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Animals and Animal Health, Feed and Food, Plants and Plant Health (Amendment) Regulations 2022

Volume 826: debated on Monday 5 December 2022

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Animals and Animal Health, Feed and Food, Plants and Plant Health (Amendment) Regulations 2022.

My Lords, these regulations were laid in draft before this house on 20 October 2022. The time that we have does not permit me to cover in detail all the amendments that these instruments make, but I shall do my best to cover some of the most significant points.

The first instrument makes technical amendments to various pieces of retained EU law and domestic legislation to ensure that they operate effectively in the following four areas after the UK’s withdrawal from the EU:

“Official controls and requirements on imports into and movements within Great Britain of animals, animal products, plants and plant products; the rules on animal welfare during transport; the rules on the marketing of plants and planting material; and the rules on the prevention, control and eradication of certain transmissible spongiform encephalopathies, a group of fatal diseases which include mad cow disease.”

This instrument also addresses various other deficiencies in retained EU legislation and corrects errors in earlier instruments made under the European Union (Withdrawal) Act 2018. The changes are, for example, to

“clarify that the appropriate authority can create or amend rules on penalties for non-compliance with these regulations and relevant supporting legislation with regards to the Official Controls Regulation and Plant Health Regulation; streamline the process for designating an appropriate authority as a competent authority responsible for carrying out official controls; and replace the existing obligation for the appropriate authority to make secondary legislation to address biosecurity risks from imports of animals and animal products with a power to make secondary legislation, helping to protect biosecurity by giving Defra the flexibility to address biosecurity risks through means other than regulations.”

The Plant Varieties and Seeds Act 1964 is amended to enable Ministers to make regulations via the negative resolution procedure to ensure that domestic secondary legislation, which captures the marketing of fruit, vegetables, and ornamental plants for planting, can be updated as required. This change will ensure that we can keep pace with changing requirements in this space. Corrective amendments make it clear to transporters, organisers, and keepers of live animals, that they must comply with the journey log requirements on protecting animal welfare in transport.

The second instrument makes modifications to the interpretation of 11 directives to ensure a continuing and fit-for-purpose imports system for animals and animal products entering Great Britain, to ensure that the legislative regime is up-to-date, enforceable, and easy to use. These modifications do not make policy changes. They are technical fixes to assist with the interpretation and application of the directives. This instrument also transfers the functions, including legislative powers from EU bodies, to the appropriate authority and makes the necessary changes to relevant import enforcement legislation.

Both instruments apply across Great Britain, although there are some exceptions. In the first instrument, Regulation 12 applies only to England and Wales, Regulation 13 applies only to Scotland, and Part 6 applies only in England.

In the second instrument, Part 1 applies across Great Britain, whereas in Part 2, Regulation 5 applies only to England. Regulation 6 applies only to Scotland, and Part 3 applies only to England and Scotland, with the Welsh Government having laid a mirroring instrument which applies in Wales. I will be testing noble Lords on that later; I hope it was clear. Both instruments also make a series of technical amendments to other pieces of legislation to ensure that they are fully operable.

In summary, the amendments in these instruments will ensure that official controls on imports of animals and animal products continue to be effective, that appropriate authorities have the relevant powers to make and implement necessary changes to imports legislation and that we have the legislative tools we need to safeguard our biosecurity.

To conclude, the devolved Administrations in Scotland and Wales have provided their formal consent for these instruments. Movements from Northern Ireland or the Crown dependencies are considered internal movements and are not affected by the modifications and amendments laid in these instruments. I beg to move.

My Lords, I am most grateful to my noble friend for presenting these two statutory instruments, which I support. I shall press him on a couple of issues.

Will both instruments definitely be retained and not excluded under the provisions of the EU retained law Bill currently in the House of Commons? Having done all this work, it would be a pity to waste it. In each case, will the Minister clarify which are the relevant public authorities?

On the trade in animals and related products regulations, as an MEP I spent many happy hours looking at the live trade in animals. As the MEP for Brightlingsea, I had the rather unfortunate experience of representing Brightlingsea when it closed down the live trade in Dover; there were demonstrations to prevent the live trade. My understanding is that it is still the case that one live animal is transported for every seven transported in carcass form, certainly from this country—now we are a third country, or third countries—to the EU. Are those figures correct, and are they still reflected in imports from the EU to this country?

Also, in the provisions of the regulations, is there a role for the Food Standards Agency in this regard? Whichever agency or authority it is, will it rely on notifications, or will it be able to do spot checks? It would be better for the Committee’s trust in the system—certainly my own trust—if it was able to do spot checks either on live animals or animal products, in frozen or fresh form. That would be very helpful to know.

