Management of Hedgerows (England) Regulations 2024
Baroness Lawlor Excerpts(6 months ago)
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Earl Russell (LD)
My Lords, we too welcome these regulations. This instrument was noted by the Secondary Legislation Scrutiny Committee. Hedges are a crucial part of our historic landscape, living landscape and biodiversity, so anything we can do, cross party, to improve and promote them is extremely important.
These draft regulations propose new legal requirements for the management and protection of hedgerows on all agricultural land in England. The Explanatory Memorandum notes that the new rules will “broadly replicate” the previous cross-compliance requirements under the EU’s common agricultural policy, which linked the management and protection of hedgerows with subsidy payments.
The cross-compliance system ended on 31 December 2023, as part of the Government’s wider agricultural reforms in England and the transition to domestic schemes after Brexit. This instrument will finally close the gap in protections since 31 December 2023, requiring farmers and land managers to maintain green-cover buffer zones of 2 metres from the centre of the hedgerow, prohibiting cultivation or the application of pesticides or fertilisers and reintroducing a ban on cutting or trimming of hedgerows between 31 March and 31 August to protect wildlife during the bird nesting season.
The Secondary Legislation Scrutiny Committee reports that it asked Defra whether any cross-compliance requirements would not be replicated, and the department replied that the SI was described as “broadly” replicating
“because it is not an exact replica of those rules”.
The Minister has spoken to the fact that the SI extends the scope of the requirements to some hedgerows that did not fall under the previous cross-compliance rules. Cross-compliance rules applied only to those farmers in receipt of the common agricultural policy direct payments.
Under this SI, the requirements on hedgerow management will apply to all agricultural land, as defined, including some land which was not subject to direct payments—such as allotments and land with horses—and, as we have heard, farms of less than 5 hectares which had previously been exempt from cross-compliance. As a result, the SI in effect offers greater compliance for our hedgerows.
The broadening of hedgerow protection is welcomed; indeed, the consultation showed 95% support. However, will the Minister confirm that that understanding of “broadly” is indeed correct? Further, as has been mentioned already, paragraph 5.2 of the Explanatory Memorandum states:
“These requirements will protect hedgerows that are deemed ‘important’ in this instrument for the purposes of the power to regulate in respect of hedgerows in section 97 of the Environment Act 1995”.
Will the Minister explain the meaning of the word “important” in this sentence? I ask the Minister to consider, as others have mentioned, the exemption of fields under 2 hectares and hedgerows less than 5 years old and the possible need to extend the cutting period. Will he keep them in the department’s sights to see whether these regulations will, in time, need further reform or strengthening?
The SI covers only hedgerows on agricultural land, as defined. Do the Government have any intention to extend these protections to hedgerows managed by local authorities, such as on golf courses? A lot of our hedgerows are not on farmland; they are also in other places.
Regarding paragraph 8 of the Explanatory Memorandum, can the Minister give a clear indication of when he expects the department to publish guidance on enforcement, and what information and funds will be disseminated to ensure that it is understood and properly enforced? Will he provide some estimate of the proposed cost of fines based on the financial benefit derived from any offences under the SI?
Finally, paragraph 11 of the Explanatory Memorandum notes that the SI will come into force “the day after” today. I welcome that, to minimise the gap in compliance. Is the Minister aware of whether there has been any damage to our hedgerows as a result of the gap in the legislation? Has the department done any checks on that? If not, will it do so to see whether any damage to hedgerows has happened in that period?
Baroness Lawlor (Con)
My Lords, I rise briefly to say that I welcome these regulations very much. I am very glad that the department is taking its responsibilities to hedgerows seriously, but I think we could be encouraged to do a little bit better than the EU. I echo what noble Lords have said about extending the period, perhaps, or encouraging alternate sides of the hedgerow. Are there are any plans to do so? I say this not just because of the shelter they give wildlife or the food for birds over the winter but because there are some birds, such as the blackbird, that can have a late brood in August. After 31 August, these fledglings may seek shelter on the ground beneath the hedgerows. I think that maybe we could think of extending the period in certain parts.
I also echo the question about whether there is any requirement on local authorities; will the regulations extend to local authorities or just to privately owned land? I leave it at that, but I would be very grateful to hear any thoughts.
