Draft Animals (Legislative Functions) (EU Exit) Regulations 2019 Draft Aquatic Animal Health and Plant Health (Legislative Functions) (EU Exit) Regulations 2019

Luke Pollard Excerpts

Wednesday 27th February 2019 General Committees

[Luke Pollard (Plymouth, Sutton and Devonport) (Lab/Co-op)]

It is a pleasure to serve under your chairmanship again, Mr Hanson. The Minister will be relieved to know that the Opposition will not vote against either of the two statutory instruments, but I have a number of questions, which I will be grateful if the Minister can address in his remarks, about the additional resources required for the new duties, the vague nature of some of the new appropriate authorities that the SIs refer to and the potential loss of scientific expertise.

I want to put on the record the Opposition’s general concern about how the Government are rushing through so many statutory instruments and pieces of secondary legislation, which means that scrutiny is often very limited. I note what the Minister said about errors in the explanatory notes. I am grateful to him for setting out what went wrong, but I carefully suggest to him that one reason why mistakes are being made may be the speed and pace of SIs being pushed through his Department. I have a lot of sympathy for the plight of Ministers in the Department for Environment, Food and Rural Affairs, because that Department is most affected by Brexit legislation and has the most SIs to get through. My concern is that, given the speed that they are being pushed through, mistakes can be made and there can be unintended consequences.

The Minister said that all these SIs do is simply transpose EU law into UK law, deleting “Europe” and inserting “the Secretary of State in the United Kingdom”, for instance. Secondary legislation should be used for technical, non-partisan, non-controversial changes, but the Opposition are concerned that the SIs could contain contentious elements that are not being scrutinised sufficiently. Some 400 statutory instruments have been tabled since June 2018. I would be grateful if the Minister can update us on how DEFRA’s SIs are doing. I understand that we are barely a quarter of the way through the pile of DEFRA SIs that is being considered by the House of Commons. My hon. Friends on the Back Benches are very good at turning up for these Delegated Legislation Committees, and they will want to know about them.

[The Chair]

Order. We are dealing with just these two today.

[Luke Pollard]

Indeed, which brings me to the lack of scrutiny that comes with the frequency and volume of the instruments we are being asked to consider.

On the surface, this SI does not seem particularly controversial, but I fear that we run the risk of exposing ourselves to unintended consequences if we continue to pass rushed legislation. There are elements in these two SIs that deal with some severe and important issues, so it is right that we ask about the scrutiny of them. In particular, I want to ask the Minister about the pre-legislative scrutiny of both SIs. For previous statutory instruments, I have invited the Minister to open the DEFRA reading room to allow parliamentarians and not just invited stakeholders the opportunity to review draft SIs to ensure sufficient scrutiny.

Both SIs deal with very important aspects of biosecurity and animal and plant health, and a certain level of technical expertise is required to understand their full implications. I note that the Minister has said in the past that DEFRA would be looking at opening its reading room so parliamentarians can carry out pre-legislative security, but has since decided against that. I invite him to revisit that decision, because in technical areas such as this, the greater the scrutiny, the better the legislation that comes out of it at the end.

Part 4 of the plant health regulations states:

“Regulations made by the Secretary of State…are to be made by statutory instrument”,

which leads to a number of questions about both SIs. Will the statutory instruments be affirmative or negative? What will their sequence be? Given the volume that is still to be introduced and the separation of key topics across a number of different SIs, we might not see the aggregated effect of the regulatory changes. For instance, today we are dealing with both plant health and animal health. That is a broad range of topics to consider. We know that there will be subsequent SIs on both topics, which means that we are not able to see the whole picture. I invite the Minister to think about whether the sequencing of SIs can be looked at to enable greater scrutiny.

I have mentioned previously my concerns about the loss of expertise and information-sharing with our EU friends as we leave the European Union. At the moment we have access to much EU-wide research and analysis to shape our decisions. The Minister has mentioned the transfer of competences from the Commission to relevant UK authorities, but I would be grateful if he could answer a few questions on scientific advice about plant animal health.

What steps are being taken to ensure that the scientific advice will be of the same technical and authoritative standard after this legislation is transposed? The European Commission has very high data quality, and I expect the UK Government to have similar. Will the Minister set out how he intends to ensure that the data quality will be the same? Will he tell us whether there will be additional funding allocated to authorities to look at the research and data collection that would be required under both statutory instruments? The UK has world-leading science. I do not meant to do down our science, but there is real value in peer-reviewed Europe-wide data that enables us to benchmark ourselves, particularly because plant health and animal health have cross-border implications on biosecurity.

I am concerned that there is additional demand on the resources of the competent authorities that the statutory instruments deliver additional powers to. They create new responsibilities for what will be deemed appropriate authorities after Brexit. In parts 2, 3 and 4, considerable powers are conferred to UK authorities, but it is not entirely clear where those mysterious authorities are and who will exercise those powers. I am reminded of Tony Benn’s five basic questions for democracy on allocation of powers. They include: what powers will they have? In whose interests will they be used? Who are they accountable to? How can we get rid of them if they cross the line? What is not certain about the powers created is the accountability and who will exercise them. I would be grateful if the Minister could respond to that.

