Food and Feed (Chernobyl and Fukushima Restrictions) (Amendment) (EU Exit) Regulations 2019

Baroness Manzoor Excerpts

Thursday 14th March 2019 Lords Chamber

Moved by

[Baroness Manzoor]

That the draft Regulations laid before the House on 4 March be approved.

[Baroness Manzoor (Con)]

My Lords, I will speak also to the second Motion in my name. Consumers in the UK benefit from a high standard of food and feed safety and quality. The Government are committed to ensuring that this high standard is maintained when the UK leaves the European Union. The instruments are crucial to meeting our objective of continuing to protect public health from risks that may arise in connection with the consumption of food.

The instruments, which concern food and feed law, are made under the powers in the European Union (Withdrawal) Act 2018 to make necessary amendments to UK regulations. The Government’s priority is to ensure that the high standard of food and feed safety and consumer protection we enjoy in this country is maintained when the UK leaves the European Union. The instruments will correct deficiencies in regulations to ensure that the UK is prepared in the event that the UK leaves the EU without a deal. They are limited and technical amendments to ensure that the legislation is operative on EU exit day.

No policy changes are made through these instruments and we have no intention of making any at this point. Leaving the EU with a deal remains the Government’s top priority. That is what the public want, so we are working hard to get the reassurances that Parliament needs on the backstop. At the same time, as a responsible Government, we have been preparing for all possible scenarios, including the potential outcome of leaving the EU without a deal. We are committed to ensuring that our legislation and policies function effectively in the event of no deal, ensuring that public health continues to be protected. It is for this scenario that the instruments have been laid.

The primary purpose of the Food and Feed (Chernobyl and Fukushima Restrictions) (Amendment) (EU Exit) Regulations 2019 is to ensure that legislation covering the importation of food from areas affected by historic nuclear accidents, at Chernobyl in present-day Ukraine and Fukushima in Japan, is retained. This instrument makes alterations to the legislation governing imports of food affected by the Chernobyl nuclear accident in 1986. The Chernobyl accident resulted in widespread radioactive contamination that affected food production in many countries. Thirty-three years after the accident, levels have fallen. Now only certain products—such as wild game, wild mushrooms and berries such as blueberries and cranberries—show higher levels of contamination.

The instrument also makes alterations to similar legislation—Regulation 2016/6—that imposes special conditions on the importing of food from Japan from areas affected by the Fukushima nuclear accident in 2011. In this case, eight years after the accident, higher levels of radioactive contamination are limited to certain areas of Japan and include wild mushrooms and other wild vegetables. Wild game may also show higher levels of contamination, but these products are not eligible for import into the UK.

As these regulations relate to specific contamination incidents where radioactivity naturally decays, as well as natural and human activities that remove contamination from the environment, it is right that it is regularly reviewed to ensure that the controls are fit for purpose. Therefore, the legislation relating to the Chernobyl accident has an expiry date of 31 March 2020, while the legislation relating to the Fukushima nuclear accident must be reviewed before 30 June 2019. We will bring over these review dates into the UK legislation.

The Food and Feed (Maximum Permitted Levels of Radioactive Contamination) (Amendment) (EU Exit) Regulations 2019 will ensure that Council Regulation (Euratom) 2016/52, covering the application of maximum permitted levels of radioactivity in food and feed following a nuclear emergency, continues to function effectively after exit day.

The EU law established maximum permitted levels of radioactive contamination in food and feed, which would come into effect following a nuclear accident or any other case of radiological emergency. This regulation acts as a framework that can be enacted to promptly apply emergency levels of radioactive contamination in food and feed to protect consumers. If exceeded, these levels would have a detrimental effect on human health from the consumption of food that has been contaminated by radioactivity and would assist the response to a radiological incident.

Currently, the Commission holds a range of powers under European legislation which can enable it to respond in the event of a nuclear accident or other radiological emergency. These powers allow the Commission to put in place measures in the form of emergency implementing regulations that will apply the maximum permitted levels set out in Regulation 2016/52 and so prevent potentially contaminated food being placed on the market. Any measures put in place by this instrument must be as short as possible and in the first instance must not exceed three months. When preparing or reviewing these measures, Ministers must take into account the basic standards of radiological protection, including the justification and optimisation principles. There are no changes to policy in these instruments, beyond making the minimal changes necessary to rectify deficiencies in the retained EU legislation. For food businesses, there will be no changes in how they are regulated and how they are run. Consumers in the UK will benefit from a high standard of food and feed safety and quality. The Government are committed to ensuring that these standards are maintained.

