Appendix 3: Correspondence with the Lord President of the Council and Leader of the House of Commons and Victoria Prentis MP, Minister for Farming, Fisheries and Food, Defra, on the draft Organics (Equivalence and Control Bodies Listing) (Amendment) Regulations 2021
Letter from Lord Hodgson of Astley Abbotts, Chair of the Secondary Legislation Scrutiny Committee to the Rt Hon. Jacob Rees-Mogg MP, Lord President of the Council and Leader of the House of Commons
Thank you for your letter of 6 July in response to my letter to you of 16 June, written in my capacity as Chair of the Secondary Legislation Scrutiny Committee (SLSC).
One of the issues raised in our exchange of correspondence concerned the blurring of the distinction between legislation and guidance, and we welcome your clear statement that “where guidance accompanies legislation, it is important that it describes the effect of the legislation accurately”.
In our most recent report, our 11th Report of this session, we raise another matter which similarly brings into play broad constitutional concerns about the relationship between the legislature and the executive, and the role of Parliament in scrutinising legislation and calling the government to account.
The issue on this occasion arises in relation to the Draft Organics (Equivalence and Control Bodies Listing) (Amendment) Regulations 2021, laid by the Department for the Environment, Food and Rural Affairs. These Regulations 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. In our report, we say that we are unconvinced by the argument that the current legislative process for updating the list is “extremely time-consuming for both officials and Parliament” and we say that there should be parliamentary oversight of updates to lists. We challenge 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, and 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.
The Committee would welcome your views on this further example of a shift in the balance away from Parliament towards the executive. We are meeting next on Tuesday 7 September. If you were able to respond in advance of that meeting, I would be most grateful.
The following is a link to the Committee’s report 11th Report
Letter from the Lord President to Lord Hodgson of Astley Abbotts
Thank you for your letter of 28 July following your 11th report of the session, in which you raised concerns about the legislature and the executive, and the role of Parliament in scrutinising legislation and holding the government to account.
Your letter specifically referenced a Department for Environment, Food and Rural Affairs SI, the Draft Organics (Equivalence and Control Bodies Listing) (Amendment) Regulations 2021. I have asked the department to write to you to provide further details and I hope the assurances they provide are satisfactory. I agree that it is important that Parliament has the opportunity to scrutinise significant changes in addition to streamlining processes to ensure that the regulatory system best serves the needs of British businesses and consumers.
6 September 2021
Letter from Victoria Prentis MP, Minister for Farming, Fisheries and Food, to Lord Hodgson of Astley Abbotts
I am writing in response to your letter to the Leader of the House of Commons, dated 28 July, in which you referenced the Draft Organics (Equivalence and Control Bodies Listing) (Amendment) Regulations 2021.
You raised a number of questions about the impact of using Statutory Instruments (SIs) to make small technical amendments, loss of parliamentary oversight, and about trade with Northern Ireland. This response will set out that: While Statutory Instruments are an appropriate mechanism for many legislative changes, in the case of these registers, the time taken for a Statutory Instrument is detrimental to trade. The changes in question are based on extensive technical evaluations of standards, and as such are most appropriately handled at an official level. Trade with Northern Ireland is not affected by this statutory instrument, where as a result of the Northern Ireland protocol European Union organics regulations will continue to apply. The UK government has put in place significant measures to support businesses that may be impacted.
In response to the comments in paragraph 4 of your letter about the suitability to Statutory Instruments for such changes: The vast majority of changes that would be covered under this updated process would be very minor changes to information required about control bodies, such as their name, legal address, and other contact details. Although minor, these details are necessary for port health authorities, local authorities, and other relevant parties to ensure that the goods in question have been certified in a recognised third country, or by a recognised third country control body. We are aware of a number of cases in which a minor change to a control body’s information has resulted in goods being delayed at a port, due to discrepancies between the details on certification documents and in legislation.
Without the move to online lists effected by this statutory instrument, any amendment, however small, would be delayed by the time taken for a further SI to go through the legislative process. This faster mechanism would enable UK businesses to take advantage for new opportunities to trade more quickly. This allows for a competitive advantage over other nations, such as those within the European Union who are burdened by cumbersome and lengthy processes.
