Delegated Legislation Committee
Draft Conflict Minerals (Compliance) (Northern Ireland) (EU Exit) Regulations
The Committee consisted of the following Members:
Chair: Mr Philip Hollobone
† Baldwin, Harriett (West Worcestershire) (Con)
Barker, Paula (Liverpool, Wavertree) (Lab)
† Buchan, Felicity (Kensington) (Con)
† Cairns, Alun (Vale of Glamorgan) (Con)
† Cleverly, James (Minister for the Middle East and North Africa)
Fovargue, Yvonne (Makerfield) (Lab)
Gwynne, Andrew (Denton and Reddish) (Lab)
Harman, Ms Harriet (Camberwell and Peckham) (Lab)
† Harris, Rebecca (Lord Commissioner of Her Majesty's Treasury)
† Holmes, Paul (Eastleigh) (Con)
† Kruger, Danny (Devizes) (Con)
† Mohindra, Mr Gagan (South West Hertfordshire) (Con)
† Morden, Jessica (Newport East) (Lab)
† Morrissey, Joy (Beaconsfield) (Con)
† Osborne, Kate (Jarrow) (Lab)
† Randall, Tom (Gedling) (Con)
† West, Catherine (Hornsey and Wood Green) (Lab)
Kevin Maddison, Committee Clerk
† attended the Committee
Fifth Delegated Legislation Committee
Tuesday 8 December 2020
[Mr Philip Hollobone in the Chair]
Draft Conflict Minerals (Compliance) (Northern Ireland) (EU Exit) Regulations 2020
Before we begin, I remind Members about the social distancing requirements. Spaces available to Members are clearly marked. Hansard colleagues would be grateful if you could send any speaking notes to email@example.com.
I beg to move,
That the Committee has considered the draft Conflict Minerals (Compliance) (Northern Ireland) (EU Exit) Regulations 2020.
Mr Hollobone, it is a genuine pleasure to serve under your chairmanship this morning. The regulations, laid on 15 October, are necessary for the application “to and in the UK in respect of Northern Ireland” of the EU conflict minerals regulation, which is listed in annex 2 of the Northern Ireland protocol. The EU regulation establishes the due diligence obligations of the largest importers of tin, tantalum, tungsten and gold— collectively and, as far as I am concerned permanently, referred to as 3TG. Supply chain due diligence for these so-called conflict minerals is absolutely crucial, as a large proportion originate from conflict-affected high-risk areas.
The EU regulation requires importers to apply relevant Organisation for Economic Co-operation and Development guidance that would otherwise be voluntary. It aims to break the link between armed conflict and exploitation of 3TG and to put an end to abuses of miners and local communities which, sadly, are often linked to violations of human rights.
Parts of the conflict minerals regulation have applied in the UK since 2017. However, its key operative provisions do not apply until 1 January, after the transition period has ended. These include the relevant obligations on businesses and member states’ competent authorities to ensure its effective implementation throughout the EU. Those key provisions will not, therefore, form a part of retained EU law and will not take effect in Great Britain. The regulations that we have laid before Parliament implement the EU regulations in Northern Ireland, as required under the protocol, and they establish an enforcement framework for non-compliance. This means that from 1 January 2021 the largest importers in Northern Ireland of tin, tungsten, tantalum and gold will need to conduct and demonstrate due diligence to ensure that their imports have been mined and processed responsibly. They will have to demonstrate that they are managing the risk that their supply chains could fuel conflict or be linked to human rights violations.
My right hon. Friend is making a very interesting speech. Will he elaborate on other minerals such as diamonds, which are also often mined in conflict zones? Is there separate legislation that covers those in Northern Ireland?
I thank my hon. Friend for highlighting that point. There are of course other high-value items—diamonds being the most obvious—that are subject to provisions in other legislation, to ensure that they do not originate in conflict-affected states and that their mining is not linked to human rights violations.
To enable enforcement in Northern Ireland, we are proposing powers for the Secretary of State to require businesses to produce information about their due diligence activities. The regulations also make provisions for inspectors to enter business premises to inspect documents, data and records. The regime follows a civil sanctions route and provides for the power to issue civil compliance notices and financial penalties where businesses do not comply. The decision to impose a financial penalty may be appealed to the first tier tribunal. The regime does not impose penalties for substantive breaches of the due diligence obligations, as this is considered outside the scope of the EU conflict minerals regulation. As required by the regulations, we will publish guidance at the earliest opportunity on how the civil sanctions will be used.
We accept the comments of the Joint Committee on Statutory Instruments on regulation 8. In particular, it said that regulation 8 enables the Secretary of State to serve a notice requiring a person to produce information, but is enforceable only against Union importers—importers into Northern Ireland. The regulations do not make provisions for enforcing a requirement under regulation 8 that is imposed on a person who is not a Union importer. We also accept as a point of principle that the imposition of obligations in statutory instruments should be accompanied by enforcement measures with equivalent scope.
It is necessary for these regulations to be made before the end of the transition period, to meet the UK’s obligations under the Northern Ireland protocol. We are proceeding with the regulations as currently drafted, but we will bring forward legislation as soon as possible to amend regulation 8. This amendment will make it explicit that the power to require the production of information can be exercised only in relation to a Union importer—an importer into Northern Ireland. In the meantime, the Secretary of State undertakes not to exercise the power to require production of information under regulation 8 against persons other than Union importers. When the amending regulations are laid, they will also implement some minor administrative and clarifying corrections.
Our intention through these regulations is to allow businesses to operate responsibly in conflict-affected and high-risk areas, because 3TG minerals are key components of much of our technology, and it is our view that, in the right conditions, they can be mined in a way that builds prosperity and security for local communities. Conducting due diligence, in accordance with the OECD guidance, is key to managing the risks and to ensuring that businesses along the supply chain behave responsibly. Our proposed regime for Northern Ireland is in line with the spirit of the OECD guidance, incentivising business to continually improve their due diligence processes. The approach taken in the regulations, including the financial penalties for failure to co-operate with procedural requirements, corresponds with the European Commission’s stance on the scope of the EU regulation.
To conclude, we consider that this approach to implementation of the EU conflict minerals regulation in Northern Ireland will meet our obligations under the protocol. I welcome this opportunity to hear the views of Members on the regulations, and I commend them to the Committee.
May I say how lovely it is to be in Committee again, after our rather unusual coronavirus circumstances and to contribute under your chairmanship, Mr Hollobone.
We will not be opposing the legislation this morning because we think it is important to get as much done as possible before 31 December. However, I want to ask a few questions for clarification and make a few comments, and to pick up the comment made by the hon. Member for West Worcestershire. The big question in this statutory instrument is what is used in technology. What brings us together, whether we are Members for Kettering, Hornsey and Wood Green, Braintree, Essex, Wales or the north-east is our mobile phones. Obviously, we are dealing with that. However, as the hon. Member for West Worcestershire mentioned, we never know when other special mined materials may become politically difficult. I am pleased, therefore, on behalf of the Labour party to say that we will not contest the statutory instrument.
I am a little disappointed at the rushed feeling of this morning. The Government have had quite some time to introduce measures on this crucial issue that Members across the House care deeply about—the supply chain of goods and services into the UK. I welcome the chance to debate the SI, but obviously we could have done so earlier than just a few sitting days before the end of the year. That does seem to be the theme in the Brexit area of the Foreign Office portfolio. As my colleague Lord Collins of Highbury remarked in a recent debate in the other place on this instrument, the title belies the importance of what has been discussed in this short debate, because the materials are incredibly important for very high-value items so there is a real incentive to ask some question about the supply chains. It is vital that we scrutinise our supply chains because we know that, whether it is fast fashion, mobile phones or parts for manufacturing, the importation of natural resources from conflict areas can be abused. We also know that people within those supply chains can be abused. That was the point that the hon. Member for West Worcestershire was getting at.
The instrument goes some way to guard against the misuse of those supply chains. Lord Ahmad of Wimbledon, the Minister, addressed some of Labour’s concerns in the House of Lords debate, but I will point out one or two here for our benefit. The Minister is aware that the Joint Committee on Statutory Instruments mentioned defects in the instrument. He briefly addressed that, but I seek his reassurance about when we can see amendments to regulation 8 on enforcement measures. Obviously, we can sit here and say all we like, but unless we have enforcement measures to make a difference, we will be toothless. It is important that the Minister gives us a date—not just “as soon as possible”—for when he believes the amending legislation will be introduced. It is a little embarrassing for the Government to have legislation described in the House of Lords as defective. That suggests rushing and lack of preparation; it suggests, “We didn’t think about this beforehand. Oh, yes that is how things goes at the moment.”
A further concern is the wider issue of the geographical scope of the measures. Clearly, they rightly address the unique circumstances of Northern Ireland and do not address the rest of the UK, but what measures is the Minister taking to ensure that the spirit of the regulations covers the rest of the country, so there is no divergence and no gaps in coverage?
My final point is about steps to address the wider issue of exploitation and human rights in conflict zones. The statutory instrument is reasonably tight in its application, but there is a broader issue at play here of the importation into the UK of goods that have been produced and created as a result of the exploitation of civilians in conflict zones. We are all aware of that through our study of Rwanda and those kinds of areas, but it could be anywhere in the world. Sadly, anywhere could become a conflict zone. The UK could have an implicit role in the undermining of human rights in countries, should we get this wrong in our trade remit. We have a duty to ensure that our trade and our supply chains are clear and humane, especially post Brexit, to strengthen our standing on the world stage further. With that in mind, will the Minister give his commitment today to ensuring that that is addressed in future instruments by a robust and wide-ranging set of human rights benchmarks through which Parliament can scrutinise trade deals and arrangements?
I am grateful to the hon. Lady for the points that she has raised. Unfortunately, I cannot give her a specific date for the revision of regulation 8, but it will be as soon as possible.
The UK remains a vocal and passionate defender of human rights and in our future trading relationships, whether with the EU or in the new trading agreements that we make with international partners, the protection of human rights will always be at the heart of what we do.
The hon. Lady asked specifically why the instrument relates only to Northern Ireland. Without wanting to go into too much detail, the operative provisions of the EU regulation will come into force in January 2021. As the transition period is due to end, those operative provisions will not form part of retained EU UK law. Therefore, there are no available statutory powers to implement the operative provisions of the EU regulation in Great Britain. Enforcement in Great Britain would therefore require an enabling power in primary legislation. Ministers agreed in June that we should focus on what we are required to do by the withdrawal agreement and its protocol so at this stage we are focusing the regulations exclusively on Northern Ireland.
I thank all members of the Committee for their involvement today. The regulations will ensure that we comply with our obligations under the Northern Ireland protocol and I commend them to the Committee.
Question put and agreed to.
Draft Export Control (Amendment) (EU Exit) Regulations 2020
The Committee consisted of the following Members:
Chair: Mrs Maria Miller
Anderson, Fleur (Putney) (Lab)
† Bhatti, Saqib (Meriden) (Con)
Byrne, Ian (Liverpool, West Derby) (Lab)
† Caulfield, Maria (Lewes) (Con)
Davies, Geraint (Swansea West) (Lab/Co-op)
Dowd, Peter (Bootle) (Lab)
† Fell, Simon (Barrow and Furness) (Con)
† Fletcher, Colleen (Coventry North East) (Lab)
† Fletcher, Mark (Bolsover) (Con)
Grady, Patrick (Glasgow North) (SNP)
† Hammond, Stephen (Wimbledon) (Con)
† Hart, Sally-Ann (Hastings and Rye) (Con)
† Jayawardena, Mr Ranil (Parliamentary Under-Secretary of State for International Trade)
† Levy, Ian (Blyth Valley) (Con)
Moore, Robbie (Keighley) (Con)
† Thomas, Gareth (Harrow West) (Lab/Co-op)
† Vickers, Martin (Cleethorpes) (Con)
Nicholas Taylor, Committee Clerk
† attended the Committee
Sixth Delegated Legislation Committee
Tuesday 8 December 2020
[Mrs Maria Miller in the Chair]
Draft Export Control (Amendment) (EU Exit) Regulations 2020
Before we begin, I would like to remind everyone about the social distancing regulations. Spaces available to hon. Members are clearly marked with a tick, and I would be really grateful if you stuck to those spaces only. Hansard colleagues would be really grateful if you sent any speaking notes to them via email.
I beg to move,
That the Committee has considered the draft Export Control (Amendment) (EU Exit) Regulations 2020.
It is a pleasure to serve under your chairmanship, Mrs Miller. The draft regulations were laid before the House on 15 October. The regulations are necessary to ensure a functioning export control regime at the end of the transition period on 31 December. The aim of the regulations is to take forward the transposing of the existing system, which is reliant on EU law, into the United Kingdom’s own law. At the same time, they implement certain EU regulations in Northern Ireland to the extent required by the Northern Ireland protocol. They are not intended to make any change in export control policy.
At this point, I wish to be open with right hon. and hon. Members. My Department has taken forward these regulations in good faith, and I both acknowledge and welcome the report of the Joint Committee on Statutory Instruments following its meeting on 25 November. As you know, Mrs Miller, I am not a solicitor or parliamentary draftsman, and I am not sure how many of us here this morning are, which is why I welcome the scrutiny that the Joint Committee is able to provide. The Joint Committee has shown that the drafting of this statutory instrument could be improved, and I am grateful for that.
What I do know is that the purpose of new article 42N(2) of the Export Control Order 2008 is to re-enact, in relation to transfers from Northern Ireland, an existing exception that allows the transfer of software or technology that is or may be intended for weapons of mass destruction purposes from the United Kingdom by non-electronic means—most usually paper—if either the final destination of the software or technology is the customs territory of the European Union, or processing or working is to be performed on the software or technology in the customs territory of the European Union, in which case the law of the destination member state will be responsible for the control of any subsequent transfer.
