Monday 25 March 2019
Arrangement of Business
My Lords, I give the usual reminder: if there were to be a Division in the House, we should then adjourn for 10 minutes.
Heavy Duty Vehicles (Emissions and Fuel Consumption) (Amendment) (EU Exit) Regulations 2019
Considered in Grand Committee
My Lords, these draft regulations will be made under the powers conferred by the European Union (Withdrawal) Act 2018 and will be required if the UK leaves the European Union without a deal. The regulations correct deficiencies in EU regulation 2018/956, which concerns the monitoring and reporting of CO2 emissions from, and fuel consumption of, HDVs—heavy duty vehicles—such as trucks, buses and coaches.
Emissions from the UK HDV sector made up 16% of CO2 emissions from transport in 2016. At the European level, HDVs account for about a quarter of road transport emissions. To address this, the European Commission introduced three measures. The first was the introduction, through the certification regulations in December 2017, of a new computer based tool, VECTO, which came into effect from 1 January 2019. The second measure is monitoring and reporting regulations, which the statutory instrument we are debating today is based on. The final measure of the package is a legislative proposal to set CO2 emission standards for new HDVs, which was agreed by the Environment Council on 20 December 2018.
The monitoring and reporting EU regulation—the second measure—came into force on 29 July 2018. It requires member states and HDV manufacturers to monitor certain data relating to the CO2 emissions and fuel consumption of new HDVs registered in the EU from 1 January 2019. Manufacturers must report that data to the European Commission from 28 February 2020. The Commission will hold a database, verify data quality and compile and publish an annual report. There are provisions for administrative fines for HDV manufacturers if these data requirements are not met.
The publication of data collected under the regulation will increase the transparency of HDV CO2 emissions and fuel consumption and underpin the new emission reduction targets. It will provide transport operators access to information on the performance of HDVs of different makes with similar characteristics, allowing them to make better-informed purchasing decisions. It also enables vehicle manufacturers to compare their vehicles’ performance with their competitors, providing an increased incentive for innovation. Finally, publication allows the analysis of the data, for example to assess the penetration level of certain technologies and to support the proposed future CO2 emission reduction standards for HDVs.
The regulations that we are discussing today amend the EU regulation to ensure that it continues to function correctly after exit day. Through this SI, all relevant data calculated in line with the certification regulation will be monitored, reported and published. The data will be available to all stakeholders. The main policy content, including the purpose and objectives of the current EU regulation, remains unchanged by this SI. Provisions about the monitoring and reporting timetable, data to be monitored, HDVs in scope, fines and publication of data will also remain unchanged.
The focus of these amendments is on ensuring that the EU regulation will continue to apply to HDVs registered in the UK after exit day, and to transfer responsibilities from the Commission to the Secretary of State. For example, after EU exit manufacturers will need to report data for new HDVs registered in the UK to the Secretary of State and not to the Commission, and any fines would be levied in pounds rather than euros.
Given the minor changes proposed, a formal consultation has not carried out. However, the Government have made stakeholders aware of this instrument and their plan for its introduction into UK law.
Correcting the inoperabilities within the existing EU regulation will ensure that there continues to be a functioning legislative and regulatory regime which allows for the collection and monitoring of HDV emissions data in a no-deal scenario. As set out in the Government’s strategy The Road to Zero, we are committed to,
“a future approach as we leave the European Union that is at least as ambitious as the current arrangements for vehicle emissions regulation”.
This SI supports that commitment. I beg to move.
My Lords, I presume that when Constantinople or Rome fell, there were still committees sitting somewhere in both cities looking at issues such as drainage and transport. The record should show that the House of Lords has felt it necessary to adjourn at this moment but the Committee looking at statutory instruments for exiting the European Union continues to sit. Of course, this instrument has been introduced by the Minister with her usual clarity and good sense.
We welcome the commitment by the Government to continue with the monitoring of CO2 from heavy goods vehicles. It is important to ensure that the UK is meeting its target in relation to emissions and air quality, and reporting is key to keeping us on track for reducing emissions and air pollution. However, we have to face the fact that, by leaving the European Union, we will lose its valuable oversight in ensuring that the Government comply with air quality legislation.
We have not been the greatest pathfinder in terms of environmental protection. I once worked for the water industry and, following European legislation, that industry was dragged kicking and screaming into what was probably the 19th century at the time, and I think that the same may be true of air quality. I am not sure that we will be as good at this on our own. We need to prioritise the reduction of emissions, given the thousands of deaths being caused every year and the serious impact they can have on health, particularly on that of children.
These regulations were initially conceived in tandem with targets for CO2 reduction that were suggested by the Commission and revised by the European Parliament. Will the targets set by the Government keep in tandem with any standards set by the EU Commission and Parliament?
We welcome the use of the ambitious CO2 reduction targets, but we must ensure that the industry is sufficiently supported to meet them. What are the Government doing to encourage the adoption of ZEV/LEV HDVs—I am pleased to note that, after I inquired earlier, the Minister knows what that means—be that through subsidies or improvements in the infrastructure? How will we help the industry to keep pace with developments of zero and low-emission HDVs? Do the Government envisage that the fines levied against those who fail to comply with the data gathering will be in line with those proposed by the EU, and will they keep pace with the fines to ensure compliance?
The instrument provides for further regulations to be made to set out the procedures by which manufacturers can notify the Secretary of State of errors in data. That will be key to ensuring that we have an effective and transparent system. When will those regulations be brought forward?
These regulations were brought forward by the European Union as part of a wide package of measures to ensure that Europe’s future mobility system is,
“safe, clean and efficient for all EU citizens”.
What impact could our exit from the EU have on our future plans to reduce harmful emissions?
Finally, the Minister mentioned that it was not thought necessary to go through a formal consultation process, but were environmental and health groups consulted in any way during the discussions? Some have made accusations of a lack of transparency while the regulations were considered.
Further, what continuing access will we have to EU-wide data collection and analysis in order to drive up standards and related matters? Are we not cutting ourselves off from the best practice data which helps to drive good standards?
As I say, we welcome the way in which the instrument has been presented and the work done, but it leaves these questions unanswered.
My Lords, I make my standard statement that I wish I was not here and that we were not preparing for a no-deal scenario. I fear that such a scenario would be every bit as bad as predicted. I think we must all hope and pray that it does not happen.
Turning to the generality of what the statutory instrument does, I think it obviously makes sense within the general theme of developing controls on transport-related CO2 emissions. I have only three real areas of concern, and certainly none which would cause me to oppose the statutory instrument.
First, in paragraph 2.2 of the Explanatory Memorandum, sub-paragraph c) says among other things:
“Some data is commercially sensitive and exempt from publication”.
That seems to me to be completely opposite to the concept of the statutory instrument and the regulation that it modifies. Surely, its whole concept is that all data is available to everybody in the same format, so that even small firms with one or two vehicles would have no problem in comparing manufacturers when they consider purchasing one of these heavy duty vehicles. Having said that the data is commercially sensitive—and I cannot see why that statement is there at all—if it is commercially sensitive, that would require us to be kept in line with the commercially sensitive decisions that the EU made; otherwise, the usefulness of this data-collecting exercise would otherwise be rapidly eroded. Does the department have any plans to somehow consult the European Union on what areas of commercially sensitive data it is going to suppress? I hope that the answer will be none.
I was sufficiently curious about this SI to look at regulation 2018/956. I am amazed to find that its requirements are in fact for the collection of 78 pieces of data without air drag values—which I could not understand at all but which had their own separate table. One thing that struck me was that about a third of the regulation was made up of the preamble, which is 22 paragraphs and four pages long. I think that the Minister has already alluded to some things that it says:
“The Commission’s 2016 European Strategy for low-emission mobility sets the ambition that, by mid-century, greenhouse gas emissions from transport will need to be at least 60 % lower than in 1990, and be firmly on the path towards zero”.
Does this regulation coming into English law mean that we are accepting the Commission’s low-emissions strategy targets? Is it part of our law, or is that covered somewhere in the complexity of the European Union (Withdrawal) Act? After it comes into law, where would one find it? Would that be in the Kew records, as I call them?
Finally, how would the regulation be enforced? The statements in its preamble are really statements that the Government should have regard to in the future.
My Lords, I thank noble Lords for their consideration of these draft regulations. I agree with the noble Lord, Lord McNally, about the importance of addressing the issues around air quality, and of course emissions from transport vehicles are a key part of that. Our aim as a Government is to put the UK at the forefront of the design and manufacture of zero-emission vehicles, with all new cars and vans being effectively zero emission by 2040. We recently published our strategy The Road to Zero, which sets out a clear pathway to zero emissions and an end to the sale of new conventional petrol and diesel cars and vans by 2040, with the aim that by 2050 almost every car and van will be zero emission. The aim is that at least half of new cars will be ultra low emission by 2030.
In respect of HDVs, which we are discussing today, we want to see the development and deployment of zero-emission vehicles. For example, we have agreed an industry-wide voluntary commitment from the freight industry to reduce greenhouse gas emissions by 15% by 2025, and we are working closely with the industry to develop an ultra low emissions standard for trucks and increasing the supply and sustainability of alternative low-carbon fuels. The SI we are considering today supports those aims by maintaining the current CO2 emission monitoring and reporting requirements and underpins the new regulation which is currently being finalised before being brought forward.
The noble Lord asked about fines. The fine levels will remain the same as those set out in the European regulation, albeit having been translated into pounds rather than euros. The powers in the regulation and the SI do not allow for a change to the level of the fines, so they will stay the same.
The noble Lord also asked about consultation. As I said in my opening speech, given the limited impact of this SI on industry and businesses, a formal consultation has not been carried out, but there was a full consultation when the initial EU regulation came into force. That was carried out by the Commission. It was a full, open and public consultation, which received around 100 replies, and of course environmental groups were closely involved in the formation of the regulation. However, as we are keeping things the same, we have not spoken specifically to environmental groups about this SI.
On the new CO2 emission standards regulation, the EU has provisionally agreed targets and incentives for HDVs to 2025 and 2030. They are due to be agreed by the European Parliament later this month and, once agreed, they will come into legal effect via a new European regulation. As that is yet to be finalised and adopted, how its requirements might be implemented in the UK will depend on when that is achieved, but our commitment to tackle climate change remains strong. We know that we must do more to meet our collective commitments on climate change and, indeed, the UK Government was one of those who led the way on increasing our ambition during the recent EU negotiations on emissions reduction as well as on standards for passenger and light commercial vehicles. As I have said, in the strategy The Road to Zero, the Government have committed that, as we leave the EU, we will ensure that we are at least as ambitious as the current arrangements for vehicle emissions regulations.
On data sharing, raised by the noble Lord, Lord Tunnicliffe, one of the key advantages of the EU regulation is that the data will be published and shared. Currently, the data will be reported by manufacturers in member states of the EU, and the Commission will maintain and manage its publication. It will be published annually from 31 October 2020 and the data will be openly available. Although some of it is commercially sensitive and thus exempt from publication, we expect the vast majority to be published. The commercially sensitive data exemption was agreed at European level and that is set within the regulations. It means that it will be published more in the form of a range rather than exact points. However, only data that is genuinely commercially sensitive will be withheld. We will replicate the data publication for UK-registered vehicles in the event of no deal. The content and the date of the report are set in the original EU regulations and are carried over by the withdrawal Act. That will not change, so it will still be possible to use UK data as a comparison against EU data—aside from the data that will be exempted for commercially sensitive reasons, and that will be the same for the EU and the UK. All the data will be openly available, and the EU 27 plus the UK will be able to be looked at side by side.
The preamble to the EU regulation provides background only and its content is not legally binding. The entire regulation will be carried over into UK law, but the targets set will be met through future regulations. The content and the preamble will stay, but specific targets will be set through future legislation.
I think that I have answered all the questions. I will go through Hansard and check. If I have not answered any questions, I will follow up on them in writing.
This SI is essential to ensuring that we maintain control of HDVs registered to travel on UK roads and that the system to support that continues to function from day one after EU exit. It will help us to reach our climate change goals and ensure that we do all we can to improve air quality.
Food and Farming (Amendment) (EU Exit) Regulations 2019
Considered in Grand Committee
My Lords, these regulations group elements of four policy regimes: spirit drinks; wines; genetically modified organisms; and agricultural direct payments. The purpose of this statutory instrument is to make purely technical or operability corrections ensuring that these regimes continue to function as intended. These corrections deal with removing or amending references, converting EU procedures to UK procedures and transferring EU functions to the UK. The four policy regimes are dealt with together in a single instrument for the convenience of both Houses. I will cover each in turn.
First, this instrument makes operable the regulation and protection of, and methodology for analysis of, spirit drinks once we exit the EU. The amendments specify protection for the UK’s geographical indications, and this instrument will make the necessary operability amendments to ensure ongoing protection of the US spirit drinks Bourbon whiskey and Tennessee whiskey, following the signing of the UK-US spirit drinks agreement in January. This instrument will also prevent EU 27 spirit drink geographical indications being automatically recognised as protected in the UK after leaving the EU.
With respect to wines, this instrument will amend EU retained law to make it operable from the day of exit. The amendments will allow us to continue to apply or enforce provisions relating to detailed wine-making practices, including the blending and analysis of wine. The absence of these amendments would undermine consumer confidence in wines, damage our trade in and production of wines and impact on the significant contribution the sector makes to the UK economy.
The amendments for spirits, together with those for wine, are part of establishing geographical indication schemes in the UK. These amendments are a component of the wider suite of Defra legislation on geographical indications, including the Environment, Food and Rural Affairs (Amendment) (EU Exit) Regulations 2019, debated on 13 March and approved on 19 March, and the Food and Drink, Veterinary Medicines and Residues (Amendment etc.) (EU Exit) Regulations 2019, debated on 20 March and approved on 21 March.
On genetically modified organisms, the SI makes purely technical changes to keep the retained EU legislation operable on exit from the EU. The amendments will allow us to continue to regulate and enforce the applications process for consent to market genetically modified organisms in the UK. It will also allow us to continue to regulate the export of genetically modified organisms, both those which originate in the UK and those which are merely passing through the UK. It also seeks to correct minor errors in exit statutory instruments which have already been laid.
Finally, on direct payments, this instrument will make minor technical amendments to roll over currently existing provisions in retained EU law relating to: environmentally sensitive permanent grassland; buffer strips, field margins and strips of eligible hectares along forest edges without production; the ratio of permanent grassland; and criteria for ecological focus areas. No policy change is made by these corrections. They address drafting errors in two of Defra’s EU exit statutory instruments relating to direct payments. I apologise to noble Lords for this oversight. The earlier instruments were laid at a time when Defra was preparing a large amount of EU exit secondary legislation, but Defra has sought to rectify the errors at the earliest opportunity.
In seeking only to allow the policy regimes to continue to function as intended, this instrument generates no new enforcement bodies and there is no significant impact expected on the existing enforcement regime.
It is worth noting that this statutory instrument was originally laid under the negative procedure. However, the Lords Secondary Legislation Scrutiny Committee recommended that the regulations be made under the affirmative procedure. The suite of legislation on geographical indications under the EU withdrawal Act confers new duties on the Secretary of State. This is in consequence of the Secretary of State taking on functions from the European Commission as a result of withdrawal. However, it is not this instrument that confers new legislative duties; for example, for spirits drinks it was the Environment, Food and Rural Affairs (Amendment) (EU Exit) Regulations 2019, which we debated earlier this month. This instrument confers only administrative functions to the Secretary of State from the European Commission. The Minister at the time the Committee made the recommendation to change this SI to an affirmative instrument, George Eustice, agreed that this instrument should be made subject to the affirmative procedure, and it is a pleasure for me to speak to it before your Lordships today.
Defra has consulted with the devolved Administrations on the amendments contained in this instrument, and they have been consented to. For genetically modified organisms, decisions to release or market GMOs are a devolved matter in Wales and Scotland and a transferred matter in Northern Ireland. However, there are no GM products in the approval pipeline for release in the UK and none is expected in the foreseeable future.
We have engaged extensively and listened to stakeholders’ views on all these policy areas. We have consulted on the issue of geographical indications, which cover both wines and spirit drinks, and continue to stay close to our key stakeholders in those sectors. No consultation was undertaken for direct payments, because the changes are entirely technical and intended to ensure current provisions continue to be available after EU exit.
On GMOs, a technical notice and, more recently, further guidance was published. The changes are entirely technical and intended to ensure currently available provisions continue to be available after exit. This SI makes minor corrections to earlier GMO-specific SIs, on which Defra engaged with parties with an interest in GMOs.
An impact assessment has not been prepared for this instrument, as its purpose is to maintain existing regulatory standards and there is expected to be minimal impact on business. I beg to move.
My Lords, I thank my noble friend for introducing these amendments, which are technical and will allow a smooth transition when we leave the EU. As she said, they are technical changes that affect certain aspects. I have a couple of things to raise, and I should declare an interest since our farm receives environmental payments—she referred to grassland, buffers and ecological areas that are included in this SI for which we receive payments.
My question concerns the fact that, as she referred to, the Select Committee selected this for the affirmative procedure. She said that this was not really necessary and that it was due to something that had happened earlier. Was that known before this SI was produced in the way it is? Otherwise, it seems unusual to have it included as an affirmative instrument, although I accept what she said.