I have two small further points to make that I am fortunate to have in my possession having attended the briefing from the Food Standards Agency on a completely different matter—its annual report for last year. Clearly, the regulations reflect the fact that, as a result of our departure from the EU, Ministers and food regulators are now directly responsible for food law for the first time in nearly 50 years. Therefore, the level of understanding, particularly at local authority level—not just when the products come into this country but when we are relying on local authorities to do inspections of food businesses at the level of outlets—is a matter of some concern.

Can my noble friend say how the Government plan to address concerns that I and others have? I do not want to put words into the mouth of the Food Standards Agency, but it has reflected this in its annual report, where it says:

“Firstly there has been a fall in the level of local authority inspections of food businesses. The situation is in the process of being repaired … but progress is being constrained by resource and the availability of qualified professionals.”

I understand that part of that problem is lack of skills and understanding that this is a potentially interesting and rewarding job. The endgame is to make the job of health inspectors attractive. The second problem the FSA raises is

“in relation to the import of food from the EU … To enhance levels of assurance on higher-risk EU food like meat, dairy and eggs, and food and feed that has come to the UK via the EU”.

This is potentially an extremely challenging area. It is just 10 years since we had the horsemeat scandal—or “horsegate”, as it became known. I accept that I could not tell the difference between a horse carcass and a cattle carcass, whether they had meat on them or not, but there should be someone out there looking at this and ensuring that horses imported into this country will not end up on our plate, passed off as beef. That case highlighted the importance of inspections, not just on an ad hoc basis but spot checks. It not only highlighted notifiable cases as they come into this country but, as the food penetrates through the food system, ensured that when we eat kebabs—I do not eat many of them—they are what they say on the product and not something else. With those remarks, I welcome these regulations.

My Lords, I thank the Minister for his introductory remarks to these two statutory instruments. I fear that I may fail his questions on the geographical applications of the SI. As with many statutory instruments that we have debated recently, the first—on animals, animal health, feed and food, plants and plant health—corrects errors in previous SIs.

The Explanatory Memorandum says in paragraph 7.2 that SI 2016/2031 will be reintroduced. Having been removed, it was considered redundant, but the removal appears to have left no mechanism available to enforce the regulation. The SI refers to three months’ imprisonment in all three devolved Administrations for non-compliance with the regulation. If there is no enforcement mechanism, can the Minister say how the prison sentences are to be applied and carried out? No doubt I have misunderstood this section of the SI.

Paragraph 7.4, as regards the OCR, refers to a designated competent authority but also states

“where no competent authority has been designated, the appropriate authority will be assumed to be the competent authority.”

Can the Minister say what qualification is needed to be classed as a competent authority, what is needed to be an appropriate authority, and who or what this is likely to be?

Paragraph 7.8 of the EM refers to Article 139, non-compliance and penalties for non-compliance, but states

“there are no powers to create any penalties to fulfil this requirement.”

In that case, is there any relevance to this SI?

Paragraph 7.13 refers to transporters, organisers and keepers of animals keeping a journey log, as set out in “Annex II”. I could not find any such annexe either in this SI or the Explanatory Memorandum. Can the Minister point me in the right direction for this?

I turn now to trade in animals and related products. This appears to be a much simpler SI. I note in paragraph 6.2 of the EM that the Welsh Government are producing an equivalent version. Can the Minister say whether this will be compatible with the one that we are debating this afternoon, or whether it will be radically different? Some difficulties could arise if it were different.

The instrument as a whole refers to animals and animal products. Might those products include ivory? What inspections and checks are taking place to ensure that ivory products do not slip through the net and enter the country illegally? Paragraph 7.2 covers the import of live animals and products of animal origin from the EU. Although this appears to relate only to imports, the wording allows the European Commission to make changes to legislation for intra-European movements of live animals. Is it possible that this could be used to export live animals to the EU? Could this also be used to circumnavigate the UK’s ban on the export of live animals? I should be grateful for the Minister’s comments.

Finally, the last sentence of paragraph 7.5 states:

“Movements from Northern Ireland or the Crown Dependencies are considered internal movements and are not affected by the modifications.”

Given the close proximity to the coast of France of the Crown dependencies of Jersey and Guernsey, is it possible for live animals to be exported via this route? I look forward to the Minister’s reassurance on that point.

Despite my comments, I am content for these two SIs to pass and await the Minister’s comments.

