Official Report: Minutes of Evidence

The Chairperson (Ms D Armstrong): The purpose of the statutory rule (SR) is to introduce a right of appeal against specified departmental enforcement decisions on plant protection products (PPPs), ensuring compliance with article 7 of the official controls regulation (OCR) under the Windsor framework. The amendment addresses a gap in the 2020 regulations, reducing the risk of legal challenge and ensuring full implementation of the regulatory requirements. The SR is subject to the negative resolution procedure. At our meeting on 10 September, we agreed to receive an oral briefing from officials today and to issue a call for views using the Citizen Space platform, which has received no responses. I welcome the officials and invite them to brief the Committee and answer any questions that we have. We are joined by Helen Thompson, pesticides projects manager, and Bronagh Mallon, senior pesticides policy officer.

Ms Helen Thompson (Department of Agriculture, Environment and Rural Affairs): Thank you, Chair and Committee members, for the opportunity to provide this short briefing. The Chair has probably covered most of what I was going to cover anyway. The SR makes a minor technical amendment to existing domestic plant protection products official controls legislation. It provides a clear right of appeal against specified departmental decisions relating to non-compliance with the requirements for the marketing and use of plant protection products, which you all know more commonly as pesticides. It gives effect to article 7 of regulation (EU) 2017/625, the official controls regulation, in respect of official controls on plant protection products only.

The SR establishes two key changes: a requirement that all notices of decision must inform recipients of their right of appeal and the time limit for doing so; and the creation of a statutory right of appeal to a court of summary jurisdiction with procedures aligned with the Magistrates' Courts (Northern Ireland) Order 1981. Its aim is to ensure procedural fairness, legal certainty and compliance with the OCR by providing affected parties with a clear and consistent mechanism to challenge enforcement decisions. Up to now, judicial review has been the only option open to operators. The right of appeal provision has already been introduced in Northern Ireland in relation to other elements of the OCR, including plant health and food and feed, so bringing this legislation forward for PPPs ensures alignment with other areas under the OCR in Northern Ireland.

That ends my very brief brief, and I am happy to take questions.

The Chairperson (Ms D Armstrong): Thank you. I have just one to ask at the outset, given that the deficiency has existed since 2022. Was the Department advised of any legal risks during that time?

Ms Thompson: No, it was not, because our official controls programme had not started yet, so no decisions were being taken against people under the legislation. We had a bit of a stopgap whilst senior managers organised the staffing of that official controls programme. We understand that officials are now in place and the programme is being developed.

The Chairperson (Ms D Armstrong): Thank you. No consultation with regulated operators was undertaken, so how is the Department satisfied that the proposed appeals process is appropriate and workable for those affected?

Ms Thompson: The OCR itself was consulted on at a European level. The feeling was that it was not necessary to do that again. I should also point out that the parent legislation was not consulted on either — again for that reason.

The Chairperson (Ms D Armstrong): Thank you very much.

Miss McIlveen: When was the parent legislation brought in?

Ms Thompson: In 2020, just prior to Brexit.

Miss McIlveen: OK, so is this just for alignment with the other aspects of the OCR, or is there a particular reason why, all of a sudden, it is required?

Ms Thompson: It is partly to get all the OCR implemented. That was obviously a bit of the statute book that was lacking for plant protection products. However, it is also because we will be commencing our programme of official controls — hopefully, in the next year — so there was really no need for it at this time. We also wrote the legislation in line with what DEFRA was doing for GB. DEFRA still does not have its right of appeal in place. It intends to do so, but, at the minute, it is working with the sanitary and phytosanitary (SPS) agreement and the outworkings of that. That is taking up its time at the minute, so we are ahead of DEFRA on this one, purely because of what the Minister wanted to do with the Windsor framework delivery; we have to deliver it now.

Miss McIlveen: Is GB managing the risk around this so that —.

Ms Thompson: Yes, it has had its official controls in place for about two years already.

Miss McIlveen: Is it further advanced than us?

Ms Thompson: In its programme, yes. Scottish law is different to English law, so it is a lot harder for DEFRA to get that in place. As I said, DEFRA is focused on the SPS agreement at the minute and wants to see what happens out of that before it progresses with this. It does not see that there is a particular risk. There have not been any judicial reviews, as far as I am aware. Certainly, we have had nothing in the past.

Miss McIlveen: I was going to ask —.

Ms Thompson: Yes. There has been nothing in the past, so we cannot even estimate how many appeals we will get, because, first, there has not been a robust programme in place, and, secondly, there have not been any judicial reviews.

Miss McIlveen: Thank you.

The Chairperson (Ms D Armstrong): Thank you, members. Any further questions? OK. Following on from what we heard today, and bearing in mind that the SL1 stage is the last opportunity for the Committee to influence the policy approach, are members content that we have sufficient information to make a formal decision on the draft SR?

The Chairperson (Ms D Armstrong): Michelle, do you have something to say?

Miss McIlveen: I am not excited about anything that is connected to the EU, obviously.

The Chairperson (Ms D Armstrong): We will record that as a comment. Are you referring to the oversight at the EU?

Miss McIlveen: Yes.

The Chairperson (Ms D Armstrong): Thank you, members, and thank you for coming in this morning, and for your brief brief. [Laughter.]

Ms Thompson: Hopefully it will make your day briefer.