My Lords, I echo my noble friend Lady Bakewell of Hardington Mandeville’s thanks to the Minister for his introduction to this group and also for arranging the meeting with the Bill team last Friday and for the very helpful discussions that we were able to have there. As he knows, we have been asking for data relating to the SIs to be sunsetted right from the start of the Bill’s passage, and I thank the Minister and his team for circulating the spreadsheet, which arrived earlier yesterday.
My amendment follows the concerns expressed by the noble Baroness, Lady McIntosh of Pickering, in Monday’s debate, at cols. 19 and 20. She asked about identifying retained EU law, and my concerns relate to the holes in the existing and sunsetting of the regulations. I have tabled Amendment 64ZB, having raised concerns at the meeting with the Bill team about this one SI in the list of 600, mainly because there was not much time to do detailed work on others. It is found in the proposed new schedule, at lines 209-10, entitled Foodstuffs
Suitable for People Intolerant to Gluten (England) Regulations 2010—please forgive me if I just refer to such foodstuffs as “gluten” hereafter.
As a coeliac of five decades, as well as having had an interest in health matters for some time, I spent a very large part of Thursday and Friday trying to track back current and former regulations relating to foodstuffs that are suitable for people who are intolerant to gluten and their labelling—it is vital to ensure that people with coeliac disease and intolerances can keep themselves safe. I have to say that I found it almost impossible to do so. Key words were not used consistently and there was no golden thread anywhere to help navigate this. On Thursday afternoon, I approached the Food Standards Agency and Coeliac UK. Both responded swiftly and were extremely helpful. The Government’s spreadsheet that I referred to earlier says, at item 94, that this SI is redundant because
“These Regulations are inoperable. It enforced EU Regulation 41/2009, which was repealed by the EU in 2016 (and replaced by EU Regulation 828/2014, which is being preserved). The equivalent domestic enforcement legislation in Wales, Scotland and NI was revoked and replaced in 2016”.
Unfortunately, this is not entirely correct.
In the helpful briefings from the FSA and Coeliac UK, it transpires that in 2016 there was a consultation to put EU Regulation 828/2014 into a UK regulation to replace SI 2010/2281. This is important because the EU directive sets the composition levels and the labelling rules for gluten-free foodstuffs. However, since that consultation, there has been total silence from the Government about introducing an SI to replace the one listed in the proposed new schedule at lines 209-10. Both the FSA and Coeliac UK told me they have been relying on a workaround, outside of the regulations, found in other legislation, including general food law and the Food Safety Act 1990. These relate to enforcement, not to detailed composition and labelling laws, which are found in EU Regulation 828/2014. Coeliac UK and the FSA have both told me, in briefings that I forwarded to the Minister and his team, that the workaround relies not only on general food law and the Food Safety Act but on the underpinning powers of EU Regulation 1169/2001. However, this regulation mentions gluten only once, on page 51, in Annexe II, paragraph 1, whereas EU Regulation 828/2014 is all about foodstuffs containing gluten and their appropriate labelling.
The FSA and Coeliac UK are both clear that a statutory instrument for England is required to allow direct enforcement of EU Regulation 828/2014, and this will follow in due course. Indeed, the Bill team confirmed this to me in an email yesterday. While I note there is a workaround, I am bemused that such an important matter that relies on the detail of EU Regulation 828/2014 has not yet been brought before Parliament in an SI. Why has there been a seven-year delay to lay that relevant SI since the Government’s own 2016 consultation? I also asked the Minister in an email when we can expect to see this laid, and the reply was that there is a commitment to progress
“at the earliest possible time”
but no possible date. With the greatest respect to the Minister and the Government, it is not down to the FSA, which is constantly referred to as being in charge of the legislative process. It is not.
The email from the Minister also said that this legislation
“remains in force and will be preserved as part of the Retained EU law process”.
But it is not enforced because there is not a regulation. It goes on to say:
“Although there are no direct enforcing regulations in England, there are sufficient powers”—
the ones I referred to. However, as I have said, that does not cover the detail of the relevant recent 2014 regulation.
It may feel to some people that I am dancing on the head of a pin. But those who are intolerant to gluten rely very particularly on the EU directive that covers the composition and labelling of items, and therefore how they are sold, which assures people that they can eat them safely. My broader concerns are how many of the other 599 sunset SIs have similar holes in the legislation.
I note that some MPs have referred to the “blob” and others being at fault for not moving quickly enough. I think that the detail I have just recounted shows that the history of SIs has not been well listed over many years, and it is complex. The government spreadsheet, circulated earlier on, is clearly not aware of it. The government website on nutrition is also not aware of it. The nutrition legislation information sheet, at paragraph 5.8, unfortunately does not refer to the need for this new directive.
Will the Minister assure me that there has been a full tracking of all elements of each SI that is proposed to be removed? If it is discovered that there are holes, such as the one I have just described, what will the Government do, under the terms of this Bill, to ensure that there are no legislative problems in the future?
The Secondary Legislation Scrutiny Committee was very clear that one of the main problems that Parliament has to face, both our House and the other place, is how on earth we can continue with our effective parliamentary scrutiny, given the very broad sweep of secondary legislation that may be made under the provisions of the Bill. This is absolutely one of those cornerstone regulations where we need to ensure that the directive is visible in legislation—it is not.