Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
My Lords, good afternoon. I remind the Committee that, in the event of a Division in the Chamber, the Committee will adjourn for 10 minutes from the sound of the Division Bell.
Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019
(5 years, 9 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Gardiner of Kimble
That the Grand Committee do consider the Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019
Relevant document: 17th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee A)
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Gardiner of Kimble) (Con)
My Lords, given the interconnections of the three instruments, I hope it will be helpful to your Lordships if I speak to all three together. The instruments before your Lordships make technical corrections to maintain the effectiveness and continuity of EU-derived legislation that would otherwise be left partially inoperable on exit.
The conservation of habitats and species regulations extend in part to the UK and to England and Wales only. The Conservation (Natural Habitats etc.) (Amendment) (Northern Ireland) (EU Exit) Regulations 2019 and the Environment (Miscellaneous Amendments) (Northern Ireland) (EU Exit) Regulations 2019 relate only to Northern Ireland.
The UK Government remain committed to the restoration of devolved government in Northern Ireland. However, in the absence of a Northern Ireland Executive, UK government Ministers have decided that, in the interest of legal clarity in Northern Ireland, the Government should take through the necessary statutory legislation at Westminster for Northern Ireland, in close consultation with the relevant Northern Ireland department. In pursuing this course, we have worked closely with the Northern Ireland Department of Agriculture, Environment and Rural Affairs—DAERA —and I am most grateful for the support given by DAERA officials.
The technical changes made by the Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019 enable the UK to continue to meet its international commitments, such as the Berne and Bonn conventions, and ensure that regulations transposing the EU habitats and wild birds directives are operable. Principally, it makes amendments to three existing instruments that transpose the habitats and wild birds directives so that they are operable: the Conservation of Habitats and Species Regulations 2017, the Conservation of Offshore Marine Habitats and Species Regulations 2017, and the Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001. The instrument also amends Section 27 of the Wildlife and Countryside Act 1981 to ensure that existing protections continue.
The Conservation of Habitats and Species Regulations 2017 and the Conservation of Offshore Marine Habitats and Species Regulations 2017 are the principal pieces of secondary legislation that transpose the terrestrial and offshore marine aspects of the EU habitats directive and certain elements of the EU wild birds directive—commonly referred to as the nature directives—into domestic law. The Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001 apply to specific activities only in relation to the directives. The nature directives lay down the rules for the protection and management of habitats, and the protection and exploitation of species. These three regulations fulfil the objectives of the nature directives in the UK’s terrestrial areas and inland waters, and its inshore and offshore marine areas, by ensuring that activities are carried out in a manner consistent with the directives.
The territorial extent of this instrument is the United Kingdom, with exceptions. Part 2 extends to England and Wales. Part 3 extends to England and Wales, but also extends in certain circumstances to certain specified reserved matters in Scotland and Northern Ireland. We have worked with the devolved Administrations on this instrument, and where it relates to devolved matters, they have given consent. The Scottish Government are making similar changes by means of their own secondary legislation within their areas of legislative competence.
As part of national operability, this instrument implements a number of changes, one of which is a national site network. Sites designated under the nature directives have contributed to the EU’s Natura 2000 network. These sites will now form a national site network and will continue to help fulfil the UK’s international biodiversity obligations, for example under the Berne convention, where they will continue to form the UK’s contribution to that convention’s Emerald network. New Regulations 16A and 18A set out ministerial responsibility to manage, and where necessary adapt, the national site network in co-operation with Ministers in the devolved Administrations. That obligation will be exercised with the support and expertise of the statutory nature conservation bodies. The network’s management objectives look to secure compliance with the overarching aims of the habitats and the wild birds directives.
I turn to the issue of reporting. To ensure transparency and accountability, Ministers will produce reports on how the regulations are being implemented within six years from the date of exit and every six years thereafter. The Secretary of State will compile these reports into a combined UK report within two years of that. This is in line with existing reporting requirements, and the reports will be publicly available. The requirement for biennial reporting on exemptions or derogations from the strict protections for habitats and species is maintained.
Let me turn to the designation of special areas of conservation. Functions currently undertaken by the European Commission in designating any future SACs will be transferred to Ministers. Ministers will assess new SAC proposals acting on specialist advice from the appropriate nature conservation body. In Defra’s case that will be Natural England, along with the Joint Nature Conservation Committee, using existing criteria.
I turn now to imperative reasons of overriding public interest. This instrument transfers the role of the European Commission to Ministers in being able to offer an opinion to local decision-makers such as local planning authorities. The opinion concerns whether imperative reasons of overriding public interest may apply in the granting of a planning application for a proposal which may adversely affect priority habitats, but where there is no feasible alternative. In doing so, Ministers will need to take account of the national interest and consult widely, including the Government and the other devolved Administrations, along with the Joint Nature Conservation Committee. It is my understanding that imperative reasons of overriding public interest have never been deployed in relation to priority features with regard to planning proposals anywhere in the UK, in that no file or dossier has been submitted to the European Commission for an opinion.
I will now address the amendments to annexes and schedules. A new instrument-making power allows Ministers to make amendments to the annexes and schedules where this is supported by technical and scientific progress. This brings into a national context provisions which already exist at EU level. The devolved Administrations will have the same powers. Any amendment under this provision which cannot be supported by expert opinion is open to challenge in Parliament or the courts. This instrument will ensure that the strict protections that have been in place for many years for our most vulnerable habitats and species are maintained when we leave the European Union.
On consultation, although there was no statutory requirement to consult publicly on the instruments, officials undertook engagement with key stakeholders. Indeed, following concerns raised by the RSPB, we chose to withdraw and re-lay the SI to provide absolute legal clarity that the management objectives of the new national site network to protect wild bird species and their special protection areas remain equivalent to those in the wild birds directive. The RSPB and Greener UK have welcomed this. It is a very good example of where there has been consideration by people who can look at these things with a fresh eye, and we were absolutely seized of the importance of making it absolutely clear. So I welcome this as an example of where, if one does not get it perfect the first time, let us try again.
I turn to the Conservation (Natural Habitats etc.) (Amendment) (Northern Ireland) (EU Exit) Regulations 2019. As I have said, these regulations extend to Northern Ireland only. Importantly, they mirror the five main changes to the regulations I have just set out—in short, replicating for Northern Ireland Parts 1, 2 and 3 of the England and Wales legislation. It was felt that Northern Ireland officials should draft a separate regulation for two reasons. First, nature conservation is a devolved function in Northern Ireland. Secondly, the structures in Northern Ireland are different from those in England and Wales in that DAERA, a government department, undertakes all aspects of nature conservation. Therefore, many of the amending clauses could not simply be replicated for all three countries, and several Northern Ireland amendments would have to sit separately in any encompassing statutory instrument.
As is evident, Northern Ireland is unique within the United Kingdom as it shares a land border with the Republic of Ireland. There are excellent working relationships on nature conservation between officials in Northern Ireland and their counterparts in the Republic. This co-operation occurs within a framework of the North/South Ministerial Council, in which the environment is identified as an area of joint working. For example, the Loughs Agency is a cross-border body set up under the 1998 Good Friday agreement to manage commercial fishery activity in Lough Foyle and Carlingford Lough and to undertake valuable work in the conservation of vulnerable species. Similar arrangements apply on an east/west basis. The British-Irish Council has played a positive role in nature conservation issues, for example the sharing of information and experiences on the many invasive alien species threatening our important habitats. The council has also supported initiatives such as an all-Ireland pollinator strategy, which contains practical actions and information designed to increase the number of pollinators throughout the island of Ireland.
Finally, I turn to the Environment (Miscellaneous Amendments) (Northern Ireland) (EU Exit) Regulations 2019. These regulations address failures of retained EU law to operate effectively with regard to six pieces of Northern Ireland primary legislation and two sets of regulations, as set out in the Explanatory Memorandum. The regulations are similar to the amendments made to legislation in England and the UK by the Environment (Amendment etc.) (EU Exit) Regulations 2019, which have already been affirmed in both Houses. We have a separate set of regulations for Northern Ireland, as in the areas covered there is a well-established body of Northern Ireland legislation. Where there are already UK-wide instruments, we have taken forward regulations that include Northern Ireland and other jurisdictions. Taking forward Northern Ireland-only amendments in this case helps preserve the integrity of Northern Ireland’s statute book—albeit that the amendments are being made by UK statutory instruments rather than by the normal Northern Ireland statutory rules.
As an example of the amendments made by the instrument, Regulations 15 to 17 make changes to the Producer Responsibility Obligations (Northern Ireland) Order 1998, replacing,
“obligations of the United Kingdom under the Community Treaties”,
with, “retained EU obligations”. This is an example of where, if we did not make the amendment, the references to the UK’s obligations under community treaties would be inoperable as there would be no obligations.
In this instrument there is no policy change and—I must emphasise—no reduction in the environmental standards or obligations to which Northern Ireland is currently subject. I beg to move.