These online lists would provide transparency and easy accessibility for both UK stakeholders and third country officials and businesses. UK stakeholders including port health authorities, organic control bodies, producers, industry groups and other businesses have welcomed the change, as have our international partners such as the United States Department of Agriculture (USDA).
To address your concerns about loss of parliamentary oversight raised in paragraphs 5 and 6 of your letter: We believe given the technical and low impact nature of these changes, scrutiny at an official level is appropriate. The majority of changes will be simply to details of existing recognitions, and any new equivalence recognitions would be technical decisions based on the details of the standard in question. A third country organics equivalence recognition is based on an extensive technical evaluation of their organic standards to ensure they are comparable and of their enforcement mechanisms to ensure those standards are being met in practice. The final decision will have Secretary of State oversight and, if recognition is agreed, the third country must meet obligations including the provision of annual reports, and notification of infringements or changes to its standards or controls. Recognition of individual third country control bodies will follow a similar technical evaluation process, with requirements for regular reports and notifications of changes or infringements.
Recognition of third countries or third country control bodies as equivalent for the purposes of organic certification simply recognises that they have been produced to sufficiently similar standards that they can be sold as organic in the UK, in the same way as goods produced to UK standards, where they have fulfilled the requirements for non-organic goods of their type. This recognition is a technical matter and only given after the appropriate due diligence and auditing set out above. Organic trade between the UK and any third country taking place under this recognition would still be subject to the provisions of any FTA or treaty, of which Parliament would have full oversight.
Regarding your concerns about the impact on trade with Northern Ireland raised in paragraph 7 of your letter: As a consequence of the Northern Ireland Protocol, Northern Ireland will continue to follow EU regulations around organics, including the recognition of third countries and third country control bodies. This statutory instrument does not alter that arrangement. As such, any new equivalence decisions that apply to Northern Ireland will be a result of decisions made by the European Commission to recognise third countries or third country control bodies and are not subject to UK Parliamentary oversight. As the UK is no longer a member of the European Union neither the UK Government nor the Northern Ireland Executive will have input on these decisions.
We are committed to supporting businesses with issues that arise from these changes and have put in place measures to avoid any adverse impacts on trade between Great Britain and Northern Ireland, in both directions.
Organic goods moving from Northern Ireland to Great Britain will continue to have unfettered access: a certificate of inspection attesting to their organic status is not required.
For organic goods travelling from Great Britain to Northern Ireland, certificates of inspection are required (with the exception of those covered by the UK Trader Scheme26 until 1 November 2021). The UK Government is financing the costs of these certificates via the Movement Assistance Scheme27, which will be in place until at least December 2023. Under this scheme, when businesses contract a UK organic control body to certify their goods they will not be charged, and the control body will invoice the government for those costs. Financial support is also available for importer and exporter licensing costs, where the business would not previously have incurred those costs. To support businesses in the longer term, the Digital Assistance Scheme28 will be phased in from 2023 onwards for organics. DAERA and DEFRA are working on developing this, and engagement with industry is ongoing.
Please do not hesitate to get in touch if you need further information.
6 September 2021
Letter from Lord Hodgson of Astley Abbotts to Victoria Prentis MP
Thank you for your letter of 6 September in response to my letter of 28 July to the Leader of the House of Commons about concerns in relation to the draft Organics (Equivalence and Control Bodies Listing) (Amendment) Regulations 2021, written in my capacity ;as Chair of the Secondary Legislation Scrutiny Committee (SLSC).
We considered your letter in some detail at our meeting yesterday. While it provided some helpful information about the nature of some of the changes that will in future be made administratively as well as about the arrangements with regard to Northern Ireland, we found that it did not address our main concern: under the new rules, the Secretary of State will be able to make new equivalence decisions on third countries in relation to their standards on organic products using an administrative process. Your letter referred to these decisions as “technical” matters with a “low impact” which would be made only after the “appropriate due diligence and auditing” and be subject to oversight by the Secretary of State. We take the view, however, that making an equivalence decision on a third country will almost certainly be more important than suggested. We therefore remain concerned that these decisions have been removed from the oversight of Parliament by switching from a legislative to a purely administrative process. As we explained in our letter to the Leader of the House of Commons, the Secretary, of State’s general accountability to Parliament is not a suitable replacement for parliamentary oversight of individual decisions by the Secretary of State in relation to third country equivalence decisions.
