Common Agricultural Policy and Market Measures (Miscellaneous Amendments) (EU Exit) Regulations 2019

Lord Gardiner of Kimble Excerpts

Wednesday 8th May 2019 Lords Chamber

Moved by

[Lord Gardiner of Kimble]

That the Regulations laid before the House on 5 April be approved.

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Gardiner of Kimble) (Con)]

My Lords, I declare my farming interests as set out in the register.

The purpose of this statutory instrument is to ensure that the regulatory baseline currently applicable in the UK under European Union legislation will be maintained on the UK statute book and can continue to operate effectively after exit. This instrument does not make any policy changes. It consists of a series of technical amendments that are essential to ensure that two new amending EU common agricultural policy regulations are retained in UK law at the point of the UK’s withdrawal from the EU.

This instrument is among a small number of affirmative statutory instruments that have been made under the urgent procedure. The urgent procedure was used because during March 2019 the European Commission introduced two new amending EU CAP regulations and it was essential that the UK should retain these amendments in an operable form in advance of a possible no deal exit on 12 April 2019.

The two new amending EU common agricultural policy (CAP) regulations are EU regulation 2019/288, which applied to all member states from 1 March 2019 and relates to direct payments to farmers under the CAP; and EU Commission delegated regulation 2019/428, which took effect from 26 March 2019 and relates to marketing standards in the fruit and vegetables sectors under the common organisation of agricultural markets (CMO). The instrument also takes the opportunity to make a few minor typographical corrections and, in the case of Regulation 3(3), removes a duplication in a small number of previous Defra EU exit SIs. Again, these amendments represent no change to policy. Agriculture is a devolved policy area and Defra has worked closely with devolved Administrations, who have all given their consent to this instrument.

As I explained on 20 March 2019, when we debated a number of instruments concerning the common agricultural policy, the UK Government have pledged to continue to meet their funding commitments in the agriculture sector. This SI, by taking account of the EU’s regulatory updates, fine-tunes Defra’s direct payments EU exit instrument, ensuring that the flexibilities to manage the budget between Pillar 1 and Pillar 2 are reflected and up to date.

The EU direct payments provisions amended by this instrument will enable UK relevant authorities to continue to have the flexibility to decide whether to transfer funds from the direct payments budget to the rural development budget via an inter-pillar transfer. This inter-pillar transfer provision was available across the United Kingdom in previous years of the CAP and has been used by England, Scotland and Wales in those years, but was limited up to and including the 2019 direct payments scheme year. Defra had already intended to address that regulatory gap for the 2020 scheme year via domestic legislation. However, the EU has now decided to make an inter-pillar transfer provision available to member states for the 2020 scheme year. That decision came into effect via new EU regulation 2019/288 on 1 March 2019, and Defra has taken the earliest available opportunity to account for these changes through this instrument. This instrument will retain the valuable flexibility currently afforded to UK relevant authorities. This will enable direct payment and rural development funding levels for 2020 to be maintained in line with previous years.

For the common market organisation, this instrument amends provisions of an existing exit SI as regards marketing standards for mixes of fruit and/or vegetables and citrus fruit. The EU has recently undertaken some refinements of its regulations on marketing standards for fruit and vegetables to align the EU marketing standards with the latest United Nations Economic Commission for Europe marketing standards. It has also clarified that marking and labelling requirements for small packages of mixed fruit and/or vegetables apply equally to mixes of fruit, mixes of vegetables and mixes of fruit and vegetables. That update came into effect on 26 March 2019, and the version of the EU marketing standards regulation that will be retained in UK law on exit will include this update. We want to ensure that this regulation is operable in the UK at the point of leaving, taking this amendment into account. The updates made by this instrument are therefore only technical in nature, such as ensuring that labelling changes are applied consistently and updating references to other provisions. This will provide clarity to stake- holders.