Baroness Parminter (LD)
My Lords, I thank the Minister for his introduction. This statutory instrument brings over legislation from the nature directives, which have been the bedrock of nature protection in Europe and the UK for many years. We know that species resident on sites protected by the habitats directive are recovering more strongly than species on sites that are not covered by it. The nature directives are the bedrock of protection and are important for species such as the bittern, which has recovered far more strongly by virtue of the habitats directive.
I shall give credit where credit is due. As the Minister rightly said, this statutory instrument was removed and relaid after concerns were raised by the RSPB and other environmental stakeholders. That is a model of how such matters should be treated. I commend the department on that, and I will not be opposing this statutory instrument.
I shall touch on a particular issue the Minister raised. He did not quite address it to my satisfaction, so I shall press him a little further. It is about reporting under these regulations. The Explanatory Memorandum makes it clear that the reporting requirements will be carried across, and I pay tribute to the Secondary Legislation Scrutiny Committee which teased out a bit more from the department on that matter to make sure that there was greater clarity about the format of those reports. The formats for reporting are very clear under the directives, but they are not clear in the statutory instrument or the Explanatory Memorandum. The Secondary Legislation Scrutiny Committee got the department to put on record that the formats for reporting will be agreed with statutory agencies and the devolved Administrations. That is to be welcomed. However, there is no clarity on the provision for reviewing those reports and highlighting any failures for action. The Government say that they will meet their international obligations, which is welcome, but there is no guarantee that that reporting will be timely or at a pace that will allow failures to be rectified speedily. At the moment, the EU has the power to enforce action for failures. Is there any sufficient capacity to enforce, including by fines for breaches of the regulations?
When he sums up, will the Minister say a bit more about how the Government see these vital reporting requirements being reviewed and how we can be sure that transgressions against them are speedily rectified? I am sure the Minister will talk about the office for environmental protection, which we hope will be forthcoming in due course, but it will not be truly independent since the Government will appoint its board and will be responsible for its budget. Discussion so far suggests that there will be insufficient enforcement mechanisms. For example, there is no power to call the Government to hearings or, as a last resort, to levy fines. We do not have the office for environmental protection yet, so what will happen to reporting in the meantime? If the Minister could offer us some reassurances on how reporting will be reviewed and how we will rectify any failures, I would appreciate it.
Lord Krebs (CB)
I welcome and appreciate the Minister’s introduction. Overall, what he said is reassuring. In addition to the point that has already been made, I want to pick up on scientific input, which was mentioned in the Minister’s introduction. Will he clarify in a little more detail the point that changes will be allowed only due to “technical and scientific progress”? The statutory instrument does not specify where the expert input will come from and whether it will involve the statutory nature conservation advisers. Will the Minister elaborate a little on the nature of the scientific input, how it will be taken into account, the degree of transparency in the publication of any scientific advice and how it will work across the four nations of the United Kingdom?
Baroness Young of Old Scone (Lab)
My Lords, I thank the Minister for his exposition on these three statutory instruments. I shall start with the first two on the conservation of habitats and species. I have spent almost 30 years of my life campaigning for the nature directives—for their introduction, refinement and implementation, and, on occasion, in their defence. They have been hugely instrumental in protecting internationally important species and habitats, so I say to the Minister: tread gently because you tread on my dreams.
I am delighted that the Government accepted many of the concerns of the NGOs and others, and withdrew and then relaid the first statutory instrument. I commend the excellent work of Greener UK and its constituent NGOs in that respect. The SIs are certainly in better shape now, but there remain a number of points on which I seek ministerial assurance.
We welcome the new provision for statutory guidance to be produced in consultation with the appropriate nature conservation body. This guidance will be required urgently to ensure clarity across all sectors on the meaning of all these changes. I hope the Minister can assure the Committee that consultation on the statutory guidance will begin right away and not take more than a few months to conclude.
We welcome the new regulation introducing management objectives for special protection areas and special areas of conservation, and for their joint network, but I must admit that I am rather perturbed at the wording of the first SAC objective, which talks about achieving,
“a favourable conservation status … (so far as it lies in the United Kingdom’s territory, and so far as is proportionate)”.
This proportionality is about the management of sites, not their designation, and seems to introduce a new restriction that is not in the habitats directive—which, of course, I read nightly before I go to bed. The Minister kindly organised a briefing session with his civil servants, where it emerged that this was about prioritisation, and we explored on what basis that prioritisation process would take place. Surely if a site has been designated as being of international importance, the objective of achieving favourable conservation status ought to be axiomatic; we do not designate sites in order to watch them get worse. We may have only a small proportion of a particular European habitat and species, but we should still have a responsibility to get it into favourable conservation status. Equally, if we are the principal guardian of a habitat such as blanket bog or a species such as the great crested newt, we have a particular responsibility on behalf of the European biosphere to do a good job in looking after them. Do the Government think we have too many newts and blanket bog sites? I may be misjudging the Government, and I would be grateful if the Minister could explain what is intended by the concept that management effort should be “proportionate”.
I turn to reporting, which has been raised by the noble Baroness, Lady Parminter. We welcome the change to the instrument, which brings in a requirement for reporting on progress, and on exceptions and derogations, but, as the noble Baroness said, the regulations do not make provision for anyone to review these reports or highlight any lack of progress, as is currently undertaken by the European Commission. As it stands, the statutory instrument is a diminution in protection for these vital species, sites and habitats. Although the reports will be forwarded to the Berne convention, the convention has not exactly been alacritous in following up failings and enabling action to be taken.
I ask the Minister to ensure that provisions be made for an independent review to be included, with the stress on the word “independent”. This would preferably have been in the legislation but we are now beyond that point, so can the Minister assure the Committee that a suitable independent body such as the OEP will be given this reviewing role? Although the progress in setting up the OEP is slightly glacial, the first report under these provisions is not due for two years, so I hope it would be set up in time to pick up the reviewing function.
The regulations introduce a new power for the relevant authorities to make changes to the birds and habitats directives’ annexes and the habitat regulations’ schedules, which will include prohibited methods of capturing and killing mammals and fish. Changes would be allowed on the basis only of technical and scientific progress. I echo the point made by the noble Lord, Lord Krebs, that expert input, and a duty to consult relevant statutory nature conservation advisers and take account of their advice, is needed in connection with this change, particularly since the changes would be achieved through negative procedure SIs, with their inflexibility to challenge once laid. It would be useful if the Minister could say whether the guidance that will be issued for this SI will confirm the process by which the Government will seek expert input, including from the statutory advisers, and whether this process will be agreed with the devolved Administrations.
On the amendment to Regulation 36, to move the paragraphs on prohibited means of killing mammals and fish into a schedule that would then be amendable by Ministers, could the Minister confirm, firmly and unequivocally, that these powers will not be used to roll back animal welfare standards? I am not sure the Government understand what a hornets’ nest they are inviting in making it easier to challenge what has been quite a difficult process of changing this particular set of provisions about killing.
A highly important issue, which some may see as a bit of a sideshow, is the name of the network of sites designated under the nature directives—currently Natura 2000. I declare an interest, because about 25% of the sites in that network were designated under my chairmanship of English Nature, a piece of work of which I am immensely proud. We are talking about my children and I love them all.
The statutory instrument proposes that this network be called the national site network. This has problems on three counts. The first is practical: sites of special scientific interest are also known as national sites, since they are important for national and not European criteria. Also, planners across the country risk getting mightily confused, as there is already reference to national sites in the National Planning Policy Framework. These are different sites with different criteria.
The second issue is that several of the Natura 2000 sites in Northern Ireland span the border with the south. I have happy memories of driving along the border in the dark during the Troubles, in an RSPB Land Rover, which I hoped was clearly marked, trying to track down the last crekking corncrake in Northern Ireland. If we crash out on 29 March and have a hard border in Northern Ireland, presumably wildlife will have to wait at the border, in common with everyone else, but we certainly should not call these border sites national sites because they are clearly transnational. Also, “national” has a distinctly different meaning in Northern Ireland.
The third and most important reason for not calling the network of sites the national site network is that the one thing that distinguishes the sites designated under the nature directives is that they are not national in importance, but designated for the very reason that they are international in importance. Therefore, could I persuade the Minister to confirm that no matter what this statutory instrument calls the network, the Government will swiftly announce that for the purposes of clarity it will forthwith be known as the international site network? This network would include the Ramsar sites to complete the set, and would be clearly distinguishable from the SSSIs and the marine conservation zones.
On the impact of the statutory instruments on provisions in Northern Ireland, the office for environmental protection will not operate in Northern Ireland. Northern Ireland is also the only country in the UK that does not have an independent nature conservation advisory body, so who will take an independent role in overseeing the implementation of these statutory instruments in Northern Ireland? For example, when I spoke on the need for reports to be reviewed by an independent body or for independent conservation advice to be taken, it was not clear who could take this role in Northern Ireland. We are sweeping away the powers that the European Union had in ensuring protections were enforced, but we are not proposing anything to replace that vital function in Northern Ireland. In the absence of a functioning Northern Ireland Assembly and Executive, what do the Government propose?
