DRAFT PESTICIDES (AMENDMENT) (EU EXIT) REGULATIONS 2020
DRAFT PERSISTENT ORGANIC POLLUTANTS (AMENDMENT) (EU EXIT) REGULATIONS 2020
(4 years ago)
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The Chair
Before we begin, I am asked to remind Members about social distancing arrangements and to email any notes to Hansard at hansardnotes@parliament.uk
The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Victoria Prentis)
I beg to move,
That the Committee has considered the draft Pesticides (Amendment) (EU Exit) Regulations 2020.
The Chair
With this it will be convenient to discuss the draft Persistent Organic Pollutants (Amendment) (EU Exit) Regulations 2020.
Victoria Prentis
It is a pleasure to serve under your chairmanship, Mr McCabe.
Both statutory instruments relate to the effective regulation of chemicals. The first, the draft Pesticides (Amendment) (EU Exit) Regulations 2020, makes further updates to retained European Union legislation for plant protection products—more commonly known as pesticides—and maximum residue levels. Pesticides are regulated in the EU by two main EU regulations. The first is regulation 1107/2009, which concerns the authorisation of active substances and the placing on the market of pesticide products that contain approved active substances; the other is regulation 396/2005, which governs the maximum residue levels of pesticides permitted on food and feed. Another EU directive concerns action to promote the sustainable use of pesticides.
We put in place various pesticides EU exit statutory instruments last year to ensure that a national regulatory regime could operate sensibly in future. These included the Plant Protection Products (Miscellaneous Amendments) (EU Exit) Regulations 2019 and the Pesticides (Maximum Residue Levels) (Amendment etc.) (EU Exit) Regulations 2019, which dealt respectively with the two main EU regulations. A further SI, the Pesticides and Fertilisers (Miscellaneous Amendments) (EU Exit) Regulations 2019, dealt with consequential amendments to domestic legislation, enabling it to be linked correctly to retained law.
The draft Pesticides (Amendment) (EU Exit) Regulations 2020 makes further, very minor amendments to address developments since the original EU exit SIs were produced. The EU has moved on with its regulation; we therefore have to catch up. These regulations have no significant impact on businesses. The amendments are needed, first, because of new EU legislation that has come into force recently. Some adjustments are therefore needed to ensure that the retained law continues to work correctly in a national context, including where the new EU legislation interacts with the corrections that we have already made in the earlier SIs.
Secondly, the Northern Ireland protocol means that EU regulations on pesticides continue to apply directly in Northern Ireland. We need to amend the earlier UK-wide exit SI so that redundant references related to Northern Ireland are removed, which will ensure that the cross-references work correctly. Thirdly, we need to update some transitional provisions in the earlier SIs so that they apply from the end of the transition period when the retained law comes into force, rather than from exit day. Finally, we need to make minor technical corrections to SIs regarding the establishment of harmonised risk indicators. In short, without this instrument, various highly technical provisions will not be retained in national law in a way that works smoothly.
The second instrument is the draft Persistent Organic Pollutants (Amendment) (EU Exit) Regulations 2020. Hon. Members may be familiar with POPs—persistent organic pollutants—not least from David Attenborough programmes. They are also known colloquially as “forever chemicals”. The SI makes technical amendments to retained EU legislation for POPs, which are substances that are recognised as being particularly harmful to the environment and to humans. The EU POPs regulation was put place to fulfil commitments under both the UN Stockholm convention on POPs and the convention on long-range transboundary air pollution. The UK is a party to both conventions.
The instrument is needed for two reasons. First, EU regulation 850/2004 was re-made by the European Parliament in July 2019 and is now 2019/1021. An earlier EU exit instrument put in place for the original exit day in March last year now needs to be replaced to reflect that. It is very similar, but we need to update it. Secondly, the instrument removes references related to Northern Ireland and updates the legislative cross-referencing, as will the first instrument. The following provisions were included in the earlier exit SI and are now included once again. It provides for the repatriation of all decision-making functions and powers from the EU to the Secretary of State, the Welsh Minister and the Scottish Minister to exercise in their respective areas. The Secretary of State may exercise these functions on behalf of a devolved Administration, with its consent. The Secretary of State will also publish reports on the management of POPs, which are currently submitted to the European Commission for publication.
