EXPLANATORY MEMORANDUM TO
THE ANIMAL HEALTH, PLANT HEALTH, SEEDS AND SEED POTATOES (MISCELLANEOUS AMENDMENTS) REGULATIONS 2021
[Year] No. [XXXX]
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Introduction
- This Explanatory Memorandum has been prepared by the Department for Environment, Food and Rural Affairs (“Defra”) and is laid before Parliament by Act.
- This Memorandum contains information for the Sifting Committees.
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Purpose of the instrument
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- The purpose of this instrument is to address failures of retained EU law to operate effectively following the withdrawal of the United Kingdom (“UK”) from the European Union (“EU”). This will ensure that plant and animal health controls can operate effectively to protect biosecurity and support trade between Great Britain (“GB”) and the relevant third countries.
- This instrument makes amendments to secondary legislation to correct deficiencies relating to plant health, seeds and seed potatoes which have arisen as a result of the withdrawal of the UK from the EU.
- This instrument also corrects errors in various statutory instruments (please see the Explanatory Note to the instrument for further details). In light of these corrections, the Department is adopting the free issue procedure in relation to this instrument. The Department confirms that it has complied with the requirement stated in paragraph 4.7.6 of Statutory Instrument Practice to consult the SI Registrar on the use of the free issue procedure in relation to this instrument.
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Matters of special interest to Parliament
Matters of special interest to the Sifting Committees
- This instrument is being laid for sifting by the Sifting Committees.
Matters of special interest to the Joint Committee on Statutory Instruments
- The amendments in regulations 3 and 5 correct errors identified by the Joint Committee on Statutory Instruments in the Animals, Aquatic Animal Health, Invasive Alien Species, Plant Propagating Material and Seeds (Amendment) (EU Exit) Regulations 2020 (“S.I. 2020/1388”): please see the Committee’s Forty-First Report of Session 2019-21. Please also see paragraphs 7.5, 7.6 and 7.9 below.
- Extent and Territorial Application
- The territorial extent of this instrument is England and Wales, and Scotland, apart from regulations 3 and 4, which extend to England and Wales, Scotland and Northern Ireland, and regulation 13, which extends to England and Wales only.
- The territorial application of this instrument is England and Wales, and Scotland, apart from regulation 3, which applies to England and Wales, Scotland and Northern Ireland, and regulation 13, which applies to England only.
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Policy background
What is being done and why?
- The purpose of this instrument is to amend legislative deficiencies to ensure the continued protection of GB biosecurity and facilitate trade movements between GB and relevant third countries. The amendments being introduced by this instrument are technical operability amends and do not implement any new policy changes.
Explanations
What did any law do before the changes to be made by this instrument?
- Regulation (EU) 2016/2031 (“the Plant Health Regulation”) and Regulation (EU) 2017/625 (“the Official Controls Regulation”), (together “the EU Regulations”), form part of the EU Smarter Rules for Safer Food package of regulations. This package was designed to modernise, simplify, and improve existing health and safety standards for the agri-food chain, taking a risk-based approach to animal, plant and public health protection and introducing more efficient pest and disease control measures. Additional tertiary legislation, such as Regulation (EU) 2019/2072 (“the Phytosanitary Conditions Regulation”), established uniform conditions for the Plant Health Regulation, while Commission Implementing Regulation (EU) 2019/66 of 16 January 2019 on rules on uniform practical arrangements for the performance of official controls on plants, plant products and other objects in order to verify compliance with Union rules on protective measures against pests of plants applicable to those goods established uniform arrangements for the performance of official controls on plants, plant products and other objects.
- Before the end of the transition period, the EU Regulations were directly applicable, so no national implementing legislation was needed for them to take effect in UK law. However, supplementary domestic provisions were introduced by the Official Controls (Plant Health and Genetically Modified Organisms) (England) Regulations 2019 (“S.I. 2019/1517”) to enable competent authorities in England to carry out their obligations under, and enforce, the EU Regulations and to implement various derogations in the EU Regulations. Separate but parallel domestic legislation to S.I. 2019/1517 was also introduced in Wales, Northern Ireland, and Scotland.