I am grateful to the Minister for acknowledging at the outset the error that the Joint Committee has identified. The noble Lord Grimstone, when commenting on its report, said:
“Nothing is weakened by this error; indeed, the situation is strengthened for this particular category of software that might be used for weapons of mass destruction.”—[Official Report, House of Lords, 2 December 2020; Vol. 808, c. GC202.]
Given the significance of the issue—we are talking about potential items that could be used to do huge damage—why not just leave the strengthened provision, albeit that it was originally conceived in error, on the statute book?
I welcome the shadow Minister’s reflections on my noble Friend Lord Grimstone’s remarks. I will come to the point about this being a strengthening of the regime, but also how it interplays with the Northern Ireland protocol, in a moment, if the hon. Gentleman will allow me.
Re-enactment is necessary overall because the existing exception, which applies in relation to the entire United Kingdom, is to be removed at the end of the transition period and export controls will be applied for exporting from Great Britain, so there is a distinction. As the shadow Minister has just said, the effect of the incorrect conjunction in article 42N(2)—“and” instead of “or”—between sub-paragraphs (a) and (b), is to make the exception less permissive. In other words, as he implies, it makes the exception less of an exception: it makes our export controls from Northern Ireland even tougher than intended, as exporters wishing to use the exception will need to comply with both conditions, not one or the other.
To be clear, the provision does not take effect today; it would only be in relation to transfers from Northern Ireland after the transition period. Given that the drafting makes the regulation tougher, not weaker, my Department did not consider the error to have sufficient impact to warrant the withdrawal and re-laying of these draft regulations. To do so would mean that appropriate export controls would not be transposed into the United Kingdom’s own law at this point. That is not an outcome that anyone here would want.
For context, I should say that my Department assesses the likelihood that people and businesses transfer software or technology from Northern Ireland to the European Union by non-electronic means, despite awareness that the software is or may be intended, in entirety or in part, for WMD purposes, as very low—a very rare event. None the less, I have instructed my Department to correct the error later this month.
I am grateful to the Minister for that explanation, but I genuinely say to him that he has not yet explained why we do not just leave the provision as it is. Will he get to that point?
Of course I will; the hon. Gentleman has not given me a chance yet. That is indeed my very next point. As I said, I have instructed my Department to correct the error later this month, and we will do so through an instrument using the negative procedure, as is appropriate in these circumstances.
To the point that the shadow Minister makes, I should say that the United Kingdom already has one of the strictest export control regimes in the world. Members will know that all export licence applications are assessed on a case-by-case basis against the consolidated EU and national arms export licensing criteria. In reaching a decision, the Department for International Trade receives advice from several Departments, including the Ministry of Defence and the Foreign, Commonwealth and Development Office. Together, we draw on all available information, including reports from non-governmental organisations and our diplomatic missions.
The consolidated criteria provide a thorough risk-assessment framework and require us to think hard about the impact of exporting any equipment. These are not decisions, whatever the use of the conjunction, that my Department would take lightly. We would not license in any circumstances the export of items where to do so would be inconsistent with the consolidated criteria. Those are our guiding principles.
The European Union (Withdrawal) Act 2018 enables a functioning statute book at the end of the transition period by providing Ministers with the tools to deal with deficiencies in domestic law arising because of our exit from the European Union.
I will make a bit of progress.
Some hon. Members will recall that this House has already debated and approved legislation to ensure that there is continued functioning of retained EU law in Britain in respect of export controls. The Trade etc. in Dual-Use Items and Firearms etc. (Amendment) (EU Exit) Regulations 2019 were debated here on 25 March 2019 and the Trade etc. in Dual-Use Items and Firearms etc. (Amendment) (EU Exit) (No. 2) Regulations 2019 were debated here on 13 May 2019.
Those new regulations are necessary because under the Northern Ireland protocol, which forms part of the withdrawal agreement, the EU regulations and directives relating to export control of dual-use items, civilian firearms and goods usable for capital punishment or torture will continue to apply directly to and in Northern Ireland.
I am grateful to the Minister for giving way again. He will be aware that under the German presidency of the European Union, new rules have been provisionally agreed, allowing for
“more accountable, competitive and transparent trade of dual-use items.”
Presumably, if the process of application continues, what has been agreed under the German presidency will apply to the rules in Northern Ireland very shortly. There will be one set of export control rules for the rest of the UK under domestic law and a slightly different set very quickly for Northern Ireland. Will the Minister comment on that point?
I am, of course, happy to comment on that point. The shadow Minister is right that Northern Ireland will be subject to slightly different rules than Great Britain. For example, under this instrument, unamended by any future negative statutory instrument that will be introduced, an exporter from Great Britain would require an export licence full-stop, whereas an exporter from Northern Ireland would need to secure one only if the export were, first, from Northern Ireland and, secondly, to the European Union. The technology will be worked on in the European Union, as reflected in article 42N(2).
Going forward, we will correct that under the statutory instrument that I referred to earlier and, indeed, European Union law will apply in Northern Ireland as opposed to in Great Britain, where we will incorporate it into our own law using the European Union (Withdrawal) Act 2018.
I continue with my reflections on the draft regulations themselves. The provision of the European Union directive on the intra-Community transfer of defence-related products will also continue to apply to all movement of military goods between Northern Ireland and the EU. The regulations amend provisions of retained EU law to accommodate the Northern Ireland protocol, which is why they are important. Let me explain to Members how that will work. Beginning at 11 pm on 31 December, the export control rules applying in Great Britain will be derived solely from domestic law, as I referred to a moment ago, which will include retained EU law. In contrast, the export control rules applying in Northern Ireland will continue, as I referred to a moment ago, to be derived from EU law, as required by the Northern Ireland protocol.
My Department will continue to be the licensing authority for strategic exports from the whole of the United Kingdom, but exports of such items from Northern Ireland will be done under a licence issued under EU regulations.
On that point, will the Minister give way?
No, I will make progress.
To make that work, the draft regulations amend existing legislation. First, they amend the Export Control Order 2008, which has been the centrepiece of domestic export control legislation since April 2009. Secondly, they amend two instruments: the Export Control (Amendment) (EU Exit) Regulations 2019 and the Trade etc. in Dual-Use Items and Firearms etc. (Amendment) (EU Exit) Regulations 2019, which were made last year in preparation for EU exit. In addition, they amend the draft Trade in Torture etc. Goods (Amendment) (EU Exit) Regulations, which were debated here on 8 April last year and approved by both Houses, but have not yet been made. It is necessary to amend them to remove a dependency on the non-existent Customs Tariff (Establishment) (EU Exit) Regulations 2019.
Let me be clear that today’s regulations do no more than is necessary to ensure the continued functioning of export control law, and therefore the continued effective operation of our export control system in both Great Britain and Northern Ireland.
No, I will make progress; the shadow Minister will be able to make his own remarks shortly.
Without the draft regulations, our ability to control the export of such goods would be undermined. The legislation will ensure that the Secretary of State continues to control exports from all parts of the United Kingdom of dual-use items, firearms and goods that could be used for capital punishment, torture or other cruel, inhumane or degrading treatment or punishment. Her Majesty’s Government believe that the procedures for assessing licence applications and decision-making processes are robust, and will remain so following the end of the transition period.
The eight criteria used to assess export licence applications, as set out in the consolidated criteria, will remain the same. The Foreign, Commonwealth and Development Office and the Ministry of Defence will continue to provide my Department with advice and analysis. A licence, for the avoidance of doubt, would not be granted if to do so would be inconsistent with any of the criteria.
My Department will also continue to provide detailed advice and guidance about export controls, and, at the end of the transition period, to support legitimate exporters. I remind the Committee that these regulations are solely about preparing for the end of the transition and making sure that we have a functioning statute book after the end of the year. These amendments need to happen, and Parliament needs to make sure that the existing controls remain in place. Negotiations about the future relationship between the United Kingdom and the European Union—or, indeed, the wider world—are a separate matter, of course, and play no part in the debate today.
I am sure that the Committee will want to work in the interests of our national security and in support of retaining robust strategic export controls by making sure that the legislation passes; it is essential to the preparation for the end of the transition period. The legislation is necessary, and I commend the motion to the Committee.
It is a pleasure to have what I think is my first opportunity to serve on a Committee under your chairmanship, Mrs Miller.
These regulations make amendments to legislation relating to the export and transfer of military and—more importantly, for the purposes of this debate—of dual-use goods. By their own estimate, the Government say that Britain is the second-largest global defence exporter and, in particular, a major exporter of arms. It is clearly important for us to have a robust export control regime now and after the end of the transition period—indeed, even more so as a series of concerns have been raised in recent months about the way the export control regime is working.
The regulations will make changes at the end of the transition period, when export control regulations in Britain will be covered by domestic law, while export control regulations in Northern Ireland will continue to follow EU law. Ministers have admitted that they and the Prime Minister do not fully understand the Northern Ireland protocol, which the Prime Minister signed to clinch a withdrawal agreement with the European Union; perhaps the need for this statutory instrument is one of the unfortunate consequences. Yesterday, the Chancellor of the Duchy of Lancaster headed to Brussels, apparently to thrash out a deal to minimise checks on goods entering Northern Ireland from Great Britain. Will the Minister say whether he expects any changes to the regime for arms exports as a result of that discussion?
In an intervention earlier, I alluded to the fact that the German presidency appears to have agreed new rules with the rest of the European Union about dual-use exports; it would be good to hear a little more from the Minister about how he expects this regulation to affect Northern Ireland. I understand that there will be a further statutory instrument around export control rules. It would be good to hear whether that is purely to correct the error identified by the Joint Committee on Statutory Instruments, or whether it will include changes to reflect what has been agreed under the German presidency. It would also be good to know if there will be a public consultation on whether to adopt the new reforms adopted by the European Union and on whether, potentially, to go further.
The noble Lord Bassam asked a series of questions when speaking for my colleagues in the other place. The Minister’s colleague in the Lords did not answer those questions. Will the Minister answer them? I repeat them for his benefit. The explanatory memorandum says that
“Regulation 7(4) provides for an exception to certain prohibitions to continue in relation to a certified person who is part of the armed forces, a police force, or public authority…who is a hunter or sport shooter, or who holds a Manx firearms certificate.”
The noble Lord Bassam asked how many people in total the Minister thought that would affect. Will this Minister provide the Committee with the answer to that question?
The noble Lord Bassam went on to ask a point about the statement in the explanatory memorandum that regulation 9 amends the Secretary of State’s
“regulation-making powers in the Export Control Act 2002”.
He asked whether the regulations would be made under the affirmative or negative procedure, and who the Secretary of State would consult before using the powers. That concern was specifically in relation to the SI that will come forward to correct the mistake identified by the Joint Committee. It would be good to hear clarity from the Minister on that.
My noble friend asked a third question, which was also not answered at that point. The explanatory memorandum states:
“Regulation 15 provides for certain authorisations granted by the Secretary of State under the Torture Regulation that have effect before the end of the transition period to continue to have effect after”
the end of the year. He asked specifically:
“How many authorisations does the Minister expect to be granted between now and 31 December?”—[Official Report, House of Lords, 2 December 2020; Vol. 808, c. 199.]
Again, it would be good to hear the answer to that question from the Minister.
When the Minister winds up the debate, perhaps he can use some real-life examples to explain the significance—or not—of the regulations and, if there continues to be divergence between the EU arms export control regime and the UK arms export control regime, to show how that is going to affect things in practice. Let us take a company that is exporting arms. It wants to send or export dual-use weapons, for example, to Northern Ireland to be part of an order to go off to another country. Will it need a licence under UK domestic law to send those goods to Northern Ireland, and will the company then also need a licence to export those controls from Northern Ireland to the final destination? It would be good to hear some clarity from the Minister on that potentially real-life example.
As the Minister said, the Joint Committee on Statutory Instruments raised a series of concerns about the SI. Indeed, it specifically suggested that the regulations were “defectively drafted”. The Minister made much of the consolidated criteria, but I did not hear a specific answer as to why the regulations cannot just be left as they are. The Minister in the Lords said that they have strengthened the situation. Why, as a country, would we would want to risk weakening the regime now for equipment, parts or software that might be used to make weapons of mass destruction? Again, it would be good to hear the Minister’s explanation on that.
I ask the Minister to say where he thinks the blame lies for the mistake. Is it his fault? Is it the noble Lord Grimstone’s fault? Is it officials in his Department, or is it the Treasury solicitors who drew up? How was the mistake made? He will understand that I ask this question in the context of the concerns that Campaign Against Arms Trade has raised about the increasing use of open licences and about not being able to track the final destination for some of the arms that are exported. There are concerns about the way in which arms exports have been restarted to Saudi Arabia, given the context of what has been happening in Yemen. Any further suggestion that mistakes are being made around arms export controls will raise a series of additional concerns.
The Joint Committee highlighted that part 5 of the draft regulations amends the trade in torture regulations, which have not yet been made. As I understand it, they currently do not take account of the Northern Ireland protocol and are therefore approved in draft only. Again, the Committee said that that was defective, and reported that part 5 of the regulations made for highly
“unusual or unexpected use of enabling powers”.
It would be good to hear a full explanation for this use of the powers. Crucially, can the Minister explain when he expects the trade in torture regulations to be made?
It would also be helpful to hear from the Minister why he thinks it was not practical for the Department simply to amend the draft, if that is what he thinks is now required. Is it perhaps because the Department was focused on trying at the last minute to get the roll-over deals completed? Is it perhaps because the Secretary of State was too focused on trying to get a deal with the Trump Administration? Or is it because the Department’s efforts are focused on the Brexit negotiations? Either way, it would be helpful to understand why the Department does not feel that it can make the changes at this stage.
