Draft Invasive Non-native Species (Amendment etc.) (EU Exit) Regulations 2019

David Drew Excerpts

Tuesday 29th January 2019 General Committees

[Dr David Drew (Stroud) (Lab/Co-op)]

I am delighted to serve under your chairmanship, Mr Evans. I welcome the Minister to her place; we will see an awful lot of one another in the coming weeks. I am not sure which of the 88 SIs we have to get through before the end of March this one is, but she is no doubt ticking them off on her calendar every day.

I will start by making the point that this process is not the way to run any Government; it is not effective scrutiny. As an Opposition, we will do the best we can, but the reality is that this process is being greatly rushed. It is difficult to know the enormity of what we are all taking on, because although this SI looks like a bit of a nothing SI, in fact, as anyone who reads anything about animal or plant diseases knows, these species could, effectively, wipe out the United Kingdom if we get this process wrong. Sadly, there is every chance that we will get it wrong.

I will also make the point that, as much as the civil service has done a very effective job—I am sure of that—a lot of this process is about taking out the words “Member State” and sticking in their place the words “appropriate authority”. I do not know how much European legislation and regulation over the last 45 years will be affected, but someone has had to do an awful lot of work, and I do not know whether they have done it well or whether they have covered all the bases.

The one bit of good news is, of course, that if any species are about to invade the British Isles, they can at least now get a British passport. That, no doubt, will make all the difference in terms of whether they arrive or not. [Laughter.] I am glad you got the joke, Mr Evans —at least you are awake.

This statutory instrument matters. I asked a parliamentary question in December about trees and tree diseases. There are now 1,820 notifiable tree diseases that affect various species in this country. The idea that this is a marginal, out-of-the-way statutory instrument misses the main point that disease is ever-present. We know that ash dieback and oak processionary moth have taken out our major trees in this country. We have to look at the impact very carefully.

When I sat on the EFRA Committee some years ago, my hon. Friend the Member for Bridgend (Mrs Moon) and I looked at the environmental liability directive. When you get into these things, you realise the implications in terms of not only the diseases that have come in, but who was responsible for them—if they were spread by humankind. It is very difficult to lay the blame; we still do not know what caused foot and mouth back in the early noughties, although there are those who make allegations about how it was brought into this country. To put that into perspective, it cost the British economy £8 billion. Thankfully, the rerun was not as bad. As the Minister said, a cost of £1.8 billion a year has been allocated to the implications of the issues before us. So we are on our guard, because we know what the implications of these things can be.

I have a number of questions, which I accept that the Minister may not be able to entirely answer, so I am quite happy for her to write to me. I make the point again that I made throughout the Agriculture Bill Committee—many of us are in the same place again today: it is rather strange that we cannot even get the four nations of the United Kingdom to agree to some commonality over something as basic as invasive species control. That does not bode well for the future. Scotland may well be very competent to bring forward its own secondary legislation, but for those who farm on the Scottish borders it is not much consolation that Scotland will do things in its own way. It may do them better than us, or it may do them worse than us, but the fact is that it is not doing them with us. That undermined the effectiveness of the Agriculture Bill, which is still in this place, and, sadly, it is likely to mean that we will have some conflict if there is a disease outbreak between Scotland and England. It does not look good that we cannot even get the four countries of the United Kingdom to agree on a particular policy.

The House of Lords voted on this measure last week—I thought it was quite a good debate. A number of questions arose that the Government have not yet answered. First, my noble Friend Lord Adonis asked the Minister, Lord Gardiner, what other pieces of legislation this measure was in synch with. He asked what had happened to the Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019 and the Conservation (Natural Habitats, etc.) (Northern Ireland) (Amendment) (EU Exit) Regulations 2019. They were on the Order Paper for debate last week, but did not come forward.

The explanation was that they had been stuck in a Joint Committee, but it makes it very difficult, certainly for the Opposition, to make sense of these issues when things are put on the Order Paper and expected to be debated—and it makes sense that they are debated together—but they then disappear. Likewise, I am not sure about the link—the Minister did refer to it—between this measure and the Invasive Non-native Species (Enforcement and Permitting) Regulations 2019, which clearly has an impact on the grey squirrel, muntjac and other species. What measures are being taken against those particular invasive species? It would be nice to know what the order of these bits of legislation is and what happens if we pass this one, which we may well do today, but then we have these other SIs, which have not been passed. We have just over a month before 29 March, but it is not at all clear where we will be in terms of the whole way in which the Government are performing.

Let me quickly look at what the Lords came up with. Among the key things they identified was that the preamble to much of the European regulation regarding invasive alien species is not included in this secondary legislation. Yet, according to all the different non-governmental organisations I have been in touch with, that is quite an important element of the way we lay down how these invasive species are dealt with. It would be interesting to know whether the Government have looked at how they can include that preamble not in today’s statutory instrument, obviously, but in a future statutory instrument.

In terms of what the Minister said about how we cobble together the organisations that will take over from the EU, I am a little confused about where this all fits with regard to the draft Environment (Principles and Governance) Bill, and particularly the office for environmental protection. Will the office for environmental protection oversee this piece of legislation, even though specific bodies she has referred to may have been given responsibility? The criticism advanced by those who welcome the Bill but who would say it needs to go further is that they are not sure what that body’s powers and responsibilities will be. It would be interesting to hear what the Minister has to say about that.

