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Exiting the European Union (Plant Health)

Volume 685: debated on Wednesday 2 December 2020

With this we will take the following motion:

That the draft Plant Health (Phytosanitary Conditions) (Amendment) (EU Exit) Regulations 2020, which were laid before this House on 10 November, be approved.

These statutory instruments will establish the future plant health regime for Great Britain by ensuring that EU legislation relating to phytosanitary controls, which is retained under the EU withdrawal Act, is operable after the end of the transition period. Devolved Administrations have given their consent to these SIs.

It is our responsibility to protect biosecurity across plant and animal health and the wider ecosystem. It is important that our biosecurity protections are aligned to address the specific and often unique risks that relate to Great Britain. These regulations are specifically about protecting plant biosecurity.

On the plant health SI, this makes operability amendments to the retained EU plant health regulation to reflect the risks to Great Britain, rather than the risks to the wider EU, and to reflect the EU’s status as a third country after the end of the transition period. There are amendments to implement a new UK plant passport in place of the current EU one, with the format of the new document set out within the SI.

From the end of the transition period, Great Britain will also no longer use the EU protected zone arrangements and will instead move to using pest-free areas, an internationally recognised classification that allows countries to take additional protective measures against incursions from pests which are established elsewhere.

The SI also makes transitional provisions to allow the continued flow of trade and to reflect the phased import requirements detailed in the published border operating model. Phytosanitary certificates will be required for those plants and plant products from the EU that pose the highest biosecurity risk to Great Britain from 1 January, where import controls for lower-risk plant material will be phased in gradually from April.

This SI makes operability amendments to the Official Controls (Plant Health and Genetically Modified Organisms) (England) Regulations 2019 to correct references to EU legislation. It also makes consequential amendments to fees legislation, including amendments to allow charging for services relating to exports to the EU.

It is very important that we have very high standards and I am glad that we are doing that, but will my hon. Friend also ensure that they are high standards that help domestic growers, because we need to have more home-grown food on British plates and more jobs in agriculture in Britain?

I thank my right hon. Friend for his intervention. This is a matter that he and I have discussed before and I know that he is every bit as ambitious for the future of British horticulture as I am. I really do think that there is more that we could be growing here and I very much hope that, in the next few years, that comes to pass.

This SI also contains amendments to primary legislation to remove references to EU obligations. These changes have no operational impact, but simply remove redundant and inoperable references to EU obligations.

I turn to the phytosanitary conditions SI. This sets out the lists for Great Britain of quarantine pests, provisional quarantine pests, pest-free area quarantine pests and regulated non-quarantine pests. It also sets out measures in relation to the introduction of plants, plant products and other relevant objects into Great Britain and the movement of these within Great Britain.

I thank the Minister for giving way and for outlining the regulations. In relation to Northern Ireland, which has built a fantastic reputation on a top-quality product, and most of the agri-food sector we have export, what discussions has she had with the Minister in Northern Ireland and would those discussions ensure that our high-quality standards would be maintained as well, within the United Kingdom of Great Britain and Northern Ireland?

The hon. Gentleman is a great champion for his farmers. This SI is related to GB only, but I assure him that I speak very frequently to the Minister in Northern Ireland. I have not done so this week, but I do generally often and I probably will in the course of the next few days. I know that he and I are both committed to very high standards in British agriculture.

In making these operability changes, we are focused on ensuring that the phytosanitary controls reflect actual risks to Great Britain. The risk assessment process follows the UK’s well established risk management methodology using our UK plant health risk register as our principal screening tool. Applying this evidence-based process to determine our lists of regulated plants, products and pests for the future has resulted in increased focus on the threats about which we really need to be concerned. For example, some pests that pose a risk only to citrus, rice and other tropical crops, which we do not grow, have been deregulated. This has positive impacts, as it allows our inspectors to focus their efforts on the higher-risk commodities about which we are concerned, such as Xylella hosts, and tree species such as plane, which we are really worried about. This approach means that items that have previously been subject to restrictions or prohibitions even though the risk is in fact negligible, such as mangos, curry leaves and so on, are now able to be imported into Great Britain free of restriction.