The instruments will transfer responsibilities incumbent on the European Commission to Ministers in England, Wales, Scotland and the devolved authority in Northern Ireland. In addition, the instruments will change references to importing into the EU to references to importing into the United Kingdom. Let me be clear that these instruments do not introduce any changes for food businesses in how they are regulated and how they are run, and nor do they introduce extra burdens. They provide continuity for businesses and protection for consumers’ interests, and ensure that enforcement of the regulations can continue in the same way.

The changes will ensure a robust system of controls that will underpin the ability of UK businesses to trade both domestically and internationally. It should be noted, however, that these regulations apply only after a nuclear accident or other radiological emergency and are not intended for routine activities that are governed by other regimes such as the Ionising Radiation Regulations 2017 and the Environmental Permitting (England and Wales) Regulations 2016. It is also important to note that the devolved Administrations have given their consent to these instruments. Furthermore, we have engaged positively with them throughout their development. This ongoing engagement has been warmly welcomed.

To conclude, these instruments constitute necessary measures to ensure that our legislation relating to food and feed safety and radiological protection continues to work effectively after exit day. The amendments proposed in the instruments ensure the continuation of effective food and feed safety and public health controls. I beg to move.

[Baroness Walmsley (LD)]

My Lords, I thank the Minister for her introduction. Although these SIs are relatively non-contentious, I have some general and then some specific comments and questions. Of course, our main concern in all of this is the safety of consumers and of the food that we eat.

One of the enduring reservations in the responses to the consultation, especially by the National Farmers’ Union, was about the lack of clarity on the relationship that the Food Standards Agency and Food Standards Scotland will have with the European Food Safety Authority. A common approach is necessary to harmonise trade and maintain continuity, but the UK Government have given no convincing assurances yet as to how the EU and the UK will work together on this. The feasibility of a complementary EU-UK framework is doubtful, as third-country participation is possible only if the third country applies all EU-related legislation. It also relies on good will on both sides and, given how much we have messed the EU about recently, it could be forgiven for being somewhat less than co-operative.

Neither has the UK framework yet been set up for harmonisation across our devolved authorities—although I understand that the FSA and FSS are working on proposals. This is deeply unhelpful for business as exit day draws closer. Can the Minister say what arrangements are in place now? The NFU has also noted the impact on the FSA and FSS workforces, and, although the chair of the FSA reassured the EU Environment and Energy Committee about its readiness, the chair of the committee, my noble friend Lord Teverson, warned that,

“the UK Government has no idea whether we will have full access to EU risk assessments, or any access to their surveillance and information sharing mechanisms. This is deeply concerning”.

We rely heavily on and contribute heavily to the European Rapid Alert System for Food and Feed. It helps to save lives. The public portal allows consumers to look for warnings about allergens in imported foods that are not labelled as containing them on the packaging. Will we lose access to that portal when we leave and will we be immediately setting up our own—not some time during the implementation period but right away? This is a serious issue.

I have a few specific comments about the two SIs. On the first one about prohibiting food imports from areas affected by the Chernobyl and Fukushima nuclear accidents, currently there is a moratorium on imports. The Chernobyl restrictions are due to be reviewed in 2020 and the Fukushima restrictions in 2019. The SI will enshrine these dates in UK law and does not amend them. I accept that and we support these measures. However, once the UK is no longer a member of the EU or Euratom, the FSA, the FSS and local authorities will have the responsibility of checking that standards are being maintained. This is likely to lead to regulatory divergence. In addition, given how cash strapped local authorities are, how confident is the Minister that they will have enough trained staff to do this? Some local authorities no longer have a full-time food and feed officer.

