding controls at points of entry into Northern Ireland. ¹²¹

The NIP preamble states there should be ‘unfettered market access’ for imports from NI to GB, ¹²² and that plants as ‘Qualifying Northern Ireland Goods’ could continue to move to GB under an EU Plant Passport. ¹²³ For plant movements from GB to NI, in recognising trade needs (especially supermarket trade), export schemes were devised: the previously mentioned PHEATS scheme also applied for movements to Northern Ireland; and, for a short window before the end of the transition period, supermarkets and their suppliers could apply to join the Authorised Trader Scheme ‘Scheme for (Temporary) Authorised Movements to Northern Ireland’, to ensure food supplies to NI continued after the end of the transition period. ¹²⁴ This scheme enabled the movement of food that was destined for sale solely to end consumers in NI, without requiring official inspection and certification if they were labelled by the business with ‘These products from the United Kingdom may not be marketed outside NI’. ¹²⁵ Recognising that all businesses and services should benefit from such a scheme, at the time of writing a future UK-EU Joint Committee meeting is anticipated to address this, following a letter from the Chancellor of the Duchy of Lancaster to the European Commission calling for its adaptation. ¹²⁶ Additionally, a ‘Movement Assistance Scheme’ (MAS) covered the costs of regulatory activity (inspections and certificates) for consignments moving to NI from GB. ¹²⁷

Also at the time of writing, the EU and UK have reached an agreement in principle to amend the NIP via the ‘Windsor Framework’, which provides for a scheme involving red and green lanes depending on whether goods from GB are destined for NI, or if they will move outside NI. ¹²⁸ Plants moving from GB to NI will no longer need phytosanitary certification and instead can move using the ‘UK Plant Passport’ scheme, and the restrictions preventing the movements of seed potatoes and some plants designated as ‘high risk’ will also be lifted to enable movements to NI. ¹²⁹ Although there are approval and legislative steps before the changes in the framework are enacted, this represents a move back towards the IPPC's provisions in not having unjustified phytosanitary measures.

From a plant health perspective, NIP implementation and particularly the Windsor Framework therefore better aligns with the IPPC and the TCA in its intention to avoid controls and calls into question the need for EU-GB controls as NI has a similar phytosanitary status to the rest of GB. The main driver, however, for taking this geographical approach would seem not to be because of plant health status, but due to concerns of the risk of a return to ‘the Troubles’. A rather large elephant in the room is the restriction of NI's plant health sovereignty, in having to implement the import regime of the EU, but over which it has no say, being as it is part of the UK.

(Un)Justified controls

With official bodies acting contrary to the agreements by applying rigorous third party and phytosanitary measures, rather than in the spirit of the Political Declaration and TCA, the implementation of Brexit is therefore not acting in alignment with the IPPC, SPS, and TCA. This being the case, it seems possible that a dispute would have been raised by either party.

Treaty enforcement and compliance is typically left to individual states, ¹³⁰ and this is indeed the case with plant health. There is a dispute resolution mechanism for disagreements on interpretation and application of the IPPC, although this mechanism is seldom used. ¹³¹ While the Brexit parties are still negotiating, it is not apparent nor expected that this escalated route would have been taken. Article 2 of the SPS sets out that Members who believe phytosanitary measures constrain their exports may request an explanation of the reasons for these measures from the relevant Member. ¹³² While no dispute at this forum is apparent yet either, the WTO has been used for plant health disputes in the past. ¹³³ That a dispute has not been raised is not necessarily a reflection on IPPC or WTO dispute mechanisms, as with negotiations still ongoing it is likely that such a trade dispute would not be escalated to this level. As it stands, with both parties implementing plant health import controls against the other to differing extents, it is difficult to see how one could raise a dispute against the other without first returning to requirements more akin to a pre-Brexit arrangement. Although currently the UK is not conducting full import checks, the intention was for this to be phased in; ¹³⁴ another clear indication that the expectation is of more border checks rather than fewer.

At the TCA level, this agreement establishes a ‘Trade Specialised Committee on Sanitary and Phytosanitary Measures’, which shall clarify and address phytosanitary requirement issues and discuss concerns over import conditions. ¹³⁵ As no formal plant health disputes appear to have been raised at this committee either (the focus instead seeming to be on animals), ¹³⁶ it can be assumed that Member States and the UK are currently content with the status quo. It may even be the case that the intentions of the EU-UK are playing out as they desire. However, this should not detract from treaty obligations. Treaties and agreements without direct enforcement are considered a reflection of a political narrative, an intention of future behaviour, which while binding in word is not in action. The involvement of the UK and EU Member States in EPPO indicates an intention, but Brexit is another political narrative, and one that seemingly eclipses international plant health law.

