Pesticides (Amendment) (EU Exit) Regulations 2020

Lord Goldsmith of Richmond Park Excerpts

Tuesday 3rd November 2020 Grand Committee

Moved by

[Lord Goldsmith of Richmond Park]

That the Grand Committee do consider the Pesticides (Amendment) (EU Exit) Regulations 2020

Relevant document: 31st Report from the Secondary Legislation Scrutiny Committee

[The Minister of State, Department for the Environment, Food and Rural Affairs and Foreign, Commonwealth and Development Office (Lord Goldsmith of Richmond Park) (Con)]

My Lords, I will be covering two instruments in this group, both relating to the effective regulation of chemicals, one that relates to pesticides and one that relates to persistent organic pollutants. The first of these, the Pesticides (Amendment) (EU Exit) Regulations 2020, makes further updates to retained EU legislation for plant protection products and maximum residue levels. Plant protection products, or pesticides, as most people refer to them, are regulated within the EU by two main EU regulations. They are Regulation EC 1107/2009 concerning the authorisation of active substances and the placing of pesticides on the market, and Regulation EC 396/2005 on maximum residue levels of pesticides permitted on food and feed. They are also regulated by means of EU directive 2009/128/EC which established a framework for Community action to achieve the sustainable use of pesticides.

In preparation for leaving the EU, we have already put in place a series of pesticides EU exit SIs to ensure that the regulatory regime can operate sensibly in future and provide continued protection for human health and the environment, primarily through the Plant Protection Products (Miscellaneous Amendments) (EU Exit) Regulations 2019, which I will refer to throughout this debate as the PPP EU Exit SI, the Pesticides (Maximum Residue Levels) (Amendment etc.) (EU Exit) Regulations 2019, otherwise known as the MRL EU Exit SI, and finally the Pesticides and Fertilisers (Miscellaneous Amendments) (EU Exit) Regulations 2019, SI 2019/306, known as the SUD EU Exit SI.

These earlier EU exit statutory instruments were put in place in readiness for the original exit day in March 2019 and have dealt with the majority of changes required. The instrument we are considering today makes a number of additional but relatively minor amendments to deal with developments since the original EU exit SIs were produced. They have no, or no significant, impact on business. We have worked closely with the devolved Administrations to develop this further instrument and they have consented to it being made on a UK-wide basis.

Amendments are required for four main reasons. First, new EU legislation has come into force since the earlier EU exit SIs were finalised, either shortly prior to or during the transition period. This needs to be corrected in the same way as in the earlier EU exit SIs so that it works correctly in a national context, including where the new EU legislation interacts with corrections already made in the earlier SIs. Secondly, to make necessary changes as a consequence of the Northern Ireland protocol by amending the earlier UK-wide EU exit SIs so that redundant references related to Northern Ireland are removed and legislative cross-references work correctly. Thirdly, to make updates to some transitional provisions within the earlier EU exit SIs, so that they apply from the end of the transition period when the retained law comes into force, rather than from exit day, and so work as intended. Finally, to make minor technical corrections to secondary domestic legislation as regards the establishment of harmonised risk indicators in order to correct new deficiencies in the retained EU law. In short, without this instrument various highly technical provisions will not be retained in national law in a way that will work correctly.

The second of the two instruments is the Persistent Organic Pollutants (Amendment) (EU Exit) Regulations 2020. It makes technical amendments to the POPs regulation to maintain continuity in retained EU law in order to ensure that legislation which manages persistent organic pollutants, which I will hereafter refer to as POPs, is operable following the end of the transition period. In addition, it reflects the requirements of the Northern Ireland protocol. The EU POPs regulation was put in place to fulfil commitments under both the United Nations Stockholm Convention on Persistent Organic Pollutants and the Convention on Long-Range Transboundary Air Pollution. The UK is a party to both these conventions. This new instrument ensures that we preserve the current regime for managing POPs, which are substances that are recognised as being particularly dangerous to humans and the environment, and this instrument is needed for two reasons.

First, EU Regulation 850/2004 was recast in July 2019 as EU Regulation 2019/1021 of the European Parliament and of the Council on Persistent Organic Pollutants. An earlier EU exit instrument that was put in place in readiness for the original exit day in March 2019 now needs to be replaced to reflect the revision to the EU regulation. Many of the amendments to correct deficiencies in that earlier EU exit instrument are replicated in this new instrument. Secondly, this instrument will make the changes required as a consequence of the Northern Ireland protocol. References related to Northern Ireland are removed and legislative cross-references work correctly. This will ensure that the retained EU law on POPs has practical application only in Great Britain, where appropriate. We have worked with the devolved Administrations on this instrument, and where it relates to devolved matters, they have given consent.

The following provisions were included in the 2019 exit SI and are now included in the current SI. The first is the repatriation of all decision-making functions and powers from the EU to the Secretary of State, the Welsh Minister and the Scottish Minister to exercise in their respective areas. The Secretary of State may exercise these functions on behalf of a devolved Administration, with their consent. The Secretary of State will publish reports on the management of POPs, which are currently submitted to the European Commission for publication, and the following provisions relate to the new provisions in the EU recast of the original legislation.

