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Food and Feed Hygiene and Safety (Miscellaneous Amendments) (EU Exit) Regulations 2019

Volume 798: debated on Tuesday 4 June 2019

Motion to Approve

Moved by

My Lords, consumers in the UK benefit from a high standard of food and feed safety and quality. The Government are committed to ensuring that this high standard is maintained when the UK leaves the European Union. This instrument is crucial to meeting our objective to continue to protect public health from risks that may arise in connection with the consumption of food.

This instrument, which concerns food and feed law, is made under the powers in the European Union (Withdrawal) Act 2018 to make necessary amendments to UK regulations. The UK’s priority is to ensure that the high standard of food and feed safety and consumer protection we enjoy in this country is maintained when the UK leaves the European Union. The instrument will correct deficiencies in certain regulations to ensure that the UK is prepared in the event that the UK leaves the EU without a deal.

Amendments are limited to the necessary technical amendments to ensure that the legislation is operative on EU exit day. No policy changes are made through this instrument and we have no intention of making any at this point. While we continue preparations for an orderly withdrawal from the EU, it is the job of a responsible Government to prepare for all possible scenarios, including the potential outcome that we leave the EU without a deal. We are committed to ensuring that our legislation continues to function effectively and that public health remains protected in the event of no deal. It is for this scenario that this instrument has been laid.

This instrument will address a range of minor deficiencies in retained EU law relating to food and animal feed that have not been addressed in earlier instruments, and recent changes made to EU law that could not have been addressed in previous instruments. As in the case of previous statutory instruments recently presented to the House, I wish to make clear again that no policy changes are made through this instrument. It makes only the essential changes necessary to ensure we have an effective and fully operable statute book on exit day. Its primary purpose is to ensure that legislation continues to function effectively after exit day. These proposed amendments are critical to ensuring that there is minimal disruption to food controls in the event that we leave the EU without a deal.

This instrument also transfers powers to UK entities to support a UK regulatory regime. It will transfer responsibilities incumbent on the European Commission to Ministers in England, Wales, Scotland and the devolved authority in Northern Ireland. It also transfers responsibility for risk assessment from the European Food Safety Authority, EFSA, to the food safety authorities, the FSA and FSS. They will continue to deliver independent, open, transparent and science and evidence-based advice. In addition, this instrument changes references to the import of food and feed into the EU to references to the import of food and feed into the United Kingdom. The contents of this instrument cover several policy areas, and I will address these specific areas.

The health mark for carcasses of certain animals—such as cattle, pigs and sheep—and the identification mark for all foods of animal origin will change once the UK has left the EU, with the letters “EC” no longer used. The Specific Food Hygiene (Amendment etc.) (EU Exit) Regulations 2019 retain the requirement for the health and identification marks to contain either “UK” or “United Kingdom”. This instrument allows for the abbreviation “GB” to be used in the marks, as this is the International Organization for Standardization—ISO—two-letter country code for the United Kingdom.

The instrument also provides for a transitional period of 21 months after exit day during which UK food businesses can apply their current health and identification marks on carcasses and foods of animal origin respectively when placed on the UK domestic market. This transitional period will assist businesses by providing a smoother transition into the new requirements and permit them to use up existing labels and packaging.

The instrument also addresses deficiencies in retained EU law regarding trichinella testing requirements to ensure that these rules are fully enforceable, replacing references to EU institutions and bodies with appropriate UK bodies and authorities. EC regulation 2074/2005 is an EU tertiary implementing measure that provides certain technical and administrative refinements to the EU regulations for food products of animal origin. For example, it sets out specific rules on analytical methods and rules relating to fishery products used in the production of fish oil. The instrument will assign powers and responsibilities currently incumbent on EU entities to appropriate UK entities to ensure that this diverse regulation is fully operational. The model health certificates for imports of certain products of animal origin, such as fishery products, gelatin and collagen for human consumption, are amended so they can be used solely to import foods to the UK.

This instrument also amends the definition of “imports” within the existing legislation so that it is clear any new facilities approved by EU member states in the future would no longer be automatically approved for food imported into the UK. Without this instrument there could be a lack of clarity around the status of newly approved facilities. The instrument also includes provisions to set minimum charging rates for hygiene controls for fishery products by amending the Fishery Products (Official Controls Charges) (England) Regulations 2007. It updates provisions for these charges: for example, these rates are currently set in euros with an exchange rate to British pounds. It also updates the exchange rate from 2008, as it is now somewhat out of date and would not be in line with central DExEU and HMT guidance on amending outstanding references to euros. The current regulations are national and stipulate the necessary qualifications and experience required for an official control laboratory analyst in England. This instrument will not become completely inoperable on EU exit and can continue to be used to regulate qualifications of official analysts.

