Agriculture Bill

Further written evidence submitted by the NFU (AB21)

Introduction:

This submission comprises written evidence from the National Farmers Union (NFU) to the Agriculture Bill Public Bill Committee. The NFU is the representation body for agriculture and horticulture, representing 55,000 members, who cover two-thirds of the agricultural land in England and Wales.

This submission sets out the NFU’s suggested amendments to improve the Bill, covering the following topics:

· Ensuring this is an ‘agricultural’ Agriculture Bill

· Promoting competitiveness, financial resilience and the nation’s strategic priorities

· Valuing and protecting our standards

· Budgetary cycles

· Strengthening farmer's position in the supply chain

· Appropriate use powers in the Bill and other provisions

A. An "agricultural" Agriculture Bill

1. Clause 1, page 2, line 6, at end insert –

"(2A) Financial assistance under subsections (1) and (2) may only be given to: (a) persons who are involved in the production of products deriving from an agricultural or horticultural or forestry activity, (including recognised producers organisations, associations of recognised producer organisations and recognised interbranch organisations as established in part 6 or as recognised under the CMO Regulation at the date of enactment of this Act ); or (b) those with an interest in agricultural land, where the financial assistance relates directly to that land."

2. Schedule 3, page 30, line 17, at end insert –

"(2A) Financial assistance under subsections (1) and (2) may only be given to: (a) persons who are involved in the production of products deriving from an agricultural or horticultural or forestry activity, (including recognised producers organisations, associations of recognised producer organisations and recognised interbranch organisations as established in part 6 or as recognised under the CMO Regulation at the date of enactment of this Act ); or (b) those with an interest in agricultural land, where the financial assistance relates directly to that land."

Explanatory statement: To ensure that financial assistance under the Bill is provided only in relation to farmers, including those operating through POs, APOs and IBOs, agricultural/horticultural activity and/or farmland. To ensure that the Agriculture Act pursues agricultural/horticultural objectives and that financial assistance is provided in a way that meets the government’s aims of moving away from the CAP and transforming agriculture in the UK.

B. Promoting competitiveness, financial resilience and the nation’s strategic priorities

3. Clause 1, page 2, line 4, leave out subsection (2) and insert –

"(2) The Secretary of State may also give financial assistance for or in connection with any of the following purposes –

(a) supporting businesses or communities in rural areas;

(b) starting, or improving the productivity of, an agricultural, horticultural or forestry activity;

(c) supporting persons who are involved in the production, processing, marketing or distribution of products deriving from an agricultural, horticultural or forestry activity;

(d) supporting the production of such part of the nation’s food and other agricultural produce as it is desirable to produce in the United Kingdom."

Explanatory statement: To give additional powers to the Secretary of State to bring the provisions in line with those applicable to Wales, and to introduce an additional purpose (sub-clause (d)) for the provision of financial assistance to support domestic production and food security.

4. Schedule 3, page 30, line 17, at end insert –

"(d) supporting the production of such part of the nation’s food and other agricultural produce as it is desirable to produce in the United Kingdom."

Explanatory statement: To ensure food security and to bring the Schedule 3 provisions on Wales into line with the clause 1 provisions for England.

5. Clause 5, page 4, line 40, at end insert –

"(5) The power under subsection (2) includes the power to vary and increase direct payments during the agricultural transition period."

6. Clause 7, page 5, line 12, leave out "either or both of"

7. Clause 7, page 5, line 18, at end insert –

"(c) increasing or varying direct payments in relation to England over the whole or part of the agricultural transition period."

Explanatory statement: To ensure that the Secretary of State is empowered to increase payments during the transition period if that is necessary in the circumstances, for example to utilise any unspent monies or to protect the industry from harm.

8. Clause 6, page 5, line 6, leave out subsection (2)

9. Clause 7, page 6, line 13 leave out subsection (8)

Explanatory statement: This is unnecessary as it can be done as part of the phasing out under clause 7; the greening rules can be simplified but the payment itself can continue. If this clause remains then there is nothing to prevent the ceasing of greening payments altogether, even though the explanatory notes suggest that the intention is to remove greening requirements but pay the greening monies as part of the direct payment.

10. Clause 7, page 5, line 36, at end insert –

"(e) make provision setting out rules for determining the position of those persons who have received delinked payments where the agricultural transition period has been extended in accordance with section 5(2)."