The following provisions relate to the new provisions in the EU recast of the original legislation. The Environment Agency will assume the role given to the European Chemicals Agency to provide technical and scientific support. This role will be fulfilled with the consent of the devolved Administrations. Additionally, the EU regulation places a duty on the UK to take necessary measures to trace and control POPs once they enter the waste stream. Ordinarily these measures would be implemented in the UK under section 2(2) of the European Communities Act 1972. However, as work on delivering these measures will continue beyond the end of the transition period, this instrument creates a new power for Great Britain to make regulations to enable us to do that. The exercise of this new power will be subject to parliamentary approval and is time limited, with a requirement to make any regulations before 31 October 2023. Finally, the requirement to amend this regulation also provides an opportunity to include the Northern Ireland protocol provisions applicable to this regulation.
In conclusion, I can confirm that these instruments will be able to function with or without a deal with the European Union. The Government are committed to ensuring continued levels of protection for human health and the environment, as well as providing stability and continuity for business. I beg to move that these instruments, which were laid before this house on 8 October, be approved.
Ruth Jones (Newport West) (Lab)
It is good to have you in the Chair, Mr McCabe, and it is a pleasure to speak for Her Majesty’s official Opposition this afternoon. It is good also to see the Minister in her place; I think that this is the first time I have faced her since my appointment to this role—
Ruth Jones
No, it’s okay. And it is a pleasure to do so, of course.
With another week, however, come another two statutory instruments from this Government. Minsters have dithered and delayed, essentially since July 2016. As we now approach the end of the transition period, we are forced to rush through important safeguards and protections, and vital standards and basic legislation, to ensure that any disruption on 1 January 2021 and beyond is mitigated as best as possible.
It is simply not good enough, and I urge the Minister to think about how this looks, not necessarily just to Opposition Members, but to the people of the United Kingdom, who want and expect legislation considered in this House to be given the necessary time to be scrutinised, evaluated and amended where and when necessary. Although we will not seek to divide the Committee, I remind the Minister that we will hold the Government to account.
We are here to discuss two statutory instruments. I will deal with them separately, but in one speech. The draft Pesticides (Amendment) (EU Exit) Regulations 2020 will make a number of amendments to earlier EU exit SIs that convert EU legislation into British law, to reflect EU law ceasing to apply and retained EU law coming into force at the end of the implementation period, thereby ensuring that the national regime will operate effectively. It also makes amendments as a result of the Northern Ireland protocol, under which the EU regimes will continue to apply. We understand that legislative changes are therefore required to remove Northern Ireland from retained EU legislation so that the new regime will apply in Great Britain only, rather than UK-wide. For the studious among us, paragraph 2 of the explanatory memorandum outlines in further detail the reasons for the draft regulations, which the Minister has outlined this afternoon.
Many in the Opposition will find it interesting and not a little puzzling that Ministers have not sought to consolidate all the relevant changes into a single instrument, as with the Environment and Wildlife (Miscellaneous Amendments etc.) (EU Exit) Regulations 2020, which were recently debated in the other place. It would be helpful if the Minister explained in as much detail as possible why a consistent approach has not been taken. The House is at risk of being swamped with delegated legislation, and the Government have a duty to ensure that appropriate scrutiny is carried out. Colleagues in the Opposition and, I know, in the other place are increasingly concerned at the risk of our having two sorts of environmental regulation—some that are tidied up, accessible and coherent, and others that are tangled like a bowl of spaghetti, unintelligible to normal human beings and capable of being understood only by specialist lawyers. That is simply not good enough. I urge the Minister to take that on board as constructive criticism.
People deserve good government, and good government needs good legislation, not rushed-through SIs that are inaccessible to the overwhelming majority of people out in the real world. Paragraph 7.9 of the explanatory memorandum sets out the United Kingdom’s national strategy on control programmes and how sampling will run alongside the 2020-to-2022 period that our friends in the EU use. I would be grateful if the Minister outlined when Her Majesty’s Government will begin planning beyond 2022. When will Ministers engage with stakeholders, and in what way? For Opposition Members, the most fascinating point about the draft regulations is whether Conservative Ministers may choose to continue to align on this issue with our friends, neighbours and allies in Europe even after the period up to 2022 concludes.
