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General Committees

Debated on Wednesday 25 November 2020

Delegated Legislation Committee

Draft Veterinary Medicines and Residues (Amendment) (EU Exit) Regulations 2020 Draft Aquatic Animal Health and Alien Species in Aquaculture, Animals, and Marketing of Seed, Plant and Propagating Material (Legislative Functions and Miscellaneous Provisions) (Amendment) (EU Exit) Regulations 2020

The Committee consisted of the following Members:

Chair: David Mundell

† Brereton, Jack (Stoke-on-Trent South) (Con)

† Britcliffe, Sara (Hyndburn) (Con)

† Buchan, Felicity (Kensington) (Con)

† Coyle, Neil (Bermondsey and Old Southwark) (Lab)

† Davison, Dehenna (Bishop Auckland) (Con)

Grady, Patrick (Glasgow North) (SNP)

Hillier, Meg (Hackney South and Shoreditch) (Lab/Co-op)

† Jenkinson, Mark (Workington) (Con)

Johnson, Dame Diana (Kingston upon Hull North) (Lab)

† Mann, Scott (North Cornwall) (Con)

† Moore, Damien (Southport) (Con)

† Morris, James (Lord Commissioner of Her Majestys Treasury)

Nichols, Charlotte (Warrington North) (Lab)

† Prentis, Victoria (Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs)

† Smith, Jeff (Manchester, Withington) (Lab)

† Sunderland, James (Bracknell) (Con)

† Zeichner, Daniel (Cambridge) (Lab)

Seb Newman, Committee Clerk

† attended the Committee

Sixth Delegated Legislation Committee

Wednesday 25 November 2020

[David Mundell in the Chair]

Draft Veterinary Medicines and Residues (Amendment) (EU Exit) Regulations 2020

With this it will be convenient to discuss the draft Aquatic Animal Health and Alien Species in Aquaculture, Animals, and Marketing of Seed, Plant and Propagating Material (Legislative Functions and Miscellaneous Provisions) (Amendment) (EU Exit) Regulations 2020.

It is a great pleasure to serve under your chairmanship, Mr Mundell, particularly—if I may say so—in your new slimline state. I have been gripped by social media—

That is all I needed to say. The draft regulations were laid before the House on 2 November. Turning first to the veterinary medicines and residues regulations, veterinary medicines are tightly regulated in the UK. They are essential for the treatment of animals and ensuring animal welfare, but they can also present a risk to human health and the environment. If misused, they can affect human health directly or may enter the natural environment, causing long-lasting damage.

The existing UK Veterinary Medicines Regulations 2013 set out the requirements on the manufacture, authorisation, supply, possession, and administration of veterinary medicines in the UK. The statutory instrument before us addresses technical deficiencies in our veterinary medicines and residues surveillance legislation to ensure that it continues to operate effectively at the end of the transition period. For example, minor corrections are being made to the text to address references to EU membership, which are no longer accurate or appropriate. The changes are also needed to reflect the requirements of the Northern Ireland protocol, as well as to implement the Government’s commitment to ensuring unfettered market access for Northern Ireland businesses in relation to veterinary medicines.

The legal frameworks will continue to regulate veterinary medicines and to safeguard the wellbeing of our animals. The instrument does not diminish the high standards in the established veterinary medicines and residues surveillance regimes. I emphasise that the amendments in the instrument are to ensure operability and that the high safety standards we have in place will continue.

The second SI is a composite one, covering seven policy areas—aquatic animal health, transmissible spongiform encephalopathies and animal by-products, livestock, zoonotic diseases, pet travel, alien and locally absent species in aquaculture, and seed, plants and propagating material. They have been grouped together purely to speed up the passage of these affirmative SIs before the end of the transition period.

The regulations transfer functions carried out by EU legislative bodies to the appropriate UK authorities. They also amend previously made EU exit statutory instruments to reflect the changes that took place at the end of last year and to implement the Northern Ireland protocol. The SI makes no major policy changes.

The instrument makes operability amendments to several pieces of secondary legislation. In particular, it will continue our robust sanitary and phytosanitary safeguard regimes in several crucial areas, give effect to our obligations under the Northern Ireland protocol and allow our new systems to operate at the end of the transition period. It will allow for the continued movement of pet animals and assistance dogs into Great Britain in a manner that protects our biosecurity as well as the health and welfare of the animals being moved.

We have taken the decision to list the EU to import live animals and animal products because, in biosecurity terms, we do not believe the risk will change on 1 January 2021. The SI will allow for decisions to be made about a country’s certification processes for plant reproductive material and whether they are equivalent to our own.

We have amended our legislation so that by the end of the transition period, the EU will become Part 1 listed for the non-commercial movement of pets into Great Britain. Practically, that means no change for EU travellers. We are maintaining the current health requirements on pet movements from the EU based on the unchanging disease risk at the beginning of next year, and to ensure that there is minimal impact on pet owners and users of assistance dogs who travel with their pets into GB under the EU pet travel scheme.

The instruments will make sure that legislation to ensure our biosecurity will continue to function in Great Britain after the transition period, and that we will continue to have a functioning pet travel scheme and imports system that guarantees our high standards of food and animal safety while ensuring frictionless trading and movements. For the reasons I have set out, I commend the draft regulations to the Committee.

It is a pleasure to serve with you in the Chair, Mr Mundell, and to be with the Minister again today. There is something rather important about the statutory instruments before us. I am not sure that anyone thinks that considering them is soporific because most Members, in my experience, are quite keen on knowing what they will have for tea later. Somewhere down the line, this could well affect what we find being served up in the Members’ Tea Room, so it is important stuff. [Laughter.] I will come to it—do not worry. I also have a direct interest in the sense that I chair the all-party parliamentary group for life sciences. I have many life science researchers in and around my constituency, so I know quite a lot more about this issue than I did when I came to Parliament a few years ago, and it is important.