Baroness Hayman of Ullock (Lab)
My Lords, we welcome this statutory instrument. We have heard that a regulatory gap arose when cross-compliance was withdrawn at the beginning of this year. Our concern is that the SI was not progressed more quickly, because the no-cutting period it covers is from 1 March to 31 August, so cutting has been permitted that is not going to be permitted next year and has not been permitted in previous years, so getting this new system in place as quickly as possible must be a priority. I was interested in the question asked by the noble Earl, Lord Russell, about whether there is any evidence of what damage has been done in the meantime and, if so, what will be done to mitigate that.
My noble friend Lady Young of Old Scone said that this is a bit of a missed opportunity because we could have done better than the former EU protections, and she went into some information about that. We have heard that the main issue is the three exemptions from the former cross-compliance—fields under two hectares, hedgerows younger than five years and exemptions to the no-cutting period—so I will not go into detail around that. Despite the fact that some noble Lords, particularly the noble Earl, Lord Leicester, who is no longer in his place, mentioned that farmers and landowners on the whole follow best management practice, and we do not want to undermine the work that farmers do, the exemptions should have been carried across wholesale into the new regulations because otherwise hedgerows are not protected. It is important that we have those protections in place in law for sound environmental reasons.
The noble Earl, Lord Russell, mentioned enforcement. The SI embraces a different approach to enforcement that we have been seeing across farming more broadly. In other words, it is now advice-led, which will improve trust and drive better outcomes. Interestingly, the SI allows a defence of mistake when regulations have not been followed, whereas cross-compliance always said a breach is a breach, even if that breach was a mistake. I think we would in principle support that because there is no point in punishing farmers if they have made a genuine mistake, but it takes more time and resources for the Environment Agency to implement the new approach. The noble Lord, Lord Teverson, asked who enforces this. My understanding is that it is the Environment Agency, but perhaps the Minister could confirm that. How is that slightly more complex enforcement going to be resourced and managed? One of the reasons for asking is because new data has shown that the majority of deadlines that were issued as part of this new advice to farmers to improve the environment were missed. It is just about making sure that it all comes together and works effectively.
Martin Lines, from the Nature Friendly Farming Network, who we all know well, said in an article that he thinks large food corporations bear significant responsibility for this. Does the Minister agree with that? Where has the evidence come from?
Windsor Framework (Retail Movement Scheme) Regulations 2023
Baroness Lawlor Excerpts(1 year, 1 month ago)
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Baroness Lawlor (Con)
My Lords, I support the noble Lord, Lord Dodds, and I am very pleased that he has raised his concerns about these regulations on retail and plant safety made under the Windsor Framework. I share those concerns on two main grounds.
First, there is the impact on trade, about which noble Lords have spoken. I draw your Lordships’ attention again to the report of the European Affairs Committee’s sub-committee on the Windsor Framework in respect of plant trade. It pointed out that plants such as prunus, hazel and hawthorn are on the prohibited list and so must use the red lane. As noble Lords know, these are vital to the hedgerows and ecosystems of both islands: the whole of the island of Ireland, including Northern Ireland, and of the UK. We ought to look at the problem as a whole.
My second concern is about who can send or receive these items. To the best of my knowledge, unless you are a registered provider you cannot use the green lane. This will eliminate internet providers, many of which are small businesses that rely on internet trade. It will undermine such providers’ competitiveness. Needless to say, I am also concerned about the impact of these regulations on producers in Northern Ireland, who will suffer a competitive disadvantage vis-à-vis the Dublin Government’s arrangements with the EU.
Finally, the constitutional status of Northern Ireland should prompt His Majesty’s Government to rethink the whole premise of the Windsor Framework. I understand that it is an easement, but it should be seen as an easement in some respects for certain areas of trade and certain traders. It should not be seen as an end in itself until the whole arrangement respects the constitutional status of Northern Ireland under both the Good Friday/Belfast agreement and the protocol. The noble Lord, Lord Dodds, referred to Article 1(2), but the whole protocol respects the constitutional status of Northern Ireland. We are undermining that by giving our consent to regulations that do not accept the premise of the Good Friday/Belfast agreement or even the Northern Ireland protocol.
Lord McCrea of Magherafelt and Cookstown (DUP)
My Lords, at paragraph 7.10 the Explanatory Memorandum says:
“The Windsor Framework establishes a new, sustainable and durable framework for GB-NI trade … This instrument is required in order to implement the Framework”.
