Organics (Equivalence and Control Bodies Listing) (Amendment) Regulations 2021

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Organics (Equivalence and Control Bodies Listing) (Amendment) Regulations 2021.

My Lords, for organic products imported from another country to be legally sold as organic in Great Britain they must be certified as organic by a third country or third-country control body that the UK has recognised as having equivalent or compliant standards.

The lists are currently contained within retained EU Commission Regulation EC number 1235/2008. Annexe III of this regulation lists third countries recognised as equivalent and gives the name and website of the competent authority for each country, along with a list of the control bodies operating in that country, their control body codes and websites. Annexe IV of the regulation lists third-country control bodies recognised as equivalent and gives the name, address, website, code numbers, applicable countries and approved product categories for each control body.

This statutory instrument was made to streamline the process of listing and accessing the details of the third countries and third-country control bodies that we recognise as compliant and equivalent for the purposes of UK organic regulations. The amendments made by this instrument do not constitute a policy change.

As the law stands, it would be necessary to pass a new SI to confirm recognition of a new country or control body, or for changes to existing recognition, such as changes to their name, website address or approved goods categories. With hundreds of organisations listed, this information can change frequently. When the UK was an EU member state, these changes were advised on by the European Commission and approved by representatives of the EU member states at the regulatory committee on organic production, not by the European Parliament.

Given the administrative nature of these changes, we believe that making numerous new SIs to reflect them would be disproportionate. The time taken to pass such SIs to update the lists would have a negative impact on trade in organics. Details held on these lists 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. The delay between the changes taking place and being reflected in legislation would result in discrepancies between the documents and legislation. This can cause disruption to trade, as even minor discrepancies may delay goods being checked at ports.

This SI will not alter the criteria according to which third countries and third-country control bodies are recognised. I would like to reassure the Committee 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. This SI simply seeks to move the lists currently referenced in legislation to the GOV.UK website, where they can be updated directly by officials. We will continue to uphold the high standards expected by UK consumers and businesses.

My Lords, I am most grateful to my noble friend for setting out the remit of the statutory instrument that is before us this afternoon. We have been greatly assisted by the 14th report of the Secondary Legislation Scrutiny Committee, which my noble friend will be aware has a number of outstanding concerns that I will raise.

Paragraph 7.5 of the Explanatory Memorandum says that

“instead of laying new statutory instruments for new recognitions or changes to existing recognitions, the law be amended”

in the way that my noble friend outlined. It concludes:

“This will save a considerable amount of officials’ and Parliamentary time and allow for greater speed in updating information.”

I do not think that Parliament has ever asked for less time to scrutinise legislation. As my noble friend will recall, when much of the legislation went through under the treaties and the Acts taking us out of the European Union, concern was expressed at the amount of parliamentary scrutiny that there would be.

My first question to my noble friend is this. Paragraph 10.1 specifically states:

“The changes to the listing of control bodies and third countries have been discussed with UK control bodies … and with the devolved administrations at the Organics Four Nations Working Group.”

I am interested to know whether that was just one meeting. Was there the opportunity for the devolved Parliaments and Governments to raise any concerns that they must have?

My noble friend will be aware that, in this very Room last week, the Common Frameworks Scrutiny Committee met to raise a number of issues. His department was mentioned, as there are, I think, 14 common frameworks that relate to it. I might be wrong, but I do not think that Parliament has seen a single one of those. Obviously, it is of great interest to us to see what has been agreed. I mention that as background. I would like to think that the Scottish, Welsh and Northern Irish nations have had the opportunity for both their Parliaments and Governments to raise any concerns that they had.

My Lords, I am grateful to the Minister for his introduction to this SI. I thank him and his officials for the useful briefing that they took the time to provide to me and to the noble Baroness, Lady Jones of Whitchurch. As has been said, the SI allows third countries equivalence on organic produce without the need for the time-consuming process of passing secondary legislation on each occasion. The power now rests with the Secretary of State to decide.

Paragraph 2.2 of the Explanatory Memorandum states that changes to the lists of countries and produce

“will be communicated to relevant stakeholders in a timely manner”.

Can the Minister say exactly what “a timely manner” is? Will the list always be updated immediately after equivalence is granted, or will there be occasions when this may take longer?

I note that no impact assessment was prepared for this SI, as the changes are said to be merely administrative. I am sympathetic towards streamlining procedures relating to legislation but do not believe that Parliament should be bypassed in all cases, especially when trade agreements are being considered.