This SI does not seem to change policy, but why was the Government’s commitment in this field—the Secretary of State has said on many occasions that they intend to enhance our environmental credentials—not taken up in regard to this SI? Are we just going to cut and paste from existing European regulations, which does not improve our environmental credentials at all?

It is unclear why there was no impact assessment. The Government argued that one was not necessary, because the regulations did not have a particular impact on the public or private sectors, but that seems strange, given that they will have a huge impact if they go wrong. It would be interesting to know what analysis has been done of the additional costs on business, individuals and the public sector if—as is likely—we find there is an impact as a result of invasive species coming on to our shores. That is linked with enforcement, because although we have these new bodies, I am not clear what powers they will have.

That links directly to the enforcement and permitting regulations. Have they been consulted on and agreed? The Minister could nod or not. Those regulations are the one bit of this that have been quite controversial. They effectively mean that if a rescue centre takes in a squirrel, the centre is told to dispatch it, because it will not be able to release it back into the wild. There are implications for muntjac as well. I am not clear what powers will be there or who will enforce them. Are we talking about a series of fines for people who take in a grey squirrel that may be injured? Again, that is not clear. It is all involved with the enforcement regime. The RSPCA and other animal aid organisations have been very unhappy in terms of whether this could ever be enforced or properly introduced.

I have a few more questions for the Minister. The consultation on these regulations was undertaken on an “informal” and “limited” basis. I am not sure whether we should introduce legislation without consulting the appropriate organisations. The consulted organisations were rather limited—for example, I do not believe that the National Farmers Union was consulted, even though the regulations will have a big impact on British agriculture if and when they go wrong. It would be useful to know whether the Government, as part of their environmental Bill, which is a good bit of legislation, intend to have a much bigger consultation to ensure that people are fully informed on the impact of alien invasive species.

I have two more questions, and I am sure other hon. Members will have others. On the responsibilities exercised by the current EU bodies, to what extent—I think particularly of the trade control and expert system database—will we still have access to operational functions that the EU carries out? The EU has always been at its best in recognising that this is a pan-European problem; we cannot pretend that it just starts and ends at our coast. That is particularly important, because these issues affect marine species, as well as species on the land and in the air. I am not sure what we will do about the TRACES database—it is important, because it is something we share. British influence has been fundamental in the way we have built up that collection of data. It would be interesting to know whether we will have access to it or whether we will have to set up our own. Should the EU have an outbreak, will we get to share that information? That really matters, because when something happens, it will be too late. We need to do much more preventive and precautionary work.

My final question is the usual one. Should we crash out of the EU on 29 March, this legislation will presumably come into play immediately. There is no transition, so it has to be foolproof, but it is not clear how the different SIs fit in. It is unclear what we will be able to execute. There are no bodies at the moment; they are not set up. We have no environmental Bill or office for environmental protection. It would be interesting to know what contingencies the Minister has put in place, should we end up in a no-deal scenario and face an immediate problem, given that African swine fever is already on the continent and is, sadly, coming our way. We have done our best to prevent that, but we have to be very aware of these things.

Those are a number of questions, which I am sure the Minister will try to answer. I am happy for her to write to me on some of them. This SI is really important, but it does not look to be anything other than a cut and paste from the current EU regulation. Should it go wrong, it will have a major impact on our economy and on people living here, particularly in the farm economy. I hope that we get more warning of what measures are coming our way—this one was quite a sudden imposition on us today—and that we get to know the fuller picture, which the Government should give us. If nothing else, they have to explain to the people affected what should be done in preparation, particularly if we crash out, and what we should do anyway, as a country, in terms of good preparation work to forestall the worst impact of these invasive alien species.

--- Later in debate ---

[Dr Coffey]

Within DEFRA, we have taken an approach of bringing several SIs into one, for instance when amending references to EU law and EU obligations so that they refer to retained EU law and retained EU obligations. For example, a statutory instrument that we debated yesterday will change several primary Acts—four, I think—and make three cross-cutting environmental amendments. We are grouping operability changes that commonly require several SIs within one SI. Those instruments often relate to one directive. The draft instrument covers one directive in its own right, which is why we are only discussing invasive species.

I appreciate the hon. Member for Stroud’s concerns about the draft instrument. As I say, it has been through the JCSI. It was laid in the first week of December, and prior to that, DEFRA opened it up to a group of stakeholders to look at, so that they could talk it through with our officials and raise any questions. So far, that has only happened to one other SI, to which he referred: the Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019.

Unfortunately, before that draft instrument made its way through the JCSI process, and in response to feedback from the Royal Society for the Protection of Birds, the Secretary of State took the decision to change it. I thought my noble Friend Lord Gardiner answered questions on that rather well. The draft instrument was again laid before Parliament last night and will come back before the House in due course. I do not have a date for its return. That shows how, via stakeholders coming to the Government with suggested changes, we have been able to effectively consider the draft instrument before reaching the Committee.