It will not have escaped the Minister’s notice that we are actually in a pandemic, and protection and prevention for our environment before getting to that stage are really important. How robust does she believe the implementation of this legislation will be in ensuring that we are indeed as protected as we can be?

My hon. Friend makes an important point. These statutory instruments are broadly transferring rules into GB law, but we are able to use this moment in our history to ensure that they are better suited to us and the biosecurity risks that concern us. As he says, in the midst of a pandemic that takes on a special and added significance.

Protecting biosecurity is of enormous importance for any Government. It is important that we facilitate the import and movement of plant material, as my right hon. Friend the Member for Wokingham (John Redwood) said earlier, but this must be done in a biosecure manner. That is why these operability amendments, with their focus on risks to GB, are so important. They establish our future plant health regime and ensure that the current phytosanitary protections, which are vital to protect our biosecurity, are maintained at the end of the transition period. I commend the draft regulations to the House.

I echo the Minister’s points about just how important these measures are. At first sight, they perhaps seem slightly impenetrable and very lengthy. The two instruments run to some 272 pages and 76 pages, and I doubt whether any of us has the energy or the expertise to be absolutely certain that everything is correct. As we have said in many other statutory instrument debates, it is probably only the people who are drafting them who really know that for sure. So there is always some cause for concern. On a personal level, I remember visiting the fantastic Sainsbury laboratory in the University of Cambridge a few years ago to be briefed on ash dieback. It is striking to see not only the excellent work that is being done to tackle these issues but the constant threats that we are facing. That is why it is so important that these controls are in place and that they are transposed in the correct way.

We are told that these two SIs have been laid using powers under the European Union (Withdrawal) Act 2018, and that their stated aim is to protect biosecurity and support trade by ensuring that effective phytosanitary controls continue to operate within GB and between GB and the EU at the end the transition period. We are also told that they establish the future plant health regime for Great Britain by ensuring that EU legislation related to phytosanitary controls is retained—and corrected as necessary, as the Minister has explained—to maintain the existing risk-based approach. The Animal and Plant Health Agency and the Forestry Commission will be delivering the measures in these regulations, and we are told that they are developing an implementation plan and that associated guidance will be published on We are also told that separate legislative arrangements will be needed for Northern Ireland in order to maintain alignment with sanitary and phytosanitary-related EU regulations and to specify requirements for GB goods entering Northern Ireland. Well, that is probably an understatement. I would echo some of the comments made by the hon. Member for Strangford (Jim Shannon), and I will return to that later.

The Government say that the amendments introduced are technical operability amendments and do not include any policy changes. That is what is said, of course, of many statutory instruments and we may beg to differ at some point. It appears that no impact assessments have been carried out, and that the regulations were not reported by the Joint Committee on Statutory Instruments and had not been raised by the Secondary Legislation Scrutiny Committee. As we have heard, the draft Plant Health (Amendment etc.) (EU Exit) Regulations 2020 make operability amendments to the retained EU plant health regulations, as well as consequential amendments to domestic law. The draft Plant Health (Phytosanitary Conditions) (Amendment) (EU Exit) Regulations 2020 defines at some length, as I have said, the list of regulated products and pests, and prescribes the requirements for entry and movement of regulated items into GB and within GB to reduce the risks in connection with those pests to an acceptable level.

Since the result of the European Union (Withdrawal) Act 2018 is that the UK leaves the EU single market, the operability amendments contained in this instrument create a single market covering GB and the crown dependencies. The EU will thus become a third country and, as a result, will be subject to third country import controls. The Government tell us that the current policy of risk-based plant health controls applied under EU legislation will continue, and that the GB risk assessment process will follow the same internationally accepted principles and approach used in previous pest risk analysis under the EU regime. Internal controls will also continue to apply to the movement of goods within the GB internal market.

We are also told that the revised approach for EU imports will be phased in over six months from 1 January next year, in the Government’s words, to

“stagger the operational implementation of controls on EU products to allow trade to continue to flow whilst businesses adapt to the application of third country import controls. This will be a temporary and risk-based transitional arrangement, with the aim of ensuring consistent and technically justified import controls which apply to all countries exporting to GB.”