I also want to ask her whether there will be changes to any other statutory instruments coming through. It is getting more and more confusing for those of us looking at them to look at something that happened a week or two ago and try to compare it with what is happening now. I hope she is able to tell me that this will be the last of this set of statutory instruments that we shall look at.
So my two questions are: why was it included in this SI if that decision had not been reached before? Will there be some consolidation of any further SIs coming through? That would make life much easier for all of us.
My Lords, I thank the Minister for her introduction to this SI and for her time, and that of the officials, in the briefing last week. This is something of a catch-all statutory instrument, clearing up elements omitted from the previous SIs we have debated on: geographical indications for wines and spirits; minor amendments to GMOs, veterinary medicines and residues; and common agricultural policy direct payments to farmers. Tomorrow, we will debate more SIs related to agriculture. I will not make the obvious comment about the efficacy of debating them all on the same day. I have great sympathy and support for the comments made by the noble Baroness, Lady Byford. Hopefully, this will be the final SI in the process of tidying up those elements missed out of previous legislation.
There is also relevance to the devolved Administrations: Regulations 9 and 11 apply only to England and Wales, and 10 and 13 to Northern Ireland. I have only a few comments to make, as most of the issues have already been debated at length.
Regulation 3(21)(i) makes amendments in Annexe II of the EU regulation,
“in the section headed ‘Other spirit drinks’”,
where there are references to “Rum-Verschnitt” and “Slivovice”. All this is very interesting, but I cannot see its relevance. I do not know an awful lot about Rum-Verschnitt, but I know that Slivovice is produced in the Balkans, in Bosnia, and I would like to know why these two spirits should get a specific mention. Perhaps the Minister could say.
On page 12, in Regulation 5, we come to the crux of the matter. As the Minister has said, this relates to Tennessee whiskey and bourbon, currently imported from the United States. It also covers spirits produced in Mexico, tequila and mescal, which will be added to the list along with Tennessee whiskey and bourbon. I am pleased that this SI will make it possible for these spirits to continue to be freely available in the UK. While I am not personally a bourbon drinker, my husband—whose relatives all live in the Deep South in the USA—is, and I would not want him to have difficulty getting hold of his favourite tipple.
Such is the nature of this wide-ranging SI that it covers Irish cream and Somerset cider brandy—I have read it, and that is what it says. I had better look in my drinks cupboard to see what I have and whether I will readily be able to purchase further supplies in future. It would have been extremely helpful if the Explanatory Memorandum had listed the drinks covered in annexe III, referred to in the SI.
As the Minister said, the Secondary Legislation Scrutiny Committee felt that the regulations went beyond what is required to maintain the operability of the law after EU exit by conferring a new duty on the Secretary of State in respect of GIs which,
“could have a considerable commercial and economic impact”.
I agree with this statement and remain concerned that many of the catch-all SIs that cover such a wider range of topics may have implications for many regional producers.
Defra has indicated that it will bring forward guidance. The Minister has told us that this will be published before exit day and will be on the Defra website from exit day. I hope this guidance has been written and has taken account of the various permutations currently under discussion in the other place. There could be serious implications for some of our most revered wines, spirits and produce if the guidance is not clear and readily available.
My Lords, may I add my thanks to the Minister and to her team of officials who met us last week to go through the issues contained in this SI? It was helpful. It may have shortened what I was going to say; it may not have done.
I start with a question about GMOs. The Minister has explained that certain corrections have had to be made to legislation that had already been passed, and that this is a bit of a tidying-up procedure. We accept this, because we know that there has been pressure to produce a lot of these SIs very quickly.
I suppose it is necessary to ask the Minister about impact assessments. These SIs—I am talking about GMOs in particular now—will surely add some existing burden to UK authorities as well as to the devolved Administrations. In Northern Ireland, I assume that the decisions will be made by civil servants, as there is nobody else to make them. Is this right? It does not seem satisfactory but, in the absence of a functioning Administration, the whole situation in Northern Ireland is not satisfactory. I presume this is all that can be done.
Can I ask one specific question? If in future we wanted to tighten up the regulations about GMOs, would it be straightforward? Would there be any implications for trade with the EU? I assume that the reverse would not apply. I hope we would not want to liberalise our regulations but, if we did, it would run counter to EU practices.
I turn to the question of direct payments. I have some sympathy with the Minister here. For a time, I was a junior Minister in Northern Ireland and agriculture was one of my responsibilities. I will not bore the Committee with anecdotes about Agriculture Council meetings in Brussels, amusing as some of them were. Although it is not quite on the same subject, I will say that we consistently had tremendous support from the Irish Government. Whenever an issue came before the Agriculture Council—and there were many—the Irish Government went out of their way to be supportive of the British Government. I should like this to be on the record. I presume that the corrections that had to take place were as a result of oversights. We will move on from there.
Finally, I turn to the question of wines and spirits. In the briefing with the Minister, we spent a little time talking about tequila and mescal. These are two alcoholic drinks which I have never touched. I did my best to find some tequila before today’s Committee, but I failed. I wonder if the Minister would care to buy me a tequila at some time in the future—or allow me to buy one for her. We are talking about retained EU legislation on wine and spirits. I understand that the issue is about the geographical origin of products. We have been talking about Tennessee whiskey and bourbon. I understand that the Mexican drinks will come on the scene at some point in future when further negotiations have taken place. So we are going ahead with some of these drinks and the others will presumably follow.
My understanding is that geographical indications are used to identify a product whose quality, reputation or other characteristics are linked to its geographical origin. This will now be the responsibility of the Secretary of State, having previously been an EU responsibility. I assume that the question of geographical indication will cover many products in addition to those covered by this SI—this is a fairly common thing. It is right and proper that we should continue to co-operate with the EU and retain as many of the existing EU regulations as possible in practice.
I am not quite clear why these regulations would replace the current annexe with a shorter list. I hope I have this right. I understand that only UK spirit drink GIs would be automatically protected in UK law after exit. In contrast, UK GIs for spirit drinks will continue to be recognised by the EU as third-country GIs after exit, including in a no-deal scenario. I am not quite clear if I have understood that, and maybe the Minister will be able to clarify it.
The questions are: how prepared are we to operate our own GI systems? Can the Minister assure the Committee that the department will have the necessary staff and resources, and of course the expertise, to run the new system? The Government have stated that Defra will publish guidance on how to apply to the UK GI scheme in March 2019, which is this month, so can the Minister give an update on the completion of that guidance? Lastly, what consultation has the department undertaken with the devolved authorities over the design and implementation of the new UK GI scheme?
I thank all noble Lords for their contributions to what has turned out to be a short debate. I expected it to be fairly short, but some very valuable questions have been raised so I will be very pleased to answer as many as I can. If there is more that I can add then I will certainly write.
I turn first to the comments made by my noble friend Lady Byford. It is always a pleasure to have her in the Committee to make sure that we are doing things correctly, and she certainly does that. She referred to the issue of the Select Committee and the instrument being made affirmative. Without wishing to detract at all from the valuable work done by the Select Committee, it is the case that the functions being transferred across in this SI are administrative functions, not legislative. There was a potential slight misunderstanding about exactly which powers were coming across. Other legislative functions have come across in other SIs but not in this one. However, we took the decision that this gives us as a Government the opportunity to explain the position, so we decided that we would accept the Select Committee’s decision to make it affirmative, although there was always the opportunity for us to have gone back and explain that. We felt, “Why not make sure that everyone is completely happy?”, so we decided to stand in front of your Lordships today and explain that these are administrative functions, while those legislative functions came across in other SIs that were affirmative anyway and have already been discussed by the Committee.
My noble friend also asked whether there were further statutory instruments to come. There are a few but not as many as there were, so that is a bonus. Nearly all of them have now been scheduled for debate, so we have a good idea of what is left. Obviously, we are consolidating where possible to ensure that we do not have too many debates. It is vital to ensure that our legislation is up to date for exit day, whenever that comes. We can certainly say that we are in the end game now; we are at the end of the process and we should have everything in place very soon. As my noble friend will know, there are more coming tomorrow, so I hope she will join us then.
I thank the Minister for that. The difficulty is that sometimes some people are present in the debates, such as the one that we are having now, who have not had the advantage of hearing the earlier debates that we have had, which makes it quite difficult for all of us—myself included—to pick up on some of them. I am grateful for her clarification. I am well aware that we have quite a lot more to come, but my hope is that they will be complete in themselves so we do not have to go over ground that we have already covered, which I think has been the frustrating bit with some of these instruments.
I completely accept that comment. I recognise that this is sometimes very difficult because we are dealing with the same issues for different products in different SIs. Certainly, the instruments that will be under discussion tomorrow are much more wholesome and complete.
I turn to some of the comments from the noble Baroness, Lady Bakewell, who also made the point, which I will take on the chin, about the efficacy of debating all these separately. As I have said before, that issue is always to be balanced with the danger of having too many issues in one place; we all know of the famous BEIS SI that was over 500 pages long. I recognise that there is a balance to be struck, and both noble Baronesses have made some very good points.
The noble Baroness, Lady Bakewell, and the noble Lord, Lord Dubs, noted the guidance on the new GI scheme. We published an updated technical notice on 5 February 2019, which offers GI stakeholders guidance for continued planning in the event of no deal. Further guidance will be available on the day of exit, but we are not going to publish further guidance ahead of that to avoid the confusion of there being too much guidance. The February guidance is still current, and we will publish further guidance on exit. However, we are alerting stakeholders that this guidance is on the way and that they should prepare to notice it when it arrives.
Turning to the US whiskey and Mexican spirits agreement, which is very important, noble Lords will appreciate that that is rolling over the deal between the US and Mexico and the EU. We were able to roll over the US element, so those spirits are protected in this country. It has not been possible to roll over the Mexican element, but we are engaging with the Mexican Government and we expect it to be rolled over very soon, so I will happily buy the noble Lord, Lord Dubs, a tequila in due course—just one!
More generally, it is worth recapping the situation about GIs when we leave the EU, because they are important. UK products which are recognised as EU GIs are on the register in the EU and should continue to have that protection automatically after exit. The only way in which they would not have that protection is if the EU changes its rules. It is worth remembering that many products from third countries are on the EU list of GI products, so UK products in the EU will have that protection. The Government have not yet announced a decision on how non-UK GIs being sold into the UK will be treated if the UK leaves the European Union without a deal in place. The UK is not obliged to protect EU GIs after exit, but EU GI holders will be able to apply for recognition in the market after exit.
That leads into the point made by the noble Lord, Lord Dubs, about whether we are ready for this. Yes, we are. We have thought about and put into place our own UK GI process. We are very clear about what the procedures will be. The double process in the EU will become a single process here in terms of the submission of the application and looking for people to comment on the application. We are adding a second separate level of protection in that applicants will be able to go to the First-tier Tribunal if they disagree with the Secretary of State’s decision. So there will still be a two-stage process, but it will be slightly different from the one in the EU. We believe we have the expertise in Defra to do it, so we will welcome applications to the new system.
I thought I was going to be a little side-swiped by the question on “Rum-Verschnitt” and “Slivovice”, but I think I have an answer. I do not know whether it will make any sense to the noble Baroness, Lady Bakewell, but I hope it will. These amendments apply only in the UK and the text does not make sense in a UK context, so we are revoking the words—these are operability amendments getting rid of unnecessary text. If I can find out any more or make that make any more sense, I will drop the noble Baroness a note.
I was asked about Annexe III and why the full list of GIs is not in the Explanatory Memorandum. The only US spirits we included were Tennessee whiskey and bourbon. This enacts the roll-over agreement, which is why the full list is different from what was expected.
The noble Lord, Lord Dubs, mentioned GM crops. This is an important issue. We will continue to take a science-based approach on approving GM products and will agree to the planting of GM crops only if it is clear that people and the environment will not be harmed. As I mentioned, no GM crops are grown in the UK and we do not foresee any approvals coming down the track at this stage. Again, it is also worth re-emphasising in situations like this how closely we work with the devolved Administrations on all devolved matters to ensure that there is as little divergence as possible. Too much divergence does not appear to be in people’s interests. For the time being, we are setting up frameworks to make sure that, where possible, everybody has the same arrangements.
I just want to comment on the Minister’s assurance that we will not see the introduction of any genetically modified crops in this country that have an impact on the environment and human health. I hope that this will be borne in mind by the Government when they read the terms published by the Americans for future trade agreements with this country.
Obviously, such issues will have an impact on our future trade agreements. I reiterate what I just said about our ambitions for GM crops. We will look at the science; that is the most important thing.
I believe that I have answered all the questions. If I can add anything else later by letter, I certainly will.
Plant Health (Amendment) (England) (EU Exit) Regulations 2019
Considered in Grand Committee
My Lords, I declare my farming interests as set out in the register. I hope that it will be helpful to your Lordships if I speak also to the Plant Health (Amendment) (England) (EU Exit) Regulations 2019, with which this instrument has been grouped.
These two regulations amend existing domestic legislation implementing the EU’s plant health directive and provide the basis to maintain plant biosecurity when we leave the EU. The plant health directive is implemented in England by the Plant Health (England) Order 2015 and, in relation to forestry matters, by the Plant Health (Forestry) Order 2005, which extends to Great Britain. The existing orders set out obligations for the control and management of plant health risks arising from the import from third countries and movement within the EU single market of plant material, in order to protect biosecurity.
It is our responsibility—particularly mine in my role as Minister for Biosecurity—to protect biosecurity across plant and animal health and the wider ecosystem. It is also important that we have a robust process of ongoing review to strengthen biosecurity protections where this is possible and necessary. The regulations debated today are specifically about protecting plant biosecurity. The amendments address technical deficiencies and inoperability issues relating to retained EU law on plant health that will otherwise arise when we leave.
I should make it clear that although businesses will see some changes to import arrangements, they are risk-focused and avoid unnecessary new burdens while, importantly, preserving the current plant health regime’s overall aim of preventing and managing pest and disease threats. They do not diminish our controls in this important subject area but seek to protect biosecurity while continuing to facilitate trade in plant material.
The main purpose of the Plant Health (EU Exit) Regulations 2019 is to set out the list of harmful pests and plant material that will continue to be regulated in England, Wales and Northern Ireland from exit day. This is the same list of pests and plant material from the EU plant health directive, which we have transposed into our existing legislation, and includes harmful pests that we want to stay free from, such as xylella fastidiosa. The instrument also sets out amendments to deal with technical deficiencies in retained, directly applicable EU legislation to ensure that plant health legislation operates effectively. For example, it provides for the existing derogations to facilitate the import of specified material, such as bonsai plants from Japan, to ensure that this trade can continue under the same stringent quarantine conditions after exit.
Similarly, the instrument sets out the actions required by UK plant health authorities in England, Wales and Northern Ireland to control certain pests in the event of outbreaks. The provisions cover matters such as official surveys and eradication measures that currently apply to competent authorities under EU emergency legislation. For this instrument, the plant health authority is the Secretary of State in relation to England and Welsh Ministers in relation to Wales, with delivery in both countries undertaken by the Animal and Plant Health Agency. In Northern Ireland, authority and delivery currently rests with the Department of Agriculture, Environment and Rural Affairs. For timber and forest pests in England, the Forestry Commission is the relevant authority.
In addition, plant pest and disease experts in Defra, the Animal and Plant Health Agency and the Forestry Commission, with support from Forest Research and Fera, will continue to work together, providing an exceptional capability to advise Ministers, manage risks and control outbreaks. As part of EU exit planning, we have increased our capability and capacity in the Animal and Plant Health Agency, which is nearly doubling the number of plant health inspectors from 118 to 227. The new inspectors are currently being trained to be ready for when we leave. We continue to keep under review whether we need to strengthen further our capacity in this important area of biosecurity protection.
Plant health is devolved. The devolved Administrations have worked closely together in developing their EU exit legislation to ensure a co-ordinated approach. As a result, these regulations apply to England, Wales and Northern Ireland. Scottish Ministers have decided to introduce separate legislation in Scotland, and their equivalent legislation will give effect to UK-wide arrangements. In practice, this means that we have a common list of regulated pests and plant material across the United Kingdom.
One of the main purposes of the Plant Health (Amendment) (England) (EU Exit) Regulations 2019 is to correct technical deficiencies in our domestic legislation after exit. For example, they remove references to EU legislation and revise definitions to be UK-based instead of EU-based. The instrument also transposes provisions in certain Council directives in relation to the control of relevant potato pests, adding to the provisions already transposed in our existing domestic plant health legislation. These additional provisions mainly cover official activities that competent plant health authorities are required to carry out under these directives, such as official surveys and monitoring for the presence of the pests. The aim is to provide clarity to third countries that, following exit, the UK will continue to maintain the same rigorous control over the production of potatoes.
In relation to the changes to import arrangements I highlighted earlier, there are two aspects in this instrument. First, regulated plant material, such as ornamental plants in pots intended for commercial planting and certain trees and shrubs, that currently enters the UK from the EU or Switzerland with an EU or Swiss plant passport will in future require a phytosanitary certificate. This will be issued by the official national plant protection organisation in the EU member state, or Switzerland, in line with international obligations. This applies mainly to plants for planting and will ensure that we maintain the biosecurity assurances currently provided by the EU plant passport regime. Regulated plant material from the EU or Switzerland will not be subject to routine physical checks at the border. This recognises that biosecurity risks from such material do not change immediately on exit. However, we will always be vigilant about such imports and, where necessary, take additional measures to stop the introduction of harmful plant pests into the UK.