My Lords, we also support these SIs but, like other noble Lords, I have a few questions and points to make about them.

I am concerned by the number of SIs where we have seen errors—and I have raised this on a number of occasions—when bringing former European legislation into UK law. We know that five particular SIs are referenced in paragraph 3.1 of the Explanatory Memorandum for the Animals and Animal Health, Feed and Food, Plants and Plant Health (Amendment) Regulations, all originating from 2019 or 2020. It is concerning that we are still seeing this number of corrections happening. I have asked the Minister before to reassure us that it is not going to keep happening but, unfortunately, it seems to keep reappearing. We ask again for reassurance that this is being sorted out and we are not going to keep having statutory instruments to correct previous instruments that we have already passed.

The noble Baroness, Lady Bakewell, mentioned the issues with paragraph 7.2, outlining the penalty regime. As she pointed out, the penalty regime was considered redundant in 2020, which now means that there is no mechanism fully to enforce the plant health regulation as the existing penalty regime cannot be amended or added to. Can the Minister let us know what the practical impact of this has been, and what is the current situation going forward?

We also know that other areas have been corrected, including the accidental deletion of a requirement on the Secretary of State to charge fees in connection with certain functions carried out under the official controls regulation. It worries me how much the Government are trying to achieve in such a short space of time, and this is one of the reasons we are seeing so many errors. Again, I would be grateful if the Minister can confirm to the Committee that he is keeping a very close eye on the department in these areas, so we have as few errors as possible. We completely support the fact that we need to avail ourselves of opportunities to regulate ourselves differently, now that we are out of the EU, but we worry about the lack of legal clarity in the short to medium term while these errors keep taking place.

More positively for this SI, we are pleased to see that paragraph 7.1 of the Explanatory Memorandum notes that the devolved Administrations were consulted on the changes and consented to them. We welcome that collaborative approach being taken to relations with the devolved Administrations.

Very briefly on the second SI, the Trade in Animals and Related Products (Amendment and Legislative Functions) Regulations 2022, I reiterate what was said by the noble Baroness, Lady Bakewell of Hardington Mandeville, about the Welsh Government’s equivalent instrument. It would be helpful to have an update on what that says and how it works with what we are doing in Westminster.

The Joint Committee on Statutory Instruments reported on Regulation 9(5) regarding defective drafting around the definition of “enactment”. The question was whether this regulation can be used to amend Acts of Parliament. Again, clarification is needed but, also, what is the purpose of this power? Could the Minister give an example of how this would be used in practice?

Finally, I draw attention to some other questions noble Lords asked, particularly on live animal exports, which both noble Baronesses mentioned. It is important that we have clarification on the implications for import/export with the EU, compared to our legislation on this issue. The noble Baroness, Lady McIntosh of Pickering, also asked an important question about whether this will be retained law as we bring forward other legislation. The questions on food inspections were also important.

This worries me particularly because of the number of errors. It is important, when we put through these SIs, that we have real clarification on some of these issues. I look forward to the Minister’s response.

I am grateful to noble Lords for their interest in these instruments and their contributions. As ever, I will try to respond to all the points raised.

My noble friend Lady McIntosh raised some important points. The Retained EU Law (Revocation and Reform) Bill is part of the Government’s commitment to taking the necessary steps to put the UK statute book on a sustainable footing, following the exit from the EU. While the department assesses its retained EU law and plans for the REUL Bill accordingly, these statutory instruments ensure that the current legislation is operable. This is the last opportunity to make these technical fixes before the powers from the European Union (Withdrawal) Act to make these modifications expire at the end of this year.

My noble friend and the noble Baroness, Lady Bakewell, raised important points about designated competent authorities. The official controls regulation provides that the competent authority will be the appropriate authority—the relevant Minister in Great Britain—or any other authority to which such functions are conferred. The designations of competent authorities are set out across various pieces of secondary legislation or dealt with administratively, and vary across the different areas within the official controls regime. Amendments to Articles 3 and 4 of the official controls regulation do not alter any existing designations, but make the process for designating a competent authority clearer and ensure that the appropriate Ministers do not need to designate themselves as competent authorities.

My noble friend raised some very important points about live trade, which I will come to. The Food Standards Agency is an increasingly important body since we left the EU. She is right that it is now directly responsible for food safety and for working with local authorities to make sure that they have the necessary skills, understand the changing legal environment and are able to carry out their functions effectively to keep us all safe.

