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Draft Food and Feed Imports (Amendment) (EU Exit) Regulations 2019

Draft Official Controls for Feed, Food and Animal Health and Welfare (Amendment Etc.) (EU Exit) Regulations 2019
12 March 2019

The Committee consisted of the following Members:

Chair: Siobhain McDonagh

† Allan, Lucy (Telford) (Con)

† Brine, Steve (Parliamentary Under-Secretary of State for Health and Social Care)

† Brock, Deidre (Edinburgh North and Leith) (SNP)

† Caulfield, Maria (Lewes) (Con)

† Debbonaire, Thangam (Bristol West) (Lab)

Doughty, Stephen (Cardiff South and Penarth) (Lab/Co-op)

† Dunne, Mr Philip (Ludlow) (Con)

† Grant, Bill (Ayr, Carrick and Cumnock) (Con)

† Harper, Mr Mark (Forest of Dean) (Con)

† Hoare, Simon (North Dorset) (Con)

† Hodgson, Mrs Sharon (Washington and Sunderland West) (Lab)

† Mann, John (Bassetlaw) (Lab)

† Morton, Wendy (Aldridge-Brownhills) (Con)

† Norris, Alex (Nottingham North) (Lab/Co-op)

† Reeves, Ellie (Lewisham West and Penge) (Lab)

† Throup, Maggie (Erewash) (Con)

† Whitfield, Martin (East Lothian) (Lab)

Kenneth Fox, Committee Clerk

† attended the Committee

Nineteenth Delegated Legislation Committee

Tuesday 12 March 2019

[Siobhain McDonagh in the Chair]

Draft Food and Feed Imports (Amendment) (EU Exit) Regulations 2019

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I beg to move,

That the Committee has considered the draft Food and Feed Imports (Amendment) (EU Exit) Regulations 2019.

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With this it will be convenient to consider the draft Official Controls for Feed, Food and Animal Health and Welfare (Amendment etc.) (EU Exit) Regulations 2019.

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It is good to see you in the Chair again, Ms McDonagh. This makes it two in a row; you obviously enjoyed last week, so welcome back.

There are only two statutory instruments before the Committee today. The Government are committed to ensuring, as I have said before, that our world-class—as they certainly are—enforcement agencies and regulators can continue protecting the UK’s public health and biosecurity when we leave the European Union. That includes ensuring that imported food and feed that pose a risk to human or animal health continue to undergo border checks and controls. The measures will ensure that bodies such as the Food Standards Agency, for which I am responsible, and the Animal and Plant Health Agency, which is a Department for Environment, Food and Rural Affairs agency, are suitably empowered to continue working to ensure that the law is followed across the food chain.

Although the Government’s priority is to secure a deal—and I believe that there may have been some developments in that respect overnight—to ensure an orderly departure from the European Union, the role of any responsible Government involves preparing for all possible outcomes. To continue protecting consumers, our food and feed safety legislation, including that relating to imported food and feed, must be able to function effectively in the event that no withdrawal agreement is in place. That will also ensure that there is minimal disruption at UK sea ports and airports. It is for those reasons that the SIs have been made under the powers in the European Union (Withdrawal) Act 2018, which, I reiterate, is a housekeeping Act that allows us to transpose European Union legislation and regulation on to the UK statute book.

As to the purpose of the instruments, official controls verify business compliance with food and feed law across the agri-food chain. In the United Kingdom, responsibility for delivering official controls is divided between central competent authorities, such as the Food Standards Agency and Food Standards Scotland north of the border, and local authorities.

The draft Official Controls for Feed, Food and Animal Health and Welfare (Amendment etc.) (EU Exit) Regulations 2019 are designed to ensure that the official controls system delivered by the authorities operates at a high standard of integrity, impartiality and proficiency. They are quite general and set the rules of the game on how we will operate in that space. Similarly, the draft Food and Feed Imports (Amendment) (EU Exit) Regulations 2019 will ensure the continuation of existing controls at the UK border, to ensure that imported food and feed of non-animal origin remains safe. DEFRA handles products of animal origin.

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Will the Minister give way?

