Animal Health, Plant Health, Seeds and Seed Potatoes (Amendment) (EU Exit) Regulations 2019

Wednesday 3rd April 2019 Lords Chamber

Motion to Approve

16:17

Moved by

[Lord Gardiner of Kimble]

That the draft Regulations laid before the House on 11 March be approved.

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Gardiner of Kimble) (Con)]

My Lords, as the Government have made clear, we intend to incorporate on to our statute book and make operable all relevant aspects of EU law from the point of exit to ensure that we have fully operable arrangements which protect our biosecurity and minimise trade disruption. This instrument covers animal health, plant health, seed marketing and seed potatoes and primarily makes technical amendments to ensure that recent EU decisions will be operable on exit day. I would like to make it clear from the outset that our biosecurity controls on animals and plants are paramount, and this instrument contributes towards ensuring that we will have the most robust arrangements in place to protect public health and the environment.

The amendments made by Regulation 2 concern recent updates on animal health control measures relating to African swine fever in certain member states. This instrument amends Commission implementing decision 2014/709, ensuring that recent updates relating to the two ongoing earlier requirements applicable to all member states are transferred to the appropriate Minister in the United Kingdom.

Appropriate Ministers are required to prohibit movement of live feral pigs and to erect advisory signage alerting the public to the ways in which the disease can inadvertently be spread by people who travel to and from affected areas. I assure noble Lords that this amendment supplements our existing powers in the Diseases of Swine Regulations 2014 to prevent and control African swine fever, including powers to cull infected animals and establish protection zones, surveillance zones and feral pig control zones in the event of any such outbreak.

Regulation 3 amends retained EU law to ensure that TSE functions operate correctly by replacing a reference to production and manufacturing processes approved by “the EU Commission” to processes approved by “the Secretary of State”.

Part 3 of the statutory instrument covers plant health. Regulation 4 applies to England only, and Regulation 5 applies to England, Wales and Northern Ireland. The instrument amends the Plant Health (Amendment) (England) (EU Exit) Regulations 2019 and the Plant Health (EU Exit) Regulations 2019 to deal with new EU plant health decisions introduced and to recognise arrangements with the Crown dependencies.

Planned meetings with the Crown dependencies concluded early in 2019 and Regulations 4 and 5 recognise the outcome of broader government agreements with them. The Crown dependencies, which include Jersey, Guernsey and the Isle of Man, are currently treated as part of the United Kingdom for the purposes of EU plant health legislation, so plants and plant products move between the Crown dependencies, the United Kingdom and the rest of the EU under the same EU plant health rules. Outside the EU, these arrangements will no longer apply, and there have been discussions with the jurisdictions concerned to agree future arrangements for the trade in regulated plant material. The Crown dependencies have agreed to adopt controls similar to those of the UK in order to continue to facilitate this trade. The changes made by this instrument give effect to those arrangements, specifically in relation to the import and movement of regulated material from the Crown dependencies.

The amendments made by Regulation 5 also deal with new EU plant health decisions recently introduced, supplementing the lists of regulated pests and plant material and controls in the regulations. Regulation 5 prescribes in full on our statute book the detailed requirements in recently introduced EU legislation preventing the introduction and spread of the damaging plant pest, the red-necked longhorn beetle. This pest is a threat to a range of fruit and ornamental species in the United Kingdom, including cherry, peach and plum. It has been present in Italy since at least 2010, where it is established in the Naples area. The specific measures that we are introducing will help protect against its introduction through, for instance, wood-packaging material and nursery plants.

Regulation 5 also amends recent EU decisions to provide for imports of ash wood from the United States and Canada to continue under the same stringent derogation provisions after exit, ensuring continuity of supply for UK businesses without compromising our biosecurity. This follows a prolongation of the EU decisions concerned, which have been proven to provide effective protection regarding this trade and which we wish to retain.

The Plant Health (Amendment) (England) (EU Exit) Regulations 2019 are also being amended to enable UK plant passports to contain specific details such as the origin, identity and quantity of the plants concerned. These are required in relation to the marketing of fruit plant propagating material and fruit plants to avoid the need for dual labelling. This follows an update of business-as-usual legislation, which has recently allowed this change to be made.