Paragraph 2.2 of the explanatory memorandum explains what the instrument does, which is pretty much what the Minister said:

“In England and Scotland, the Residues Regulations prohibit the use of certain substances as growth promoters and provide for a surveillance programme for residues of veterinary medicines…Regulation 470/2009 establishes maximum residues limits for pharmacologically active substances in foodstuffs from animal origin.”

That is, of course, quite salient to many of the debates that we have had in recent times. Paragraph 7.2 states:

“The policy objective is to maintain existing laws.”

We agree with that overall objective; the question is whether it will be achieved. Paragraph 7.3 talks about

“light touch regulatory controls on medicines that are approved in Northern Ireland and not Great Britain and that move from Northern Ireland onto the Great Britain market.”

Could the Minister elaborate a bit on what those light-touch regulatory controls actually mean?

I am grateful to the British Veterinary Association, whose members obviously deal with such matters on a day-to-day basis, for giving us some advice. The BVA said:

“In the medium term there may be concerns about the availability of medicines in Northern Ireland. Today, medicines are often shipped from the EU and warehoused in GB. They are then moved in smaller quantities to NI. Friction in the Irish Sea could make this difficult. For example, there could be a requirement for batch testing once medicines enter Northern Ireland. Northern Ireland is a small market. Similarly, if there are additional costs associated with sending medicines to Northern Ireland companies may choose to exit the Northern Ireland market.”

It is therefore very important that we get this right. I am frequently accused by Ministers of being unduly pessimistic about the future, so here is a note of positivity from the BVA, which says that

“an agreed approach had been reached on a phased process for implementing medicines regulation in Northern Ireland up to 31 December 2021, providing the additional time needed”.

That is good news, and it came from the Ireland/Northern Ireland Specialised Committee, which apparently met on 5 November, but it leaves some longer-term questions in the air. The BVA concludes:

“The concern is that there may be a requirement for a standalone authorisation process for Northern Ireland. As a result of the small market, this could see medicines companies choose to forgo the market.”

It is important that we get these things right in the future.

I am also grateful to the Secondary Legislation Scrutiny Committee in the House of Lords, which often does excellent work in this area. There is some correspondence between that Committee and Friends of the Earth, which had asked very detailed questions that the Department answered. It showed me the level of complexity in all this. With the best will in the world, I am not sure that any of us has the capacity, knowledge or time, frankly, to dig through the levels of complexity to be absolutely sure that nothing has been either overlooked or, if one were being unduly negative, passed through the back door in some way. The questions from Friends of the Earth certainly bear looking into. I will not trouble the Committee with the fine detail of each part, but I would be grateful if the Minister wrote in response to one or two of their points.

There is a detailed legalistic discussion about whether the analysis of animal product samples is subject to two pieces of legislation, one of which is removed in the first SI. The Department argues that it is replicated elsewhere, but I do not think Friends of the Earth are entirely convinced by that, though I am not in a position to judge.

The second question is more serious. Friends of the Earth argue that within the regulations there are so-called reference points for action. That essentially means points at which the standards are reconsidered. There are some to come in future, prompting a discussion between Friends of Earth and the Department as to whether we would replicate that process. The answer from the Department is only that we are committed to maintaining high standards. Frankly, that is not an answer. I would read that answer to mean that there is no guarantee, which potentially weakens the position we would have been in if we were not taking this course of action. On that basis alone, it gives me cause for concern.

What gives me more concern when I think about what might be in the Tea Room later—or many years hence—are maximum residue levels. That is the vexed question of what is still left in the animal when we come to eat it. There is a complicated series of questions posed about whether to shift to an administrative process rather than a legislative one. I would argue that the Department has not put our minds at rest on that process. That again suggests a potential weakening of our protections.

Some may ask why any of that matters. I will quote my good friend, the learned Lord Whitty, speaking in the House of Lords. Members will appreciate that much of this has been discussed before, when we were going through the process last year. Lord Whitty put the case very well. He said:

“MRLs are ultimately there to protect the human and, in some cases, animal consumer. They are there for a health reason. It is very important that we do not go backwards. The withdrawal period specified in the EU legislation—the period since the animal last received those medicines—is important to preserve but does not exist in the same way in other jurisdictions around the world. If we are entering new trade agreements with, say, America or Brazil, they will be operating on different systems. We must be careful.”

Lord Whitty asked that we check on one particular protection. He said:

“The Americans portray hormone injections as medicine but they are really there for growth.”—[Official Report, House of Lords, 20 March 2019; Vol. 796, c. 301GC.]

I suspect the Minister knows where I am going with this discussion, as all roads in these debates tend to lead ultimately to chlorine-washed chicken and hormone-fed beef. My concern is that deep in the intricacies of the legislation there are potential back doors opening to allow lower standards. That is something the Opposition are not prepared to allow.

The other SI deals with a range of issues. As the Minister said, it covers seven policy areas: seed, plant and plant propagating material; aquatic animal health; transmissible spongiform encephalopathies and animal by-products; livestock; zoonotic diseases; pet travel and the use of alien and locally absent species in aquaculture. That is very wide ranging and there is some question about how those issues are grouped. Some of the things we are discussing this afternoon were previously grouped with some of the things we discussed this morning, which adds to the confusion, I am afraid. No one ever said this was going to be easy.