The instruments also include a requirement to use UK rather than EU plant passports for intra-GB movements of plant-passported commodities. This will require businesses that move plant-passported commodities within GB to modify the reference code they use when issuing plant passports, replacing EU with UK. The process for authorising businesses with plant passporting, we are told, will not change. The Department for Environment, Food and Rural Affairs tells us that

“businesses who will need to use the system from 1 January 2021 are likely to already be registered. Therefore, we expect no extra impact on business from this change.”

Some questions follow from all of that. In 7.2 of the explanatory notes for the draft Plant Health (Amendment etc.) (EU Exit) Regulations 2020, it says that under these regulations our risk-based plant health controls will now

“focus on risks to GB, rather than risks to the EU”.

I was going to ask the Minister to explain what that means in practice. I think she has made reference to that already, but to repeat my question from previous debates around report and review, can she tell us when these policies will be reviewed and where that sits in relation to reviews already promised to be undertaken by the EU? Should the EU tighten their standards, would we be doing likewise and vice versa?

As I have said, Madam Deputy Speaker, these are very, very lengthy, detailed instruments. I am eternally grateful to Greener UK, which has found the time to look at them in some detail. It raises some points, as it often does, that I suspect the Minister may wish to write to me on, because they are detailed and I would not expect her necessarily to have an answer to hand. She may do—she may surprise me. Greener UK tells me that regulation 28(24)(c) changes the requirement in article 25(4) of EU regulation 2016/2031. This is in the draft Plant Health (Amendment etc.) (EU Exit) Regulations 2020—the first one, I think. Deep in that regulation there is a change for the UK to establish priority pest plans for all listed pests within four years of the 2019 EU regulation, to instead set a deadline of 1 January 2023. This is in line with the previous timescale. However, the clause also adds a line, 4A, disapplying that requirement to any priority pest removed from that list before the same date. While the intent behind that may be simply to clarify, it would be superfluous to create a plan for a pest that is no longer considered a threat. In the view of Greener UK, this explicit reference appears to potentially incentivise the late development contingency plans. It may well be that that is covered by some of the points that the Minister has already made about the differing threats that we face. However, will she outline the UK’s progress in developing such plans to date, clarify whether the Government still intend to produce such plans for further priority pests currently listed in the EU level, and provide any details on intended timescales? Will she also tell us whether the Government have any plans to change the current list after the end of the transition period and whether any changes will be subject to the same risk assessment process used currently by the EU?

On equivalence investigations, regulation 30(7) amends paragraph 2 of article 44 of regulation 2016/2031, and removes a reference to the Commission’s ability to carry out investigations in third countries to determine whether equivalence is being properly achieved. It does this without replacing it with a reference to an appropriate UK body. Determinations of equivalence in biosecurity and control measures will be vital to protect the UK’s natural ecosystems in future. This reference therefore appears unhelpful, and the reason for deletion is unclear. It would therefore be helpful if the Minister could explain the reasoning and outline how the Government propose to ensure the legitimacy of claims of equivalence from third countries, and whether investigations will form a part of this approach. That seems to me to be a rather important point. As I say, I do not necessarily expect an answer today, but it would be helpful to have one at some point.

The third point raised by Greener UK is on amending regulations. In a number of places, references in EU regulation 2016/2031 via article 107(2) to a specific examination procedure for scrutinising and adopting amendments to regulations, as contained in article 5 of reg 182/2011, are removed. The examination procedure was designed to provide an additional level of scrutiny to implementing decisions relating to specific areas of concern, including the environment, security and safety, or protection of the health or safety of humans, animals or plants. These references to the examination procedure are replaced now with a power to amend regulations that does not feature an opportunity for scrutiny. For example, reg 30(17) replaces a requirement to follow the examination procedure with:

“The appropriate authority may by regulations amend Annex 9 to the Phytosanitary Conditions Regulation where the amendment is appropriate in the light of a risk assessment in relation to a plant, plant product or other object.”

