Skip to main content

General Committees

Debated on Tuesday 19 March 2019

Delegated Legislation Committee

Draft Railway (Licensing of Railway Undertakings) (Amendment Etc.) (EU Exit) Regulations 2019 Draft Train Driving Licences and Certificates (Amendment) (EU Exit) Regulations 2019

The Committee consisted of the following Members:

Chair: Stewart Hosie

† Clarke, Mr Simon (Middlesbrough South and East Cleveland) (Con)

† Cowan, Ronnie (Inverclyde) (SNP)

† Dhesi, Mr Tanmanjeet Singh (Slough) (Lab)

† Docherty, Leo (Aldershot) (Con)

† Donelan, Michelle (Chippenham) (Con)

Eagle, Maria (Garston and Halewood) (Lab)

† Ford, Vicky (Chelmsford) (Con)

† Foxcroft, Vicky (Lewisham, Deptford) (Lab)

† Heappey, James (Wells) (Con)

† Jones, Andrew (Parliamentary Under-Secretary of State for Transport)

† Mann, John (Bassetlaw) (Lab)

† Maskell, Rachael (York Central) (Lab/Co-op)

† Mercer, Johnny (Plymouth, Moor View) (Con)

† Morris, James (Halesowen and Rowley Regis) (Con)

† Pearce, Teresa (Erith and Thamesmead) (Lab)

† Perkins, Toby (Chesterfield) (Lab)

† Tredinnick, David (Bosworth) (Con)

Hannah Wentworth, Laura-Jane Tiley, Committee Clerks

† attended the Committee

Twenty-third Delegated Legislation Committee

Tuesday 19 March 2019

[Stewart Hosie in the Chair]

Draft Railway (Licensing of Railway Undertakings) (Amendment etc.) (EU Exit) Regulations 2019

I beg to move,

That the Committee has considered the draft Railway (Licensing of Railway Undertakings) (Amendment etc.) (EU Exit) Regulations 2019.

With this it will be convenient to discuss the draft Train Driving Licences and Certificates (Amendment) (EU Exit) Regulations 2019.

It is always a pleasure to serve under your chairmanship, Mr Hosie. The regulations will be needed in the event of no deal. They are being made under the powers conferred by the European Union (Withdrawal) Act 2018 to fix deficiencies in two sets of domestic railway regulations, alongside EU implementing legislation. Those regulations are the Train Driving Licences and Certificates Regulations 2010 and the Railway (Licensing of Railway Undertakings) Regulations 2005.

It may be helpful if I provide a little background. As part of measures aimed at liberalising rail markets, the EU introduced standard documentation for train driving licences for train drivers and rail operator licences. Those documents are valid across the European economic area. The Office of Rail and Road is responsible for issuing train driving and operator licences in Great Britain. Subject to meeting certain criteria, such as medical and competence requirements, the ORR will issue a train driving licence valid for up to 10 years. Train drivers also need a certificate, issued by the operator, confirming that the driver is competent to drive a certain type of train on the infrastructure. Operator licences are issued subject to the operator meeting certain conditions, including financial fitness and having the necessary insurance cover.

The draft regulations have been developed in close co-operation with the regulator—the ORR—Network Rail, the devolved Administrations and the wider rail industry. Officials in my Department have consulted the industry, including by holding a number of workshops, and they continue regularly to meet train operators and their representatives to give them clarity on the technical amendments being made by these regulations. The industry will welcome the certainty that the regulations provide; they are an important part of their own no-deal planning.

Let me turn to what the regulations specifically do. The regulations will ensure that the train driving legislation continues to function after exit. The draft Train Driving Licences and Certificates (Amendment) (EU Exit) Regulations 2019 amend our domestic regulations and three pieces of EU implementing legislation by making a number of technical changes. The draft regulations remove requirements on reporting to the Commission, references to member states, and functions reserved for the EU Commission and the European Union Agency for Railways. The regulations also amend the definition of a train driving licence so that it refers only to ORR-issued train driving licences. In addition, changes are needed to ensure that licences issued in Northern Ireland are valid for use in Great Britain, and to make corrections to the EU implementing legislation that applies to both GB and NI.

The draft Railway (Licensing of Railway Undertakings) (Amendment etc.) (EU Exit) Regulations 2019 make similar corrections by removing references to member states and replacing references to EU legislation with references to domestic legislation. The most significant amendment is to rename the European licence a “railway undertaking licence”. I realise that not everyone will class that as significant, but it is the most significant part of this regulatory change.

The draft regulations also revoke EU implementing regulation 2015/171. The EU template introduced by that regulation will no longer be required when we leave the EU, as the ORR has included the administrative requirements in its own licensing procedures.

Both sets of draft regulations also make transitional provisions that recognise existing European documentation, issued in other member states, for a maximum of two years after exit day or until it expires, whichever is sooner. In short, existing train drivers and operators providing services in Great Britain will not have to take any immediate action if the UK leaves the EU without a deal, regardless of where their documents were issued. The two-year recognition of licences also supports the smooth continuation of cross-border services, such as Eurostar, by ensuring that EU-licensed train drivers engaged in cross-border services will continue to be able to operate in the UK. In Northern Ireland, the role of issuing these licences falls to the Department for Infrastructure. A separate instrument is being taken forward on behalf of Northern Ireland, and the House will have the opportunity to debate that legislation.

The draft regulations are an important part of our no-deal preparations, because they provide clarity for business and certainty for drivers. They ensure that if the UK leaves the EU without a deal, this is done in an orderly and effective manner.

It is a pleasure to serve under you in the Chair, Mr Hosie. I start by referring to the draft Railway (Licensing of Railway Undertakings) (Amendment etc.) (EU Exit) Regulations 2019. They seek to address deficiencies in the 2005 regulations, which were established for the licensing of passenger and freight train operators in Great Britain, by establishing the Office of Road and Rail as the licensing authority, allowing it to charge for applications for licences, and giving it powers to suspend and revoke licences. In addition, European licence holders, who will in future be known to hold a “railway undertaking licence”, will need to obtain a statement of national regulatory provision from ORR.