I see from the scrutiny of these statutory instruments in the other place that the Minister indicated that DAERA civil servants had asked that the possibility of the OEP covering Northern Ireland should be kept in play until Northern Ireland Ministers returned and could decide. Can the Minister cast more light on this? I hope he will confirm that these are issues that need to be tackled and tell us what discussions have been held on this with Northern Ireland civil servants. I hope the Minister will also agree that continued environmental co-operation on the island of Ireland will be vital post Brexit, since it is, after all, a single biogeographic unit.
Lord Gardiner of Kimble
My Lords, I am most grateful for all of the contributions, and I was struck hearing about bedrocks and bitterns, treading on dreams, and hornets’ nests. I found the experience rather more frightening than I had already intended. However, this is an important area and I am most grateful to the noble Baronesses for acknowledging that we did the right thing in withdrawing and re-laying the instrument, because we wanted to make it absolutely clear that our good faith in these matters is strong.
The noble Baronesses, Lady Parminter and Lady Young, both raised the important issue of reporting. As we explained in our written evidence to the Secondary Legislation Scrutiny Committee, the reporting requirements introduced at Regulation 8 of this instrument are intended to ensure that, at a minimum, they reflect those set out in article 17 of the habitats directive and article 12 of the wild birds directive. However, as that regulation makes clear, these requirements are not exclusive since currently within the EU, the Commission determines the full extent and format of the reports, in consultation with experts across member states. Similarly, UK Ministers would expect to determine the format of such reports administratively, in consultation with our statutory advisers and those from the devolved Administrations, ensuring that we meet all our international reporting obligations.
The provisions for a composite report, including an evaluation of progress and contribution of the national site network—about which I will speak in a moment—in our view replicates the current legal requirement on the Commission. Accordingly, on operability, there is no need to provide an additional statutory review provision. This instrument also converts environmental reporting obligations in the directives into a requirement to publish reports in the future. This will ensure transparency and scrutiny of our environmental performance. The UK will continue to report on a similar basis as a contracting party to the Berne convention and will be obliged under resolution 8 of the standing committee on the convention, adopted in 2012, to report on the conservation status of species and habitats every six years, covering the previous six years.
We are also required under article 9 of the Berne convention to submit reports every two years on exceptions that have been permitted, the protection of wild fauna and flora, and an assessment of their impact, in the same way as we do now via the EU. The convention standing committee can review the implementation of the convention through legal and policy reports from independent experts. Indeed, the OEP—more about which in a moment—will be an independent, statutory environmental body and may well be interested in this matter. I say to the noble Baroness, Lady Parminter, that on reporting and timeliness—timeliness is important—six years is the usual period for compiling these reports, which are comprehensive. That is what is in the nature directives.
Perhaps I could spend a little time on proportionality, which was referred to by the noble Baroness, Lady Young. I wish to assure or reassure her—whatever the right word is—that it is not the intention of this provision to reduce in any way existing nature conservation protections. This provision is about not the designation and management of sites, and therefore the permitting of certain activities, but the overall management of the UK network in the context of achieving favourable conservation status for species and habitats across their biogeographical area and within their natural range.
New Regulations 16A and 18A place a wide duty on Ministers, in co-operation with other authorities in the UK, to manage and adapt the network to maintain or, where appropriate, restore at a favourable conservation status threatened and vulnerable habitats and species throughout their natural range. This duty can be exercised only where those natural ranges fall within UK jurisdiction. It is also to be discharged with regard to the importance of the UK globally in the conservation of those species or habitats. We can contribute to achieving a favourable conservation status for vulnerable or threatened species and habitats only in the proportion to which their range falls within UK jurisdiction.
In this respect, the provision reflects the requirement in article 3 of the habitats directive to have, “A coherent … ecological network” to maintain and manage species and habitats,
“at a favourable conservation status”,
and therefore for Ministers in future to have regard to what is being done beyond UK borders to contribute most effectively to maintaining and restoring those features at favourable conservation status in their natural range. If I may return to where I began, I place it on record that there is absolutely no intent at all for this provision to reduce in any way existing nature conservation protections.
The noble Baroness, Lady Young, raised the office for environmental protection, the independent statutory environmental body which will hold government and public bodies to account on environmental standards, replacing the current oversight of the European Commission. This body will provide independent scrutiny and advice on environmental legislation and the Government’s environmental improvement plan, and hold government to account on the implementation of environmental law, including taking legal action where necessary. It will also of course have access to these publicly available reports. I say particularly to the noble Baroness, Lady Parminter, who raised this, that we are finalising interim measures that may be necessary under a no-deal scenario and before the office for environmental protection is established. Again, the Government are doing what they can in Brussels and elsewhere to ensure that we have a deal, but with or without a deal there will be no period of time during which government actions cannot be held to account.
The noble Lord, Lord Krebs, queried—rightly, given his expertise—the availability of technical and scientific expertise. I hope he might agree with my impression, from going around the Council of Ministers and other bodies, that this country has significant expertise in nature conservation, which is recognised at home and at international level. Hundreds of scientists are employed in our statutory nature conservation bodies and the depth and breadth of their experience is hugely regarded. Ministers will continue to benefit from the advice of their statutory nature conservation bodies: in England, this is Natural England while at the UK level, it is the JNCC. Natural England provides statutory advice to public authorities and is responsible for ensuring that the natural environment is protected and improved. It has a responsibility to help people to enjoy, understand and access the natural environment.
The JNCC already has a statutory duty to advise Ministers on developing and implementing policies on nature conservation matters. The JNCC has an independent chair and five independent members, some with scientific experience and some with a legal background. The majority of the joint committee is made up of appointments by the four countries’ statutory conservation bodies.
The noble Baroness, Lady Young, raised the question of committing to produce statutory guidance. We plan to issue guidance on the operability changes to the regulations as part of our EU exit arrangements. We are developing a page for GOV.UK to explain the main changes to the regulations and to signpost to existing guidance. Following the UK’s exit, our intention is to review and update our own domestic guidance on all aspects of the regime. We plan to consult and involve a range of interested stakeholders to ensure that guidance on wildlife legislation is fit for purpose and can contribute to ensuring that we maintain and enhance existing protections.
The noble Baroness, Lady Young, queried the power of the Secretary of State to amend schedules. This is where she referred to a hornets’ nest; I hope that I can reassure her. The prohibited capture and killing methods listed in this schedule are those set out not only in annexe 6 of the habitats directive but in the almost identical appendix 4 of the Berne convention, from where it derives and of which we will remain a contracting party. There has been no reason to amend appendix 4 since 2002. The provisions for amending the annexes and schedules in this instrument, including moving prohibited killing from the body of the regulations to the schedule, simply ensure that we retain the same power of amendment as the Commission has at present to update annexes. This is an updating power to be used only—I emphasise only—for the purpose of adapting these annexes to technical and scientific progress, and therefore a power that can be exercised only where it is supported by expert opinion from the JNCC and Natural England. We will, of course, continue to work closely with devolved Administrations to secure nature conservation outcomes across the UK.
Northern Ireland was also raised by the noble Baroness, Lady Young. It is important—again, I hope I can reassure her—that in the case of Northern Ireland, DAERA has a statutory advisory body known as the Council for Nature Conservation and the Countryside. This body includes academics, land managers and environmental non-government bodies with a wide range of conservation expertise in terrestrial and marine environments. The CNCC is tasked with providing a focused view on DAERA’s functions, including relating to nature conservation. There could be a specific role for the CNCC in future reporting mechanisms.
The noble Baroness, Lady Young, also asked about a possible extension of the OEP to Northern Ireland. She is absolutely right that Northern Ireland Civil Service officials have requested that the scope of the office be expanded to include Northern Ireland. The Secretary of State has agreed to this; I hope that is helpful to your Lordships. Discussions are ongoing between officials as to how this might be taken forward. Any decisions by Northern Ireland officials will be taken in light of the requirements of the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018 and the Northern Ireland Secretary of State’s guidance thereunder.
The noble Baroness, Lady Young, also raised the name of the national site network. These sites will continue to be selected under the criteria in annexe 3 of the habitats directive and article 4.1 and 4.2 of the wild birds directive, which—as she will know better than I do—makes them distinct from SSSIs. The National Planning Policy Framework and other policy guidance does not particularly recognise the Natura 2000 network by offering planning protections but is concerned instead with the different types of protected sites, such as special areas of conservation, special protection areas and European sites. This instrument retains those names. I emphasise to the noble Baroness—I have noted her appeal for a different name—that the term “National Site Network” is a legal one for the purposes of these regulations. It will be open to Ministers in the UK to agree a distinct name for the network in a similar way to, for instance, the Emerald network. We do not need a legal power to do that. It might be my duty to play back her commentary on the national site network. I should also say that we intend, nevertheless, to publish guidance explaining the main changes that will arise due to operability.