Removing a defined process for strong committee-level scrutiny—that is, us—and decision making and replacing that with a standard reference to the right of the appropriate authority to make regulations represents, in the view of Greener UK, an unhelpful weakening of oversight, and I rather agree. This will be particularly pertinent if the Government choose to pass future regulations via the negative procedure. Will the Minister explain why the EU examination procedure could not be replicated within the UK context to provide clear democratic oversight of amendments? Will she outline how the Government propose to ensure that levels of scrutiny for secondary legislation pertaining to

“the environment, security and safety, or protection of the health or safety, of humans, animals or plants”

will not be weakened as a result of these changes?

I am grateful to Greener UK for finding these detailed points. As I said, I do not necessarily require a reply today. I will conclude with some more basic questions. At paragraph 7.3 of the explanatory notes for the Plant Health (Amendment etc.) (EU Exit) Regulations 2020 we are told:

“This will be a temporary and risk-based transitional arrangement for plant health controls”.

How long is temporary, and how much risk, because I am not entirely sure that I like the sound of that? It sounds like an excuse to me.

There has been no impact assessment of these regulations on businesses, yet there are clear indications that businesses will be impacted. Under these regulations, the revised approach for EU imports will be phased in over six months from January 2021 to

“stagger the operational implementation of controls on EU products to allow trade to continue to flow whilst businesses adapt to the application of third country import controls.”

Businesses moving plant-passported commodities within GB will need to modify the reference code that they use when issuing plant passports from EU to UK, so why has there not been an impact assessment of these regulations? Is it really presumed that there will be no impact on businesses at all?

The logic of paragraph 12.4 of the explanatory notes for the Plant Health (Amendment etc.) (EU Exit) Regulations 2020 is, frankly, “Alice in Wonderland” stuff. It outlines the extra checks that will be done, which I applaud, but goes on to say that because they are a result of the terms of the European Union (Withdrawal) Act 2018 and therefore do not reflect a change in policy, there is no need for an impact assessment. Can the Minister explain whether there has been an impact statement somewhere else? If so, where?

Finally, as I suggested at the outset, the bald statement that

“For Northern Ireland, separate legislative arrangements will be needed in order to maintain alignment with Sanitary and Phytosanitary related EU regulations and specify requirements for GB goods entering Northern Ireland”

is an understatement. Could the Minister outline what those separate legislative arrangements will look like and when they will be ready?

As ever, there are many questions. Ensuring plant health really matters. We are an island, but sadly, we need to be careful, and that is why we have a body of established law. It should not be weakened in any way, and while there is no desire for unnecessary extra checks, we all benefit when we stay safe.

Both these SIs continue the legislative decoupling of Northern Ireland from the rest of the UK, replacing mentions of “the UK” and “the Union” with “Great Britain”. We have discussed the operational requirements for these measures over the last 20 minutes, but it is telling nevertheless. They serve to highlight the additional restrictions, barriers and hurdles that will face food and drink exporters after the end of the transition period. They are an unfortunate but necessary reminder of the inordinate legislative and bureaucratic challenge that accompanies the UK’s departure from the EU.

The Horticultural Trades Association has called for a delay in the implementation of these regulations and checks on plant imports. In a roundtable discussion in mid-November, the HTA raised concerns that

“The proposals as currently envisaged are logistically impossible to implement”

and that

“The requirements will not achieve the objective of improved plant health because of their complexity and the administrative and financial burden they impose”.

The HTA also understands that the required IT systems are not ready or fully tested, and it says that the Government are

“pressing ahead with compromises that are wholly iniquitous for the industry”.

Given this concern from industry, what assurance can the Minister provide that these measures will promote and support the sector, which relies on £350 million-worth of plant imports? It would be devastating to the industry if imports in the new growing season were disrupted even to a reduced or marginal extent.

HTA chairman James Barnes said:

“It is imperative that government understands their proposals represent the biggest single non-tariff barrier in the history of our industry. By asking us to comply with new terms and conditions not yet agreed, with just 32 working days to go, represents an absolute ‘train crash’ for the industry and is setting us up to fail.”