My noble friend is right to talk about meat imports. We have recently changed the rules to allow a much smaller amount of permissible material to be moved in an attempt to tackle the threat of African swine fever—a serious risk rampaging across Europe, which we are working really hard to prevent ever coming to these shores. We have exercised thoroughly with Defra and its agencies to work out how we would deal with an outbreak, but it is one we want to prevent happening in the first place.

My noble friend is also right to mention the horsemeat saga. I was in Defra at the time. Government, its agencies, retailers, business and a whole variety of other organisations learned a lot from that. Technology is our friend here. DNA sequencing has allowed us to detect when fraud is happening in our food system.

In response to the questions on the first instrument asked by the noble Baroness, Lady Bakewell, robust enforcement mechanisms are in place to ensure that the plant health regulation is fully complied with. These consist of offences and criminal penalties as detailed in the Plant Health etc. (Fees) (England) Regulations 2018, and equivalents in the devolved Administrations. The amendments in this new instrument ensure that these existing offences can be amended and new offences created to ensure that enforcement options remain complete and up to date for the plant health regulation.

In reference to the noble Baroness’s question about “Annex II”, the reference in paragraph 7.13 of the Explanatory Memorandum is to Annex II to Regulation 1/2005, on the protection of animals during transport. Annex II sets out the requirements for journey logs needed to transport live animals.

On designated competent authorities, as I have explained, the official controls regulation provides that the competent authority will be the appropriate authority—in most cases the Minister in the relevant country. The designations of competent authorities are set out across various pieces of secondary legislation or dealt with administratively and vary across different areas within the official controls regime.

The amendments to Articles 3 and 4 of the official controls regulation do not alter any existing designations but—noble Lords will be glad to know—make the process for designating a competent authority clearer and ensure that the appropriate Ministers do not need to designate themselves.

A number of noble Lords raised penalties relating to non-compliance. Article 139 of the official controls regulation, as retained, places a duty on the appropriate authority to ensure that rules on penalties relating to infringements of the official controls are in place. However, no corresponding power was retained to create new penalties or amend existing penalties set out in existing legislation. Therefore, this amendment is necessary to ensure that we have sufficient penalties in place connected to the official controls regulation and delegated legislation. It is an important enforcement measure.

In answer to questions about the Welsh statutory instrument, my information is that, yes, it is compatible with ours. We are working closely with devolved Governments to make sure that there is a seamless regime across Great Britain. If there is any difference, we will certainly let noble Lords know, but my information is that it is entirely compliant.

The answer to the point from the noble Baroness, Lady Bakewell, about ivory is also yes. Ivory is an animal product. This instrument provides only for animal and public health requirements and does not affect other policy areas such as those dealing with endangered species. The Ivory Act 2018 bans the trade in ivory, not only within the UK but to and from the UK. This instrument provides rules for imports into GB only; it does not cover exports of live animals but, as noble Lords will know, that is now a very small number and likely to be extinguished altogether. However, we have to have rules for the import and export of animals—for example, breeding stock, athletic animals such as racehorses and other types of animal. The provisions for movements between EU member states have been omitted. Exports to the EU are excluded from the scope of this instrument.

Live animals can come to Great Britain via Guernsey or Jersey as long as it is in compliance with the conditions on the import health certificate. References to Great Britain in the certificate published on the government website include the Channel Islands and the Isle of Man.

The noble Baroness, Lady Hayman, raised an entirely justifiable point. The longer I am in this role, the more respect that I have for those who draw up our statutory instruments and try to create a regulatory regime that is fit for purpose and able to be used by stakeholders effectively. It is incredibly complex. I accept that sometimes we get it wrong. I therefore hope I am open with noble Lords when that happens. It has been the department’s intention to correct errors when they are identified and to ensure that we have a fully operable sanitary and phytosanitary regime.

The noble Baroness’s question related to additional powers beyond those directly equivalent to the tertiary legislation-making powers that the commission has under the relevant EU marketing directives. The proposed amendment provides for an extension of existing powers to create a new category of material, of vegetative plants for planting. The widening of Section 29(1) of the Plant Varieties and Seeds Act 1964 to cover that new material confers new powers, most of which replace specific powers that previously existed under EU directives. If she needs more information on that, I am happy to write to her.

I think I have covered the points raised. I hope noble Lords will share my conviction of the need for these instruments. I am grateful for their supportive remarks. As I have outlined, these instruments are vital technical fixes and operability amendments. Parliamentarians in this House and the other place will, of course, continue to be able to hold me, other Defra Ministers and the department to account through all the usual means, for the ways in which the powers in this instrument are exercised. I commend the regulations to the Committee.

Motion agreed.