I gently suggest that anything relating to spongiform encephalopathies and salmonella will cause politicians of a certain age to be on alert. Of course, that dispute ran for years and years. It strikes me as astonishing that people talk about how easy everything is to sort out when we spent a decade having an argument with the European Union, with all those “Dad’s Army” posters on the front of The Sun and all the rest of it, over one item of dispute. Goodness knows what lies ahead, but that is for another day, sadly. These are important issues and they need to be resolved properly.

Finally, I come to the subject that probably concerns the most people: the pet travel issues. As the Minister said, these SIs touch on that. As I understand it, something like 300,000 pets come into the UK at the moment. There are some concerns about those numbers and about puppy smuggling. Anything the Minister might want to say about that would be welcome. I again welcome the work of the Secondary Legislation Scrutiny Committee in the House of Lords, because it has asked some serious questions about that, and again I will refer to the Government’s answers. It is all about which direction we are going in, basically. We can make our decisions, but it is not so easy for us to take pets into the EU. The EU is apparently now considering our application to be a Part 1 listed third country, and the Lords Committee rightly said:

“We note that it is not clear at this stage what the process and requirements will be for moving pets from GB to Ireland via NI after the end of the”

transition period. Anything the Minister can tell us about that would be extremely helpful.

The Secondary Legislation Scrutiny Committee also asked about the practical impact of having separate regimes in areas such as TSEs and zoonotic diseases. DEFRA’s explanation was:

“Changes for goods moving from Great Britain to Northern Ireland will be kept to an absolute minimum”—

oh, joy—

“but there will be a requirement for export health certification. A new Trader Support Service, available to all traders at no cost, will be established to provide wraparound support”.

Frankly, that is the same old magical thinking and we are not convinced by it. On that basis, we are not convinced by either of these pieces of legislation, but we will divide the Committee only on the first.

The hon. Gentleman asked a large number of questions, and I will try to answer them as best I can. He asked about the light-touch transparency arrangements in veterinary medicines. A medicine that is legally on the market in Northern Ireland but not in GB may benefit from unfettered market access, providing that the following conditions are met. The marketing authorisation holder, if it is not already based in Northern Ireland, must have a dedicated place of establishment in Northern Ireland. The holder must provide the same application dossier and supporting information to the Veterinary Medicines Directorate as it would have provided to the European equivalent. The Northern Ireland dedicated place of establishment must provide access to any EU-based pharmacovigilance system that the marketing authorisation holder has in place. If the conditions are met and there are no safety concerns, a certificate will be issued to allow the product on to the GB market. In brief, we are trying to work in a joined-up, sensible and proportionate way as we come to the end of the transition period.

I am also grateful to the scrutiny Committee in the House of Lords. As the hon. Gentleman knows, I love secondary legislation, which is good because we spend a lot of our time doing it at the moment, and I spent many happy years on the Joint Committee on Statutory Instruments. I feel that the questioners on the scrutiny Committee in the House of Lords did not completely understand the purpose of this statutory instrument, but I am happy to answer those points in any event.

As we said many times during the passage of the Agriculture Act 2020, any future trade agreements must respect the retained regulatory autonomy that we have brought over as a result of the withdrawal agreement. We will continue to protect public, animal and plant life and health, and reflect our existing high standards. The EU law banning the import and production of hormone-treated beef has been transposed into domestic law and will continue to operate in the UK at the end of the transition period. That will apply in all parts of the UK. Any changes would require legislation to be brought to Parliament. After the transition period, the Food Standards Agency and its equivalent in Scotland will continue to oversee food safety to ensure that all food imports comply with the UK’s high safety standards. You will be aware, Mr Mundell, of the changes made recently to the Agriculture Act that add an extra layer of scrutiny to that.

All current EU maximum residue levels will continue to apply in the UK from the end of the transition period. The methodology is set out in Commission regulation 2018/782, which now forms part of our retained EU law, with only very minor amendments for operability. There is nothing—I do love secondary legislation—that concerns me about our new regulatory system. I accept that it is complex, but it is also comprehensive.

The Veterinary Medicines Directorate—this may be of assistance to Committee members—has published extensive guidance on its information hub, which will help businesses prepare for the end of the transition period. This hub has, broadly, been very well received by the veterinary medicines industry. I recognise that this legislation, especially where it amends other legislation, is not always easy to read, or to follow. I suspect that that is one of the reasons why the VMD has engaged so strongly with its stakeholders to ensure that they understand it.

The hon. Gentleman’s question on pets is not exactly within the scope of this instrument, which relates to inbound travel of pets and guidance dogs to the UK, but as he has asked, I will answer. DEFRA has submitted its application for the UK to become a Part 1 listed country under Annex II of the EU pet travel regulations; we are currently in technical negotiations with the EU about this. We will do what we can, and we intend to make sensible, proportionate and biosecure changes in the regulations.

We have had a constructive and useful debate, and I commend the regulations to the Committee.

Question put.

Resolved,

That the Committee has considered the draft Veterinary Medicines and Residues (Amendment) (EU Exit) Regulations 2020.

Draft Aquatic Animal health and alien species in aquaculture, animals, and marketing of seed, plant and propagating material (legislative functions and miscellaneous provisions) (amendment) (eu exit) Regulations 2020

Resolved,

That the Committee has considered the draft Aquatic Animal Health and Alien Species in Aquaculture, Animals, and Marketing of Seed, Plant and Propagating Material (Legislative Functions and Miscellaneous Provisions) (Amendment) (EU Exit) Regulations 2020.—(Victoria Prentis.)

Committee rose.

