Import of Animals and Animal Products and Approved Countries (Amendment) Regulations 2022
(2 years, 7 months ago)
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Lord Benyon
That the Grand Committee do consider the Import of Animals and Animal Products and Approved Countries (Amendment) Regulations 2022.
Relevant document: 37th Report from the Secondary Legislation Scrutiny Committee, Session 2021-22 (special attention drawn to the instrument)
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Benyon) (Con)
My Lords, these regulations were laid before the House on 30 March 2022. Their purpose is to protect domestic food safety and biosecurity and to support trade by bringing the process for amending country-specific import conditions for non-EU trading partners in line with those already in place for EU and European Free Trade Association states.
The instrument makes technical and operable amendments to several pieces of retained EU law relating to GB food safety and biosecurity in order to remedy operational deficiencies arising from EU exit. It does not constitute a change in policy. These amendments will enable the Secretary of State—with the consent of Scottish and Welsh Ministers—rapidly to change country-specific import conditions in response to biosecurity or food safety risks in trading partners who have already been approved by this Parliament to export animals and animal products to Great Britain.
The amendments made by this instrument are necessary for two significant reasons. First, trading partners must comply with country-specific import conditions found in retained EU law. Regular changes to these conditions are required to respond to changes in risk. Amendments to retained EU law are currently made by statutory instrument. This means that, even when a negative procedure is used and the 21-day rule is breached, there is a significant gap between the identification of risk and the legal implementation of import controls. Both trade bodies and trading partners have raised concerns about the lack of responsiveness of the current legislative mechanism. By facilitating a move towards amendment by administrative procedure, this instrument will enable changes to be made much more quickly, thereby reducing the risk of exotic disease incursions into the UK.
Secondly, the instrument will also ensure that the United Kingdom meets its international obligations and treats all trading partners equally. The current situation allows country-specific import conditions for EU and EFTA states to be managed administratively but requires legislative amendments for all other trading partners. This discrepancy leaves us at risk of challenge at the World Trade Organization. Similarly, as timely amendments to country-specific import conditions are also necessary to meet trade agreement obligations, our current inability to make rapid changes for non-EU trading partners leaves us at risk of both legal challenge and of retaliatory action against exports from Great Britain by affected trading partners. This instrument will reduce these risks by establishing a uniform approach for all trading partners. It will also help to facilitate trade and agreement on future trade deals by assuring trading partners that we are capable of applying and lifting restrictions effectively and without undue delay.
Having outlined why this instrument is necessary, I want to address the concerns that the Secondary Legislation Scrutiny Committee has raised in regard to the loss of parliamentary scrutiny for changes to import conditions. I appreciate and fully understand such concerns. However, I emphasise that this instrument has been drafted in such a way as to ensure that as much parliamentary oversight as possible is retained. Its amendments remove a specific and very limited number of import conditions from legislation. Other import information, including that relating to country and commodity approvals, is unaffected by this instrument. Crucially, the approval and/or delisting of countries and commodities will continue to require secondary legislation in the form of a statutory instrument. It will, therefore, remain subject to parliamentary scrutiny. In other words, this instrument cannot be used to approve the import of, for example, chlorinated chicken or hormone treated beef, nor to lower food safety or animal health import standards in any other way.
The powers delegated in this instrument will instead be used to apply, lift and change country-specific import conditions in response to changes in risk in approved trading partners. The instrument stipulates that all such decisions must be informed by assessments of risk, taking into account specified animal and public health criteria and other relevant matters, requirements that have been retained directly from EU law. Assessments will be carried out or co-ordinated by veterinary experts in Defra and will be subject to approval from the animal disease policy group—a senior government body that brings together experts from across government. Furthermore, the legal implementation of any changes by the Defra Secretary of State will be, as it is now, subject to agreement by the Welsh and Scottish Governments, thereby providing a further layer of scrutiny.
To conclude, I state that the instrument covers England, Scotland and Wales, and that the devolved Administrations in Scotland and Wales have both formally consented to it. I beg to move.
Lord Trees (CB)
I very much thank the Minister for his explanation of this SI and thank his team for the helpful Explanatory Memorandum, which, I must admit, I particularly appreciated—I have to say that the instrument itself is hardly riveting bedside reading. I also noted the report of the Secondary Legislation Scrutiny Committee.
