Agriculture Bill

Written evidence submitted by Department of Agriculture, Environment and Rural Affairs (N. Ireland) (AB13)

1. The Agriculture Bill mostly legislates for England in order to establish a new agricultural system based on the principle of public money for public goods for the next generation of farmers and land managers.

2. The Bill extends a number of provisions to Northern Ireland, which are contained in a separate schedule to the Bill that will apply only to Northern Ireland. The schedule will allow for payments to continue to be made to farmers in Northern Ireland after the UK leaves the EU, as well as important simplifications and the ability to keep pace with the changes in the rest of the UK.

3. Schedule 6 (the Northern Ireland Schedule) was drafted in the absence of an Executive and Assembly in Northern Ireland to ensure the maintenance of the status quo and to take care not to prejudge or constrain the ability of an incoming DAERA Minister, Executive and Assembly to decide upon future Northern Ireland agricultural policy. The powers that are conferred on DAERA will allow:

o Modification of CAP Basic Payment Schemes

o Modification of retained EU Law relating to the financing, management and monitoring of payments to farmers

o Support for rural development

o Collection and sharing of data

o Powers relating to intervention in agricultural markets

o Setting of marketing standards and carcass classifications

o Data protection

4. Without these powers, there would be problems in terms of making payments to farmers, for instance no changes would be possible to the EU retained law that relates to the Common Agricultural Policy and the domestic regulations which implement that law, without passing primary legislation in the Northern Ireland Assembly.

Legislative consent

 

5. Legislative consent has been sought for the NI Schedule and the following parts of the Bill that extend to Northern Ireland and are within the competence of the NI Assembly.

6. Clause 17 – Duty to report to Parliament on food security

o Places a duty on the SoS to produce a report to lay before Parliament on UK food security.

o Part reserved as national security is a matter reserved to the UK Parliament and food is one of the 13 UK Critical National Infrastructure sectors.

o Part devolved as food and drink supply policy is devolved.

o Confined to analysing statistical data on food security therefore it falls to DAERA. Non-controversial.

7. Clause 31 – Fertilisers

o Required to allow the UK to continue to legislate in respect of the policies provided for in the new EU Regulation (2019/1009) on fertilising products. They would provide for a continuation of the current regime, making good a prospective loss of section 2(2) powers under the European Communities Act 1972. Non-controversial.

8. Clause 32 – Identification and Traceability of Animals

o Inserts a new section 89A into the Natural Environment and Rural Communities Act 2006 to enable the SoS to make secondary legislation to allow a body (AHDB) to undertake a new statutory role managing a new Livestock Information Service (LIS) for England.

o The LCM issue arises because this power is extended to the management and use of animal ID information obtained from the devolved administrations.

o Welsh Gov has concerns about expanding the ADHB’s remit; data protection; and changes to means of identifying and marking animals that might potentially impact on trade.

o Veterinary Service may want an amendment that would require the SoS to seek consent from the devolved administrations before making regulations.

o The Clause also allows England to remove itself from the ambit of (EC) No 1760/2000 which relates to identification of cattle and (EC) No 21/2004 which relates to identification of sheep and goats.

o Because of the NI Protocol, DAERA will have to comply with existing and any new EU animal ID requirements, so there is potential for some future divergence between NI and GB on and after 31 December 2020 which might potentially adversely impact upon intra – UK trade.

9. Clauses 36 and 37 – Organic Products

o Part reserved and part devolved, hence the LCM.

o Concerns the SoS will not need to seek consent from the DAs when making regulations about organics matters that are devolved.

o Concerns that UKG will be able to amend retained EU Regs on organic production and labelling of organic products, however, NI will be constrained by the NI Protocol which includes the EU Organic Regulations.

o Clause 37 gives NI powers to make Regs to the extent that they would be within the legislative competence of the NI Assembly if contained within an Act of that Assembly made without the SoS’s consent. Clause 37 has similar provision for SG and WG.

o The DAs are concerned about their regulating making powers because they are not aware of any Primary Legislation that would allow any of the Administrations to make Organic Regulations.

o This is being discussed by the lawyers.