The noble Baroness, Lady McIntosh of Pickering, has already raised my next point. The chair of the Secondary Legislation Scrutiny Committee, of which I am also a member, wrote to Minister Prentis challenging the assumption that the new administration process was merely technical and would have low impact. The committee took the view that making an equivalence decision on a third country would almost certainly be more important than suggested and felt that removing the oversight of Parliament by switching from a legislative to a purely administrative process was a concern. In her response, Minister Prentis indicated that

My Lords, I am grateful to the Minister for introducing this SI and for the helpful briefing that he organised beforehand. On the face of it, this seems to be an innocuous change, but, like other noble Lords, I do not feel that it is quite as straightforward as it first appears. I therefore have a number of questions that I want to raise.

First, we have a strong and blossoming organic sector in the UK and it is important that we protect the very high standards that consumers expect of organic products. In particular, it is vital that the UK organics market cannot be undercut by inferior products from third countries claiming to be of the same organic standards. When this was debated in the Commons, the Minister, Victoria Prentis, made it clear that organic trade between the UK and any third country in the future will be the subject of the provision of free trade agreements or treaties.

This immediately rang alarm bells because, as we have seen with other trade deals, most notably the one with Australia, the Government have been prepared to sell out our high food standards when it suits them to have a wider trade deal. Can the Minister clarify the status of our current organic standards? If, as he says, they are set out in retained EU legislation, could they be disregarded in a future trade deal?

Victoria Prentis also said that Parliament would have oversight of those trade deals that might impact organics. Can the Minister clarify whether this is the same oversight that exists for all other trade deals, on which Parliament has in truth had no real say and, as we all know, the views of the Trade and Agriculture Commission, which was set up to act as a mediator, if you like, are widely disregarded? Would organics be caught up in that same process?

Secondly, one of the main arguments put forward in the Explanatory Memorandum for the change is that ports, local authorities and businesses will be able to find an up-to-date list of the organic products that can be imported, as they will be listed on the government website rather than in legislation. I do not find this a compelling argument. I do not really see why this cannot be done in parallel with the original scrutiny process of making changes via SIs. For example, the Minister, Victoria Prentis, said that there were 13 countries, plus the EU, and about 55 control bodies currently listed. Despite what the EM says, I cannot imagine that there will be a swamp of new applications which will become unmanageable. If the concern is that those organisations change their addresses frequently, surely the solution would be to deal with this aspect of approval administratively rather than through the whole recognition of a new country or control body. I would be grateful if the Minister could clarify why it is not possible to have those two systems working in parallel with the original parliamentary scrutiny that we have previously enjoyed.

My Lords, I am grateful for noble Lords’ interest in this issue and for the questions that have been asked. To start with, I say to my noble friend that this is of course a massive increase in scrutiny. When we were a member of the EU, this did not ever come before Parliament; it did not even come before the European Parliament but was dealt with by a committee in the Commission. Everything we are doing is open to all Members of both Houses to scrutinise in the ways in which they ingeniously will, holding Ministers and the Executive to account. There are mechanisms in it, which I will come to in a moment.

I will answer as many of the questions as I can. If I cannot, I will write to noble Lords. My noble friend Lady McIntosh asked about the frequency of meetings of the four nations working group. My understanding is that it meets every month, so this is a very regular affair. I will come on to the points my noble friend made about the slight tension between the devolved Governments.

I think my noble friend Lady McIntosh also asked whether SIs are appropriate, whether they are a frequently used vehicle for minor changes in other policy areas, and why they should not be used here if they are used for many minor matters. The changes to lists that would be covered under this updated process would be administrative changes based on technical evaluations; they do not represent a policy change. These include 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 body.

We are aware of a number of cases in which minor changes to a control body’s information have resulted in goods being delayed at a port due to discrepancies between the details on certification documents and in legislation. As such, delays in updating this information in the list could result in a disruption to trade. 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. The faster mechanism introduced by this SI will enable the UK businesses that depend on this to take advantage of new opportunities to trade more quickly. This may provide a competitive advantage over other nations, such as those in the European Union burdened by cumbersome and lengthy processes.