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Unusually, yes.

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With the permission of the shadow Minister, my hon. Friend the Member for Washington and Sunderland West, I will mention that it has occurred to me that the Minister has now made three references to borders. He also referred to progress last night on the deal. Has he had time to digest the changes announced last night and to consider whether there will be any implications on the border on the island of Ireland for the movement of food?

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I heard the statement in the House last night and I have read a little bit of it this morning, but I wanted to give every attention to the Committee, as the Opposition Whip will understand. I shall listen closely to the advice of the Attorney General, which I believe is imminent, and to any statements made in the House today.

The imports that I was referring to can contain contaminants, such as salmonella in sesame seeds and pesticide residues in peppers—and in lemons, believe it or not. Imports of those goods from specified countries are currently controlled by Commission regulation 669/2009. Notification about those products must be given in advance of their arrival and they must be subject to official controls ranging from documentary checks to identity and physical examinations, including sampling. To give another example, if I may, Commission regulation 884/2014 lays down controls governing the import of nuts, nut products and some spices from listed countries. Examples of listed countries could be India—I cannot read my own writing—Indonesia or Ethiopia. There is a full list. It is important that these controls and the others listed in the instruments function properly once we leave the EU.

Fundamentally, the amendments specified in these instruments address technical deficiencies in key pieces of European legislation with application to the entire UK and three pieces of domestic legislation that apply in England only. The amendments have been bundled together because they all address law designed to ensure the effectiveness and standards of our official controls system, including for food and feed imports.

Hon. Members will notice that the instruments concern the protection not just of public health, but of animal health and welfare. In particular, the draft Official Controls for Feed, Food and Animal Health and Welfare (Amendment etc.) (EU Exit) Regulations 2019 have been jointly prepared by officials from the Food Standards Agency and DEFRA. However, it was agreed that ultimate responsibility for the instruments would lie with the FSA.

The instruments are intended solely to address inoperabilities in domestic legislation and retained EU law. However, as a result of the way the law is constructed, that results in some changes to the way our legal framework for official controls would work. As some of the amendments address retained EU law, it was necessary to remove references to EU terminology, such as “member states”—that is perfectly logical—and to systems such as the European reference laboratories network. Ultimately, UK competent authorities will no longer participate in European programmes regarding official controls, such as the European Commission’s international audit body, SANTE. That fact is addressed by the amendments and DEFRA is preparing a domestic audit body of its own.

Furthermore, the powers that are currently provided to the European Commission to make legislation are either repatriated to the appropriate UK authority, amended to become administrative functions or removed altogether as a result of their inapplicability—[Interruption.] Yes, exactly—inapplicability. It is my age. I was going to say “as a result of their inapplicability in a UK-only context”. We will edit that bit out. Powers have been transferred strictly where necessary for the UK to maintain a controls system responsive to emerging risks to public health and animal health and welfare.

That is particularly the case in the area of import controls. Although the existing rules governing official controls do not create detailed rules for the performance of controls on imported food and feed, they do set standards and powers for competent authorities controlling trade in such goods. In practice, in the short term this will only mean an increase in the need for more controls on high-risk food and feed, such as the sesame seeds contaminated with salmonella that I referred to earlier, entering the UK from third countries via the European Union. EU regulation 669/2009, which I mentioned, contains the list of those countries, and I can give some examples if hon. Members are interested.

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I want to pose a question about the principles for goods that have been placed on our market before departure day and the same goods returning post departure day. Where in the two statutory instruments that are before us is the confirmation that the essential make-up has to stay the same to be recognised post departure, and how will we ensure that that takes place as we remove ourselves from the European Union structures?

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I can expand on this in my response, but the point is that all we are doing here is transposing the very strict and world-class enforcement rules that operate at the moment for us as a member state. Anything that is within the chain at that time will be exactly in line with everything we have signed up to as a member state. Because we are talking about complete convergence in the immediate future after exit, I have no concern about that. I have asked officials about it.

