Fertilisers and Ammonium Nitrate Material (Amendment) (EU Exit) Regulations 2019

Baroness Byford Excerpts

Wednesday 20th February 2019 Grand Committee

[Baroness Vere of Norbiton (Con)]

My Lords, we have already discussed fish, horses, animals and plants, and now for something completely different—fertilisers and ammonium nitrate.

This instrument changes legislation in two areas. First, it amends domestic legislation that is out of date and, secondly, it addresses failures of retained EU law to operate effectively and other deficiencies arising from the UK’s withdrawal from the European Union.

Legislation surrounding fertilisers concerns the manufacturing and marketing of products. It provides for the definition, composition, labelling and packaging requirements for specific categories of fertilisers that are set out in lists. The legislation does not address the application or use of fertilisers and it does not change the definition or compositional requirements of fertilisers.

In 1975 the EU created its first set of legislation relating to fertilisers. The wide disparity in existing fertiliser rules between member states and the bulky nature of these materials restricting cross-border trade meant that it was not suitable to fully harmonise rules on all fertilisers across the EU. Instead, fertiliser rules were partially harmonised to begin removing technical barriers to trade within the EU. This means that the UK has kept its existing domestic framework alongside the EU framework. The EU regulation sets out the requirements for EC fertilisers, previously called EEC fertilisers, that can be freely sold across the EU. Manufacturers can choose which framework to market their products under, and this partial harmonisation is still in place today.

The current domestic framework for any material described as a fertiliser is the Fertilisers Regulations 1991. In the EU, the current framework is EU Regulation (EC) No. 2003/2003, and this applies only to fertilisers labelled “EC fertiliser”. It was implemented in UK law by the EC fertilisers regulations 2006. Ammonium nitrate fertilisers are controlled through safety regulations that apply to all ammonium nitrate in Great Britain.

Part 2 of the instrument amends out-of-date references in the domestic legislation—for example, omitting references to EEC fertilisers and EC fertilisers to ensure clarity for users of the legislation. In the case of EU legislation, Part 3 of this instrument amends retained EU law to ensure that it will operate effectively after exit day—for example, references to member states and the Commission are amended to refer instead to UK authorities. A requirement as to the language to be used on labels is also amended. The SI replicates the EU framework in UK law by replacing the “EC fertiliser” label with an equivalent “UK fertiliser” label. The requirements will otherwise remain the same.

Part 4 of the instrument amends domestic legislation as a result of exit. It ensures continuity of supply by recognising EC fertilisers for a two-year transitional period after exit day. This will minimise burdens on businesses and authorities.

The amendments made in this instrument do not change the definition, compositional requirements, labelling or packaging rules of fertilisers, whether marketed under the existing domestic framework or under the EU framework.

Ammonium nitrate fertilisers are additionally covered by domestic safety regulations, as they can be misused as improvised explosives and pose safety risks if mishandled in manufacture, transport or storage. Part 4 of the instrument amends the regulations surrounding ammonium nitrate fertilisers with high nitrogen content in Great Britain in order to treat imports from EU member states in the same way as imports from other third countries, in line with WTO obligations. Northern Ireland has separate restrictions on ammonium nitrate for historical reasons, which this instrument does not amend.

Under the British ammonium nitrate regulations, the rules for imports from the EU are different from those for imports from outside the EU. In light of WTO rules, it would not be possible to retain these differences. Therefore, the instrument amends some aspects of the ammonium nitrate regulations—in particular those relating to detonation resistance tests, or DRTs—to apply the more stringent of the two regimes to all imports, whether from the EU or elsewhere, after the end of the two-year transition period, and to uphold current safety standards.

Currently, the definition of what constitutes a “batch” of ammonium nitrate differs depending on whether the import comes from the EU or elsewhere. The EU definition is based on a production run that lasts no longer than 92 days, whereas the non-EU definition relates to any single imported consignment. Using the non-EU definition in this case would cause increased costs for manufacturers due to additional testing, and provides no additional safety benefits. Therefore the EU definition of “batch” will be applied to all imports from exit day.

Continuity of supply is ensured by a transitional period of two years for imports from the EU, which provides 99% of imported ammonium nitrate to the UK. This allows the continuation of current rules with regards to the time limit for detonation resistance test certificates, and the ability to recognise EU laboratory test certificates. These arrangements give manufacturers time to prepare for compliance with the import rules post exit and, importantly, this reduces any burdens on UK laboratories immediately after exit.

