Instruments drawn to the special attention of the House
Draft Import of Animals and Animal Products and Approved Countries (Amendment) Regulations 2022
Date laid: 30 March 2022
Parliamentary procedure: affirmative
These draft Regulations propose changes to allow the Secretary of State, with the consent of Scottish and Welsh Ministers, to “rapidly change” certain conditions for the import of animals and animal products from third countries into Great Britain, where there is a risk to public or animal health in the UK. While the current process for making such changes requires a statutory instrument and is therefore subject to parliamentary scrutiny, the proposed new mechanism would be administrative, so that there would be no direct parliamentary oversight. This would align the process for imports from third countries with the process that is already in place for EU imports. We have received a submission from Green Alliance on behalf of Friends of the Earth which raises questions about the proposed non-legislative mechanism. The loss of parliamentary oversight may be of interest to the House, and additional information from the Department may provide useful further context.
The draft Regulations are drawn to the special attention of the House on the ground that they are politically or legally important and give rise to issues of public policy likely to be of interest to the House.
1.These draft Regulations have been laid by the Department for Environment, Food and Rural Affairs (Defra) with an Explanatory Memorandum (EM). The purpose of the instrument is to empower the Secretary of State, with the consent of the Scottish Ministers (in relation to Scotland) and the Welsh Ministers (in relation to Wales), to “rapidly change” certain conditions for the import of animals and animal products from third countries into Great Britain (GB), where there is a risk for public or animal health in the UK. This may be, for example, after an overseas animal disease outbreak or food safety incident.
2.We have received a submission from Green Alliance on behalf of Friends of the Earth which raises questions about the proposed non-legislative mechanism. This report sets out some of the information provided by Defra in response to the issues raised. We have published the submission and Defra’s response in full on our website.1
Background
3.Defra explains that trading partners that have been approved to export animals and animal products to GB must comply with country-specific import conditions set out in retained EU law. Regular changes to these conditions are needed to respond to changes in risk, including to manage the trade from countries which are experiencing animal disease outbreaks, such as Avian Influenza or African Swine Fever, or food safety incidents. Under the current system, such changes are made by statutory instrument for non-EU countries. Defra says that due to this legislative process there is “significant gap” between the identification of risk and the legal implementation of import conditions, and that both trade bodies and trading partners have raised concerns about this lack of responsiveness.
The changes proposed by this instrument
4.This instrument proposes to empower the Secretary of State to change the conditions for the import of animals and animal products into GB from third counties, by specifying the change in a document published for that purpose, rather than through a statutory instrument. Consent will be required of Scottish Ministers in relation to Scotland and Welsh Ministers in relation to Wales. The document will be published on the gov.uk website,2 which already contains legally binding information on EU imports.
5.While this instrument would not allow import conditions to be amended for Northern Ireland which remains under EU law, Defra says that “any implications for biosecurity or food safety in Northern Ireland will be taken into consideration throughout the process”.
6.Defra says that similar powers already exist for imports from the EU and European Free Trade Association (EFTA),3 so this instrument would bring the process for changing import conditions for non-EU countries in line with those already in place for the EU/EFTA. Defra says that this will avoid a potential challenge at the World Trade Organization by non-EU countries which could raise concerns about discriminatory treatment under the current arrangements, and that the ability to change import conditions quickly is also needed to meet trade agreement obligations, and that a failure to meet these obligations could lead to legal challenges from trading partners, or retaliatory action against exports from GB.
7.Asked for more detail about the changes that the Secretary of State would be able to make under the new non-legislative mechanism, the Department explained that:
“The new powers will primarily be used to:
- Impose import restrictions that prohibit the entry of animals or animal products from a country, or region of a country. For instance, this might include bans on the import of poultry from a country, or region of a country, experiencing an avian influenza outbreak.
- Lift import restrictions, permitting the entry of animals or animal products from a country, or a region of a country, where risks to biosecurity and food safety are diminished. For instance, to lift import restrictions where a country (or region of a country) has successfully controlled an animal disease outbreak.
- Impose and amend additional conditions that need to be met for trade to continue. This may include requirements for certain meat products to be processed or heat treated, additional livestock vaccination or testing to be carried out, and/or official veterinarians in exporting countries to provide supplementary guarantees for health certification purposes.”
Loss of parliamentary oversight
8.The Department says that this instrument “aims to strike a balance between the requirement for appropriate parliamentary scrutiny and the need for effective biosecurity controls”. The EM states that the instrument has been drafted to ensure that “as much parliamentary oversight as possible is retained”, and that “only import conditions that must be amended quickly (sometimes within days) have been removed from legislation”, adding that a “statutory instrument will continue to be required to approve or delist a country or a commodity, ensuring ongoing parliamentary scrutiny of the government’s commitment to maintain standards for animal health and welfare and food safety”.