The proposed amendments address minor drafting errors in the previously laid Food Additives, Flavourings, Enzymes and Extraction Solvents (Amendment etc.) (EU Exit) Regulations 2019 which were identified by the JCSI. The FSA provided an undertaking to the JCSI that this deficiency would be addressed in its response. EU authorisation decisions relating to genetically modified food and feed have also come into force since the laying of the Genetically Modified Food and Feed (Amendment etc.) (EU Exit) Regulations 2019, which will implement retained EU law on exit day. This instrument introduces amendments to make these decisions fully operable by specifying the UK entity to which the authorisation holders must submit annual reports on activities set out in their environmental monitoring plans and to remove references to the European Community in connection with the register of authorised GM food and feed.

This instrument makes equivalent changes to the relevant Northern Ireland legislation to ensure that the body of Northern Ireland food law can function properly and is enforceable once the UK leaves the EU. It also inserts a definition of “Northern Ireland devolved authority” or, where appropriate, identifies the department that is the correct and appropriate authority, replacing references to EU institutions and bodies in various EU regulations. The amendments also include naming the relevant legislature for Northern Ireland where the regulation-making procedure is provided in various EU regulations.

Let me be clear: there are no new changes for food businesses introduced into how they are regulated and how they are run. The formal public consultation was carried out by the FSA covering changes to the UK health and identification marking, which received overwhelming support for the proposal. The instrument will provide continuity for businesses and protection of consumers’ interests, and ensure that enforcement of regulations can continue in the same way. The changes will ensure the retention of a robust system of controls which underpins UK businesses’ ability to trade both domestically and internationally. Devolved Administrations have provided their consent for this instrument, and have been engaged positively. It provides the necessary controls for food to continue to function effectively after exit day.

I urge noble Lords to support the amendments proposed in this instrument to ensure the continuation of effective food and feed safety and public health controls.

My Lords, I congratulate the Minister on her explanation of this statutory instrument. We are of course back in the territory of whether there will be a deal or no deal. Even more bizarrely, this will depend on the machinations of her party over the coming weeks and on who ends up as our Prime Minister. It is a bit surreal really, much like the parliamentary world we inhabit at the moment.

Earlier this year, as we approached the Brexit deadline of 29 March, we were regularly rushing through statutory instruments. It is just as well that the Prime Minister was able to secure a Brexit extension because, if we had left on 29 March, some of the so-called minor deficiencies that emerged with regard to food and feed safeguarding, which we are discussing today, might have turned out to be major quite quickly.

Crashing out of the EU means that the regulatory framework for food and feed, which has protected us in the UK for so many years, will cease to exist. I can see that the proposed amendments are critical to ensuring minimal disruption of food controls in the event that we leave the EU without a deal, and we on these Benches will support them. The changes seek to ensure a robust system of control which will underpin UK businesses’ ability to trade both domestically and internationally.

The first question I have concerns trichinella, a parasitic nematode worm which can be extremely serious and can cause disease in people who eat raw or undercooked meat from trichinella-infected domestic animals or game. I appreciate that this instrument provides assurance that testing requirements that ensure protection will continue after EU exit. However, is the Minister confident that we have enough capacity in this country to continue testing for that worm and its associated health risk? How quickly can the Government put in place our own testing facilities? I would be grateful if the Minister could tell the House how much extra resource her department has allocated to make sure that we do not allow a loss of control in this area. I am aware that extra funding has been made available to the FSA to deal with Brexit, but the Minister could help the House by being specific about the amount of extra resource that would be available to ensure that those particular nematodes do not infect meat that might be imported into this country and eaten by people here. I am aware that the Minister in the Commons, Seema Kennedy, offered to write to my honourable friend Angela Eagle about this matter. Did she do so and can the letter be made available here?

The instrument states that facilities approved by EU member states would in future no longer be automatically approved for food imported from the UK. I repeat the question that my honourable friend Sharon Hodgson MP asked in the Commons: does the Minister know what impact that will have on supply and businesses? How long will the process be to approve facilities for food imported from the UK, and when will a list of approved facilities be available?

The instrument also includes provisions to set minimum charging rates for hygiene controls for fishery products by amending, as the noble Baroness said, the Fishery Products (Official Controls Charges) (England) Regulations 2007. Will the Minister outline what the charges will be and what impact any new set rates could have?