Explanatory statement: To enable those who have opted to take delinked payments to return to receiving direct payments if the direct payments scheme is extended.

11. Clause 7, page 6, line 16, at end insert –

"(8A) Regulations under this section must set out explicit timescales for the payment of the direct payments or delinked payments that are due to entitled persons."

Explanatory statement: To ensure that those entitled to payments received those payments within guaranteed timescales to help ensure certainty of cash flow.

12. Clause 10, page 7, line 25, at end insert –

"(1A) Regulations under this section may only be made after such time as a transition aid scheme has been put in place for the fruit and vegetable sectors."

Explanatory statement: To ensure that funding is not abruptly ceased without a successor scheme in place. Financial Assistance should be available through Clause 1 (as amended) for persons, including producers organisations involved in the production of products deriving from an agricultural or horticultural or forestry activity, or those with an interest in agricultural land, where the financial assistance relates directly to that land

13. Clause 11, page 8, line 18, at end insert –

"(3A) Regulations under this section must make provision for any schemes entered into under the retained direct EU legislation relating to support for rural development prior to the date of enactment of this Act to continue until those schemes come to an end in accordance with their specific terms."

Explanatory statement: To ensure that existing agri-environment and rural development schemes, and those entered into prior to the Agriculture Act coming into force, remain in place and continue to operate for the relevant duration.

14. Clause 17, page 12, line 35, leave out "may" and insert "will"

Explanatory statement: To ensure that where exceptional market conditions apply the government will take steps to assist the industry.

15. Clause 17, page 12, line 40, after "there is" insert "or has been" and leave out "severe" and insert "significant"

16. Clause 17, page 12, line 41, leave out "severe" and insert "significant" and leave out "and" and insert "or"

17. Clause 17, page 12, line 44, after "achievable for" insert "or costs incurred in the production of"

18. Clause 17, page 13, line 2, after "are" insert "or have been"

Explanatory statement: To ensure that this provision is used to protect the agricultural industry in times of crisis, and make sure that the bar is not set so high that these provisions will very rarely be used in practice. The changes will also ensure that a declaration can be made for events that have occurred in the past, but were not obviously ‘exceptional market conditions’ at the time.

19. Clause 1, page 2, line 3, at end insert –

"(h) managing water in a way that protects its availability;

(i) supporting the availability and use of renewable energy."

20. Schedule 3, page 30, line 9, at end insert –

"(h) managing water in a way that protects its availability;

(i) supporting the availability and use of renewable energy."

Explanatory statement: To ensure water and energy security in the future.

C. Valuing and protecting our standards

21. To move the following Clause –

"Import of agri-food products

(1) The import of agri-food products into England is prohibited unless it can be demonstrated by the importer to Her Majesty’s Revenue and Customs that the relevant products have been produced to standards that are equivalent to the relevant requirements under UK legislation in relation to –

(a) animal welfare;

(b) environmental protection; and

(c) food safety.

(2) The Secretary of State must make regulations specifying the "relevant requirements under UK legislation" referred to in subsection (1)."

Explanatory statement: To ensure that agri-food products produced to lower standards are not imported into the UK, undermining the efficiency, productivity and profitability of the agricultural sector.

22. To move the following Clause –

"Report on imported agri-food products

(1) The Secretary of State shall publish a report each year detailing the agri-food products that have been imported into England during the preceding year and specifying which of those products were not produced to standards equivalent to the relevant requirements under UK legislation in relation to –

(a) animal welfare;

(b) environmental protection; and

(c) food safety.

(2) The Secretary of State must make regulations specifying the "relevant requirements under UK legislation" referred to in subsection (1)."

Explanatory statement: To ensure that the agricultural industry and wider public is made aware of the extent to which food imported into England has been produced to lower animal welfare, environmental, or food safety standards than food produced in the UK.

23. To move the following Clause –

"Trade negotiations

(1) Prior to the start of any negotiations relating to a new trade agreement between the UK and another country, the Secretary of State shall publish a mandate to be followed by those involved in the negotiations which states that agri-food products imported into the UK must be produced to standards that are equivalent to the relevant requirements under UK legislation in relation to –

(a) animal welfare;

(b) environmental protection; and

(c) food safety.

(2) The Secretary of State must make regulations specifying the "relevant requirements under UK legislation" referred to in subsection (1)."

Explanatory statement: To ensure that agri-food imports are specifically included in any future trade deal negotiations.