On the hon. Gentleman’s wider points, I fully understand the biosecurity threats.

[Dr Drew]

Does that affect the draft Invasive Non-native Species (Enforcement and Permitting) Regulations, which were subject to consultation? Will that instrument be crucial for—dare I say it—the grey squirrel and the muntjac? It is entirely in line with this draft instrument, is it not, so when will it come forward?

[Dr Coffey]

As I just tried to explain, by going through this process with stakeholders we have changed that draft SI, which is why it was withdrawn and again laid last night.

The Government have not received any comments on this draft instrument, apart from what the RSPCA said about muntjacs and raccoon dogs. As I have tried to outline, the draft instrument is about operability, not changing policy. The draft enforcement regulations will be presented to the House, and I am happy to arrange for the hon. Gentleman to have a specific briefing on that. To reiterate, this is not about changing policy.

The hon. Gentleman was also concerned that the four nations could not get together. That is the element of devolution. There are quite a large number of our SIs over which the four nations have agreed to come together in different ways, but there are also those that the Governments have decided to approach through their own legislative vehicles. That is perfectly acceptable and respects the devolution process.

However, I assure the hon. Gentleman that we have had a Great Britain strategy since 2008, and we will continue to use that body to support all the Administrations as we work closely together on invasives. I particularly stress that the external borders of the United Kingdom are still a responsibility of the UK Government. However, the Scottish Government have decided to pursue domestic regulation through their own front.

On the impact assessment, the draft regulations will have no impact on external bodies, such as businesses, charities and voluntary bodies. A small cost is estimated for public sector bodies taking on the Commission’s functions, but those are limited and below the £5 million threshold, which, as the hon. Gentleman knows, is the level for publishing an impact assessment.

On the link between this statutory instrument and the invasive alien species order, this instrument will make the regulations controlling the spread and management of invasive alien species operable after we have left the EU. It will apply strict reservations on a list, to which I have already referred, so that such species cannot be imported, kept, bred, transported, sold, used or exchanged, allowed to reproduce or be grown, cultivated or released into the environment.

That list includes grey squirrels, although the debate is not about grey squirrels. The EU regulation has been in place since 2015. What has happened very recently is that Natural England has said it will not be issuing any licences for the release of grey squirrels. That may be a suitable debate for Westminster Hall, rather than here, but I point out that we know that grey squirrels threaten the existence of red squirrels, which are our native species. We need to stick up for the red squirrel.

The legal advice I have received is that we do not need to carry over the preambles. Section 6(3) of the European Union (Withdrawal) Act is specific, and shows that the interpretation of the regulation that happens today—which is what the preamble is about—will be the same as that used post-exit. Any changes in policy in the future will have to be decided by Parliament through changes to regulations.

I assure the hon. Member for Stroud that the cross-cutting principles are effective in UK law already—he will be aware of the proposals in the draft Environment (Principles and Governance) Bill. In terms of oversight, the bodies to which he referred will continue. Will the office for environmental protection oversee this area? As it stands, the bodies are there to provide advice, which is taken. The basic function of the OEP, which the Government have set out, is effectively to replace the Commission in respect of whether we are applying environmental law as we should. It provides an alternative way to do that, but of course Parliament is also there to scrutinise and hold the Government to account.

The hon. Member for Stroud asked why this statutory instrument does not change policy. That is not what we are allowed to do through these SIs—that is for another day. On the databases, I have referred already to the fact that we cannot say today that we will have access to this database. That will be the subject of ongoing negotiation and discussion. However, there is an obligation to co-operate. I am aware that this is a cut and paste, which the hon. Gentleman referred to. That is the point; it is what this SI is supposed to be.

[Dr Drew]

Are we negotiating over the TRACES database? Will we pay money to have access to that, or are we going to have our own database? That idea makes me feel cold, given that we are not necessarily that good at developing these databases, as even the Minister would accept. These things need to be understood. If we are shut out of that database, where will we get our information about invasive species from?

[Dr Coffey]

I have to say to the Committee that this is not my portfolio, so I have not been involved in the day-to-day negotiation about the IT elements. I want to point out that we have developed contingency plans to mitigate the impacts of losing access to the system. There is still the potential to make those changes as we move forward. If my noble Friend Lord Gardiner would like to say something that is different or to enhance what I have said, I will of course write to the hon. Gentleman.

In conclusion, this is a cut and paste from the existing EU regulation to ensure that when we leave the European Union the functions continue to have legal effect. I assure the Committee that the Government take the issue of biosecurity extremely seriously. We are very conscious of the concerns about African swine fever. We recently took action very deliberately against species that were being reintroduced on licence in the Forest of Dean, killing beavers, because they had a disease that was brought into this country. Unfortunately, they were imported from Germany, against the voluntary code of practice, which meant they should have come only from Norway or other parts of the United Kingdom. We will take action, even when it is unpopular, to make sure that we preserve the biosecurity of nature and animals in this country. I hope that the Committee will support the motion.

Question put and agreed to.

Resolved,

That the Committee has considered the draft Invasive Non-native Species (Amendment etc.) (EU Exit) Regulations 2019.