Conservation (Natural Habitats etc.) (Amendment) (Northern Ireland) (EU Exit) Regulations 2019
(5 years, 9 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Gardiner of Kimble
That the Grand Committee do consider the Conservation (Natural Habitats etc.) (Amendment) (Northern Ireland) (EU Exit) Regulations 2019.
Relevant document: 17th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee A)
Environment (Miscellaneous Amendments) (Northern Ireland) (EU Exit) Regulations 2019
(5 years, 9 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Gardiner of Kimble
That the Grand Committee do consider the Environment (Miscellaneous Amendments) (Northern Ireland) (EU Exit) Regulations 2019.
Animal Welfare (Amendment) (EU Exit) Regulations 2019
Baroness Vere of Norbiton
That the Grand Committee do consider the Animal Welfare (Amendment) (EU Exit) Regulations 2019.
Baroness Vere of Norbiton (Con)
My Lords, this instrument makes primarily minor operability changes to three pieces of legislation to ensure that retained direct EU legislation protecting the welfare of animals kept at control posts while being transported and at the time of their killing will continue to operate effectively once the UK has left the EU.
The first piece of legislation, EC Regulation 1255/97, relates to control posts. Control posts are approved areas for animals to be unloaded, fed, watered and rested for at least 12 hours or more during long journeys. There are currently 11 control posts designated in the UK. The regulation sets out the health and hygiene requirements for control posts and details how they should be constructed, operated and approved. It makes a number of minor operability changes, including updating references and definitions. The power to designate or suspend control posts will remain devolved to the relevant Ministers in the devolved Administrations, as is currently the case. These regulations will not alter the current requirements or standards for control posts, which will be maintained after exit.
The second piece of legislation relates to the welfare of animals during transport. EC Regulation 1/2005 sets out the standards to be applied when moving live vertebrate animals for commercial purposes as well as the necessary documentation to accompany the journey and the checks to be carried out on consignments leaving or entering the EU. The regulation also sets out the requirements for transporters, drivers and vehicles to be authorised. These regulations will continue to enable authorisations for transporters, drivers and vehicles issued by an EU member state to be recognised within the UK. This approach will help to minimise friction at the border and prevent potential animal welfare issues arising from delays of animals coming from the European Union entering the UK.
Finally, the instrument makes technical changes to EC Regulation 1099/2009 relating to the protection of animals at the time of killing to ensure that it remains operable after the UK exits the EU, including transferring obligations on the European Commission to the relevant UK authorities. The regulation requires that animals shall be spared any avoidable pain, distress or suffering during their killing and related operations. It sets out detailed rules for the accepted methods of stunning and killing animals, as well as the layout, construction, equipment, handling and restraining operations at slaughterhouses. This instrument will not alter the current requirements or standards which will be maintained after exit.
However, I want to draw noble Lords’ attention to one policy change contained in these regulations. EC Regulation 1099/2009 requires all slaughterers to be trained and competent in the tasks they undertake, with certificates of competence issued by a competent authority. Currently, a certificate of competence issued by any member state must be recognised in the UK. These regulations will end that requirement. Continued recognition of certificates issued in other member states would open up potential enforcement issues. We would be unable to suspend or revoke a certificate issued in another member state if a slaughterer breached the requirements of the retained EU legislation or domestic legislation. The impact on businesses will be minimal. A very limited number of slaughterhouse employees will need to apply for a certificate of competence issued by a competent authority in the UK to be able to continue to work in the UK after exit. Applying will carry a cost of around £225 and we expect that fewer than 200 individuals out of a total population of 6,000 people with this certificate will be affected. This is around 3% of all slaughterers.
While there was no formal duty to consult, we have engaged directly with industry representative bodies on this issue and more widely, and we have not received any expressions of concern. The devolved Administrations have been consulted on this instrument and they are content. The purpose of the instrument is to ensure that the three pieces of EU legislation relating to animal welfare will be fully operable after exit. For the reasons I have set out, I beg to move.
Lord Wigley (PC)
My Lords, I declare an interest as I have a link with the British Veterinary Association. I should draw that to the attention of the Committee, although it is not a financial interest. This order provides significant recognition of the variation between the devolved authorities. That is right, and it already exists to a large extent. However, it requires effective co-ordination between the devolved authorities to ensure that where there are matters of common interest, they are brought together. Can the Minister give us some assurance that those mechanisms are in place or, to the extent that they need to be strengthened, they can be put into place in good time?
The second point I want to raise is with regard to the certificate of competence issued to slaughterers by other member states. As things stand, they must be recognised in the UK, but that will end for the reasons the Minister has mentioned. Such certificates of competence are required by slaughterhouses in the EU to show that individuals have been trained to the necessary standard to undertake animal stunning and killing. If these changes occur in the UK and there is a reciprocal change in the EU 27, will that affect the number of competent people who will be available to undertake the work? We are aware of the number of people from European countries who are working in these areas in the UK. If there is a danger of us losing some of the supply of these essential people, what proposals do the Government have to ensure that there is not a lapse in this area that could have an impact on animal welfare?
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I thank the Minister for her comprehensive introduction and I thank her and her officials for the briefing we had earlier this week. This is a very important statutory instrument that will move into UK law aspects of EU law pertaining to the welfare of animals while they are being transported, when they are at control posts and at the time of killing in slaughterhouses. Much of the SI refers to the need for those involved at all three stages to have a level of competence which ensures that animals do not suffer unnecessarily. I am sure we all want to ensure that that does not happen.
This SI gives the Government power to set their own standards on live transport and control posts once we leave the EU. The UK Government have always said that they will manage live exports once we leave the EU. The public are extremely interested in the issue of the live export of animals and it frequently comes up as one of the important Brexit matters. Can the Minister say whether the Government are likely to decide soon on this subject and what evidence they will consider when they make this decision?
I have a small number of minor questions to ask. In paragraph 2.4 of the Explanatory Memorandum, reference is made to the protection of animals during transport and related operations within the EU. However, it applies to the transport of animals which does not take place in connection with an economic activity. Would the transportation of racehorses to take part in a race—for instance, le Prix de l’Arc de Triomphe in France—come under the heading of an economic activity or would it would be classed as a sport? This is important as racehorses are a valuable commodity and their safety and well-being are paramount to their owners. I mention, just for interest, that the prize money for winning that race is €2,857,000.
The movement of animals to and from slaughter is a particular issue on the island of Ireland where consignments of animals can move from Ireland across the border to Northern Ireland for slaughter and then back again, and vice versa. This is something that needs to be addressed before Irish farmers find that they can no longer move their livestock.
On assembly centres, paragraph 2.7 of the Explanatory Memorandum refers to animals being grouped together to form consignments. Domestic equidae—that is, donkeys—are specifically mentioned, and I wonder how often and how many donkeys are moved around either in the EU or in the UK.
There is reference in paragraphs 2.17, 2.18 and 12.2 to certificates of competence. After exit day the UK will not recognise certificates issued in the EU, and for its part the EU will not recognise those issued in the UK. As the noble Baroness has said, this is particularly in relation to the protection of animals at the time of killing. The change will result in a number of slaughterhouse employees who work in this country having to apply and be reassessed for their competency. The estimated cost of this per employee is around £225. We do not know exactly how many employees will be affected but that is not an insignificant sum of money and it could lead to some employees deciding to look for more conducive work. This will have an impact on the running of our slaughterhouses, as the noble Lord, Lord Wigley, has indicated.
As a result of a freedom of information request, we can see that the Government have failed to consider the impact of Brexit on sheep farmers. Sheep farmers are not wealthy people but their farms, especially hill farms, are the backbone of many of our remote rural communities. To run their businesses, farmers need certainty and the ability to plan far ahead, not just to next year but for five and 10 years ahead. They need to know what funding is available, what standards must be met and what tariffs need to be paid. There is a rumour that vast numbers of sheep will have to be slaughtered if they cannot be transported for export. This would have a catastrophic effect on sheep farmers in this country. Can the Minister comment on this issue?
Lastly, I understand that the report by the Farm Animal Welfare Committee, the Government’s independent science advisers, is likely to be presented this week. Can the Minister confirm that that is the case? As the Government have said that they would announce what they intend to do in England following that report, can the Minister give an indication of when there will be announcement and what it is likely to contain?
Baroness Jones of Whitchurch (Lab)
My Lords, I thank the Minister for her introduction and for the courtesy of arranging a helpful meeting with officials beforehand. As the noble Baroness, Lady Bakewell, said, the live export of animals is a very sensitive subject about which there is considerable public concern; there have been some shameful public images of animals suffering or dying in transit that have highlighted the fact that in many cases the current rules are simply not being respected in practice. This is why I am pleased that my party is committed to banning most exports of live animals for slaughter or fattening, with exemptions for those crossing the Northern Ireland border.