Secondly, there are changes in how we deal with regulated plant material from non-EU third countries. Such material includes tomatoes from Morocco and cut flowers from Israel and Turkey, which currently come into England via the EU. Businesses wishing to continue bringing in this material via the EU through ro-ro ports will be required to facilitate checks at approved premises inland to make sure that the material meets our plant health entry requirements prior to their release. These new inland checks are necessary to maintain the biosecurity assurances currently provided by checks at the first point of entry into the EU, given that EU member states will no longer be required to carry out these checks on goods in transit for the UK after we leave. Consignments of regulated plant material moving from our ro-ro ports to approved inland premises will continue to be sealed—a point I emphasise. Some 33 businesses have so far applied for their premises to be approved for inland checks. As I stated earlier, the Animal and Plant Health Agency has recruited more than 100 additional inspectors to carry out the approval process and checks at the approved premises. They will deliver their inspections with the same rigour as they apply now.
The direct cost to businesses of these changes to import arrangements are expected to be low. Officials have held discussions with key stakeholders on the development of our approach to this instrument and the changes to import requirements. They continue to engage businesses to support the preparations for day-one changes.
This instrument also creates a UK system of plant passports to replace the EU plant passport regime, which will no longer be operable when we leave. It is essential to provide for a domestic plant passport regime to maintain existing safeguards to protect biosecurity from the trade in regulated plant material in the UK. The costs to and burdens on businesses using plant passports should not change.
The other amendments are as follows. There is to be a new offence in relation to the new import requirements I just outlined. This is necessary to ensure that we can enforce and, if necessary, prosecute serious cases of non-compliance with the new requirement. That will apply to consignments of regulated plant material from non-EU countries that arrive through ro-ro ports via the EU and will not be inspected at the border. There will be a new offence to enforce any failure by businesses or landowners to comply with pest control measures specified in a statutory notice, which will demarcate the areas where there is a pest outbreak. This is necessary to ensure that we can enforce the provisions covered in these instruments whereby Ministers can demarcate an infected area and take action. These regulations apply to England only. Wales, Northern Ireland and Scotland will hold separate equivalent legislation, as they do now.
These instruments will ensure that an operable legal framework is in place for exit day and will facilitate the flow of goods while preserving the current plant health regime’s overall aim of preventing and managing pest and disease threats. I beg to move.
My Lords, I thank my noble friend for taking these two statutory instruments together. Although they are huge, they are complementary. I am also grateful to him for his explanation. As he said, it is a matter of making sure that we have an operable legal framework when we leave the EU. I have one or two questions.
I am grateful for the detailed Explanatory Memorandum on the first instrument. Paragraph 2.5 talks about “existing fees”. Will we continue with those fees until at some future time they might be changed if that needs to be done? At the moment it just states that the existing fees will continue.
Paragraph 2.7 talks about the new certificates,
“issued in the country of export in accordance with International Plant Protection Convention obligations”.
I was delighted to see that any imports will not be stopped at the border but will be examined and looked at in great detail at the centres to which they eventually go. I understand that physical checks will not be carried out on anything that has come through existing EU member states, and that that will continue into the future—I hope I am correct and that we get clarification on that—but anything coming in from a third country that does not come through the EU will be dealt with in a totally different way. It is hugely important that we control anything coming into this country. We have seen with great sadness ash and oak trees being lost through infections and diseases. These are really important steps we are taking. Are the premises that will need to be authorised by Defra to provide those inspection facilities all over the UK or based around the London area? It is not clear where they will be based.
We have a new offence in relation to non-compliance with import requirements in this statutory instrument; I welcome the opportunity for us to prosecute serious cases. Do the Government anticipate that there might be set fees for anything coming in that fails to live up to the expected standards, or will they come later?
I turn now to the statutory instrument itself. On page 23, Article 22A(3) states:
“The conditions are that—(a) the packaging in which the relevant material is transported and any vehicle which is used to transport the material is free from soil and plant debris and any relevant tree pest”.
I do not know how one can fully guarantee that, even if the material is wrapped and fully secure, there will not be some leakage or mishap during transition. Has thought been given to that? Then on page 29, in Part D of Schedule 13A, paragraph 11(a)(vii)(cc) refers to,
“controls for the disposal of waste, soil and water, as appropriate”.
The two do not seem to sit terribly well together. Why is there different wording in different areas? It may be that I have missed something, but I am not quite clear and I would be grateful for clarification.
Basically I very much welcome these regulations, because—like other noble Lords who will take part in this debate—I have for many years been very conscious of the risks we run. The more plants and shrubs we import, the greater the risk to our native species. Also, the climate is warming here, and therefore we may well, as we are seeing, be able to grow more vines and things, but as we import additional shrubs and other habitats into this country, the risk is even greater than before. It is just a matter of trying to make sure that the system we are establishing here is strong enough and has enough powers. Hence my questions on the way fees will be dealt with and on what regulations there will be about the charges when people do not live up to the standards we are setting in these instruments. They are hugely important. I would not normally speak at such great length, but I am very aware that while we cannot control certain things, such as wind-borne diseases, we certainly can control physical things coming into our country. I want to make sure we have taken enough precautions in these two statutory instruments.
My Lords, I thank the Minister for so clearly outlining the changes. If we enter a no-deal Brexit scenario, we will lose a fully-functioning system that regulates the very important trade in fruit, vegetables, freshly-cut flowers and timber that, as the noble Baroness, Lady Byford, said, is critical to ensuring our continuing biosecurity.
I have three points. First, I struggled to get a sense from the Explanatory Memorandum of what increase in the inspection rates will be necessary as a result of this new scenario in the event of no deal. As the Minister rightly said at the beginning, the majority of plants and fresh fruit will not have any more inspection, but all the plants and produce coming in by virtue of the EU plant passport regime, which are not subject to inspection now, will be subject to inspection in future. I was grateful for the responses that I had from the staff when I asked them that question: they made it clear that we are looking at a 30% increase in the number of inspections necessary in plants, fruit and cut flowers, and a 50% increase in timber. We are not talking about small numbers here. The figures that they gave me are that at the moment we have about 100,000 consignments per year of regulated goods, so a 30% increase on those figures is not going to be small. There will therefore be considerable on-costs to the public purse as the Animal and Plant Health Agency and the Forestry Commission will have to undertake those inspections.
The staff helpfully made it clear that at the moment the Forestry Commission has 10 inspectors who undertake inspections but, if we have to go forward with this SI because of a no-deal Brexit, it will have to have increase its inspectors by 50%, which means another five. In real terms that does not sound like a very large number, but it is still of 50% more inspectors, not in the London area, as the noble Baroness, Lady Byford, rightly highlighted, but geographically spread out, so it will not just be a question of staff costs; it will mean resources to get them out and about in the country. There will be significant on-costs to the public purse as a result of the necessary increase in inspections if we leave the EU.
Secondly, I would like to tease out a bit more on the inspections that are going to take place at authorised premises in order to ensure that there are no backlogs at the RORO points. The Explanatory Memorandum is quite clear that the Government want to avoid that, and I think we all wish that. The Minister just said, if I heard him correctly, that 35 businesses have applied to have authorised premises so that these inspections can take place at their facilities around the country. My understanding from the Explanatory Memorandum is that 900 businesses that are presently engaged in this arena. So 35 business have have applied to have their premises authorised and there are potentially 900 businesses that are already within this arena. Again, I am grateful to the staff because when I asked them how many of those 900 businesses had premises that they thought would be suitable—not everyone is going to have premises that are—they very kindly indicated that they thought between 75 to 100 businesses would have suitable premises. So up to 100 of those 900 businesses are potentially able to get their premises licensed, and only 35, so far, have done so. Will the Minister say a bit more about exactly how we will ensure that we do not get delays at the ports? I applaud the desire to have no backlog at the ports but, at the moment, the figures do not quite seem to stack up.
Thirdly, I add my voice to the points made by the noble Baroness, Lady Byford, on the biosecurity risk. I accept that the consignments will be in sealed lorries, as the Minister said. That is of course important, but if we are sending off consignments to be inspected at premises all around the country—they will go all over the country; we have lots of garden centres where I am in Surrey and I am sure that other noble Lords will have plenty in their part of the world or know of agricultural wholesale businesses all over the country—while the lorries themselves will be sealed, if they are found to be bearing pests or to be a risk to our biosecurity in some other way, they will have to be destroyed. The facilities for destroying will not be where they are; they might be wherever.
I have the highest regard for what the Minister says and for his sincerity in his commitment to ensuring biosecurity for our country, but even though the staff and the Minister have said that is no additional risk on biosecurity, there are concerns if we send out all these consignments to be inspected at premises around the country. If they are found to be carrying pests or diseases, how are they to be destroyed without spreading further the risks that they have brought in? I know that all of us in this Committee will be concerned about that issue.
My Lords, I congratulate my noble friend on bringing these two instruments before the Committee this afternoon. I am also grateful to him that Fera will be involved in this, since he will recall that Fera is in the Thirsk and Malton constituency. As a slightly amusing story, I remember seeing a beetle at Fera that had been extracted from a wooden bed. It had been quite scary for a honeymoon couple to have heard its constant scratching. Finally, the morning after their nuptials, they called the hotel staff in and found out that the beetle had been imported within the wood that the furniture was made from. It was obviously more company than they had bargained for. I yield to no one in my admiration for the work that FERA does.
I have a couple of questions for my noble friend the Minister. My noble friend Lady Byford referred to plant health and pests in the air. What shocked me and colleagues on the EFRA Committee in the other place in the midst of the ash tree dieback was the fact that we were exporting seeds to be sown in parts of Europe such as, dare I say, Denmark—I am half Danish, so there was obviously some embarrassment—and Poland, which then grew these ash trees. We then reimported them to the UK as saplings with the Chalara fungus; I will not even try to say its name. We were reintroducing the ash tree saplings to this country with that disease. Can my noble friend give the Committee a reassurance that, under the arrangements set out in the statutory instruments today, that will not happen and that we will continue to update the list of species at risk which fall under these regulations on plant health and biosecurity? As the EU continues to amend that list, in the event of no deal will we share the information on our list as we go forward? Will we update our list with any updates to the EU list as well? I am sure that my noble friend will say that that is a matter for negotiation. Will he please make it a priority for our negotiations?
It is obviously of some concern that the threat is not just from dieback to ash trees. Currently, horse chestnuts, pines and other trees are also threatened. Have we learned nothing from elm disease? Kew Gardens and the arboretum at Castle Howard fulfil a national role in making sure that we continue to have seeds which we hope will be free of these diseases. Can my noble friend reassure the Committee that there will not be any threat in future?
In the Prime Minister’s Statement in the other place, there was a lot of talk about the Irish border and the arrangements in Ireland. At the moment, there is no Northern Ireland Assembly. We understand that this issue was raised for the first time two weeks ago by the Minister’s Defra colleague in the other place, particularly in respect of the arrangements for his department. There are going to be no checks at the borders on plant health, but they will be, as it states, in some internal location. Is this entirely sensible when we are dealing with something as fundamental as plant health and biosecurity? If there is an alert for a particular plant disease, should we not reimpose checks at borders for this purpose to make sure that we keep the national biosecurity safe?
In the smaller regulation as I shall call it—the Plant Health (Amendment) (England) (EU Exit) Regulation—paragraph 2.3 of the Explanatory Memorandum sets out obligations,
“for the control and management of plant health risks”,
for the import of plant material from third countries and the movement of such material,
“within the EU single market”.
Given that our position will be that of a third country, can we clarify what the status will be for plant movements between here and the EU?
On page 21 of the SI, Regulation 19 refers to,
“Prevention of the spread of tree pests: England”.
Again, can we ensure that there will not just be plant passports, as it goes on to say, but physical checks, if there is reason to believe that there is a specific threat? At the moment, we know of threats to three particular tree species. We need to be careful and to understand what our status will be in relation to the EU if we crash out and leave with no deal.
I hope that we can give these instruments a fair wind, but both instruments raise a number of issues of potential concern to the biosecurity and plant health of this country.
My Lords, as several noble Lords have pointed out, plant health is a vital issue. I declare an interest as chairman of the Woodland Trust.
Pressure from introduced diseases and pests is serious and growing. Already there has been reference to the publicity surrounding ash dieback, which could kill off 80% of our ash trees and change the nature of our countryside and hedgerows. I am sure that noble Lords—particularly those of my age—will recall the devastation from Dutch elm disease. “You haven’t seen anything yet”, because poised and waiting to come over are killers such as xylella fastidiosa, to which the Minister referred. This is a Darth Vader of plant disease. It could infect a whole range of species of plant and trees. The noble Baroness, Lady McIntosh, talked about three species that are under threat. In reality, it is pretty well true to say that every native tree species is at risk of pest or disease. So plant health needs to be taken very seriously. I thank the Minister for his explanation of these two regulations and for the briefing meeting he set up with himself and senior Defra officials.
The regulations are indeed intended to replicate the current arrangements in Europe, but they contain some differences and illustrate some serious issues. First, as has already been noted, they move the line of defence against the risk of the importation of disease from the port to the importer’s premises in the case of regulated material from third countries. The new process means that the premises of these importers of regulated plants and trees will have to have their process authorised and provide specific inspection facilities, which will then be subjected to a yearly audit. As the noble Baroness, Lady Parminter, said, Defra has estimated that between 80 and 100 premises may want to be authorised, but authorisations opened before Christmas and only 33 have gone through the process so far. There is a way to go in achieving readiness. Can the Minister tell us what his department is doing to ensure that all those who need to be designated will be designated in time, whenever “in time” might mean?
I must admit that I was concerned that, in the interests of not gumming up the ro-ro ports and creating friction in the trade process, we would no longer stop and check these materials at ports. I was assured by the Defra chief plant health officer that the plants and trees concerned would be transported in bonded conditions so that the disease could not be spread in transit before they had been checked. Can the Minister assure us that such bonding or sealing provisions, as he called them, will work so that there is no risk of trailing pestilence across the country in the interest of simply avoiding embarrassing queues at the post-Brexit ports?
Once the plants and materials are held in authorised premises, they will need to be inspected by the Animal and Plant Health Agency before they can be moved and distributed. As has already been noted, that will require more staff, including additional plant health inspectors. Support staff will also be needed to manage the uplift in the number of phytosanitary certificates required to ensure that exports from the UK to the EU can be handled. The noble Baroness, Lady Parminter, referred to that. Defra kindly provided us with figures showing that an additional 117 plant health inspectors and support staff, and an additional five Forestry Commission inspectors, will be recruited. This is a virtual doubling of the workforce. Can the Minister tell us the estimated cost of this new regime? It sounds expensive. Simply doing some sums on the back of a fag packet indicated that the staff alone could cost upwards of £3 million. The public are wholly unaware of these sorts of costs when making their minds up about the value, or otherwise, of Brexit and its variants—so much for the Brexit dividend.
Of course, we are only one country, even if we are four nations. Much depends on effective arrangements being in place—particularly in Scotland, which will subject to separate legislation. Can the Minister tell us whether that legislation has been passed in Scotland and, if not, when it will be passed?
The Minister referred to a new criminal offence being created to provide an enforcement mechanism in the event of failure to comply with a notice issued in respect of a demarcated area. Your Lordships will remember that the House expressed concern about the creation of criminal offences by statutory instruments during consideration of the then EU withdrawal Bill. While this new criminal offence does not count as a relevant criminal offence under the Act, can the Minister confirm the maximum penalty for the offence?
Of course, the new regime deals only with legitimate trade, although the Minister is of the view that it will provide more information for traceability should an outbreak take place. The Minister assures me that the Animal and Plant Health Agency is hot on the tracks of any illegal imports, and I assure the Minister that the agency is regularly under-cover as a mystery shopper at car boot sales in car parks.
These SIs basically recreate a slightly less satisfactory UK regime to replace the existing EU regime for plant health. At heart, this is a lipstick-on-a-pig situation—you can put lipstick on a pig, but it is still a pig. The scale and threat of plant and tree disease is increasing. In general terms, the Government’s policy for all but regulated materials is of surveillance to spot infestations early once introduced to this country and contain them with vigour. This does not keep out pests and diseases and is insufficiently robust to tackle the current and future threat. Brexit has few merits in my book, but one of them would come into play in this instance: as part of reclaiming our borders, we would have a chance to do a New Zealand or an Australia and adopt a policy of no entry for any plants and trees unless they are demonstrably disease and pest free. If that were in conjunction with a major push for plants to be UK sourced and grown, to reduce the need for imports and to give a valuable boost to the UK nursery trade, that would genuinely be in the spirit of Brexit—I never thought that I would use those words.
I look forward to discussions with the Minister on how we can improve the plant health regime in the context of the forthcoming biosecurity strategy.