Draft Agricultural Products, Food and Drink (Amendment etc.) (EU Exit) Regulations 2020 Draft Food (Amendment) (EU Exit) Regulations 2020

The Committee consisted of the following Members:

Chair: Philip Davies

† Aiken, Nickie (Cities of London and Westminster) (Con)

† Buchan, Felicity (Kensington) (Con)

† Everitt, Ben (Milton Keynes North) (Con)

† Fletcher, Colleen (Coventry North East) (Lab)

† Griffith, Andrew (Arundel and South Downs) (Con)

Gwynne, Andrew (Denton and Reddish) (Lab)

Harman, Ms Harriet (Camberwell and Peckham) (Lab)

Hendrick, Sir Mark (Preston) (Lab/Co-op)

† Lewer, Andrew (Northampton South) (Con)

† Morris, James (Lord Commissioner of Her Majestys Treasury)

† Prentis, Victoria (Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs)

† Richards, Nicola (West Bromwich East) (Con)

† Russell, Dean (Watford) (Con)

Smith, Nick (Blaenau Gwent) (Lab)

Thompson, Owen (Midlothian) (SNP)

† Webb, Suzanne (Stourbridge) (Con)

† Zeichner, Daniel (Cambridge) (Lab)

Seb Newman, Committee Clerk

† attended the Committee

Fifth Delegated Legislation Committee

Wednesday 25 November 2020

[Philip Davies in the Chair]

Draft Agricultural Products, Food and Drink (Amendment etc.) (EU Exit) Regulations 2020

With this it will be convenient to consider the draft Food (Amendment) (EU Exit) Regulations 2020.

It is an enormous pleasure to serve under your chairmanship for the first time, Mr Davies. The draft Agricultural Products, Food and Drink (Amendment etc.) (EU Exit) Regulations 2020 contain necessary amendments to EU agrifood, spirit drinks, wine and aromatised wine regulations to enable them to function in domestic law. The changes primarily concern geographical indication or GI schemes, but they extend to wine and spirit drink sector standards.

I first want to address the impact of the Northern Ireland protocol. For the duration of the protocol, the EU GI framework will apply in Northern Ireland. As such, most of this instrument has the territorial extent of Great Britain. However, these schemes will be administered and regulated by the UK Government, so they will generally be referred to as UK GI schemes.

GIs are a form of intellectual property protection for the names of food, drink and agricultural products with qualities attributable to the place they are produced or the traditional methods by which they are made, such as Scotch whisky, Welsh lamb and Melton Mowbray pork pies—[Hon. Members: “Hooray!”] It is a little early for a Melton Mowbray pork pie. Most of the amendments made by this instrument are to the retained EU regulations that govern GI schemes. They collectively convert the four EU GI schemes into a legal framework for the new schemes in Great Britain.

The framework will allow applications for GI protection to be made to the Secretary of State by both UK and international applicants. It will allow applications to be scrutinised and consulted on, and for the Secretary of State to take decisions on awarding new GIs. In doing so, we condense what was a two-stage application process to the Commission into a single, streamlined domestic process, which ought to be easier and quicker.

Once awarded GI status, a product name is then added to the relevant public GI register established by this instrument, meaning that the GI protection will formally take effect in Great Britain. From 1 January, all existing UK GIs and the EU GIs, which are protected through the withdrawal agreement, will be on our registers. These will be joined by international GI products protected through trade agreements.

This instrument removes the requirement for EU GI logos to be used by British producers and establishes the new domestic logos. I know, Chair, that we are not allowed to wave things around, but—

I speak not only as the representative of Arundel and South Downs, but as the chairman of the all-party parliamentary group for wine of Great Britain. GIs are incredibly important both to allow consumers to make smart choices about country of origin and food or wine supply chains and to support a burgeoning and rapidly growing British industry that stretches across most parts of the kingdom. It already employs 11,000 people, with the aspiration, once we find our new way in the world, of employing many more people in a successful, green, sustainable British industry.

I thank my hon. Friend. I understand his passion for GIs, as some truly delicious wine is produced in his constituency. The APPGs for wine of Great Britain and on geographically protected foods are doing really good work at the moment. I very much look forward to promoting our new GI schemes in the early part of next year.

To avoid burdening producers, we are introducing a three-year period before logo use becomes mandatory on GI products. The first instrument also includes a small number of non-GI amendments to EU wine and spirits sector rules. Those include the definition, composition and labelling of spirit drinks, and the use of wine labelling terms, experimental winemaking practices, accompanying documents and the registers maintained by wine operators.

Finally, the first instrument amends the domestic legislation that enables enforcement of the regulations. It makes separate amendments for GB and NI, to take account of the different regulations that will apply in each territory from 2021.

These rules collectively ensure that we have not only a fully functional GI framework, but one that enables and encourages our international reputation for quality food and drink to grow.

I turn now to the second SI, which concerns natural mineral waters and food information for consumers. The main purpose of this instrument, like so many SIs that we are dealing with at the moment, is to place food information for consumers and natural mineral waters rules on a legal footing that accounts for the Northern Ireland protocol, which obviously the legislation prepared for no deal at the end of last year could not do, as the Northern Ireland protocol at that point did not exist. This instrument also makes some minor technical amendments to retained direct EU law and domestic regulations, to ensure the operability of the legislation at the end of the transition period. It does not bring about a substantial change in policy. The retained EU regulations assure a high level of consumer protection in relation to food information so that consumers are not misled about their food, can make informed food choices and use food safely.

Both instruments have received the devolved Administrations’ consent and, for the reasons that I have set out, I commend them to the Committee.

It is a pleasure to be back in a Committee under your chairmanship, Mr Davies. I thank the Minister for her introduction. She explained very well the importance of geographical indicators, as did the hon. Member for Arundel and South Downs in a powerful intervention. I think we are all broadly supportive of getting these things right. Geographically protected goods represent about one quarter of the UK’s food and drink exports each year, we are told by the Department for Environment, Food and Rural Affairs, and are worth almost £6 billion.