Dispute resolution mechanisms rely on one party wanting a change, but with negotiations continuing, albeit being slow and difficult, ¹³⁷ it is not until such avenues are exhausted then would escalation to more formal dispute resolution be expected. While the language of the agreements is aligned, it is clear that application has diverged, which demonstrates the gap between high-level accords and the implementation of legislation under the pressure of politics.

There are possible explanations for why the import and export requirements are applied so stringently. While the UK appeared more amenable to easing trade through amendments to third country status in some areas, it could be considered that the possibility of other Member States leaving the EU meant such amendments were not reciprocated for GB. Despite agreements not intending for there to be barriers to trade through plant health measures, through the apparent disregard for the similar EU-UK phytosanitary conditions and the different implementation of phytosanitary controls it could be inferred that plant health was another means within wider Brexit actions to deter other exit-favouring countries. ¹³⁸ The ‘Windsor Framework Command Paper’ itself acknowledges that the certification and prohibition of some plants ‘did not reflect any real-world biosecurity risk’. ¹³⁹

From a plant health and environmental perspective, the implemented approach could be considered a benefit. Individual consignments are being officially inspected (to different degrees) at import and export, which was more than occurred as a member of the single market. This has, though, created a barrier to trade and is without scientific basis, as well as being an additional cost and delay for (some) businesses, with the UK Government writing off the inspection fees for others via the MAS scheme. It is, though, not the case that plant health, or the wider environment, is any better protected due to GB now being outside the EU. The UK can and did take sovereign plant health decisions even as part of the EU by implementing emergency measures to protect against specific threats ahead of EU-wide action, and even from threats from other Member States such as those against the Chalara fraxinea fungal disease of ash trees. ¹⁴⁰ This exemplifies that while a region and even bloc may have similar plant health concerns, specific controls can be implemented where these are not identical without a collapse of trading even within a single market concept, just as the scope of the PHR in placing EU territories such as Ceuta and Melilla as plant health third countries is not considered to undermine the EU itself. ¹⁴¹ Concerns of the divergence or even weakening of plant health controls in any new relationship are therefore tenuous, ¹⁴² while appropriately applied phytosanitary measures should free regulators to manage greater risks. The EU-UK approach may even impact the ability to provide wider environment protection, having re-directed regulatory resource.

The provisions for the ‘Trade Specialised Committee on Sanitary and Phytosanitary Measures’ in the TCA suggest equivalence rather than applied phytosanitary measures was intended to be the starting point for the post-Brexit relationship, while acknowledging this may later diverge. Under Article 87(d), measures do not preclude border checks, but ‘appropriate action’ is to be considered, including in terms of frequency of checks. Having this Committee is a specialised forum that is not available to other third countries, from which can be reasoned that EU-GB were not intended to be considered standard third countries in relation to each other. The OCR also allows for implementing acts to recognise a third country's measures as equivalent, having examined data and information, and controls undertaken by EC experts in the third country are satisfactory. ¹⁴³ The PHR's preamble likewise accepts that derogations for import requirements should be allowed, should measures within a third country be considered equivalent to those for movements within the EU. ¹⁴⁴ Such formal agreement is likely to take time, and so the provision in the TCA appears to more immediately accept the carryover of the pre-Brexit plant health arrangement.

As illustrated by the many ISPMs, it is a narrow view of phytosanitary measures to require import and export checks and phytosanitary certificates. A route possibly envisioned by the TCA refers to ‘import authorisations’, ¹⁴⁵ where the exporting party demonstrates that authorisation requirements to allow movements are fulfilled, and these authorisations can extend to the entire territory. ¹⁴⁶ International Standards for Phytosanitary Measure 20's ‘Guidelines for a phytosanitary import regulatory system’ also includes import authorisations. ¹⁴⁷ Such an option appears to provide flexibility for commodities where no RNQP are associated or special requirements exist in the legislation, as is the case for many fruits and vegetables. While general import authorisations are mentioned separately from the requirements for export inspections under ISPM 20, ¹⁴⁸ the frequency of compliance checks upon import (documentary checks, verification of consignment integrity and for phytosanitary inspection and testing) ¹⁴⁹ can be determined on a risk basis. ¹⁵⁰ While ISPMs are not binding, under this authorisation option in the TCA, it appears possible to limit the barriers to trade and regulatory bodies, and through bilateral agreement or arrangements these checks may even be carried out as part of a pre-clearance programme. ¹⁵¹ Such approaches are not new for the UK, which participates in such a scheme for plants (bulbs such as daffodils) moving to the USA. ¹⁵² An approach based on authorisations rather than individual import and export inspections has the potential to manage the plant health risk to the levels of an EU Member State, while foreseeing that some import controls may and can diverge. This would be practical at a time when the pest risk status has not changed since the transition period started, and both countries continue to operate equivalent internal movement plant passport schemes.