D. Budgetary cycles

24. Clause 33, page 24, line 39, at end insert –

"(d) The Secretary of State must make regulations to implement a multi-annual financial framework determining the monies available under this section.

(e) Regulations under subsection (33)(d) must be made before the beginning of the agricultural transition period."

Explanatory statement: The Agriculture Bill should establish a multi-annual budgetary framework that provides certainty for farmers and allows them to plan and invest for the future.

E. Strengthening farmer's position in the supply chain

25. Clause 12, page 8, line 25, leave out "any of the" and insert "that" and after "supply chain" insert "for the purposes set out in section 14"

26. Clause 12, page 8, line 29, leave out "any of the" and insert "that"

27. Clause 12, page 8, line 30, after "supply chain" insert "for the purposes set out in section 14"

Explanatory statement: To clearly limit the information that can be required to the purposes listed in section 14.

28. Clause 13, page 9, line 25, at the end of subsection (c) delete "and"

29. Clause 13, page 9, line 26, delete sub-section (d).

Explanatory statement: To limit the persons who can be required to provide information to direct actors in the supply chain.

30. Clause 14, page 9, line 39, after "requirement" insert "must be for the primary purpose of promoting transparency or fairness in agri-supply chains and" and after "specify the" insert "additional"

31. Clause 14, page 9, line 41, after "Each" insert "additional" and after "list of" insert "additional"

Explanatory statement: As currently drafted, Clause 14 allows for information to be collected for a very wide number of reasons, many of which are not directly connected with promoting transparency or fairness in the supply chain; this should be the primary purpose of collecting this information.

32. Clause 14, page 9, line 43, leave out subsection (4) and insert –

"(4) The list of additional purposes is as follows –

(a) helping persons in agri-food supply chains to –

(i) increase productivity,

(ii) manage risks (including but not limited to, financial risk, non-financial trading risks, climatic risks, and risks of or from disease, or

(iii)manage market volatility;

(b) monitoring, or analysing, markets connected with agri-food supply chains."

33. Clause 14, page 10, line 25, leave out subsection (5)

Explanatory statement: The provisions as currently drafted are incredibly wide and impose huge burdens on those involved in the agri-food supply chain for purposes which have no connection to the fairness or transparency of that supply chain. The purposes for which large amounts of information can be required from a wide range of individuals and businesses should be restricted to the minimum information required to achieve the purpose.

34. Clause 15, page 10, line 42, leave out subsection (5) and insert –

"(5) The requirement must specify –

(a) the types of processing to which the information may be subjected; and

(b) the forms in which the information may be disclosed.

Information provided in response to the requirement may not be subjected to any other types of processing or forms of disclosure."

35. Clause 15, page 11, line 7 after subsection (c) insert –

"(5A) The requirement specifications made under subsection (5) must in all cases be reasonable and must not impose a manifestly unfair burden on the person from whom the information is required."

"(5B) Information cannot be required under section 12(1) or 12(2) where:

(a) that information is subject to legal professional privilege; or

(b) that information is held by the person only by virtue of it having been disclosed to that person by a third party under a duty of confidence."

36. Clause 15, page 11, line 8, leave out subsection (6) and insert –

"(6) The requirement may specify how and when the required information is to be provided, including (in particular) –

(a) the person to whom the information is to be provided (who may be a person other than the Secretary of State);

(b) the form in which the information is to be provided;

(c) the means by which it is to be provided;

(d) the time or times at which, or by when, it is to be provided."

37. Clause 15, page 11, line 24, leave out subsection (9)

38. Clause 15, page 11, line 12, leave out "Subsections (8) and (9) apply", and insert "Subsection (8) applies"

39. Clause 15, page 11, line 14, after "information" insert "in accordance with the forms of disclosure listed in the requirement."

Explanatory statement: The person providing the information should know at the time the information is provided how it will be processed and where/how it will be disclosed. Once the information has been collected, it should not be able to be processed in different ways. Requests for information should be reasonable and not unfairly burdensome. Information held in commercial confidence from a third party, or which is subject to legal professional privilege, should not be required.