Part 4 of the statutory instrument covers seed marketing and seed potatoes, and it applies to England, as this is a devolved matter. Regulation 6 amends the Seed Marketing Regulations 2011 to allow a two-year interim period to recognise authorisations granted by EU member states for marketing the seed of new vegetable varieties that have not yet completed testing for official registration. This pragmatic approach maintains trade and will give growers in England continued access to new varieties at the earliest possible stage.

Regulation 7 addresses technical operability issues by removing from the seed potatoes regulations references to the European Commission, Community and member states, replacing references to “third countries” and removing reporting obligations to the EU.

Regulation 7 also assures continuity in supplies of seed potatoes by amending the Seed Potatoes Regulations 2015 to provide for a one-year interim period during which EU varieties and seed can continue to be marketed in England. In addition, it avoids financial loss by permitting a one-year period for existing stocks of pre-printed official EU certification labels to be used.

Regulation 8 amends the Marketing of Seeds and Plant Propagating Material (Amendment) (England and Wales) (EU Exit) Regulations 2019 to exclude the marketing in England of vegetable seed produced in Switzerland. The regulations had been amended to allow seed from Switzerland, but vegetable seed is outside the scope of the EU’s trade agreement with Switzerland—hence this change.

This instrument is required to attend to a number of elements of retained direct EU legislation to ensure its operability and appropriate functioning after exit. I beg to move.

[Baroness Byford (Con)]

My Lords, I thank my noble friend the Minister for introducing this statutory instrument, which is hugely important for the protection of both animal and plant health. I welcome the steps that are being taken within the statutory instrument. Most of the sections refer to transposing EU law into UK law, but I have one or two questions for the Minister. In Part B, on page 34 on infested zones, it says that the conclusions will be,

“based on sound scientific principles”,

and gives powers to,

“the appropriate UK plant health authority”,

to amend the buffer zones where required. Can the Minister tell us whether this power is literally transposed across or is a new initiative? If it is a new initiative, it makes good sense; if it was already there, I am glad.

On the same area of infested zones, the statutory instrument says that the demarcation can be lifted,

“if the plant pest is not detected in the area over a period of four consecutive years”.

Again, I ask the Minister: is that current practice or a new introduction within the statutory instrument?

I now move on to the marketing of seed potatoes from the EU and Switzerland, to which the Minister has just referred. On page 43, paragraph (8) refers to “GMO regulations”. Again, I wonder whether that is within the current restriction and whether it will have any bearing on any new varieties that might be worked on or introduced.

On page 3 of the Explanatory Memorandum, paragraph 2.10 refers to,

“UK plant passports to contain … information in relation to fruit plant propagating material and fruit plants”.

It states that the Plant Health (England) Order 2015 is out of date—the Minister referred to this earlier. Will it be updated or does the statutory instrument that we are debating at the moment do that?

Moving on again, I am glad to see that people travelling from the EU will be subject to the same rules as in the past when bringing plants and plant products into the UK, particularly those with their own packaging. One of the big risks we run is introducing disease from incoming plants, however well-intentioned the person was who brought them in.

The Explanatory Memorandum also refers to the European Statutory Instruments Committee’s comments that this SI has, “political and legal importance”, making “extensive amendments” to the two EU exit SIs. I wondered what these were, because when I read through it I did not pick them up. I hope that my noble friend the Minister will be able to comment on that when he winds up.

16:30

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I thank the Minister for his comprehensive introduction and for his time, and that of his officials, in the briefing session. As he said, we have here an SI that covers four subjects. First, regulation 999/2001 covers animal health in the form of bovine spongiform encephalopathy —BSE. Secondly, Commission implementing decision 2014/709 covers movement restrictions within the EU where African swine fever is present. Since the UK is designated free from that disease, we are not currently subject to those restrictions. Thirdly, Council directive 2000/29/EC covers protective measures on organisms harmful to plants and plant products. Fourthly, Council directives 2002/56/EC, 2002/55/EC and 2008/90/EC prescribe marketing standards for seed potatoes, vegetable seed and fruit-propagating materials. That is quite a mixed bag.