I need hardly tell this audience that the risks to the biosecurity of the UK animal population are ever present; we are in the midst of a huge avian influenza epidemic at the moment. That infection is particularly difficult to control because migrating birds and in particular wildfowl bring it to the UK. However, pigs do not fly, and what would be more serious would be an incursion of, for example, African swine fever. In recent years that has devastated the pig population of China, has been spreading westwards in continental Europe slowly but irrevocably and has in fact reached Belgium. Apart from causing serious disease in domestic pigs, it infects wild boar; when there is a wild animal host, it makes the eradication of such an infection doubly difficult. Worse still, of course, is foot and mouth disease, which we suffered from greatly in 2001, and I regret to say that our ability to deal with such major livestock outbreaks since 2001 has been seriously eroded by the shortage of veterinarians we now have, particularly those with livestock experience. For these reasons, it is extremely important that we maintain high levels of biosecurity, and regulation and inspection of imported animals and animal products is a key and important tool to maintain that biosecurity.
I therefore strongly support the principal objectives of this SI, which will enable, following expert advice from the animal disease policy group, a rapid administrative response to threats to animal and indeed public health by restricting imports from third countries instead of what could have been a dangerously delayed legislative process. It is relevant to note, as the Minister emphasised, that these changes simply bring into effect a process for third-country importations which will align with the current processes for imports from EU and EFTA countries.
However, as context to this particular instrument, it is a matter of great concern that, for the fourth time, recently the Government have delayed the implementation, for example, of checks on food imports from the EU to Great Britain. The failure to introduce such checks, apart from disadvantaging commercially our own farmers, may provide a short-term financial gain but risks a long-term extremely serious financial pain—remember that the 2001 foot and mouth outbreak cost the UK an estimated £8 billion in 2001.
With regard to this particular SI, my one concern, on which I seek reassurance from the Minister, is that I note that, as well as providing the administrative power to enhance our biosecurity in the face of assessed threats, it also provides for the reverse: the converse administrative mechanism to reduce inspection controls or remove or lift restrictions without parliamentary scrutiny. Will the Minister assure us that this instrument will not be a vehicle to enable the calls by some members of Her Majesty’s Government to unduly delay, reduce or in some way compromise important checks in future and potentially risk our animal health biosecurity?
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I thank the Minister for his introduction. The Secondary Legislation Scrutiny Committee debated this SI and asked several questions of Defra, which were raised by Friends of the Earth. I understand that, as a result of the avian flu outbreaks in 2020 and 2021 in Ukraine, a ban on the imports of birds covered the whole of that country, whereas the outbreaks were, in reality, confined to certain areas. Therefore, it seems sensible to restrict the import of affected animals and animal products to those specific areas, rather than the whole country. However, this could have consequences.
The noble Lord, Lord Trees, has eloquently referred to numerous animal diseases that could affect our domestic flocks and herds. Surveillance and vaccination are essential to provide protection. Might it be possible for an area of a third country to have an outbreak but not declare it in order to be able to continue to trade? Can the Minister say whether that might be likely to happen?
The Secondary Legislation Scrutiny Committee was assured by Defra that the power in the SI would be used very rarely and only in extreme and emergency cases. However, there is already legislation in place to enable emergency action to be taken where needed. Therefore, is it necessary to introduce new, stringent legislation, which is not scrutinised by Parliament? Parliament is being cut out of the process, and the decision rests solely with the Secretary of State, after consideration with the devolved Administrations.
The Explanatory Memorandum states, at paragraph 11, that guidance for trading partners and border control posts will be issued
“prior to the instrument coming into force.”
If I understand the process correctly, we debate this SI today, and probably tomorrow or Thursday the SI will be approved in the Chamber and will come into force immediately. This SI could have a devastating effect on our farmers and markets if disease outbreaks are not dealt with effectively and efficiently. Can the Minister say where the all-important guidance is currently in the legislative sausage machine, and when it will be published? Time is of the essence.
Paragraph 6.3 of the Explanatory Memorandum refers to allowing restrictions to be imposed immediately when a disease outbreak is notified, and states that restrictions can be removed quickly where risks are diminished. Can the Secretary of State be sure that the risk is diminished? Instead of rushing to release an area from risk, would not it be better to wait and be sure that it is completely disease free?
The new powers are primarily to be used for imposing import restrictions, lifting import restrictions and imposing and amending additional conditions that need to be met for trade to continue. All this rests with the Secretary of State at his or her discretion, with no reference to parliamentary scrutiny.