This is a complicated set of issues. I am not sure that I fully comprehend all the complexities in the documents that we have been given, but ensuring TRIPs—trade-related aspects of intellectual property rights—compliance and that we are conforming to World Trade Organisation rules is important, so we are broadly supportive of what the Government are doing. However, we do have a few questions, as you might expect, Mr Davies.

Some of the questions are really about the broader issue of what happens in the next few weeks if we do not secure a deal with the European Union. We have heard assurances from the Government that our geographical indicators will continue to be recognised in the EU market after the end of the transition period, but clearly there is considerable concern across the sectors that, in the absence of any deal, there is no guarantee that that will continue to be the case. If the talks do not lead to fruition and the UK does not offer mutual recognition for EU GIs in this country, what will that mean for those producers and what message are the Government giving to our exporters, who depend so much on these recognitions?

The Minister touched on the new arrangements for administering the schemes in the UK, which she described as being likely to be streamlined, more efficient and quicker. I am sure that we all hope that that will be the case, but what assurances can the Minister give that the internal digital infrastructure necessary to administer all this will be in place by 1 January? Perhaps she can update us on what progress has been made so far. As ever, I do not necessarily expect her to have all the answers at her fingertips—she is very good at writing afterwards.

The Minister claims that the new arrangements for administering the schemes will be more efficient, quicker and streamlined. Perhaps she could say a little more about the evidence to back that up, because we are not convinced that that is always what happens. We have not seen an impact assessment for this SI, but it seems to us that engaging with the changing systems will have some costs for specialist food companies and those with protected designations. What is the Government’s assessment of those extra costs, and what costs will be involved in applying for a new geographical indicator status and appealing to the first-tier tribunal?

We also imagine that there will be extra costs in setting up systems of promotion abroad for our specialist protected products. Again, any indications as to where the Government have got to on that would be helpful.

On the second SI, which is largely about natural mineral waters, it was clear from the consultation, which we welcomed, that the majority of respondents favoured the Government’s course of action, but some took a different view. Can the Minister explain why we settled on six months? Some looked for a much longer time through a transition period. That is a similar point to the one I made earlier about a no-deal scenario: it could leave our producers of natural mineral water at a distinct disadvantage if they cannot export to the EU. Will the Minister say a little about the provisions in that case?

On the details relating to Northern Ireland, there is a complex and difficult set of issues. Although we welcome the Government’s recognition of the pressure on the food industry in relation to labelling changes—I think they have advised that the necessary labelling changes for food sold in Great Britain will now apply to food sold from 1 October 2022 to give producers more time to get their affairs in order—there is still much to get in place by 1 January next year. After all, it is now only four or five weeks away.

Much still needs to be done in terms of pre-packaged food. If it is sold in Northern Ireland, it must include a Northern Ireland or EU business operator address. Food manufacturers have been told that from 1 January they need to label food from or sold in Northern Ireland as such where EU law requires it. So there is a range of complexities, and I would welcome any indication from the Minister on how close we are to resolving those points.

I have one final point, which I will probably repeat in future SI Committees. In my research for the Environment Bill Committee yesterday, I came across an interesting piece by Professor Andrew Jordan and Dr Brendan Moore, who have analysed many of the SIs that we have been talking about. It was a fascinating piece. We are frequently told that the SIs involve technical transpositions and that nothing is really changing. Their piece pointed out that in much of EU law there are review and revision clauses, and they have helpfully gone through and noted which are the SIs where we too have introduced review and revision clauses, and which are the ones where we have not, and overwhelmingly we have not. I will not bore the Committee with the list, but some of them are ones that we have ourselves discussed. So my question on all the SIs is: were the review and revision clauses included in the legislation that was brought across? If not, why not?

That sounds like an extremely interesting article. I look forward to finding it later. I am sure the hon. Gentleman and I can have a discussion while we wait for our SI debates this afternoon. I will try to answer as many of his questions as I can.

The first SI that we are discussing today is very long. It replaces 15 EU regulations and four different GI schemes. I accept that the legislation is complicated. In the first SI, there is certainly policy change. It very much lays the framework for setting up our new and, in my view, very exciting GI system.

To talk generally about the new policy, last week we had a webinar with about 130 producers, all of whom are raring to get going in the GI space. In future, there will be a one-stage application process. We are designing it with producers in a way that we hope will be as helpful as possible.

On the broader issues that have been raised, we very much hope that we will get a deal with the EU in the next week or two. As I said earlier, we will continue to recognise EU GIs. As I set out, we have a 21-month period of adjustment on labelling, and I will go through some of the labelling changes. The same basic rules will apply for logo use as under the EU schemes. Logo use will be mandatory under the agrifood schemes but optional under drinks schemes relating to wines and spirits—that is the same as it was under the EU schemes. GB producers of existing agrifood GIs will have a three-year period from 1 January until the use of the new logos becomes mandatory. New GB applicants for agrifood GI protection will need to start using the logos straightaway once their protection starts. It will be optional for NI producers that are protected under the UK schemes to use the UK logo, but they will of course continue to use the EU logos. We will endeavour to make the process as streamlined as possible for new NI producers that apply under both schemes.

The Minister has explained that very clearly. What she has not touched on is costs to producers. Can she say anything about that?

We very much hope that the costs will be less than for the previous application process, which is partly why we are engaging so heavily with producers at the moment to find a system that suits everybody. It is not an easy issue, though. To have a GI is a big deal for a producer, and it should be. The application process will of course be relatively onerous, but we will try to ensure that it is as low cost for producers as possible.