Clearly, the Labour party takes a very different approach to how rail operations should work. We believe, as does the industry, that track and train must be integrated. Has the Minister considered that issue? If so, will the licence be granted for both? The Government are currently undertaking a root and branch review of the railways—the Williams review. Should its conclusions recommend that rail should operate under one public body, would there still be a requirement for these regulations or would some major changes be required? If the UK Government were to be established as such an operator in the UK, could they be granted a European licence, subject to approval from the ORR, should they meet the required conditions of

“professional competence, financial fitness and insurance cover”?

In the light of the continuing proceedings on exiting the EU—clearly we do not know where that debate will end up—how will the fourth railway package affect these regulations, should it come to fruition before, and if, we exit the EU? I note that they will currently impact on just one operator, namely the freight operator Europorte Channel SAS. I further note that after a period of two years, the licence will no longer hold effect should bilateral agreement on a deal with the EU not be reached. What would happen if it takes longer than two years to establish a deal with the EU? Is it not foolish to put a time limit on the process? What recognition will the railway undertaking licence have beyond the two-year period? In the light of the Northern Ireland Assembly still not sitting, could the Minister set out what will happen in Northern Ireland? Rail operations will cross a border on the island of Ireland.

I turn now to the second set of regulations, the draft Train Driving Licences and Certificates (Amendment) (EU Exit) Regulations 2019. The 2010 regulations of the same name came out of EU directive 2007/59/EC and established a common licensing and certification process for train drivers, and thus enable greater freedom of movement of drivers across EU countries. A common register is held by the Office of Road and Rail or the Department of Infrastructure in Northern Ireland, and there is common certification of drivers and inter-state recognition of training centres and examiners. The certification proves that a driver has achieved a level of competency and meets the medical standards required. The licence itself highlights the type of train that a driver is authorised to drive. Since 2007, there have been two pieces of secondary legislation related to the issuing of licences, and in 2015 a language test was also applied.

The regulations seek to ensure that data on train drivers receiving certification is held appropriately, and that the training element of the certification of train drivers is in order, including the content, the examination, the training centre, and the examiners themselves. I was interested to learn that the examiner may not hold a certificate for certain new rolling stock on which they are assessing a driver; could the Minister clarify whether that is the case? Safety is of the upmost importance on our railways, and our drivers undertake a tremendous job ensuring that safety is maintained, as I witnessed a few weeks ago when I took a cab ride. We want to ensure that those examining the drivers are suitably qualified.

Should the UK leave the EU, it will recognise EU licenses and certificates for two years after the date of exit. However, I again ask what will happen if the negotiations continue beyond a two-year period: will these regulations still be recognised, or will we be back here, debating this again? There are so many unknowns at the moment, in the light of the shambolic process in Parliament of leaving the EU—if, indeed, we leave at all. I therefore take it that these regulations could be held in abeyance for some time, and that we may need to revisit them if further changes occur across the railway network.

The hon. Member for York Central asked a number of questions. First, these regulations are being made in the event of no deal, so there is obviously an element of contingency. She asked whether they preclude further changes or whether we will have to revisit them. The regulations address the situation as it currently stands; they are about ensuring the smooth, continued operation of our rail network, including cross-border rail. The question about Northern Ireland will be dealt with by a separate statutory instrument.

The hon. Lady also asked whether these regulations will have an impact on anything that may came out of the Williams review. We do not know what that will be; I am obviously aware of the Labour party position, which is to renationalise the railways.

Our country has had several decades of that, and it led to significant decline. That is not an area on which we are seeking agreement today.

Can the Minister confirm that once we have left the European Union, renationalisation of the railways is a policy option that will be easy to deliver, unlike under EU public procurement rules? Will he confirm that if parliamentarians should choose to renationalise the railways—I would certainly vote in favour—that can be done once we have left the European Union?

I call on the Minister to answer that briefly, because it is outwith the scope of these orders.

You are being quite tolerant, Mr Hosie. The hon. Member for Bassetlaw is correct to say that various opportunities will arise after we have left—I think we should be saying when, rather than if, we leave—the EU. It is fair to say that it would be easier to renationalise the railways when we have left, but the hon. Gentleman needs to reflect on his use of the word “easy”, because it would not be easy, and despite the last Labour manifesto saying that it would be free, there would be a giant cost to it. Renationalisation of the railways is not a matter for today, but these regulations would not impact on it, if a potential future, mistaken Government chose to make that mistake.

Regarding preparation, the key thing is that not many people will be affected by the two-year implementation period, during which we would seek to ensure that anyone with a train driving licence issued in the EEA had it relocated and issued here. The same goes for a rail operator. It may help the Committee if I highlight that on the rail operating side, we think just one operator is affected. It is a small freight operator in Norfolk that is not currently operational, and the regulator is already working with it to sort out the amendment to its licence.

Between 1% and 1.25% of train drivers in the UK have their licence issued in the EEA. To quantify that, it is about 250 people. Work between the operator and the regulator to correct the situation has been under way for about four or five months. We are not anticipating any problems whatever. It seems that two years is reasonable, considering that we are already well under way and the industry has welcomed the work in all our consultations.

Can the Minister confirm that when the new regulator comes into force, the licence will have a simple transition and there will be no re-examination of train drivers?

It will, indeed, be a very simple matter. Our work is welcomed by the industry, as it brings clarity. We have taken a very pragmatic approach. It is not a question of seeking to cause problems; it is about ensuring that we have a regulatory framework for the smooth operation of our railways. Not precluding any future changes or packages, it is about now and having regulations in place should we leave without a deal. The industry has welcomed the proposed legislation, and that is the point I want to make. Only a very few people are involved.

The changes will make our rail sector regime more effective and provide certainty to train drivers and rail businesses. They will ensure a seamless transition of the existing licensing regime on exit day—not if there is an exit day. They will maintain the status quo and provide clarity, so I commend the statutory instruments to the Committee.

Question put and agreed to.

Draft Train Driving Licences and Certificates (Amendment) (EU Exit) Regulations 2019


That the Committee has considered the draft Train Driving Licences and Certificates (Amendment) (EU Exit) Regulations 2019.—(Andrew Jones.)

Committee rose.

