Food safety post-Brexit is being put at risk because the penalties for wrongdoing are being weakened as EU laws are brought into UK legislation.
The requirement that the penalty for breaches be 'effective, proportionate and dissuasive' has been removed potentially from hundreds of laws. Campaigners and lawyers have described this move as significant and alarming.
The Sustain alliance for food and farming has warned that during the process of bringing EU law into UK legislation, the penalty system is being weakening not just for food safety but also for fisheries, pesticides and air pollution.
Kath Dalmeny, chief executive of Sustain, said the move was shocking and said ministers were 'blatantly abusing' the powers given to them by the EU (Withdrawal) Act.
Significant changes to the law would usually be subject to public and parliamentary scrutiny. However, the European (Withdrawal) Act has given ‘Henry VIII powers’ to ministers to allow them to use statutory instruments to get EU law passed into UK law much faster to meet the Brexit deadline, but with less public and parliamentary scrutiny.
The Hansard Society estimates that between 800 and 1,000 statutory instruments will be needed to transfer large parts of EU law into UK legislation and that around 460 have been worked on so far.
“Parliament was promised that new ministerial powers to change law in the process of transfer from the EU into the UK system would be limited strictly to minor tweaks to wording,” said Dalmeny. She added: “This has major implications for our health and wellbeing. Such significant legal changes must always be put through a proper scrutiny process.”
Dalmeny and others are also concerned that these changes have almost slipped through unnoticed, and there is no indication within the explanatory notes of the regulations affected that it has been removed or the rationale behind it.
She said: “It’s taken specialist lawyers sitting there watching like hawks to pick this up. Defra didn’t make any reference to it being taken out. It’s incumbent on the government to provide this evidence on the explanatory notes.
“It’s very worrying, especially with this government being so taken on deregulation. It’s hard not to be suspicious that a different agenda is at work here.”
Sustain, backed by 13 other organisations including Friends of the Earth, Unison and the Wildlife Trusts, has written to the secretary of state for exiting the EU, Stephen Barclay, for an explanation and crucial details as to what alternative provisions will be put in place instead.
Fast-tracking to meet Brexit deadline
The changes that weaken penalties were uncovered by the Public Law Project and ClientEarth. Tom West, UK environment lead for ClientEarth, said: “It’s a fairly standard thing in EU law to put a penalty in place that is effective, proportionate, and dissuasive. With these statutory instruments they are removing that safeguarding requirement. We don’t see why this is necessary. The whole process around making these statutory instruments has been nowhere near good enough.
“It’s all happening fast in a political environment where bigger things are going on that are taking up politicians’ time and attention.
“We are concerned that it will become easy for the government to remove or weaken the penalties regime.”
Environmental impact and air quality
Gary McFarlane, director of CIEH Northern Ireland, said the change was cause for concern. Sparked by the Sustain campaign, McFarlane has uncovered further deletions and omissions that could negatively affect food safety made during the transposing of EU law into UK law.
Weakening penalties will also affect air pollution. McFarlane added: “We already know that across the UK we have a significant air quality challenge. And we also know that the poor quality of our air in certain towns and cities is already having significant health impacts.
“Weakening the penalty regime, if indeed that is what is intended, is inappropriate. It’s vital that regulations that exist to protect the public are underpinned with proportionate penalties for anyone who does not comply. Otherwise the risk of non-compliance – and therefore risk to the public – increases.”
A spokesperson for the Food Standards Agency said: “There will be no change in food safety enforcement policy after the UK leaves the EU. UK enforcement authorities, including the Food Standards Agency, will continue to perform their statutory enforcement duties.
“Leaving the EU doesn’t change our top priority, which is to ensure that UK food remains safe and what it says it is. The high standard of food safety and consumer protection we enjoy in this country will be maintained.”
A Defra spokesperson said: “The Secretary of State has been clear on numerous occasions that we do not intend to compromise on our high food standards in pursuit of any trade deals.
“The government is proud of our high standards of food safety, animal health and on-farm welfare, which our farmers work hard to maintain.
“Our food and drink enjoys a global reputation for quality, and we will not accept anything below the standards we currently import for British consumers.”