The animal disease policy group will recommend whether new countries can be added to the third-country list and make recommendations to the Secretary of State. Can the Minister reassure us that the processes and safeguards carried out by the animal disease policy group are sufficient to ensure the UK’s biodiversity? Will the Secretary of State use the same criteria in each case? I would like clarity on just what discretion the Secretary of State has. Is it likely that a country the Government are keen to admit to the list of third countries and begin trading with might not get the same rigorous assessment as others? Are some likely to get special treatment?
It is extremely worrying that Parliament is being bypassed on an issue which would be of considerable concern to the public if they were aware of it. I look forward to the Minister’s reassurance on this subject that all angles have been covered.
Lord Teverson (LD)
I apologise to my noble friend for speaking after her, but I used to chair—until it was abolished—the EU Environment Sub-Committee, of which the noble Lord, Lord Trees, was an excellent member. One of the things we were really concerned about was that, when we moved out of the EU, we no longer had access to TRACES, which, as the Minister will know, is the main system for controlling biological security in animal and food products. Exactly as the noble Lord pointed out, we have put off these import controls I think three times. Can the Minister clarify how we are substituting the information we had from TRACES and how that now works? Are the Government satisfied with it, and where will we go with it in future while we wait for those biosecurity controls to come in in respect of the EU?
Baroness Jones of Whitchurch (Lab)
My Lords, I thank the Minister for his introduction and for the helpful briefing he organised beforehand. I begin by very much echoing the concerns raised by the noble Lord, Lord Trees, about the Government once again delaying checks on food imports from the EU, and the biosecurity and consumer protection implications of all that. I also very much welcome the intervention of the noble Lord, Lord Teverson, on TRACES; we have discussed the issue many times and were always assured that there would be alternatives for TRACES in place, so it would be useful to hear from the Minister whether that is now the case or not.
I thank the Secondary Legislation Scrutiny Committee for drawing these proposals to the attention of the Committee and their implications for the loss of parliamentary oversight. The Explanatory Memorandum has set out the changes made by previous EU exit SIs and provides an explanation as to why these provisions are not considered sufficient to deal with urgent cases. We are acutely aware of the ongoing and changing threats to our animal and plant biosecurity, as well as to human health, and the need to have robust measures in place to act swiftly when new threats arise, as the noble Lord, Lord Trees, said. As such, we are sympathetic to the case being made and do not intend to vote against these regulations.
However, the Secondary Legislation Scrutiny Committee has quite rightly pointed out that, once again, we face the loss of parliamentary oversight on the imposition of these urgent measures. It specifically proposes that the Minister be asked to give an assurance that the regulations will be used only on the rarest of occasions, so I ask on its behalf: can the Minister give an assurance that the powers will be used only on the rarest of occasions?
Following on from this, I have some detailed points which I would like the Minister to answer. First, if our response times because of parliamentary delays have led us to be vulnerable to biosecurity and food safety risks, why has it taken Defra until May 2022 to address this concern? What has been happening in the meantime? Have we left traders and consumers exposed to extra risk because of our inaction? I would be grateful if the Minister could explain why nothing has been done before now.
Secondly, in correspondence with the Secondary Legislation Scrutiny Committee about the capacity of the animal disease policy group, Defra responded:
“The expertise, capacity and processes required to exercise the powers in this instrument appropriately are well established within government, and have already been used to effectively control a range of SPS … risks since January 2021.”
If we already have the means to control these risks effectively, does that not rather undermine the need to give the Executive these extra powers? Could the Minister give some examples of the effectiveness of the current control regime to provide some context to this debate? What are the effective control measures? Where were they lacking? Why do we need to give Ministers extra powers? Friends of the Earth has also written in, asking about the independence of the bodies making these decisions. It would be helpful if the Minister could shed some further light on the independence of the bodies carrying out these risk assessments and making recommendations to Ministers.
Thirdly, the correspondence from Defra makes it clear that the new powers will be used to impose import restrictions not just where there was a new biosecurity risk but also to lift existing import restrictions if, for example, a country had successfully controlled an animal disease outbreak. This point was raised by the noble Baroness, Lady Bakewell. Can the Minister explain why existing parliamentary oversight cannot be maintained for the lifting of import restrictions? This does not seem to be as urgent as when a new biosecurity threat emerges—where action may be needed in days or, at most, weeks. There would very much seem a role for Parliament in overseeing the lifting of import restrictions and in making sure that the country of import had taken all the necessary action.