Draft Plant Health (EU Exit) Regulations 2019 Draft Plant Health (Amendment) (England) (EU Exit) Regulations 2019

The Committee consisted of the following Members:

Chair: Mr Virendra Sharma

Bradshaw, Mr Ben (Exeter) (Lab)

† Caulfield, Maria (Lewes) (Con)

† Coffey, Dr Thérèse (Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs)

† Coyle, Neil (Bermondsey and Old Southwark) (Lab)

† Cruddas, Jon (Dagenham and Rainham) (Lab)

† Debbonaire, Thangam (Bristol West) (Lab)

† Flint, Caroline (Don Valley) (Lab)

† Garnier, Mark (Wyre Forest) (Con)

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

† Hill, Mike (Hartlepool) (Lab)

† Jones, Mr David (Clwyd West) (Con)

† Martin, Sandy (Ipswich) (Lab)

† Percy, Andrew (Brigg and Goole) (Con)

† Quince, Will (Colchester) (Con)

† Rashid, Faisal (Warrington South) (Lab)

† Seely, Mr Bob (Isle of Wight) (Con)

† Stewart, Iain (Milton Keynes South) (Con)

Jack Dent, Committee Clerk

† attended the Committee

Sixteenth Delegated Legislation Committee

Tuesday 19 March 2019

[Mr Virendra Sharma in the Chair]

Draft Plant Health (EU Exit) Regulations 2019

With this it will be convenient to discuss the draft Plant Health (Amendment) (England) (EU Exit) Regulations 2019.

It is a pleasure to serve under your chairmanship today, Mr Marsha. The regulations, together with the Plant Health (Amendment) (England) (EU Exit) Regulations 2019, amend the existing domestic legislation that implements the EU’s plant health directive. That 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 import from third countries and movement within the EU single market of plant material in order to protect biosecurity and the £8 billion value of plant material to the economy, society and the environment.

This is a new statutory instrument covering obligations on plant health authorities, relating to retained EU law on plant health, which arise when we leave the EU. The instrument contains amendments to retained EU law to address technical deficiencies and inoperability issues. It sets out the import requirements from exit day to trading partners around the world regarding the harmful plant pests we want to stay free from, and the plants and plant products for which we require assurances that they have met our prescribed requirements. It also provides clarity to businesses on the pests, plants and plant products that will be regulated within the UK.

The requirements complement the Plant Health (Amendment) (England) (EU Exit) Regulations 2019, which set out the processes that businesses must follow regarding imports and internal movements of the plants and plant products subject to regulation. The instrument’s main purpose is to re-enact the existing list of harmful pests and plant material that apply in England, Wales and Northern Ireland and related import and movement requirements, with appropriate amendments to reflect the UK’s withdrawal from the EU.

Scottish Ministers have decided to introduce separate legislation in Scotland and their equivalent legislation will include the existing risks, and thus give effect to UK-wide arrangements. Even though plant health is devolved, the devolved Administrations have worked closely in developing their EU exit legislation to ensure a co-ordinated approach. As a result, these regulations apply to England, Wales and Northern Ireland, with the equivalent arrangements in Scotland. In practice, this means we have a common list of regulated pests and plant material across the UK on exit day that remain the same as in our existing list, which transposes the EU’s list of harmful pests and material.

The instrument also sets out amendments to deal with technical deficiencies and retain directly applicable EU legislation to ensure plant health legislation operates effectively. For example, it provides derogations to facilitate the import of specified material, such as bonsai plants from Japan, to ensure this trade can continue under the same 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, such as Xylella fastidiosa, in the event of outbreaks—not that we want an outbreak of that. For this instrument, the plant health authority is the Secretary of State in relation to England; the Welsh Ministers in relation to Wales; and the Department of Agriculture, Environment and Rural Affairs in relation to Northern Ireland. The forestry commissioners are the relevant authority for timber and forest pests in England.

Technical expertise and advice to Ministers, as well as actions to control outbreaks, will continue to be provided by Government officials and agencies, including the Animal and Plant Health Agency. Our long-established UK plant health risk group provides a good example of how the UK’s plant health authorities and agencies work together to develop specific technical and scientific advice to UK Ministers on managing risks to plant health. This instrument is necessary to ensure that an operable legal framework is in place for exit day and to facilitate the flow of goods, while preserving the current plant health regime’s overall aim of preventing and managing pest disease and disease threats. I assure the Committee that Welsh Government Ministers and the Department of Agriculture, Environment and Rural Affairs in Northern Ireland have given their consent for this instrument.

The Plant Health (Amendment) (England) (EU Exit) Regulations 2019 are complementary, as I indicated. The existing orders set out obligations on businesses on 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 and the £8 billion value of plant material. As I have set out, the instrument amends the existing orders to address technical deficiencies and inoperability issues relating to retained EU law on plant health. The key point of this second instrument is that it provides clarity to businesses on the requirements that they need to meet and the authorisations and checks they will be subject to when importing or moving regulated plants and plant products. As is set out in the other regulations, they will set out the list of pests and diseases in plant material that is subject to regulation.

I should make clear that, although businesses will see some changes to import arrangements, those are risk-focused, avoiding unnecessary new burdens while, importantly, preserving the current plant health regime’s overall aim of preventing the introduction and spread of pest and disease threats. They do not in any way diminish our controls in this important area and seek to protect biosecurity, while continuing to facilitate trade in plant material.

As I have said, the purpose of the regulations is to correct technical deficiencies—for example, revising 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. The aim is to provide clarity to third countries that, following exit, the UK will continue to maintain the same control over the production of potatoes.

There are two aspects in the instrument in relation to the changes to import arrangements that I highlighted. First, regulated plant material that currently enters the UK from the EU or Switzerland with an EU or Swiss plant passport will in future require a phytosanitary certificate, 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 once we leave. In order to maintain the flow of goods, this regulated plant material from the EU or Switzerland will not be subject to routine physical checks at the border. That recognises that biosecurity risks from such material do not change immediately on exit day.