The Minister said that there will be new draft regulations. It would be good to know when they might be published. Can we expect them as an early Christmas present, or will it be in the new year? I ask that as a serious question, because the longer the time gap before the new changes are brought in, the longer the lacuna—the mistake, as the Minister describes it—is perpetuated. It would be good to hear what the process for consultation on that will be, if there is one. It was not clear from the Minister whether he and his officials will be consulting with anybody other than each other. Although I recognise that the general trend in the current Government is just to consult with one’s chums, as opposed to the wider public, it would none the less be helpful to understand from the Minister what formal process, if any, will be undertaken.
I say gently to the Minister that the new draft regulations could be an opportunity to rebuild some confidence in the way the export control regime works. He will know of the concerns about the export to the US of riot control equipment, including anti-riot guns, tear gas and riot shields. There were concerns in the United States, as well as here in the UK, about the possible use of that riot equipment against peaceful, unarmed civilians taking part in Black Lives Matter protests. As I have alluded to, there have been even greater concerns about the sale of arms to the Saudi-led coalition for use in the war in Yemen.
The Minister will also be aware of concerns raised by the right hon. Member for Bournemouth East (Mr Ellwood), who currently chairs the Defence Committee, about reports of UK-made sniper weapons, made by a Portsmouth company, finding their way into Russian hands and being trained on British soldiers taking part in NATO operations in support of the Baltic countries. Apparently there was due to be an investigation. Perhaps the Minister can tell us whether it has been completed and whether it has thrown up any problems with the current export control regulations that the new draft regulations might be able to counteract.
I look forward to the Minister’s response. The Opposition want to ensure that there are strong, robust export control regulations and procedures. As long as the Minister can give useful answers to us, we do not intend to divide the Committee.
I thank the hon. Gentleman for his questions. I must confess that they seemed to stray a bit further than the regulations in front of us. I am sure he will table questions to me in due course in respect of a number of those issues, as he has done to date.
On a point of order, Mrs Miller. I would be grateful if you could clarify whether I was at any point out of order in asking those questions of the Minister and expecting a reply from him.
Sitting in the Chair, I would say that you were pushing at the boundaries at points, but I was certainly satisfied that you were within the realms of talking about issues to do with exports. If I had felt that it was necessary to draw to the attention of the Committee that you were straying, I would have done so.
I look forward to the Minister’s answers then.
At no point did I say that the hon. Gentleman was out of order; I simply said that he was straying.
I am not going to apportion any blame for the drafting. That is not my job, nor is it my style. Rather, I believe that we should focus on fixing any drafting errors that might have been made. To that end, I welcome the fact that, in order to secure the licensing controls on strategic exports, the Labour party will be supporting the regulations. If these measures were not in place, we would not have the correct controls across the United Kingdom.
The hon. Gentleman asked, why not leave it? Why not leave the wrong conjunction between sub-paragraphs (a) and (b)? I thought I had made this point clear, but let me restate for the record that it would not be consistent with EU law and it would be a breach of the Northern Ireland protocol. That is why we cannot leave it. That is why we wish to bring forward a statutory instrument using the negative procedure. I hope to bring that forward this month, but certainly we will bring it forward as soon as possible.
In terms of any future changes to the regime, we will always consider how we can further improve our system, but we are confident that we have one of the most robust systems in the world, and we do think very hard before licensing any goods so that all licences are always consistent with the consolidated criteria.
I will write to the hon. Gentleman in respect of the number of people who might benefit from an exception, or the number of licences that might be granted before 31 December.
The hon. Gentleman rightly wanted the flavour of a real-life scenario to draw reference to how things might be different between Northern Ireland and Great Britain. Let me provide the House with such a scenario. Take Neil and Eleanor, who are both mechanical engineers designing a component typically used in horticultural spraying equipment. They intend to courier their respective printed technical drawings—on paper, non-electronic—to their customer in the European Union, and they know that their customer intends to incorporate those technical drawings into their design schematics for use by a manufacturing plant outside the European Union. The Secretary of State has informed Neil and Eleanor that the type of technology they are working on may be intended for use in connection with the dissemination of a chemical weapon—that is, a WMD purpose.
Neil works in Belfast; Eleanor works in Coventry. The current exception would mean that no export licence is required if the export is from the United Kingdom to the European Union, and the exporter knows that the final destination of the software or technology is the European Union or that processing or working is to be performed on the software or technology in the European Union. The issue that we have identified through the scrutiny of the JCSI is that no export licence is required if the export is from Northern Ireland to the European Union, and the exporter knows that the final destination of the software or technology is the European Union and processing or working is to be performed on the software or technology in the European Union.
That would mean that Neil in Belfast requires an export licence, because the export is from Northern Ireland, the export is to the European Union, the technology will be worked on in the European Union, but the final destination of the technology is not the European Union. Eleanor requires an export licence full stop: the export is from Great Britain, and the exception only applies to exports from Northern Ireland.
The correct exception, once we have brought forward the amending statutory instrument using the negative procedure, will mean that Neil does not require an export licence because the export is from Northern Ireland, the export is to the European Union, and although the final destination is not the EU, the technology will be worked on in there. However, Eleanor would still require an export licence because she is based in Great Britain. I hope that clarifies the matter.
Question put and agreed to.
That the Committee has considered the draft Export Control (Amendment) (EU Exit) Regulations 2020.
Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020
The Committee consisted of the following Members:
Chair: †Mrs Sheryll Murray
† Baker, Duncan (North Norfolk) (Con)
† Costa, Alberto (South Leicestershire) (Con)
† Coyle, Neil (Bermondsey and Old Southwark) (Lab)
Cryer, John (Leyton and Wanstead) (Lab)
† Elmore, Chris (Ogmore) (Lab)
† Foster, Kevin (Parliamentary Under-Secretary of State for the Home Department)
† Hill, Mike (Hartlepool) (Lab)
† Jenkyns, Andrea (Morley and Outwood) (Con)
† Lewer, Andrew (Northampton South) (Con)
† Lynch, Holly (Halifax) (Lab)
† McDonald, Stuart C. (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
† Owatemi, Taiwo (Coventry North West) (Lab)
† Pursglove, Tom (Corby) (Con)
† Simmonds, David (Ruislip, Northwood and Pinner) (Con)
Wheeler, Mrs Heather (South Derbyshire) (Con)
† Whittaker, Craig (Calder Valley) (Con)
† Young, Jacob (Redcar) (Con)
Sarah Ioannou, Committee Clerk
† attended the Committee
Seventh Delegated Legislation Committee
Tuesday 8 December 2020
[Mrs Sheryll Murray in the Chair]
Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020
Before we begin, I remind Members about social distancing; spaces available to Members are clearly marked.
I beg to move,
That the Committee has considered the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 (SI 2020, No. 1309).
It is a pleasure, as always, to serve under your chairmanship, Mrs Murray.
For the sake of time, I will refer to the statutory instrument as the consequential amendments SI. Parliament has approved the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020, which will end free movement on 31 December at the end of the transition period. The Act represents an important milestone in paving the way for the new points-based immigration system to operate from 1 January 2021 and to deliver our promise to have a single immigration system, which judges people by their talents and skills, not by where their passport comes from. The consequential amendments SI is the next step in ending free movement, and it completes the legislative changes necessary for that historic act. The SI is made under the delegated regulation-making power in section 5 of the 2020 Act, the scope of which was debated extensively in both Houses during its passage, including in the Bill Committee on which many members of this Committee served.
The Government were pleased to share an illustrative text of the SI in early September, and there are only limited changes to it in the version before the Committee today. The SI amends primary and secondary United Kingdom legislation as a consequence of, or in connection with, the provisions in part 1 of the 2020 Act, which end free movement and make provisions for the new status of Irish citizens. It amends legislation relating to immigration, nationality, benefits and services. It also amends devolved matters where changes are required for an immigration purpose to reflect the end of free movement, but not devolved legislation more generally.
As hon. Members will have noted, the SI is rather lengthy given the breadth of amendments to domestic legislation required, based on the number of times free movement has been mentioned in UK legislation during our membership of the European Union of more than 40 years. The effect of the legislative changes is to align the immigration treatment of European economic area citizens and their family members who are not protected by the withdrawal agreement and the UK’s implementation of that agreement with non-EEA citizens under the UK’s immigration system. Once free movement has ended, newly arriving EEA citizens and their family members will be subject to the same UK immigration law as non-EEA citizens; they will need to meet the requirements of the new points-based immigration system set out in the immigration rules made under the Immigration Act 1971. As members of the Committee may know, many of those routes opened for applications last week on 1 December.
The SI provides clear protections for Irish citizens and EEA citizens, and their family members granted status under the EU settlement scheme. It also removes references in domestic legislation to the UK’s membership of the EU and EU-derived law that has been retained by the European Union (Withdrawal) Act 2018, as amended by the EU (Withdrawal Agreement) Act 2020, at the end of the transition period.
Most of the changes will come into force at 11pm on 31 December—the end of the transition period—but there are some exceptions; the provision to bring EEA citizens within scope of the immigration skills charge came into force on 1 December to coincide with the opening of the new skilled worker route. That means that the charge will apply to EEA citizens who arrive in the UK from 1 January 2021 onwards under that route, and it is part of ensuring equality of treatment between citizens of the rest of the world and EEA citizens.
Various provisions to bring EEA citizens within the scope of the sham marriage and civil partnership referral investigation system do not come into effect at the end of the transition period. They will come into force on 1 July 2021, after the deadline for applications to the EUSS, at which point it will be easier for the Anglican Church in particular to differentiate between EEA citizens with status under the EUSS and those without. That reflects a range of other provisions that we have in place during the grace period next year before the deadline for applications.
The consequential amendments SI reflects the repeal of free movement at the end of the transition period, as enacted by Parliament’s approval of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020. It makes the statute book coherent and terminates arrangements relevant to the operation of free movement law in EU legislation—the latter legislation will no longer be appropriate once free movement has ended—and implements our obligations under the withdrawal agreement. It is an essential step in fulfilling our promise to end free movement and to deliver on the referendum vote. That is something that the Government are determined to do, even if others would rather that the referendum result were ignored.
It is a pleasure to serve under you, Mrs Murray, as we consider this very important secondary legislation. I thank the Minister for his opening remarks, but I suspect that Labour’s opposition to the regulations will not come as a surprise to him, as we rehearsed a great deal of the debate during the passage of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020. Then, however, we did not have any of the detail that is contained in the SI. We were greatly concerned that the Act granted the Government powers to bring forward the changes to the law contained in the SI. A 90-minute delegated legislation Committee is no way to scrutinise law changes of such magnitude.
The SI is 64 pages long and if I am not mistaken, it changes well over 70 existing Acts and regulations. We have been working hard to follow the changes to understand the implications for people’s lives but we would need to consult the country’s leading experts and lawyers on everything from immigration to housing and equalities to devolution even to scratch the surface of the regulations.
To put the changes in context, the regulations document is five times bigger than the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020, which ran to only 14 pages. Bizarrely, the explanatory notes accompanying the regulations constitute just 14 lines.
We sought a number of improvements to the process at various stages of the Act’s passage in the hope that we would not be in the current position. We called for limits to its Henry VIII powers or for the changes in the regulations to be included on the face of the Bill, as called for by experts at the evidence sessions, so that we could all exercise due diligence and allow for proper Parliamentary scrutiny. Sadly, our efforts were in vain.
I have had the chance to discuss the detail of the legislation with experts and they have expressed their real concern about what they believe its impact will be. They have voiced concern not least that some Acts of Parliament are to be amended when not strictly necessary to give effect to Brexit and the withdrawal agreement. To quote from one of the country’s leading experts on this matter, other changes will leave the law in a state of “bewildering complexity”. That is contrary to the Minister’s suggestion that the regulations will render the statute book coherent. Those changes risk errors in interpretation by public officials and those private persons including landlords and employers who will have to apply the regulations.
Feedback from those working in the field has flagged up that the regulations amend some fairly recent Brexit-related statutory instruments, but leave other parts unamended when it would have been a significant improvement simply to have replaced the regulations with new ones that could have been followed and understood.
That principle applies to at least three changes including those to the Citizens’ Rights (Application Deadline and Temporary Protection) Regulations 2020, the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006—if I am not mistaken, that amends a Brexit-related SI but leaves parts unamended, which means the amended 2006 regulations have to be read with schedule 4 of the amending regulations—and the saved parts of the Immigration (European Economic Area) Regulations 2016. It is painfully complicated and completely at odds with the Government’s aspiration to simplify the immigration system. A leading expert described it to me as a “Frankenstein-like patchwork quilt” of 20 years-plus of immigration changes, layered on top of each other.
It is the combination of the process and the content of today’s regulations that make for such a toxic mix. They lay bare the architecture of the hostile environment to be extended to a brand-new cohort of people. We fear some of those most vulnerable, who have made their lives in the UK, perfectly within the rules, will stand to fall into its trap, without even being aware that they will do so come the end of June next year.
If we consider just some of the details, the Minister has outlined the variations in the start date for some of the changes. We were particularly interested in the regulations relating to changes to marriage and sham marriages, which come into force on 1 July 2021. I appreciate the Minister’s explanation about why that might make life easier for those who conduct such ceremonies, but I still wonder whether there is scope to push the start date for other changes back to coincide with that July date. That would give everyone the chance to be aware that all those changes are on the way.
I note that the Aliens Employment Act 1955 is changed by the SI; EU citizens and family members with leave to enter or remain on a basis outside the scope of the EUSS—for reasons such as family members or as skilled workers—will have restricted access to civil service jobs. Why do that when they are lawfully resident? That is just one of the anomalies thrown up in the time that we have had to consider the regulations. However, our substantive concern with the legislation is that it is highly likely that a significant number of individuals will not apply to the scheme before next June’s deadline—the Minister and his colleagues have previously acknowledged that risk—for a multitude of reasons. That means that a significant number of individuals with full rights to be in this country will lose those rights overnight.