No, the existing GIs will just be brought over into our system, so there are no new costs for producers there. If producers wish to sell in the GB market as well as in the EU market, as I said earlier, we are working hard to ensure that the two processes are streamlined, to minimise the cost to producers as much as we can. This is in a world where I hope GIs will be a much bigger deal for the UK. I am looking forward to boosting them and to working with producers as we seek to export much more food, and much more really high-quality food, than we do at the moment.

I think I have dealt with most of the hon. Gentleman’s points. Public consultations were held on natural mineral waters, food labelling policy and impact assessments in 2018, when we thought we might have a no-deal Brexit. Meetings were held with industry, and we had a great deal of feedback from stakeholders. As I said, the amendments made by the SI are mainly technical changes in order to make the regulations operable, so we did not feel that any additional consultation was needed. With that in mind, I recommend that we approve the two instruments.

Question put and agreed to.

DRAFT FOOD (AMENDMENT) (EU EXIT) REGULATIONS 2020

Resolved,

That the Committee has considered the draft Food (Amendment) (EU Exit) Regulations 2020—(Victoria Prentis.)

Committee rose.

draft Data Protection Privacy and electronic communications (amendment etc.) (EU exit) regulations 2020

The Committee consisted of the following Members:

Chair: Steve McCabe

Byrne, Ian (Liverpool, West Derby) (Lab)

† Caulfield, Maria (Lewes) (Con)

† Clark, Feryal (Enfield North) (Lab)

Cooper, Rosie (West Lancashire) (Lab)

Cryer, John (Leyton and Wanstead) (Lab)

Cummins, Judith (Bradford South) (Lab)

† Fletcher, Mark (Bolsover) (Con)

† Holmes, Paul (Eastleigh) (Con)

† Howell, Paul (Sedgefield) (Con)

† Hunt, Jane (Loughborough) (Con)

† Hunt, Tom (Ipswich) (Con)

† Mayhew, Jerome (Broadland) (Con)

† O'Brien, Neil (Harborough) (Con)

† Onwurah, Chi (Newcastle upon Tyne Central) (Lab)

† Roberts, Rob (Delyn) (Con)

Thompson, Owen (Midlothian) (SNP)

† Whittingdale, Mr John (Minister for Media and Data)

Yohanna Sallberg, Committee Clerk

† attended the Committee

Seventh Delegated Legislation Committee

Wednesday 25 November 2020

[Steve McCabe in the Chair]

DRAFT DATA PROTECTION PRIVACY AND ELECTRONIC COMMUNICATIONS (AMENDMENTS ETC.) (EU EXIT) REGULATIONS 2020

Before we begin, I must remind Members about the social distancing rules, as we are in a very small room. I see that Chi Onwurah has done her best, by limiting the numbers on the Opposition side to make it easier. [Interruption.] I also remind Members that if they have any speaking notes, our Hansard colleagues would like them at hochansardnotes@parliament.uk.

I beg to move,

That the Cttee has considered the draft Data Protection Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2020.

It is a pleasure to serve under your chairmanship this afternoon, Mr McCabe. The statutory instrument was laid before both Houses on 14 October and is made under the European Union (Withdrawal) Act 2018. The main intention is to ensure that the UK’s data protection framework will function correctly at the end of the transition period, and that there will be no data cliff edges. I want to bring to the Committee’s attention the fact that neither the Joint Committee on Statutory Instruments nor the House of Lords Secondary Legislation Scrutiny Committee has drawn either House’s attention to the SI.

Where the transition period comes to an end, the European Union’s regulation on data protection, known as GDPR, will be retained in domestic law through the European Union (Withdrawal) Act 2018. Last year the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 were made. They made minor changes to the retained GDPR under the Data Protection Act 2018, to ensure that UK data protection law would continue to operate on exit day.

The statutory instrument before the Committee today makes limited amendments to those regulations. The majority of the changes are updates of exit day references to read “IP completion day”. The SI will also revoke some EU legislation that would have no practical effect if it were to be retained under the European Union (Withdrawal) Act 2018 at the end of the transition period.

There are a small number of other changes, which relate to the transitional provisions for international transfers of personal data. At the end of the transitional period UK organisations will be able to transfer personal data outside the UK if it is covered by an adequacy regulation, an appropriate safeguard, or an exception. Currently UK organisations can freely transfer personal data to EU and European economic area member states and to non-EEA countries for which the EU Commission has made adequacy decisions.

The regulations that I have referred to continue that position on a transitional basis. For clarity, the relevant adequacy decisions are listed. The measure before the Committee updates that list to reflect recent developments, adding the EU’s adequacy decision for Japan, and removing the reference to the adequacy decision for the US privacy shield. These amendments are not substantive, and are entirely in keeping with the original intention of the main regulations—namely, to ensure the continued free flow of personal data between the UK and third countries that have already been found to meet the requisite standards for data protection.

Binding corporate rules are an internal code of conduct operating within a multinational group, which has been approved by EU data protection regulators, to enable personal data to be transferred within the global group. The main regulations preserve pre-GDPR binding corporate rules that were previously authorised by the Information Commissioner as a valid transfer mechanism after the transition period. However, a subset of pre-GDPR binding corporate rules currently relied on by organisations with data flows in the UK may have received authorisation only from EU supervisory authorities. The SI before the Committee makes provisions that will allow UK-based group members to use such rules as a valid transfer mechanism if they obtain approval from the Information Commissioner within six months of the end of the transition period.

The main regulations also provided a legal basis for the continued free flow of personal data from the UK to the EU, falling within the scope of the law enforcement directive, otherwise known as the LED. The approach adopted in the main regulations was to transitionally deem EU member states and Gibraltar as adequate.