Secondly, businesses wishing to bring third-country regulated goods, such as tomatoes from Morocco and cut flowers from Israel and Turkey, into England via the European Union and through roll-on/roll-off ports in England will be required to facilitate plant health checks, which will take place inland at approved premises prior to their release. These new inland checks are necessary to maintain the biosecurity assurances currently provided by checks at the EU border given that other EU member states will no longer be required to carry out those checks on goods in transit for the UK after we leave the European Union.

On a point of clarification, by “plants”, does the Minister also mean trees? I have recently met with the Woodland Trust, which is very concerned about diseases such as ash dieback. They want to properly protect our indigenous species, and this is the way to go about it.

Yes, I do. The forestry commissioners will be the relevant authority in that regard. The majority of ash dieback issues are blown in, so there is nothing we can do about that anyway. The key issue for us is to protect our domestic forests and woodlands from biosecurity risks.

The direct cost on businesses arising from these changes to import arrangements is 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, and they continue to engage with businesses to support preparation for day one changes.

This instrument also provides for a system of UK plant passports to replace EU plant passports to maintain existing safeguards, to protect biosecurity from the trade in regulated plant material within the UK. The costs and burdens on businesses using plant passports should not change.

The other amendments are: a new offence in relation to the new import regulations just outlined; a new offence to force any failure by businesses or landowners to comply with pest control measures specified in a statutory notice in demarcated areas where there is a pest outbreak; and consequential minor amendments to inspection fees. These regulations apply to England only. Wales, Northern Ireland and Scotland will hold separate equivalent legislation just as they do now. This second instrument is necessary to ensure that an operable legal framework is in place for exit day to facilitate the flow of goods while preserving the current plant health regime’s overall aim of preventing and managing pest and disease threats.

It is a pleasure to serve under your chairmanship, Mr Sharma. The two statutory instruments we are supposedly considering today are 210 and 58 pages long respectively. I say “supposedly” because I do not suppose for one moment that many people in this room have carefully read both documents and fully understand exactly what each one says. We had less than a week’s notice of them being tabled for today. Stakeholders whose pertinent contributions may have been able to influence amendments to the SIs have, for the most part, not responded at all because they are simply overwhelmed by the volume of SIs and are unable to engage.

The Government are proceeding with these SIs because they have to, but the process has become nothing more than a manic tick-box exercise. It did not have to be like this. We have had two and a half years to sort out a deal, and yet the threat of a no-deal Brexit remains very real, with just 10 days to go and a mountain of work still to be done if we do leave without a deal. If the Government intended to maintain the possibility of a no-deal Brexit, we should have started working our way through these SIs months ago, but we only got going on them this year. I confidently predict that there will be mistakes—perhaps not in these particular SIs, but in some of them—and that they will have serious consequences for our residents and businesses over and above the massive overarching mistake, which is the way in which this Government are failing to handle Brexit.

Yesterday the hon. Member for Camborne and Redruth (George Eustice) suggested in response to an intervention of mine that, because of their dedication and professionalism, officials who have worked very late into the night on the hundreds of SIs needed in a short amount of time cannot possibly have made any mistakes. Nobody has more boundless admiration than I for the people who have produced all this difficult and detailed secondary legislation, and I would like to put on the record Labour Members’ appreciation for their work. However, anyone put under that amount of pressure and who has to juggle a number of separate SIs simultaneously is susceptible to inadvertent error. It is of great importance that there is no mistake in these SIs.

Those of my age will remember the magnificent elm trees that used to grace our countryside. We now have ash dieback destroying our ash trees and blight sapping the strength of our horse chestnuts. It is a continuous battle to protect our crops and our wild flowers from exotic diseases and bacteria such as Xylella fastidiosa, and the presence of diseases and pests in imported plants is an ever-present danger to our native species. As pointed out by my hon. Friend the Member for Workington (Sue Hayman) during a Westminster Hall debate in June 2018, Prospect recently submitted evidence to the House of Lords EU Energy and Environment Sub-Committee inquiry into biosecurity, recommending better training for plant health officers. Does the Minister agree that we need to establish a viable training programme for new and established inspectors, as well as joint trading ventures with the Horticultural Trades Association and the Royal Horticultural Society?

Dealing with pests and pathogens once they are in the UK will be far more difficult and more expensive than it would be to prevent their introduction in the first place. Given the volume of UK-EU trade, which we all hope will not diminish too much as a result of Brexit, the current system for sharing biosecurity intelligence with EU countries must continue in some form. Any loss of that integrated approach would pose a risk to UK biodiversity. Will the Minister commit to retaining the precautionary principle in implementing biosecurity legislation? Have the Government put any thought into a plan to deliver future biosecurity collaboration with the EU post-Brexit?

The Plant Health (EU Exit) Regulations 2019 set up lists for England, Wales and Northern Ireland that replicate current EU lists. They ensure that protected zones can continue to be protected from pests and that emergency measures can continue to be applied where necessary. However, a large raft of EU legislation is being revoked because it is considered to be redundant. Has the Minister looked carefully at schedule 17? Has someone other than the authors of the SI, and with a vested interest in finding any mistakes, been through it with a fine-tooth comb? This is precisely the sort of area—the revocation of supposedly redundant regulations —where it might be easy to make a mistake.

The schedule revokes only 24 EU regulations and Commission decisions, but given that I have not had a few weeks to read through them I am afraid that I cannot say whether they are all redundant. The EU plant health directive requires checks on material imported from third countries at the first point of entry into the EU. However, once we have left the EU the intention is to allow plant material from third countries to pass straight through the EU without checking, to enter the EU without checking at the border, and to rely on checks at the destination premises of the importers. How do the Government intend to ensure that all the plant material brought into this country from third countries without checks is actually going to be checked? How will they ensure that no invasive species, pests or diseases escape into the environment between their entry into this country and being checked at the destination premises?

Does the Minister believe that it is more appropriate to offer a lighter-touch inspection regime to imports via ro-ro ferries than to other forms of transportation? Surely, the situation will give importers an added incentive to use ro-ro, which is a less environmentally friendly form of transport than other alternatives. Have the Government made any estimates of the amount of plant material that is imported from third countries via the EU every year? As it is not currently checked, I am not clear that we know how much there is or, therefore, what resources will be needed to check it. If those imports are not checked properly at the multiple inland destinations at which the checking will take place, does the Minister agree that there will be risks for biosecurity?