This is important stuff and we need to get it right. Many stakeholders out in the community are following our business and want to make sure we do. I pay tribute to Greener UK and all the associated groups that are working to ensure that we are prepared for the end of the transition period. Like many of those groups, the Opposition are concerned that there is no longer a requirement for detailed criteria on the uniform application of conditions on by-products to
“ensure a high level of protection of the environment and human health and facilitate the prudent and rational utilisation of natural resources.”
Can the Minister confirm that the pesticides and persistent organic pollutants regimes will not be weaker from an environmental perspective post Brexit? What precise steps are the Government taking to ensure that?
A provision that has already been passed means that Great Britain will allow substances to continue to be approved for three years longer than the EU. I would be grateful for some reassurance that that provision has been fully appraised and explored. This is part of the whole transition process, so can the Minister explain what risks there might be of substances continuing to be approved for three years longer than they normally would? How will the Government assess those risks and what measures will they take to handle them?
The draft Persistent Organic Pollutants (Amendment) (EU Exit) Regulations 2020 will create a new power to take measures to control and trace waste contaminated by persistent organic pollutants in relation to Great Britain. This is a recent requirement under EU law and, as we have heard, the measures have not yet been developed, either here or in Europe. We have been told that any legislative changes will be subject to the affirmative procedure and will have to be made by 31 October 2023. When the Department for Environment, Food and Rural Affairs was asked about that deadline by the Secondary Legislation Scrutiny Committee, it explained that it was thinking about timescales that are not determined by the EU. Rather worryingly for the Opposition, it went on to indicate that the powers to create the control and tracing system would be used “only if needed”. Can the Minister indicate the circumstances in which a control and tracing system would not be needed?
As ClientEarth has already pointed out to the Minister, the draft regulations omit a current requirement under European law that when it is decided whether a specific substance is a by-product rather than waste, detailed criteria on the application of conditions on by-products shall
“ensure a high level of protection of the environment and human health”.
When that was raised with the Department, it indicated to the Secondary Legislation Scrutiny Committee that further regulations would be needed next year, and that would be the appropriate place to set out any such conditions and to consider whether to make the exercise of the power subject to the condition that ClientEarth identified. Once again, we are worried about language, particularly the word “whether”. It implies that an existing provision in the EU safeguards might not continue, so will the Minister assure us that there will be no watering down of that provision in the regulations that come forward next year? It is an important point that deserves clarity.
On regulatory and advisory expertise, Opposition Members are concerned that oversight of standards on pesticides and persistent organic pollutants will be less effective post Brexit. For example, the role of the European Chemicals Agency has been replaced by the Environment Agency and it is not clear whether the Environment Agency has equivalent expertise in the field. Will the Minister confirm that the Environment Agency will provide at least the same level of expertise as the European Chemicals Agency? Will she confirm any plans for additional funding, including in the forthcoming spending review, for the Environment Agency to carry out the role?
As I said, we will not divide the Committee by opposing the regulations, but we will hold Ministers to account for their promises and their answers today and in the coming days and weeks. Our departure from the European Union will see major change for all the people in Wales, Northern Ireland, Scotland and England, and it will be a break-away from how things have been done for almost half a century. Of course, that means things will be challenging. We understand that, but there is no excuse for government by SI, or for the Government to pack the parliamentary calendar in such a way that they hope to shield themselves from scrutiny. I simply say to the Minister: be warned, we are watching.
Victoria Prentis
There is no rushing of the statutory instruments. It is perfectly normal to use them to make regulations. I am afraid I do not know why the SIs were not consolidated in the way the hon. Lady suggested. I am sure that the timetable was agreed by the usual channels in the normal way.