Finally, we have used the opportunity provided by this instrument to make minor technical amendments to four EU exit statutory instruments relating to the CAP that were made by Defra between February and March 2019. By way of example, Regulation 3(3) of the instrument omits a duplicated provision. Regulation 6(2) amends a phrase in a non-operative section of a domestic SI describing a provision of retained EU legislation to ensure the terminology is consistent with the exit statutory instrument that amends the provision described as “appropriate authority” rather than “relevant authority”. Neither amendment has a practical implication; they merely tidy up the statute book. The other corrections are essentially of a typographical nature, such as use of the word “of” instead of “or”; taking account of different phrasing in the EU regulation; and correcting an instance where the text quoted in the statutory instrument does not match the text in the retained EU regulation.

I take full responsibility for the errors, and obviously I regret any error. As I have said before, my task is to ensure that everything is right. I assure your Lordships that we felt it better to attend to these, so that the statute book was perfection. I am being absolutely open when I say that we need to attend to them. I hope your Lordships will understand that I am always disappointed to have to offer my regrets about inaccuracies, but is it not far better to be straightforward? I beg to move.

[Baroness McIntosh of Pickering (Con)]

My Lords, I take this opportunity to thank my noble friend for bringing forward these regulations today. I also take the opportunity to thank his department, which had to deal with more statutory instruments in a record time to enable us to be prepared for what could still be the eventuality of Britain leaving the European Union with no deal. I know that this has been at some considerable human cost to his department.

My question relates to information from the new Minister for Agriculture in the other place, right honourable friend Robert Goodwill. As my noble friend alluded to in his introduction, the Minister set out the ability for inter-pillar transfers between Pillar 1 and Pillar 2. When this was considered in the other place, our right honourable friend stated that,

“inter-pillar transfers of up to 15% can be made from year to year”.

He went on to elaborate:

“England has availed itself of 12%, Scotland 9.5%, and Wales 15%—the full amount”.—[Official Report, Commons, Second Delegated Legislation Committee, 7/5/19; col. 8.]


As of that date, Northern Ireland had yet to avail itself of the transfer because of its particular circumstances.

What my noble friend has brought forward today will ensure that we will be prepared to leave. I congratulate him on his honesty in identifying the errors that were made, inevitably, in bringing forward so many statutory instruments in such a short time. What will be the position relating to Scotland, Wales and Northern Ireland in the run-up to and post 2020? I also welcome the commitment that funding will still be in place, as I understand it, until that time. What is the status of the framework agreement that will, presumably, come into place to deal not just with agriculture but with fisheries and a number of other areas relating to my noble friend’s work in the department? I understand that it will be the UK Government who will decide what the position is for agricultural policy at that time. At the moment, Scotland and Wales have been able to have a differential in the transfer between Pillar 1 and Pillar 2. Will they lose that flexibility going forward, either before or after 2020?

I intend, however, to give a fair wind to the statutory instrument before the House today.

--- Later in debate ---

[Lord Grantchester (Lab)]

I thank the Minister for his introduction to the regulations. I declare my interests as set out in the register, being in receipt of EU funds. The House may well have thought it had dealt with the multitude of EU exit orders prior to the UK’s non-exit on 29 March, but they continue and will continue. With such a torrent, it is not entirely unexpected that there may well have been minor drafting errors to correct and technicalities to update and I appreciate the conciliatory way the Minister has addressed those issues today. Those issues will not detract from the praise due to him and his team for how he has handled the process and undertaken discussions around the House across a wide range of subjects in such a short period. I think his department probably comes second only to the Treasury in the number of statutory instruments it has to process.

These regulations amend five previously agreed EU exit orders to correct minor drafting errors and incorporate recent amendments made by the European Commission to CAP legislation relating to direct payments and marketing standards in the fruit and vegetable sectors, even those made as recently as 28 March. The main alteration is that member states are now able to make further inter-pillar transfers from Pillar 1 direct payments to Pillar 2 rural development for a further year until 31 December 2019. In the UK, decisions on inter-pillar transfers are devolved. The other pertinent amendments make it clear that marketing standards for mixes of fruit and vegetables apply to mixed packages and make a number of small changes to the general and specific marketing standards in order to align the UK marketing standards with the latest United Nations Economic Commission for Europe marketing standards.