40. Clause 15, page 11, line 15, leave out "Where P proposes that the disclosure should be of information otherwise than in anonymised form" and insert "Where the requirement provides for the disclosure of the information and P proposes to make such a disclosure"

41. Clause 15, page 11, line 17, after "commercial interests" insert "(including intellectual property rights")

42. Clause 15, page 11, line 23, after "form" insert "provided that personal information is not disclosed"

Explanatory statement: To ensure that all disclosures are within the scope of this clause and to ensure the forms of disclosure are listed in the requirement and that no personal information is disclosed. Commercial interests should specifically include intellectual property rights.

43. Clause 16, page 12, line 19, leave out subparagraph (d)

44. Clause 16, page 12, line 29, at end insert –

"(5A) Any monetary penalties introduced under subsection (4)(a) must be proportionate taking into account the nature of the non-compliance and the financial capacity of the party subject to the penalty."

Explanatory statement: It is important that any enforcement action is proportionate to the non-compliance, and restricting commercial activities seems disproportionate to the failure to provide information where monetary penalties are available.

45. Clause 25, page 19, line 27, leave out "are" and insert "include (but are not limited to)"

Explanatory statement: To ensure the Bill’s fair dealing provisiosn provide flexibility for the matters that can be specified under regulations relating to these type of contracts.

46. Clause 25, page 20, line 17, after "any" insert "competent and appropriate"

47. Clause 25, page 20, line 18, after "provide for a" insert "competent and appropriate"

Explanatory statement: It is important that the role of regulating agricultural contracts is given to a body which is competent to undertake qualitative assessments; for example, the Groceries Code Adjudicator’s office.

F. Appropriate use powers in the Bill and other provisions

48. Clause 2, page 2, line 31, after "delegate" insert "administrative"

Explanatory statement: To ensure that the actual design and purpose of schemes is not delegated to non-governmental bodies or organisations.

49. Clause 2, page 2, line 38, after "given" insert –

"provided that the information is collected and processed in accordance with the relevant data protection legislation.

For the purposes of this subsection "relevant data protection legislation" means Regulation (EU) of the European Parliament and of the Council (General Data Protection Regulation) and the Data Protection Act 2018."

Explanatory statement: To make explicit that any Regulations must comply with data protection principles.

50. Clause 2, page 2, line 42, at end insert –

"(8A) Information specified under subsection (8) must be proportionate and limited to protect the interests of the individuals and businesses concerned."

Explanatory statement: To ensure that no more information is published about recipients of financial assistance than is absolutely necessary in the circumstances.

51. Clause 3, page 3, line 25, leave out subsection (h)

Explanatory statement: It is disproportionate to create criminal offences for failing to meet the rules of a financial assistance scheme. There are no specific offences for breach of the current CAP scheme rules. Breaches could be sanctioned through the application of penalties without the need for new criminal offences.

52. Clause 20, page 15, line 22, after "("marketing standards")" insert "for the purposes of improving the economic conditions for the production, marketing and quality of agricultural products, and to take into account the expectations of consumers."

Explanatory statement: To ensure that regulations are only brought in for legitimate purposes. This is taken from the purposes in the CMO (EU Regulation 1308/2013). The rest of the clause mirrors the relevant provisions in the CMO, other than the enforcement section at clause 20(4) which is not in the CMO.

53. Clause 22, page 17, line 42, leave out "and, in the case of a decision to grant an application, must publish the decision online."

Explanatory statement: It does not seem justified or proportionate to publish every Producer Organisation grant online.

54. Clause 23, page 18, line 23, leave out subsection (d)

Explanatory statement: There is no justification for monetary penalties to be applied where there is no financial aid being granted. If there is a new financial aid scheme then the can be dealt with under the provisions in Part 1.

55. Clause 29, page 23, line 2, leave out "primary legislation"

56. Clause 32, page 24, line 20, leave out "primary legislation"

Explanatory statement: It is concerning that statutory instruments could be used to amend primary legislation.

57. Schedule 2, page 27, line 24, leave out "For" and insert "After" and leave out "substitute" and insert "insert"

Explanatory statement: As currently drafted, the Bill would remove the Common Agricultural Policy objectives exemption for relevant agreements. This should remain as an exemption.

58. Schedule 2, page 29, line 6, leave out "provided that the condition in sub-paragraph (2) is also met."

59. Schedule 2, page 29, line 10, leave out sub-paragraphs (2) to (6) inclusive

Explanatory statement: It cannot be right that IBOs have to notify every agreement to the CMA, and therefore in the absence of clarity over the type of agreements that should be notified to the CMA, this requirement should be removed.

October 2018

 

Prepared 25th October 2018