I shall deal first with the animal health aspects and TSE. This is a technical amendment relating just to England, as Scotland and Wales already have their own arrangements. Part 2, relating to African swine fever, relates to other member states. There is none here in the UK at the moment and we have not had an outbreak in the past. The SI makes provision to make it illegal to both import and export wild boar into the UK. There are powers in place to ensure that we can deal with an outbreak of African swine fever should one occur, and I am content that this aspect of the SI is both sensible and sufficient.

Until quite recently, a landowner a mile away from where I live had a small herd of wild boar on his land. His neighbours were none too pleased as it was not unknown for the piglets to escape and run riot, in the way that piglets will. Everyone was extremely pleased when he at last got rid of that small herd. I wondered whether he might have been subject to this SI had it been in place at the time.

The plant health aspects are slightly more complex. We debated this topic last week but that SI did not cover the Crown dependencies of Jersey, Guernsey and the Isle of Man. That is now rectified today. I will refrain from making the obvious comment.

Schedule 16A refers, as the Minister has said, to the red-necked longhorn beetle, which is currently present in Italy and a tremendous pest. The SI attempts to prevent this pest arriving in the UK. The other aspect covered by the SI is the import of ash wood, which may come in from Canada and the USA. It is vital for the UK to protect its biosecurity, and by restricting the importation of both the longhorn beetle and ash wood that may come from unregulated areas, I am assuming that we are ensuring full protection. Can the Minister confirm that that is the case?

It is vital that all imports of plant material are fully regulated and certified; that is, with a plant passport. All paperwork needs to accompany imports with very detailed information on plant health, with pre-notification of imported plants from infected regions. I agree with the noble Baroness, Lady Byford, about the issue of travellers bringing plant material into the country in their luggage. I hope that flagging up this piece of legislation will raise its profile and prevent the import of material that could be injurious to our indigenous plants.

Lastly, we come to seed marketing and seed potatoes. This follows a negative SI and is only a small part of what went before. There are no barriers to trade within the UK and no impact on the Scottish seed potato producers; it is a really big industry in Scotland. Our producers are reliant on certain types of potatoes coming in from the EU. In Scotland they use different types of potatoes from those in England, and I shall look out for those when next buying potatoes, although I am not confident that I will be able to find them where I live.

The previous SI on this subject had wide-ranging acceptance of the use of seeds from the EU for a two-year period. Given that the UK’s production of ware potatoes is valued at £900 million, it is important that we get this right.

I was very interested in the phrase “unlisted vegetable varieties” in paragraph 2.15 of the Explanatory Memorandum. I was correct in thinking that this applied to new varieties of vegetables. These have yet to be registered and require two years of official testing before that registration takes place. My understanding is that there is a short-term registration authorisation before this, so that the product can be market-tested to some extent. Perhaps the Minister could confirm that. One such new vegetable is kalettes, which have become very popular as a new and tasty way to eat our greens. There will undoubtedly be others. I can recommend kalettes if your Lordships have not already tried them.

Although there has been discussion with the devolved Administrations and there is now agreement on the way forward, there is no consistent approach across the UK. Basically, the devolved Administrations are doing their own thing, which, of course, they are entitled to do. However, this could lead to confusion among producers and growers as to whether they are complying with the legislation.

I fear there will be huge problems further down the road as we work with these various pieces of legislation, which have become very fragmented and piecemeal. It has all become rather rushed at the end, instead of there having been a proper implementation plan at the outset, with sensible groupings together. That said, I support this SI. I doubt that it will be the last, but I live in hope.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank the noble Lord for his introduction to this SI and for arranging a helpful briefing beforehand. I also declare an interest as the chair of Rothamsted Enterprises, which is part of a research institute that does considerable research into plants and seeds.

When I read through this SI, I had a very real sense of déjà vu as, of course, these are issues we have debated before. I do not intend to repeat everything I said about the importance of biodiversity at that time. Many of those issues were captured expertly by the EU Energy and Environment Sub-Committee report, Brexit: Plant and Animal Biosecurity. The committee made the point:

“Geographical proximity means that the EU will always be a key source of biosecurity risks to the UK”,


and therefore argued that it was essential that the UK Government negotiate continued participation in as many of the EU’s notification and intelligence-sharing networks as possible.