The explanatory memorandum details the additional costs that will be faced by businesses as a result of needing to use a UK plant passport and having to pre-notify for imports from the EU. I cannot find any acknowledgement of the additional regulatory costs that may be entailed by exporting plant material from this country to remaining EU countries. Can the Minister give us any information about the regime for exporting plant material from the UK to the remaining EU countries, or does she not expect that to happen in the future?

We cannot find anything in these SIs that we believe to be fundamentally wrong, but at the same time we fear that they may contain mistakes or inadequacies that could have serious consequences for plant health in the UK after Brexit. We have had neither the time nor the resources to satisfy ourselves that that is not a danger.

I thank the hon. Member for Ipswich for his questions. There has been direct engagement with stakeholders. Officials prepared for that in anticipation of what was needed.

The hon. Gentleman referred to databases. There is some precedent for third-country access to EU notification systems, which we will seek to negotiate with the European Union. However, we have contingency plans for the eventuality that we lose access to such notification systems. We are developing our own database to capture the details of interceptions and incursions from day one to inform our decision making. All EU systems have publicly available elements, which the UK will continue to be able to access after EU exit, but it is our intention to continue proactively to share information with the European Union.

Our dedicated UK-wide risk and horizon-scanning team will continue to gather intelligence on plant health risks and tree health risks, including from other organisations, agencies and networks, and by increasing bilateral relationships with key trading partners and nearest neighbours. Functionality has been added to the UK-owned and run plant health portal to replace some of the EU notification system functions.

On the hon. Gentleman’s question about transit, it is not the case that we will reduce quality in that regard. I am not sure where he was informed that we will not check goods until they get to their destination. There should be approved premises inland. That is done deliberately to recognise that products will be transported safely in a roll-on/roll-off situation—usually in a container. It is fair to say that we need to anticipate that that may initially require some higher level of inspection, but I know that APHA is recruiting. I am trying to recall how many people—I have the figure 30 in my head—but perhaps officials can provide me with the number, which they informed me of the other day but I regret I do not have instantly to hand.

Our focus for day one is those goods that have been deemed a plant health threat and are covered by the EU plant passport system. At present, those goods are not systematically checked when imported, but the businesses dispatching them must ensure that they meet certain requirements and must be officially authorised and audited on a regular basis. In future, those goods will be accompanied by a phytosanitary certificate, an official document issued by the relevant national plant protection organisation confirming that prescribed requirements have been met. Those requirements will be the same as under the plant passport scheme, and a phytosanitary certificate will be required for each consignment exported.

That will require a greater level of official oversight than is currently necessary under the plant passport scheme, but it is necessary to meet our international obligations. We will continue our risk-based programme of inland surveillance as a further check that such requirements are being met.

I do not have a list of the premises to hand. I do not know whether my officials have one, but if they cannot provide me with that information before the Committee rises, I will write to the Committee with it.

No, because I am trying to finish my answer to the hon. Member for Bermondsey and Old Southwark. I am very conscious that different elements of checks will be required. I have been informed by officials that 227 extra officers have been recruited to facilitate the inspections that we believe may be necessary.

If the hon. Member for Ipswich would like to intervene now, he would be very welcome to do so.

I apologise if I have misunderstood the advice in the explanatory memorandum, but I was under the impression that importers would be able to register their premises. That was the basis on which I was talking about the destination of imports. Clearly, the Government do not control how many premises are registered—unless, of course, they decide not to register them, in which case they will have a problem, because people will no longer be able to import.

I have since been informed by my officials that the hon. Gentleman is correct in his assertion. The location of these centres around the country will vary, but the total of 227 APHA full-time equivalents is a significant increase. I think it is nearly double the current number. They will be able to undertake those additional controls. Forestry commissioners currently have about 10 FTEs, and they will be increasing that by a further five in order to be able to undertake the work for tree imports.

It is important to note that it is mainly plants and trees that will be planted, rather than fruits, vegetables and flowers, which will largely be able to continue to enter the UK freely from the EU. To give some assurance to the Committee, it is important to say that it is not the case that people will just be able to self-register premises. Recognising how important it is to protect the biosecurity of this nation, APHA inspectors will need to approve those premises in advance. I do not think that somebody’s back garden can suddenly become an import, unless it is so perfect that APHA agrees that it is necessary—well, it could be a very fancy back garden, I suppose.

The hon. Gentleman asked about training and a better training programme. I have already outlined that we will have additional plant health inspectors and additional Forestry Commission inspectors. We will be working with the industry, including the Horticultural Trades Association, to develop a plant health assurance scheme that will include training. I am confident that that programme will work well.

I have already answered the question about databases, and I have tried to answer the question about transit in the third country. We do not have data on the volume of EU transit trade, as regulated goods from third countries are currently checked at the first point of entry into the EU, after which they move under single market arrangements. However, APHA estimates that there are about 14,500 consignments from third countries that transit the EU for entry to the UK. That reflects the substantial increase in the number of plant health inspectors, who are already being recruited.

I have tried to answer all the questions, but I keep being sent more information so I will not have to write to the Committee. So far, about 25 businesses have been improved for the inland facilities check. APHA estimates that a maximum of about 100 will be considered eligible. It will be for businesses to decide whether they want inspections for the non-roll off. Felixstowe is one of the major areas and it already carries out such checks at the border. It will be for businesses to decide if they want to change the situation, but in my experience as the local MP for Felixstowe, one of the major ports, there is no reason why we would expect businesses to change that regime.

My noble Friend Lord Gardiner is responsible for biosecurity. I know of nobody who is more passionate about trying to ensure that we prevent all these different diseases from entering our country. My right hon. Friend the Secretary of State wrote to the Commission about, and the Department for Environment, Food and Rural Affairs worked with the Commission last year on, trying to get more checks on Xylella fastidiosa, because there is a genuine worry about that coming up, in particular from Italy. We are desperate to ensure that it does not cross into the United Kingdom. Our scientists believe it is only a matter of time with regard to how some of these things might get travelled, but we know that the number of species it affects keeps rising; at one point it was 50, but now it is considerably higher. I assure the Committee that we will continue to press the case on ensuring that we have biosecurity.