We are about to launch our own campaign to encourage all local authorities to reach out to those who have not yet applied, or who do not know that they need to do so. The Minister will have seen the utterly depressing statistics released by the Home Office on 13 November, which revealed that only 46% of children in the care of local authorities have made an application to the EUSS. The Children’s Society fears that those figures are worse again. We argued for a declaratory scheme for that group of children as an absolute minimum during the passage of the Bill, and those figures are simply just not good enough.
I have outlined examples of groups who will be affected by the proposed changes. We believe that the Government’s disregard for those groups by attempting to enact such significant changes through secondary legislation is totally inappropriate, given their scale. The regulations, which will have such major long-lasting effects, should be examined line by line, in detail, by all Members of Parliament, who should have their say. We have argued for that time and time again.
We have grave misgivings about the substance of the regulations, as well as about the procedure governing their introduction. Those apprehensions relate to the possible consequences of the regulations for those who fail to meet the deadline for whatever reason and therefore fall prey to the hostile environment created by them.
We cannot vote for the regulations in good faith, and I call on the Minister to withdraw them and reintroduce them in primary legislation, which would enable the House to exercise proper and appropriate scrutiny of the proposed changes.
It is a pleasure to serve under your chairmanship, Mrs Murray.
Personally, the regulations represent the most difficult element of having accepted the EU referendum result: we are putting an end to people’s freedom of movement. I support the regulations before the Committee, however, and I would like to make some helpful points about how we should understand the Government’s position.
The explanatory memorandum states that the SI should be read alongside the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020. I would be grateful if the Minister could say something about the reasonable explanations that the Home Office might accept in the event that those who have been lawfully resident, exercising treaty rights, until the end of the December this year are unable to register for the settled status scheme, for whatever reason. I remember two years ago, when we first discussed the matter, being told that there were about 3 million EU nationals living in this country. Of course we find, as I have always argued, that a larger number of individuals have registered as part of the settled status scheme, and that is to be welcomed.
I would like the Government to look very carefully at what the reasonable explanations and excuses are. I did write to the Minister about a month or so ago, and I look forward to his response.
We should note that the corollary of what we are doing today is that we are ending the freedom of Brits to move to the EU. It is right that we do that, because it respects the EU referendum result. It does not matter whether people voted for Brexit to control immigration or to regain sovereignty; one of the effects of leaving the European Union is to end the free movement of people. That includes British people being able to move freely to work and reside in the EU, as many Brits—indeed, more than 1 million—have done over the past few decades.
In conclusion, I will vote for the regulations, but I want it noted on the record that I will scrutinise the Government over the next seven months to ensure that they honour the personal pledges that have been made to me over the past two years as I have championed the rights of citizens, be they British nationals in the EU or EEA nationals here in the United Kingdom.
I call the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, Mr Stuart C. McDonald.
It would be good to rename my constituency for the benefit of colleagues, but it is good to see you in the Chair, Mrs Murray. I hope you can hear me okay. Colleagues might prefer not to hear me, but I will have my say anyway.
Always a pleasure.
Thank you, Minister.
I am grateful to the Minister for the way he introduced the regulations. I concur with 99% of what the shadow Minister, the hon. Member for Halifax, had to say. It will be no surprise to the Minister that we, too, oppose the regulations. The SNP very much regrets the end of free movement. We believe that the hostile environment is a disaster. It is important to say that the regulations do not really end free movement; they are about extending the hostile environment. The two do not have to go together.
We have always argued for a declaratory scheme, and we maintain that that would have been a much better approach. However, there is no point going over all that old ground again. We have debated these points a million times and we are where we are. It is incumbent on us all to try to make the arrangements the Government have decided to put in place work as best we can.
When the Minister came before the Home Affairs Committee recently, I think it is fair to say that we had a fairly constructive exchange about how EEA citizens would be able to access the NHS and other public services in various hypothetical scenarios. In that vein, I want to probe him on another four brief scenarios. If he cannot answer the questions today, it would be useful to have the answers in writing. The shadow Minister said that these are very complicated regulations—I will come back to that point in a bit—and I genuinely do not know the answer to all these questions, despite my best efforts.
The first scenario is that in January—in the grace period, but after the transition period—two EEA nationals, an uncle and a niece, who could have applied to the settled status scheme but have not yet done so, go to rent a new property. The uncle is a worker, so his rights are protected by the grace period regulations, but the niece is not and does not have comprehensive sickness insurance. Arguably, she was therefore not exercising her treaty rights prior to the end of the transition period. As I understand it, that means she has no protection under the grace period regulations.
My first question is: is it the case that the worker—the uncle—would be able to rent, but not the niece? I understand that in the past, the Government have said, “We will not ask employers and landlords to make these checks,” but legally speaking, is it the case that the regulations would exclude the niece from the right to rent? Secondly, if they realised that they needed settled status and applied for it, would that situation remain the same, regardless of the fact of their application, until such time as a decision on the application was reached? Similarly, am I right in thinking that the uncle could access homelessness assistance, if he qualified for it—ironically he does not need to because he has the right to rent—whereas the niece could not access it, even though she is the one who would need it because she would struggle to access the right to rent?
The second scenario is the same as the first, except that it takes place in July, which is outside the grace period. In this case, as I understand it, neither the uncle nor the niece can rent or access housing assistance. Let us say that they can prove that they were negligently advised by lawyers that they did not need to apply for settlement because of a misunderstanding about nationality law—something I very much hope the Home Office would accept as a reasonable excuse for a late application. They make a late application, arguing that they have a reasonable excuse. Is it the case that while they wait for the application—even if it takes six week, eight weeks or two months—in the meantime neither of them would be able to rent and, similarly, they would not qualify for homelessness assistance?
Scenario three of four is the same as scenario two, but it is now July and one of the couple—the uncle and the niece—needs two small operations. They are not lifesaving, but they will fix some pretty serious pain. The first of the two operations happens just before they make the late application and it costs £10,000. The second happens after they make the application and it costs £15,000. Am I right in thinking that because of separate regulations made on 3 December—just last week—even the making of the late application means that the person continues to qualify for NHS treatment? Therefore, even while they could not rent or access homelessness assistance under the regulations that we are debating today, they could access the NHS.
If my understanding is right, why is there the inconsistency that while an application is outstanding, someone can get NHS treatment but not homelessness assistance? Is it not arguable that the regulations before us infringe the withdrawal agreement, particularly article 18(3), by not making a similar provision where a person has an outstanding late application? As I say, the Department of Health and Social Care published regulations last week that seemed to acknowledge that it has to give rights to those with outstanding applications, even if they are late; the Home Office does not appear to have recognised that.
Am I right in understanding that the £15,000 operation would not have to be paid for, because it happened while the application was outstanding? What about the £10,000 operation that happened just before the application went in? Even if the uncle and niece subsequently do get settled status, will they still be chased to pay the £10,000 for the operation that happened just before they submitted their application?
The fourth and final scenario again concerns a couple in a very similar position: they were badly advised and did not apply in time, so they have a reasonable excuse. Late next year, the Home Office charges them with illegal working. They apply in September for the settled status scheme and that is granted late. However, is it the case that the couple were, legally speaking—regardless of what practical answer the Home Office comes up with—guilty of a criminal offence from July, after the end of the grace period, until the application was decided? Because settled status is not retrospective, there would be a gap where they did not have status.
As I say, this is all very technical and I might have completely misunderstood some of the scenarios, but I have no doubt that we could go through every single one of the 60 or 70 regulations and conjure up scenarios that involve similar complications and technicalities. There are ways that the Home Office could make this easier. A declaratory scheme would be one, but putting that aside, there are things the Home Office should think about.
First, if a public body is approached by an EEA national without settled status and it appears that they could still apply for that settled status, perhaps we should put a duty on the public body to signpost them to the scheme. Rather than just saying, “You are not entitled to support,” there would be a duty on people to say, “Just now you are not entitled to support, but if you put in an application, you would be able to access it.” At the very least, I hope that is something the Home Office is encouraging of all people who are involved in checking immigration status, of whom there are many.
Secondly, if a person makes an application late—a situation I have alluded to—the Home Office should provide them with a certificate of application that makes it clear that they continue to be entitled to access support and all their rights while the application is outstanding. If there are clearly no reasonable grounds for the late application, the Home Office will be able to refuse immediately and no damage would be done. Otherwise, my view is that there is little to lose and much to gain from ensuring that they continue to be able to access all these rights while the application is outstanding. That seems to be the approach the Department of Health and Social Care has taken in the NHS regulations that were published last week, so I do not understand why that approach cannot be taken in the regulations before us today. It seems to me that that is arguably required by the withdrawal agreement.
Thirdly, if such a late application is successful, why do we not make settled status backdated so that there is not a break in the continuity of residence? When he was before the Home Affairs Committee, the Minister talked about how he was looking to ensure that that did not impact on nationality—for example, in the case of kids born during that period. I am aware that the Home Office is alive to this issue, but why not just make it retrospective in a blanket way, so that there is no gap in status?
I have one final request of the Minister. At the Home Affairs Committee, he was generous in agreeing to meet a couple of organisations. One to add to that list is the3million. It is a very sensible, pragmatic organisation. It accepts where we are at, and is just keen to work through all the scenarios and to work with the Government. If he is happy to meet it, that would be very helpful.
There are a million other issues I could raise today, such as access to national insurance numbers, which appears to be incredibly challenging for EU nationals.
I emphasise what the shadow Minister said about the complexity of the regulations. That is why we opposed the sweeping Henry VIII clauses when we debated the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020. It is why my party proposed an equivalent to the Social Security Advisory Committee. This issue is so technical that we need experts on housing law, marriage law, family law, social security law—it covers such a huge range of subjects. The regulations are much more detailed and technical than the Immigration and Social Security Co-ordination (EU Withdrawal) Bill, yet we have 90 minutes to consider them, with no witnesses and no access to experts, whereas the Bill essentially went through Parliament twice and we had lots of expert evidence to help us.
I have tried my best to scrutinise the regulations. Indeed, I think there might be a typo in regulation 12, if the Minister wants to note it down. The placing of the quotation marks and the stray “(3)” to my mind means that part of that regulation has no effect or has the opposite effect of what was intended. That is why this sort of regulation, which has important consequences, needs line-by-line scrutiny. I think that there is a mistake, but I do not know how we fix it, because we cannot amend the regulations, unlike the Bill.
My final question is: why rush this? Much as I hate it, free movement is coming to an end. Even if the regulations—or 90% of the regulations—were not passed until late next year, free movement would still end; it would simply mean that all these aspects of the hostile environment would not be applied to EEA nationals. There could be mistakes in here and we need to think about it much more carefully. Again, I echo what the shadow Minister says: let’s put this off and do it properly. As MPs, let us do our job of scrutinising the proposals properly by withdrawing the regulations and bringing them back as a Bill.
I thank members of the Committee for the debate we have had and for the observations they have made.
I will start with the comments of my hon. Friend the Member for South Leicestershire and then move on to the shadow Front Benchers. To be clear, we have said that we will publish a non-exhaustive list of examples. In each instance, a decision-maker should be able to use discretion if it is fair in the circumstances to do so. I have given examples, such as those who were under 18 on deadline day and their parent or local council, who had a duty to apply for them, did not. As I reassured my hon. Friend, when they hit the age of majority, which could be in 10, 13 or perhaps even 14 or 15 years’ time, and realise that there was no application, we would see it as reasonable for them to have assumed that their parent or guardian had done it.
Again, other circumstances include ill health or mental incapacity to make an application. I reassure Members that we will look at situations where someone has clearly received faulty or negligent legal advice in relation to their status. Generally, we will ensure that decision-makers are able to look at the circumstances and see whether there are reasonable grounds, rather than having a list and saying, “If you don’t meet that list, you can’t apply.”
If that extra discretion, and the complexity and anomalies that my hon. Friend the Member for Halifax mentioned, were being added to a functioning, gold-plated, brilliant system, Members might be assured, but it is being added to a dysfunctional Home Office that is failing many of our constituents week in, week out through delays and erroneous decisions that leave people destitute.
I am sorry to hear that description of the EUSS that has already had 4.26 million applications. I give the hon. Gentleman a tip that it is about to hit another milestone in numbers of applications. We think that it is working fairly well. For most people, making an application is a 15-minute job at home, using a smartphone.
We want to take the lessons from how the EUSS has worked into the wider immigration system. Hon. Members may not have picked this up, but in the skilled worker route, an EEA national can use their smart phone from home to apply rather than making a trip to a visa application centre. Building on the experience of the EUSS, we have been able to provide secure identity checks from home. For obvious reasons, I will not go into all the details of what we do to verify identity, but this has been a real success and I am sorry to hear that description of it.
To reassure my hon. Friend the Member for South Leicestershire, we will have a range of circumstances listed along non-exhaustive lines. The longer the delay, the more there is a chance that someone knows that they do not have entitlement under the withdrawal agreement, but is claiming that they do. We want decision-makers to have flexibility and to treat this as faces, not cases. There will be a list, but it is not exhaustive.
The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East always makes well thought-through contributions, even though we have fundamental policy disagreements on this and a range of other issues. I will provide a detailed written response to him and the Committee, but I shall deal with a couple of points now. He mentioned two EEA nationals. Let us assume that they are in England, because as he will know the right to rent checks do not apply outside England. If they were renting before 30 June a landlord is perfectly entitled to accept an EEA passport or national identity card as proof that they meet the compliant environment checks. If anyone has concerns, they can regularise and make their application via the EUSS straight after. We will not be asking landlords to make retrospective checks if they have accepted an EEA passport or identity card, just as we would not expect employers on 1 July suddenly to check that every member of their staff has EUSS status. Up until that point, landlords and employers cannot insist on it, provided that someone has presented an appropriate document. They can, of course, use it and we are finding that it is very popular. Between April and June there were 400,000 checks under the new improved service, 100,000 of which were to look at EUSS status. Those who have it are already finding it a handy and convenient way of meeting the checks.
