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House of Commons Hansard
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Exiting the European Union (Pesticides)
01 October 2019
Volume 664

[Relevant document: The Twenty-seventh Report of the European Statutory Instruments Committee, HC 2264.]

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I beg to move,

That the draft Pesticides (Amendment) (EU Exit) Regulations 2019, which were laid before this House on 17 July, be approved.

Plant protection products, or “pesticides” as they are commonly called, are currently regulated by means of two European Union regulations: Regulation (EC) 1107/2009, which concerns the placing of plant protection products on the market, including the approval of active substances, authorisation of pesticide products and management of associated risks; and Regulation (EC) 396/2005, which sets maximum residue levels of pesticides in or on food and feed of plant and animal origin, and measures to ensure compliance with those limits.

Earlier this year, two EU exit statutory instruments were laid before this House to convert those EU regulations into operable national law: the Plant Protection Products (Miscellaneous Amendments) (EU Exit) Regulations 2019; and the Pesticides (Maximum Residue Levels) (Amendment etc.) (EU Exit) Regulations 2019. Those two EU exit statutory instruments, in common with many others, made the EU regulations operable in a national context by, for example, transferring functions from EU institutions to national authorities.

This further instrument, which we are considering today, is comparatively minor and simply takes forward some additional amendments that are required to ensure that the regime can continue to operate effectively. First, in common with two of the other SIs that we have considered today, the change in exit day from 29 March to 31 October necessitates that we amend certain dates in the retained law that were based on the original date for EU exit. Secondly, further new EU legislation has come into force during the extension period, after the plant protection products and the maximum residue levels EU exit SIs were finalised. The new EU legislation needs to be corrected following the same approach as in the other SIs. Finally, this instrument fixes some errors within those earlier EU exit instruments, which I will cover later.

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For the avoidance of any doubt, will the Minister confirm that there is no measurable impact on business as a result of the regulations?

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Yes, I can confirm that, in the sense that all the draft regulations are about continuity—an approach to ensure simply that where authorisations are carried out and decisions made by the European Commission, they will in future be made by the Secretary of State or the relevant authority.

Some amendments are required as a consequence of the change in our departure date. The plant protection products EU exit SI in particular contains a number of transitional measures that apply until specified dates. Those dates have been updated in common with the approach in other SIs. Given that exit day is now 31 October, those transitional provisions would allow much less time to adjust than was originally intended. This instrument therefore replaces dates that were calculated from the original exit date with a specified period of time after exit.

The draft regulations also deal with new EU legislation that has come into force since the original EU exit SIs were produced. The plant protection products and the maximum residue levels EU exit SIs converted active substance and MRL regulations into a new national register to give effect to the provisions in a national context. The EU regulations themselves were no longer required and therefore revoked. This instrument deals with new EU regulations that have come into force since then, and we have taken the same approach. Some outdated EU regulations have also been superseded or replaced, and those have now been identified as redundant, so they can be revoked.

This instrument also contains transitional provisions relating to grace periods for the withdrawal of active substances under EU regulations, so that they are carried across unchanged into our national law. Finally, this instrument also fixes a number of technical errors that were made in the earlier EU exit instruments. The vast majority of those were very minor in nature. However, I should draw attention to the fact that it came to light that the earlier plant protection products EU exit SI erroneously removed some provisions on endocrine disrupting chemicals. That omission was purely unintentional and this instrument therefore corrects that error.

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I am glad that the Minister has admitted that this error took place, but the Department has had to bring forward about 80 or so SIs over the summer. Has it conducted a review to ensure that similar errors have not been made in other legislation or are we are going to see a repeat of this situation, with other last-minute amendments?