I really feel that I have answered all the questions about the regulations, as opposed to broader policy.

My intervention is linked to my previous question. The Minister mentioned the 14,500 potential checks and 25 extra sites to prevent that disease and others from coming in. I assume the experts know how long these checks are estimated to take. Given the doubling of the workforce required to do that, how much will it cost?

I do not have the cost to hand. I have not been given the costs of the extra staff to do that. [Interruption.] I do not have a value for how much it costs today. The issue is part of Lord Gardiner’s portfolio, and if he were here I expect he would give the answer in a second. If the hon. Gentleman really wants me to find out the costs, I will do so. I am not sure when I will be able to get that information to him, but I will write to him and the Committee.

I think I have answered all the questions about the draft regulations, Mr Varma, and I hope the Committee will agree to them.

I am sorry.

Question put and agreed to.


That the Committee has considered the draft Plant Health (EU Exit) Regulations 2019.

Draft Plant Health (Amendment) (England) (EU Exit) Regulations 2019


That the Committee has considered the draft Plant Health (Amendment) (England) (EU Exit) Regulations 2019.—(Dr Thérèse Coffey.)

Committee rose.

Draft State Aid (Agriculture and Fisheries) (Amendment) (EU Exit) Regulations 2019

The Committee consisted of the following Members:

Chair: Mr Laurence Robertson

Campbell, Mr Ronnie (Blyth Valley) (Lab)

† Debbonaire, Thangam (Bristol West) (Lab)

† Docherty-Hughes, Martin (West Dunbartonshire) (SNP)

† Duguid, David (Banff and Buchan) (Con)

Eagle, Ms Angela (Wallasey) (Lab)

† Goodwill, Mr Robert (Minister for Agriculture, Fisheries and Food)

† Hall, Luke (Thornbury and Yate) (Con)

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

† Hoare, Simon (North Dorset) (Con)

† Hollinrake, Kevin (Thirsk and Malton) (Con)

† Jones, Darren (Bristol North West) (Lab)

† Jones, Graham P. (Hyndburn) (Lab)

† Morris, David (Morecambe and Lunesdale) (Con)

† Pollard, Luke (Plymouth, Sutton and Devonport) (Lab/Co-op)

† Pursglove, Tom (Corby) (Con)

† Stewart, Iain (Milton Keynes South) (Con)

Yasin, Mohammad (Bedford) (Lab)

Dominic Stockbridge, Committee Clerk

† attended the Committee

Twentieth Delegated Legislation Committee

Tuesday 19 March 2019

[Mr Laurence Robertson in the Chair]

Draft State Aid (Agriculture and Fisheries) (Amendment) (EU Exit) Regulations 2019

I beg to move,

That the Committee has considered the draft State Aid (Agriculture and Fisheries) (Amendment) (EU Exit) Regulations 2019.

I make my debut, once again, Mr Robertson; the Government are very much in favour of recycling, and here I am.

The regulations are one of a number of affirmative statutory instruments to be considered as the UK leaves the EU, made under the European Union (Withdrawal) Act 2018. The SI makes technical, legal amendments to maintain the effectiveness and continuity of retained EU legislation, so that following our exit from the EU the law will continue to operate effectively. I assure the Committee that the adjustments contain no policy changes, nor will they have any significant impact on businesses or the public.

The instrument refers to specific state aid regulations on agriculture and fisheries. It does not make provision for the broader domestic state aid framework, which is addressed in the State Aid (EU Exit) Regulations 2019. That instrument, laid by the Department for Business, Energy and Industrial Strategy, passed through the upper House last week. It transfers monitoring and reporting functions from the European Commission to the UK domestic state aid regulator, the Competition and Markets Authority—ably chaired by our former colleague, the now Lord Tyrie—and provides the framework for the instrument we are discussing today. I hope, Mr Robertson, you will agree that wider questions about the new domestic state aid regime are not, therefore, within the scope of the debate. I will endeavour not to be tempted if right hon. and hon. Members raise questions along those lines. The House will have the opportunity to debate the BEIS framework state aid instrument in due course.

The relevant EU regulations covered by the instrument we are discussing fall into three groups. The first consists of two block exemption regulations that currently exempt certain categories of agricultural and fisheries funding from the state aid requirement under articles 107 and 108 of the treaty on the functioning of the European Union: Nos. 702/2014, the agricultural block exemption regulation, and 1388/2014, the fisheries block exemption regulation. With the second group, the amended legislation provides that agricultural and fisheries aid under a certain de minimis threshold does not constitute state aid under agricultural, and fisheries, de minimis regulations, Nos. 1408/2013 and 717/2014 respectively.

Finally, the statutory instrument amends state aid clauses in some of the common agricultural policy regulations, exempting funding provided under those regulations from the state aid requirement under articles 107 and 108 of the treaty on the functioning of the EU, and also ensures the proper operation of those funding arrangements. Those regulations are 1303/2013, the CAP common provisions regulation; 1305/2013, the rural development regulation; 1307/2013, the direct payments regulation; and 808/2014, the implementing regulation under the rural development regulation.

The statutory instrument corrects deficient references throughout the retained agriculture and fisheries state aid regulations to, for example, the Commission, member states and the internal market. For instance, in regulation 5 of the agricultural block exemption regulation, references to “Commission notices” are being replaced with references to “Competition and Markets Authority statements of policy”.

The SI also transfers a number of minor Commission functions to the domestic regulator. For example, regulation 1(4)(a) of the agricultural block exemption regulation provides that when the UK has exceeded its annual state aid budget certain categories of aid are exempted from state aid rules for six months only, unless the Commission extends the period, and the SI gives the Competition and Markets Authority the power to extend that period.

I emphasise that the instrument corrects deficient references in retained EU regulations from day one. We have not made any substantive policy changes. I underline the fact that the legislation ensures that all exemptions continue. As we leave the EU, the amended regulations will ensure that the agriculture and fisheries state aid exemptions are operable in the UK, which will give continuity and greater certainty to businesses across the UK. I therefore commend the instrument to the Committee.