My Lords, I thank all noble Baronesses who have contributed to this debate. I suspect that we are united in every particular of the essentials. I stress again that as the Minister with biosecurity in his remit, I could not place a higher importance on keeping our country safe from pests, disease and invasive non-native species, all of which cause immense damage to our natural ecosystems.
As a farmer in the Vale of Aylesbury I was very scarred myself, as a boy, by the loss of all the elm trees on the farm. Now, having planted ash trees over the years and seeing them depleted, no one could be unhappier about that situation. However, in 2012, when it materialised that all sorts of extraordinary things were happening, whereby ash seeds—I think it was even small saplings as well—were going to other parts of the EU to come back and bring Chalara with them, that precipitated a change in Defra and an understanding that, while animal health had rightly been given a very considerable priority, plant health needed to buck up and become as rigorous and as sharp. I could mention many names, but the appointment of the chief plant health officer, Professor Nicola Spence, was one repercussion of an understanding that we needed to do a lot better.
On the issue of bonding and sealed, or whatever word may be used, I say to the noble Baroness, Lady Young, that I was absolutely clear in the early stages of this situation that I too wanted reassurances. I am well aware that pests may arrive at a port and we may find them going all around the country because we have done something utterly stupid. I was assured, and I will go into further detail on the assessments, about why this was a sound and sensible thing for us to do.
I will go through the points in no particular order. My noble friend Lady Byford asked about existing fees and any changes. Existing fees will apply to these import inspections at inland premises, so we will follow the existing fee arrangements.
The noble Baroness, Lady Parminter, asked about the estimated number of consignments and inspections. I want to be clear that by inspection we would mean physical inspection of a consignment of plant material, rather than simply checks of the documents associated with it. In a no-deal scenario the majority of plants and plant products imported from the EU, including fruit, vegetables and cut flowers, will continue to enter the UK freely without physical inspections, as currently. Those goods managed under the EU plant passport regime, such as certain species for planting and shrubs, will require an internationally recognised phytosanitary certificate. There will be no physical inspection of the goods at the border, although our risk-based inland surveillance system will continue. A documentary and identity check will take place remotely, without requiring that goods are stopped either at the border or inland awaiting checks. The importer will be required to pre-notify the Animal and Plant Health Agency about details of a consignment of regulated plant material. At this stage we are, in a sense, keeping what we have for certain regulated plants from within the EU—in other words, the phytosanitary certificate.
The important area—if the Committee does not mind my setting this out, because it is terribly important to establish the sequence—is that material originating in third countries that enters the UK via the EU without being checked in the EU will require a physical inspection in the UK, in the same way as we currently physically inspect material coming directly from third countries. So whether or not the material enters the UK at the ro-ro ports, we will inspect the goods at trade premises inland that have been authorised in line with biosecurity requirements. At this stage we do not have data on the current number of plants and plant products entering the UK from third countries via the EU which will require an inspection, but we estimate that there will be around 14,500 consignments per year.
My noble friend Lady Byford asked about the location of inland premises. They are located across the United Kingdom. We do not have to hand the exact locations of the 33 premises currently being organised but I can provide that information in due course. I should say, and this issue arose in another connection, that a lot of the current facilities are around Heathrow because obviously a lot of the plants from third countries come in there. I know that there have previously been considerations about the fact that it is London-centric; that is because often the bulk of plant material from third countries has come in that way. I have been to the excellent inspection unit alongside Heathrow, where so much of the biosecurity protection takes place with imports directly from third countries.
My noble friend and the noble Baroness, Lady Young, asked about the costs. It is the Government’s policy to charge fees for many publicly-provided goods and services. The standard approach is to set fees to recover the full cost of service delivery. This relieves the general taxpayer of the costs so that they are properly borne by users who benefit from the service. Charging for plant health services is consistent with the principle that businesses using these services should bear the cost. The costs incurred in any 12-month period are recovered by fees levied in the following 12 months. For example, fees for 2019-20 will be based on the costs incurred in providing services for the period from April 2018 to March 2019.
My noble friend Lady Byford and, I think, the noble Baroness, Lady Parminter, raised transporting, moving inland and the biosecurity risk. As I have said, experts both from the APHA and within Defra have made it clear that in their assessment, under the containerised, sealed and bonded arrangements, these materials will be secure until they are inspected.
The noble Baroness, Lady Parminter, asked about the volume of the imports from the EU that would be subject to the new process. We estimate that around 0.75 million tonnes of regulated plant products from the EU, out of around 7 million tonnes of total annual imports, will require a phytosanitary certificate. On the question that she also raised on concerns about blockages at points of entry, we are seeking to do this because the paramount concern is that we keep the country biosecure. Clearly, though, where inland premises have been inspected and are both suitable to the inspectors and secure, we have been advised that there is no biosecurity risk from that.
I want to respond to another point raised by the noble Baroness, Lady Parminter. She asked about the dangers of spreading pests. It is clear that we must ensure that that does not happen; that is the whole point of our carrying on with the EU system of requiring pre-notification with phytosanitary certificates for certain EU plant products. That is an important pre-notification system to enable APHA to be aware of arrivals. Moreover, part of the regime is that random checks are made of plant materials. We place the greatest importance on this area.
My noble friend Lady McIntosh asked about the risks. She talked about ash dieback; the outbreak has precipitated an enormous amount of research—here I am moving away slightly from the statutory instrument before us. Research now being undertaken into tree health is remarkable for both its public and private funding, through universities. The John Innes Centre has undertaken research into the genome of the ash tree which gives us hope that perhaps 15% to 20% of the trees may have some tolerance. We can ensure the future of the ash tree from them. This is an important area and we will work with evidence to develop a risk-based, proportionate approach to plant health measures.
In the past we have introduced precautionary national measures to protect the UK against threats. For example, the UK produced stronger national legislation against xylella in response to the situation elsewhere in the EU. We have also introduced national legislation to protect against oak processionary moth. In fact, during my early months in this post I am afraid that I made myself unpopular with our very nice Spanish friends when dealing with the Epitrix potato pest by requiring further washing because we were concerned about the arrival of unwashed new potatoes at certain times. Moreover, of course we will work with the devolved Administrations to ensure there is protection across the United Kingdom.
I turn to the question of Northern Ireland. As we have discussed in a number of debates, the island of Ireland is an epidemiological entity for obvious reasons. In fact, when we looked at aquaculture, we found that there are fewer fish pests in the island of Ireland than there are in Great Britain. It is terribly important that the all-Ireland concept is seen in that context because pests and diseases are not respecters of borders. It is intended that a similar SI will be made for Northern Ireland. The specific legislation will align with our own legislation to ensure a consistent approach to plant health. It will be laid before day one.
As I said to my noble friend, the whole point in raising the single entity is that is why it is so important that there is close co-operation. If my noble friend had seen our earlier consideration of Northern Ireland matters, he would have heard about the very strong relationship between bodies in the north and the south on almost the whole of the natural ecosystem area. That is tremendously important.
My noble friend Lady McIntosh asked about changes to the list of regulated pests. A plant health risk register is publicly available and I am afraid to say that currently we have 1,000 pests recorded on it. That somewhat bears out what the noble Baroness, Lady Young, said. I have regular meetings with Grown in Britain, and which side of the argument on the European Union one might be on is, frankly, irrelevant. We need to be more biosecure within the United Kingdom. We all need to be more biosecure around the world because our laxity in these matters has already caused enormous problems around the world and we need to attend to it.
Professor Nicola Spence and I have regular meetings: sometimes gloomy ones about the arrival of, for example, the spruce beetle in a wood in Kent. We think it probably travelled across our waters. All that has immense implications when we go to Scotland, where spruce is really important. We are working extremely hard on measures to contain the spruce beetle; it is too early for me to say that they have been a success, but initial findings from our work are bearing fruit. We must keep all these matters under regular and constant review. I assure the Committee that I place the utmost importance on that.
My noble friend Lady McIntosh mentioned import inspections and inland monitoring. We already undertake systematic inspections of regulated goods at ports and airports. This will not change. In future, we will carry out our own checks of regulated material being imported from such countries via the EU. I have mentioned that the risk assessment on the change to inland was done by our technical experts in APHA and Defra, who consider that it does not pose a change of risk. That is why we have the inspectors; they need to be in a position to see what is happening.
The noble Baroness, Lady Young, mentioned the additional costs. The cost of the additional plant health inspectors required in a no-deal scenario to facilitate inland checks is covered in the additional £7.4 million that the Animal and Plant Health Agency has been allocated for 2018-19. It is also to support Defra’s wide-ranging and ambitious portfolio of preparations for exit. I work with the Animal and Plant Health Agency and it has strong expertise.
I thank my noble friend for clarifying the extra money that has been allocated. Will that money be clawed back from importers and people who are buying the products, or will the Government put the money up and make no attempt to get recompense? I thought from the conversations we had earlier that there would be a charge.
The fees are for the costs of inspection or whatever. The additional costs for people will partly be borne by the Exchequer. I think I had better have complete clarification on that. As far as I am concerned, the fees cover the cost of inspections and we will have to upscale them. It might be helpful if that £7.4 million is allocated in a way that my noble friend and other noble Lords can appreciate, so that we get it right and I get it on the record right.
The noble Baronesses, Lady Young and Lady Parminter, mentioned the 33 premises. There are obviously other businesses. Officials are engaging with export businesses and encouraging applications. We look forward to being helpful because it is important that these premises are inspected, secure and fit for purpose. Then we can help to ensure that these products come to the inland premises as swiftly as possible.
The noble Baroness, Lady Young, asked about future plans. The policies in regulations are risk-based and proportionate, and will apply temporarily from day one until we develop our future plant health regime. This will include consideration of the extent to which we implement aspects of revived arrangements to be introduced in the EU from December 2019 through its new regulations on plant health and official controls, given their significant influence in shaping these new arrangements. Clearly what we in this country want to do is to have the highest possible standards of biosecurity. We will be looking at the advantage of available technologies to facilitate trade that is as frictionless as possible, but the paramount importance is to have high standards of biosecurity. Defra and the Food Standards Agency are working closely together to develop proposals for this and plan to consult on them this year.
The noble Baroness asked about Scotland. By chance, I met Mairi Gougeon, the Scottish Biosecurity Minister, along with Lesley Griffiths from Wales only about three hours ago as they were in for other meetings at Defra. I requested that the three of us meet, perhaps when this particular hiatus is over, so that we can work positively together. For Scotland, the Plant Health (EU Exit) (Scotland) (Amendment etc.) Regulations 2019 were laid in draft on 13 March and were debated and passed scrutiny unchallenged on 14 March, while similar regulations for Wales were laid in draft on 19 February.
I am going to have a close look at Hansard regarding other points. My noble friend Lady Byford mentioned climate change. Obviously, this is an area where we all need to work collaboratively across the world. Because of climate change, plant diseases and pests have, in my view, become much more alarming. The issue of physical and windborne is absolutely the case. I am afraid that we would have got Chalara even if we had not done the unwise things that we did because, as my noble friend Lord Deben and others will know, Essex, Suffolk, Norfolk and such eastern counties are suffering because of it being airborne. That leads to a much wider issue: whatever our arrangements with our friends in the EU 27, this is an area where we all have to collaborate. I am afraid the challenge that I would put back to Europe in this area is that a lot of things are coming here because when they arrived in Europe, there has not been zero tolerance. I mention the oak processionary moth and the Asian hornet as examples of where arrivals in Europe have not been dealt with, so we are having to seek to deal with them here. We do not have enough sea to match the ambition of New Zealand or Australia; it is only 22 miles wide. We all need to do very much more.
On the question from the noble Baroness, Lady Young, about the maximum penalty, I might not have a note from the Box but I think the fine is limitless. All I can say is that if someone transgresses, I hope the fine is substantial because the disasters that can befall our country due to these pests and diseases is very grave. I will study Hansard. I will write if there are embellishments or further details that I can supply.
Plant Health (EU Exit) Regulations 2019
Considered in Grand Committee
Criminal Justice (Amendment etc.) (EU Exit) Regulations 2019
Considered in Grand Committee
My Lords, these regulations form part of the Government’s ongoing work to ensure that there are functioning domestic laws in the event that the United Kingdom leaves the European Union without a deal. They relate solely to the Government’s no-deal exit preparations. Should Parliament approve the withdrawal agreement, which incorporates an implementation period, and pass the legislation necessary to implement that agreement, the commencement of these regulations would be deferred until completion of the implementation period.
The regulations amend or revoke legislation relating to five EU measures; first, the victims of crime compensation directive. That directive established that each EU member state should have a national scheme to provide compensation to victims of violent intentional crime. It also provided for liaison between the relevant authorities of each member state to facilitate the compensation of victims. The Criminal Injuries Compensation Authority manages the compensation scheme for England, Wales and Scotland. Northern Ireland has a separate scheme; however, the Criminal Injuries Compensation Authority is the assisting authority for the whole of the United Kingdom and liaises with other member states to help victims apply for compensation from them.
The second matter is the European protection orders. The directive provides a framework to allow certain kinds of protection order made in criminal proceedings in one member state to be transferred to another EU member state where it can be recognised and enforced.
Thirdly, there are the European supervision orders. These enable the transfer of certain supervision measures between EU member states. For example, bail granted subject to conditions issued in criminal proceedings in one member state can be transferred to another EU member state to be recognised and supervised there.
Fourthly, the mutual recognition of financial penalties provided a framework so that certain financial penalties imposed in criminal proceedings in one member state can be forwarded to another EU member state for enforcement.
Fifthly and finally is the matter of taking account of convictions in EU member states in the course of new criminal proceedings in the United Kingdom. This requires known prior convictions in another EU member state to be taken into account—for example, when passing sentence—to the extent that national law requires national convictions to be taken into account. This means that, upon sentencing, the court in any member state can treat convictions from another member state exactly as they would domestic convictions.
The purpose of this instrument is to address the changes necessary in domestic law upon our exit, in the event that we exit without a deal. I will not go into the detail of what the SI does for each EU measure or tool—I hope that the regulations themselves, the Explanatory Memorandum and the provisional impact assessment are already clear on that—but I will briefly draw attention to the main points and to what occurs in the event that we leave without a deal.
For the victims of crime compensation directive, the instrument will revoke the implementing legislation relating to mutual assistance since it provides a system of intra-EU member state co-operation that will not be present in a no-deal scenario. I emphasise that the regulations do not impact on our national compensation scheme; that will continue.
For the European protection order directive, the instrument will revoke the implementing legislation since the scheme can operate only between EU member states, and in this scenario the United Kingdom will not be one. We take the opportunity of these regulations to make transitional provision to ensure that any order made consequent to an incoming request received prior to exit will continue to be enforceable until its conclusion, whenever that is, so that persons will remain protected. I should add that this system is seldom used. My understanding is that only four orders have been made by the courts of England and Wales in respect of such protection orders since it came into operation, while only six applications have been received from EU member states. That is over a period of three years.
With regard to the European supervision order framework decision, the regulations will revoke the implementing legislation. Again, this system can operate only between EU member states and when we cease to be a member state, it will be inoperable. This scheme has also been seldom used, as noted in the Explanatory Memorandum and impact assessment. I can update the figures: I think there is a reference to a total of four applications having been received, but since the regulation was lodged there have been a further six. That makes a total of 10 applications in the four years since the framework directive was implemented. The numbers are obviously very small.
With regard to the mutual recognition of financial penalties framework decision, the regulations revoke the implementing legislation, again because mutual recognition and enforcement is between member states alone. There is a transitional provision to allow domestic enforcement to continue to finalisation in respect of any request that was received prior to exit.
Finally, I refer to the taking account of convictions framework decision. The regulations will amend the implementing legislation to provide that for proceedings which commence post exit, individuals with prior convictions from EU member states will be treated the same as individuals with any other non-UK prior conviction. There are again transitional provisions in place providing that the current rules will apply for cases ongoing at the time of exit.
The impacts of these changes on citizens, businesses and the public and voluntary sectors are regarded as minimal. An impact assessment was placed in the Libraries of both Houses ahead of this debate. In the event of a no-deal scenario we would see created deficiencies in the domestic legislation implementing these five EU tools which the Ministry of Justice is responsible for if we left the legislation unchanged. Anyone involved in a live matter at that point or considering the options afterwards would therefore be unsure what legal framework applies to their circumstances. The deficiencies I refer to flow in part from the simple fact that in a no-deal scenario, the United Kingdom would no longer be an EU member state. As I indicated, these European Union tools are constructed to be operated by and between EU member states. Four of the five regulations that I have addressed require reciprocity between the UK as a member state and other member states of the European Union to operate. Of course, that reciprocity will not be present if we have a no-deal exit.
The purpose of the regulations themselves is simply to promote as orderly a withdrawal as is possible in such circumstances and to provide a degree of certainty for those who need to navigate the criminal justice landscape in a no-deal scenario. In addition, they provide clarity for anyone considering these matters in the EU context. In these circumstances, I commend the regulations to the Committee.
I thank the Minister for his clear introduction of this instrument. It seems to be an inevitable consequence of a no-deal scenario but one of its provisions is of great importance: the taking into account of previous convictions. A lot of work was done to try to improve the system across the EU for recording in a standard form the information in relation to previous convictions, which are of considerable importance in the court deciding what to do. Is the Minister able to say what arrangements are being made so that there continues to be the fullest co-operation on obtaining information about those convicted in member states? This is obviously particularly important in cases dealing with paedophiles and other violent offenders, as the courts here would want to take into account all details of prior convictions to ensure that appropriate penalties were passed. If that information was not available, it would obviously be of some considerable detriment to the safety of the general public.