Any checking to ensure that there is no divergence will be the responsibility of the agencies I have listed— the Food Standards Agency, Food Standards Scotland and local authorities. The regulations do not make any changes to that, and anything that came on to the market—whether into this country, into this country to go into the European Union, or into the European Union to enter this country—would be subject to all the same rules that it currently is. I think hon. Members should have confidence, as I do, that this is a continuation or a bridge between our membership and, hopefully, our transition period.

I will touch on the impact on local and public authorities, which I know there was some interest in last week. As the primary purpose of the existing legislation is to ensure the effective enforcement of food and feed law by competent authorities in EU member states, the amendments will be of interest to public bodies responsible for delivering those controls in the UK, such as local authorities and port health authorities. As I mentioned, there will be some impact on the way that certain high-risk food and feed is controlled when entering the UK as a result of our leaving the European Union. However, for authorities delivering official controls in the UK, the primary impact of the instruments will be familiarisation costs.

With regard to the point that the hon. Member for East Lothian alluded to, it is not foreseen that the day-to-day delivery of official controls, which are performed predominantly by local authorities, will be otherwise impacted by these changes. The UK will maintain its world-class operational standards in this area, regardless of the way in which we leave the EU. I have been crystal clear on that for all the SIs I have dealt with in this space, such as when I spoke to the EU Energy and Environment Sub-Committee in the Lords last week.

Public authorities will be impacted by the effects of leaving the framework for the performance of official controls created by this legislation. For example, we will no longer be legally bound to provide administrative assistance to other European countries upon request. That does not mean that co-operation with other countries’ enforcement agencies will cease—I stress that important point. We are developing new ways of working with our international delivery partners to ensure that we can continue to tackle complex international food safety incidents once we leave the European Union. It is important to note that the European Food Safety Authority grew out of the Food Standards Agency; in many ways, we were the rock upon which the EU built its church, not the other way around. Despite all the legal changes that will take place when we leave the European Union, the relationship changes will be minimal or non-existent, and our relationships are absolutely first class. I stress that point regularly, such as when I spoke to the FSA chair last week.

On the impact on industry, businesses will be interested in the amendments to the rules concerning charging for official controls. Official controls legislation creates minimum charges for the performance of official controls on the domestic production and import of certain imported food and feed. Amendments in this area centre on the use of Her Majesty’s Treasury and the Department for Exiting the European Union’s recommended conversion rate for references to euros in retained EU law. In practice, that will have minimal impact on businesses: the Food Standards Agency has a methodology for calculating the charges levied on businesses slaughtering and cutting meat that is not affected by the changes to the minimum rate set out in this legislation. Equally, DEFRA’s approach to controls on imports of EU-derived products of animal origin means that no new chargeable import controls are projected. As with public authorities, there may be one-off familiarisation costs. All told, we do not anticipate a great financial or administrative impact on businesses as a result of the technical nature of the amendments.

Food and feed safety, as well as animal health and welfare, are devolved policy areas. As such, the instruments have been drafted to reflect the distribution of responsibility for delivery of official controls in the UK. In some instances, that means powers flowing back from Brussels to the appropriate UK authorities, which include Ministers in Scotland and Wales and the relevant Departments in Northern Ireland. The devolved Administrations have provided their consent to these instruments, and officials from all parts of the UK have been working together well and constructively in this field. I place on record my thanks to them.

As with previous SIs, we have respected the full flow-through of powers; in fact, if the devolved Governments decide that they want to diverge in their treatment of high-risk imports, they will have increased devolved powers with which to do so. I would not expect too much divergence to take place within the UK, because with all the disruption that leaving the EU will inevitably bring, given the 40-odd years of culture involved, the last thing we want to do is create disruption and internal market issues within the UK. That would not be in the interests of Scotland, Wales or Northern Ireland any more than it would be in England’s interests.

The amendments only go as far as necessary to ensure that we have a fully functioning UK statute book; indeed, the legislation only allows us to go as far as necessary to ensure that our statute book equips our authorities with the necessary powers to continue to protect public and animal health after exit day. The successful resolution of the instruments is necessary to ensure that we can maintain the high standard of food and feed safety, biosecurity and consumer protection that is offered by this country’s excellent enforcement agencies and competent authorities. I place on record my thanks for the hard work that those organisations have done and will do in preparation for exit day. I urge hon. Members to agree to the amendments that are proposed in the instruments, and I commend the regulations to the Committee.