On the SI that regulates the amount of radioactive contamination in food, we learn that when it is “scientifically justified”, the Government can amend the permitted levels of radioactive substances through statutory instruments, following an alert from the FSA about any nuclear incidents that may affect food. The Secretary of State then decides what steps to take. Why is this additional power for the Secretary of State necessary when the head of the FSA has said that those powers will be conferred on the FSA anyway at a later, unspecified date? But why not straightaway? Why do we have to give it to the Secretary of State?

[Lord Dubs (Lab)]

My Lords, I am grateful to the Minister for her explanation of what all this is about. Of course it is important, because we have to protect the safety of our people in the event of any nuclear accident. I am quite a keen hill walker and was in the Lake District at the time of the Chernobyl disaster. I remember the shock, because I was walking on some of the hills when it was realised that the fallout from Chernobyl had moved west and was covering many areas, including parts of the Lake District. I say this from memory, but my understanding is that some of the sheep farmers had control orders placed on the movement of sheep because they were in areas where the fallout had been particularly strong, and therefore could not be moved and the meat not eaten. That lasted for some years. It was a real shock that an accident taking place so far away could have a long-term consequence for hill farmers in the Lake District. I think it is all okay now.

I remember that some years ago, when I was in Ukraine, the advice we were given was, “Don’t eat any mushrooms”, because they might have come from inside the exclusion area, even though they were not supposed to. I cannot verify that; all I know is what people were saying there at the time. So this is a crucial transfer of powers to protect safety.

The Explanatory Memorandum says that it is estimated that it will take each organisation,

“less than 60 minutes to read”,

and understand the proposed regulations. That was increased from 30 minutes following the consultation. One can read the thing in 60 minutes, but to understand it in 60 minutes is a bit more difficult. I must be pretty slow on the uptake, because I spent a bit longer than that on this one. It is slightly optimistic. Certainly, whoever first drafted it and said that 30 minutes is long enough must have been pretty aware of all the details and did not allow for others who might not be as well informed. It is quite a burden on the organisations that have to understand and apply this measure.

One of my concerns is about the devolved Administrations and continuity. We could be days away from this having to come into effect. What has been done so far to ensure that the devolved Administrations are already taking on board the same powers that we are talking about here for England? We could well be out of time and there could be a period of days in which the powers do not exist. Given the state of uncertainty in the House of Commons, we do not know what will happen. We may have a bit longer, but we might not have more than days. Surely we need some assurance that the devolved Administrations are acting now—particularly Northern Ireland, where there is no ministerial guidance. I understand that two government departments, those covering health and agriculture, are involved.

I turn to one or two specific things. I understand that our withdrawal from Euratom is still on the cards; it may not be. Frankly, I have not been able to follow all the ups and downs of what has been going on at the other end of this building. I understand that we shall withdraw from Euratom and that some other authority will have to take over from it. In her introductory remarks, the Minister said that the retained EU legislation following the Fukushima nuclear accident will expire in March 2020 and will have to be reviewed by the Government. I wonder where we are on that. It is not very long. Can the Minister clarify? Maybe I misunderstood what she said.

I turn to who will be the appropriate authority. Can the Minister say what will be the competent, appropriate authority if we are no longer part of Euratom? Will it have the expertise to carry on with the necessary review function?

The other Explanatory Memorandum says:

“The legislation provides for deviations from the maximum permitted levels in specific circumstances and where scientifically justified”,


although it says first of all that there will be no change. If deviations are to be permitted, can the Minister say a little more about the circumstances in which deviations might be permitted, and on what basis? What safeguards are in place to ensure that this deviation is used rarely and responsibly?

As the Minister mentioned, a full public consultation was carried out. Can the Minister advise us whether all the responses made have been incorporated, where appropriate, into this legislation and if the consultation raised any other concerns? Presumably the timing may have been one. Can she just give us some assurance on that? The principle is fine, but the details are pretty important.

[Baroness Manzoor]

My Lords, I thank both the noble Baroness, Lady Walmsley, and the noble Lord, Lord Dubs, for their support and constructive comments. I reiterate that these regulations make no changes to policy or to how food and businesses are regulated and run. That is really important. They are limited to the necessary technical amendments to ensure that regulatory controls for food and feed continue to function effectively after exit day if the UK leaves the EU without a deal and that public health is protected.

