Chapter 2: Legislation
16.Much of the UK’s biosecurity legislation comes from the EU, with Regulations covering plant health, animal health, food safety and invasive non-native species. It is therefore essential to ensure the UK has the necessary legislative framework to maintain its biosecurity post-Brexit. Establishing the powers under which this will be done is a key aim of the European Union (Withdrawal) Act 2018.17
17.The Minister, Lord Gardiner, told the Committee:
“The purpose of the Withdrawal Bill is to bring forward all the work that has taken place on biosecurity in a European context to be on our domestic statute book so that there is certainty for this country, for businesses and the way we conduct ourselves … The only elements on this that we will need to look at are where there are technical changes to make it compliant. If there is a reference to an EU institution, for example, we need to make it domestic. Other than that, the whole architecture of biosecurity within the European context will come over.”18
18.Some of the organisations that the Committee heard from were content with this approach. The National Farmers’ Union (NFU), for example, told us: “If executed successfully, the transfer of law via the … [Withdrawal Bill] should be sufficient to ensure that current legislative protections remain in place.”19
19.Others, however, expressed concerns as to how this would work in practice, in particular with regard to the UK’s membership of the various agencies that enforce and monitor European legislation. Dr Rob Amos and Dr Emily Lydgate from the University of Sussex, for example, stated:
“With respect to food safety, animal and plant health and animal welfare, the transfer of law will not automatically provide for the same level of legislative protection. Depending on the nature of our future relationship with the EU, it will likely additionally require the UK to replicate some of the risk assessment, auditing and information-sharing functions that currently take place at EU level.”20
Food law
20.Lesley Griffiths AM, Cabinet Secretary for Energy, Planning and Rural Affairs and Minister for the Environment in the Welsh Government, told us:
“Our food law largely consists of directly applicable EU legislation. The European Union (Withdrawal) Bill will bring existing EU food law into the law of the UK. This will deal with the law, but not the ability to implement it. At present we rely on the European Food Safety Authority (EFSA) for risk assessment and the European Commission and Council for risk management. We need a legal basis to deliver these functions.”21
21.During a roundtable discussion with food safety experts, convened to look specifically at post-Brexit food safety risk management, we heard that unless legislation was brought forward to give a domestic body the power to make risk management decisions, “all risk management decisions will have to go to a Health Minister for approval”.22 This concerned witnesses. Sue Davies, Strategic Policy Partner at Which?, told us: “We need to make sure that we do not lose sight of the fundamental principles that have guided not just the UK’s approach to food safety, but the EU’s approach to it”, which included having “an independent, arm’s-length body”.23 Heather Hancock, Chair of the Food Standards Agency, reminded the Committee that the Agency was created “to rebuild public trust in the system [after the BSE outbreak] by removing Ministers from food safety risk management decisions”.24
22.The Government has subsequently restated that it intends food safety risk management decisions to be made by Ministers in the Department of Health.25
23.While the Government has stated that all EU biosecurity legislation will be transposed into domestic law using powers under the European Union (Withdrawal) Act 2018, the loss of the role of EU institutions enshrined in the legislation will create gaps that need to be filled. UK bodies will need to be given the necessary powers to carry out important biosecurity functions currently undertaken at EU level. We ask the Government to confirm whether the powers conferred on Ministers by Section 8 of the EU (Withdrawal) Act to address “deficiencies dealing with withdrawal” will be sufficient to enable Ministers to set up new agencies, or whether further primary legislation is needed.
24.One biosecurity function that will need to be repatriated is food safety risk management. We call on the Government to provide clarity to the industry and the wider public on how this will be conducted when the UK leaves the EU, and when, if necessary, any legislation will be brought forward. It is important that the principle of keeping food safety decisions at arm’s length from those Ministers who are responsible for dealing with the interests of food producers is maintained.