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Well, a point was made earlier that this has been an extraordinarily huge task of converting a highly complex body of EU law across into national law. When the EU (Withdrawal) Act 2018 was passed, it was even envisaged that there may be circumstances where there were errors, omissions or oversights. The hon. Lady will be aware that that Act makes provision for SIs to continue to be made in the event of errors occurring. I deal closely with the team of civil servants who have been working on this legislation, so I know that they have a huge amount of technical knowledge and have drafted the instruments we have been discussing today to the best of their ability to ensure that they have covered everything. But there can be difficulties if a last-minute update contained in particular EU document that is needed to make a particular element of EU law operable is not noticed; sometimes these things will come to light. The important thing is that we are clear about what we are trying to achieve, which is continuity, and that we put things right when they arise.

This instrument was originally submitted under the negative resolution procedure. We subsequently accepted a recommendation from the House of Commons sifting Committee that it be upgraded to the affirmative procedure and debated in the Chamber today on the basis that it includes a provision that relates to the charging of fees. In practice, this measure simply removes a redundant EU provision that clarified that member states could charge. The instrument does not change the existing fees and charges relating to the pesticides regulatory regime, nor does it have any effect whatever on the UK’s future ability to charge fees or make changes to the current fees. That relates to the point made by my right hon. Friend the Member for East Yorkshire (Sir Greg Knight), who I know is very concerned about these issues, but I hope that I have assured him that this changes nothing about the existing charging regime.

We have worked closely with the devolved Administrations —as we have on all the other measures we have discussed today—to develop this instrument, and they have consented to it being made on a UK-wide basis. I therefore commend it to the House.

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This is the most controversial of the four SIs that we have dealt with today, and we had a forthright debate on this subject previously in Committee. Much of that debate was about the theme I have been pushing today—that is, questioning the process of oversight and accountability.

The Royal Society for the Protection of Birds and Pesticides Action Network have both contacted me to demand that the Opposition scrutinise what the Government are saying and doing, so it was at our behest that this instrument was moved from the negative to the affirmative resolution procedure. In fact, we were tempted to vote against it on the basis that the Government need to explain better and to be clearer about how they intend to carry through—not just legislatively, but practically.

As I said earlier, this is about dissecting the parts that we have played as an integrated constituent partner within the EU, and how we begin to pull away. Two of our major agencies—the Food Standards Agency and the Health and Safety Executive—will be involved in this process. The HSE will almost certainly be responsible for testing the measures. It is therefore important that we know from the Government what they intend to do and how they intend to do it.

The RSPB and the Pesticides Action Network made six points. First, there is the loss of oversight checks and balances for a significant consolidation of power within an agency that, as such, does not exist at the moment. That is why I referred to the FSA and the HSE, because they are certainly going to have to be responsible for this in the short run. Secondly, there is the weakening of the requirement to obtain independent scientific advice that I referred to previously. Thirdly, there is the weakening of other standards. Fourthly, there are the important parts of the regime left unclear or with detail to be filled in through guidelines. I accept that this debate is partly about trying to clarify further where we might be in terms of those guidelines, but it is not yet absolutely clear what is going to happen. Fifthly, there is the loss of capacity and the lack of investment in the stand-alone regime. Again, I keep referring to that. Finally, as I have said and they confirm, there are the mistakes that were made in drafting these SIs on a previous occasion.

In the previous debate, the Minister’s predecessor, the right hon. Member for Scarborough and Whitby (Mr Goodwill), gave me some assurances. However, this is a work in progress and not necessarily something that has yet been completely nailed down by the Government. It is really becoming very important. I am still not clear what has happened to the REACH—registration, evaluation, authorisation and restriction of chemicals—directive, for example. This will be a very major part of what the REACH directive, as constituted when it comes into UK law, then entails, because pesticides, or plant protection products as they are properly referred to, will be an important part of what it is properly accountable for. I would welcome the Minister saying something about that. The chemicals division of the HSE has 150 people because it is largely operating within the framework of the EU. It will not be doing that after 31 October, so it will be important to know exactly how this is going to be constituted in a different format, given that we still do not have the environment Bill enacted.