Finally, paragraph 7.5 of the Explanatory Memorandum outlines some of the risks of delayed action. It talks about the threat of retaliatory action against exports from Great Britain. It also mentions the threat of intervention by the WTO. The Minister referred to this in his introduction. Can he expand on this concern? I am struggling to understand what these threats are. Can he give a scenario as to how serious this risk of WTO intervention is? From what he said about retaliatory action, are we developing a reputation for responding slowly to biosecurity risks? Is this a real concern about which we should be aware? I am just trying to understand what our competitor or trading nations feel our biosecurity level is and what the threat of retaliatory action is. It would be helpful if the Minister could shed some light on this. I look forward to his response.
Lord Benyon (Con)
My Lords, I am grateful to noble Lords for their interest in this issue and for their contributions. I will open by reiterating that the amendments in this instrument do not constitute a change in policy. The instrument seeks to establish a process through which we are able rapidly to implement country-specific import controls where significant risks to animal and public health have been identified from non-EU trading partners which are approved to import live animals and animal products into Great Britain, ensuring a consistency of approach across EU, EFTA and non-EU trading partners. The instrument cannot be used to approve or delist countries and commodities, nor to lower import standards in any way.
Furthermore, while I appreciate that the shift to an administrative procedure raises sensitive issues about parliamentary oversight, I have outlined why I believe that it succeeds in striking a balance between the requirement for appropriate scrutiny and the need for effective biosecurity and safety controls. It is also worth noting that noble Lords and Members of Parliament in the other place will, of course, continue to be able to hold me, other Defra Ministers and the department to account, through all the usual means, for the ways in which the powers in this instrument have been exercised.
Let me just for a second address some of the points on an apparent loss of parliamentary scrutiny. Of course, when we were in the EU, these matters were decided by tertiary legislation, so they were effectively agreed with people such as national Governments’ Chief Veterinary Officers and other officials, then at an official level within the Commission it was decided, and none of us within the two Houses would really have much say after that, unless something went badly wrong. What has happened since is that it has become a secondary legislation matter.
Noble Lords are right to ask why, and why now. I can give a scenario, which was touched on by the noble Baroness, Lady Bakewell. When we wanted to relist Ukraine last year, when an avian influenza outbreak had diminished, it took two months to get it through the necessary processes here. That is an impairment to free trade—and that addresses some of the points of concern to international organisations. It is right to say that what we are seeking here is more ability for executive action. There are still a lot of ways, within and without the statutory instrument, to hold Ministers to account for the decisions that the department takes. But we are a long way more responsive to noble Lords than we were able to be in the European Parliament.
Let me just address people’s concerns about border controls. This instrument cannot be used to remove border controls for any country, either in the EU or outside it. So it is really important that we are confident that we have the capacity and capability to undertake assurance functions previously carried out at EU level. The department has put the resources in place and drawn on additional expertise in its agencies and across government, in particular the Food Standards Agency.
I shall endeavour to answer other points that have been raised. The noble Lord, Lord Trees, wanted clear assurances that, if the Secretary of State is given the power to lift import restrictions via an administrative procedure, it will be done in a way that does not endanger biosecurity and food safety. That is an entirely valid point to make. Defra will not lift restrictions on imports of animals and animal products unless it is confident that it is safe to do so. We are committed not only to maintaining our high import standards but to continually improve on the processes in place to protect UK biosecurity and food safety. The UK Chief Veterinary Officer leads this work, following the repatriation of functions from the EU agency, DG SANTE F, in January 2021. To deliver this, Defra’s team of veterinary and technical experts oversee a detailed assessment and audit programme to ensure that any decision to change UK import authorisations are risk and science based. This includes: surveillance of emerging overseas disease and food safety risk; ongoing monitoring of trading partners’ regulatory regimes; and assessing non- compliance at GB border control posts. Where concerns are identified, we are able to undertake an emergency in-country inspection to verify that those imports are safe.
The noble Lord was entirely right to raise the impending risk of African swine fever. I chair a monthly biosecurity meeting, and I am brought up to date on a more regular basis on the progress across Europe of diseases like that, which are alarming. The noble Lord is right to say that it is running rife in some countries in their wild boar populations, and we are very careful about that. We recently exercised how we would cope with an outbreak of African swine fever. The whole purpose of what we do is, first, to prevent the disease coming here but, secondly, to be able to deal with it, contain it and ensure that it does not go through our domestic farm pig industry, which would be a very serious situation.