9.Before Brexit, the power to change import restrictions rested with the European Commission. In response to a question by Friends of the Earth about the difference between the proposed new process and the one used by the EU, Defra explained that the mechanism established by this instrument will “approximate” the EU process:
“The existing EU process: Sanitary and Phytosanitary (SPS) import conditions for entry to the EU are considered by the EU Commission’s Standing Committee on Plants, Animals, Food and Feed, which is composed of representatives of all EU Member States. Import conditions are implemented in law by the EU Commission, which has delegated powers to amend certain conditions via implementing decisions and regulations. These are legally binding across all Member States on their publication in the Official Journal of the European Union.
The proposed GB process: Import conditions for animals and animal products are considered by the Animal Disease Policy Group (ADPG), a senior decision-making body on SPS matters whose representatives include the Chief Veterinary Officers of England, Scotland, Wales and Northern Ireland, along with the Director of Veterinary Services for the Food Standards Agency. ADPG reaches official-level agreement on UK and GB import policy and, where appropriate, informs officials’ recommendations to their respective Ministers. Following the proposed instrument coming into force, implementation in law of changes to import conditions will require the Defra Secretary of State, with consent of the Scottish Ministers (in relation to Scotland) and the Welsh Ministers (in relation to Wales), to specify the change(s) in a document published for that purpose on www.gov.uk. Depending on the type of changes being made, officials may act on behalf of Ministers under the Carltona principle.”4
10.Defra added that:
“[T]his instrument will not allow changes to the process for consideration of new market access requests to GB from new countries, or current countries requesting access for different commodities. In this case, the approval and/or delisting of countries and commodities will continue to require secondary legislation in the form of a Statutory Instrument and will therefore remain subject to parliamentary scrutiny.”
11.Friends of the Earth also asked about independent checks under the new process. Defra responded that:
“Recommendations regarding the exercise of powers in this instrument will be made following risk-based assessments carried out or commissioned by veterinary experts in Defra, which coordinates SPS import policy and delivery functions repatriated from the EU Agency DG Santé F in January 2021. They will provide expert advice to the Animal Disease Policy Group (ADPG), including assessments of risk, and ensure that any changes to import conditions are implemented in accordance with legislative requirements. The legal implementation of any changes by the Defra Secretary of State will be, as they are now, subject to agreement by the Welsh Government and the Scottish Government, thereby providing a further layer of scrutiny.”
12.Asked about the capacity of the ADPG, Defra said that:
“The expertise, capacity and processes required to exercise the powers in this instrument appropriately are well-established within government, and have already been used to effectively control a range of SPS import risks since January 2021.
The [ADPG] is a senior, expert government body that considers a wide range of animal health, human health and food safety issues, and ensures that such decisions are informed by assessments of risk. It has had a remit since 2007 for UK animal disease risks, which was extended in January 2021 to include SPS risks from the import of animals and animal products to the UK.
ADPG incorporates experts from across government, including the Chief Veterinary Officers of England, Scotland, Wales, and Northern Ireland, the Director of Veterinary Services for the Food Standards Agency, technical experts from Scottish Government, Welsh Government, the Department of Agriculture, Environment and Rural Affairs in Northern Ireland (DAERA), Defra, the Food Standards Agency, the Animal and Plant Health Agency and, where appropriate, public health and aquatics experts. ADPG make clear in their terms of reference that: “When making decisions, consideration will be given first to the best options for disease control, then to any legal requirements, latitude and constraints and finally to the deliverability of the preferred strategy in the field, including sustainability of the operational response and where to prioritise if resources are limited.”
Conclusion
13.These draft Regulations propose to replace the current legislative process for changing the conditions for third country imports of animals and animal products with an administrative one, mirroring the mechanism that already exists for imports from the EU/EFTA. We note that while this would enable changes to be made more quickly in response to emergencies, such as animal disease outbreaks and where there is a risk to public or animal health, it would also mean that such changes would no longer be subject to parliamentary scrutiny. The House may wish to obtain assurance from the Minister that regulations like these, which remove parliamentary scrutiny, will be introduced only on the rarest of occasions. The draft Regulations are drawn to the special attention of the House on the ground that they are politically or legally important and give rise to issues of public policy likely to be of interest to the House.
1 SLSC, ‘Scrutiny Evidence’: https://committees.parliament.uk/committee/255/secondary-legislation-scrutiny-committee/publications/8/scrutiny-evidence/ [accessed 26 April 2022].
2 Defra, ‘Exporting to the UK: countries and establishments approved to export animals and animal products’: https://www.gov.uk/guidance/exporting-to-the-uk-countries-and-establishments-approved-to-export-animals-and-animal-products [accessed 26 April 2022].
3 EFTA includes Iceland, Liechtenstein, Norway and Switzerland.
4 According to the Carltona principle, in UK law, the acts of government departmental officials are synonymous with the actions of the minister in charge of that department.