I am grateful to the Minister for saying that he will set these things out in writing, and I get that the Home Office is not requiring landlords and employers to do those checks. I would like clarity on this: is the Home Office saying to landlords, “You do not need to do that check even though in the niece scenario she does not have the right to rent?” I am concerned that there is a danger in saying to landlords, “You don’t need to worry about the fact that you are renting to someone who does not have the right to rent.” Given everything that we know about how the right to rent operates, is that not just going to ramp up professional indemnity, so that landlords will take the safe course and not touch these people with a barge pole?
My next point relates to that example. He gave a clear example of a worker here in accordance with the EEA regulations on free movement. His second example was of someone who did not have retained rights because they were not here in strict accordance with those regulations. As he will know, the criteria for the EUSS is not strict compliance with EEA free movement regulations – it is residence in the United Kingdom. He would support the notion that it would produce some harsh outcomes if we based it purely on the free movement regulations. The situation that he has described would be that of the landlord in England who is renting today. He is talking today about someone who is not here strictly in accordance with the free movement regulations and who does not have free movement rights to be retained at 11 pm on 31 December – although I accept that someone could get a job and create new free movement rights before 31 December. It would be exactly the same legal position in January. No one has fewer rights or less ability in January than they have at 11 pm on 31 December. However, beyond the transition period new free movement rights cannot be created. That is the core difference.
Moving on to what would be a reasonable excuse for a late application, on some of the finer points – for example, someone being badly advised – it would probably be better for clarity to respond to those in writing.
I met representatives of We Belong last week. It was a productive conversation and we look forward to taking forward some changes. The3million group is on some of the Home Office’s advisory panels that are regularly engaged at official level. Once we have published the new guidance on the next milestones for the EUSS – the late grounds guidance – we will review ministerial engagement with the groups. I will be looking to meet the3million group at that stage – although by then we may have hit another milestone in millions of applications. We very much welcome all the applications coming in. We genuinely welcome all groups that promote the message that it is time to get in applications. If people have any concerns about their position in the United Kingdom beyond 1 July next year, now is the time to get in their application. Support is available on the phone, online and through our grant-funded organisations if people have any queries or concerns, or genuinely need assistance with the application.
The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East said that it would be no surprise that, as a member of the Scottish National party, he will opposing the legislation. No, it is not. I recognise that the SNP has a long and fairly solid policy on free movement. I was slightly more surprised at the position being adopted by the Labour party, given that we are only a few days away from the anniversary of the general election, in which an inability to respect the referendum result became a decisive moment for many former Labour Members of Parliament. This SI is about ending the references to free movement in UK law. Free movement is ending. There will not be a reciprocal arrangement on the continent of Europe beyond the end of the transition period. We published a draft of this regulation while the Bill was being debated in the House in order to allow more time for scrutiny. We accepted that just publishing it under the usual SI rules would not be the best way of ensuring good scrutiny and debate. We do not imagine that some of the changes – for example, designating every registry office as a designated place – will be particularly controversial, given that it will make life easier for many non-EEA citizens to get married in the UK. It is a surprise to see the resistance to ending free movement, and to having a single immigration system that judges people by what they have to offer to the UK and their talents, not by where their passports were issued, continuing a year after the general election, but I am sure that it will be noted with interest across the now blue wall.
There are many areas of law to be changed. We joined the European Union – or the EEC as it was called then – in 1973. That means that, unsurprisingly, there is a large number of references across legislation to free movement. Any immigration law that has been passed since then by Governments of both colours will inevitably have referred to the fact that EU citizens had free movement rights. That free movement is coming to an end. That policy has been supported and it was clearly part of our manifesto commitment. In terms of the civil service rules, it is right that someone who works in the civil service has the appropriate immigration permission for the UK, as was of course covered by the withdrawal agreement. I want to reassure anyone who is working in the public service, who is an EEA national and who will inherently have free movement because they are working here, that the EUSS is there for them and we very much look forward to them making an application.
It is a surprise that, a year later, we are still hearing reasons from the Labour party why they do not support this core part of implementing the referendum result. I accept that other parties have a clear view on continuing freedom of movement, but I was not aware that the Labour party did: one day it argues that it does, and other days it argues that it does not. For this Government, the focus is on ensuring a functioning statute book, that we have an EUSS that is effective in protecting the rights of our friends and neighbours who have come to this country and who make a huge difference to it, and that we move forward and deliver our promises. Therefore, I ask the Committee to support the regulation.
IThat the Committee has considered the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 (SI 2020, No. 1309)
Draft Renewable Transport Fuel Obligations (Amendment) Order 2020
The Committee consisted of the following Members:
Chair: Mr Laurence Robertson
† Anderson, Fleur (Putney) (Lab)
† Atherton, Sarah (Wrexham) (Con)
Butler, Dawn (Brent Central) (Lab)
Byrne, Liam (Birmingham, Hodge Hill) (Lab)
† Goodwill, Mr Robert (Scarborough and Whitby) (Con)
Grady, Patrick (Glasgow North) (SNP)
† Hart, Sally-Ann (Hastings and Rye) (Con)
† Holmes, Paul (Eastleigh) (Con)
† McCarthy, Kerry (Bristol East) (Lab)
McKinnell, Catherine (Newcastle upon Tyne North) (Lab)
† Maclean, Rachel (Parliamentary Under-Secretary of State for Transport)
† Mohindra, Mr Gagan (South West Hertfordshire) (Con)
† Robinson, Mary (Cheadle) (Con)
† Saxby, Selaine (North Devon) (Con)
† Throup, Maggie (Lord Commissioner of Her Majesty's Treasury)
† Twist, Liz (Blaydon) (Lab)
† Webb, Suzanne (Stourbridge) (Con)
Stuart Ramsay, Committee Clerk
† attended the Committee
Eighth Delegated Legislation Committee
Tuesday 8 December 2020
[Mr Laurence Robertson in the Chair]
Draft Renewable Transport Fuel Obligations (Amendment) Order 2020
I beg to move,
That the Committee has considered the draft Renewable Transport Fuel Obligations (Amendment) Order 2020.
The draft order will amend the Renewable Transport Fuel Obligations Order 2007, which provides for a certificate scheme commonly known as the RTFO. The draft order will increase the support available to the supply of biofuels by increasing the buy-out price from 30p per litre to 50p pence per litre. That figure is used to calculate any buy-out payment due under the RTFO certificate trading scheme. The change is crucial so that we have a strong UK market for renewable fuels and reduce transport carbon emissions.
The RTFO establishes targets to drive the supply of renewable fuels by placing obligations on larger suppliers of fuel to ensure that supply. The amount of renewable fuel that must be supplied is calculated as a percentage of the volume of relevant fossil fuel supplied in a calendar year. This obligational level—or target—has increased over time; it is currently 9.75%. The target gradually increases until 2032, at which point, without further legislation, the yearly target would be 12.4% in each subsequent year.
The 2007 order also provides for a certificate trading scheme that supports a market for renewable fuels. Under the scheme, obligated fuel suppliers must acquire sufficient renewable transport fuels certificates to meet their obligation, either by supplying renewable fuels or by purchasing certificates on the open market. Alternatively, they can make a buy-out payment. It is the buy-out option, and increasing its price, that the draft order deals with.
The ability of suppliers to pay a buy-out price acts as a safety valve. It protects consumers of fuel from exceptional spikes in the price of renewable fuels. However, in normal market conditions, the continuing success of the RTFO scheme depends upon renewable fuel being supplied. Biofuels remain the main type of renewable fuel supplied under the RTFO. Recent increases in the cost of biofuels relative to petrol and diesel mean that there is a potential sustained commercial incentive for suppliers to buy out. Any reduction in biofuel supply will affect greenhouse gas emission savings from transport fuels, which poses the risk that there will be a gap in UK carbon budgets. It also risks damaging our biofuels industry and the future investments that are needed to keep us on the path to net zero.
The RTFO applies UK-wide and has been highly successful for the past 12 years. In 2019, renewable fuel supplied under the scheme saved almost 5.5 million tonnes of carbon dioxide emissions, which is the equivalent of taking 2.5 million combustion engine-powered cars off the road. Indeed, renewable fuel supplied under the RTFO currently contributes around a third of the savings required for the UK’s transport carbon budget. Clearly we need to ensure that the RTFO continues to provide effective market support.
The amendment made by the draft statutory instrument follows consultation in the summer, which proposed an increase in the buy-out price from 30p per litre to either 40p or 50p per litre. The vast majority of respondents agreed that there was an urgent need to increase the buy-out price. Some 45 respondents out of a total of 61 agreed with our preferred option to increase the buy-out price from 30p per litre to 50p per litre.
In proposing the change, we have carefully considered the balance of interests across the fuels industry, environmental organisations and consumers, recognising that the potential additional costs of meeting the RTFO would ultimately fall to the consumer, as well as the need to maintain a competitive biofuels market that is capable of driving reductions in carbon emissions. The increase in the buy-out price to 50p per litre strikes the right balance, so I commend the draft order to the Committee.
We can all support the transition to renewable fuels across the transportation sector. As the Minister will be well aware, transport is the largest contributing sector to UK emissions, and progress in trying to decarbonise the sector has been very slow in recent years. To achieve that, we need to make the types of vehicle that we use, and the fuel they consume, more sustainable. It was disappointing to hear this week that the transport decarbonisation plan will not be published until spring 2021; we really do need an overarching strategy and coherence in policy making, as well as a greater sense of urgency.
The renewable transport fuel obligation was a key achievement of the last Labour Government. It has been a central part of encouraging the adoption of renewable fuels in transport, particularly fuels sustainably sourced from waste. I am pleased that the RTFO continues to be considered a success across the transport sector, but we must recognise that, as the climate emergency becomes more pressing and transport emissions continue to stagnate rather than reduce, it now needs reform.
The hon. Lady gives credit to the previous Labour Government, but was it not agreement at a European level that actually forced all EU Governments to move towards more renewable road transport fuels?
That is a very good argument for European co-operation, so it is sad that the right hon. Gentleman is such a fan of going it alone.
The statutory instrument goes some way towards meeting the need for reform. As the Minister has explained, from 1 January, it will mean that the buy-back price multiplier will increase from 30p to 50p, strengthening the RTFO by providing more incentive for people to meet our renewable fuel requirements, rather than buying themselves out of their obligations. The Government estimate that, without acting to raise the buy-back price, we risk losing annual greenhouse gas savings of up to 6.5 million tonnes of CO2.
As the Minister said, the SI is the result of consultation. I am pleased that, as a result of that consultation, there was agreement to go for a 50p multiplier rather than 40p, which would have been considerably less ambitious. I am also pleased that implementation will begin swiftly on 1 January.
We will support the SI on the grounds that it strengthens the mandate to supply renewable fuels. Moving forward, however, I hope to see action from the Government to support renewable fuels in other ways. A consultation on introducing E10 petrol was launched earlier this year, but we are still waiting for the Government response, with a final decision on how it will be introduced and, hopefully, how we can ensure that an increased demand for biofuels does not lead to an increase in deforestation due to changes in land use.
Many stakeholders are proposing further reforms to the RTFO, such as a floor price mechanism to help to ensure stability for investment in the sector. I would be interested to hear from the Minister whether the Government are considering that reform to further strengthen the RTFO, because it has come up in many of my conversations with people in the sector.
I hope to see more support from the Government for emerging sources of renewable fuels, especially in hard-to-decarbonise sectors such as aviation, shipping and HGVs, which at present cannot easily be electrified. Proper investment in genuinely sustainable fuels for those modes of transport may prove vital in meeting net zero targets and putting us back on track. I know that we are expecting more details of the sixth carbon budget soon, and I will be watching closely for future announcements.
I will be brief, and I first draw the Committee’s attention to my entry in the Register of Members’ Financial Interests as a wheat producer who is likely to benefit from an increased use of renewable fuel.
When we talk about new technologies to green our economy, and certainly to green our transport network, they often involve innovative solutions, but in the case of biofuels, not only is the technology mature, but the plants are already there. Investment has already been made on Teesside, in Hull and by British Sugar at Wissington. The problem is that those companies that have invested billions in this new technology have, in effect, been slapped in the face, because it was cheaper for fuel suppliers to buy out their obligations rather than sourcing the fuels. The order will address that particular problem.
The situation faced by the plant in Hull has been particularly disappointing, not only because it was designed to produce bioethanol to incorporate in fuel, but because the residue would have been a great animal feed for ruminants. Unfortunately, as such plants have completely stopped, or certainly operated at a much lower capacity, we have not seen the market for such by-products developing.
Does the Minister have ambitions to move to E10—10% ethanol fuel? Under the EN 228 fuel categorisation, fuel can be either E5 or E10. Many other countries around Europe have already moved to E10, which will increase demand for that fuel. When the Minister responds to the debate, including the points made by the hon. Member for Bristol East, will she comment on whether that change might result in more UK-produced biofuel, because one of the biggest concerns for many of us who were in the European Parliament when these things were decided—I will not take the credit for it, but I was there at the time—was indirect land use change, as some of those biofuels could have been sourced from the developing world, which may have had an effect on the rain forests? We often heard about so-called deforestation diesel, and countries such as Brazil are clearing rain forests to produce more ethanol. Indeed, vehicles there are running on E100—100% ethanol.
I welcome the order, but I would like reassurance from the Minister that the measure will herald the introduction of 10% ethanol fuel, and that we will do everything that we can to ensure that biofuels are sourced from the United Kingdom, rather than imported from countries that do not have the exacting environmental standards that we do.