Both noble Lords asked a number of questions. The noble Baroness, Lady Walmsley, asked about the framework for working across the UK. I assure her that discussions are taking place now across the devolved landscape and there is a memorandum of understanding between the FSA and the FSS. She also asked about local authority resources. Local authorities and the trading standards officers and environmental health officers who work for them perform vital work to protect the health and well-being of consumers up and down the country. However, the day-to-day delivery of official controls by local authorities should remain unchanged as a result of this legislation passing. There will be no changes in responsibility for specific official controls or changes in delegation to or designation of the relevant authorities for the performance of these controls.

The noble Baroness, Lady Walmsley, also asked about loss of access to RASFF. This is very important. We want to work closely with RASFF. To mitigate the loss of full RASFF access, the FSA has strengthened its capability and capacity by building on proven mechanisms such as monitoring key data sources and a new strategic surveillance programme to enhance the capability and capacity to respond effectively to any food-borne contamination or outbreak incident that occurs in the UK.

The noble Baroness, Lady Walmsley, also asked if the FSA will be able to respond and detect effectively and very quickly. Once again, I assure her that should any food-borne contamination or outbreak incident occur in the UK, we will ensure that there is effective protection for UK consumers.

[Baroness Walmsley]

I was not referring just to things that happen in the UK. We need rapid information about things that happen in the European Union that can so easily come over here.

[Baroness Manzoor]

Of course, that does not change, even if we leave the EU. Even with the UK as a third country, if there is any contamination the EU has a responsibility to third countries. It is in law that it will report those incidences, so of course they will be reported accordingly to the UK.

The noble Baroness, Lady Walmsley, asked why we have to give powers to Ministers now. Effectively, Ministers are keeping the role of the FSA under review and may grant decision-making powers to it in future if Parliament agrees. That will come back in due course if it is the way forward.

The noble Lord, Lord Dubs, asked whether 60 minutes is long enough to go through various pieces of legislation. I assure the noble Lord that the law does not change. Business is already familiar with the issues.

The noble Lord, Lord Dubs, and the noble Baroness, Lady Walmsley, asked whether an impact assessment was carried out for this SI. The impact has been assessed according to government guidance. A full impact assessment has not been produced for these regulations, which the FSA has certified as being below the de minimis threshold of minus £5 million equivalent annual net direct cost to business. The regulations are designed only to fix the inoperability of retained EU law and to ensure the continued safety of food and feed after the UK leaves the EU.

The noble Lord also asked what the devolved authorities are doing to take the changes through their legislation. Again, to reassure him, these SIs fix retained EU law for the whole of the UK. The devolved authorities are making some changes to their legislation locally.

The noble Lord, Lord Dubs, also asked about the review in relation to Chernobyl and Fukushima. The Chernobyl regulations are being amended now. As he correctly said, they are due to expire on 31 March 2020. The regulations are being amended to ensure that we continue to apply the same food safety standards after the UK exits the EU. This will provide continuity to food businesses and members of the public. I assure him that the Government’s intention is to review these controls before 30 March. Ministers will make a decision on future controls based on the advice of the Food Standards Agency in England, Wales and Northern Ireland and of Food Standards Scotland in Scotland.

The European Commission started the review on the Fukushima accident in January 2019. It is due by 30 June. The UK, represented by the FSA, is already reviewing recent data and the current measures and will continue to engage with the Commission’s review until exit day. The FSA will assess future measures implemented by the EU and advise Ministers on appropriate controls for the UK. Any new SI will be made subject to the usual parliamentary scrutiny. Until then, the current instrument will continue to apply.

The noble Lord, Lord Dubs, asked whether all consultation responses been taken into account. They have, and they support the approach taken. I understand that the response to the consultation will be published shortly by the FSA. The noble Lord also asked when there might be deviation from maximum permitted levels. Any deviations will be based on scientific evidence. The FSA and FSS have built-in capacity to provide risk assessments and all advice from the FSA and the FSS will be made public.

These instruments will ensure that safety measures are in place, including maximum permitted levels of radioactive contamination in food and feed. A framework to apply emergency levels promptly following a nuclear accident will be in place to protect consumers. I hope I have said enough to reassure noble Lords.

Motion agreed.