Since the main regulations were made, the Home Office has established that Norway, Iceland, Liechtenstein and Switzerland have also transposed the law enforcement directive into their domestic law, which enables data sharing between authorities in the UK and law enforcement agencies within these countries. In order that law enforcement co-operation and data sharing can continue as it does now, following the end of the transition period, this instrument adds these EEA states and Switzerland to the list of countries that will be treated as adequate on a transitional basis.

Finally, I turn to the revocation of the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019. In 2019, an additional SI was made to amend the main regulations to reflect the arrangements made for personal data transferred from the UK to privacy shield companies in the US. As the CJEU has invalidated the adequacy decision, the amending regulation no longer has any practical affect and, therefore, this regulation revokes that amending regulation before it comes into force.

As I have set out, these regulations address deficiencies in our data protection regime resulting from the UK’s leaving the EU at the end of the transition period. I commend the regulations to the Committee.

It is a pleasure, Mr McCabe, to serve under your chairship for this important statutory instrument. I thank the Minister for his opening remarks. I also state for the record that although I was as dismayed as most people by all the emails that invaded our inboxes from organisations explaining their data privacy policies when the general data protection regulation took effect in 2018, I was pleased that data protection was finally beginning to be taken seriously and coming to the attention of the vast majority of people—even in that most irritating way.

Data is the business model of the internet age. It is often referred to as “the new oil”. I do not like that because we have seen what oil extraction has done, both to the environment in countries such as Nigeria and to the planet with carbon emissions. We want to make sure that the impact of data is more constructive in the short and long term. It is certain that there is an impact. As more and more aspects of our lives move online—and the pandemic has accelerated that migration—we all excrete a trail of data and create a data doppelgänger, which can be used to empower and inform us or to control, sell to and disempower us. Data privacy, data rights and data flows are therefore of critical importance to all of us.

Depending on any deal, which may or may not be signed —we still do not know—by the Government when the UK leaves the transition period, our data and data protection will no longer be subject to the European Union’s GDPR law. Instead, we will have transposed EU GDPR into UK GDPR. The direction in which the UK takes GDPR will have a wide-ranging impact. Cross- border data flows are now an absolute requisite of trade, with businesses reliant on their ability to transfer personal data about their customers or workforce to offer goods or services and run even basic internal processes such as cloud-based email or file storage. Those all involve data flows, but that is especially true of digitally intensive sectors—telecommunications and financial services, which account for 16% of UK economic output and a quarter of total exports, according to techUK.

As the Minister set out, the SI amends and revokes areas of legislation to ensure that the European Union’s GDPR law is translated into UK GDPR law in time for the end of the transition period, as agreed under the withdrawal agreement. The EU GDPR will become UK legislation on IP completion day and, as such, will become the UK’s GDPR. It is then immediately corrected by today’s SI.

As the Minister set out, the SI seeks to ensure that the legal framework for data protection within the UK continues to function correctly after the transition period. The changes in the SI update the date on which the DPPEC come into force from the start—exit day—to the end of the transition period, IP completion day, in effect applying EU case law during the past nine months, ensuring that personal data can continue to be transferred to third countries as it could immediately before exit day. And they set out revised transfer provisions for law enforcement data to include the addition of EEA countries.

The current transitional mechanism does not apply for any EU adequacy decisions that are repealed or suspended immediately before IP completion day, as amended by this instrument. On 16 July 2020, in case C-311/18, commonly referred to as Schrems II, the Court of Justice of the European Union declared one such decision, the Privacy Shield agreement with the USA, to be invalid. Therefore, the transitional mechanism will not apply for that decision, and this SI removes Privacy Shield from the list of transitional adequacy provisions that the UK will roll over.

The SI incorporates European Union decisions on the adequacy of third party countries in UK domestic law. Data adequacy is a status granted by the European Commission to countries outside the European economic area that provide a level of personal data protection comparable to that provided by European law. When a country has been awarded the status, information can pass freely between it and the EEA without further safeguards being required.

However, despite the UK’s application of the GDPR and implementation of the law enforcement directive under the Data Protection Act 2018, there is no guarantee that we will be awarded an adequacy decision. The European Court of Justice, which can strike down any adequacy decision approved by the Commission, has already twice ruled that the UK’s handling of personal data is not in line with European Union law, so can the Minister tell me what discussions he has had with the European Union about the likelihood of the UK receiving data adequacy recognition? I am sure that he recognises that many businesses are very concerned to have some reassurance and some certainty in this regard.

Even if the UK does manage to secure an adequacy agreement before the end of the transition period, there is no guarantee that we will keep it. It will be vulnerable to being overturned by the European Court of Justice, so can the Minister promise us that the UK’s handling of personal data will remain in line with our legal obligations that arise from any agreement with the European Union, and can he set out what impact he envisages—I know that he is well versed in these areas—European Court of Justice rulings might then have on UK GDPR law? Will they, as it were, remain supreme following the end of the transition period?

Those are the things that the SI does, but there are some things that it does not do. The Government have not been clear or forthcoming about their data management strategy. The shift of public sector data management from the Department for Digital, Culture, Media and Sport to No. 10 in July—as I understand it, at the behest of Dominic Cummings, no longer of this parish—raised many questions as to the direction of the Government’s handling and use of public data.

The national data strategy, which is undergoing a consultation that closes next week, talks a lot about the role that data can play in driving economic growth, but there is nothing about data rights, duties and obligations on the huge tech platforms that use and misuse so much of our data, or discussion of a regulatory framework for data. Content created by the tech platforms uses people’s data to promote disinformation, fake news, extremism, hatred and other harmful material, while data-driven business models place ever more extreme content in front of our eyeballs.

I recognise that the statutory instrument is limited, but it would be helpful if the Minister said something about the extent to which he sees our GDPR evolving, addressing in particular the issue of data rights. That would help us to understand its impact. The SI does nothing to address long-term alignment and divergence decisions. The explanatory memorandum mentions “UK GDPR”. Does that language indicate that the Government intend to diverge from European Union GDPR?