The Explanatory Memorandum for the statutory instrument states that functions currently undertaken by the European Commission in adopting some implementing regulations rendering applicable the controls on imported food will in future be the responsibility of the Secretary of State. Can the Minister provide information on how decisions on those controls will be made and managed? What will the arrangements be for collecting data monitoring the effectiveness of the regulations and for regularly reporting the findings? What bodies will be able to scrutinise performance and delivery? What assessment has been made of their capacity to take on that work, as my honourable friend Angela Eagle mentioned in the Commons?

Finally, what conversations has the Minister had with the devolved nations regarding this statutory instrument? Although the issues seem fairly technical, and potentially innocuous, they raise a few worries. This is about food safety, safety for consumers, consumer protection and food supply in general. Should we leave the European Union, a range of duties will transfer from where they have been carried out in the past for many years, in the EU, not just back to the UK but to four different bodies due to devolution, one of which is not even sitting at the moment because of what has been happening in Northern Ireland. So will the resources be available in the devolved authorities to cover these issues?

My honourable friend Angela Eagle said in the Commons:

“Despite the Minister’s attempts to engage with some of my questions, I am still not entirely sure whether this is irradiation of things such as collagen, which in specific instances is derived from animals for human consumption, or whether it is about more general irradiation of meat and vegetables that are for public consumption, which happens in the US”.—[Official Report, Commons, Third Delegated Legislation Committee, 13/5/19; col. 9.]

I agree that the answer the Minister in the Commons gave begged more questions, so let us have another go. That is probably appropriate today, when the President of the United States of America has made it clear that all our regulatory regimes will be on the table and up for negotiation, along, of course, with the NHS.

It is important to remember that the horsemeat scandal was not discovered by the enforcement processes in this country, but by testing in the Irish Republic. So we are right to be concerned that, post Brexit, things could go wrong due to weaknesses that have been created in our own enforcement system. I am looking for further reassurance from the Minister that the system we have, weakened by austerity and divided by devolution, will be robust enough to take on the extra duties that the Minister is adding through this statutory instrument.

My Lords, I too thank the Minister for outlining all the technical details of this SI. Of course, this instrument has been withdrawn from the Order Paper twice before. Some of the changes made since we originally saw it are small but crucial. We are lucky that they have been spotted, but that raises concerns for the industry that there may be others. Now that the leaving date has changed, are the Government planning on conducting additional scrutiny on the other SIs that are being rushed through this House to make sure that they are up to scratch? How do the Government intend to convey these changes to the relevant individuals and companies on whom they will impact?

I add my support to the question asked by the noble Baroness, Lady Thornton, about the capacity of the FSA. This is probably about the 16th time that we have asked the same question and we are still concerned about the capacity to replace all of the other measures.

Some of these changes reflect very recent EU law that has come into force, as the Minister mentioned, so what do the Government intend to do about any new EU law that might come into force between now and 31 October or whenever we happen to leave? Will this SI and the ones that preceded it have to be further amended if there are other changes to EU law?

The Minister mentioned that the system for minimum charging rates for hygiene controls of fishery products is somewhat out of date. Will the Government confirm whether they aim to change the pound-euro exchange rate from the 2008 level at which it is currently set? Although these charges, as we know, are rarely levied by local authorities, any change in the exchange rate, which could happen after Brexit, could have a big impact on the ability to pay of those against whom the charge is levied. We saw a big difference in the rate of the pound against the euro after the 2016 referendum, and the way in which we might, unfortunately, leave the EU, could have a similar serious effect on the exchange rate. What are the Government planning to do about those charges if there is such a big change in the exchange rate? Are they planning to bring it up to date from 10 or 11 years ago?

I thank the noble Baronesses for their important questions. We have been through a number of periods of scrutiny on FSA SIs between us, so I feel that we are old hands at this.

The noble Baronesses will know that leaving the EU does not change the FSA’s top priority, which is to ensure that UK food remains safe and is what it says it is. We are working hard with the FSA to ensure that the high standard of food and feed safety and consumer protection we enjoy in this country is maintained when the UK leaves the European Union. That is one of the reasons for this SI.

The noble Baroness is right to identify that this is one of the ways that we are keeping up to date with EU changes in legislation while we remain part of the European Union, but of course once we have left we will be responsible for identifying how we want to proceed and whether we want to introduce our own legislation and additional food safety standards which mirror those in the EU or whether we want to go further. That is a commitment—excuse me, I am having a Theresa May moment—that has been made before.