This has been an incredibly useful discussion. I am grateful to the hon. Member for Bristol East and my right hon. Friend the Member for Scarborough and Whitby for their contributions. With his considerable expertise, my right hon. Friend identified the importance of the industry and the potential that the Government have to support our home-grown British industry, which is exactly what we want to do.
My right hon. Friend and the hon. Lady asked about E10, and we are working hard to publish our response to the consultation on its introduction as soon as possible. I am aware of the industry’s keen interest in the matter. We anticipate that any requirement to introduce E10 would come into force in 2021. There would need to be a period of at least six months in advance of that introduction so that fuel suppliers and consumers could prepare for the change in grade. The experience of other countries suggests that a comprehensive communications campaign is crucial to any successful roll-out to ensure that motorists are well informed ahead of the change in grade. Should E10 be rolled out in the UK, I reassure those who are interested that we will remain committed to ensuring the retention of an E5 grade for those vehicles or equipment that cannot use petrol with high levels of ethanol.
I am delighted by the hon. Lady’s support for the statutory instrument, for which I thank her. She rightly referred to the transport decarbonisation plan that she and I have discussed on many occasions. It remains at the forefront of the Government’s efforts to decarbonise the entire sector. Regrettably, in the light of the covid pandemic, we have had to deal with very pressing public health issues, but that has not detracted from our intense work on the plan, which we will publish in spring next year.
Following my conversations with people in the sector, I am concerned that some companies, particularly those operating fleet vehicles or bus companies —I know that the right hon. Member for Scarborough and Whitby has a company in his constituency that is keen to manufacture cleaner buses—have been so financially hit by covid that they have put their plans on hold, because it is not an ideal time for a company to upgrade its vehicles if it has not made a profit in the previous year. Will that affect what is in the decarbonisation plan?
I do not want to stray too far from the statutory instrument, but the hon. Lady rightly raises very important questions. I will be happy to discuss that further with her, but I want to reassure her that our commitment remains. We work very closely with the sector, as she does, and we understand those natural concerns. Of course, the Government have supported the entire economy to the tune of at least £330 billion, which has gone to transport operators and many others. We recognise the challenges that operators face, but we nevertheless remain determined to decarbonise the transport sector.
The order makes a small but important amendment to ensure that the RTFO continues to support the renewable fuels industry as intended. We need the industry to drive down emissions in sectors that are harder to decarbonise, such as heavy goods vehicles and aviation, and to deliver the cleaner fuels that will play an even greater role in achieving our aim of a greener and more prosperous economy. I reassure members of the Committee that we have the most ambitious crop cap in Europe for fuel sources, which is 4% and will be decreasing to 2%. We have therefore taken note of the concerns that hon. Members have raised.
It is true that as we transition to zero emissions vehicles, we cannot ignore measures to reduce emissions from the conventional road vehicles in use today, particularly given the contribution of renewable fuels to meeting UK carbon budgets. We will be setting out in our transport decarbonisation plan more detail about the future of low-carbon fuels across transport modes, and that will be published in spring 2021.
The statutory instrument will change the RTFO buy-out price for the start of the next obligation year—1 January 2021. That timing is important so that we can provide certainty for fuel suppliers and minimise administrative costs. I hope that the Committee will join me in supporting the statutory instrument.
Question put and agreed to.
Draft Reach Etc. (Amendment etc.) (EU Exit) Regulations 2020 Draft Control of mercury (Amendment) (EU Exit) Regulations 2020 Draft Detergents (Amendment) (EU Exit) Regulations 2020 Draft Waste and Environmental permitting Etc. (Legislative Functions and Amendment Etc.) (EU Exit) Regulations 2020
The Committee consisted of the following Members:
Chair: †Sir Charles Walker
† Baynes, Simon (Clwyd South) (Con)
Betts, Mr Clive (Sheffield South East) (Lab)
† Bhatti, Saqib (Meriden) (Con)
Brennan, Kevin (Cardiff West) (Lab)
† Buchan, Felicity (Kensington) (Con)
Fletcher, Mark (Bolsover) (Con)
† Jones, Fay (Brecon and Radnorshire) (Con)
† Jones, Ruth (Newport West) (Lab)
† Largan, Robert (High Peak) (Con)
McCabe, Steve (Birmingham, Selly Oak) (Lab)
† Mak, Alan (Havant) (Con)
† Mann, Scott (North Cornwall) (Con)
† Morden, Jessica (Newport East) (Lab)
† Morris, James (Lord Commissioner of Her Majesty's Treasury)
† Pow, Rebecca (Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs)
Smith, Nick (Blaenau Gwent) (Lab)
Thompson, Owen (Midlothian) (SNP)
Jack Dent, Committee Clerk
† attended the Committee
Ninth Delegated Legislation Committee
Tuesday 8 December 2020
[Sir Charles Walker in the Chair]
I beg to move,
That the Committee has considered the draft REACH Etc. (Amendment Etc.) (EU Exit) Regulations 2020.
With this it will be convenient to consider the draft Control of Mercury (Amendment) (EU Exit) Regulations, the draft Detergents (Amendment) (EU Exit) Regulations 2020 and the draft Waste and Environmental Permitting Etc. (Legislative Functions and Amendment Etc.) (EU Exit) Regulations 2020.
It is a delight to see you in the Chair, Sir Charles, as we debate this bevy of statutory instruments.
Of the four instruments before us, three are concerned with the regulation of chemicals and chemical products, and the fourth concerns the regulation of waste and environmental permitting. The common thread is that each one contains provisions necessary to implement the protocol on Ireland and Northern Ireland.
I should like to inform the Committee that we have worked with the devolved Administrations on all four SIs, and consent has been received for all of them except the instrument on the regulation of waste and environmental permitting. That instrument has received consent from Scottish and Welsh Ministers but has not yet received consent from Northern Ireland Ministers. However, given that time to make the SI is now short, and the overriding need to provide certainty for businesses at the end of the transition period and to discharge our protocol obligations, we are proceeding with debating the SI without consent. We will continue to work closely with the Northern Executive in the coming days to resolve outstanding concerns in advance of making the SI.
I can confirm the all four instruments will be able to function with or without a deal with the European Union. I can also confirm that all four instruments have been considered by the Joint Committee on Statutory Instruments and that no issues have been drawn to the attention of the Committee.
The REACH Etc. (Amendment Etc.) (EU Exit) Regulations 2020 have three main purposes. The first two relate to the Northern Ireland protocol. They fulfil the United Kingdom’s obligation effectively to implement the protocol with regard to REACH—the registration, evaluation, authorisation and restriction of chemicals—and they provide for access by Northern Irish goods to the Great Britain market. After the transition period, UK REACH will regulate the GB market while EU REACH will apply to Northern Ireland. Additionally, the SI amends the existing transitional deadlines for GB businesses to submit information about their chemicals and their safe use to the domestic REACH system. The SI also makes some technical amendments that will ensure that cross-references in the UK REACH regulations are up to date at the end of the transition period.
The provisions that implement the protocol first of all redefine the scope of the domestic REACH regime from the UK to Great Britain. They provide for the Northern Ireland competent authority function to continue to be exercised jointly by the Department of Agriculture, Environment and Rural Affairs and the Department for the Economy. They also ensure that there were still be effective enforcement arrangements for REACH in Northern Ireland.
The provisions on chemicals moving from Northern Ireland to Great Britain reflect our commitment to unfettered access for Northern Ireland businesses. They will also ensure that UK authorities have the appropriate information and regulatory safeguards in respect of chemicals placed on the GB market.
The SI permanently removes the requirement for a full REACH registration for chemicals that are, or are in, ‘qualifying’ Northern Ireland goods being placed on the GB market. Instead, there will be a light-touch notification process to ensure the Health and Safety Executive knows what chemicals are being placed on the GB market. Information necessary to ensure safe use must also still be passed down the supply chain.
Substances of very high concern entering Great Britain from Northern Ireland will still need a UK REACH authorisation. That is needed to manage the risk from those hazardous chemicals to GB consumers, workers and the environment. That simply replicates the current approach to placing those substances on the EU market, where the authorisation process makes sure that account is taken of local environmental and other factors. We will ensure that that happens where those chemicals are being placed on the market and used within Great Britain.
When the first REACH exit SI was debated in the House last year, the Government committed to keep the deadlines for submitting transitional notification and registration information to the HSE under review. We have followed up on that with very detailed discussions with a range of industry and non-governmental organisation stakeholders. The conclusions of the review have been carried forward in the SI before the Committee by the amendments to the transitional deadlines. The initial notification period for existing downstream users and distributors is being increased from 180 days to 300 days. We are replacing the deadline for submitting full registration information, which is currently two years in all cases, with a phased approach that spreads the duty over two, four and six years from the end of that initial 300-day period.
The phased policy takes a risk-based approach by requiring the submission of data on the highest tonnages and most hazardous chemicals first. In that way, companies will have more time and capability to comply with the legislation. It will enable them to reduce and spread costs, and give them more time to negotiate mutually beneficial data-sharing arrangements with other companies in the UK and the EU. That will lead to better compliance and the provision of higher quality data, leading to GB authorities having access to better data that will facilitate better decision-making. In the meantime, GB authorities will have access to significant other sources of data, so we will still be able to make robust regulatory decisions before full data is submitted to the HSE under UK REACH.
The Control of Mercury (Amendment) (EU Exit) Regulations 2020 make amendments to the retained EU law to ensure that legislation that manages the control of mercury is operable at the end of the transition period. In addition, it reflects the requirements of the Northern Ireland protocol. The SI revokes and replaces the Control of Mercury (Amendment) (EU Exit) Regulations 2019, revokes regulation 8 of the Environment and Wildlife (Legislative Functions) (EU Exit) Regulations 2019 and also amends the Control of Mercury (Enforcement) Regulations 2017. Provisions that were included in the environment and wildlife regulations 2019 and the control of mercury regulations 2019 are now included in the new SI. The amending regulations were laid in 2019 to prepare the UK for leaving the EU without a withdrawal agreement. Revoking the two SIs made back in 2019 and remaking the provisions contained in those SIs in this instrument ensures that we do not have more than one set of amending regulations. Basically, that means that the legislation is clearer for regulators and businesses.
The SI provides for the exercise by the appropriate GB authority of a number of legislative functions currently carried out by the European Commission. Those functions were previously included in regulation 8 of the Environment and Wildlife (Legislative Functions) (EU Exit) Regulations 2019.
The SI was debated in the House of Lords and the House of Commons on 12 February 2019 and 14 February 2019 respectively, and agreed by both Committees of those Houses.
Following the UK’s withdrawal from the European Union, the retained EU legislation, as amended by the instrument before the Committee, will continue to implement the UK’s obligations as a party to the Minamata convention, and provide a regulatory framework for management of mercury. Northern Ireland will continue to apply the EU regulation 2017/852 to manage mercury in the environment.
It has to be said that there is a minuscule, if any, trade in mercury between Northern Ireland and Great Britain, as I am sure the shadow Minister the hon. Member for Newport West is aware. However, we will be introducing new procedural requirements for the transport of elemental mercury between GB and Northern Ireland and introducing a prohibition on the transport of specified products containing mercury between GB and Northern Ireland. Currently, there are no controls on the movement of those specified products containing mercury or elemental mercury between member states. The new requirements should prevent the uncontrolled flow of elemental mercury and the specified products containing mercury from the EU into GB via Northern Ireland.
The SI meets the Government’s commitment to the Northern Ireland protocol. It also ensures continued levels of protection for human health and the environment, as well as again providing stability and continuity for businesses.
You will be excited to hear, Sir Charles, that the third SI relates to detergents. The primary aim of the Detergents (Amendment) (EU Exit) Regulations 2020 is to ensure that the UK meets its obligations under the Northern Ireland protocol in respect of Regulation (EC) No 648/2004 on detergents—the EU Detergents Regulation. That has been done by amending the existing EU exit regulations on detergents—the Detergents (Amendment) (EU Exit) Regulations 2019 and the Detergents (Safeguarding ) (Amendment) (EU Exit) Regulations 2019.
In terms of the key amendments that the SI before us makes to existing EU exit regulations, Committee members will not be surprised to learn that they are merely technical in nature. The technical changes made by the instrument will give effect to the Northern Ireland protocol by ensuring that the EU Detergents Regulation, as it has effect in EU law, continues to apply in Northern Ireland and that the amendments to the retained version of the EU Detergents Regulation extend to Great Britain only. The SI makes special provision for detergents in Northern Ireland in respect of ‘qualifying’ Northern Ireland goods, creating a category of protected imports from Northern Ireland and enabling them unfettered access into the GB market while maintaining standards of protection for the environment and human health. That is, of course, absolutely paramount.
Trade from Northern Ireland to the rest of the UK should continue to take place as it does now—there will be unfettered access, as provided for by the protocol. Therefore, at the end of the transition period, businesses in Northern Ireland may continue to place their goods in any part of the UK internal market without new restrictions.
In addition to the changes to the existing EU exit regulations on detergents, the SI amends the Detergents Regulations 2010—the domestic enforcement regulations on detergents—which will ensure that the Northern Ireland enforcement authorities can continue to enforce the EU Detergents Regulation, as they have effect in EU law, while the retained version of the EU Detergents Regulation can continue to be enforced in GB.
The changes made to the 2010 regulations will also have the effect of ensuring that the competent authority functions, currently exercised by the Secretary of State under the EU Detergents Regulation, will be exercised by the Department of Agriculture, Environment and Rural Affairs in Northern Ireland. I wish to assure Members that the overarching aim of the instrument is to provide continuity for detergent businesses, to ensure that following the end of the transition period the high standards of human health and environmental safety will continue across the UK, and to reflect the obligations under the Northern Ireland protocol.