The Environment Agency will assume the role given to the European Chemicals Agency to provide technical and scientific support. This role will be fulfilled with the consent of the devolved Administrations. Additionally, the EU regulation places a duty on the UK to take necessary measures to trace and control POPs once they enter the waste stream. Ordinarily, these measures would be implemented in the UK under Section 2(2) of the European Communities Act 1972. However, as work on delivering these measures will continue beyond the end of the transition period, this instrument creates a new power for GB to make regulations to implement that specific duty. The exercise of this new power will be subject to parliamentary approval and is time limited, with a requirement to make any regulations before 31 October 2023.

Finally, the requirement to amend this regulation has also provided an opportunity to include the Northern Ireland protocol provisions applicable to this regulation. Northern Ireland will continue to apply EU regulation 2019/1021 to manage POPs in the environment but, where regulations apply to the UK as a party to the conventions I mentioned earlier, they remain applicable to Northern Ireland. Neither the JCSI nor the SLHC had any comments on these instruments and I can confirm that they will be able to function with or without a deal with the European Union.

As I have previously said, the Government are committed to ensuring continued levels of protection for human health and the environment, as well as providing stability and continuity for business. I beg to move.

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[Lord Goldsmith of Richmond Park (Con)]

My Lords, I thank noble Lords who have contributed to this debate today. In order to prepare for the end of the transition period after leaving the EU, it is essential that we have the right legislation in place to continue to regulate both pesticides and persistent organic pollutants effectively so as to protect human health and the environment. A wide range of issues was raised by noble Lords; I will do my best to address them as fully as possible.

The noble Lord, Lord Greaves, asked about divergence between Great Britain and Northern Ireland. Under the terms of the withdrawal agreement and Northern Ireland protocol, the EU pesticides regime will continue to apply in Northern Ireland after the end of the transition period in the same way as during it. It is inevitable that divergence in pesticides decisions between the EU and GB regimes will eventually occur, but the Health and Safety Executive will endeavour to assess and determine pesticide authorisations in Great Britain and Northern Ireland through a single process wherever we possibly can.

The noble Lord asked about the application of pesticides near to people’s homes—an issue which came up during debates on the Agriculture Bill. The use of pesticides is allowed only where a scientific assessment shows that it will have no harmful effect on people, including residents and bystanders. The assessment of risk is rigorous and authorisation is frequently refused. Pesticide users are required by law to take all reasonable precautions to protect human health and the environment and to apply the product only to the area that they intend to treat. This issue was raised by a number of noble Lords, and the question of how rigorous the protections are is a valid point to make. Clearly, the ambition has to be that we move as far as we can away from the use of pesticides at all. That is reflected in government policy, and I will come to that in slightly more detail as I answer questions asked by the noble Lord, Lord Randall.

The noble Lord, Lord Greaves, also asked how decisions can be tested or challenged in court. The answer is that enforcement is a matter for the designated enforcement bodies. Usually, in the case of pesticides and POPs, that is the Health and Safety Executive. He cited the work of the ClientEarth organisation and asked what assurance I can give that our standards of protection will not be weakened in any way. The answer is that the Government will continue to ensure that current standards of environmental and health protection will be maintained after the end of the transition period. We have made that commitment many times, and it has not been diluted in any way. We will be taking our own independent decisions in Great Britain under retained law, but the statutory requirements on standards of protection and the considerable body of EU technical guidance are carried across unchanged.

The noble Lord also asked about principle of the “polluter pays” and whether it is in any sense undermined either through this instrument or generally speaking in our approach to regulating chemicals. It was not exactly clear which he was referring to, but the answer is the same. This statutory instrument has no bearing on the “polluter pays” principle, but that principle is at the heart of our approach in the upcoming Environment Bill, whether we are talking about pollution, waste or any other negative environmental impact, where the onus will be on the polluter or producer of waste.

The noble Lord, Lord Berkeley, made a powerful case for a shift away from pesticides towards cleaner systems, and he is right. That clearly has to be the ambition of any responsible Government. We want to minimise and eventually phase out the use of pesticides, and that means adopting different forms of food production over time. The only thing I would say to him, because this is not directly relevant to the effects of this SI, is that we are on the cusp of shifting our entire land use subsidy system away from the common agricultural policy—which, as he knows, incentivised landowners to convert whatever land they have, no matter how ecologically valuable, to make it farmable. No single piece of legislation anywhere in Europe has done more harm to our biodiversity and landscape than the common agricultural policy. That system is being changed wholesale and replaced with a system where payments will be conditional on good environmental stewardship. That can mean any number of different things, depending on where the land happens to be and how it is used, but it is inconceivable that the new environmental land management system will not catapult us in the direction in which we need to go of reversing biodiversity loss and promoting the kind of farming to which the noble Lord referred.

The noble Lord, Lord Randall, made the point that the chemicals industry is extraordinarily powerful and has enjoyed the position of being able to lobby very effectively, particularly across the European Union, where a single decision can have an impact on a vast area. That was certainly the case in the creation of the REACH programme. While many noble Lords look to REACH as the gold standard in chemicals regulation, the reality is that early proposals for REACH were much stronger than what eventually emerged. That was a consequence of probably the largest lobbying exercise by any sector at any time on the continent. I remember at the time writing and publishing articles about it in The Ecologist magazine, which I edited.