I shall touch first on the issue raised by the noble Baroness, Lady Thornton, at the end of her remarks about trade. I want to nail that one if I can. We have debated this before. The UK is committed to maintaining the high standards of food and feed safety which we currently enjoy. I shall repeat a line which has been used by No. 10. We have always been clear that we will not lower our food standards as part of a future trade agreement. From day one, we are committed to having a robust and effective regulatory regime in place which will mean that business can continue as normal. For most food and feed businesses there will be no change in how they are regulated and how they manage. Leaving the EU does not affect that, regardless of comments that may have been made this week.

Can we be clear that that very important undertaking she has just given the House also applies to animal welfare standards in the European Union and currently in this country?

That is obviously not my brief, but I know that those commitments have been made from this Dispatch Box and I am very happy to give the noble Lord that commitment.

I shall move on to the important questions that were raised regarding trichinella resources. We have brought in these amendments today because we recognise the importance of maintaining standards when it comes to trichinella testing. The Food Standards Agency’s spend on trichinella testing in financial year 2018-19 was £565,000, of which £275,000 was recovered through charges for official controls. The figure includes the cost of taking samples and of the UK’s trichinella national reference laboratory. The figure is approximate and is a proportion of the total cost of official controls applied across the food industry. The UK will maintain the requirements of EU food safety legislation after leaving and will not only maintain the standards applicable to most domestic and imported food but will also ensure that UK food businesses can continue to apply controls that are widely accepted by other countries. The FSA has made a commitment that it will ensure that there are the resources required to maintain those standards and the level of testing for trichinella control after exit.

I know that I have given these statistics to the noble Baroness before, but I can reassure her once again that an extra £14 million was provided to the FSA for 2018 in order to ensure extra funding and capacity for EU exit and an extra £16 million was provided for 2019-20. This has translated into an extra 140 staff who have been recruited. More than 90% of them are already in place. That is supported by an expanded role for the independent scientific advisory committees on food. It covers risk assessment, for which the FSA has an outstanding international reputation. It was strengthened by recruiting new experts, establishing three new expert groups and expanding its access to scientific experts, who can provide scientific advice, and to other scientific services in order to meet the potential need for increased risk assessments in future. This is part of the wider priority of the FSA to ensure that it can maintain its current commitments to promoting robust food standards nationally and internationally, protect consumer interests and facilitate international trade and ensure that consumers can have confidence in the food that they buy—to know that the food is what it says it is. I hope that reassures the noble Baroness on that point.

The noble Baroness asked about official controls charges for fishery products. This was also raised by the noble Baroness, Lady Walmsley. She is absolutely right regarding the exchange rate, and that is why we are updating the provisions for these charges so that they are in line with the more sensitive DExEU and HMT guidance on amending outstanding references to euros. The instrument does two things. First, it adjusts for the fact that in the future European Union member states will become third countries for the purposes of these charges. Therefore, we can no longer offer the European Union differential treatment in terms of costs levied for hygiene controls performed on directly landed consignments of fishery products. Secondly, as I have said, it addresses the references to euros. The Government do not anticipate any increase in the extent to which these charges are levied by local authorities in England after the UK exits the EU. It is currently reported to be a very low rate. As such, we believe that food business operators in England are not expected to face any extra costs. We will expect local authorities to keep it under review, but we anticipate that it will remain low. I hope that reassures the noble Baronesses.

I hope that I answered the questions from the noble Baroness, Lady Walmsley, about the way in which risk assessment is done in my earlier answer about the increasing staffing that has become available through the increased investment in the FSA to prepare for EU exit and strengthen its risk assessment capability. On her question about how decisions are made, obviously there will be some ministerial involvement but it is important to say that maintaining the UK’s high food standards is a top priority for the Government. Part of that is to continue the long-standing commitment to openness and transparency and evidence-based decision-making from the FSA. Food safety authorities will publish the advice they provide to Ministers as well as the evidence and analysis it is based on so that stakeholders can see the basis on which decisions are made. I hope that that reassures the noble Baroness.

On the final point about devolved Administrations, raised by the noble Baroness, Lady Thornton, Scotland, Wales and Northern Ireland have provided their consent to these instruments. They have been closely involved in the development of them. The principles and rules that are set out in retained legislation and which these SIs will correct are intended to ensure the same level of food and feed safety and protection throughout the UK and the free flow of trade within it and—exactly as she said—to ensure clear lines of communication, engagement and co-operation between all four nations so we can, as has been said, pick up on any risks throughout the four nations. The FSA has a very close working relationship with the Administrations of Scotland, Wales and Northern Ireland, and we are confident that, in practice, it will be possible to make arrangements to operate a framework for food and feed safety and regulation across all four Administrations.

In conclusion, I thank noble Lords for their contributions to this debate and ask for their support.

Motion agreed.