There are concerns about the toothless nature of the new environmental protection agency. The Opposition understands why that is necessary following our exit from EU institutions, but we need to ensure that the competent authorities that will exercise those powers are sufficiently well resourced and have accountability and scrutiny of those decisions. Part 2 of the draft Aquatic Animal Health and Plant Health (Legislative Functions) (EU Exit) Regulations 2019 creates new powers for the appropriate authority—without naming it—to amend Annex 1A and Annex 3 to Commission regulation 1251/2008. Having the authority to amend that annex means that the appropriate authorities will be responsible for adding, varying or removing an exotic or non-exotic disease in Annex 1A where necessary. At what point will that be open to scrutiny to make sure the scientific basis of those decisions is appropriate? The EU Commission provides much of that but it is not certain how that will be done in future.

Part 3.10 confers to the appropriate authority

“Power to modify the lists of regulated plant pests and relevant material”

where modification is

“necessary or appropriate in the light of developments in scientific or technical knowledge”

and

“technically justified and consistent with the risk to plant health.”

Part 3.11 confers:

“Power to make further derogations”.

There are an awful lot of powers there. After many years of austerity and cuts to competent authorities in DEFRA land, what additional funding will be allocated? Has any assessment been made of whether any additional funding will be required for the proper exercise, scrutiny and data collection and reporting of the new duties? Has the Minister made any estimates of additional staffing that will be required?

Part 3.13 confers

“Power to make provision in relation to emergency measures”.

I am of the view that it is best to scrutinise emergency powers before they are used rather than at the point of use. The appropriate authority will have the ability to modify plant health regulations to make temporary provision for the purpose of preventing the introduction of a plant pest into a relevant territory. What additional resources can we put in place to ensure that those emergency powers can be scrutinised?

I was very concerned to read in the explanatory notes that the powers under directive 2006/88/EC and directive 2000/29/EC have not been transferred in this SI, given the lack of urgency. It says that they may be transferred in due course. I would be grateful if the Minister can set out, in relation to my concern about sequencing, when he expects those powers to be exercised in conjunction with the ones we are considering today. As a package, they work together, and individually they do not provide the full picture.

I echo the remarks made by my noble Friend Baroness Jones of Whitchurch in the other place. She made the point that the circumstances in which these controls are put in place in aquaculture seem to relate solely to the adverse economic impact and the likely production or export losses. There is no reference to the welfare or suffering of the species concerned. Could the Minister not have a wider responsibility to ensure good animal husbandry and disease-free environments for those fish and species, regardless of the economic consequences? I realise that this SI transfers current EU regulations, but the Minister knows that there is cross-party concern to ensure that high levels of animals husbandry for all species are transferred appropriately into UK law after we leave the EU. I hope the Minister will take into account the increasing evidence that fish that are farmed in an aquaculture environment that closely replicates their natural environment and are kept disease-free are less stressed, more productive and more robust in the longer term. There is a benefit all round to ensuring that the regulatory environment is appropriate.

The Animals (Legislative Functions) (EU Exit) Regulations 2019—hon. Members will be relieved to hear that I am now 60% of the way through my remarks—is about animal health and welfare, and food composition and labelling. Although it amends a wide breadth of legislation, as with the SI on aquatic animal and plant health, there has been no impact assessment. In previous Delegated Legislation Committees, I have raised concerns about the wording used in explanatory notes about impact assessments, and I would like to repeat them now. The explanatory memorandum says that there is no impact, or little impact, and therefore the Government have not carried out an impact assessment. The precise wording is:

“There is no, or no significant, impact on business”.

Given the volume of SIs that we need to get through, that is an unhelpful phrase, because those are two different things. I realise that the Minister is bound by the duties of the House, and that is the set terminology. I am sure he will blame the House authorities for it. There is a distinction between “no impact” and “no significant impact”. I would be grateful if the Minister can set out which of the two he believes it is, and how he can make that decision in the absence of an impact assessment.

This SI amends 10 pieces of EU legislation and transfers new powers to UK authorities. Individually, they do not seem to be huge changes, but I am concerned about the incremental change and the unintended consequences. I am especially concerned about how, as a nation, we provide identification, keep records, issue health certificates and transport animals. In aggregate, that creates a huge amount of work for the relevant institutions that will be receiving those powers.

My questions are similar to those that I asked about the previous SI. I would be grateful if the Minister can set out what assessment he has made of the requirement for any additional resources to ensure that these powers are appropriately used, and that the results of that work is appropriately reported. We currently rely on EU institutions to do that and aggregate that data, but that responsibility will now be transferring to UK authorities. I am not certain what the implication is of that transfer.

