Date laid: 6 July 2021
Parliamentary procedure: affirmative
These draft Regulations propose to replace a legislative process for updating a list of third countries and third country control bodies which are recognised as equivalent in relation to organic standards, with an administrative process. We are not convinced by the Department’s assertions that these changes are necessary because of the length of time the current legislative process takes, that changes to recognition are uncontroversial administrative amendments that do not require significant parliamentary scrutiny, and that there will be appropriate transparency because the Secretary of State is accountable to Parliament. We take the view that secondary legislation is indeed an appropriate vehicle for the type of changes that are the subject of this instrument, and that the Secretary of State’s general accountability to Parliament is not a suitable replacement for parliamentary oversight of individual decisions in this area. These are issues that the House may wish to explore further with the Minister. The House may also wish to press the Minister on the potential impact that two separate systems operating in Great Britain and Northern Ireland may have on trade in organic products between Northern Ireland and the rest of the UK.
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 instrument proposes to replace a legislative process for updating a list of third countries and third country control bodies which are recognised as equivalent in relation to organic standards, with an administrative process.
2.Defra explains that in order to trade organic products internationally, the Government, in their role as the competent authority for organic production, recognise a number of third countries and control bodies based in third countries as having equivalent or compliant standards, allowing for products certified under those standards to be sold in the UK as organic. Under the current system, which has been in place since the end of the Transition Period on 31 December 2020, a statutory instrument (SI) is needed to amend the list of recognised third countries and third county control bodies each time that a new third country or control body is recognised, or the details of an existing recognition, such the contact information of a control body or third country are updated. Before EU Exit and during the Transition Period, any changes to recognitions were administered by the European Commission and had direct effect in the UK.
3.According to Defra, these draft Regulations propose to “streamline” the way in which updates and changes are made to the list of recognised third countries and third country control bodies. Rather than requiring a new SI for new recognitions and changes to existing recognitions, this instrument would enable officials to update the list directly and publish it on the gov.uk website. Defra says that any changes will be communicated to relevant stakeholders in a timely manner and that, as a result of this new administrative process, port health authorities, local authorities and businesses will be able to access and search the list easily to determine where organic products may be imported from and under what conditions, without having to search through legislation.
4.The Department suggests at paragraph 2.2 of the EM that the current legislative process is “extremely time-consuming for both officials and Parliament and means recognition can take as much as a year to be formalised”. We are not convinced by this argument: while internal discussion and coordination within government may be time consuming, the actual legislative process for an SI that has been laid before Parliament can be completed in significantly less than a year.
5.The Department also states at paragraph 7.3 of the EM that amendments to the list are “uncontroversial administrative changes, enacting existing treaty agreements or the results of agreed recognition processes, so do not require significant Parliamentary scrutiny”. We take the view that SIs are in fact an appropriate and frequently used vehicle for more minor changes, such as updates to lists of recognised countries or bodies, and that parliamentary oversight of such changes is desirable.
6.We asked Defra for further information about the loss of Parliamentary oversight. The Department told us that because decisions will be made by the Secretary of State using powers formerly exercised by the European Commission and because these decisions will be published, “there will be appropriate transparency as the Secretary of State is accountable to Parliament”. We take the view that Defra’s assertion that accountability of the Secretary of State to Parliament and publication of the Secretary of State’s decisions will achieve appropriate transparency, is simply a statement of a constitutional norm. We do not agree that the Secretary of State’s general accountability to Parliament is a suitable replacement for parliamentary oversight of individual decisions in a particular policy area. We are publishing the Department’s full response at Appendix 1 and will be writing to the Lord President and Leader of the House of Commons about the removal of parliamentary scrutiny through this instrument, as we have previously raised concerns about a shift of power from the legislature to the executive.
7.According to Defra, EU law will continue to apply directly in Northern Ireland under the Northern Ireland Protocol (“the Protocol”), and any changes in recognition by the EU in relation to organic standards will be made by the European Commission through legislative amendments. Asked about the potential impact on trade if recognitions in Great Britain and Northern Ireland diverged, the Department told us that under the Protocol:
“organic goods moving from Great Britain to Northern Ireland will undergo the same checks as those moving from Great Britain to the EU. The terms of trade in organic goods between the UK and the EU are set in Annex 14 (Organic Products) of the Trade and Cooperation Agreement (TCA). In the case of organic goods imported to Great Britain under a trade agreement with a third country which does not have mutual recognition with the EU for organic goods, those goods will have entered Great Britain in accordance with GB laws. Goods which have been imported into Great Britain but not processed there fall outside the categories covered by Annex 14 of the TCA, and therefore could not be moved to Northern Ireland under the TCA.”
8.The House may wish to press the Minister for further explanation of the potential impact of two separate systems operating in Great Britain and Northern Ireland on the trade in organic products between Northern Ireland and the rest of the UK.
9.As changes in recognition may arise out of international treaty agreements, such as new trade agreements, we asked whether there would be opportunities for interested or affected stakeholders to be consulted, raise concerns or submit evidence. The Department confirmed that for recognitions of both third countries and third country control bodies, there will be consultation with the Devolved Administrations and industry stakeholders. Defra provided further information about the consultation process and the parties involved which we are publishing in full at Appendix 1.