The instrument was presented to the sifting committees on 1 November 2018 as a negative instrument. The House of Lords sifting committee was content with that, but the House of Commons sifting committee did not agree with the Government. It considered that the effect of one regulation was to allow Ministers to charge fees to cover the cost of tests needed for official control measures. In addition, it considered that the instrument conferred powers to legislate. It therefore recommended that the instrument be debated in Parliament. The instrument has been amended since it was presented to the sifting committees to reflect certain recommendations in the report, and the Explanatory Memorandum has been amended.

In general, fertiliser policy, like other agricultural policy, is devolved. The devolved Administrations were closely engaged in developing these regulations, which apply to the same geographical areas as the original legislation that they amend. All the Administrations have agreed to maintain a single common framework for fertilisers labelled as “UK fertilisers”, while continuing their own domestic framework. This will make the marketing of fertilisers much clearer for industry, and is a good example of how well the four Administrations work closely together for a common goal.

The instrument relates to the maintenance of existing regulatory standards with no significant impacts, or new or greater administrative or economic burdens on business or other stakeholders. While there was no statutory requirement to consult on this instrument, officials have held discussions with key stakeholders: the fertiliser manufacturers’ representative body, the Agricultural Industries Confederation, and the farmers’ representative body, the National Farmers’ Union. Their main concerns have been addressed by allowing for a transitional period for existing rules and compliance with the amended rules. The changes to the rules on ammonium nitrate have also been developed in conjunction with the Health and Safety Executive and the Home Office to ensure that safety and security elements are maintained or improved.

These measures are essential to ensure that the retained EU framework will operate in the UK alongside the existing domestic framework and, importantly, allow the continued trade in high-quality, safe fertilisers. I beg to move.

[Baroness Byford (Con)]

My Lords, I am grateful to my noble friend for introducing this statutory instrument. I shall start where she ended and thank her for the consultation the department has had with the Agricultural Industries Federation and the National Farmers’ Union. It is essential that we take advice from or hold consultations with them. In the same way, I should declare our family’s farming interests because obviously fertilisers are used on the farm.

I have little to question my noble friend on, but I am grateful that the Government have responded to the Commons sifting committee which referred the question of costs to the department. That has been addressed and the Minister has reminded us that 99% of fertilisers are imported from the EU. It would be logical to accept this statutory instrument and I am grateful for the way in which the labelling requirements have been addressed; in other words, we can still use the EU fertiliser labelling scheme until the UK fertiliser labelling scheme is put into place.

The most important thing that I have picked up from this statutory instrument is the need to ensure that fertilisers are bought, sold, stored and then used on farms safely and securely. It is easy for accidents to happen, and we do not wish to see fertilisers fall into the wrong hands. I welcome these regulations and again I thank my noble friend for introducing them.

[Baroness McIntosh of Pickering (Con)]

My Lords, I thank my noble friend for introducing this statutory instrument on which I have just a couple of questions. Obviously farmers and farming are responsible for a great deal of our ammonia emissions. I want to make a general plea. Someone who is going to take over at the helm of Natural England is not known as being perhaps the best friend to farmers. To which body will farmers be able to turn to advise them on fertiliser use? Also, what is the relationship between this instrument and the ammonia and livestock farming regulations, which have either gone through or are to come through at the same time, that set new rules on housing and better feed and further restrictions on the storage and spreading of slurry? This relates to an earlier debate which I know my noble friend listened to.

It would make more sense if we could have an umbrella statutory instrument which covered every single item relating to the use and control of ammonia. I had farming interests. My brother and I shared the freehold of two fields which I have now offloaded on to him. I therefore have no further interests to declare, although I wish him good luck. It would be helpful if there was a single body that farmers could turn to for advice rather than the various bodies that are policing them. I am afraid that this is a constant theme to which I will return when the Agriculture Bill and the environmental protection Bill reach us. I am sure that my noble friend is a reasonable person, so would it not make more sense if we had one regulation coming through covering the whole issue of ammonia emissions? Good luck with that, but I thought I would mention it. Defra is a busy department with about 100 statutory instruments going through, so perhaps my suggestion would help.

In the guidance is a reference to the fact that:

“The Government will publish a new list of laboratories approved to test to the standards required for the new ‘UK fertiliser’ label”.


It may be that the Government have produced that list and I would be interested to see it as we are now at half past the eleventh hour before leaving. The guidance goes on to say that:

“Any necessary sampling or analysis must be carried out by a competent laboratory included in the Commission’s published list”.


I would expect to see that list and would welcome the news that it has been published.

The notice goes on to say, in the third paragraph from the end:

“The Irish government have indicated they would need to discuss arrangements in the event of no deal with the European Commission and EU Member States”.


Do we know whether we are included in those discussions? It would make sense if we were.

With those questions, and depending on the answers—although I do not intend to stand in the way of the statutory instrument—I look forward to my noble friend’s reply.