The SIs are highly technical and involve no policy changes, but I will endeavour to answer the hon. Lady’s questions. The use of pesticides is allowed only when a comprehensive scientific assessment shows that it will have no harmful effect on people. The assessment of risks is rigorous and authorisation is frequently refused. Pesticide users are required by law to take all reasonable precautions to protect human health and the environment and to apply the product only to the area they intend to treat. The Government’s review of the national action plan for the sustainable use of pesticides will take an holistic approach, centred on integrated pest management, which is very much part of our policy making. We will consult on the updated NAP later this year.
The hon. Lady asked about the three-year change and why the statutory instrument delays the introduction of changes to the renewal dossiers until 2026. The answer is to provide a smooth transition between EU law and retained law so that the requirements that apply to active substances under retained law will be the same as those for the same substances when they are considered under the EU regime. The change in date is because some active substance approvals will expire in the first three years after the end of the transition period. We need to extend the date to allow proper time for evaluation of the substances under our new national regime.
Will we continue to report on progress and actions? Yes, of course we will submit reports as we are required to do as a party to the Stockholm convention. Our new waste-regulating power is needed because the revised EU regulation requires measures to be taken to ensure that POPs waste is controlled and traced in the same way as hazardous waste. Work on those measures is ongoing and will not completed before the end of this year, after which we will lose the European Communities Act powers, so we need to have our own to carry on that important and environmentally critical work.
There is no watering down of protections. We remain strongly committed to the effective and safe management of chemicals to protect the public and the environment. That will not change at the end of the transition period. We remain absolutely committed to the Stockholm convention and we will ensure that regulation of POPs continues to develop in line with scientific evidence as we get it.
On the Environment Agency, advice will be taken from Natural Resources Wales, the Scottish Environment Protection Agency and the Department of Agriculture, Environment and Rural Development in Northern Ireland. They will undertake the new role given to the European Chemicals Agency in the new EU regulations. The Environment Agency’s expertise puts us in a strong position to make our own decisions after the end of the transition period. I feel that that answers the hon. Lady’s questions and I commend the regulations to the Committee.
Question put and agreed to.
Draft Persistent Organic pollutants (Amendment) (EU Exit) Regulations 2020
Resolved,
That the Committee has considered the draft Persistent Organic Pollutants (Amendment) (EU Exit) Regulations 2020.—(Victoria Prentis.)
Draft Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2020
(4 years ago)
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The Minister for Defence Procurement (Jeremy Quin)
I beg to move,
That the Committee has considered the draft Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2020.
It is a pleasure, Sir David, to move that the regulations, which were laid before the House on 7 October, be approved.
Our departure from the European Union has opened up the opportunity to review how we procure in the defence and security sector, and how we improve pace and become agile. That work is under way, but it does not inform these particular regulations. Other than some technical updating, the regulations are designed as permitted under the European Union (Withdrawal) Act 2018 to provide legal certainty to defence suppliers as we leave the transition period on 31 December.
I would like to draw to the Committee’s attention a minor error in the heading of regulation 2, which currently reads:
“Pre-exit amendments of the Defence and Security Public Contract Regulations 2011”.
As the Committee will be aware, regulation headings are not an operative part of the instrument, and regulation 2 is clearly stated to come into force on the day after the day on which these regulations are made. It has been confirmed by the laying offices and the legal counsel to the Joint Committee on Statutory Instruments that the deletion of the words, “pre-exit”, can and shall be made editorially prior to signature.
Before we consider the detail of the statutory instrument, which I shall refer to as the 2020 regulations, I would highlight that this is a second EU exit amendment to the Defence and Security Public Contracts Regulations 2011. The first amendment was debated by both Houses and signed by the Secretary of State for Defence last year. The 2019 regulations, as amended by the 2020 regulations, will now enter into force on “IP completion day” which is the end of the transition period. The instrument ensures that the procurement provisions of the withdrawal agreement and the EEA-EFTA separation agreement are correctly applied to the procurement of those public contracts and framework agreements launched but not finalised under the defence and security public contracts regulations before the end of the transition period. These transitional procurements will be regulated under that version of the defence and security public contracts regulations which meets our current European obligations. Businesses, and indeed Government, will continue to have legal certainty beyond transition period completion day. Defence and security procurements will be underpinned by solid legal bedrock.