There are other concerns that are important at this stage, to reiterate what I said in Committee, cost being one of them. The Minister has presumably looked at who is going to pay for this, because it will potentially be more expensive when we have a stand-alone regime.

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I share my hon. Friend’s concerns. One of my concerns is that the Government may seek to recoup some of these costs, or to make savings, through the weakened requirement to obtain independent scientific advice. As I understand it, the measure now says:

“The assessing competent authority may obtain independent scientific advice where it considers it appropriate to do so.”

That is quite a bit weaker than the current requirement where it says that it “shall” obtain advice. That may be one way in which the Government would seek to save money.

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I thank my hon. Friend. That is one of the things we waxed lyrical about in the previous incarnation of this debate where we looked at “may” replacing “shall” and “must”. That gives—dare I say it?—a degree of wriggle room about how this is going to operate. This really does need sorting out by the Government because it will be too late if we get to this stage in a month’s time and it is not at all clear what is going to happen. This matters, because farmers need clarity.

I read today the report on the ban on neonicotinoids. I do not pretend to understand everything in it, because I read it quickly, but it was quite interesting. It looks at some of the scare stories put about that neonicotinoids would lead to a dramatic reduction in sugar beet and other products, whereas that does not seem to have been the case initially. We need to know what pesticides will be allowed and who will scientifically adjudicate on their safety. Will we have a different regime? We could choose to ban glyphosates, which the EU decided not to do, largely at the instigation of British MEPs. That matters to not only farmers but every gardener, because most of us have Roundup in our sheds and, if we are ever going to dispose of it as a potentially hazardous product, we will have to think about how to do it.

These debates are crucial, and this one has a more far-reaching impact than any, so we have to ensure that we get this right. It would be interesting to know from the Minister whether this is the final time we will consider this; what mechanism is now in place, whether it be the HSE working with the FSA or, eventually, the office for environmental protection, which presumably will encompass those two agencies when it comes to these products; and the detail of how we are changing the process of looking at the scientific basis of how we deal with these products, which are potentially quite hazardous but which farmers would argue are crucial to the way they carry out their business.

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I will start by saying how grateful I am to the Minister for his praise of independent countries as the way forward in our previous debate. I look forward to his support for Scotland deciding its own future.

This instrument is the one where an opportunity was missed. All of us will have received the briefing from the RSPB, which sets out how the SI fails to address issues with pesticide regulation, but it is worth laying them out a little, so that they are on the record for future battles.

Oversight will be lost and power centralised. The new system will see new DEFRA Secretaries having a great deal of say over what is considered appropriate. That power should be devolved, so that the devolved Administrations can consider the best interests of their nations and agree common frameworks where appropriate. Gone will be the requirement to consult the scientists, allowing those who say, “Experts—who needs them?” to have a free hand for dismantling sensible safeguards. That is a bad thing. We have seen the damage caused by disregarding experts.

The revocation of EU regulations on pesticides without corresponding safeguards being introduced seems another exercise in flinging caution to the wind. I hope that it is not part of the abandonment of the precautionary principle signalled by the previous DEFRA inhabitant, who also trumpeted the freeing up of genetically modified organisms and associated practices as one of the supposed benefits of Brexitannia. This SI also leaves big chunks of the regulatory landscape barren, with the future to be mapped out in guidelines rather than legislation. That is likely to leave regulators flying by the seats of someone else’s pants.

Pesticides, fertilisers and genetically modified organisms will be the touchstones of future battles on food safety, and this marks a reduction of our protections, which does not bode well for the future. It does not bode well either for protecting our food against low-quality imports. Can the Minister give us a guarantee here and now that hormone-pumped beef and chlorine-washed chicken from the US will not be allowed on to our supermarket shelves?

We will return to these battles time and again, no doubt. This instrument, like the others, will be passed today. Ironically, they represent the first points on the board of this Prime Minister’s time in office and they were written for his predecessor’s Government.