At the current time, more than 50,000 cattle and some 500,000 sheep are exported live annually for further production or slaughter in other regions of the UK and to EU member states. I echo the concerns of the noble Baroness, Lady Bakewell, about the effect on sheep farmers of not having clarity over these rules at a very early stage. We must ensure that those markets are still open and available for business.
The 2017 Conservative manifesto stated that the UK could take early steps to control the export of live farm animals for slaughter once it left the EU. Since then, Defra has stated that a ban is one of the options being considered, and it launched a consultation in April 2018. Do the Government intend to introduce meat-carcass only export so that animals do not have to endure inhumane conditions to be slaughtered? Can the Minister confirm whether a ban on live animal exports would be compatible with the provisions of the General Agreement on Tariffs and Trade, often referred to as the World Trade Organization rules, which prohibit countries imposing quantitative bans or restrictions on imports or exports?
Livestock legislation has been the same for 12 years now, despite European scientists calling for improvements on conditions and a reduction in journey times. Meanwhile, paragraph 2.14 of the Explanatory Memorandum states:
“The controls on control posts in the UK will remain identical to those in the EU (at least initially) after EU Exit”.
Can the Minister confirm whether, following Brexit, the Government will introduce better animal welfare provision at control posts? Is that what the phrase “at least initially” is meant to capture?
There is also concern about the lengthy delays that are common at the border, and we can all agree that there is a risk that this can only be exacerbated during or post-Brexit. There is also concern that we will not have enough vets to check on animal welfare and approve export licences at the UK border. What steps are the Government taking to reduce delays and cut maximum journey times for live animal exports? What discussions have taken place with veterinary bodies to ensure sufficient staff are in place? Will the Government introduce a “fit for travel” provision to ensure that animals are of an appropriate age, not in certain stages of pregnancy and do not have pre-existing injuries?
According to the Sustainable Food Trust, one in three small abattoirs in the UK has closed in the past decade. There are now just 249 red-meat abattoirs in the UK, down from 320 in 2003. The Association of Independent Meat Suppliers acknowledged that there are now black spots in the country where no abattoir provision exists. Is the Minister concerned about this? What action are the Government taking to reduce abattoir black spots and ensure that slaughter can take place close to areas where cattle, sheep and poultry are raised, and achieve the objective of travelling no longer than eight hours, as recommended by the BVA.
Turning to authorisation documents for the transport of animals, paragraph 2.15 of the EM states:
“The standard forms that are contained in the legislation will be removed and a power is given to each constituent nation of the UK to make their own versions of the authorisations and documents”.
Can the Minister advise whether the forms need to be changed in the event of a deal and/or no deal? If so, is the Minister confident that the required amendments to these forms will have been made in time for day one, if necessary, or can there be a period of grace while the old forms are still used? Will there be accompanying guidance ready in the event of no deal? Why was the EM worded in that way? What changes to the forms were envisaged? Will the detail required on the forms be on a par with the information currently required by the EU? Since it is proposed that the devolved Administrations will be responsible for amendments to those authorisations and documents, what impact will different versions have on businesses which export live animals through ports in England, Wales, Scotland and Northern Ireland and across the borders between the devolved Administrations?
Currently, all drivers and attendants must hold certificates of competence evidencing their training in animal welfare during transport. This instrument amends the legislation to allow authorisation and certificates of competence issued by member states to those involved in transport to be recognised in the UK after EU exit. However, paragraph 2.16 of the Explanatory Memorandum advises that enforcement action,
“will not be possible after EU Exit”.
As that is now in the public domain, people may begin to realise that there will be no enforcement action. Does the Minister share my concern that without that enforcement mechanism, and with the knowledge that no action is going to be taken, unscrupulous traders may employ drivers and attendants who do not hold that certificate of competence in transporting animals and that that may lead to more breaches of animal welfare and worsening conditions for animals being transported?
What action are the Government taking to improve enforcement? Can the Minister assure the Committee that we have the appropriate resources and staff in place at border control posts to ensure that animal welfare standards are enforced? Can she confirm that the recognition of transporters’ certificates of competence is not reciprocal and that certificates issued in the UK will not be recognised by the EU 27 after the UK has left the EU? If that is the case, how many transporters will be affected and what costs will they incur if they are required to appoint a representative and seek authorisation in each EU country through which they will travel?
As the Minister said, the SI also sets out a change in policy on the certification of slaughterhouse staff. It removes the recognition of certificates of competence issued to slaughterers by other member states. Paragraph 2.18 of the EM states:
“Continued recognition of certificates issued in other Member States would open up potential enforcement issues as we would be unable to suspend or revoke a certificate issued in another Member State in the event a slaughterer breached the requirements of the retained EU legislation or domestic legislation”.
As a result, a number of slaughterhouse employees who gained their qualification in an EU member state will need to apply for a certificate of competence in the UK to continue to work in the UK after exit.
As the Minister also said, Defra estimates that applying and being assessed for a certificate of competence in the UK will carry a cost of around £225 and will affect fewer than 200 individuals, which comes to around 3% of slaughterers. The EM suggests that £225 is not a large sum of money, but it could put some people off. Has there been any discussion with the industry about whether it could pay for that extra certification and whether that would be good practice, rather than individual staff members having to pay for it? What other discussions have taken place with the industry to ensure that those affected are aware of and understand the policy change and those new requirements which could come on stream very quickly?
When will affected slaughterers need to apply for a new certificate of competence? Will it be literally from exit day? How long will the process of getting the new certificate take? Will their applications be expedited, given that they hold existing EU qualifications? Given that the EU has already confirmed that it will not recognise UK certificates of competence, do we know how many UK-qualified staff will be affected by that decision if they try to work in the EU? I do not know whether that information is available.
Finally, this SI will permit meat produced in member states, the Channel Islands, the Isle of Man, Liechtenstein, Norway and Switzerland to be accepted in the UK without a third-country health certificate. Can the Minister confirm whether this is the case in both a deal and no-deal situation? Is this a reciprocal arrangement? Do we have the same opportunities to trade with those additional countries that are not member states? I look forward to the Minister’s response.
Baroness Vere of Norbiton
I thank all noble Lords for their contributions today. This has been an interesting debate and we have covered all the key elements of what I hope is a fairly simple SI that largely leaves everything exactly as it was. I shall spend a few minutes answering questions raised by noble Lords. There has been a variety of them.
The noble Lord, Lord Wigley, brought up the issue of divergence with the devolved authorities. I reassure him that, as a department, we have been working closely with the devolved authorities on a wide range of areas and on this area in particular. We are working on developing common frameworks. One was agreed in October 2017 with the Scottish and Welsh Governments, and further frameworks were agreed in April 2018 to deepen and broaden the relationship. We are very clear that the Scottish and Welsh Governments are committed to not diverging in ways that would cut across future frameworks where it has been agreed that they are necessary and where discussions continue. We would expect, for example, the forms issue that was raised by the noble Baroness, Lady Jones of Whitchurch, to be one of those issues; it makes no sense whatever to have different forms in different countries.
I turn to the issue of slaughterers. I completely understand that this issue has been highlighted because it is clear that fewer than 200 people will be affected by this issue; we expect it to be about 170. That is the number that we got when we asked the Food Standards Agency, Food Standards Scotland and DAERA to provide the information. The noble Lord was concerned about whether there would be a shortage. I feel that 170 people out of a total of 6,000 definitely do not make for a shortage, but they would be able to get retrained pretty much immediately. That is usually carried out in-house by slaughterhouse operators and there is certification by a private assessor provided by the UKAS-accredited body, which is FDQ.
Lord Wigley
I thank the Minister for responding to the points that I raised. Does she appreciate that, although the numbers may be some 200 or fewer, there can be a diversity of intensity of those? In some slaughterhouses, as we know in Wales, there is a quite disproportionate number of European-originated workers, so there could potentially be points of difficulty even though the overall situation is okay.
Baroness Vere of Norbiton
I completely accept the noble Lord’s point. He is right, and I did not mean to denigrate their contribution. Certainly we have been in communication with the industry—we communicated in August 2018 and then with other groups more broadly in January 2019—so there has been time to think about this. We believe that, as was raised by the noble Baroness, Lady Jones, a number of people are offering to pay the £225. It is important to understand that these individuals would still be able to work under supervision anyway. If they are within that sort of environment, they would be okay. It seems that the training and accreditation is not measured in years; it is much shorter than that.
I turn to the questions asked by the noble Baroness, Lady Bakewell. The point about the banning of live exports was also raised by the noble Baroness, Lady Jones. I know, having been in your Lordships’ House for a little while now, how important this issue is, because it comes up frequently. Our manifesto commitment made it absolutely clear that we would take early steps to control the export of live animals for slaughter once we leave the EU. Last year, as noble Lords will know, we sought evidence on how we could achieve that, including through a possible ban. A number of noble Lords mentioned that we are awaiting advice from the Farm Animal Welfare Committee on this issue, as well as advice on how we can more generally improve welfare for all animals in transport, which I believe will address some of the issues raised by the noble Baroness, Lady Jones.