The Commons European Statutory Instruments Committee also intervened to argue that the proposed SI should be upgraded to affirmative, because of its political and legal importance. We agree with that analysis. Could the Minister update the House on where we have reached in discussions with EU partners on shared intelligence and continued co-operation on biosecurity issues post Brexit? Can he update us on the plans for a UK database to capture biosecurity alerts and share information with the EU?

Turning to the substance of this SI, we accept that these amendments to the original SIs are necessary. However, we are also concerned that they are the product of what seems a rushed job, in which errors and unintended consequences will be inevitable. The original SIs were debated only a fortnight ago and now we are back here again, correcting new errors and omissions that have surfaced. I have to say that, for an SI intended to correct minor errors, there seem to be rather a lot of them.

Luckily, these have been identified before our potential Brexit day but, if a no-deal Brexit goes through, I am sure we will still be playing catch-up on other errors that come to light in months to come. Indeed, the Explanatory Memorandum makes it clear that since this SI went to the sifting committee, further changes have been made to the text. I wonder whether the sifting committee has been notified of that, because adding wording at that late stage, however minor it might be, seems a rather strange way to go about the process.

This is the inevitable consequence of civil servants and lawyers working under unreasonable pressure and parliamentarians not having enough time to review the legislation thoroughly. The Minister said that biosecurity concerns were paramount. Can he reassure the House that he is confident that our biosecurity will not be compromised by the need for these and other corrections, some of which may not even have been identified yet? Has an internal risk assessment been carried out to measure the threat of a biosecurity breach through incomplete legislative barriers?

Throughout this whole process, one of our major concerns has been the capacity to check materials coming across the EU border into the UK. We have never been convinced that there are sufficient vets and inspectors to check imports into the UK thoroughly. Can the Minister assure us that all regulated plant material brought into this country via the EU from third countries will be checked for pests and diseases? Can he also update us on the controls that will apply for animal and plant products crossing between the Republic of Ireland and Northern Ireland?

On the specific changes, the Explanatory Memorandum addresses the regulation of seeds for unlisted vegetable varieties. The noble Baroness, Lady Bakewell, gave some interesting examples. It goes on to explain that the regulations provide an amendment to allow a two-year interim period for the marketing of these varieties. The reason given in paragraph 2.15 is that it is,

“for the purpose of gaining knowledge and practical experience during cultivation in England”.

When I read this, I thought it sounded rather patronising to horticultural specialists, implying that they need to build on their practical experience. It rather implied that they did not understand the nature of the seeds that they were cultivating. We have heard a little clarification of the purpose of that interim two-year break, but it would be helpful if the Minister could clarify a little more.

Paragraph 2.10 of the Explanatory Memorandum refers to another SI on plant health in which provisions are out of date, meaning that we will need another SI before Brexit day. This issue was raised by the noble Baroness, Lady Byford. Can the Minister update the House on the progress of this separate SI? Has it now been laid, considered and agreed by this House?

Finally, may I raise the territorial range of this SI? In his introduction, the Minister set out some of the explanation. I understand that different parts of the instrument apply differently—some to the whole of the UK, some to England and Wales and some to Northern Ireland. If only part of this SI relates to Scotland, are there good reasons why the Government have chosen to have a separate policy on some aspects of this? As the noble Baroness, Lady Bakewell, said, what is the justification for a pick and mix, which is what seems to be happening at the moment? What are the implications for businesses, which are having to operate under those separate regimes when some things are UK-wide and some are devolved? I understand that there is a framework agreement, but I do not think that on issues such as biosecurity it was ever intended that they should be mixed up in this way.

It would be helpful if the Minister could explain which sections refer to Scotland alone, and what steps are being taken to create a UK-wide biosecurity framework with shared powers and responsibilities. Are we providing leadership at a national level to try to ensure that happens? It is in everyone’s interest. I look forward to his response.