Finally, we come to the Waste and Environmental Permitting Etc. (Legislative Functions and Amendments Etc.) (EU Exit) Regulations 2020, which includes a mixture of devolved and reserved content. It is a technical instrument that makes small but important changes to existing legislation so that it refers to the latest versions of the EU directives and domestic regulations, as amended by the EU circular economy package. These are small changes, but they will ensure that legislation relating to waste and environmental permitting can be properly enforced by the Environment Agency and its devolved counterparts. This instrument also makes some small technical amendments to
provisions of earlier EU exit SIs that amend domestic legislation relating to batteries, and changes the extent of amendments in an earlier EU exit SI to the Restriction of the Use of Certain Hazardous Substances regulations, known as the RoHS regulations, and the Packaging (Essential Requirements) Regulations, so that they do not extend to Northern Ireland. These changes are needed to reflect the fact that the directives that those regulations implement will continue to apply in Northern Ireland, but not in Great Britain, as a virtue of the Northern Ireland protocol. In practice we have kept the GB and Northern Ireland requirements exactly the same for batteries. On the ground there will be no changes on how batteries are collected, treated and recycled. The requirements for batteries reaching market in the first place will also remain exactly the same. This instrument simply ensures that the correct references are in place depending on whether the legislation applies in GB or Northern Ireland.
The SI also transfers the European Commission’s powers related to article 7(1) of the waste framework directive. This power is being transferred to the Secretary of State and the devolved Administrations. The power will allow the Secretary of State and the devolved Administrations to establish their own lists of waste or amend the existing list of waste as it becomes part of retained EU law after the end of the transition period. The list of waste gives identifying codes to different categories of waste, which are used by waste management businesses, and it specifies which categories of waste are to be treated as hazardous waste. The Secretary of State will need the consent of the devolved Administrations to make amendments to the list of waste on their behalf.
The schedule to this instrument revokes some recent EU decisions or regulations. These revocations are either to tidy up our statute book or because we should no longer be bound to those decisions after the transition period ends, such as where they specify formats for reporting data to the European Commission, which the United Kingdom will cease to do at the end of the transition period.
Each of these instruments is necessary to make sure that the Northern Ireland protocol is implemented properly. They respond to the Government’s commitment to unfettered access for Northern Ireland goods and they help to make sure that we are fully prepared for the end of the transition period on 31 December.
It is very good indeed to see you in the Chair, Sir Charles. May I convey to you and yours, and all the Members here, my best wishes for the festive season?
It is a pleasure to speak for Her Majesty’s Opposition this afternoon. As the Order Paper suggests, I think we are here for the long haul. Today we have four statutory instruments before us. I will speak to each in turn, and I will seek to give them the time and attention that legislation before this House deserves. We are discussing the following: the draft REACH Etc. (Amendment Etc.) (EU Exit) Regulations 2020, the draft Control of Mercury (Amendment) (EU Exit) Regulations, the draft Detergents (Amendment) (EU Exit) Regulations 2020 and the draft Waste and Environmental Permitting Etc. (Legislative Functions and Amendment Etc.) (EU Exit) Regulations 2020.
You don’t need me to say it, Sir Charles, but I will do so anyway: these are important pieces of legislation that are required to ensure that we are prepared not just for the end of the transition period, but for what happens after that. The Minister and other colleagues will have heard me say that I am increasingly concerned, notwithstanding the timetable, that the United Kingdom is governing by statutory instrument. Although I have been a Member of the House for just shy of two years, I know this is not how things should be done. The fact that we are approaching the end of the transition period in a little over three weeks dictates that we need to make sure that we are as prepared as possible, but that this is not how things should be done. I want the Minister to know that Her Majesty’s Opposition is willing to be a constructive and engaging partner in these days ahead, but we cannot be taken for granted. We will hold Ministers to account every step of the way; importantly, we will—like you, Sir Charles—defend the rights of this House every step of the way.
I will take the statutory instruments in turn, starting with the draft REACH Etc. (Amendment Etc.) (EU Exit) Regulations 2020. This is an important subject. We all know that our departure from the European Union will change how we do business, how our country functions, and how we ensure that chemicals regulation in the UK is fit for purpose in the years ahead. This might seem like a niche issue, but many people are far more concerned about it than might be thought. The Royal Society of Chemistry has been clear that
“the impact on the future of chemicals regulation in the UK must be considered, alongside the possibility of divergence from EU regulations.”
We Opposition Members echo those concerns, and ask the Government, on this and many other issues, to be wise and careful when it comes to diverging from the standards and regulations that consumers, industry and our global partners have come to expect in the United Kingdom.
The chemical manufacturing supply chains are well established, and for many products, materials cross the channel several times. If even the most minimal tariffs come our way in a few short days, and that is combined with a requirement to respond to separate regulatory regimes and produce documents to proceed through borders, it could all have a negative impact on future manufacturing supply chains and strategies in the United Kingdom.
So far, under the Government’s approach to charting our nation’s way through these difficult times—I appreciate that the negotiations are continuing—there will be no dynamic alignment with EU regulations in any new UK-EU trade deal. Ministers have indicated that divergence will feature heavily. I regret that, and so do many Opposition Members. I am particularly concerned that the Government have not indicated an intention to seek close co-operation with the European Chemicals Agency; I urge the Minister to make a case for doing so to the Secretary of State, the Chancellor of the Duchy of Lancaster, and the Prime Minister.
Regulatory divergence could have a severe impact on the quality and strength of public health and environmental protections. We should be levelling up, not cutting ties, and Ministers will not be forgiven for engaging our nation in a race to the bottom. It is important, as the Royal Society of Chemistry and others have said, that the Government be conscious of divergent sources of data. Harmful divergence could occur if the evidence base is not harmonised, so a new, binding legal agreement is needed that will allow authorities in the UK and the European Chemicals Agency to continue to share commercially sensitive data.
Ministers need to be careful about what their approach means for business and industry in our country. They could end up doubling the burden on them through masses of extra regulation. The EU regulation on chemicals, REACH, is a single-market measure that applies in the European economic area, which includes the EU, Norway, Iceland and Liechtenstein. The Chemical Industries Association estimates that duplicating EU REACH in the UK after the transition period will cost UK businesses £1 billion, will be without any environmental benefit, and will potentially force duplicate animal testing. We call on the Government to do all they can to avoid this sort of duplication, and to work to deliver the essential solutions required to grow the environmental, social and economic performance of our country.
I pay tribute to the Chemical Industries Association for its work on this issue. It has been very clear that securing a deal with the European Union that guarantees tariff-free trade, regulatory alignment and access to skilled people continues to be of critical importance for the chemical industry, which relies on our future relationship being as frictionless as possible.
Earlier this year, the Government confirmed that they were not seeking to participate in REACH as part of the UK’s future relationship with the EU, and would instead establish an independent chemicals regulatory regime from 1 January 2021. This regime will cover Great Britain; Northern Ireland will remain in REACH as a result of the withdrawal agreement, as the Minister has identified. Simply put, the Government and their Ministers have dropped the position of the Government led by the right hon. Member for Maidenhead (Mrs May), which was to remain in, and aligned to, EU rules on chemicals. The Minister mentioned a light touch; I would be grateful if she could elaborate in her wind-up speech.
In advance of this debate, my team and I had very important and helpful discussions with experts and players in the chemicals field, and I am especially grateful to the CHEM Trust for its work on these issues. The CHEM Trust has set out concerns about a number of features of the future GB REACH regime—or BREACH, as it may now be called—that will be weaker than the current protective framework of EU-REACH. These include the risk of Great Britain becoming a dumping ground for chemicals and products that do not meet EU regulations. The Government have recently acknowledged that chemical dumping is a possibility and said that they are working hard to ensure that this does not happen. I say to the Minister that the only way to guarantee that is by a mechanism or commitment to ensure that the UK remains aligned with EU chemical controls. I would urge the Minister to consider that very seriously indeed.
There is a risk that the regulator will be incapacitated in its ability to regulate harmful chemicals without access to the European Chemical Agency or ECHA chemical safety database. The BREACH system, otherwise known as the Government’s plan for post 31 December, will start with an empty database that will not even contain the most basic registration data on chemicals for the first seven years; and even then, it will have much less information on chemical properties and uses than is in the REACH database. The UK has been seeking to gain access to REACH safety data in the EU-UK trade negotiations, though without making any commitment to remain aligned with EU REACH. The CHEM Trust’s analysis is that the EU will not give such access without a commitment to align with REACH controls, which seems to make perfect sense. BREACH could also all too easily become inactive, without pushes in the system for the regulator to proactively propose controls. For example, a proactive aspect of the EU system is the ability of individual member states to propose restrictions. That has been used already to propose restrictions on per- and polyfluoroalkyl substances, or PFAS, as a group of more than 4,500 highly persistent chemicals, and on intentional use of microplastics.
The lack of mechanisms in the future regulator to ensure stakeholder representation, public participation and transparent decision making is another area of concern. It will result in a more closed and less transparent system than that of the ECHA, which would be more susceptible to industry lobbying. By comparison, the committee structure within the ECHA helps to ensure that its work can be challenged and that the best information is available for these discussions, helping to avoid mistakes and to ensure that decisions are made more independently and transparently.
The fifth area of concern is regulatory capacity, including the experience and expertise of personnel in the Health and Safety Executive and their ability to replicate the functions of the European Chemicals Agency in such a complex field. The Minister is well aware—we have discussed it already, in considering the Environment Bill—that the European Chemicals Agency has an annual budget of approximately €100 million for REACH and 400 staff. There are over 22,900 substances that might be used here in the United Kingdom after the end of the transition period, and all of them have to be registered and assessed. The HSE will be expected to regulate a similar number of chemicals with a fraction of the budget—at the moment, a promised £13 million a year—and without the expertise of its workforce, whereas the ECHA additionally draws on the resources of member states for complex work such as substance evaluation.
There are a number of areas in which the future system is likely to be further weakened if the UK does not remain aligned to REACH as part of the UK’s future relationship with the EU. For instance, deregulation of the system has already begun. The Government announced an extension to the deadline by which the industry must supply safety data on registered substances from two years at the end of transition to being staggered over a period of six years from October 2021. The Government are already deregulating the system they devised only last year. Without this data, it will be difficult if not impossible for the Health and Safety Executive to regulate these chemicals. Like the CHEM Trust, the Opposition are increasingly concerned that we are likely to see further deregulation of the system to minimise burdens that could make it little more than a paper regulator. The UK already has low enforcement of the law in this area, and a weak system could result in many more products on sale containing chemicals that are banned or above legal limits in the UK.
The lack of resources for local standards teams to test goods is about to get much worse, as they lose access to the EU’s rapid alert system or RAPEX at the end of this month. Another concern is the effect on trade deals with non-EU countries. If we do not remain aligned to EU REACH, trade deals with other countries with weaker systems for regulating chemicals—which includes almost all non-European countries, including the US—could result in a weakening of our chemical protection standards, and in the import of products containing problem chemicals that are banned in the EU. That must surely be unacceptable to the Minister, and I hope that she will address that when she replies to the debate. Those are important concerns, and I hope that the Minister will address each in turn. I am also grateful to Greener UK for its work on the issues and for highlighting many of the points I have raised.
Our role as an Opposition is to scrutinise Government and make sure that the decisions they take are fit for purpose and, most importantly, that they will stand the test of time; that is why I wanted to spend so much time on this incredibly important topic. The former Prime Minister, the right hon. Member for Maidenhead, understood the importance of the issues and it worries me greatly that her successor appears to not have a clue.
The value of the UK chemicals industry cannot be overstated; the sector directly employs 88,000 people and is worth billions of pounds to the UK economy every year. It is vital in the supply chain to many other sectors, including pharmaceuticals and aerospace, as well as to the production of everyday items such as cleaning products and electronics. Therefore, we cannot get this wrong; it is incumbent on the Minister and this Government to get this right.
The Minister will know that the former shadow Secretary of State, my noble Friend, Lady Hayman of Ullock, is today speaking on this issue in the other place. Because of that, and the fact that the Opposition will return to these issues as the Environment Bill continues its passage through the House, we will not push for a vote this afternoon. However, I say to the Minister very, very seriously that we have grave concerns with the Government’s approach to this issue, and Her Majesty's Opposition will continue to hold them to account for the system they devise and they decisions they take.
The draft Control of Mercury (Amendment) (EU Exit) Regulations 2020 is, as Members will note from their Order Paper, a short and specific piece of legislation. The purpose of the instrument is to make the necessary corrections to EU regulations on mercury to enable its continued use as governed by EU retained law after the end of the transition period. It also makes amendments for purposes relating to the implementation of the protocol on Ireland and Northern Ireland.
For the benefit of the Committee, mercury is a naturally occurring element that is found in air, water and soil. The release of mercury into the environment mainly stems from human activities, such as the use of mercury-added products, coal-fired power generation, and the mining and processing of mercury, gold and other metals. Airborne mercury emissions can travel long distances across the globe.
Once mercury enters the environment, it can be naturally transformed into methylmercury, which accumulates in organisms and can biomagnify through food chains, often leading to human exposure through consumption of fish and shellfish. Exposure to even small amounts of mercury or methylmercury may cause serious health problems, and is a particular threat to child development in utero and in early life. As a result, mercury is considered by the World Health Organisation to be one of the top ten chemicals—or groups of chemicals—of major public health concern. It is vital that we ensure that whatever rules and regulations that are required to keep people safe and the handling of mercury safe and secure are speedily and thoroughly taken through this House.
I welcome the fact that the devolved Administrations in our country were closely consulted on the approach taken during the drafting of this instrument—as the Minister outlined earlier—and I further note that they were provided with the opportunity to propose amendments; that is helpful.