In coming to consider the regulations before us, it is possible to assess whether they are worth while only if noble Lords first ask what their purpose is? As other noble Lords have mentioned, both instruments relate to EU Regulation 2023/1231, whose object is to affirm and effect two different border arrangements, one of which is less destructive than the other. As such, the regulations are not about removing any sense of border in the Irish Sea, as the Prime Minister suggested, but rather they are concerned with providing two different border experiences. Notwithstanding their differences, they are both united in upholding a border that can be negotiated only with an export number, customs and SPS paperwork—the extent of which, as my colleagues have said, varies depending on which set of border arrangements you use—at least 100% documentary checks, 5% to 10% identity checks and some physical checks at border control posts. This plainly does not give effect to the reintegration of Northern Ireland into the UK single market but, rather, puts in place mechanisms to process the challenges arising from the fact that, rather than Northern Ireland being integrated and enjoying unfettered customs and SPS access, fettering is being put in place, with costs and profit-loss margins recalculated and commercial decisions revised accordingly.
Given that rather than removing the border, these regulations are concerned just with the details of the border arrangement and the extent of SPS border bureaucracy and cost, the question necessarily arises about whether it is right to support regulations that have the effect of affirming and effecting aspects of the border and EU Regulation 2023/1231. The question is: why have a border? What is it for? It is there to protect the integrity of the different legal regime that exists in Northern Ireland from what might come to Northern Ireland and from the different legal regime that exists in Great Britain. That confronts us with a central difficulty that some might be willing to paper over and ignore but that we unionists living in Northern Ireland have not the luxury of ignoring: the fact that every one of the different laws in Northern Ireland is a result of legislation that has been imposed on us by the EU without our consent.
The Windsor regulations are concerned with navigating the border and thus affirm it in at least two ways. First, they authenticate the border by making provision for dealing with it through EU regulation 1231, which is based on the existence of the border. Secondly, in engaging with the EU regulation that I have mentioned, the regulations inevitably authenticate the principles set out at the heart of Article 14: that the EU can impose a division on the body politic of the United Kingdom as exists between separate states. Some 700 different pieces of legislation have been imposed on us since January 2021, and of course over time the divergence will become greater as more new EU laws are passed and as more laws are made by Westminster. EU laws will be imposed on Northern Ireland without any representation or democratic accountability. I ask Members of your Lordships’ House whether that is acceptable? Would it be acceptable for England, Scotland or Wales? Why, then, for Northern Ireland? The border created by these regulations must be rejected not only because it places obstacles between Northern Ireland and our main market in GB but because it is a symbol of our denial of full democratic rights within the United Kingdom. It tells us, the long-suffering people who have recently endured a murderous campaign for over 30 years, that while the people of England, Wales and Scotland are worthy of the right to stand for election to make the laws to which they are subject, the people of Northern Ireland are not. The right that we should enjoy, being British, is having a common citizenship with every other citizen of the United Kingdom, but these regulations prove otherwise and therefore ought not to be accepted.
When we carefully consider what we are asked to support today in these regulations, I say so much for respecting the territorial integrity of the United Kingdom and the consent principle which we were told lay at the very heart of the Belfast agreement. The agreement said
“it would be wrong to make any change in the status of Northern Ireland save with the consent of a majority of its people”.
It prohibits any change in the constitutional status of Northern Ireland that involves a shift away from government by the United Kingdom towards more government by the Republic of Ireland or the EU, save with the consent of the majority of the people of Northern Ireland. The words “any change” include the threat that often emanates from some Members opposite, that if unionists do not get back to Stormont, Northern Ireland will be governed by a cabal of UK and Republic of Ireland Ministers. In reality, the suggestion is to bin the central principle of the Belfast agreement—an international agreement, we are told, that numerous Governments across the world heralded as historic and must not be broken; it is set in stone. However, the Government have chosen to mark the 25th anniversary of the Belfast agreement by rejecting parts of it in agreeing the Windsor Framework and hoping that no one notices.
The Windsor Framework and its forerunner, the Northern Ireland protocol, were mischievously sold on falsehood. Learning the lessons of the past, unionists are fed up with successive Governments’ spin and will not be beguiled by it, but we will carefully scrutinise the substance. I notice that the spin continues—my noble friend Lord Weir referred to it—because the Government suggest that what is happening under the present arrangements, which started only on 1 October, is a resounding success, when, in fact, it has not been really implemented. That undermines credulity, but it satisfies the government spin-makers. We are told to welcome warmly the PM’s amazing achievement with Europe concerning the Windsor brake. However, it is a convoluted complaints procedure which, when the dressing is removed, has as much chance of succeeding as a genuine brake on Europe as refloating the “Titanic”.