It is a pleasure to serve under your chairmanship, Mr Robertson. I welcome the Minister to his re-debut. As is normal when the Opposition respond in a statutory instrument Committee, I place on record our concerns about the speed and volume of statutory instruments being pushed through the Commons, and our fear that, within those SIs, there could be a little nugget that might otherwise have been caught with greater scrutiny and which could have severe consequences in the future.

I thank my hon. Friend for giving way, unusually to his Whip, but on that point, does he agree that it is concerning that the Fisheries Bill and the Agriculture Bill appear to be missing in action? Will he join me in placing on record our concerns about those Bills being missing and about how they might relate to the SI?

My hon. Friend the Member for Ipswich (Sandy Martin) said yesterday that the Agriculture Bill is stuck in the long grass and the Fisheries Bill has sunk without trace. Notwithstanding the play on words, the mysteriousness is certainly true. Many of the SIs that we are considering are designed to fit into an administrative jigsaw alongside those two pieces of primary legislation, but they are nowhere to be seen. It would be good if the Minister, as the new Minister with responsibility for those Bills, confirmed on the record when he expects them to make a comeback. SIs such as this need to fit neatly with the provisions in primary legislation, and if we cannot see what the primary legislation looks like—especially if the cause of the Bills’ long delay is that the Government are rethinking large parts of them—it is uncertain how the implementation of the SIs will fit perfectly with it.

I appreciate that the Minister has said that the SI makes no new policy changes, but I have a few questions about how it will be implemented. Unfortunately, he dangled the hook of asking technical questions about the implementation, which I will take him up on, with apologies to him and his officials.

In a similar SI on state aid last week, the Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy, Lord Henley, said:

“The main practical change under the new regime is that the rules will be regulated by the CMA. To prepare for EU exit and its new state aid role, the CMA received £20 million for 2019-20. This is in addition to the £23.6 million it received for 2018-19. The Government are working to ensure that the CMA will be ready to take on this new role and have every confidence in its ability to do so.”—[Official Report, House of Lords, 14 March 2019; Vol. 796, c. 1146.]

That was a fine assertion from the Minister, but I would be grateful if this Minister also confirmed that he believes that the CMA has sufficient resources in place, and has hired sufficient additional staff to ensure that implementing the SI will not be put on the backburner, but will be done properly.

Concerns have been expressed by stakeholders in that regard. Dr Liza Lovdahl-Gormsen from the British Institute of International and Comparative Law talks about the significant challenges that the CMA will face at an administrative level, including the real risk of being under-prepared and under-resourced to take on the duties of the Commission. That is also our concern, as I will explain when I come to the SI’s implementation.

Dr Lovdahl-Gormsen sets it out that the challenges facing administrative bodies in the UK, particularly the CMA, can be understood as possessing three key dimensions: internal organisation issues, external co-ordination issues and substantive legal issues. She and her colleagues argue that, in many instances, those three dimensions will be in tension with one another, so the reality of reforming administration post-Brexit will involve trade-offs between questions of internal organisation, external co-ordination and substantive law. I would be grateful if the Minister addressed whether any of the challenges set out by Dr Lovdahl-Gormsen apply in relation to the powers contained in the SI.

The Minister will know—or if he does not, he will get used to it, because it happens quite a lot in SI Committees where I speak on behalf of the Opposition—that I remain concerned about there being no impact assessment. The explanatory memorandum states the SI has

“no, or no significant, impact”,

and also that no impact assessment has been done. The tension between confidently asserting that there is no impact, when there could be some, and saying that there is no impact assessment does not sit well with me. I know that in many cases the problematic tension comes from the text required by the House, but as the Government control the House—at least in theory—changes could be made to help hon. Members and those watching our proceedings to understand the distinction there.

In regulations 29 to 46, references to aid co-financed by the European Agricultural Fund for Rural Development —the EAFRD—are substituted with a loose ambition of “support for rural development”, which is not accompanied by any firm or tangible objectives. I would be grateful if the Minister set out how he intends to make that clearer. The EU framework for rural development programmes follows six priorities, and “support for rural development” in no way replaces the EAFRD’s objectives. Will the Minister set out how he intends to do that?

Those six objectives are good principles for rural stewardship. They are: fostering knowledge transfer and innovation in agriculture, forestry and rural areas; enhancing the viability and competitiveness of all types of agriculture, and promoting innovative farm technologies and sustainable forest management; promoting food chain organisation, animal welfare and risk management in agriculture; restoring, preserving and enhancing ecosystems related to agriculture and forestry; promoting resource efficiency and supporting the shift toward a low-carbon and climate-resilient economy in the agriculture, food and forestry sectors; and promoting social inclusion, poverty reduction and economic development in rural areas.

I hope that the Minister and members of the Committee realise that that is a much more comprehensive and important list of priorities than the simple phrase “support for rural development”. My concern is that some of the detail of those important programmes and priorities could be lost within such a vague, catch-all title.

Although Brexit presents an opportunity to re-write some of the rural objectives outside the CAP, Opposition Members have concerns about how that will be done without the firm commitments to supporting rural development I have just outlined, and which will be lost when the CAP moves off. I realise that some of those commitments may be contained within a refreshed agriculture Bill, but, as I noted earlier, without such a Bill it is hard to see the deletion from one set of principles and insertion into another that would greatly aid our scrutiny of the SI.

In the Fisheries Bill, we see that the Government have made no commitment to matching the current funding from the European maritime and fisheries fund, which is essential for so many of our coastal fishing communities and the facilities infrastructure they rely on. In Plymouth in my constituency, EMFF funding has been instrumental in providing a new ice plant at Sutton harbour, which has been important in ensuring that fishers have the ability to get good-quality ice, which enables them to sell their products. Without the commitment to replace every single penny of EMFF funding, there is a concern that state aid rules, however drafted, may cause problems, because less money will be available to those coastal communities. Will the Minister set out when he will be in a position to announce whether the EMFF funding will be cut? We have seen with the agricultural subsidies that rural communities could lose 40% of the current subsidy level under the new public goods scheme.