I cannot confirm that the report will be published this week. I very much hope that it is, but I have a note saying that it will be published by the end of March. I hope that is acceptable to the noble Baroness. We will consider all the options, in line with the commitment that we made in our manifesto, and we will ensure that any measures introduced are consistent with the General Agreement on Tariffs and Trade.
I confess that the issue of economic activity was something that confused me, too, and I am grateful to the noble Baroness for asking her question. I will try to be helpful here, but I am not sure that I will be very helpful. The regulation states:
“Transport for commercial purposes is not limited to transport where an immediate exchange of money, goods or services takes place. Transport for commercial purposes includes, in particular, transport which directly or indirectly involves or aims at a financial gain”.
So I think the €2.5 million-odd at the Arc de Triomphe would fall within that. Indeed, the note says that it includes transporting horses to race abroad.
Noble Lords touched on the issue of the Irish border and movement over it. We have been clear that there will be no physical infrastructure or related checks and controls at the border. It will be a key part of our ongoing relationship with the EU and with our friends and neighbours in the Republic of Ireland. If we leave the EU without a deal, we will be treated as a third country. At this time, there is no reciprocity being offered by the EU, but one might imagine that it might at least be open some conversations if the worst comes to the worst—certainly from my perspective—and we leave with no deal.
The question of donkeys is one that I asked myself. I reassure the noble Baroness that, although we do not have figures for how many exports may involve donkeys, mules or hinnies, no equines were exported for slaughter. That is pretty much all I can do with that one, I am afraid. I think it is a minority sport, so to speak; I do not think that there are donkeys heading anywhere to be killed for meat.
Noble Lords mentioned sheep farming. It is an incredibly important issue. I answered a Question, I think from the noble Lord, Lord Wigley, about sheep farming in Wales. We all feel that this is a very important issue. I think it is something that we will be discussing as the Brexit process happens. I certainly hope that we have a deal. However, if we are in a situation where we leave with no deal, the Government will look to do whatever they can to intervene in the event that there is significant market movement in the price of lamb. We do not consider—as was suggested in the Sunday Times, I believe, this weekend—that a mass cull is an option. It is not an option, and we would certainly work very closely with the sheep farming communities on what we can do.
The noble Baroness, Lady Jones of Whitchurch, talked about border delays, and she was right. In planning for leaving the EU, we have three objectives: to maintain the current high levels of UK biosecurity; to maintain the flow of goods at the border; and to minimise the impact on businesses. Animals and animal products originating in the EU will continue to enter the UK without needing to be checked at a UK border inspection post. We will continue to have risk-based border import checks for live animals, germinal products and some animal by-products, as are carried out now. The only additional inspections will apply to live animals, animal products and high-risk food and feed not of animal origin that originate from a third country and have travelled through the EU. We believe that we have the resources in place, and we are confident that there will not be significant delays at the border resulting from any changed arrangements as we leave the EU.
The noble Baroness spotted the “at least initially” in the Explanatory Memorandum. I would like to reassure her—because it does look quite suspicious—that we have no intention of lowering any of our current welfare standards after we leave the EU. In fact, we will look to raise standards substantially over time as new research and evidence emerge. So there may well be divergence in future, but we do not expect it to be to the detriment of the welfare of animals in our country.
Another issue that often arises when we discuss animal welfare is the small abattoirs sector. The Government acknowledge the role that small abattoirs play in local economies and in reducing the distance that animals have to travel for slaughter. The decline in the number of small abattoirs is the result of a combination of different factors, including consolidation in the retail sector and greater efficiency, so much of the slaughter is now taking place in larger, more efficient abattoirs. However, officials from Defra and the FSA are working with the Sustainable Food Trust to understand the issues facing small abattoirs and what scope there may be to reduce regulatory burdens that may not be appropriate in those very small settings. The Government will not reduce animal welfare standards, but there may be other things that we can do. We are also aware that the All-Party Parliamentary Group for Animal Welfare has just announced a review of the small abattoir sector and we look forward to seeing that report.
The issue of forms was mentioned by the noble Baroness, Lady Jones of Whitchurch. This is extremely important because the forms contain the information and data that go into ensuring that we are able to meet the regulations, et cetera. That is the issue which underpins all of this. We do not envisage that the type of data in the forms will change in the future. However, if it needs to do so, it will be only in order to meet the regulations. Therefore, it is not the case that you could suddenly knock off half the data, because then you would not have the information to prove that you were complying with the regulations. We do not envisage any significant change and we will continue to use the current EU forms after exit day. Over a period of time it may be that we will introduce our own forms, but there is unlikely to be a significant change and the industry is very used to providing this information.
I turn to the issue of transport enforcement. This is indeed critical, and it is the case that we have had to strike a balance. We will not have the powers to suspend or revoke certificates of competence for individual transporters. However, we will be able to make a formal notification to the issuing member state to address issues of non-compliance, and the local authority will have powers to take action against the EU transporter if it commits an offence in the UK under the Welfare of Animals (Transport) (England) Order 2006 or the Animal Welfare Act 2006. We are clear that this is for an interim period. The purpose here is again about balance. It is to make sure that as little as possible changes, particularly in the very short term. However, over the longer term as the future relationship settles down, particularly in a no-deal situation, we will be looking at the system again to ensure that enforcement is possible. It also could be that a relationship with the EU may develop over time. But we cannot say how it will be affected at this stage, especially on transportation, because the options are so many and varied. Also, there is movement in the area of haulage in general, which I do not think is quite within the scope of this SI.
Almost finally, I turn to consultation, an issue that frequently comes up. I hope that I can reassure noble Lords that we have done our best to provide guidance to all of the affected stakeholders. As I mentioned earlier, we did this in August 2018 and in January 2019.
I shall say a little more about transporter costs and numbers. The cost of acquiring EU 27 authorisation will vary across the different member states. Our understanding is that the direct and administration costs are on average around £300. This could have an impact on around 500 transporters, although some will have the option of using EU-authorised transporters to mitigate some of the impact—as I alluded to earlier.
I believe that I have covered nearly all of the questions put to me by noble Lords, particularly those relating directly to this SI. I beg to move.
General Food Law (Amendment etc.) (EU Exit) Regulations 2019
(5 years, 9 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Blackwood of North Oxford
That the Grand Committee do consider the General Food Law (Amendment etc.) (EU Exit) Regulations 2019.
Relevant document: 17th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee B)
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Blackwood of North Oxford) (Con)
My Lords, I thank noble Lords for their consideration of the draft regulations—the General Food Law (Amendment etc.) (EU Exit) Regulations 2019, the General Food Hygiene (Amendment) (EU Exit) Regulations 2019, the Specific Food Hygiene (Amendment etc.) (EU Exit) Regulations 2019 and the Contaminants in Food (Amendment) (EU Exit) Regulations 2019.
The Government’s priority is to ensure that the high standards of food safety and consumer protection we enjoy in this country are maintained when the UK leaves the European Union. These instruments are crucial to meeting our objective of a functioning statute book on exit. They are made under the powers in the European Union (Withdrawal) Act 2018 to make necessary amendments to the overarching food regulations so that we can continue to protect public health from risks that may arise in connection with the consumption of food. These instruments correct deficiencies in those regulations.
I wish to be clear that no policy changes are made through these instruments, nor is there any intention to make any at present. These instruments propose a transfer of responsibilities to UK entities to support a UK-centric regulatory regime. Responsibilities incumbent on the European Commission are designated to Ministers in England, Wales and Scotland, and to the devolved authority in Northern Ireland.
The European Food Safety Authority, EFSA, is the EU body that provides scientific advice on food safety. These regulations designate EFSA responsibilities to the food safety authority. This will be the Food Standards Agency, the FSA, in England, Wales and Northern Ireland, and Food Standards Scotland, which has a close working relationship with the FSA. The draft instruments being considered today will ensure that the following key EU regulations on food and feed safety and hygiene will function effectively on exit day.
Regulation 178/2002 lays down the fundamental principles that underpin food law and the essential requirements that food and feed businesses must comply with, as well as describing certain functions to be carried out by EU institutions. A key principle set out in the legislation is that food placed on the market must be safe to eat. It also provides for other fundamental safety and hygiene requirements, including rules and expectations on traceability. It establishes a requirement for open and transparent public consultation if food law is revised.
Regulation 852/2004 contains the basic food hygiene requirements for all food businesses. It sets out the general requirements for the hygienic production of foodstuffs through the provision of effective and proportionate controls throughout the food chain to the final consumer.
Regulation 853/2004 relates to the specific hygiene rules for products of animal origin, and Regulation 854/2004 relates to the organisation of official controls for products of animal origin. These specific hygiene rules set out the requirements and specific health standards for establishments on land or at sea for slaughtering, processing, storing or transporting products of animal origin.