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It is a pleasure to serve under your chairmanship again, Ms McDonagh, on this bright windy morning. I thank the Minister for bringing the two statutory instruments to the House today and for ably summarising them.

We are all aware that today is a very important day for our country. We are only 17 days from Brexit, yet MPs are just, tonight, getting the latest meaningful vote on the Prime Minister’s latest deal. I expect that not much, or perhaps not enough, will have changed; as the Minister said, we are waiting on the Attorney General’s judgment. This is all very concerning for millions of people up and down the country—concerns I know the Minister shares.

In the event of a no-deal Brexit—we might know in the next few days if that is what will happen—we need to be prepared, but as I have said throughout our consideration of these SIs, I regret that the Government have waited so long to prepare for no deal, given that it was the fallout position for if we did not get a deal. Regardless of how much scrutiny we give the legislation this morning, it is being rushed through. As legislators, we need two things: information and the time to process and scrutinise that information. Unfortunately, the Government have failed to provide MPs with either. I regret the way in which the Government have processed the legislation, but here we are.

Moving on to the SIs, food and feed law serves to protect public health, as well as animal health and welfare. I appreciate that that is a difficult balancing act, particularly in light of growing public concerns about where our food comes from. What conversations has the Minister been having with his colleagues in DEFRA about animal health and welfare, and its impact on our food?

In addition to ensuring human and animal health, the Government must provide continuity for business operators and trade. The Minister touched on that. Is he confident that the SIs will ensure that continuity? What conversations has his Department had with business operators and trade? Similarly, what conversations has his Department had with the scrutinising bodies that will take over the responsibilities of the EU bodies? Will the Minister please confirm which bodies will be doing that? Is he confident that they have adequate time and resources to provide a check and balance on food standards once we leave the EU?

The explanatory memorandum says that staff will need to familiarise themselves with the amendments. Is the Minister confident that the staff referred to in the memorandum have had all the information they require to do that?

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Originally, there was a reading time of less than 30 minutes, but following the consultation it was extended to not more than an hour. That has underpinned the financial implications of the statutory instruments. Does my hon. Friend agree that there seems to be an arbitrary take on the time it will take local authority officials and businesses to read the paperwork? When we have looked at it, it has certainly taken more than an hour to read, process and understand—if one is able to download it.

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I agree with my hon. Friend. We debated that very point in some of last week’s Delegated Legislation Committees. I thought that perhaps I was a slow reader, as it took me considerably longer than 60 minutes not just to read it, but to try to understand and digest it. I recall the Minister saying last week that that time was just a guide, but I am sure he will address that point directly.

With that in mind, is the Department offering any support to scrutinising bodies to ensure that queries can be answered quickly and effectively? In the event of a no-deal Brexit, which none of us wants, there will be lots of new changes, so I hope that scrutinising bodies will be properly equipped to ensure that nothing is slipped through—chlorinated chicken, for example—that could cause harm later on. We need experts on the ground who are able to scrutinise and safeguard public health in the event of a no-deal Brexit.

Both statutory instruments cause fragmentation across the nations. Can the Minister tell the Committee when legislation will be made by the devolved Administrations? Has he had discussions with the devolved Administrations about these changes? Colleagues from all regions will be rightly concerned about the disparity that might be caused by the SIs.

The draft Food and Feed Imports (Amendment) (EU Exit) Regulations 2019 include an amendment to the Plastic Kitchenware (Conditions on Imports from China) (England) Regulations 2011. I am sure that there is plastic kitchenware from China in my kitchen and in all our kitchens. It would be difficult for there not to be, considering how much China produces. However, this seems entirely isolated from the rest of the measures in the SI. Will the Minister tell the Committee why those changes are being made in this SI? Is there something about Chinese plastic kitchenware that we need to watch out for? I certainly do not eat it.