[Lord Gardiner of Kimble]

My Lords, I am most grateful to my noble friend Lady Byford and the noble Baronesses, Lady Bakewell and Lady Jones of Whitchurch. Many of us have been battling over these statutory instruments in so many areas. There may well be other opportunities, but I wish to record the enormously constructive way in which we have worked together, whatever our views, to get the right result for the statute book. Biosecurity in this area is absolutely paramount. I also say to the noble Baroness, Lady Jones of Whitchurch, that I accept responsibility for any errors. I am a person of detail. I do not like errors, but I am prepared to apologise and say I am sorry about it. The instruments have all gone through the normal checking process, including checks by Defra and other government lawyers as second and third eyes. They have also been scrutinised by the JCSI. Sometimes mistakes are made and I regret that, but a lot of the reason for having this discussion today is to ensure, as we always wanted to do, that what is on the EU statute book is accommodated in our own.

16:45

I am very grateful that my noble friend Lady Byford opened her remarks on the question of buffer and demarcation zones, precisely because of the considerable section of this statutory instrument that deals with Aromia bungii—the red-necked longhorn beetle. It is a really damaging, wood-boring pest, native to Asia, that has arrived in Naples. We wanted to ensure that this provision was on our statute book. Looking through the SI, the majority of its pages are arrangements for the buffer zones and the demarcation, which is specifically lifted from the EU decision and statute on dealing with that pest. That is why it is a full package. I say to her that these are all the elements of what we will have at our disposal, in the European Union and in our country, to deal with this invader—although, of course, this is all designed to stop its arrival.

My noble friend Lady Byford asked about the reference to GMO. The reference is to ensure that any variety of potato that is a GM variety complies with the relevant GM legislation. There are no GM varieties of potatoes authorised for marketing in the UK, so this provision is to ensure operability after exit in that situation.

The question of passenger luggage is obviously important. There is no policy change but the clarity of the text is to provide that legal certainty. As we have said on a number of other areas, when we leave, on day one, there will be the same biosecurity risk from within the EU. But we want to ensure that our message is to encourage passengers always to be biosecurity-aware, wherever they are coming from, because of the arrival of pests and diseases.

My noble friend Lady Byford also mentioned the use of “extensive”. I am obviously interested in that word because, as I have sought to explain to your Lordships, of the intricacies and detail of these new points that have come in. The large, extensive area is to deal with the beetle; that is how I would interpret the word because I have described all the key elements involved in this statutory instrument.

The noble Baroness, Lady Bakewell, rightly raised the subject of her knowledge of the wild boar. What has happened in eastern Europe, and with the jump to Belgium, is that the disease has rapidly spread in the wild boar population. There is of course the concern for commercial pig production. In the commercial pig units in that area of Belgium, I am afraid that all the pigs had to be put down because of the concern about the spread of the disease. That is why it is absolutely imperative—I assured your Lordships specifically on this—that we had the powers to deal with the matter. This goes back to biosecurity; the jump of African swine fever came when it arrived in the Czech Republic, with a weak connection to someone dropping a pork product. We do not have that confirmed but it is very likely to be the same in Belgium. That is why to raise awareness we have, for instance, put out a lot on the biosecurity imperative in the newspapers, in languages for people from eastern and central Europe, and about not bringing in pork products for all those reasons. I reassure your Lordships that our communications team is working with industry. In the pig industry, it is absolutely imperative that the personal biosecurity of everyone who works in a pig unit is of the highest order.

I also take the point made by the noble Baroness, Lady Bakewell, about accumulations of wild boar populations. Mature consideration about how we manage wild boar is needed, not only in relation to adjacent commercial pig production but in general. I know that there is widespread concern among communities in the Forest of Dean about how best to manage an increasing population of wild boar.

The noble Baroness, Lady Bakewell, raised a point about ash. I am very much aware not only of the travails of the ash here but of the threat posed by the emerald ash borer in Russia and the United States. That is why it is important that we have a systems approach. The wood must be debarked; it must be heat-treated and dried to strict specifications. This is an area where biosecurity in terms of the protocols around importing wood is so important; I say that to the noble Baroness, Lady Jones of Whitchurch, as well.

The noble Baroness, Lady Bakewell, spoke also about unlisted EU vegetable varieties. I am very pleased that she mentioned the kalette. We often see in shops nowadays all sorts of different produce that we might not have seen before, but it is a really important part of agricultural, horticultural and vegetable innovation and good-quality food. Many of these varieties are bred in the EU, particularly in the Netherlands. We want UK growers to have early access to seeds. In addition to kalettes, there are also lettuce varieties with resistance to downy mildews, for example. I say again that unlisting is not about any biosecurity concern; it is about where vegetable varieties have not been registered.