On the questions from the noble Baroness, Lady Bakewell, there is a legitimate query about how quickly Defra will be able to publish updates to the lists after a new decision is made. Once a change has been agreed, the process is fairly swift. It is likely to take approximately two working days, as that is the standard time for updates to GOV.UK to be put into effect, dependent on communication capacity at the time. The time taken for decisions on whether or not to make a change would vary in length based on the complexity of the change in question. For example, if a third-country control body alerts us to a change to its name or website, that can be approved quickly.

The noble Baroness made a point about how Defra would alert stakeholders that changes had been made. Stakeholders will be made aware of the changes in a timely manner by email, and any new third-country recognitions will be consulted on with stakeholders as part of the decision-making process. I add in answer to a number of points that the organic sector desperately needs this—I think noble Lords agree with that and understand it. We are not making this change in the teeth of opposition from the organic sector; it wants a simple, streamlined process.

The noble Baroness, Lady Bakewell, and a number of other noble Lords asked about parliamentary oversight of the approval of third countries and third-country control bodies, and that point was also raised by the SLSC. We believe that, given the administrative and low-impact nature of amendments to the lists of recognised third countries and third-country control bodies and the very detailed technical assessment required by this instrument to add a country or control body to the list, scrutiny at official level is appropriate. The recognition of a third country’s organic standards as equivalent is based on an extensive technical evaluation of the third country’s organic standards to ensure that they are comparable to the UK’s standards, and an evaluation of its enforcement mechanisms to ensure that 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 continuing obligations, including the provision of annual reports and notification of infringements or changes to standards.

It was asked why reference to EU equivalence is made until 31 December 2023 and what will happen after that date. In the EU-UK Trade and Cooperation agreement we committed to recognising the European Union as equivalent for the purposes of organics until 31 December 2023 and vice versa. This is in line with the convention for EU recognition of third countries for organics, which is limited to three years at a time. We will use the recognition provided by this SI to reflect our recognition of the EU in our official list. This SI will allow us to move our recognition of the EU on to official lists. At the end of the current recognition period, equivalence will need to be renegotiated between the UK and the EU. Our intention is that, when the current mutual recognition ends, we will seek to renew it.

On whether this SI will allow the Secretary of State to lower organic standards, the noble Baroness, Lady Jones, makes an important point. The key point of this is to maintain organic standards; that is what we need for international trade, and that is what the sector wants. The UK standards for organic production, which third countries must equal if their goods are to be recognised as equivalent and imported to the UK, are set out in retained regulations 834/2007 and 889/2008. Amendment to these regulations requires a statutory instrument, so will require parliamentary scrutiny. I think that that point answers a number of the queries made. The Secretary of State cannot simply decide to amend these standards, and it is not in our interests to lower those standards, because it would affect our ability to trade with other countries.

The standards for third-country organics recognition are set out in articles 32 and 33 of retained EU regulation 834/2007 and 1235/2008. There is detailed technical guidance on what will be required to recognise a country as equivalent—for example, carrying out a full standards comparison, reviewing a technical dossier, conducting annual reviews and carrying out audits.

On the point about the Trade and Agriculture Commission, I respectfully take a different view from the noble Baroness. Its views are not ignored; it is a relatively new body, and we want to make sure that it works. It is vital that it works for farmers and the UK economy.

I was asked why Defra cannot publish the lists on GOV.UK without taking them out of legislation. Defra could publish copies of the lists of third countries and control bodies on GOV.UK without removing them from legislation, but that would not solve the main issue, which this SI seeks to resolve. Lists published on GOV.UK would not be legally binding if they were not underpinned by the correct legislation. Port health authorities, for example, would not be able to work on the basis of those lists when checking which organic products may be imported into this country. In such a scenario, any change would still require that a new SI be passed.

I have already touched on the question about ongoing disagreements on aspects of organic regulations and whether they are retained and devolved, but I shall be open with noble Lords. There is an ongoing disagreement between the UK Government and the devolved Administrations about whether certain aspects of implementing trade policy are devolved or reserved. That disagreement is not specific to the organic sector. The source of this dispute is over the question of what is or is not reserved. While it is agreed that trade is in general a reserved matter, there is a dispute over whether domestic enforcement of agreements is reserved. To allow the continued functioning of the organic sector, the four Administrations agreed that Defra should remain the UK competent authority and they should work together through the four nations working group. Although this issue has not been resolved, it is not affecting day-to-day operations—that is absolutely key. The process of seeking a legal resolution would be costly and time-consuming, and therefore the Administrations have not considered it necessary.