- Commission Implementing Regulation (EU) 139/2013 lays down animal health conditions for imports of certain birds into the EU and the quarantine conditions thereof.
- Regulation (EC) No. 999/2001 lays down rules for the prevention, control and eradication of certain transmissible spongiform encephalopathies. It was retained in domestic law when the UK left the EU, as amended by the Transmissible Spongiform Encephalopathies and Animal By-Products (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/170), which was subsequently amended and updated by S.I. 2020/1388.
- Commission Regulation (EU) No 576/2013 lays down the animal health requirements applicable to the non-commercial movement of pet animals into an EU Member State from another EU Member State or from third countries and the checks applicable to such movement. It aims to ensure a sufficient level of safety with regard to the public and animal health risks involved in such non-commercial movement and to remove any unjustified obstacles to such movement.
Why is it being changed?
- The above EU laws on animal and plant health were amended in relation to GB to deal with a range of deficiencies in the legislation arising from the withdrawal of the UK from the EU.
- With regard to plant health, the Plant Health Regulation and the Phytosanitary Conditions Regulation were respectively amended by S.I. 2020/1482 and the Plant Health (Phytosanitary Conditions) (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1527) together “the 2020 Regulations”. This instrument deals with any outstanding deficiencies which have not been accounted for in previous amendments. This includes the amendment of certain transitional provisions in the 2020 Regulations, to ensure that these are extended to lower risk plants and plant products entering GB from Liechtenstein and Switzerland as well as from EU Member States. In addition, Commission Implementing Regulation (EU) 2019/2148, concerning the release of plants, plant products and other objects from quarantine stations and confinement facilities, is being amended to make this regulation operable in GB.
- With regard to animal health, Regulation (EC) No 999/2001 is being amended to remove an unnecessary point which duplicates or contradicts other points in this paragraph, relating to risks associated with classical scrapie in sheep and goats. Commission Implementing Regulation (EU) No 139/2013 is being amended to remove the disapplication of that Regulation for the imports of certain birds from Andorra, Liechtenstein, Monaco, Norway, San Marino, Switzerland and the Vatican City State, following the withdrawal of the UK from the EU. Commission Regulation (EU) No 576/2013 is being amended to ensure consistency in language when making reference to EU legislation.
- In addition, this instrument makes minor corrections to two statutory instruments:
- the Seeds (National Lists of Varieties) Regulations 2001 to provide clarity on the definition of “NI Variety Lists” so that a reference to the NI Variety List can mean any one of those lists.
- the Seed Potatoes (England) Regulations 2015 to re-state the definition of “seed potatoes produced outside England” to clarify the definition and remedy a minor error that arose in previous amending SIs (S.I. 2020/1388, which amended the definition in the Animal Health, Plant Health, Seeds and Seed Potatoes (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/809)).
What will it now do?
- The operability amendments made by this instrument regarding animal and plant health will ensure the continued functioning of sanitary and phytosanitary controls within GB, and between relevant third countries and GB.
- For operability amendments made to regulations on seed and seed potatoes, it will clarify the definitions as regards the “NI Variety Lists” and “seed potatoes produced outside England”.