My Lords, I want to make a couple of points that I have made on previous occasions. I am always unhappy about things that deal with the law being discussed only by lawyers. It seems to me that non-lawyers should sometimes refer to the matters in front of us.
I heard the Minister say, kindly, that we now have the impact assessment. I am always fascinated by how the Government can say that they do not intend to provide guidance because a measure relates mainly to technical changes before they have produced the impact assessment. That seems like a decision before the fact. It is also interesting that the Explanatory Memorandum states:
“No, or no significant, impact on the private, voluntary or public sector is foreseen … The impact of this instrument, including on individuals, is negligible”.
That cannot be true if, for example, this information is not available; the noble and learned Lord made the point a moment ago that that will have a considerable impact on individuals.
The point I really want to make to the Minister is that this is another example of trying to deal with Alice in Wonderland. The idea that we would seriously not give the information we have to the rest of the European Union, nor hope that they would give us that information, seems outwith any kind of sense. I am perfectly prepared to accept that we will have to pass these regulations—because, no doubt, if that situation arose when we are not a member of the European Union, many of these provisions would not function in any case—but I wish that Ministers would just admit every time that it is much better to have a system in which you share than not. We are all fixated by the lunacy of the whole business of Brexit but that does not mean that a little humility from Ministers would not be welcome. They could say, “We are sorry to be in this position because it makes things very much worse”, instead of pretending that everything will be the same, that we will just fix things, that everything is perfectly okay and that if we have a no-deal situation, this will just go ahead. That flies in the face of the truth.
Every time we discuss these statutory instruments, we increasingly recognise what a nonsense the whole proposition is. I just want to hear that occasionally from the Government. They do not seem satisfactorily engaged in trying to solve the problem anyway, but it would be nice to hear an occasional ministerial comment that they are sorry to have to put this forward because it is obviously not a sensible situation or better than what we have at the moment.
My Lords, the regulations deal with the current situation of mutual assistance, not just the passing of information from one country to another. That is what we are concerned with.
The noble and learned Lord, Lord Thomas of Cwmgiedd, referred to taking account of convictions. As he explained, a lot of work has been done to make sure that convictions are presented mutually in an agreed format, which assists a sentencing judge greatly. The regulations—particularly in Part 6, entitled “Taking account of convictions”—provide that all individuals with prior convictions from outside the UK, whether from the EU or non-EU countries, are treated the same. Clearly, as the noble and learned Lord pointed out, there is a developed system of mutual assistance relating to convictions. I would be grateful if the Minister could explain the difference between the system developed between EU member states and that developed with non-EU states “outside the UK”. Those are the words used in the impact assessment. What difference in standards can we expect between the two systems?
Perhaps I may turn first to compensation for victims of crime. A significant change has been made because, at the moment, there is an obligation on EU member states not simply to offer advice but to co-operate in providing access to their compensation schemes. It is proposed that that system should go and the Criminal Injuries Compensation Authority will simply offer advice instead. We know from the impact assessment that, for example, it is not known at the moment how many British nationals have applied for compensation from EU compensation schemes because victims can apply directly. I am anxious to know whether the Minister can enlighten us about the nature of the advice that will be given to people injured as a result of criminal activity abroad as compared with the mutual assistance given under the current scheme. It seems that there could be a very considerable difference between the two situations. The Explanatory Memorandum states that there is currently,
“a system of formal communication between the relevant authorities”.
That will go, so what is the advice? If an injured person happens to learn about the scheme covering the offer of advice from the Criminal Injuries Compensation Authority, presumably he or she will have to take the initiative of approaching the CICA to obtain it.
I turn to mutual assistance. Of course, EU protection orders and supervision systems have not been used considerably, as the memorandum makes clear. These are important possibilities that no doubt could have been developed more than they have. For example, if a person has engaged in violent conduct towards their spouse in a European country and the spouse has taken out a protection order, there is great value in that being enforced in this country as well without any further proceedings. However, according to the regulations before us, it seems that separate and additional applications for protection will have to be made to the British courts.
It is a similar case as regards supervision orders. If a person found guilty of criminal conduct abroad to the effect that a supervision order has been made against him moves to this country, unless there is a separate and additional application to a British court, the protection against him that a supervision order provides will no longer exist.
The mutual recognition of financial penalties is another important area. Currently, a fine imposed in one EU country can be enforced in another. What mechanism does the Ministry have in mind following the implementation of this instrument—should that ever come about, which seems highly unlikely—for recovering financial penalties imposed in another EU country? How will that compare with the recovery of financial penalties from non-EU countries at present?
Although these regulations appear complicated and technical, there is an important principle of mutual assistance involved. Among EU members, we have built up systems that protect the people of this country. These are all to be swept away and replaced by separate applications and so on. This seems an undesirable outcome that has not been given the publicity it deserves.
My Lords, in all sorts of matters, particularly perhaps in matters Brexit, it is not as fashionable as we might like either to be succinct or fair to one’s opponents. So as not to exacerbate the Alice in Wonderland world described by noble Lords, I would say that the Minister is in an unenviable situation. Surely we all know that the problems are not with this draft instrument but with any possibility of exiting the European Union without a deal. It would be a disaster in all sorts of areas—trade and other aspects of co-operation—but in the context of criminal justice co-operation, we all ought to acknowledge that the idea of no deal is particularly disastrous and dangerous for people in this country and in the European Union, especially for victims of violent crime and survivors of domestic abuse.
Having said that at the outset, I invite the noble and learned Lord the Minister to agree and to do his best with particular questions about the various areas of policy and co-operation covered here. We acknowledge that it is not about the instrument. We are in an unenviable position. The clock is ticking down and we seem to be no closer to a final scheme for what criminal justice co-operation will be. The problem is that the political declaration is vague on matters of security and justice co-operation. As we have heard from noble Lords, access to Europol and European criminal records is essential, as is access to the extensive database system. Perhaps we can all agree on this. I am sure that, in due course, the Minister will do so as well and he will suggest that this instrument and its provisions are not an ideal alternative to having a proper scheme for co-operation after Brexit.
If the Minister is able to do so, I wonder if he might discuss what the total cost to the UK authorities might be from not having, for example, access to the system of formal communication in relation to compensation for victims of violent crime. The Explanatory Memorandum makes a lot of store about the total number of requests in each relevant case. Can he assist on the total amount of compensation that has resulted in the past three years in relation to this request? Thare might give more of a sense of the importance and severity of the matters we are dealing with.
In relation to European protection orders, paragraph 7.3 of the Explanatory Memorandum states,
“the UK will no longer be able to issue requests to other EU Member States and expect them to be acted upon”.
This is predominantly about domestic violence. Can the Minister confirm that this change could make life less safe for the survivors of domestic abuse after exit day? Could the Minister perhaps articulate how travel restrictions would be placed on the perpetrators of domestic abuse in such a scenario—for example, on a man who is an EU citizen with a woman victim who is a UK citizen—without an EPO? Similarly, on financial penalties, does the Minister have any idea what the potential cost would be to the UK authorities for losing access to the framework?
In all this, I am making the point that it is not really fair to impugn the instrument itself but, as there are people beyond this Room who are still advocating a no-deal Brexit, it is none the less important to try to get the Minister’s thoughts on some of these matters.
I am obliged to noble Lords for their contributions. I begin by observing that my noble friend Lord Deben has misunderstood the purpose of these regulations. They are not concerned with the transfer of data or information or with access to it; they are concerned with what the courts do with it once they have it. I will elaborate on that in a moment.
In light of the observations that have been made, particularly by the noble Lords, Lord Thomas and Lord Thomas—this is a bit like a rugby commentary featuring Joneses, but I will not go there—and the noble Baroness, Lady Chakrabarti, I shall take each of the five relevant regulations’ directives in turn, pick up each of the points that have been raised and then come back to the issue of data and how that is being addressed.
The first is the victims of crime compensation directive. Let us be clear: in the event of a no-deal exit—I am not seeking or advocating that; I am dealing with the situation that arises in that eventuality, as the noble Baroness observed—any EU citizen who is the victim of a violent crime in the UK will still be able to proceed to make an application under the UK scheme in respect of a violent criminal act in the UK. Conversely, even though we no longer have the relevant directive in place, where a UK citizen suffers such an act in a member state that has ratified the European Convention on the Compensation of Victims of Violent Crimes, which is the preceding European Council convention, they will also be able to access compensation, and there are 18 EU members that are signatories to that convention. In addition, there are some member states that are not signatories to the convention but whose criminal compensation schemes admit of applications just like the UK’s for any citizen who suffers that violent criminal conduct within their country. There are at least two which fall into that category; I believe that they are Ireland and Latvia. There are in fact a total of 20 existing EU member states where it will be possible to continue applying for compensation under these schemes.
To follow up the point from the noble Lord, Lord Thomas of Gresford, the intention is that the CICA will support victims in accessing compensation from those countries where an application can be made—in other words, it will do essentially what it does at present, which is to assist the victim in directing how and where the application should be made in the circumstances. I readily accept that that is not a complete answer to the existing scheme; it is deficient to the extent that at least seven existing EU member states will not facilitate such an application. That said, it is important to put this into context. As the noble Lord, Lord Thomas, observed, not every application has been notified to the CICA in the UK. In so far as it is notified, though, we are aware that in the past year, 2017-2018 to the end of February, there were 59 requests for assistance, 29 notified unsuccessful applications and only two notified successful applications. I readily accede that not all those who made an application notified that fact and not all those who made a successful application notified that, so the data is limited. As a consequence we do not know the sums that were awarded in these cases because there is no requirement for notification. It is a limited compass and what will be in its place is not as good as what exists at present. Nobody is pretending otherwise, but it is appropriate that we put the statute book into proper form in order that people are not confused when they come to determine what their rights are in this context.
Turning to the European protection order and the point raised by the noble Baroness, Lady Chakrabarti, it is simply not possible to operate that scheme if we leave without a deal because under the terms of the relevant provision only the court of a member state can make a request and under the scheme it can make a request only to the court of another EU member state. In the event that we receive an application before exit, we will process it because it will have been competently made by the other member state and we will be receiving it at a time when we are a member state, but after exit we cannot make such orders because they will not be accepted as competent by the EU 27 states, and we cannot expect to receive any because they cannot competently make such a request of the United Kingdom once it ceases to be a member state. To put this into context, I should emphasise that this order is very rarely used. Four EPOs have been issued by the English and Welsh courts and the Northern Ireland authorities since this provision was implemented in 2015, and only two of those were recognised by the receiving EU state over a period of four years. In the same period, six EPOs were received by the courts from other member states of which four were recognised and two were declined, so we are talking about tiny numbers in this context.
On the European supervision order, I would, with respect, seek to correct the noble Lord, Lord Thomas of Gresford. The supervision order is directed to pre-criminal trial matters such as bail. It does not apply to any post-criminal trial order of the court. The reference to supervision is perhaps a little misleading in that context. It deals essentially with a situation in which somebody is placed on bail under bail conditions and the relevant supervision order can be enforced in another EU member state with the result that a citizen of an EU member state who is subject to bail may move into another EU member state without breaching the relevant conditions of their bail order. That is essentially what it deals with. It has again been very rarely used since implementation in 2015. The number we had received at the time the regulations were laid was four since 2015. Interestingly, a further six have emerged since the regulations were laid, I think five of which have come from Cyprus. I do not know whether they all pertain to the same group, but the numbers are very small. In turn, the courts in England and Wales have issued two such supervision orders, but neither is extant. They have both expired because the relevant parties have been discharged or have gone through the criminal trial process. We do not anticipate that this will have any major impact.
The financial penalties order came into force in 2012, since which time we have received about 3,759 requests for enforcement of civil penalties, most of them from the Netherlands, and we have issued about 3,400 requests for the recovery of financial penalties, most of them to Poland.
We have one point to bear in mind. Where we issue a request for a financial penalty to be recovered, we do not get the money. It is retained by the EU member state that makes the recovery. To that extent we do not get a financial benefit, but where we do benefit is in the event that we are requested to recover a financial penalty; we can then retain it. The sums involved are relatively modest. The average fine is in the region of £300 based on figures collected in 2015. If that is applied to the number of requests we are getting, we are still talking about a sum of approximately £100,000. However, I emphasise that these estimates are approximate. As I say, it is not a case of us recovering the money that has been imposed by a UK court for reasons best known to the European authorities, I am sure; rather, the proceeds go to the jurisdiction that actually recovers the funds in the event that they do so.
On the Minister’s last point, the ability of a court to fine someone who is here knowing that it will be enforced of course means that the court considers that a financial penalty might be more desirable than the imposition of a short term of imprisonment. Bearing in mind the desire to get rid of or reduce the number of short terms in prison, has anyone looked at the impact that imposing fines that we know will not be enforced will have on the policy of trying to reduce short terms of imprisonment?
I do not believe that any distinct analysis has been made of that issue, but the noble and learned Lord will be well aware that the problem of recovering financial penalties is hardly limited to people who have gone to Poland or the Netherlands. There is a far more fundamental problem with recovering financial penalties within the United Kingdom. That is much greater in its extent and impact on the sentencing policies of the courts than that of the few people who move abroad after a financial penalty has been imposed and not paid. Of course we are looking at the whole area of sentencing policy with regard to the issue of short-term sentences, and we can only encourage the courts to move away from them in circumstances where they have confidence in the imposition of non-custodial sentences, which of course include community orders and financial orders. I would suggest that this is a relatively small aspect of a bigger problem, but I acknowledge the bigger problem. It is one that requires to be analysed fully as we take forward our sentencing policy.
That takes me neatly or otherwise on to the final point, which is the question of taking into account prior convictions. Just to be clear: this regulation addresses the question of what the court does once it has the information and the data. Indeed, the question of data transfer is, I am pleased to say, a matter for Home Office Ministers.
My Whip has just reminded me that I speak for the Government. Of course I do—with relish. Be that as it may, Home Office Ministers have in fact already brought forward an SI on plans to deal with the transfer of data under the ECR and that has already been debated and approved. But perhaps it is more important to point out that, with regard to the transfer of data concerning previous convictions, that can be secured under a European Council directive and therefore there remains a mechanism by which we can address the matter. The information flows will remain and travel under the mutual legal assistance convention of the European Council.
I come now to the purpose of the regulation itself. Under the existing European directive, the courts are bound to take account of a previous conviction in another member state. That is implemented by way of Section 143(2) of the Criminal Justice Act 2003. In the event that we are looking at convictions that occurred in a non-EU member state, the courts have a discretion to have regard to that previous conviction pursuant to Section 143(5) of the 2003 Act. The point that this regulation addresses is that, if we cease to be an EU member, we are no longer tied into the scheme for EU member states pursuant to Section 143(2) of the 2003 Act, but of course we will remain in a position to deal with this as a discretionary matter, as we would with other third-party countries.
The point of this regulation is simply that there is no logical reason for treating one set of third-party countries differently from another set: that is why the regulation brings the position with the EU 27 states into line in the event that we leave without a deal. That is what we are seeking to address, but I underline the point I made in my opening speech that this regulation is not to do with the transfer of data or access to information but with how the courts deal with it once they actually have that data or information. I hope that that covers all the points that have been raised by noble Lords.
Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc.) (EU Exit) Regulations 2019
Considered in Grand Committee
My Lords, as before, this instrument forms part of the Government’s ongoing work to ensure that there are functioning domestic laws in the event that the United Kingdom leaves the European Union without a future deal on civil judicial co-operation. Of course, as I have indicated before, the Government’s priority is to secure that we leave the European Union with an agreement that will address these matters. This instrument relates solely to the situation in which we have to accommodate no-deal exit preparations. In the event that we enter an agreement and there is an implementation period, the coming into force of this instrument will be deferred until the end of that implementation period. Of course, its terms and applicability would be considered in the light of any future agreement secured during the implementation period.
The instrument relates to the existing European Union rules that determine which country’s laws apply when citizens have cross-border obligations, such as when they are buying or selling goods and services. They apply to both contractual and non-contractual matters. An example of a cross-border contractual matter would be a contract for the sale of goods by a company in France to a company in England. An example of a non-contractual matter would be the duty of care owed by a party in one EU country to a client based in another—for example, not to give negligent advice that causes financial loss. The rules are known as applicable law or conflict of law rules, and are entirely separate and distinct from the jurisdiction rules that determine which country’s courts should hear a cross-border dispute. They are an important part of the EU civil judicial co-operation framework and they enhance legal certainty, which in turn underpins trade and commerce between member states—and, indeed, between member states and the rest of the world.