The noble Baronesses, Lady Bakewell and Lady Jones of Whitchurch, mentioned the devolved Administrations. I assure them that all four Administrations have co-operated. In many cases, the same changes have been made deliberately to avoid disruption to businesses. I think that it is fair to say that, in Scotland, seed potatoes are an iconic feature of production. If we have a devolution settlement, and if an Administration wish to bring forward their own arrangements, there are the frameworks and there is the work that we have all been doing to ensure a consistent approach. There is obviously merit in consistency but, if an Administration feel that they would like to put it on their own statute book in their own way, that should be seen as a force of how devolution settlements work.

The noble Baroness, Lady Jones of Whitchurch, raised an important point on systems. There is precedent for third-country access to EU notification systems, which we will of course seek to negotiate. That is obviously desirable and I hope that we are successful but, in case we were to lose such access, we are developing our own database to capture details of interceptions. We have our own dedicated risk and horizon-scanning team. As noble Lords will know, we have a monthly biosecurity meeting with the Chief Plant Health Officer and the Chief Veterinary Officer.

We are absolutely rigorous in our own horizon-scanning. I accept that international collaboration, not only within the EU but around the world, is not only desirable but imperative, so we are negotiating, as I say. There are publicly available elements of all EU systems and we will continue to be able to access those. I see this very much as a mutual interest. Again, we in this country have some of the best scientists and advisers and we need to collaborate across the world. I am looking at the noble Baroness, mindful of Rothamsted and her knowledge of that great institution, but also of others and the innovation that is happening through agri-tech investment, public and private. That will be very important at home and abroad.

On the question of our own situation, I have mentioned before that we have our own publicly available plant health risk register. Unfortunately, more than 1,000 pests are currently recorded on the risk register. I also regret that the numbers are increasing, which shows how vigilant we must be. Through this screening process we are able to identify significant threats and prioritise our actions and resources accordingly. I endorse all the work that Defra, APHA, the Forestry Commission and our colleagues in the devolved Administrations are doing together on this.

A few years ago we were not as advanced in plant biosecurity as we were in animal health and biosecurity, but an enormous effort has gone into advancing it. The horticultural sector is very much more aware of it and Grown in Britain is important. Also important is biosecurity in the sources from which we buy our plants—this is something we need to work on with our friends and partners in the European Union, because it is where some of the loose connections have been in the past.

Turning to the issue of close collaboration, we are working extremely closely with all the devolved Administrations on the matters before us and more generally. I say to the noble Baroness, Lady Jones of Whitchurch, that we have arrangements in place for the additional training of official veterinarians and the arrival of certification support officers who are to assist them: we place great importance on that work and the whole biosecurity situation. As for APHA and the increase in the number of inspectors for transit goods, in terms of arriving sealed and the inspection, all this is predicated on our view that, on day one, biosecurity for trade within the EU is not going to change. That is why, quite rightly, we want to continue facilitating the import trade, but we are conscious of the need to keep a careful eye and scrutiny going forward. I would be very nervous of giving lectures to British horticulturalists or, indeed, to many of the gardeners I know, so this may not have been the best language to describe the fact that, although we have extremely experienced horticulturalists, we also think there are opportunities from elsewhere.

On the point in paragraph 2.10, this went through the negative route as business as usual. That enabled the amendments that we needed to bring forward in this instrument. I am sorry it is so convoluted.

I should perhaps have declared my farming interests—I apologise for the lateness; it just occurred to me. Although I do not grow vegetables or have pigs on the farm, it is appropriate I declare that connection.

I will look at Hansard to see whether there are any specific points I may not have covered. I do not resile from the point that biosecurity is paramount. Lack of biosecurity has in the past caused great damage in our country. Biosecurity is a global matter; a lot of problems have arisen because, in my view, we all need to concentrate more on biosecurity around the world, as I have said to Ministers within our European friendship. It would be disastrous if the travails with xylella in Italy and parts of Spain and Portugal came here. We must do all we can. This is a very useful further instrument.

Motion agreed.