That chimes with my observations on issues related to horticulture such as seasonal farm labour and the broader agricultural debate, which the hon. Member for Rhondda (Chris Bryant) raised in the previous debate in terms of the Secretary of State’s ambitions for lamb under import substitution. Those things taken in tandem, and a range of others besides, indicate that DEFRA Ministers, if they are not careful, inhabit some abstract bureaucratic ideal world and appear dangerously disconnected from the operational realities facing our farmers, growers and processors. Does the Minister think that the Horticultural Trades Association is wrong, and if not, why does it have such a negative impression of these provisions?

I find that I am being asked by one hon. Gentleman to display my legal and obsessive statutory instrument skills and by another to assure him that I am not out of touch with farmers and will be going home to look after the sheep tonight. I can assure them that both those skillsets are very useful in a modern farming Minister.

The hon. Member for Cambridge (Daniel Zeichner) made slightly rude comments about the length of my statutory instruments. I am afraid that these transitional SIs are necessarily long because we are simply amending the retained EU legislation. We are doing it in a way that genuinely makes it current, to reflect the risks to GB. The extensive instruments have been through the normal checking procedures, including several pairs of eyes’ checks by DEFRA and other Government lawyers—as the hon. Gentleman knows, I was one for 17 years—so I am fairly confident that they are good enough. They have been well scrutinised by the JCSI, on which I sat for a number of years, and the devolved Administrations, and the versions we are debating today include helpful amendments that were made by all those people, so I am fairly confident that the instruments are up to scratch. I am as confident as I think we can be. I accept, however, that they are long.

The hon. Gentleman asked some specific questions about replacing the oversight of the Commission. EU functions have already been incorporated into the UK-wide plant health risk group arrangements. Those functions include the auditing system of SANTE F and decision-making structures such as the Standing Committee on Plants, Animals, Food and Feed technical committee. A sub-group of the plant health risk group will be responsible for all technical aspects of these audits. In addition, there is a national IT system, which is operational now, that replaces the EU notification and rapid alert system. The UK system has been backfilled with publicly available data from EU systems, so I am confident that the UK will be able to continue to benefit from that at the end of this year.

As I said earlier, from 1 January, GB is introducing a phased import regime for EU goods to maintain biosecurity and to keep trade as frictionless as possible. The phased EU import regime will allow time for trade to adapt to the new import requirements for EU goods. GB plant health authorities are undertaking significant recruitment to increase the number of plant health inspectors. The numbers have gone from about 200 inspectors employed by the Animal and Plant Health Agency to more than double that, and I believe the ambition is for 250 extra to be in place early next year. We have sufficient resources to meet demand from the turn of the year and to ensure minimal disruption to trade.

GB plant health services are currently reviewing their operating hours to ensure that biosecurity standards will continue to be met and strengthened in ways that support trade and smooth the flow of goods while minimising the burden on businesses. There has been enormous engagement with the horticultural industry on the planning for this, with individual operators and key stakeholder groups. Most recently, we have undertaken a series of feasibility sessions, with more than 300 participants on the Zoom, and equivalent export sessions. Alongside that, we are hosting a series of webinars—there was one earlier this week, I think—on the new plant health requirements for imports, exports and internal movement.

For goods imported from the EU, which the hon. Member for Angus raised, GB will be carrying out a phased implementation of import checks, which will be aligned to the risks posed by different regulated commodities. Lower-risk goods will receive a lower frequency of checks.

I thank all hon. Members who have contributed to this debate. In order to prepare for the end of this year, it is essential that we have the right legislation in place to continue to protect plant biosecurity while facilitating trade and movement of plants and plant material. I hope that hon. Members fully understand the need for these regulations, which ensure that existing regimes for safeguarding Britain’s biosecurity will continue to operate effectively at the end of this year by addressing plant health risks faced by GB rather than the EU. I commend them to the House.

Question put and agreed to.

Exiting the European Union (Plant Health)


That the draft Plant Health (Phytosanitary Conditions) (Amendment) (EU Exit) Regulations 2020, which were laid before this House on 10 November, be approved.—(Victoria Prentis.)