I hope I have also answered the point that the noble Baroness, Lady Bakewell, made about, if you like, a fraudulent regime that might seek to suppress information. Of course, that happened, or could have happened, under the regime which we are asking the House to approve we move away from. It happened when we were in the EU and it can be prevented only by good intelligence and good security, by working with our posts abroad and by continuing to work with our EU neighbours, making sure that the professional contacts at Chief Veterinary Officer level and other biosecurity official levels are maintained.
Baroness Jones of Whitchurch (Lab)
I am not sure if the noble Lord, Lord Teverson, wants to intervene, but I would like a bit more clarification. Is the alternative to TRACES up and running or not? The Minister talks about it still being developed—is it there? Is it functioning?
Lord Teverson (LD)
I thank the noble Baroness for intervening. It sounded rather like work in progress to the extreme; I thought we would be rather further ahead than that.
Lord Benyon (Con)
It will always be a work in progress, because we are developing new intelligence and data on what is going on. We have a formal system with the EU in our relationship as a third country and with other countries outside. As the noble Lord knows, we are no longer part of the TRACES scheme, but we have access to the information we need to keep us safe.
With this statutory instrument, traders will continue to move their goods from the EU to Great Britain as they do now. Since 1 January last year, the UK has put in place strict biosecurity controls on the highest-risk imports of animals, animal products, plants and plant products from the EU. These controls will remain in place and we will still be able to respond to changes in biosecurity risk. If there is a delay to our rolling out of border control posts, there is no saving, as I think was hinted by someone. We have recruited people and are using them in an intelligent way to make sure that we are controlling the interim and will then build up the capacity of border control posts over the next 18 months to be fully functioning.
We are also able to use safeguarding measures to protect our biosecurity where we have particular concerns and evidence about pest or disease risk. Given that we have close alignment with and strong knowledge of the EU rules, we continue to have a high degree of confidence in biosecurity associated with those imports. We will have powers to check and seize non-compliant products and deal with any pest or disease risk identified.
I have spoken already about the animal disease policy group. I hope that has reassured noble Lords.
The noble Baroness, Lady Jones, asked whether measures like those in this instrument, which will remove parliamentary oversight by conferring additional powers on the Secretary of State, will be used only on the rarest of occasions. It is a very good question, and I hope I can reassure her. I am aware that the Secondary Legislation Scrutiny Committee stated in its report that noble Lords may wish to obtain assurance from me that instruments such as this, which remove parliamentary scrutiny, will be introduced only on the rarest of occasions. This is a valid concern that I am more than happy to address. Noble Lords can rest assured that instruments such as this will be laid only in instances where they are absolutely necessary, as I hope they know.
In this case, as I outlined in my opening remarks, the shift from a legislative to an administrative procedure is vital to ensure that we can respond quickly and effectively to changes in risk in approved trading partners, thereby protecting animal and public health and supporting trade. The powers granted in this instrument will not, however, be used “on the rarest of occasions”. Indeed, it is precisely because regular changes need to be made to import conditions—lifting or imposing restrictions in response to constantly evolving levels of risk in approved trading partners—that the shift to an administrative process is so vital.
I am seeking inspiration on other questions that have been raised. The noble Baroness also raised points from Friends of the Earth in its submission on this. In our response, we made it clear that the expertise, capacity and processes required to exercise the powers in this instrument appropriately are well established within government and have already been used effectively to control a range of import risks since January 2022.
While the required risk-based and evidence-led decision-making processes are in place, there is currently no quick and effective mechanism for such decisions to be implemented in law for non-EU trading partners. In other words, we currently have the ability to arrive at informed decisions, based on appropriate assessments of risk, but we lack the ability to implement them quickly in law. This instrument is therefore needed to establish a process for ensuring that decisions can be rapidly implemented in law to protect biosecurity and the safety of this country.
The final point that the noble Baroness raised was why this has taken so long. We left the European Union at the end of 2019; why are we doing this now? We have been aware of the deficiencies in retained EU law and how, in practice, these deficiencies prevent us from amending country-specific import conditions sufficiently quickly. While recognising these deficiencies, Defra took the view that correcting them was not essential on day 1 of EU exit. As other pieces of legislation have been prioritised, including that which enables import conditions for EU and EFTA states to be managed administratively, it has not been possible to draft and present this instrument until now. The matter was brought forward by the case relating to Ukraine, which I quoted, which showed the necessity for this instrument. I hope that I have addressed the concerns of noble Lords. I beg to move.
Motion agreed.