The regulations on chemical contaminants protect consumers by ensuring that they are protected from the adverse effects of exposure to contaminants that may be present in food. Chemical contaminants may be present in food from the environment or as a result of growing conditions. The legislation sets out maximum limits for certain contaminants in food and provides a clear legal basis on which enforcement action may be taken, where necessary, to protect consumers by facilitating the removal of unsafe food from the food chain.
These instruments do not introduce any changes in how food businesses are regulated or managed. They do not introduce extra burdens and therefore provide continuity and clarity for businesses and continued protection of consumers’ interests. It also means that non-compliances can continue to be addressed in the same way. These will ensure a robust system of controls that will also underpin UK businesses’ ability to trade both domestically and internationally.
It is also important to note that the devolved Administrations have provided their consent for these instruments. Furthermore, we have engaged positively with the devolved Administrations throughout the development of these instruments. This ongoing engagement has been warmly welcomed. A full public consultation indicated support for the proposed approach to retained EU law for food and feed safety and hygiene. These instruments therefore constitute a necessary measure to ensure that the important food safety regulations will continue to work effectively after exit day. On that basis, I beg to move.
Baroness Walmsley (LD)
My Lords, I thank the Minister for introducing these SIs, which replace references to the EU in regulations with references to the UK, and as such are relatively innocuous. The first question I want to ask was raised in Grand Committee last Wednesday by the noble Lord, Lord Rooker, who is in his place. Is the Minister satisfied that all relevant regulations on these important food safety matters have been copied over into the SIs we are discussing today? The noble Lord found some SIs where some important matters had not been copied over. Perhaps he has spotted something which I have not in these regulations, and we will hear from him in due course.
Secondly, the general food law SI, the general food hygiene SI and the contaminants in food SI allow only one hour for a single officer in a local authority to familiarise himself or herself with the new regulations and disseminate the information to staff and stakeholders. I wonder whether it is a coincidence that they will have to do it on April Fools’ Day, the first working day after Brexit. The problem is that cuts to local authority funding have meant that some authorities no longer have any full-time food and feed officers to take charge on this issue, so who is going to do it, and who is going to pay for it? How can they do it in only one hour? Is this not just a covert way of ensuring that an impact assessment does not need to be produced? All those who responded to the consultation claimed that this cannot be done in so short a time and will certainly cost more than the Government estimate, and the Government have not offered to cover these costs. How did the Government reach the conclusion that the implementation time for businesses would be so staggeringly short?
The food hygiene SI allows a 21-month implementation period for food labelling changes from EU to GB or UK, but even here, the industry has concerns that some small businesses may struggle to comply. Other respondents to the consultation raised concerns that a common framework across the whole of the UK has not been properly addressed. The NFU pointed out that some farm holdings cross borders and animal feed moves across the Welsh and Scottish borders frequently. Is the Minister satisfied that devolution issues have been settled to the satisfaction of the Welsh and Scottish Governments?
Thirdly, can the FSA and its Scottish equivalent, the FSS, fulfil their additional responsibilities? Do they have enough staff and resources? Can the Minister respond to these concerns? Other respondents are concerned about how the Government intend to provide a suitable replacement for the risk-management function for food safety currently undertaken by the European Food Safety Authority. Can the Minister say what is being done about this? The whole of the food safety regime is based on risk management, and it is far from clear who will be responsible for this after Brexit and whether they have adequate resources. The National Pig Association is keen to retain a close working relationship with the EFSA to ensure that we in the UK receive food problem alerts in good time to take effective protective action against livestock diseases coming to us from the continent. This will also be a concern for other livestock producers. Can the Minister say what arrangements for this have been put in place?
I hope I will be forgiven for straying slightly beyond these SIs to some relevant matters, and I hope the Minister will find my comments useful for the future. If we are to leave the EU, the Government have always said that there is no danger of reducing our food standards and that, on the contrary, it gives us an opportunity to improve them. That is why I am surprised we have heard nothing yet of the Government’s plans to do that. One thing I would have wanted to improve in the common agricultural policy is to link food production and trade policies to the better dietary health of the European population. So here is a challenge for the British Government. They can start with two things, which I put down as markers for the future. First, they should ban the use of nitrites in processed meats, such as bacon and ham, in favour of other processes which have not been designated as carcinogenic by the World Health Organization, as nitrites have been, but which preserve meat just as well and protect it from botulism just as effectively.
Secondly, they should introduce supply-side regulations to reduce the UK population’s intake of free sugars by two-thirds to comply with the Scientific Advisory Committee on Nutrition’s recommendations, which make clear that overconsumption of sugar is responsible for the crisis of obesity, diabetes and all their associated preventable diseases, and for tooth decay in children, which is responsible for most of their hospital stays. Agricultural and trade policy are central to the supply of sugar, and amendments could be effective in changing the market for sugar before it even reaches the consumer. Reformulation programmes, sugary drinks tax and nudges towards behaviour change have their place, but we could make a greater and faster change if we addressed the supply side.
Once they have got all the relevant SIs about retained EU law through Parliament, will the Government look at these two opportunities as a matter of urgency? Has the Minister had any discussions or made any representations from her department to the rest of Government about such measures, as we move into the years after Brexit?
Lord Rooker (Lab)
My Lords, this is my first opportunity to welcome the Minister and congratulate her on her government appointment. I sincerely wish her well for the future.
As for interests to declare, I recently chaired an egg summit for the largest retailer in the country, which is in the register, and of course at one time, along with the noble Lord, Lord Krebs, who is in his place, I was chair of the Food Standards Agency. Before that, I was one of the last food safety Ministers, so I go back a little bit. This is my guest appearance only, at the personal invitation of my noble friends Lady Jones and Lady Smith; if the party leadership find out about it I will be in real trouble, although I can say that I am speaking for myself today since there is nobody else here from the Labour Party. I serve on Sub-Committee B of the Lords process for Brexit. We deal with all the FSA SIs as they come through. That was agreed simply because the chair is my noble friend Lord Cunningham, who was the Minister at the MAFF when we started work on setting up the FSA. I also sit on the Lords environment sub-committee. This morning we had the pleasure of having the chair of the Food Standards Agency and the Minister’s colleague, the Minister for Public Health and Primary Care, with us for an hour to discuss risk assessment and risk management post Brexit.
We are at one with these regulations. I am not going to waste the time of the Minister or of officials with details on the regulations. They provide continuity for people in terms of public health, the legal framework stays the same and there should be no problem with businesses. We were given quite good commitments in public this morning in terms of resources both for the Scottish end and the FSA, dealing with the rest of Great Britain and Northern Ireland, and therefore I do not want to duplicate everything.
There is one area which the Minister and officials might want to take away for the future. There is a lot of concern about local authority performance, and in terms of inspections there is no question about that. Environmental health officers are the unsung heroes of food safety. They do the takeaways and all the bits that people do not normally think about, but that is not politically sexy for councillors, to be honest, and therefore it is one of the first things they will go for chopping. Of course, without them, in terms of managing the situation, the FSA is powerless, because of lack of information.
Lord Krebs (CB)
I add my congratulations to the noble Baroness on her appointment as the Minister in the Lords for health and social care. I would like to pick up on a point mentioned by the noble Baroness, Lady Walmsley, and to reiterate the point made by the noble Lord, Lord Rooker. I am also a member of the EU Sub-Committee on Energy and the Environment, chaired by the noble Lord, Lord Teverson. We heard evidence this morning from the Minister for Public Health and Primary Care and from Heather Hancock, the chair of the FSA. The point that I want to pin down here is the one concerning risk management because we have heard contradictory statements over the past six to nine months about who is going to be in charge of risk management after Brexit day. What we learned is that at the moment, the arrangement is that EFSA produces the risk assessment, the risk management decisions are taken by the standing committee, on which the UK is represented by the Food Standards Agency—and on only rare occasions are decisions on risk management escalated to the Council of Ministers.
Heather Hancock has proposed, and indeed has set up an equivalent arrangement for post Brexit, so there will be an equivalent of the standing committee in which the FSA on behalf of England, Wales and Northern Ireland, and Food Standards Scotland will make the risk management decisions. That is her proposal. On the other hand, we have been told on numerous occasions that Ministers intend to take risk management decisions in relation to food safety and standards, which of course would take us right back to the old days before the FSA was set up when Ministers got themselves in a tangle when confronted with having to make difficult decisions about risk management and they sometimes got them wrong. I will not go into detail, but we are all aware of the mistakes that were made in the 1990s. I would like to get confirmation from the Minister of what Steve Brine told us this morning; namely, that it is his intention—I do not believe I am putting words into his mouth—that risk management decisions on most issues will be delegated to the Food Standards Agency. I would like confirmation that that is indeed the Government’s position because we have heard contradictory points of view.
That was my main point. My only other point is that I picked up this morning some difficulty over who is in charge in ministerial terms between Defra and the Department of Health and Social Care. I would like confirmation that it is indeed health Ministers who are accountable to Parliament, even if they are not making decisions. The current situation is that the FSA through the standing committee makes the decisions, but health Ministers account for them in Parliament if necessary. They are a kind of conduit from the Food Standards Agency to Parliament. I would like to hear confirmation that that will remain the case after Brexit and that responsibility will not somehow be split between Defra and the Department for Health and Social Care.