Invasive non-native species law
Box 1: EU Regulation 1143/2014 on Invasive Alien Species (IAS)
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Known as the IAS Regulation, this came into force on 1 January 2015 and sets out a series of measures to be taken in relation to the list of Invasive Alien Species of Union concern (see below). Invasive alien species are what are referred to in the UK as invasive non-native species. According to the European Commission, the Regulation envisages three distinct types of measures:
The list of Invasive Alien Species of Union concern is updated regularly and both the Commission and Member States can propose the inclusion of new species. These proposals are then considered by a Scientific Forum, which makes a recommendation to the IAS Committee (made up of representatives from all Member States) for a decision. Species on the list are subject to the restrictions on keeping, importing, selling, breeding and growing set out in the Regulation. |
Source: European Commission, ‘Invasive Alien Species’: http://ec.europa.eu/environment/nature/invasivealien/index_en.htm [accessed 13 August 2018] and European Commission, ‘List of Invasive Species of Union concern’: http://ec.europa.eu/environment/nature/invasivealien/list/index_en.htm [accessed 13 August 2018]
25.Dr Niall Moore, England’s Chief Non-Native Species Officer, told us:
“I can assure you that the EU IAS regulation and its stringent provisions will be transferred into UK law. There is no intention to water that down. It has given us excellent and useful extra provisions over and above our previous domestic legislation, so that will be brought into UK law.”26
Lord Gardiner confirmed this: “We will be bringing back that armoury on biosecurity via the Withdrawal Bill.”27
26.Dr Rob Amos and Dr Emily Lydgate from the University of Sussex told us: “Assuming that the UK continues to fulfil its other international obligations … the transfer of EU Regulation 1143/2014 into UK law should be sufficient to ensure that current legislative protections against the introduction and spread of invasive alien species remain.”28
27.Other witnesses, however, were concerned that the Regulation was closely entwined with EU institutions and processes. The RSPB told us: “Although we have discussed this with the relevant officials, the RSPB remains unclear as to precisely how the functions and principles of the IAS Regulation will be converted into domestic law following a UK withdrawal from the EU.”29
28.Wildlife and Countryside Link shared this concern, noting that “the process by which species (or other taxonomic entities) are risk-assessed and included or removed from the EU list currently involves academic experts, the European Commission and representatives of all EU Member States”.30 It was unclear to the RSPB whether, once the UK leaves the EU, it would continue to mirror the EU list or devise its own process to keep the list updated. The RSPB were “concerned the UK Government will replace this system with irregular Orders of Council issued by the Secretary of State. Such a system would neither be as rigorous or accountable as the EU system.”31
29.In addition, Wildlife and Countryside Link told us:
“The EU IAS Regulation requires an independent academic body (referred to as the Scientific Forum) that provides guidance and scrutiny on the implementation of the IAS Regulation, and which prevents the inclusion of any species on the List of Species of Union Concern where the evidence does not presently support its inclusion.”32
The legislative protection in the Regulation would not be fully enacted in the UK, they argued, unless the function of the Scientific Forum was repatriated. They suggested: “This function could be carried out by extending the remit of an existing body (a model for this could be the Advisory Committee on Releases to the Environment33) or fall under the remit of a newly created body, such as the proposed ‘environmental watchdog’ on which the Government is due to consult.”34 Since Wildlife and Countryside Link made their submission to the inquiry, the Government has published its consultation on the development of an Environmental Principles and Governance Bill, which contains no reference to including this specific function.35
30.We call on the Government to clarify how the list of Invasive Alien Species of Union concern, which is central to the Invasive Alien Species Regulation, will be updated and administered when the UK leaves the EU.
31.We further recommend that, where bringing across EU biosecurity law through the EU (Withdrawal) Act requires the UK to replicate functions previously performed by EU institutions, the Government should commit to replicating the same level of rigour, transparency and accountability as exists at present.
Plant health law
Box 2: Regulation (EU) 2016/2031 on protective measures against pests of plants
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Known as the Plant Health Law, this Regulation came into force on 13 December 2016 and is due to be fully implemented by Member States by 13 December 2019. It focuses on preventing destructive plant pests from entering the EU, or preventing their spread if they are found to be present. Those that pose the greatest risk to the economy, environment or society, known as ‘priority pests’, “will be subject to enhanced measures concerning surveys, action plans for their eradication, contingency plans and simulation exercises”;36 others are subject to varying levels of restrictions or eradication depending on the risk they pose and their current prevalence. Conditions on the import into the EU of plants and plant products range from prohibition (for those posing the highest risk), to requiring the plant material be accompanied by a phytosanitary certificate to confirm compliance with EU legislation. All plants moving within the EU require a plant passport to certify their health status and enable traceability. |
Source: European Commission, New Plant Health Regulation: stringent rules for a better protection from plant pests (13 December 2016): http://europa.eu/rapid/press-release_MEMO-16-4310_en.htm [accessed 13 August 2018]
32.The EU’s latest Plant Health Law is described in Box 2. Chief Plant Health Officer Professor Nicola Spence explained the extent of UK influence on its development: “For the last three years we have been working with other Member States in the Commission to develop the new EU plant health Regulation. Much of the Regulation was led by the UK. There are some very helpful and important new elements to it.”37