The EU applicable law rules are currently found in two main instruments: the Rome I and Rome II regulations. The Rome I regulation on the law applicable to contractual obligations is a directly applicable EU regulation. It applies to contracts formed on and after 17 December 2009. It is the current law in all EU member states other than Denmark, which opted out of this regulation. I should note that the Rome I regulation was preceded by the 1980 Rome Convention on the Law Applicable to Contractual Obligations, a treaty to which the UK and a number of now-EU member states are still contracting parties. That treaty came into force in the United Kingdom on 1 April 1991 and was implemented through the Contracts (Applicable Law) Act 1990. It continues to apply to any contracts entered into between April 1991 and 16 December 2009. Of course, such contracts might conceivably still be in force today; also, it still applies to contracts with Denmark because it opted out of the subsequent regulation. The Rome II regulation on the law applicable to non-contractual obligations is also a directly applicable EU regulation. It commenced on 11 January 2009 and, like Rome I, is the law in all EU member states other than Denmark.
If I may, I will refer simply to the “Rome rules” in addressing this matter. In each case, the Rome rules start from the premise that parties subject at least to certain limitations are entitled to choose the country’s law that applies to their contractual or non-contractual obligations. They operate so that, provided that the requirements of the rules are complied with, their choice of law is valid, will be respected by the courts of a participating EU member state and will be applied to determine any dispute. Where the parties have not chosen a country’s law, the Rome rules lay down a set of default rules to enable parties and the courts to determine which country’s laws will apply.
There are both general and specific default rules. For contractual matters, the general default rule in Rome I is that the applicable law should be the law of the country with which the contract is most closely connected. For non-contractual matters under Rome II, it is the law of the country in which the damage occurs. In addition, special rules apply to particular types of contractual and non-contractual matters. For example, Rome I contains rules specific to insurance contracts, consumer contracts and employment contracts, while Rome II contains rules specific to product liability, unfair competition and environmental damage.
Although part of the EU civil judicial co-operation framework, the Rome rules differ from the other EU rules in that framework in one important respect. The Rome rules do not, for the most part, rely on reciprocity to operate effectively between member states. Participating EU member state courts must apply the applicable law determined by the rules, irrespective of whether that law is the law of an EU member state or a non-EU country. For example, if you are in France, the French courts are obliged to apply those rules even though your choice of law may be Russian, American or that of any other state outwith the EU. That is essentially why we are able to retain these rules in domestic law going forward.
This statutory instrument implements the Rome rules in the event that we leave without a deal by retaining the rules as domestic law, post exit. Of course, a benefit of that is ensuring that UK citizens, businesses and consumers continue to have clear and workable rules on which law applies to cross-border situations they may find themselves in. Consequently, when we leave the EU and in the event that we do so without a deal, the Rome I and II regulations will effectively be retained as domestic law; under the provisions of the withdrawal Act 2018, they will become retained European law.
However, certain amendments are required because there will be some differences in how the Rome rules are applied by courts in the United Kingdom and those in EU member states, post exit. Due to the way in which the EU rules are constructed, EU member states may treat UK cases slightly differently in some specific instances, for example where Rome I and II refer specifically to member states or the European community. We will have to accommodate that when we bring the matter into domestic law; we have therefore amended these references. Our status as a contracting party will alter but we will have those rules in our domestic law as retained European law.
However, the position regarding the Rome convention —the earlier convention—is different because our status as a contracting party to it will terminate as a matter of international law once the UK has left the EU. The convention will no longer be binding on the United Kingdom. The approach taken in this instrument is that the substantive rules of the convention will continue and are brought into domestic law but, as I noted before, they apply only to contracts entered into up to 16 December 2009 and in respect of Denmark. One change to the convention provisions will be that UK courts will no longer be in a position under the convention rules to refer questions of interpretation of the 1980 Rome convention to the Court of Justice of the European Union.
An impact assessment has been prepared for this instrument and published. It concluded that the impact on business and other bodies will be negligible. The amendments to retained EU law and domestic legislation in this instrument merely correct EU exit-related deficiencies with regard to the Rome I and Rome II provisions, and will continue to be applied in the United Kingdom as domestic law, post exit.
I should also mention consultation. There is a large measure of support from the Law Society and the Bar Council of England and Wales with regard to this matter. The draft instrument was published and deposited in the House Library in March 2018. A small number of comments were received in response to that publication. Those comments focused on areas where the retained version of the rules in the UK will diverge from the rules as they apply in EU member states. The comments made in that context have been taken up. One example is in the context of the derogations from the Rome rules; for example, a derogation in respect of insurance contracts if the relevant insurance is in a member state. We will cease to be a member state, so we have had to take out the reference to “member state” and put in “a relevant state”; a relevant state is a member state or the United Kingdom for those purposes. Of course, if the rules continue to apply in the EU 27, that does not include the United Kingdom because it will no longer be within the relevant definition.
Our approach has been to retain in domestic law as far as conceivably possible the relevant Rome I and Rome II provisions, and to apply the provisions of the convention. I beg to move.
My Lords, I think it very appropriate that the Ministry of Justice should decide as a principle as far as possible to preserve the existing rules as they currently apply in the UK immediately after exit day. The purpose is,
“to provide maximum certainty and stability for businesses and individuals”.
However, I am concerned about the impact on business, even though the impact assessment does not throw up anything in particular. I am always very conscious of the strength of Hong Kong, which built its reputation and financial power on the fact that it uses English common law as the basis of its legal system. That means that contracts are readily made and understood, which has been of great economic benefit to Hong Kong. I notice that the impact assessment refers to the,
“strong international reputation as a centre of legal excellence”,
that this country currently enjoys. Anyone connected with the law knows that our legal profession has a great reputation, English law is frequently the preferred law and English courts are used even though a particular dispute has nothing to do with England, so this is a very profitable part of the legal world.
I shall take as an example one matter referred to in paragraph 7.7 of the Explanatory Memorandum, which refers to,
“the law applicable to non-contractual obligations arising from infringements of unitary EU intellectual property rights … Trade Marks … Design Rights and … Plant Variety Rights. These unitary EU IP rights will no longer apply in the UK … and UK courts will no longer hear proceedings relating to such rights after exit day”.
It seems to me that there is a whole area of law which may be cut out from the jurisdiction of English courts and the services of English lawyers.
That is compounded by the fact that these regulations remove the ability of UK courts to refer questions of interpretation of the 1980 Rome convention to the Court of Justice of the European Union—to my mind, that is a significant restriction—just as the interpretation of retained EU law generally cannot be decided by that court. We are going from a well understood legal system to something that is much more limited than we have been used to.
On the broad basis, however, the fact that the rights are generally retained is to be welcomed.
My Lords, in an attempt once more to be succinct, I can echo the point that the noble Lord, Lord Thomas, was making. The concerns from this side are essentially about regulatory diversion. I do not think anybody is going to object to these regulations; the concern is with ongoing regulatory divergence and its potential impact, whether it is on unfair competition cases or IP cases and so on. Perhaps the Minister might consider briefly that risk of regulatory divergence in his reply.
In relation to insurance, the Explanatory Memorandum says:
“The Government engaged with representatives of the insurance industry”,
in relation to “insurance risks”. Can the Minister outline the types of risks identified in that engagement? We are told that banks and insurers are shifting hundreds of billions of pounds in assets out of the UK ahead of exit day to keep their contracts and policies within the EU area. We have learned that Aviva, Britain’s second largest insurer, will transfer around £9 billion in assets to a new Irish company, for example. Does the Minister agree with having that sort of risk to our economy? Does this reflect the concern about different outcomes that could result from insurance contract cases being resolved differently in our courts and those of our EU partners in the future?
As I say, my general proposition is on the risks of regulatory divergence, but one can hardly object to the instrument itself.
I am obliged to the noble Lord and to the noble Baroness for their observations. As the noble Lord, Lord Thomas, observed, there will no longer be scope for a reference to the Court of Justice of the European Union over the construction or interpretation of the convention. Given that the convention has been there since 1980, that may already have happened but we cannot say that it would never have happened again. But I say to the noble Lord—and I address this to the noble Baroness, Lady Chakrabarti as well—that, although there is no longer a basis for a reference by a UK court to the Court of Justice, the UK courts may of course have regard to the decisions of the Court of Justice going forward. Quite sensibly, they would have regard to decisions that bore upon the interpretation of the convention, or of Rome I and II as well. That would be of relevance to the incorporation in domestic law of provisions which had their genesis in those European Union provisions.
The immediate matter of insurance is quite narrow and concerns one of the limited derogations from the freedom to choose your own law, as it were. There is a limitation about choice of law where an insurance contract contains provision to cover risks located in the European Union. Essentially, there cannot be an insurance contract that covers risks in an EU member state where the law of Russia is chosen as the relevant law for resolving the contract. The difficulty faced in drafting these regulations was that the reference under the derogation was to a risk in an EU member state. We were going to be concerned not only with a risk in an EU member state but with a risk in the United Kingdom. This is why we have had to move from reference to “member state” to “relevant state”, which is, in turn, defined by reference to member states and the United Kingdom. It is a fairly narrow move, which I do not believe is, of itself, going to impact on the choice or application of law with regard to the type of contract to any material extent. I do not see how it would impact on the transfer of assets such as was referred to by the noble Baroness, Lady Chakrabarti. This is not what this regulation is addressing.
I acknowledge that, if we leave the European Union without a deal—which is not this Government’s preferred option—there will be issues for banks, insurance companies and others with regard to their future arrangements in the European Union. No one would take away from that. That said, this is essentially implementing an existing scheme with just those changes necessary to make sure it operates in domestic law. I do not believe this is going to take away from the attractiveness of English law—or, indeed, Scots law—as a system for the resolution of commercial disputes. English law in particular remains the lingua franca for charter parties, major commercial contracts and so on. Because of the flexibility of common law, it will continue to be used for this reason. I do not see that this is going to result in any major change. No doubt there are options when it comes to choosing a common law system—such as the law of Hong Kong, Singapore or New York, for example. That already exists and we deal with it.
Noting all the observations that have been made, I beg to move.
Architects Act 1997 (Amendment) (EU Exit) Regulations 2019
Considered in Grand Committee
My Lords, these regulations were laid before both Houses on 18 February 2019. They are part of the Government’s programme of legislation to ensure that if the UK leaves the EU without a deal and an implementation period, there continues to be a functioning legislative and regulatory regime.
Leaving the EU with a deal remains the Government’s top priority. This has not changed but the responsible thing to do is to accelerate no-deal preparations to ensure that the country is prepared for every eventuality. These regulations are made using powers in the European Union (Withdrawal) Act 2018 to fix legal deficiencies in retained EU law to reflect that the UK will no longer be an EU member state after exit day. Our architectural sector is a global leader and plays a significant role in the British economy, with an export surplus of £437 million in 2015 and involvement in key global projects such as the Neues Museum in Berlin and the Smithsonian National Museum of African American History & Culture in Washington DC.
I trust that noble Lords will allow me to provide a brief overview of how the system works at present. The mutual recognition of professional qualifications directive enables EEA nationals to have certain qualifications recognised in another member state. This includes the recognition of suitably qualified architects. This is a reciprocal arrangement, allowing UK and other EEA nationals the opportunity easily to register to practice across Europe and UK practices to recruit the best European talent. The Architects Act 1997 sets out the specific procedures for registering architects in the United Kingdom. The recognition of qualifications of EEA applicants is carried out by the competent authority, the Architects Registration Board, an arm’s-length body of my department.
There are currently three routes to recognition for an EEA architect wishing to register in the United Kingdom. The main route to recognition in the United Kingdom for an EEA-national architect is through an automatic recognition system. To qualify for automatic recognition, an EEA national needs to meet three criteria. They must have an approved qualification—that is, one listed in Annexe V of the EU’s mutual recognition of professional qualifications directive—access to the profession of architect in an EEA member state and a statement from their home competent authority confirming that they are fit to practice.
A second route, known as general systems, provides recognition for EEA nationals who do not have an approved qualification. General systems allows EEAs national to map their qualification and experience against UK standards with the Architects Registration Board. An applicant is offered compensation measures, that is, the opportunity to undertake additional training to make up any differences in qualification. This is a long and costly process, which on average only four people pursue annually.
The third route facilitates the temporary or occasional provision of service. This allows EEA professionals to work in the United Kingdom in a regulated profession on a temporary basis while remaining established in their home state. Typically, fewer than 20 EEA architects pursue this option at any one time.
If the UK leaves the EU without a deal, the mutual recognition of professional qualifications directive will no longer apply in the United Kingdom. This statutory instrument ensures that UK architect practices can continue to recruit the best European talent and maintain their global reputation as world leaders in the field of architecture.
The policy intention is to provide the sector with confidence that almost all applicants can register in the same way after exit day as they do currently. This is the approach favoured by the sector, which recognises the skills brought by EEA architects as contributing positively to the UK’s reputation as a world leader. The instrument also allows applications made before exit day to be concluded under the current system as far as possible. For future applications after EU exit in a no-deal scenario, an individual holding an approved qualification will be able to join the UK register of architects if they have access to the profession of architect in their home state. The instrument will achieve this by freezing the current list of approved qualifications in the EU’s mutual recognition of professional qualifications directive. This approach will preserve access for UK practices to EEA-qualified architects. This process will be open to anyone with an EEA qualification and access to the profession in the corresponding EEA state, regardless of citizenship. Although temporary, this approach will provide continuity to the sector in the immediate period after we leave the EU with no deal and will be reviewed after exit.
We will remove general systems as a route to registration—noble Lords will recall that this is the currently the second route for qualification, but only four or five people pursue it in any one year—as it is a long and costly process which is not utilised often. It places a significant unnecessary burden on individuals and the Architects Registration Board. Therefore applicants without an approved qualification, including applicants who would have previously qualified for acquired rights, will now be able to pursue the prescribed exam route and undertake further examinations and periods of study to allow registration. This is the route currently utilised by third-country nationals.
We will encourage the regulator, the Architects Registration Board, to maintain its existing effective relationships with other EEA competent authorities. The instrument provides a legal basis for the ARB to continue communicating with other EEA competent authorities to facilitate recognition decisions, ensuring that it can verify that the applicant meets the UK’s high standard of competence.
This instrument places a requirement on the applicant to obtain the relevant information from their home competent authority, should the Architects Registration Board not be able to secure it. This is because currently the Architects Registration Board facilitates information sharing through the EU internal market information system. Without a deal we cannot be confident that the Architects Registration Board will continue to have access to this important information-sharing system. The instrument will remove the right of temporary and occasional provision of services as without guaranteed access to information systems and an agreed process for reciprocation, this route becomes unwieldy and of less value. This will have minimal impact on the sector as only 12 people are currently practising on that basis. Historically, fewer than 20 people have practised as an architect in the UK on a temporary and occasional basis at any one time.
Our overall approach to these amendments is in line with the policy and legal intent of the withdrawal Act and enacts the policy that the Government set out in a guidance document in January 2019. These regulations serve a very specific purpose: to prioritise stability and certainty if the United Kingdom leaves the EU without a deal or an implementation period. The regulations will ensure that the UK continues to have access to top European talent after we have left the EU, thereby helping to maintain the UK’s reputation as a global leader in architectural services. Thereafter, they provide a stable basis for Parliament to change the law where it is in the UK’s best interests to do so.
This instrument is necessary to ensure that the Architects Act continues to function appropriately if the UK leaves the EU without a deal and an implementation period. I hope that noble Lords will join me in supporting the draft regulations. I beg to move.
My Lords, I thank the Minister for his explanation. At present, one in six architects in the UK IS from the EU 27. Indeed, the Royal Institute of British Architects estimates that in London and the south-east the proportion is as high as a quarter. Many are employed by large firms with international portfolios of work, particularly on big infrastructure and construction projects such as airports. The contribution of EU 27 architects is not just numerical; it also relates to cultural, language and specialist skills, such as interior design or acoustics, which give high added value to the UK’s capacity to export its architectural services worldwide. Retaining access to EU 27 architects will therefore be very important to the continued prosperity of the architectural services export sector, which depends on having cosmopolitan skills available to deploy in designing schemes that will be built right across the world. One estimate is that this generates around £2 billion of export earnings a year. In addition, there are EU 27 architects resident abroad who are employed on UK building projects. Without them, work would be delayed and the industry’s capacity severely reduced.
This statutory instrument at least recognises that there is a looming problem. It could be said to be making the best of a bad job by attempting to continue ready access for qualified architects from the rest of Europe to the UK. However, paragraph 2.10 of the Explanatory Memorandum relates to individuals’ ability to come to the UK because they will be subject to Her Majesty’s Government’s immigration policy. In other words, first, there will be an income limit; secondly, there will be access only via an employer’s application and payment of an annual fee; and, thirdly, there will be no right to move from job to job. That last point is particularly relevant in this sector, where particular expertise may be needed only for a short time on any one project and it would be routine to move on to another firm with a similar project at the right stage for the exercise of a specialism. There is serious concern within the construction industry that the Government do not acknowledge the importance of the sector in delivering every other policy objective of homes, capital investment in the NHS and capital investment in education, nor do they seem to understand the key role that migrants at every skill level of the industry play in delivering the key outcomes that the Government want.
I have three questions for the Minister. First, does he recognise that no deal puts at risk not just the delivery of key government policy objectives in many fields but will undermine the export potential of a flourishing architectural services sector? Secondly, what assessment have the Government made of the median salary paid to EU 27 architects in the UK, and what is his department’s estimate of the reduction in numbers of architects coming to the UK as a consequence of this imposition of the universal immigration salary cap on this group?