It would also be helpful to know what the appropriate authority referred to in these regulations is, the extent to which its advice is given independently, and whether that advice will be made public. One of the advantages of the fact that the EU scrutinises much of this is that many of its decisions are available on the European Commission website. It is quite a website, and it is not necessarily the easiest place to find that advice, but it is published. Does the Minister plan to transfer over that element of transparency? It is not within the SI per se, but it relates to how the powers in the SI will be delivered.

There are concerns about the level of scrutiny. There is a degree of stakeholder fatigue about the level of scrutiny and expertise that we have in reviewing some of these elements. Understanding the full implications of this SI requires a high level of technical knowledge. I do not for one moment pretend that I have such expertise, so the Opposition rely on outside expertise. That is one of the reasons why the sequencing of this particular SI with the other ones to come creates not only uncertainty about the proper scrutiny of this SI, but also the ones to follow. Will the Minister set out how he intends to address stakeholder fatigue and provide the robust scrutiny that certainly the Opposition and, I am sure, Members on both sides of the House rely on to make sure that what we are passing is appropriate?

The Minster has set out elements of the regulations. Regulations 2 to 9 and 11 give powers to the Minister to push through more statutory instruments. The Minister has set out what those particular SIs enable him to do. As we heard earlier, they range from implementation rules and scientific tests to disease resistance and food safety practices. Feedback from stakeholders in general is that dealing with a jigsaw puzzle one piece at a time does not enable us to see the bigger picture. There are elements here about how the competent authorities will use those individual regulations to create a full picture of the effect on the sectors that will be regulated by them. Will the Minister address that?

My noble Friend Baroness Jones raised a point in discussing this SI a few days ago about transmissible spongiform encephalopathies. You and I, Mr Hanson, might know them as mad cow disease or zombie deer disease in deer and elk. The Opposition are concerned that the regulations on TSE seem to water down the requirement in the annual monitoring programme to check animals in remote areas with low animal density. They also allow the overall programme to be revised based on a comprehensive risk analysis. There seems to be a slightly different effect in contrast to what the Minister set out as a simple cut and paste of EU legislation. On the TSE elements, why has there been no impact assessment on the potential monitoring reduction? Who will carry out any risk assessment to look at TSE? Mad cow disease and its similar forms in other species is an area where it is right and proper that additional questions are asked because of the potential effects. I represent an urban seat in a very rural part of the world in the south-west, so can the Minister give some reassurance to the people who want to know there is no reduction in the monitoring?

In relation to animal welfare, why have cows, goats and sheep been lumped together in an SI on aquatic plant health and disease? I echo the concerns of my noble Friend in the other place who said last week:

“It seems a bit of an act of desperation to produce these composite SIs, which have completely different subject matters, particularly when there are other SIs in the pipeline covering more specific regulations relating to these individual topics.”—[Official Report, House of Lords, 20 February 2019; Vol. 795, c. 484.]

We will not oppose this SI today, but we have concerns about the pace at which the SIs are being pushed through. We simply cannot afford to get it wrong when it comes to plant and animal health and the impact that may have on the environment, consumer welfare and public health. For example, in part 2, regulation 9 refers to Council regulation 1099/2009 on the protection of animals at the time of slaughter. These matters are not trivial and legislation dealing with slaughterhouses requires the utmost scrutiny. Will the Minister confirm that there is nothing in the regulations that will roll back animal welfare standards, especially in relation to slaughter?

In Monday’s REACH debate in the main Chamber, the Minister was unable to satisfy the House that no deal would not risk animal testing having to be duplicated. Some of the implementation of these particular regulations may add additional costs, not just to the public competent authorities mentioned in the SIs, but to those who work in aquaculture and agriculture and associated settings. Can the Minister set out whether he expects there to be any additional costs to those communities?

My general concern about many of the DEFRA SIs that we are considering, including the two before the Committee, is that future animal welfare still looks uncertain under this Government. There are lots of good warm words, but I am concerned about the aggregate effect of many of the changes, and about how they work as an overall picture. There are particular concerns about how one element of animal welfare consideration works with another and what the aggregate effect of changes to responsibilities will be on organisations that will receive additional powers.

To ease my concern, I would be grateful if the Minister spoke about how the SIs will be implemented. Is he asking the competent authorities, once identified, to implement them as they come out of the parliamentary process, or will he look at aggregating them to be implemented en bloc? Knowing whether the SIs will be aggregated for implementation or will be implemented in turn along the way will address how much scrutiny needs to be applied to each.

To conclude, I am concerned that there has been insufficient scrutiny of many statutory instruments, including the two before the Committee. We know that Brexit must not be used as an excuse to reduce or weaken our environment protections. There is a distinction between the protections in law and on the face of regulation, and those that are actually implemented by authorities that have the resource and powers to do so. I would be grateful if the Minister sets out answers to those concerns, particularly on funding for the organisations that may receive additional powers. The Opposition will not vote against the two instruments, but we have laid out our concerns, which I would be grateful if the Minister addressed.