We saw an extraordinary weakening of rules on, for example, endocrine-disrupting chemicals—a point raised later in the debate by the noble Baroness, Lady Bakewell, who talked about the effect of polluted water on breast milk and the consequent development of children. I remember that, 15 years ago, a study was conducted into the issue of precocious puberty, or early onset puberty, in the United States. The figures were extraordinary, pointing to 1% of three year-old girls showing some signs of puberty, as compared with 1% of eight year-olds just 20 or 25 years before. There is no doubt that chemical contamination which finds its way into the food supply—into the food chain and through our water—has dramatic impacts on the health of children. It affects their development in all kinds of unpredictable and damaging ways, so I very much agree with her.

The noble Lord, Lord Randall, asked specifically why the SI delays introduction of changes to the format of the renewal dossiers until 2026, rather than 2023, as in the EU. This measure is to provide a smooth transition between EU and retained law. It has the effect that the relevant requirements which apply to active substances under retained law will be the same as for those same substances when they are considered under the EU regime. The change in date reflects that active substance approvals which expire in the first three years after the end of the transition period will be extended to allow the necessary time for evaluation under the national regime. This avoids the same substance having different requirements when it is addressed under the Great Britain regime than when it was considered under the EU regime. I hope that addresses his concern.

The noble Baroness, Lady Bennett, raised the same issue of pesticides being applied near homes, and I refer her to the answer I provided earlier. She also talked more broadly about the need to shift our food production away from the use of pesticides. Again, I strongly agree with her and refer her to my answer earlier to the noble Lord, Lord Berkeley. I remind her that the introduction of the ELM system will be the single biggest lever we have at our disposal to change the way land is managed.

The noble Baroness, Lady Bennett, talked more specifically about pesticide reduction policies. A lot of work is under way to research, develop and promote means to move away from chemical pesticides, including plant breeding for pesticide-resistant varieties, the use of natural predators, the development of biopesticides and the use of a variety of cultural methods to reduce pest pressures. The Government are funding much of that work through their support for the research councils.

The noble Baroness also asked a general question about whether our standards will be maintained. The Government have committed to continue to ensure that our existing standards are maintained after the transition period, and that will be true across all our chemical regulations policies.

My noble friend Lady McIntosh asked about staff and training—about capacity. I reassure her that we are working closely with the Health and Safety Executive to ensure the transition is as smooth as possible, and we have been carefully planning the expected programme of work. Without a doubt, some additional capacity will be required, and we will ramp it up as need be and over time. Clearly, we place great importance on protecting human health and the environment, so it will be necessary to resource the regime so that it can operate. We are well aware of that, and we will resolve those issues through the current spending review. However, the commitment is clearly there, as is the shared belief that this is a priority concern and we need to ensure that we have the capacity, the expertise and the resources that we need.

My noble friend Lady McIntosh also asked whether we will duplicate EU decisions. Great Britain authorities will take decisions that are in the best interests of the UK independently of EU decisions; there is no duplication of efforts. It has always been necessary to consider the evidence to inform the UK position on EU decisions, and our GB decision-making will be underpinned by that robust evidence base and impact assessment. The opportunity for UK stakeholders to input will not only remain but be enhanced.

The noble Baroness, Lady Bakewell, asked a number of questions. She asked about the MRL monitoring programme obligations and whether they will be carried forward into the national regime. They will, and they look ahead three years. She asked if we could explain the paragraph in the Explanatory Memorandum about the free issue procedure. This procedure is used to issue SIs where we have to correct mistakes. On PCBs, new legislation was passed this year to remove PCBs from use in electrical equipment by 2025. Legacy land contamination is managed under the contaminated land regime in Part IIA of the Environmental Protection Act 1990.

The noble Baroness, Lady Young, mentioned a number of issues that I hope I have already addressed. She also talked about POPs waste. Measures concerning the traceability control of POPs waste are clearly complex and will take some time to fully implement. However, it would not be appropriate to have that power indefinitely, and it may not be needed if it is dealt with under the Environment Bill. The noble Baroness also asked about control programmes and sampling. We will develop our plans for national maximum residue level monitoring programmes, including stakeholder engagement, in due course, so I will get back to her with information about that.

I hope and believe that I have answered the questions raised—I am looking through my notes to see if there are any that I missed out. My apologies—the noble Baroness, Lady Young, also asked about capacity and resources to deliver the national regime. The competent authorities across the UK will continue to manage and enforce the POPs regime as they do now, and, as I said, the Environment Agency has been working closely with Defra and the HSE to get the right resources in place to deliver its role. It has already increased its resource and it has an additional recruitment plan for early 2021 to ensure that it has the right capability and capacity for anticipated peaks and workload over the coming years.

I hope that I have answered all the questions that have been raised. I thank all noble Lords for their contributions and look forward to such debates in the months to come.

Motion agreed.