The draft food and feed imports regulations state that functions currently undertaken by the European Commission on food controls will be the responsibility of the Secretary of State. Can the Minister provide information on how decisions on food controls will be made and managed? Who will advise the Secretary of State on those decisions? Imported food can be susceptible to known or emerging risks linked to specific food or feed of animal and non-animal origin. It is therefore important for human health and consumer trust that we get this right. Equally, consumer trust and consciousness mean that we cannot see a reduction in animal ethics.

I hope that the Minister can allay some of those concerns today, and I look forward to his response.

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It is a great pleasure to serve under your chairship, Ms McDonagh. I find it hard to contain my excitement at another piece of secondary legislation necessitated by Brexit. The sheer delight of unnecessary legislation is unbounded sometimes.

Reading the explanatory notes for the regulations, we come across familiar lines—pieces of text that are familiar from other forays into this Brexit chaos. For example:

“The existing EU law is being retained in UK law after EU Exit. This instrument amends the legislation so that references to other EU Member States, the European Commission and associated elements are removed or replaced by appropriate wording.”

We are taking back control to replace with appropriate wording—a brave and decisive move. This legislation already exists, but here we are having to gather to pass it again with minor changes. That is some way to run this United Kingdom.

This legislation is very important, however. Most of the animal feed used in the UK is imported from the EU or under EU trade agreements, and any disruption to the supply will cause major problems for farmers and food production and for distribution across these islands. The same goes for fertilisers, forage seed, herbicides and pesticides. Without the EU supply lines, we are in trouble. If we do not have security of supply of these products, farmers might be growing a darned sight less than they have been used to. But it is a good fortnight until B-day, so this is not last minute or anything.

Another problem that farmers will face is that the trucks that bring these products to their farms and take away the farm’s output are more often than not driven by a non-UK EU citizen. They tend not to make £30,000 a year, so we will need a whole lot of replacements that we do not have. However, that is a headache for another day, isn’t it?

I am pleased to see that there is some indication in the regulations that the Government will respect that the devolved Administrations have different arrangements and their own positions. I hope that that is a sign of things to come, because that should be the attitude across the whole of Government and Parliament. In the middle of this epic bourach, it is one tiny glimmer of hope. Apart from anything else, it will make it easier when we come to the independence negotiations in a wee while.

I cannot say that I am entirely supportive of the statutory instruments, since they would never have been needed if there were no Brexit, but I accept that they will pass today and might be a useful part of the regulatory framework to keep the show on the road for a little while. Whether the physical manifestation of incoming supplies matches the regulatory framework, coming as they do on imaginary ferries, remains to be seen.

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Well, where to start? Let me start with the hon. Member for Edinburgh North and Leith, who speaks for the SNP. I thank her for her comments and note her points about full flowing and passing competences to the devolved Administrations. We have always said that that would be the case where it was the right and sensible thing to do, and I am true to my word in these instruments.

I do not know where to start. I do not think the hon. Lady asked many questions. There was a referendum and we tend to respect the result of referendums in the UK. If the SNP can find me a referendum it does respect the result of, I am all ears. Yes, we are leaving and that has an implication for statute and regulation. We are therefore transposing these regulations under the European Union (Withdrawal) Act 2018 on to the UK statute book to make sure that food and feed are safe for our constituents and for human and animal health. That is the responsible thing for any Government to do. I do not apologise in any way, shape or form for doing that. It is absolutely the right thing to do.

I turn to the hon. Member for Washington and Sunderland West, who started where she usually starts. Will enough have changed overnight when we hear the Attorney General’s advice? For me, yes, but it was enough for me in January. If she wants to avoid any change or disruption, she knows what she has to do today. I look forward to having a chat with her in the Aye Lobby. She will be very welcome there and will be among friends—I have a funny feeling that quite few of her hon. Friends will be there too.

I will write to the hon. Lady with more detail in response to her question about the important issue of Chinese plastic. It is dealt with in the draft food and feed imports regulations because they are the most relevant place to do so. Only the terminology is corrected—there is no legal change. I do not think that there is any substantive change to the issues around Chinese plastic. However, it is always useful to be updated on what is in the hon. Lady’s kitchen.