Potential issues with the Bill

 

10. Clause 32 – Identification and Traceability of Animals: Concerns that the SoS does not need to seek consent from the devolved administrations before making regulations in relation to a new statutory role for AHDB. This will involve managing a new Livestock Information Service (LIS) for England and will entail using animal ID information obtained from the devolved administrations. WG not happy either.

11. Clauses 36 and 37 – Organic Products: Concerns the SoS will not need to seek consent from the DAs when making regulations about organics matters that are devolved.

12. Clauses 37 – Organic Products: Concerns about how the regulation powers for NI will operate as they will only be within the legislative competence of the NI Assembly if contained within an Act of the Assembly, and currently NI does not have its own such primary legislation on organics. WG and SG are in the same position.

13. Clauses 40-42 – WTO Agreement on Agriculture are controversial with Scotland and Wales who dispute the UK Government contention that it is a reserved issue. The clause seeks to ensure that UK WTO obligations in relation to limits on agricultural support are complied with. The Clause has no practical impact in NI as current WTO limits are so large that they will not constrain future policy choices.

14. In general, there is a level of concern / lack of understanding at the moment about how the Bill will interact with the NI Protocol.

15. Examples include:

o Potential divergence between NI and GB on animal identification and traceability after 31 December 2020 which might potentially adversely impact upon intra – UK trade.

o UKG will be able to amend retained EU Regs on organic production and labelling of organic products, however, NI will be constrained by the NI Protocol which includes the EU Organic Regulations.

o DAERA will have to comply with EU regulations on marketing standards, so these powers in relation to marketing standards cannot be exercised in a way which cause Northern Ireland to come out of alignment with EU law in this area. Their presence on the Bill does not create a problem as they do not need to be commenced.

o There is the potential for some future divergence between Northern Ireland and the rest of the UK after 31 December 2020, should other parts of the UK amend marketing standards, which might potentially adversely impact upon intra–UK trade.

NI Provisions

 

16. DAERA was careful to ensure that the application of those provisions in the Agriculture Bill to Northern Ireland would not prejudge or constrain the ability of an incoming Minister, NI Executive and Assembly to decide what was appropriate for Northern Ireland.

17. When drafting the NI provisions an agreed set of overarching principles were followed that sought to ensure that:

o There was the continuation of a legal basis to provide the current suite of Pillar 1 agricultural support payments (and options) post EU exit;

o The Agriculture Bill did not constrain a NI Executive’s ability to continue to deliver current schemes and implement options available under the Rural Development Programme and Common Market Organisation provided by existing and retained EU legislation, for so long as Ministers considered this appropriate; and

o A NI Executive had sufficient flexibility to develop and implement future agricultural policy consistent with the principles agreed by JMC (EN), which included the functioning of the UK’s internal market.

18. The majority of the NI provisions are subject to the affirmative resolution procedure, meaning that decisions on their use are entirely a matter for a DAERA Minister and the NI Assembly. In summary, the delegated powers are to:

o Make regulations modifying retained EU legislation that governs the CAP basic payments scheme (affirmative);

o Provide for the continuation of the basic payment scheme beyond 2020, and to provide for the direct payments ceiling to be determined by DAERA (affirmative);

o Make regulations modifying the coupled support scheme (affirmative);

o Make regulations modifying retained direct EU legislation relating to the financing, management and monitoring of the CAP (negative, unless it modifies primary legislation, in which case affirmative);

o Make regulations modifying retained EU legislation relating to rural development (affirmative);

o Give, or agree to give, financial assistance to agricultural producers whose incomes are being, or are likely to be, adversely affected by disturbance in agricultural markets (a DAERA power which doesn’t require the making of regulations);

o Modify retained direct EU legislation relating to public market intervention and private storage aid (affirmative);

o Require a person in the agri-food chain to provide information (a DAERA power which doesn’t require the making of regulations);

o Make regulations requiring a person in the agri-food supply chain to provide information (affirmative);

o Make regulations for the enforcement of data collection and sharing requirements (affirmative);

o Make provision about marketing standards (affirmative);

o Add or remove an agricultural sector, or set out products that fall within each agricultural sector (affirmative when adding or removing a product, but negative when setting out products, unless it modifies primary legislation, in which case affirmative); and

o Make provision about the classification, identification and presentation of bovine, pig and sheep carcasses (affirmative).

8 February 2020