Explanatory Memorandum to Plant Health (Forestry) (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019
This Explanatory Memorandum has been prepared by the Forest Resources Policy Branch within the Economy, Skills and Natural Resources Department and is laid before the National Assembly for Wales in conjunction with the above subordinate legislation and in accordance with Standing Order 27.1
Minister/Deputy Minister’s Declaration
In my view, this Explanatory Memorandum gives a fair and reasonable view of the expected impact of the Plant Health (Forestry) (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019. I have made the statements required by the European Union (Withdrawal) Act 2018. These statements can be found in Part 2 of the Annex to this memorandum.
I am satisfied that the benefits justify the likely costs.
Lesley Griffiths
Minister for Environment, Energy and Rural Affairs
5 March 2019
1.1
Council Directive
2000/29/EC (“the Plant Health Directive”) establishes
the EU plant health regime. The Plant Health Directive
contains measures to be taken in order to prevent the introduction
into, and spread within, the EU of serious pests and diseases of
plants and plant produce. The Directive and, therefore, the
implementing domestic legislation is updated from time to time to
take account of new and revised risk assessments, pest
interceptions, changes in distribution of pests and other
developments.
1.2 The Plant Health Forestry (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019 (‘the Regulations’) correct deficiencies in domestic legislation which implements EU Directive 2000/29/EC on measures to protect (forestry) plant health arising in consequence of the UKs withdrawal from the EU in a ‘no deal’ scenario.
1.3 The Regulations come into force on “exit day”, which section 20(1) of the European Union (Withdrawal) Act 2018 (‘the 2018 Act’) defines as 29 March 2019 at 11.00pm.
2.1 In accordance with paragraph 1(8) of Schedule 7 to the 2018 Act the Regulations are subject to the affirmative procedure as they relate to fees in respect of a function exercisable by a public authority in the UK.
3.1 The Regulations are being made in exercise of the power in Part 1 of Schedule 2 to the 2018 Act in order to address failures of retained EU law to operate effectively or other deficiencies arising from the withdrawal of the UK from the European Union. In accordance with the requirements of the 2018 Act the Minister for Environment, Energy and Rural Affairs, Lesley Griffiths, has made the relevant statements as detailed in Part 2 of the Annex to this Explanatory Memorandum.
What did any relevant EU law do before exit day?
4.1 Council Directive 2000/29/EC on protective measures against the introduction into the EU of organisms harmful to plants or plant products and against their spread within the EU (“the Plant Health Directive”) establishes the EU plant health regime. Whilst protecting against plant health risks, the Plant Health Directive also provides for the trade and movement of plant material within and between EU Member States, thereby creating an internal EU market for this material.
4.2 The Plant Health Directive is implemented in Wales, in relation to forestry matters, via the Plant Health (Forestry) Order 2005 whose purpose is to prevent the introduction and spread of harmful plant pests and diseases. It sets out obligations for the control and management of plant health risks from the import of plant material from third countries and the movement of such material within the EU single market, in order to protect biosecurity and the value of plant material to the economy and society.
4.3 The Plant Health (Fees) (Forestry) (Wales) Regulations 2019 prescribes the fees relating to forestry activities, such as plant health checks. This enables cost effective implementation of the plant health regime in relation to forestry.
4.4 The Forest Reproductive Material (Great Britain) Regulations 2002 implement EU decisions on the equivalence of forest reproductive material produced in countries outside the European Union and sets out the requirements which apply in Great Britain regarding the categorisation of forest reproductive material and approval of basic material for entry in the National Register, collection and production of forest reproductive material, registration of suppliers, marketing of forest reproductive material and the movement of forest reproductive material between Great Britain and elsewhere within the European Community.
Why is it being changed?
4.5 After EU-Exit, without amendment certain provisions will be inoperable and, as a result, existing law will either be unclear or will not function effectively. This instrument amends provisions which are inappropriate or redundant as a result of the withdrawal of the UK from the EU. It makes changes to ensure that the law functions correctly after exit day, for example to remove references to the Commission, Community, Member States and third countries, and to remove reporting obligations to the Commission which will no longer be appropriate.
What will it now do?