As the UK begins to sign trade deals across the world, UK GDPR may be altered. The recent Japan trade deal made reference to facilitating data transfers and could allow them to go via third countries such as the US, which might have different data regulations. Will the Minister commit to ensuring that data protections and treatment are not traded away and that our data protection regulations remain in line with European Union minimum standards, to ensure validity for third-nation adequacy benefits?

That is already an issue, as the privacy shield adequacy agreement with the US has been invalidated, and the European Union adequacy agreement with Japan, as I understand it, has no practical effect in the UK. How, then, will adequacy be reflected in our ability to negotiate future trade agreements? Are further decisions of this type likely and how will they be reflected in UK law?

Finally, the Labour party is passionate about ensuring that our citizens have control of their own data. We have proposed a digital charter to put people’s real selves back in control of their digital selves. I would appreciate it if the Minister told us how he plans to ensure that agreements with other nations do not provide a back-door way to undermine GDPR. We will not oppose the instrument as it is necessary, but we have concerns about the specifics, and we think assurances must be given to businesses and others about our data privacy and control.

I am grateful to the hon. Lady for indicating that the Opposition do not intend to oppose the regulations and for her remarks. I am tempted to say that we should stop meeting like this, but I think we may be doing so again in further Committees.

The hon. Lady and I absolutely agree about the importance of data in fuelling economic growth and innovation. She does not like the expression “new oil” in that context, and I understand why, but I am not sure that her suggestion about people going around excreting a trail of data was much more preferable an analogy. Nevertheless, data is of increasing importance, and the Government are keen to ensure that we reap the maximum benefit from it to create an economy driven by innovation and growth, based on the free flow of data. At the same time, we absolutely recognise the importance of data protection, which is, as she said, underpinned by GDPR, a set of EU regulations.

The hon. Lady referred to the fact that we are still in negotiation with the EU Commission about adequacy. In our view, there is no reason that we should not be granted adequacy—after all, our data protection regime is one that the EU formulated—but that is a matter ultimately for the Commission to decide. Certainly, the time left before the end of the transition period is reducing and this is therefore challenging, but we are still optimistic that it can be achieved. We have indicated to business that it is sensible to put in place the mechanisms necessary to ensure that data can continue to flow from the EU to the UK should adequacy not be achieved.

I am sure the Committee would have been disappointed if the hon. Lady had not mentioned Schrems II, which we all think about a great deal. Schrems II resulted in some quite tricky decisions, not just for the UK, because we are bound by the Schrems II judgment that negated the privacy shield, but it creates equal challenges for the EU, which is something the EU is working on; the Information Commissioner’s Office is still in conversation; and we hope to find a mechanism to allow the flow of data between EU member states, the UK and the USA to continue.

The hon. Lady is right that, even if we achieve adequacy, this is an ongoing process. We would not be negotiating as hard as we are to achieve adequacy if we intended to do anything shortly afterwards that resulted in our losing it again. On the other hand, we wish to take advantage of the fact that we will be responsible for our own data protection regime, and we wish to explore ways to facilitate the flow of data between companies and to drive growth forward. That is an opportunity, since we will no longer be bound by the Court of Justice of the European Union rulings, although in terms of adequacy decisions we will need to watch developments in the EU. Should those rulings change things, there might be implications for its attitude to our adequacy.

We certainly have no intention of doing anything that results in a loss of adequacy. The national data strategy mentioned by the hon. Lady is intended to consult very widely all those who potentially have an interest in the matter—companies that use data, privacy campaigners, stakeholders and so on—to find ways in which we might improve the UK’s data regime. She referred to the Opposition’s suggestion of a digital charter. I hope she has responded to the national data strategy, as we are obviously interested in any ideas that she has.

On trade agreements, which the hon. Lady also talked about, it is true that, for instance, the UK-Japan trade agreement contains data provisions that go beyond the EU-Japan agreement, and we regard that as a considerable achievement. However, nothing in the agreement undermines the data protection regime in this country. Indeed, the agreement makes it absolutely clear that both sides are able to maintain a legal framework that provides for the protection of personal information. The trade agreement with Japan will, we hope, result in a freer flow of data between the UK and Japan, but at the same time not undermine GDPR and our existing protection.

I thank the Minister for his responses and his genuinely seeking to answer my questions, which is something of an experience for me. We have an agreement with Japan, which means data will be allowed to go to Japan. Japan has an agreement with the US, so data is allowed to go to the US. That undermines our conditions on data flowing from the UK to the US if they do not meet the European Union adequacy rules. That is what I meant by a back door.

I understand the hon. Lady’s concern, but I do not think it is justified. There is nothing forcing any company to transfer data from the UK to Japan or any other third country. We seek to remove unnecessary obstacles that impede that flow, but that does not undermine the requirements on UK-based companies to comply with the existing data protection regime. Indeed, that is spelt out clearly in the agreement. We do not believe that that is a risk, but it is something we continue to attach priority to, and we will keep it in mind for the future trade agreements that we are hopeful of striking.

I hope I am answering the points that the hon. Lady made. The point she made at the end of her remarks was about the obligations on the tech platforms, and she talked about disinformation and fake news. As she will be aware, the Secretary of State had a recent roundtable specifically to talk about the efforts made by the tech platforms to address the problem of disinformation about a potential covid vaccine. She will also know that the issue of obligations on tech platforms will be addressed through the online harms legislation that we still expect in the near future.

I hope I have answered the hon. Lady’s questions and I commend the regulations to the Committee.

Question put and agreed to.

Committee rose.