Reflecting the fact that regulations 3 and 4 of the 2019 regulations will now come into effect at the end of the transition period, the 2020 regulations replace references to “exit day” in the 2019 regulations, with “IP completion day” where necessary. The opportunity has also been taken to update certain references to financial thresholds in the 2019 regulations, which were revised during the transition period.
As well as amending the 2019 regulations, the new legislation updates and corrects the original 2011 regulations. Hon. Members will wish to note that these changes are not related to EU exit. In regulation 12, which covers technical specifications, an outdated reference to “European technical approval” is replaced with “European technical assessment”. Care has been taken when drafting the instrument to ensure that it is as consistent as possible with other Government public procurement legislation. This change to regulation 12 brings defence and security procurement legislation into alignment with the Public Contracts Regulations 2015. [Interruption.] The opportunity has also been taken to update the reference to the common military list of 2018 with the common military list of 2020.
Together, the 2019 regulations and the instrument before us reflect the UK’s new status outside the EU. The 2019 regulations, agreed by this House over 18 months ago, restrict automatic legal access to the UK’s defence procurements to suppliers from the UK and Gibraltar only. However, the framework and principles underlying the procurement regime remain unchanged. This is in accordance with the powers given to amend retained EU law in the European Union (Withdrawal) Act 2018. That Act does not allow major policy changes or the introduction of new legal frameworks. Amendments to the DSPCR made under the powers given by the 2018 Act are limited to dealing with the effect and consequences of EU exit.
As I mentioned at the outset, a comprehensive review of the DSPCR is under way, with a view to improving the pace and agility of acquisition. This is a significant piece of work which will require the introduction of new legislation. In the meantime, the amendments that these regulations make will ensure public procurement business conducted under the umbrella of the defence and security procurement legislation will continue to flow smoothly and confidently. I commend the 2020 regulations to the Committee.
The Chair
Not a good start—my mobile phone went off just now, and I was so quick at the start of the sitting that I didn’t allow the Clerk to read out the title of the regulations. That having been done, I call Mr John Healey.
John Healey (Wentworth and Dearne) (Lab)
Thank you, Sir David. It is a pleasure to serve under your chairmanship. It is some time since I have had that pleasure, but it is a pleasure nevertheless.
I thank the Minister for his technical explanation of this technical set of regulations, and I welcome the level of interest on the Government Benches. As he knows, my hon. Friend the Member for Birmingham, Perry Barr (Mr Mahmood) has been working from home since March, otherwise he might have been in his place as the shadow Minister. My hon. Friend the Member for Portsmouth South (Stephen Morgan) is one of the few people who seems to have been traced by the Government’s system to deal with the covid virus; he has been advised to isolate for the next two weeks, but is keeping very well. Of course, I am glad that my hon. Friend the Member for Enfield, Southgate is here to support me.
The statutory instrument is indeed a largely technical set of propositions which ensure that the procurement provisions of both the withdrawal agreement and the European economic area and European Free Trade Association separation agreement are properly transposed into UK legislation, and correctly applied at the same time to those procurement contracts that have already been launched but not yet finalised.
As the Minister said, the regulations obviously update the 2011 regulations. First, can he confirm how many contracts the regulations apply to? In other words, how many contracts will have been launched but not yet concluded before the end of the transition period? Secondly, can he confirm that the transition period or implementation period will end on 31 December?
The Minister said a couple of other things that I think are of wider interest. He said, as his counterpart in the upper House did when the upper House considered the regulations, that a comprehensive review is under way on the defence and security public contracts regulations. Given that it is more than four years since the Brexit vote, more than two years since the European Union (Withdrawal) Act 2018 reached the statute book and almost one year since this country’s exit date from the European Union, why has this work not been undertaken already? Why are we dealing with these temporary, interim, make-do and make-and-mend measures rather than considering a full set of new regulations that should govern our procurement of defence and security needs for the future?