Statements under the European Union (Withdrawal) Act 2018 and the European Union (Future Relationship) Act 2020
Part 1A
Table of Statements under the European Union (Withdrawal) Act 2018
This table sets out the statements that may be required under the European Union (Withdrawal) Act 2018
Statement | Where the requirement sits | To whom it applies | What it requires |
Sifting | Paragraphs 3(3), 3(7) and 17(3) and 17(7) of Schedule 7 | Ministers of the Crown exercising powers in sections 8(1) or 23(1) to make a Negative SI | Explain why the instrument should be subject to the negative procedure and, if applicable, why they disagree with the recommendation(s) of the SLSC/Sifting Committees |
Appropriate-
ness |
Sub-paragraph (2) of paragraph 28, Schedule 7 | Ministers of the Crown exercising powers in sections 8(1) or 23(1) or jointly exercising powers in Schedule 2 | A statement that the SI does no more than is appropriate. |
Good Reasons | Sub-paragraph (3) of paragraph 28, Schedule 7 | Ministers of the Crown exercising powers in sections 8(1) or 23(1) or jointly exercising powers in Schedule 2 | Explain the good reasons for making the instrument and that what is being done is a reasonable course of action. |
Equalities | Sub-paragraphs (4) and (5) of paragraph 28, Schedule 7 | Ministers of the Crown exercising powers in sections 8(1) or 23(1) or jointly exercising powers in Schedule 2 | Explain what, if any, amendment, repeals or revocations are being made to the Equality Act 2006 and 2010 and legislation made under them.
State that the Minister has had due regard to the need to eliminate discrimination and other conduct prohibited under the Equality Act 2010. |
Explanations | Sub-paragraph (6) of paragraph 28, Schedule 7 | Ministers of the Crown exercising powers in sections 8(1) or 23(1) or jointly exercising powers in Schedule 2
In addition to the statutory obligation the Government has made a political commitment to include these statements alongside all SIs made under the European Union (Withdrawal) Act 2018 |
Explain the instrument, identify the relevant law before IP completion day, explain the instrument’s effect on retained EU law and give information about the purpose of the instrument, e.g., whether minor or technical changes only are intended to the EU retained law. |
Criminal offences | Sub-paragraphs (3) and (7) of paragraph 28, Schedule 7 | Ministers of the Crown exercising powers in sections 8(1) or 23(1) or paragraph 1(2) of Schedule 2 to create a criminal offence | Set out the ‘good reasons’ for creating a criminal offence, and the penalty attached. |
Sub-
delegation |
Paragraph 30, Schedule 7 | Ministers of the Crown exercising powers in section 8 or paragraph 1 of Schedule 4 to create a legislative power exercisable not by a Minister of the Crown or a Devolved Authority by Statutory Instrument. | State why it is appropriate to create such a sub-delegated power. |
Urgency | Paragraph 34, Schedule 7 | Ministers of the Crown using the urgent procedure in paragraphs 5 or 19, Schedule 7. | Statement of the reasons for the Minister’s opinion that the SI is urgent. |
Scrutiny statement where amending regulations under section 2(2) of the European Communities Act 1972 (“the ECA 1972”) | Paragraph 14, Schedule 8 | Anybody making an SI after IP completion day under powers conferred before the start of the 2017-19 session of Parliament which modifies subordinate legislation made under section 2(2) of the ECA 1972 | Statement setting out:
a) the steps which the relevant authority has taken to make the draft instrument published in accordance with paragraph 16(2), Schedule 8 available to each House of Parliament, b) containing information about the relevant authority’s response to— (i) any recommendations made by a committee of either House of Parliament about the published draft instrument, and (ii) any other representations made to the relevant authority about the published draft instrument, and, c) containing any other information that the relevant authority considers appropriate in relation to the scrutiny of the instrument or draft instrument which is to be laid. |
Explanations where amending regulations under section 2(2) of the ECA 1972 | Paragraph 15, Schedule 8 | Anybody making an SI after IP completion day under powers outside the European Union (Withdrawal) Act 2018 which modifies subordinate legislation made under section 2(2) of the ECA 1972 | Statement explaining the good reasons for modifying the instrument made under s. 2(2) ECA, identifying the relevant law before IP completion day, and explaining the instrument’s effect on retained EU law. |
Part 1B
Table of Statements under the European Union (Future Relationship) Act 2020
This table sets out the statements that may be required under the European Union (Future Relationship) Act 2020
Statement | Where the requirement sits | To whom it applies | What it requires |
Sifting | Paragraph 8 Schedule 5 | Ministers of the Crown exercising powers in section 31 to make a negative SI | Explain why the instrument should be subject to the negative procedure and, if applicable, why they disagree with the recommendation(s) of the SLSC/Sifting Committees |