Lord Teverson (LD)
My Lords, I will make some brief comments. I too welcome the Minister to her position. I also particularly welcome the noble Lord, Lord Rooker, coming back to the Opposition Front Bench. I remember great times when he was a Defra Minister and the work he did when the climate change Bill went through.
I will raise two points that relate in many ways to what has been said by the noble Lord, Lord Krebs. Although these SIs make technical replacements to make sure that the regulations work, which I accept and understand, subject to my noble friend Lady Walmsley’s question about what has been left out, the whole crux of this comes back to how the structures that enforce and flow from these SIs will work. Is the Minister satisfied that the Food Standards Agency will be sufficiently independent of political influence when it comes to important decisions about consumer safety, food safety and agriculture? At a time of major incidents, decisions taken by Ministers can be very difficult in their effect, in particular on the food processing industry and indeed the agriculture industry.
The other area concerns our meeting with the Minister this morning at the sub-committee. I was very impressed by the chair of the FSA, Heather Hancock, and what she has achieved over time to put all the systems and people in place, but I was not convinced by the liaison between Defra and the Department for health over these negotiations. It seemed that on the question of systems the Minister was not entirely in touch—I do not mean this over-critically—with the negotiations in this area that Defra has undertaken. It is that liaison on which I would like some assurance.
Baroness Blackwood of North Oxford
I thank all noble Lords for their contribution to this debate on my first SI. I think it is quite unusual for your first SI to involve two former chairs of the independent body that you are in part debating. I shall do my best to tread appropriately carefully.
I shall respond to some of the questions asked by the noble Baroness, Lady Walmsley, about why the instruments deal specifically with these questions and do not think beyond Brexit. I am sure she will know, having experience with previous statutory instruments, that the instruments are responding to the fixing power of the European Union (Withdrawal) Act, which is limited to making appropriate changes to prevent, remedy or mitigate failures of retained EU law to operate effectively, so these instruments aim specifically to ensure that food safety and hygiene legislation functions in a no-deal scenario. I state at the outset that we think it is unlikely that the UK will leave without a deal—indeed, it would be very undesirable—but we must be prepared in all scenarios. I wanted to put on record at the beginning why these SIs were drafted in this specific way, although I know she knows that.
To respond to the noble Baroness’s question about whether we are confident that they have all the necessary read-across from EU law into UK law, we have been very careful to review the EU law in FSA policy areas to check that. We believe we have identified all the EU law that needs to have those connections across.
The noble Baroness asked about the consultation, and this was echoed by the noble Lord, Lord Rooker, regarding the responses about the impact on local government. The SIs were very effective, in as much as the FSA did a full public consultation that lasted six weeks. It should be praised for following that route and for engaging with local authorities and industry. It is reasonable to point out that local authorities are under pressure at the moment, but I think the reason why we have come to the view that it will take a relatively brief amount of time to get familiar with the new legislation is that there are no changes to the vast majority of requirements in the read-across. We are therefore confident that the time that has been predicted in the impact statement is sufficient, so we believe that that impact assessment is robust.
In addition, we wanted to discuss the devolved Administrations and consultation there. We are very pleased that Scotland, Wales and Northern Ireland have provided their consent for these instruments. We have worked very closely in developing them. The principles and rules set out in retained legislation in these SIs are intended to ensure that we have the same level of food safety protection throughout the UK, so that we can have a free flow of trade through it to address exactly the concerns that the noble Baroness raised. However, the FSA is not going to leave it there: it will continue that close working relationship with the Administrations of Scotland, Wales and Northern Ireland so we can be confident that in practice it will be possible to make arrangements to operate a framework of food safety regulation across the UK in whatever exit scenario we may face.
I turn to the important series of questions about RASFF risk assessment and management in a potential no-deal scenario, asked by noble Lords with great experience. I know there has already been something of a debate about this in Select Committee with my colleague the Minister, Steve Brine, so I suspect I will repeat some things that he has said—perhaps not so eloquently, but I will do my best.
As the noble Lord, Lord Rooker, rightly said, securing continued access to and participation in the RASFF system after leaving the EU is one of the UK Government’s top food safety priorities. We recognise its importance for UK food safety, but we also recognise the important role that the UK has played in establishing that system. We are proud of that, and would like to continue to play a role. We are pressing for full access to that system in our negotiations with the EU, and I am sure that is what my colleague the Minister said earlier. As he would have said, though, the exact arrangements for participation in RASFF are still a matter for the next phase of negotiations. It is therefore hard to provide any further detail on that, as I know noble Lords will recognise. We recognise the importance of it and of a continued strong relationship with the EU.
In communications back to us, the EU has recognised the important role the UK played in the establishment not only of RASFF but of equivalent food standards bodies in the European Commission, so I think the close relationships we have there will bear fruit. They are not just close relationships at a European Commission level but scientific relationships, which tend to weather political storms a little better than political relationships, if I may say so, so I have a sense of optimism about this. We must be clear that negotiators recognise that there is no precedent at this point for third-country membership of RASFF, but we will continue to make the point that we have an unusually strong contribution to make to it and therefore there is value in us engaging with it.
The mutual benefits are an important element of maintaining food safety for both parties, and we think it is important for the EU, as well as for the UK, that this close trading relationship can continue without compromising confidence in food safety. As the noble Lord, Lord Teverson, pointed out, FSA officials have been working closely on this point with Defra officials to ensure that there is a seamless approach to dealing with the challenge of exit, and that contact is maintained at not only a policy and legal level, but, most crucially, an operational level. That will need to continue as we go through this next period.
I now turn to what will happen in the undesired scenario of no deal, where we may well have to cope without access to RASFF, even if it is in the short term. Noble Lords will have heard earlier today from Heather Hancock, the chair of the FSA, on the plans she has put in place to ensure we have robust protections and operational measures in place to ensure that food safety standards are in no way compromised, no matter what the outcome of EU exit may be. In the first instance, we have ensured that the FSA is increasing the level of engagement with the International Network of Food Safety Authorities, INFOSAN—which, noble Lords will know, is managed jointly by the FAO and the WHO—to provide the UK with an extensive reach for communicating food safety issues to INFOSAN. Indeed, we believe that, with our extensive experience, we have done work to improve the effectiveness of that organisation.
We have to bear in mind that we have effectively been managing food risk from imports from and exports to non-EU countries through some of those bilateral and non-EU routes, so we can have confidence in the effectiveness of the FSA as a world-leading regulator—up until this point, in any case. Nevertheless, there has been no complacency in this. The FSA has put in place a number of measures to strengthen the domestic risk assessment and risk management measures. To do this, it has recruited additional staff involved in risk assessment and risk management, implemented an expanded role for the independent scientific advisory committees, which are now being strengthened by recruiting new experts and establishing three new expert groups, and expanded access to scientific experts who can provide scientific advice and other scientific services to inform our work on a contract basis, including by expanding our register of specialists. It has ensured that it will put in place a slightly new system that is based on current practice but includes: a structured separation of risk assessment and risk management; a new executive advisory committee that draws together officials from government; an expanded role for the independent scientific advisory committees, which, as I have said, have been strengthened by recruiting new experts; and a new process for authorising regulated products, such as food and feed additives, enzymes, flavourings, GM food and feed, and other novel foods.
The noble Lord, Lord Krebs, raised an important question about the independence of the FSA and the role of Ministers. It is right to assure him that the response he received from my honourable friend Steve Brine in Select Committee is right. While food safety decisions will be made by Health Ministers, the FSA and FSS will continue to lead and make risk management decisions during food safety incidents, providing risk management advice to the enforcement authorities, which take action. Of course, this independence is set out by statute. No proposal is in place to change that. All food safety and risk management decisions will be proportionate and evidence-based. They will be based on a package of supporting analysis in line with the fine tradition the FSA has of openness and transparency. We can be proud of the FSA’s tradition of doing that.
I hope I have answered the questions raised. On that basis, I beg to move.
General Food Hygiene (Amendment) (EU Exit) Regulations 2019
(5 years, 9 months ago)
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Baroness Blackwood of North Oxford
That the Grand Committee do consider the General Food Hygiene (Amendment) (EU Exit) Regulations 2019.
Specific Food Hygiene (Amendment etc.) (EU Exit) Regulations 2019
(5 years, 9 months ago)
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Baroness Blackwood of North Oxford
That the Grand Committee do consider the Specific Food Hygiene (Amendment etc.) (EU Exit) Regulations 2019.
Contaminants in Food (Amendment) (EU Exit) Regulations 2019
(5 years, 9 months ago)
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Baroness Blackwood of North Oxford
That the Grand Committee do consider the Contaminants in Food (Amendment) (EU Exit) Regulations 2019.