33.The Regulation is applicable from 14 December 2019. As the UK will leave the EU in March 2019, this raises some uncertainty as to how the Regulation will be implemented in the UK. Lord Gardiner stated: “I cannot tell [you] … precisely how we would implement because it would depend on whether we have the implementation period.”38 He was keen to stress, however, that: “we will be looking to have this work on our statute book”.39
Animal health law
Box 3: Regulation (EU) 2016/429 on transmissible animal diseases
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This Regulation, known as the Animal Health Law, entered into force in April 2016 but will not be fully applied until April 2021. It consists of “requirements for disease prevention and preparedness; disease awareness; biosecurity; traceability of animals and where necessary products thereof; intra-EU movements and entry into the EU of animals and animal products; surveillance; disease control and eradication; and emergency measures”.40 It streamlines various existing acts into a single law, as well as introducing some new measures. |
Source: European Commission, General Q&A: New EU Regulation on transmissible animal diseases, March 2016: https://ec.europa.eu/food/sites/food/files/animals/docs/ah_law_regulation-proposal_qanda.pdf [accessed 13 August 2018]
34.A number of witnesses spoke positively about the new EU Animal Health Law (see Box 3). The British Veterinary Association, for example, said it was “generally recognised as well thought out, practical and flexible”,41 and the National Farmers’ Union (NFU) stated that the disease list included in the Regulation was “vital for the biosecurity of EU livestock”.42
35.As the City of London Corporation noted, however, the Regulation is “subject to a staggered implementation”,43 with “the majority of the complementary Commission delegated and implementing acts to be adopted by 21 April 2019”, and full implementation from 21 April 2021.44 With the UK leaving the EU in March 2019, it is unclear if or how the Regulation would be implemented in the UK. The Agriculture and Horticulture Development Board (AHDB) told us: “It would be of concern if the ongoing process of implementation of the Animal Health Law were to be complicated by the process of leaving the EU.”45
36.We welcome the commitment made by the Minister that the new EU Plant Health Law will be implemented in the UK, and call for similar clarity in respect of the EU Animal Health Law.
Enforcement
37.Witnesses to our 2017 Brexit: environment and climate change inquiry46 told us about the gap in enforcement and oversight mechanisms that will be created when the UK leaves the EU, and this concern was echoed by witnesses to this inquiry.
38.The task of ensuring that the biosecurity standards set out in legislation are being met falls to EU agencies. The AHDB explained, for example, that “the EU’s Food and Veterinary Office undertakes regular missions to member states to check practices and compliance in relation to animal health, animal welfare and food safety. This acts as a valuable independent assessment of risk management.”47 The AHDB questioned who would perform that function when the UK left the EU, as did Welsh Government Minister Lesley Griffiths AM: “There will … need to be a body to replicate the audit and advisory support, post EU exit, currently delivered through the FVO [Food and Veterinary Office].”48
39.The RSPB also raised the issue of enforcement:
“The text of The IAS Regulation requires Member States to report to The European Commission on a 6-yearly basis on actions taken to implement the IAS Regulation … The European Commission also has a responsibility to ensure Member States are implementing the IAS Regulation and can take enforcement action when necessary, along with the European Court of Justice.”49
40.When we asked Lord Gardiner how enforcement would be dealt with post-Brexit, he told us: “If we need to look at either remits or additional powers to retain our reputation and our requirements, we will look at that … We will take every opportunity, if necessary, to bolster any existing organisations.”50
41.As in other policy areas, the EU’s biosecurity legislation includes a range of reporting requirements and checks to ensure Member States are complying with the law. The Commission also has the power to take legal action against countries that are failing to comply, including referral to the Court of Justice of the European Union, which can impose financial penalties.
42.As we concluded in our Brexit: environment and climate change report, as well as bringing EU biosecurity legislation into UK law, the Government must establish independent and effective domestic enforcement mechanisms to take on the role currently filled by the Commission.
17 The European Union (Withdrawal) Act 2018 had yet to be enacted at the time of our inquiry, and is generally referred to as the “Withdrawal Bill” in the evidence quoted in this report.
24 Ibid.
25 HL Deb, 5 September 2018, cols 1694–1695
33 An independent Advisory Committee of scientists who advise the Government on risks from genetically modified organisms and on the release of some non-native plants and animals.Advisory Committee on Releases to the Environment, ‘About us’: https://www.gov.uk/government/organisations/advisory-committee-on-releases-to-the-environment/about [accessed 13 August 2018])
35 Department for Environment, Food and Rural Affairs, Environmental Principles and Governance after the United Kingdom leaves the European Union (May 2018): https://consult.defra.gov.uk/eu/environmental-principles-and-governance/supporting_documents/Environmental%20Principles%20and%20Governance%20after%20EU%20Exit%20%20Consultation%20Document.pdf [accessed 13 August 2018]
36 European Commission, New Plant Health Regulation: stringent rules for better protection from plant pests (13 December 2016): http://europa.eu/rapid/press-release_MEMO-16-4310_en.htm [accessed 13 August 2018]
39 Ibid.
40 European Commission, General Q&A: New EU Regulation on transmissible animal diseases, March 2016, p 2: https://ec.europa.eu/food/sites/food/files/animals/docs/ah_law_regulation-proposal_qanda.pdf [accessed 13 August 2018]
44 Ibid.
46 European Union Committee, Brexit: environment and climate change (12th Report, Session 2016–17, HL Paper 109)