Thirdly, will he look again at why the Government have decided to end the right to an individualised skills assessment for those coming from the EU 27 who may not have fully completed their accreditation? That is known as general systems, as set out in paragraph 2.12 of the Explanatory Memorandum. This has the appearance of pettiness, cutting out a route for a minority of potential employees for no good reason and simply souring the atmosphere further. I hope the Government understand that what may appear to be a short and simple statutory instrument in relation to architects could actually have profound implications for the international status and competitiveness of the architectural industry.
My Lords, I declare an interest as an honorary fellow of the RIBA.
I agree very much with what has just been said. Obviously my noble friend is presenting this as a necessary statutory instrument were we to leave the European Union without a deal, and in that sense no doubt we will have to pass it. However, we have also to say that it is an interesting example of the Government’s amazing ability to recognise that there is a need and produce a way of making sure that everyone who is an architect can come here, so we are not going to shoot ourselves in the foot, without saying the key thing, which is that our architects cannot go there. We are becoming an island that wants all the advantages but wants to carry none of the responsibility.
I know my noble friend will not like this, but I say to him that I am sorry that he, of all people, should be asked to present a measure that is another indication of the sense of decline that this nation now has. Instead of recognising that in so many things co-operation, common views, common standards and common deals are necessary, we are busy trying to pretend that there is an alternative route—a kind of 19th-century protectionist route—keeping the opportunity to gain advantages from other people but not expecting to play our part in common standards and the like. I am sorry he has to do it—I am sure that he finds it as difficult as I would were I in his position—but I remind noble Lords of the seriousness of what this actually means. It means becoming a different kind of country, one which is much less worthy than the country that first entered the European Union.
It is, of course, very disadvantageous, because architects are not able to move from one company to another. The point that the noble Lord has just made is very important, and I am surprised that the Government, in their so-called consultation, spoke only to the register itself, the technical organisation that deals with these things. They do not appear to have spoken to the RIBA. Of course, we have a rather curious system in Britain, whereby our professional body is not the regulator. That is all to do with some ridiculous concept that somehow or other, because there is a tiny number of architects who are not members of the RIBA, we have to have a separate organisation to deal with this. Normally, both are consulted, and I am surprised that the RIBA was not consulted.
Well, if it were consulted, why is it not listed in the Explanatory Memorandum, as far as I can see? Perhaps I have misread it—I apologise to my noble friend if I have—but I think it says that the ARB was consulted, or that officials
“have been in regular contact with ARB”.
The ARB is constantly referred to, not the RIBA. I have declared my interest, but it happens to be true that the RIBA is the body to which most architects would look for advice and to which they have given their concerns.
As this is not going to be a both-ways arrangement and because the Government do not want a no-deal exit from the European Union—although what the blazes they do want is increasingly difficult to understand, and I suspect that the negotiations would have gone much better if people had known in the first place what they wanted, because clearly not until very recently did anybody know anything about what we wanted—can the Minister give me an assurance that one of the things we will be seeking immediately in negotiations for some sort of reasonable exit—which of course would leave us in a worse position than we are in at the moment—but even if that was so, would be to make this a reciprocal arrangement and that that reciprocity would be at least as good as the present reciprocity?
That leads me to my last point, which is on the Immigration Rules. The architectural profession is remarkably badly paid. If you look at the average wage of an architect, it is remarkably low for a member of a professional body. So I am concerned, as was the noble Lord, Lord Shipley, that we should not allow the Immigration Rules to interfere with our ability to recruit from the rest of Europe. It seems to me that this is a serious double jeopardy system. Why do we have to have these rules? Surely we could have had, in these regulations, a very simple system which said that if you got a job with a British architect registered with the ARB you would be able to have that job. Why do we have to double-do it? Is there not a much more sensible way, which is merely to do exactly what we do at the moment and say publicly that we would like this to continue to be reciprocal, although we do not have the ability to make it reciprocal ourselves?
I remind my noble friend of the figures that have been quoted: it is likely that one in four of architects in the London area come from the rest of Europe, so this is no minor matter. Therefore, I hope that we can have assurances that the Government will seek, under any agreement, to have reciprocity and, secondly, that the Minister will look again at the idea that we have to insist upon going through our immigration arrangements, when we could have a perfectly simple system, like the one we have at the moment. We should look very carefully at any income limit in any case because it is likely to affect newly-qualified architects from the rest of Europe in a way that would do our profession no good. It would interfere with, and indeed endanger, the very large amount of money that Britain earns through the primacy of our architectural profession. When you are talking about what may be £2 billion, you are talking about a very serious amount of money. If we cannot recruit newly-qualified experts from the rest of Europe to a shockingly underpaid profession, that would do us a great deal of harm.
My Lords, not for the first time, Newcastle is united in this Grand Committee. I think we would both welcome the noble Lord, who has characteristically analysed the Government’s proposals in a very effective way.
This instrument will freeze the list of architectural qualifications that are recognised immediately before exit day in the event of a no-deal Brexit. As a result, an individual holding one of those qualifications will be eligible to join the UK register of architects if they have access to the profession of architect in their home state. This will allow access to the workforce of EU-qualified and EEA-qualified architects. The register of qualified architects of the UK held by the Architects Registration Board currently includes 40,650 members, 17% of whom were admitted under EU directive procedures. Given that significant number, it is astonishing that no impact assessment appears to have been prepared for this SI. The UK must of course continue to attract the best talent after Brexit and have an immigration system that responds to the needs of industry, especially in the context of the architectural sector. The London’s Architectural Sector report states that the city’s architecture industry is worth £1.7 billion and is growing at 7% every year. That figure is set against the industry’s total value nationally of £4.8 billion, a significant contribution to the economy nationally.
The SI makes little attempt to make up for the damage that the industry has faced since the referendum, which has caused an alarming amount of uncertainty for businesses in the last two and half years. Since the referendum, projects up and down the country have been postponed as this period of chaos has badly damaged the investment market. An article on Consultancy.uk referred to Global by Design, published in 2018 by the RIBA, which said that 68% of architects have already seen Brexit impact their revenue stream as they have had projects put on hold and moreover, crucially, that 74% of architects regard access to the EU single market as necessary if the industry’s international workload is to grow. Already 40% of practices have had projects in the EU cancelled since the referendum.
The regulations fail to protect the recognition of UK-qualified architects’ qualifications in the EEA in the event of a no-deal Brexit. Those architects will have to rely on the individual registration policies of the 27 member states. The Government must look to establish a new mutual recognition agreement with the EU as soon as possible in order to provide reciprocity, and a date for that would be very welcome. I will be interested to hear the Minister’s response on that issue.
The Explanatory Memorandum states:
“The applicant’s ability to establish in the UK will be dependent on Government immigration policies”.
However, the Government’s immigration Bill has stalled and a £30,000 salary requirement for skilled migrants has been suggested. How many architects from EU or EEA countries living in the UK earn more than £30,000 now? How many architects have already registered with the Government’s settled-status scheme? Being a tier 2 sponsor for those earning more than £30,000 is difficult for many architecture firms because the process is lengthy and expensive. Have the Government done any work with the sector and the RIBA to assess exactly how much it will cost and whether the sector can bear the cost? According to the RIBA, the number of EU architects registering to practise in the UK has dropped by 42% since 2016, and 60% of them here at the moment say that they would consider leaving. That would damage architecture as a service both in this country and abroad; it would clearly suffer.
Architectural qualification requirements are frozen during the review period. How long does the Minister expect that period to last? How will architects come and work in the UK with new qualifications during this period? Paragraph 2.14 of the Explanatory Memorandum states:
“After EU exit, the ARB may lose access to the Internal Market Information (IMI) system. This facilitates communication between competent authorities. As a result, this instrument places the requirement to provide written verification from their home competent authority on the applicant should ARB be unable to secure it directly from the relevant competent authority”.
What assessment have the Government carried out to determine the ease of getting this written verification? Does it differ between authorities? Paragraph 2.12 states:
“This instrument removes the registration route of General Systems, which enables EU and EEA applicants who do not meet the automatic recognition criteria to work with the ARB to map what experience they do have against the UK criteria, and gain the experience necessary”.
Will the ARB offer any additional help to get candidates to work in the UK?
Finally, what estimate have the Government made of Brexit’s impact on UK practices and individuals currently, or potentially, working in Europe? What steps, if any, are they taking to create a new system including a reciprocal system of accepted professional qualifications?
My Lords, I thank all noble Lords who responded to the SI. I will seek to deal with the various points they have made.
First, the noble Lord, Lord Shipley, rightly emphasised the importance of qualified architects from the EU 27. Of course, this measure goes a bit beyond that because it covers EEA-qualified architects from Liechtenstein, Norway and Iceland too. Switzerland is in a similar position but the EU 27 countries make up the most significant part of the regulations. I do not deny that the regulations are important for the United Kingdom—indeed, I would affirm it—because of the impact they would otherwise have on individuals practising here or seeking to do so in future, and because of the importance of this sector to the UK economy. The regulations are therefore important for those positions.
Like other noble Lords, the noble Lord referred to the general immigration position, rather than anything specific to architects as such. Reference has been made to the £30,000 threshold. I should say that as things stand, it is not the defined and final position of the Home Office. Rather, it is a recommendation of the Migration Advisory Committee so we will feed in information regarding different sectors. We are working with our professional business service colleagues in BEIS to collect information from architecture firms around the country on what the threshold should be. I agree with my noble friend about the position of architects as a profession: on the whole—with exceptions, of course—their earnings tend to be on the low side. That will certainly be a relevant factor and one we would wish to pursue.
The noble Lord went on to discuss the recognition of the general systems in a no-deal scenario. He could not understand why we were not pursuing that. I am not sure whether this was grasped, and it may be my fault, but I emphasise that we are seeking to freeze the qualifications that are recognised. This does not mean that those who go on to get those qualifications later on cannot then practise in this country. They can while this remains the legal position, so after this is passed it would not debar anyone with these qualifications from practising in the UK. Indeed, while this remains the law it seeks to facilitate that. It is not those people who already have the qualifications; it is recognising those qualifications. Anyone getting that qualification later on will certainly be able to practise in the United Kingdom. I remind noble Lords that the number of people using the general systems qualification is four or five a year. Of those who make inquiries about it, 96% do not pursue this route because it is very cumbersome and difficult, so it is viewed as better that they qualify in the way we are setting out.
I was automatically suspicious when my noble friend Lord Deben referred to the Government’s “amazing ability”. I knew there was going to be a sting in the tail and sure enough there was, but my noble friend made very fair points, as he always does, and he will not be surprised to know that I agree with him that a no-deal scenario is far from desirable. This is being put in in case that is the situation we are in; it is certainly not something I or the Government want. He also talked about the legal position in relation to income, which I think I have already dealt with.
My noble friend then went on to deal with some other aspects. He asked if I could guarantee that the Government are seeking reciprocity of standards; I certainly can. We already have a significant undertaking from Ireland—of course, it is not the only significant state but it most certainly is significant—that it will continue to recognise British qualifications for those who started their qualification before the referendum in June 2016, so that position is already guaranteed. With the ARB we are talking to all other member states with a view to ensuring that there is reciprocity. That is certainly the desired position, and from the discussions we are having there are indications that that will be fruitful. We have not concluded those discussions yet, but there is good progress on them. My noble friend also referred to architects being badly paid, which I have dealt with.
The noble Lord, Lord Beecham, made a point about the internal information system to which we will not have access if we come out with no deal. I dealt with that in the course of the presentation, saying that we would require verification from member state bodies in relation to individuals who are qualified through the EU 27 or the EEA—the other three countries—because we will not have automatic access to the internal information system. It is something we would seek to agree. If we come out with a deal, we would certainly seek to agree it in an implementation period. Coming out without a deal, it would be in jeopardy; I fully accept that.
A question was raised by my noble friend and others about the consultations we have had. I apologise if this is misleading in the documentation, but we have spoken with the ARB, the Royal Institute of British Architects and some practices such as Foster and Partners, Allies and Morrison, David Chipperfield and others. We have had quite a bit of consultation, and I apologise if that is not clear in the documentation.
The noble Lord, Lord Beecham, talked about the absence of an impact assessment. This is totally in line with the general requirement in relation to impact assessments, which are not needed if the impact is less than £5 million a year. The indication we have had—and this has been verified within the department—is that it is significantly less. It is probably running at about £500,000 a year for the extra staff needed to deal with the qualification process that will now not be centralised in the way it was previously. Publicity runs at about £17,000 a year and, with a drop in the income from fees, is calculated at some £519,000. In total, this is in line with the position on the better regulation framework. Regulation 2 sets out the limit.
I hope that this deals with the points which have been raised. I understand noble Lords’ concerns, but this is necessary in case of a no-deal scenario. I agree that we do not want no deal. This is, therefore, very much second best. There is work to be done on reciprocity which is what we are seeking to do at the moment. We are speaking to the ARB and, with them, to other member states to seek to ensure that this is the position. If there is anything I have missed, I will happily cover it in a letter to noble Lords, perhaps restating some of the points which I have made. With that, I commend the regulations.
Flags (Northern Ireland) (Amendment) (EU Exit) Regulations 2019
Considered in Grand Committee
My Lords, the purpose of this instrument is to remove the legal requirement for Northern Ireland government buildings and court buildings to observe Europe Day—9 May—as a designated flag-flying day after the UK has left the European Union.
Flag-flying from government buildings and court buildings in Northern Ireland is regulated by the Flags Regulations (Northern Ireland) 2000. These regulations provide that on certain designated days the union flag—and, in certain circumstances, other flags—may be flown on government buildings. For the purposes of these regulations, a Northern Ireland government building is defined as a building that is wholly or mainly occupied by members of the Northern Ireland Civil Service. In 2002, the flag-flying requirements in the 2000 regulations were extended to court buildings in Northern Ireland.
The instrument is being made under Section 8(1) of the European Union (Withdrawal) Act 2018, which makes provisions to deal with arrangements no longer appropriate after the UK leaves the EU. It is worth noting that Europe Day will cease to be a designated flag-flying day across England, Scotland and Wales following the UK’s exit from the EU. The Department for Digital, Culture, Media and Sport has already amended its guidance to that effect.
When this instrument was first laid, the Secondary Legislation Scrutiny Committee recommended that it should be upgraded to the “made affirmative” procedure so that it could be debated carefully. This is why we are here this evening. I also stress that the power to make these amending regulations under the EU withdrawal Act does not come into force until after exit day. Therefore, subject to the will of Parliament, these regulations will not be made until after exit day has passed. There is every possibility that Europe Day will be marked this year. I beg to move.
My Lords, the Minister may be disappointed and surprised to learn that we do not support this statutory instrument. We think it undesirable and unnecessary. None of us can deny that flags in Northern Ireland are a very sensitive issue. Our sister party in Northern Ireland suffered the consequences of the dispute in Belfast in 2012 when its offices were burned out.
This is about a specific flag—the Europe flag—and a specific day. I am very concerned that DCMS has issued guidance—which I presume is not legally enforceable—that, if we leave the European Union, we should no longer fly the Europe flag on Europe Day. This seems a total denial of where this flag came from and what it is supposed to celebrate, which is not the European Union. The flag is in fact much older than the European Union, or even the Common Market: it was, in fact, created in 1955 as the flag of the Council of Europe. It remains the flag of the Council of Europe and the UK will continue to be a member of the Council—for ever, I hope—although the Prime Minister gives the impression that she would like to leave that organisation as well. I would absolutely deplore, as that was one organisation of which we were a founder member.
It is also interesting to note, as a matter of design, that the design of the flag—12 stars against a sky background —represents symbols of perfection. It represents the 12 apostles, the 12 tribes of Israel, the 12 labours of Hercules and the 12 months of the year. It is a symbol of peace in Europe and Europe Day represents peace in Europe, originally foreshadowed by the Schuman declaration. I am pleased that the Minister said that, at least this year, the European flag may continue to fly; at least I think that is what he said, because this year is the 70th anniversary of the foundation of the Council of Europe and it would seem very regrettable then to remove the flag from public buildings in Northern Ireland or anywhere else in the United Kingdom.
I put two questions to the Minister. There is no need whatever for this to be passed, is there not? I am minded—indeed, I intend—to table a Motion to the effect that this statutory instrument should be abandoned and that any such decision as to which flags are flown should be left to the relevant authorities in Northern Ireland as and when they are able to do so. I would also like clarification of what the DCMS guidance means for public buildings in the rest of the United Kingdom where, it seems to me, the Europe flag should fly on Europe Day and other organisations should be allowed to make their own decisions. The only minor detail is whether you fly it on 5 May or 9 May. The European Union chooses to fly it on 9 May, while the Council of Europe flies it on 5 May because that was the date of the foundation of the Council in 1949.
I speak with some passion on this, having been privileged to have been a member of the Parliamentary Assembly of the Council of Europe for six years. I am a passionate believer that the Council of Europe has contributed hugely to the development of, and the sustaining of peace and democracy in, Europe and that the United Kingdom, which Ministers have consistently said may be leaving the European Union—I say may be—is not leaving Europe. I suggest to the Minister that this is a completely inappropriate statutory instrument, that the DCMS guidelines are also completely inappropriate and that the United Kingdom should continue proudly to fly the flag of Europe, not the European Union, on Europe Day.