In addition to the number of contracts or framework agreements covered by the regulations, can the Minister confirm how many applications are expected to be launched between now and the end of the implementation period, or in other words that will fall in future within the remit of the regulations? I also note that the de minimis threshold has been increased by some £65,000. Can the Minister explain why there has been such a big leap? Does it simply update the 2011 levels, or has some other factor come into the calculations made by the Ministry of Defence?
The framework that we are considering is an interim one, as the Minister said, but will apply to contracts that will be in place well into the future. Could he indicate how long the contracts to which the draft regulations will apply may be extant? Finally, the Minister called our departure from the European Union an opportunity for Britain. As a result of the draft regulations, the new system and our departure from the European Union, how many more defence and security public contracts will be placed with British firms over the next year, rather than with EU firms, as the previous regulations would have implied?
Jeremy Quin
First, as I am sure the whole Committee does, I wish the hon. Member for Portsmouth South (Stephen Morgan) a safe period, having been traced. I trust that it is no more than being traced, and that he will soon be back among us.
I am honoured that the shadow Secretary of State has joined us this afternoon. It is good to see him in fine form. I thank him for translating into English my technical description of the regulations and the pith of our attempt to provide legal certainty; he was absolutely right. He raised several technical questions that I will try to assist with. Inevitably, I cannot give him the exact number of additional contracts that will flow under the draft regulations between now and year end, but in a typical year we would expect between 2,000 and 2,500 contracts and frameworks to be awarded within the Ministry of Defence overall. On 8 November, we were running at 2,104—slightly below the average for the year, I suppose—of which 35% would normally be awarded under the DSPCR, so that gives an indication of the numbers.
The right hon. Gentleman is absolutely right that some of the contracts may run on for some time. As he well knows, I cannot be definitive about how long that will be; it depends on contract negotiations, but it may last for a period of time. However, that is the value of the draft regulations: suppliers will know with certainty the legal basis under which they will operate. They will know that for however long the period lasts, the contract was awarded under the DSPCR, which currently prevails as per the draft regulations.
John Healey
I am grateful for the Minister’s attempt to provide specific answers to my questions. Under the DSPCR—if he cannot confirm the answer this afternoon, perhaps he would write to me—how many of the contracts or the framework agreements to which the draft regulations are designed specifically to apply have been launched but not concluded?
Jeremy Quin
I can inform the right hon. Gentleman that that is the exact question that I have asked. I have yet to be enlightened with the answer; I wanted to come armed with the statistic to share with him in case he asked me a direct question, but I cannot do it on my feet right now. Given the number of contracts and frameworks that we are discussing—there had been some 2,104 by 8 November—he will appreciate that finding an exact number may be a bit of a compilation exercise, but I appreciate why he asked the question. I will research the answer and write to him, and if I cannot enlighten him fully I will explain why and put a date to it.
The right hon. Gentleman also asked about the shift in the thresholds. We have introduced the correct number as of 1 January 2020; the main change will have been currency movements over that time, because the DSPCR is set out in euros and clearly we have put down a sterling number.
Perhaps the most important aspect that the right hon. Gentleman asked about is when we can expect the excitement of new regulations, which will be how we procure in future. As he is aware, we have launched DSIS, the defence and security industrial strategy. That work is ongoing, and we look forward to announcing it in due course. It looks very closely at how we can embrace new regulations in future, and how we can ensure that strategic industries remain and flourish in the UK that meet the needs of our defence requirements.
John Healey
I am quite attracted to the picture that the Minister paints. Could he give some indication of when he expects the comprehensive review of the regulations to conclude?
Jeremy Quin
I would not wish to excite the Committee by giving an exact date at this moment; it would not be appropriate to do so. The work is ongoing and I look forward to its being presented. I fear that I cannot share an exact date with the right hon. Gentleman, as it is not known to me at the present moment, but I look forward to its being presented to the House and, hopefully, to his welcoming what I trust will be a new way forward to ensure that we maintain our partnerships and help to secure an extremely prosperous and flourishing British sector. As the right hon. Gentleman knows, the Department spends more than £19 billion a year with UK suppliers, but there is more that we can do to ensure that people know the vision going forward, where they should be investing and where they should be working with us to ensure that they meet the needs of our future defence requirements.
Question put and agreed to.