We would be grateful if you could give our concerns about bypassing Parliament in this way further thought. We will be meeting next on 12 October. If you were able to respond in advance of that meeting, that would be most helpful.
15 September 2021
Letter from Victoria Prentis MP to Lord Hodgson of Astley Abbotts
I am writing in response to your letter of 15 September which responds to my letter of 6 September, regarding the Secondary Legislation Scrutiny Committee’s concerns about the draft Organics (Equivalence and Control Bodies Listing) (Amendment) Regulations 2021.
The purpose of this Statutory Instrument is to streamline the process through which lists of third countries and third country control bodies are maintained. This will save Parliamentary time and meet the requests of our stakeholders, who rely on accurate and up-to-date lists to carry out necessary and time-sensitive border checks.
I am pleased that the SLSC found my letter helpful in explaining the arrangements with regards to Northern Ireland.
I note that the SLSC’s outstanding concern relates to the power that the new rules will give the Secretary of State to make equivalence decisions on third countries in relation to their organic standards. I would like to reassure the SLSC that the process for allowing third country products to be placed on the GB market as organic remains robust, and follows highly technical criteria set out in the retained organics regulations – Council Regulation 834/2007 and Commission Regulations 889/2008 and 1235/2008. For an imported product to be placed on the GB market as organic, it must be certified by a control authority or control body which has been recognised as having equivalent standards to GB or have been produced in a third country which has been recognised as having equivalent standards.
The draft Organics (Equivalence and Control Bodies Listing) (Amendment) Regulations 2021 do not seek to change or reduce the conditions for third country recognition. The procedure for requesting inclusion in the list of third countries is set out in Article 8 of Regulation 1235/2008: when a third country applies for equivalence recognition for the purpose of organics trade, it must provide all necessary information, including details of its control system and production standards, on the basis of which a decision can be made. Any recognition will be reviewed on a regular basis to ensure the equivalent high standards are maintained; once a third country has been recognised, that recognition is limited to a period of three years. The Secretary of State may recognise a third country as having equivalent organic standards only once they are satisfied that these criteria for recognition have been met. If these standards cease to be met, or the third country does not meet its continuing obligations, the recognition may be withdrawn. Additionally, a third country recognition is generally part of a wider trade agreement, which would require Parliamentary ratification.
I hope that the further relevant legislation noted above will reassure the SLSC that the draft Organics (Equivalence and Control Bodies Listing) (Amendment) Regulations 2021 make no changes to the technical criteria by which equivalence of third countries and third country control bodies will be assessed. I remain, as always, committed to maintaining the highest standards in the GB organics sector and supporting the important work of the SLSC.
Please do not hesitate to get in touch if you have any further queries.
13 October 2021
26 HM Revenue & Customs, ‘Apply for authorisation for the UK Trader Scheme if you bring goods into Northern Ireland’ (13 September 2021): https://www.gov.uk/guidance/apply-for-authorisation-for-the-uk-trader-scheme-if-you-bring-goods-into-northern-ireland [accessed 13 October 2021]
27 Department for Environment Food & Rural Affairs, ‘Traders: how to get advice and which costs are covered’ (27 September 2021): https://www.gov.uk/government/publications/movement-assistance-scheme-get-help-with-moving-agrifood-goods-to-northern-ireland/traders-how-to-get-advice-and-which-costs-are-covered [accessed 13 October 2021].
28 Department of Agriculture, Environment and Rural Affairs, ‘Developing the Digital Assistance Scheme (DAS)’: https://www.daera-ni.gov.uk/articles/developing-digital-assistance-scheme-das [accessed 13 October 2021].