I also note that informal engagement was undertaken with stakeholders from across the United Kingdom, representing industry and trade associations, who could potentially supply, purchase, or manufacture products that contain mercury between July and September 2020. Those who have responded so far have indicated that they do not supply, purchase, use or manufacture products that contain mercury.
Analysis and engagement undertaken in 2020 demonstrates that there is very little movement of any elemental mercury or mercury-added products between Northern Ireland and Great Britain, or between the UK and EU; this is important to note as we discuss this SI, and the Minister has already mentioned that.
Her Majesty's Opposition will not oppose this regulation because of the specific and focused nature of it, but it was important to take a moment to speak to it.
Sir Charles, I would now like speak to the draft Detergents (Amendment) (EU Exit) Regulations 2020. This SI, like the previous two, refers to the Northern Ireland protocol and to our obligation to honour it. The instrument provides for the continued access of detergents, or surfactants for detergents, from Northern Ireland into Great Britain market. It will ensure that the necessary amendments are made to the EU exit SIs to ensure that the EU Detergents Regulation applies in Northern Ireland, as provided for by the Northern Ireland protocol, while the retained EU law version of the EU Detergents Regulation, as amended by the detergent EU exit SIs, applies in Great Britain only.
The Minister will know that under the terms of the withdrawal agreement between the United Kingdom and the European Union, the Northern Ireland protocol was agreed to as a solution intended to preserve the unique relationship between the United Kingdom and Ireland, and to prevent a hard border or splitting the UK customs territory. That protocol means that we have an obligation to ensure that we are ready for the end of the transition period and the changes that will come with it. As such, Her Majesty’s Opposition will not oppose the statutory instrument, but we urge strong and sensible action every step of the way.
I am grateful to hon. Members for listening to me speak at length, although I should say that I am speaking at length only because the Government have timetabled four Sis; it is not my fault. Do not blame me. Our last statutory instrument this afternoon is the draft Waste and Environmental Permitting Etc. (Legislative Functions and Amendment Etc.) (EU Exit) Regulations 2020. The instrument amends a number of existing EU exit statutory instruments to ensure that the legislation amended by those instruments will continue to operate effectively at the end of the transition period, and makes EU exit-related amendments to, or revokes, some recent EU legislation that will become retained direct EU law. It also makes amendments to primary and subordinate domestic legislation for similar purposes.
The changes made by the instrument will ensure that waste regulation and environmental permitting can be managed after the end of the EU exit transition period. I have touched on waste previously, not least in the Committee stages of the Environment Bill. I refer those interested to my remarks in Hansard. I am sure that a number of people will rush to Hansard after this.
We will not oppose the instruments, but I hope that the Minister has taken on board the concerns that I have raised throughout this speech and in Committee. Government by statutory instrument cannot be an attempt to secure government without scrutiny. I say to the Minister that it is vital that we start respecting this House properly, and our constituents. It is simply not acceptable to rush legislation through a Committee in groups when it will affect the lives of all the people across Wales, Scotland, Northern Ireland and England for many years to come.
I thank the shadow Minister. It is never a hardship to listen to her speaking at length. She referred to people thinking that this might be a niche issue; chemicals are far from a niche issue, and the Government have never treated them as such. We are taking this extremely seriously, which is why so much liaison and discussion has gone on with industry, businesses and, indeed, with the devolved areas over the SIs. That remains crucial. As I have pointed out, there is still much ongoing discussion with them about these issues. She criticises the SIs, but today is her opportunity to scrutinise the legislation, and we have given her ample opportunity to do so, and indeed anyone else on the Committee.
As I said at the end of my earlier speech, the instruments are necessary to ensure that the Northern Ireland protocol is implemented properly. They correct operability deficiencies, which is necessary for the implementation of the protocol, respond to the Government’s commitment to unfettered access for Northern Ireland goods, and help to ensure that we are fully prepared for the end of the transition period on 31 December. The REACH SI does not set up the UK REACH regime, about which we heard a great deal. That was done by the REACH Etc. (Amendment Etc.) (EU Exit) Regulations 2019, which the House considered last year.
All that the present SI does is make amendments to provision for the Northern Ireland protocol to change some of the transitional provisions to extend deadlines for data submission. These instruments will also ensure that the UK continues to meet its international obligations for mercury, as a party to the Minamata convention. They will also ensure that we continue to maintain the high standards of biodegradability for detergents and surfactants. The waste instrument makes small but important changes to existing legislation, and takes powers back from the European Commission. It amends legislation relating to the restriction of hazardous substances, packaging and batteries, so that the UK complies with the Northern Ireland protocol.
I will skim through some of the queries raised. A lot of them were quite general; they were about the overall REACH regime, which is not exactly what these statutory instruments are all about, but I will touch on some of them. In particular, the hon. Member for Newport West raised the subject of associate membership of ECHA. We have gone past that now; I am sure she knows that. That would be unacceptable, because it would tie the UK to the EU’s regulatory agenda and leave us subject to the European Court of Justice.
The hon. Lady touched on animal testing. As a former chair of the all-party parliamentary group for animal welfare, this is a subject dear to my heart, on which I engaged as a Back Bencher. Under EU REACH, tests on vertebrate animals must only be used as a last resort, and companies must demonstrate this. We are retaining this principle in the UK REACH. Extending the deadline would give industry more time to make sensible arrangements for access to existing data about chemicals. That is why the extension that we have talked about today for two years, four years, and six years is so helpful. The data includes information for animal studies, and it will reduce the risk of repeat animal tests.
I understand the point the Minister is making, but is she confident that when we leave the EU, animal testing will not be duplicated in the UK? The animal testing agencies are very concerned that there will be duplication, and that means duplication of animal testing.
Potentially, I think the hon. Lady is unnecessarily scaremongering. She has heard what I have just said: we are retaining the principle in UK REACH that animal testing would be a last resort. If testing has already been done and we have got the data, no one wants to repeat that. The UK, as she knows, has always been at the forefront of opposing animal testing where alternative approaches could be used, and we will retain the last-resort principle. I hope that offers assurance.
I have touched on why we need a separate UK REACH. It would not be appropriate for us to automatically implement future EU decisions under UK REACH, because the EU will no longer consider the impact of their decisions on Great Britain. In setting up our own system, we can take the EU’s decisions into account, but we will need to consider, in every case, whether the decisions we are making are right for Great Britain.
Is the Minister confident that, as we divert from the EU, we will be able to maintain standards, and that this is not a race to the bottom, as some in the industry worry?
Again, I would suggest that the hon. Lady is scaremongering. Does she honestly think we want to be in a race to the bottom over something as important to human health and the environment as chemicals? She sat through the Environment Bill with me, where we talked about protecting the environment. Does she really think that I as the Minister, and all the people working in the Department for Environment, Food and Rural Affairs, would open up the floodgates for a race to the bottom over dangerous chemicals? One of these SIs relates to hazardous chemicals. I reiterate that we will stick to the principles that we maintain—and indeed will probably strengthen them. We have the opportunity to do that in a bespoke way now. I hope that is of some assurance.
The hon. Lady touched on costs. We are very conscious of the need to reduce costs, which is why the UK has been looking to agree an approach to data-sharing with the EU as part of the free trade agreement. She was obviously edging towards that in her conversations about remaining part of ECHA, which we will not. Our negotiations are ongoing, and the aim I have just outlined would assist us greatly in meeting the need for the data to underpin UK REACH, while also avoiding extra costs to industry. We could then significantly reduce the requirements and costs on companies, which would submit their data directly to HSE. Again, however, the extension of the time period for companies to do this will also help with all that.
The Minister is being very generous with her time. She is talking about data-sharing. The Prime Minister and his team have gone to Brussels for negotiations with the EU. Will they come back with a deal that will include the data-sharing clause?
I am ever supportive of the Prime Minister and optimistic. [Hon. Members: “Hear, hear!”] As we all are—that was a great response, and I thank the Committee for it. The hon. Lady is pushing me, but obviously we cannot have only one plan; we cannot have only a negotiated plan A. That is why we are creating an independent chemicals regime, and we must plan for a scenario in which the EU does not agree to our preferred route of data-sharing. However, I am sure we would all want our independent regime to be robust and effective, so we should all accept the importance of industry and authorities having the information that they need to protect human health and the environment properly through the supply chain, as I have touched on before. Obviously it is not cost-free, but if we do not maintain that, we are moving away from the core principles of industry being responsible for understanding the risks of the substances it uses. Regulators must have the information that they need to provide oversight and assurance. We are sticking to our principles, but obviously we have to get the right data and keep everybody safe in our new regime.
That leads me neatly on to my next point. The hon. Lady referred to a race to the bottom and the lowering of standards, but I can assure her that we are definitely taking a risk-based approach to phasing the submission of registration data by requiring, as I touched on earlier, that companies producing the highest tonnage of chemicals and the most hazardous chemicals have to provide their data first, two years after the 300 days. Companies producing lower tonnages and lower-risk chemicals will follow after that. Taking such an approach should facilitate the submission of better-quality data for the risky products first, and then companies can have bit longer to submit their data on less concerning risky products. HSE will be able to look at a variety of sources to inform its decisions, which will also include using its years of experience on chemical regulation within EU REACH and the new substance regime that ran prior to it.
The Minister mentioned HSE, its powers of enforcement and its legislative ability to regulate. Is she confident that there will be enough members of staff and funding, given that HSE’s budget has been stripped out of all proportion over the last 10 years?
The hon. Lady touched on that in her earlier contribution. I would say that HSE is very well placed to be a great success in this role—it has been stressed many times. Working in conjunction with the Environment Agency, HSE has already played a really active role in EU REACH for many years, and it has had to take on some really complex issues and dossiers. On the issue of staffing, that is all under way. DEFRA has put significant resources into building up not only UK REACH, but the regulation side of it. HSE is recruiting heavily for people to work in this area, although it is not absolutely necessary to have it fully staffed for day one, because companies will not rush out on 1 January, suddenly get their hands on all the data and fire it into HSE. HSE has plenty of time to train and build up the staff that it needs. Obviously it has made a really good start, but it also needs to make sure that it is absolutely tailored to the new system that we are developing.
I give the hon. Lady assurances that the IT system has already been developed. We are apparently ready to press the button at midnight on 31 December. The system has been trialled, and I am told it is working well. That is all part and parcel of the new regime.
I did not intend to speak but I have listened closely to the shadow Minister’s interrogation of the Minister on REACH regulations. Would my hon. Friend agree with me that as a founder member of REACH, and having paid and made substantial contributions to REACH, it would look miserly of the European Union not to share information with the UK Government, specifically on chemicals regulations and animal testing? We could work closely on such a good project. Does she agree that the EU would look miserly were it not to share that particular information?
I thank my hon. Friend the Member for North Cornwall—a wonderful part of the world—for making that point. I would not want to describe the EU as miserly, as they will continue to be our friends and we will need to work closely with them, but he makes the good point that the UK itself was incredibly influential in the development of the EU REACH system. The EU regard us as having played that important role. Negotiations are still underway and, as I outlined earlier, we are hoping for some joint and mutual recognition that may potentially result in what my hon. Friend recommends.
The shadow Minister touched upon the fact that Northern Ireland, in terms of protocol, will remain subject to the EU REACH, which means that the UK REACH regulations will not apply to the Northern Ireland market. There will be a streamlined process for Northern Ireland chemicals, however, that are part of what we call ‘qualifying’ Northern Ireland goods to access the GB market, and there is a list of those qualifying goods. The full registration requirements will be replaced with a light-touch notification process. The hon. Lady pressed me on the light touch, and it will be just that. We already know what chemicals they are using in Northern Ireland, so we are starting on a level playing field. It is important and key to remember that Northern Ireland will have a direct link and access to HSE. That is a good position for Northern Ireland in terms of accessing the right place for discussions and advice, because it will be able to access HSE. Northern Ireland businesses will be able to fulfil the notification requirement, should they wish to do so, instead of their GB customer. That has been fully thought through, and much debated and discussed. I hope that puts the shadow Minister’s mind at rest.
That brings me to end of the hon. Lady’s questions and queries. I can write to her should she believe that she would like further information. We have had no come back in terms of concerns about the mercury and the detergents. I think she agrees with that, so I thank her for that.
To sum up, the contents of all four instruments are technical and they are all essential to fulfil our obligations under the Northern Ireland protocol. They all contribute in their own way to the effective functioning of the internal UK market and to the Government’s continued commitment to environmental protection.
I thank the Committee members for being here today and for the comments made by my hon. Friend the Member for North Cornwall. I hope that the debate has been useful. I thank the shadow Minister for her scrutiny, as ever. I am confident that these regulations are fit for purpose and represent another marker in the Government’s commitment to ensuring continued levels of protection for human health and the environment, which is so important, and to providing the stability and continuity that our businesses need.
I wish everyone all the best for the festive season, including you, Sir Charles, and I thank you for chairing the Committee today. I commend the SIs to the Committee.
Question put and agreed to.
That the Committee has considered the draft REACH Etc. (Amendment Etc.) (EU Exit) Regulations 2020.
DRAFT CONTROL OF MERCURY (AMENDMENT) (EU EXIT) REGULATIONS 2020
That the Committee has considered the draft Control of Mercury (Amendment) (EU Exit) Regulations 2020.—(Rebecca Pow.)
DRAFT DETERGENTS (AMENDMENT) (EU EXIT) REGULATIONS 2020
That the Committee has considered the draft Detergents (Amendment) (EU Exit) Regulations 2020.—(Rebecca Pow.)
DRAFT WASTE AND ENVIRONMENTAL PERMITTING ETC. (LEGISLATIVE FUNCTIONS AND AMENDMENT ETC.) (EU EXIT) REGULATIONS 2020
That the Committee has considered the draft Waste and Environmental Permitting Etc. (Legislative Functions and Amendment Etc.) (EU Exit) Regulations 2020.—(Rebecca Pow.)