Also on EMFF funding, I would also be grateful if the Minister set out, in relation to state aid rules, what criteria will be used, what projects and beneficiaries might be identified, and what sums will be made available. Is it the Government’s intention in their negotiations that, if we are to leave the European Union, parts of the UK will be able to continue bidding into European-funded projects, as in Norway? The Minister’s predecessor had a particular penchant for the Norway option in relation to the promotion of Brexit; I have not yet got to the bottom of where this Minister stands, but the example of Norway is a good one in understanding how, or whether, our farmers would be able to access European funding.

What constitutes state aid is a deeply political issue that has been debated on the Floor of the House and in Committee Rooms more than once. My noble Friend Lord Stevenson of Balmacara, when debating the State Aid (EU Exit) Regulations 2019, said:

“It is generally recognised that state aid can do more than simply reduce distortions in competition. It can enhance public welfare, address inequalities, allow for investment in research and development for which there is no direct benefit to individual companies—which is probably therefore a public good—and address inequalities across various areas and regions.”

My noble Friend continued:

“Who has the power to set the framework under which the state aid is to operate? I have already mentioned that variable limits exist across the EU at the moment. There is no absolute limit on what you can spend. There are general rules. These are all matters which should surely have political rather than administrative control. Where will that lie? As I understand it, Parliament will not have a role in this. This matter is being devolved solely to the Secretary of State, who can issue guidance on what is or is not state aid. That surely needs some further check.”—[Official Report, House of Lords, 14 March 2019; Vol. 796, c. 1150-52.]

I would be grateful if the Minister set out what level of parliamentary scrutiny will be applied to any changes to the Government’s definition of state aid in respect of agriculture and fisheries, and what opportunities there will be for hon. Members to debate that to ensure that that definition is appropriate for all parts of our United Kingdom.

The Opposition do not intend to oppose the SI, but I would be grateful if the Minister provided clarity to ensure that there is good scrutiny of the provisions and that some of the concerns raised can be addressed.

It is good to see you in the Chair, Mr Robertson. I will not take up too much of the Committee’s time. Following what has just been said by the Opposition spokesperson, I am sure the Minister will appreciate that, although there is a need for continuity, there is still, at least on these Benches, opposition to withdrawal from the EU.

Nevertheless, in practical terms, the official Opposition have raised important points that need to be answered. Replacement of the European maritime and fisheries fund and how that relates to the devolved settlement raises grave concerns about design, implementation and involvement. Will the Minister say who has been involved in the design, whether that be the Scottish Government, the Welsh Government or the civil service of Northern Ireland?

Will the Minister also advise which elements will be devolved and if there is a timeframe for that? In relation to the devolved settlement, will the Minister be clear where in terms of the SI, the Scottish Government, the Welsh Government and specifically the civil service of Northern Ireland, given that there is not a sitting Government there to hold to account, have been involved? Will the Minister explain where that settlement is going?

I thank the hon. Member for Plymouth, Sutton and Devonport for the constructive way that he has approached this matter. The questions he asked me were precisely those that I asked my officials, to be reassured that nothing is changing.

The hon. Gentleman spoke about the speed and volume of the SIs. I apologise that there is so much legislation that we must transfer from the competence of the European Union so that we can take back control of some of these measures. I can reassure him that there are no missed nuggets. Indeed, one nugget that we did spot was the change that is under way in the European Commission to increase the de minimis fishing limit from €25,000 to €30,000 and we have managed to include that.[Official Report, 29 March 2019, Vol. 657 c. 5MC.]

The hon. Gentleman talked about progress on the Agriculture Bill and the Fisheries Bill. I am also keen to make progress and this SI relates to some of the measures that we could implement through the Agriculture Bill in particular, so that we can deploy taxpayers’ resource to deliver those public goods that we all want to see as a way to continue agricultural support. We are keen to schedule that business and particularly keen, as I discussed earlier, not to lose all the hard work that has been done.

The hon. Gentleman also talked about resources for the CMA. I can reassure him that the CMA has been allocated £20 million for 2019-20 to prepare for EU exit, which includes resources for setting up its new state aid function. That is in addition to the £23.6 million allocated for the financial year 2018-19. The SI heads off potential challenges to the CMA over what could be described as illegal state aid because it now makes it legal state aid. I am talking about, for example, the subsidies that farmers get—the greening schemes and the aid for the fishing industry—and the SI allows for that without its being illegal state aid.

The hon. Gentleman talked about the impact assessment. We did not do one because nothing has changed. All we are doing is transferring responsibilities from the European Commission to the CMA. If we did not pass the measure today, that would change and there would be additional work for the CMA. On rural development, we intend to maintain the aims of the work that is being done. We are not making any changes as we leave the EU. We will maintain the status quo as we leave. The rural development regulations are being rolled over by other SIs.

The hon. Gentleman talked about the EMFF. The Secretary of State announced on 10 December four schemes comparable with the EMFF to support industry from 2021 onwards. The funding quantum will be set following the spending review in 2019.

The hon. Member for West Dunbartonshire is understandably concerned that the measure might be seen as a land grab by the Westminster Government, but if he peruses page 4 of the document he will be reassured to read that article 2B states:

“In relation to Scotland, in respect of areas within devolved competence, the competent authority is the Scottish Ministers”,

and the same will apply to Wales. As somebody who has just finished being a member of the Northern Ireland Affairs Committee, I share his concerns about the need for a restoration of the devolved Administration in Northern Ireland so that they can make the decisions. Currently the civil service in Northern Ireland—the Department of Agriculture, Environment and Rural Affairs in the case of agricultural policy—is in effect on automatic pilot. It is becoming more and more difficult for it to navigate a way forward, given that the co-ordinates it is using were set when there was an Administration in place.

I am grateful to the Minister for what he has said, but I ask him again: has his Department discussed the SI with the civil service in Northern Ireland?

Yes. We continue to have close contact with the devolved Administrations, whether they have been democratically founded or whether we have the situation that exists in Northern Ireland. I can reassure the hon. Gentleman that I spoke to Fergus Ewing, who is responsible for this matter in Scotland, and I look forward to having a productive and cordial relationship with Mr Ewing, whom I found to be very positive about what we can do together to deliver not only for Scottish agriculture, but for Scottish fishermen.

I think I have covered the points made.

Question put and agreed to.

Committee rose.