The hon. Lady asked which bodies will perform the risk assessments. Risk assessment will be performed by the FSA and Food Standards Scotland, which are independent scientific risk assessors. Risk management decisions, which are different, will be taken by Ministers based on public advice from the FSA. The hon. Lady asked who will advise the Secretary of State and, therefore, me. Ultimately, risk management decisions in this space come to me, or to whoever holds this brief. The advice comes from the Food Standards Agency in England and from Food Standards Scotland to Scottish Ministers. In fact, to digress, I am meeting my opposite number, the Scottish Minister, on Friday because I want to talk to him about child obesity and dental issues—I give the Committee that exclusive.

The hon. Lady asked about continuity for business and what conversations have been had on that. I covered a fair bit of that in my speech. Businesses have been fully involved in the consultation process. We ran a six-week consultation, which is longer than for some other SIs. The responses were generally content. There was some concern about the timing and making sure that everything is in place by exit day. If the Committee agrees to the regulations today, it will be.

The hon. Member for East Lothian asked a question that the shadow Minister would have raised if he had not about the arbitrary assessment of the prep time, which is one hour. I responded to the hon. Member for Washington and Sunderland West on this point last week. The law does not change. From a cold start, downloading and reading the regulations would take more than 30 minutes or even more than an hour—there is no question about that. However, for someone who works in this space and is up to speed, as these organisations and public authorities already are, familiarisation will be minimal. Business is familiar with them already.

The hon. Member for Washington and Sunderland West asked whether I am confident, and whether the Department and its agencies are offering support to those organisations. I am absolutely confident, and I am sure that we are providing enough support.

The hon. Lady also asked about the resources going into the Food Standards Agency. The Food Standards Agency has increased its resources, thanks to support from Her Majesty’s Treasury. It has increased the number of scientific advisers and it has set up the new advisory body, which will advise it on many of these issues. I think that the FSA is well resourced. The chair of the FSA, Heather Hancock, who gave evidence to the Lords Committee with me last week, is a very competent person, and she is not shy in coming forwards when she feels that she needs more resources from the UK Government. She has argued effectively for that, and has received the response that I think she wanted.

The hon. Lady asked about conversations with colleagues in DEFRA. I said at the start of this Committee that this area is covered by the Department of Health and Social Care and DEFRA. That split has to be there, because I am interested in human health and DEFRA is interested in animal health, but of course there will be cross-over. I work closely with DEFRA colleagues in the House and I work closely with DEFRA officials, as do my officials who are here from the Foods Standards Agency, as is necessary on these SIs. That will continue as we leave the EU. The Department of Health and Social Care and DEFRA own these SIs in many ways, but contact between policy and legal officials at the FSA and DEFRA are strong, and will remain so.

The hon. Lady asked about discussions with the devolved Administrations. As I mentioned, they have consented to the SIs. I place on the record my thanks to them for that. I look forward to talking to my opposite number in Scotland about them when I see him on Friday. I mentioned the fragmentation across the nations, not in my speech, but in my ad-lib remarks, when I said that, with all the changes that there will be as a result of our exit from the European Union, the last thing our United Kingdom needs is disruption within the internal market of the UK right now.

It is absolutely right that we transmit those powers from the European Commission through England and to the devolved Administrations. They absolutely have the right, through consultation and democratic engagement with the Scottish Parliament, for instance, to diverge, if that is what they want to do. That would be done in consultation with the UK Government, as is right.

We are, whether everybody likes it or not, one United Kingdom. When we leave the European Union, we will leave as one United Kingdom, with one united, world-class, world-leading food and feed safety environment. That is what these instruments seek to achieve and I commend them to the Committee.

Question put and agreed to.

Resolved,

That the Committee has considered the draft Food and Feed Imports (Amendment) (EU Exit) Regulations 2019.

Draft Official Controls for Feed, Food and Animal Health and Welfare (Amendment etc.) (EU Exit) Regulations 2019

Resolved,

That the Committee has considered the draft Official Controls for Feed, Food and Animal Health and Welfare (Amendment etc.) (EU Exit) Regulations 2019.—(Steve Brine.)

Committee rose.