My Lords, I was present in the debate when we discussed the flags issue in the first place. In the House of Commons at that time, we sought to ensure that the union flag was not used as a badge of sectarian difference. I was not only present but spoke in favour of the Government’s move, against the united opposition of the Ulster Unionists at that time: they did not want those restrictions. The purpose was to promote peace and harmony and to recognise the union flag as the flag of all who lived in the north of Ireland and not just of one part. Therefore, this is a very important issue and nothing that I say is meant to suggest that we should not have this rather different regulation for the north of Ireland, because this is about the history of the misuse of the union flag for sectarian purposes.
I take that very seriously, but I also take very seriously what seems to me to be a cheap and nasty statutory instrument. We have had to put up with all sorts of statutory instruments that we would have to have if we were to leave the European Union without a deal, but this one is not necessary. There is no reason for it at all, except a nasty little smack at the European Union and at Europe as a whole.
If the Government were trying to be helpful and to include people who are so deeply upset by all the Brexit shenanigans, they would merely have changed the date from 9 May to 5 May. We would merely have flown this flag on the day of the Council of Europe; that is the day when the council flies it. So there was a perfectly reasonable way in which the Government could have done that and in which DCMS could have provided its guidance. The truth is that this is unnecessary in any case. It is just mean to treat people in this way, particularly in the north of Ireland where there was a significant vote in favour of remaining within the European Union, and among those voters were large numbers of unionists.
I know my noble friend well enough to know that he will no doubt defend the Government’s position, but deep down in his heart he knows perfectly well that there is no need for this measure. It has been brought forward in, if I may say so, an insulting way. A very large number in the country—I believe it is over 5 million—have already signed saying that we should remain within the European Union, and there were 1 million people on the streets. These are not people who should be overlooked in this case. I imagine that the Government feel that they have to do something for the Jacob Rees-Moggs of this world. But if they have to ensure that they are in some way insistent about those who have such unpleasant views of Europe, they should change the date to 5 May. Then we would feel that there was some attempt to bring together the sections of the community who feel so deeply and differently.
I speak thus because I really do not want the Government to think that those of us who take a different view from them are in some way light-hearted about it. We are deeply distressed by the fact that this country is becoming narrower, less open and less willing to accept a range of views, determined all the time to rub people’s faces in the fact that on a day three years ago, a majority of people who were voting voted to leave the European Union. Can we please have a bit of respect for those who take a different view? We should therefore ask the Minister to go back and insist that we fly the flag on one day or the other, not that we are not going to celebrate the fact that Europe has come together in different ways to try to ensure that we do not fall apart, as we did in two World Wars.
The issue cannot just be treated like this; it is much more serious. It is unworthy of the Government to have brought the measure forward as if it were necessary, when it is not. It is merely an attempt to make a point on one side of a very divisive argument. Let us not be as small and petty as that. Let us at least decide to fly it on one day. If the Government wanted to change the day, I am sure we would support that.
My Lords, my noble friend Lord Murphy will speak shortly from these Benches. I am reminded as I listen to this debate of the words of his predecessor, Leo Abse, MP for Pontypool and then Torfaen for 30 years and responsible for more social legislation than any individual MP. When he announced his retirement, he said: “I do not know who will succeed me. My only advice is: tolerate everyone, tolerate everything, but never ever tolerate the intolerant”.
This provision is a crass act of intolerance. It is not just silly. Those of us who have served in both Houses—a number of us in the Committee today have served in the Commons and in this House—know that at times Parliament has done some silly things, but this is a stupid and offensive thing. I have the honour to serve on the Council of Europe. Together with parliamentarians from both Houses, I will be going there on 7 April for the next full session of its parliamentary assembly.
This is the 70th anniversary of the Council of Europe —we were its co-founders—which predates the European Union. We have heard Ministers and members of the Government saying time and again, “We are leaving the EU, not leaving Europe”. That point was made earlier in the debate. This is a symbol of us all in Europe. The Council of Europe is larger, older and more united than the European Union. This is the barmiest thing to do, and it is offensive. A leading Conservative, Sir Roger Gale, leads Britain’s representatives in the Council of Europe. He does it with pride and does a good job. Please do not think this is blowing our own trumpet, but I can tell the Committee that the British delegation to the Council of Europe makes a huge contribution. We take part in most of the debates; some very powerful arguments and good ideas are put forward. We are listened to and benefit from being part of this greater, wider assembly.
The symbol of the Council of Europe, of us all within Europe, should be retained. We should use it, we should fly it and—as the noble Lord, Lord Deben, has just said—if we have an issue about the date we should move it to 5 May, the date on which the Council of Europe was set up. The Government really ought to think again. As I say, this is not just silly; it is stupid and offensive.
My Lords, Northern Ireland is the only part of the United Kingdom where under the current legislation there are 18 designated days for flying the flag on government buildings. Usually these discussions are highly contentious back in Northern Ireland; as we have heard, in extreme cases—I am thinking of Belfast City Hall—unfortunately they can lead to civil unrest. This is a delicate matter and has to be discussed in a reasonable fashion.
I take a different point of view. I think it would no longer be appropriate to fly the flag, especially if we leave Europe through Brexit, so I support the instrument before us. On a slightly wider issue, as part of the fresh start agreement negotiated by the Stormont parties in November 2015, a 15-person commission was set up to study a range of long-standing, complex and challenging areas in relation to the expression of mutual and cultural identity in Northern Ireland. One of the issues which was to be addressed in that was the unofficial flying of flags in outdoor spaces such as on lamp-posts and so on. Has that draft report been completed? If so, can its findings be published in the absence of a sitting Executive? Maybe this committee, if it is still sitting, could take up the issue. I support the flag not being flown if indeed we leave Europe.
My Lords, I think I support the noble Lord, Lord Browne of Belmont, on the situation in Northern Ireland itself. I assume the Government consulted on this issue with the Northern Ireland parties—at least, I hope so. If they did not, or indeed if they did, it has to be seen in the context of a very sensitive issue in Northern Ireland, as the Minister and others will know.
Today we have a specific issue in front of us about the European flag. I suspect that this instrument is both spiteful and flawed. The noble Lords, Lord Deben and Lord Bruce, and my noble friend Lord Touhig have given powerful reasons why it is spiteful, but I do not think the Government have actually thought of the implications of the flag also being the flag of the Council of Europe. There is no indication in the literature we have or in the debate held in the other place. It seems to me that the Government believed this was entirely about the European Union and completely forgot the issue of the Council of Europe and the fact that there are in Europe two separate days to celebrate Europe. Clearly 9 May, the European Union day, will no longer be celebrated in the way it has in the past, but 5 May still would be. Both Ireland and the United Kingdom remain strong members of the Council of Europe.
The other issue affecting the position of Northern Ireland in Europe is equally sensitive Some 56% of the people of Northern Ireland wanted to remain. I was European Minister for two years in Northern Ireland. I actually went to the Council of Europe to explain the Good Friday agreement to all the members and they played a big role, as indeed did the EU itself, not just with the peace money; the support that came to Northern Ireland during that period was immense.
We cannot go back over the issues affecting why it is that we are leaving Europe and the effect on Northern Ireland save to say that while our being members of the EU meant that the border on the island of Ireland was blurred and there was constant contact between Irish and British officials and Ministers because of our joint membership of the same club. Europe has played an enormous part in changing the way that Northern Ireland has operated over the past 20 years, and indeed in the Good Friday agreement. We cannot suddenly wipe away all that history in a few seconds, but this particular instrument seems to be trying to do precisely that. Symbolically, it is trying to say: “The European Union, the Council of Europe and indeed everything European had nothing at all to do with the development of Northern Ireland over the last 20 or 30 years”, when the contrary is the case. That is why it is spiteful.
It seems to me that it is up to the local authorities and the other public bodies in Northern Ireland if they wish to fly the Council of Europe flag on Council of Europe Day. What is wrong with that? No, this is a nasty little statutory instrument. It ignores the past, it forgets about the Council of Europe, and it should really be consigned to a dustbin.
My Lords, this is a more controversial issue than might have been anticipated by those who do not know Northern Ireland well or indeed the passions of noble Lords here gathered; I think that is important to recognise. I shall try to explain why we are where we are, and then the Committee must reflect upon whether that is adequate to address the issues I have raised.
The first issue to stress relates to the point made by the noble Lord, Lord Bruce of Bennachie about the notion of what the flag represents—indeed, being the shared flag of the Council of Europe. This is primarily about flying the union flag in Northern Ireland. If there are two flagpoles then the second flagpole may fly the additional EU flag at a lower level, but if there is only one then it will fly the union flag. It is important to stress again, and the noble Lord many wish to inquire further into this, how many government buildings in Northern Ireland have two flagpoles. The answer is precious few. We are talking here about the flying of the union flag in almost every case.
The noble Lord has pre-empted the question that I was about to answer, so I shall come straight on to that. Under this particular legislation, which of course follows on from the European Union (Withdrawal) Act, we are able to adjust the legislation to remove 9 May from being a flag-flying day. If we wish to switch the day to 5 May, though, we are precluded from doing so under this legislation. That is not available to us under this legislation. Therefore, in order for us to move forward, we have to go back to the original regulation, the Act dating back to the year 2000. In order for us to make any changes to that Act, noble Lords will be aware that there is a three-part process that wholly involves the Assembly in Northern Ireland. The Northern Ireland Assembly is consulted, it reports to the Secretary of State and, on that basis, changes can be made. In the absence of an Assembly there can be no adjustment from 9 May to 5 May, or to any other day, in that regard.
I am wondering why we do not just leave it on 9 May. If you cannot change it—which I understand—we should leave it on 9 May and announce that this is a reference to our membership of the Council of Europe. If it is the union flag, or the two flags, then that is perfectly all right. Why do we have to take it away? It is much better to leave it. Otherwise, it says something different.
The noble Lord makes a point which he has made on many occasions—I do not doubt it. Earlier in his remarks, he said that we could do it on 9 May, but it would be better to do it on 5 May because the Council of Europe has a day that we could celebrate as well. He is now reverting back to 9 May, thereby reversing the points that he made in his earlier speech, and I will therefore set them aisde.
Importantly, we are recognising that in Northern Ireland—as anywhere else in the UK—flags are a sensitive issue. They are heavily regulated. Failure to do so has led not only to mistrust but to civil unrest. We must treat the reality in Northern Ireland with caution. This is why the adjustment to flying the flags on different days, or recognising—as we have not been able to do in Northern Ireland—the additional members of the Royal Family who are entitled to certain flag flying days, cannot happen without the express involvement of the Northern Ireland Assembly. It is absolutely appropriate, given how sensitive this matter is.
We are conflating two issues: Europe and Northern Ireland. When we look back to the period 1998 to 2000 in Northern Ireland, we begin to recognise that the flags issue was not only live, but dangerous. Therefore, we have always tried to move this forward inside Northern Ireland with permission. In this instance, we are making a correction and ensuring that the whole United Kingdom is treated in the same manner.
This brings me to the point raised by the noble Lord, Lord Bruce of Bennachie. Guidance issued by one of the Whitehall departments is different because it is not bound by regulation, as these regulations apply to Northern Ireland. They are not needed here because they are not as controversial. There will be no restriction on the flying of the flag of Europe in many places at council level, wherever they wish to do so. The actual designation of official flag flying days is heavily regulated in Northern Ireland. We are only correcting for the reality that Europe Day will not be celebrated in Northern Ireland because it is the flag of membership of the EU and that will not be true thereafter.
I am not clear from the Minister’s initial remarks whether he is saying that the flag may be flown this year. First of all, if the longer departure date occurs, we will still be a member of the European Union on 5 or 9 May. I had the impression he said that, in any case, they could fly this year. If that is true, we can forget about this for another year anyway, by which time we can address all the other issues.
I fear that the noble Lord has misunderstood my points. If I may, I will restate and re-emphasise them. I said that this regulation will come in only after we have exited the European Union. As the noble Lord will be aware, the point at which we exit the European Union is not yet clear. If that date is after 9 May, then the flag will fly this year because that regulation will not be amendable. This order amends it only after the point of exit. That is why for this year—I am being very frank—it is unclear whether the flag will fly as per the regulations within the amended 2000 order. Up until that point, I cannot give any greater clarity. We are doing this now because we are able to do it under the existing legislation in order to correct the situation following the European Union (Withdrawal) Act.
There may come a time when those in Northern Ireland wish to reflect on which flags they fly and when they wish to fly them—I have little doubt about that—but until the Assembly comes together to determine that, it will be unable to that matter forward. I note how important this matter has been and I state again, as carefully as I can, that Northern Ireland is the only part of this kingdom in which we have had to regulate the flying of flags. Nowhere else have we had to do so. Nowhere else at council level would we anticipate anything other than the flying of flags which people wish to fly, whether they be a union flag, a European Union flag or flags for other particular purposes. This will no doubt continue. Here we are talking about a very strict and specific piece of legislation which affects only Northern Ireland.
I am sorry to interrupt my noble friend. If we changed this, we would have to go through a whole system. I understand that. It was a little unfair of him to complain that I was prepared to say that if he found that difficult, we might do it in a different way. It seems very odd that that we are removing this without going through that system. We have not asked all the people who have to be asked if we going to put something else in but we are unilaterally deciding to take this day out. I find that difficult.
I started off by saying that I have been through those debates and I know them perfectly well. I got into a lot of trouble with my unionist friends because I fought for what the Government wanted. I am perfectly aware of the difficulty in the north of Ireland, but is it acceptable to remove something without that process, when it is not acceptable to add or change something about that process? It seems unacceptable to do this unilaterally.
The noble Lord, sitting as he does in a legislature, will appreciate the difference between making law and interpreting how you fly flags. At present, the difficulty he speaks of is not just a difficulty but an illegality: that we would not be able to move forward by adjusting the dates in Northern Ireland because of the restrictions of the law. What we might wish to do beyond that may be described as a difficulty, but what we seek to do here is to be legally correct in this instance. I am aware that the noble Lord has been passionate in his defence of the union flag and the union flag in Northern Ireland. I am also aware of how controversial that flag has been in Northern Ireland, for many different reasons.
The European Union flag we have flown on the ninth, which is flown across Europe, is primarily a flag of membership of the EU. We do not fly it in recognition of our membership of the Council of Europe because, most of the time—if I am being frank as a former Member of the European Parliament—people were rarely aware of the distinction between the Council of Europe and the European Council and the fact that one preceded the other by several decades. Even today, very few people marching on these streets will necessarily draw that distinction.
One of the great sins, I suspect, of this country—indeed, perhaps of our media—is how often we have been unable to explain in clear terms how the EU works, how our responsibilities within the Council of Europe work and the difference between the European Court of Justice and the European Court of Human Rights. We conflate these things constantly and I am fully aware that people right now will probably be unaware that the Council of Europe and in the EU, one heavily predating the other, have the same flag and, indeed, a shared anthem—and have had for some time, albeit that in the EU it is an unofficial anthem. All these things become conflated. The reality we face is simple: under the EU withdrawal agreement that we moved forward last year, this piece of legislation is uncontentious. It is important to stress that the European statutory instruments committee of this House said that, as a matter of policy, there is nothing contentious in the amendments proposed by this instrument.
It may be, and the noble Lord may wish to bring that up with that committee. It may well be that he wishes, on this occasion, to determine what flags shall be flown in Northern Ireland, to take that decision and move this in a particular direction. I would counsel against that for many different reasons, not least that, as we have said before, this issue is much more sensitive in Northern Ireland and we must be careful as we look at it in Northern Ireland, particularly as it primarily concerns the union flag. I stress again that it affects the union flag more than the flag nobly described by the noble Lord, Lord Bruce of Bennachie.
The challenges we face are straightforward. We may take this order and move it forward. The noble Lord may decide that is not something he wishes to do and he may wish to debate it further. If we are to debate this further, I suggest that we make sure that there are a number of Members in that debate who hail from Northern Ireland and are able to give their experience on the issue of flags because this is not primarily an issue about European flags but an issue about what flags represent in Northern Ireland. I suspect that he is not liking what I am saying but I fear I am going to have to move forward on that basis.
I seek guidance from the Chair. I have indicated that I am not happy and I do not wish this to be accepted. I know we cannot vote but I think it should be debated in the Chamber. We have a problem with the Chamber: I am sure that the Irish Members will turn up but we do not have a balanced representation in the Chamber. The second point I want to make is that Europe Day is about peace in Europe, not the European Union.
I am very clear about what Europe Day represents, having been a Member of the European Parliament. I have spent a great deal of my life—10 years—in Europe representing the Scottish Parliament in Europe. I am fully aware of what Europe Day represents. I am also a Minister in the Northern Ireland Office, so I know what flags mean in Northern Ireland and I do not think we should be conflating the two in the manner the noble Lord suggests, but if he is minded to do so that is his prerogative and his right. I remind him only that this is a matter primarily about the union flag, not the European flag.
I clarify for the noble Lord that although we do not vote in Grand Committee, I will take the voices. The Question is that the Grand Committee do consider the Flags (Northern Ireland) (Amendment) (EU Exit) Regulations 2019.
Committee adjourned at 7.39 pm.