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Whatever the risks to food safety and to agricultural producers and retailers from any errors in the other SIs we have debated, which deal with markets and import and export licences, they are massively enhanced by the risk of errors in any SIs pertaining to pesticides. This SI amends serious errors in the previous SI and gives us no confidence that there are not errors in other SIs dealing with regulations from the European Union that protect our health and our environment.

I am not enough of a lawyer to know whether it makes any difference to somebody who wishes to try to get away with an increased residue of 1,4-dimethylnaphthalene that it was identified in the previous SI as “1,4-dimethyl- napthalene”. However, other errors clearly would have allowed the use of dangerous pesticides, dangerous quantities of pesticides or inappropriate applications of pesticides if they had not been corrected by this SI. I direct hon. Members to regulation 6(4), which reverses the erroneous omission of provisions of annex 2 to regulation (EC) 1107/2009.

The problem we have is that, given the long, convoluted and dry naming of all these SIs, it is extremely difficult to identify where the errors are, but they are really important. In this case, if it were not for the correction in this SI, we would not have been able to prohibit the approval of active substances, safeners and synergists with endocrine-disrupting properties. Endocrine-disrupting properties have a significant effect on animal and human health.

If there are similar errors in other SIs, there is a real risk that we may open ourselves up to unhealthy reduction of our safeguards as part of negotiations to achieve a trade deal with the United States, where we know environmental health and human food safety take a back seat to profitability—in particular the profitability of the United States’ own producers. Our food safety and health, and the health of our environment, should not be up for negotiation. We have a real fear that, if we leave without a deal, there are other SIs that will open us up to that danger.

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On the final point raised by the hon. Member for Ipswich (Sandy Martin), I addressed the issue of errors previously. Bringing across these statutory instruments is a vast undertaking; it is inevitable that there will be a few errors, and the European Union (Withdrawal) Act 2018 made provision to deal with those even after exit. I explained very clearly that there was a simple oversight in the case of endocrine disruptors in that particular statutory instrument.

I want predominantly to address the issue of oversight, which was the principal concern raised by both the shadow Minister, the hon. Member for Stroud (Dr Drew), and the hon. Member for Edinburgh North and Leith (Deidre Brock). It is important to recognise that the UK has always been recognised as the leading country in the European Union for chemicals and pesticides expertise. The chemicals regulation division within HSE is the driving force behind most of the EU working groups that consider issues with pesticides. Through those working groups, we provide our technical expertise to the European Union; it benefits from our technical input. Yes, there is a role as well for the European Food Safety Authority and the European Chemicals Agency, but we should not underestimate the incredible technological and technical expertise we have in this field.

In addition to the CRD, which sits within the Health and Safety Executive, we benefit from advice from the expert committee on pesticides, which is a panel of leading academics with knowledge in this area. We also have an expert committee on pesticide residues, which assesses all the evidence on both imported and home-grown foods to look for trends in breaches of maximum residue limits. When we leave the European Union, all the existing methodologies for assessing pesticides at a European level will be brought across, including the so-called end points—that is, the thresholds that are applied—and the precautionary approach. Indeed, the key regulation, 1107/2009, was largely drafted by British officials based in the CRD. So we will be bringing all that across in the first instance.

The idea that there will no longer be technical or scientific assessments is a misunderstanding. I am told that, in the vast majority of cases, where “shall” is specified in the EU regulations in the context of requiring scientific input, it remains as “shall” in the UK ones. I think there are one or two minor areas that do not relate to the requirement for scientific input but relate more, as I understand it, to the methodology and the requirements on particular organisations or bodies. There, it is not appropriate to convert “shall” in the same way, as we do not have to have exactly the same institutions and organisational structure that the European Union has to carry out those effective scientific assessments. However, I reassure hon. Members that we will continue to have scientific assessments, that science will continue to lead all our decisions on pesticides in future and that we have some of the best technical expertise in this field. I hope that I have been able to provide reassurance on that point. Obviously, the main purpose of this particular statutory instrument is to change the dates for the transition.

Question put and agreed to.