Of note is that continuing updates are likely as negotiations continue around the UK’s EU exit as regards continuing changes made at EU level. While this is clear up to the date of exit, will the Minister confirm what this means in relation to any transition period? I note that the noble Baroness, Lady McIntosh, has concerns on these issues. When any divergence between the EU and UK could begin and the Government’s policy in any transition period are of great importance. Will the Minister confirm my understanding that during any transition period after EU exit day the Government will continue to incorporate into UK law EU measures to ensure the operability of the statute book? Again, I acknowledge that certainty will be maintained with regard to the existing regime through the Treasury’s guarantee to continue the status quo. The importance of that was highlighted by my noble friend Lord Jones in relation to sheep farming in Wales.

These regulations update EU regulation 1307/2013 to give effect to the new discretion for member states to continue to determine inter-pillar transfers of up to 15% up to 31 December 2019. It is worth reflecting that there is already divergence in the rate between the constituent parts of the UK, with Scotland, as noted by previous speakers, at 9.5%, England at 12% and Wales already at 15%. Can the Minister confirm what the position could be in relation to Northern Ireland and say who, in the present predicament, would make any decisions there? Can he also confirm that the devolved Administrations will still be able to decide their own flexibility for inter-pillar transfers? Does it concern him that the range between 9.5% and 15% is considerable and could affect food production and competition within the UK?

Paragraph 7.7 of the Explanatory Memorandum says:

“The impact of the amendments … is deemed to be negligible”.


I agree that this added year for any decision regarding transfers is in itself negligible but the decision to increase the transfer rate is certainly not negligible, and the monetary change can affect farmers, the food chain and the environment. Will the Minister acknowledge that a change in the rate of transfers between Pillars 1 and 2 is significant?

Perhaps I might also follow up with a concern. As the Minister knows, the Rural Payments Agency has had, and continues to have, problems with performance. What action are the Government taking to improve performance with the BPS while the UK remains part of the CAP and to ensure that the RPA’s structure is able to adjust to any new regime consequential to a new agriculture Bill?

It is important to the food chain that marketing standards in the fruit and vegetable sector continue to function effectively to protect the interests of consumers as well as businesses in the sector. Does the Minister agree, and the Government commit, to the continuation of common standards with the EU after Brexit? The continuation of close co-operation with the EU is imperative for agriculture, industry and consumers. Otherwise, I am very happy to approve the regulations before the House today.

[Lord Gardiner of Kimble]

My Lords, I acknowledge the generous thanks that have been expressed to the department. It has been a great privilege to work with lawyers and officials in Defra, and we will be attending to some other statutory instruments on Monday. I think that all your Lordships will agree that, whatever our views on the matter, we should acknowledge that officials in the department have worked literally through the night on many occasions, and we should be extremely grateful to them. It is also appropriate to point out that there are times when we all work together very well, and I want to place on the record the co-operation and understanding that there has been in this project to try to get the statute book in order. Whatever our views on the matter, we have all sought to get it right. Although we will be returning to the fray with other statutory instruments on Monday, I wanted to acknowledge that.

My noble friend Lady McIntosh of Pickering made the point that much of the guts of the inter-pillar arrangements is, like agriculture, as we all know, devolved. That means that each part of the United Kingdom has always made its own decision on these matters and indeed on whether to carry out an inter-pillar transfer. In the case of Northern Ireland, that has been its decision, but Northern Ireland was keen to be part of this statutory instrument on the basis that it gives the flexibility to consider that option if it so wishes. It is up to each UK Administration to decide what level of budgetary transfer they wish to make for the 2020 direct payment scheme. As I have said, that is the way I think it should be.