Rather than considering the outcomes intended by the agreements, implementation so far has instead relied on prescriptive requirements. Despite this, less trade-restrictive approaches remain possible through ‘import authorisations’ under the TCA. This option aligns with the regulation of pests through application of phytosanitary measures based on demonstrating appropriate control measures ahead of import; a possibility as pest-geography aspects did not change when the transition period ended, and no new science appears to have come to light thereafter. There was, though, a political redrawing of the boundaries, and while the UK's swift response in altering their legislation to allow movements from the EU (which was not reciprocated) may politically serve to demonstrate ‘taking back control’, the plant health and wider environment protection basis for the initial requirements is lacking. As trade is considered reciprocal, it is typically of benefit that it be allowed to continue, albeit with risk managed. ¹⁵³ Much discussion around Brexit refers to the levels of UK-EU trade, and it is therefore difficult to envision progress not being made in the future, perhaps akin to the Windsor Framework proposal, or, as this chapter has highlighted, by utilising other options within the TCA such as import authorisations.

Conclusion

The plant health legal framework was formed to protect food supplies, economic activity, and the environment from harmful pests and diseases. Applied scientific knowledge ensured effective phytosanitary measures could be directed to prevent the introduction and spread of pests into new environments through domestic, regional, and international trade. The IPPC provided the framework for international cooperation and the standardised development of phytosanitary measures, with measures expected to be justifiable and not employed as a barrier to trade. These aims are recognised and endorsed in the WTO's SPS Agreement and the TCA following Brexit negotiations. As pest–host relationships vary regionally across the world, the Convention recognised the need for RPPO and harmonised measures at this level. With the EU and UK both being members of EPPO, and the UK implementing the EU plant health regime as a Member State, it can be taken that their phytosanitary status was similar, and their working relationship was sufficient for trade, plant health, and wider environment protection. Post-Brexit, produce could no longer move freely between GB and the EU, and plant passports issued by either party were no longer recognised by the other. In considering each other as third countries and applying their plant health regulations accordingly, delays resulted at borders due to the need for inspections and phytosanitary certificates that continue to this day, despite there being no evidence of change to the phytosanitary status of either party. Through examining the language of the agreements governing plant health and Brexit, this paper has demonstrated the point of divergence being at regulatory implementation. While mechanisms are available through the IPPC and SPS to resolve disputes arising due to phytosanitary measures, perhaps under the pressure of politics, trade remains restricted under the guise of phytosanitary protection, despite there being no greater plant health risk to trade as the transition period ended.

The media appears to dismiss EU-UK trade problems as being ‘due to Brexit’, ¹⁵⁴ but this paper has considered whether controls on the movement of plants really should be applied as a result of the UK's withdrawal from the political and economic bloc of the EU. In the case of plant health agreements, barriers to trade should not have arisen due to plant movements, but action has been to the contrary. In considering the extent to which Brexit is aligned with the IPPC, while in black text it is the affirmative, the actuality looks different. Plant health laws developed due to the historic imbalance in the knowledge of pest presence so that trade, plant health, and the environment are protected, has been applied to the opposite effect. Yoe et al. ¹⁵⁵ argue that the SPS ‘revolutionised’ plant health risk management due to its application of scientific justification, however, the application here has reversed this and has so far been without challenge. Although the approach taken by GB in relation to import controls for EU goods and movements to NI may seem less officious and can be viewed as more in keeping with the IPPC, SPS, and TCA by allowing the movement of trade where there is no scientific need for controls, these are all means to reduce friction brought about from baseless phytosanitary measures. While the Windsor Framework takes steps to smooth trade, its focus is on food rather than the movement of other plants and is limited to GB trade with Northern Ireland and not the EU; trade with the latter remains disrupted and out of alignment with the IPPC, seemingly due to political pressures and despite the intentions of the trading agreements themselves. Having the two regimes across GB and NI for trade with NI was a political compromise to deal with political issues that arose, rather than consideration of how the laws being implemented originated, and questioning whether they were truly needed to have effective phytosanitary protection.

This conclusion is not suggesting that the removal of EU-GB plant health controls would result in fluid movements across the borders, as customs requirements pertain, but the implementation of the PHC acted as an additional delay and cost to trade and government, yet afforded no greater protection. This research highlights how reference could be made to the IPPC, SPS, and TCA to remove trade barriers and assist stakeholders in exerting pressure on governments in the face of unjustified plant health controls. Having highlighted original intentions and alternative options (such as import authorisations and dispute resolution mechanisms), further socio legal research could address why implementation took such a different course; why the role of parties in promoting cooperation and harmonisation under the IPPC appears to have failed; and to what extent the redirection of regulatory resources for EU-GB import and export responsibilities have exposed the wider environment to greater risk.