4.6 The Regulations will ensure that plant health (forestry) legislation in Wales, which implements current EU protective measures against the introduction and spread of organisms harmful to plants or plant products, remains effective and continue to be operable after the UK leaves the EU in a ‘no deal’ scenario.
5.1 As there is no policy change, no public consultation was undertaken. The purpose of the instrument is to enable the current legislative and policy framework to remain operable after the withdrawal of the UK from the European Union.
6.1 An impact assessment has not been prepared for this instrument because the direct impacts on businesses, charities, voluntary bodies or the public sector are expected to be negligible and not requiring an impact assessment.
6.2The Regulations largely correct technical deficiencies that will arise from withdrawal and ensure that the existing regimes for safeguarding UK biosecurity will continue to operate effectively.
Statements under the European Union (Withdrawal) Act 2018
Part 1
Table of Statements under the 2018 Act
This table sets out the statements that may be required of the Welsh Ministers under the 2018 Act. The table also sets out those statements that may be required of Ministers of the Crown under the 2018 Act, which the Welsh Ministers have committed to also provide when required. The required statements can be found in Part 2 of this annex.
|
Statement |
Where the requirement sits |
To whom it applies |
What it requires |
|
Sifting |
Paragraphs 3(7) and 4(3), Schedule 7
Paragraph 3(7) (anticipated to be a requirement on Welsh Ministers in Standing Orders) |
The Welsh Ministers exercising powers in Part 1 of Schedule 2 to make a Negative SI
Paragraph 3(7) applies to Ministers of the Crown, but Welsh Ministers have committed to make the same statement |
A statement to explain why the instrument should be subject to the negative procedure and, if applicable, why they disagree with the recommendation of the CLA Committee (as sifting committee) |
|
Appropriate- ness |
Sub-paragraph (2) of paragraph 28, Schedule 7 |
Applies to Ministers of the Crown exercising powers in sections 8(1), 9 and 23(1) or jointly exercising powers in Schedule 2. Welsh Ministers have committed to make the same statement when 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 |
Applies to Ministers of the Crown exercising powers in sections 8(1), 9 and 23(1) or jointly exercising powers in Schedule 2. Welsh Ministers have committed to make the same statement when exercising powers in Schedule 2 |
A statement to 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 |
Applies to Ministers of the Crown exercising powers in sections 8(1), 9 and 23(1) or jointly exercising powers in Schedule 2. Welsh Ministers have committed to make the same statement when exercising powers in Schedule 2 |
A statement to explain what, if any, amendment, repeals or revocations are being made to the Equalities Acts 2006 and 2010 and legislation made under them.
A statement 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
|
Applies to Ministers of the Crown exercising powers in sections 8(1), 9 and 23(1) or jointly exercising powers in Schedule 2. Welsh Ministers have committed to make the same statement when exercising powers in Schedule 2 |
A statement to explain the instrument, identify the relevant law before exit 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 |
Applies to Ministers of the Crown exercising powers in sections 8(1), 9 and 23(1) or jointly exercising powers in Schedule 2. Welsh Ministers have committed to make the same statement when exercising powers in Schedule 2 |
A statement setting out the ‘good reasons’ for creating a criminal offence, and the penalty attached. |
|
Sub- delegation |
Paragraph 30, Schedule 7 |
Applies to Ministers of the Crown exercising powers in sections 18(1), 9 and paragraph 1 of Schedule 4 to create a legislative power exercisable not by a Minister of the Crown or a Devolved Authority.
Welsh Ministers have committed to make the same statement when exercising powers in Schedule 2 or paragraph 1 of Schedule 4 to create a legislative power exercisable not by a Minister of the Crown or a Devolved Authority |
A statement to explain why it is appropriate to create such a sub-delegated power. |
|
Urgency |
Sub-paragraph (2) and (8) of paragraph 7, Schedule 7 |
Welsh Ministers exercising powers in Part 1 of Schedule 2 but using the urgent procedure in paragraph 7 of Schedule 7 |
A statement that the Welsh Ministers are of the opinion that it is necessary to make the SI using the urgent procedure and the reasons for that opinion. |
Part 2
Statements required when using enabling powers
under the European Union (Withdrawal) 2018 Act
1. Sifting statement(s)
Not applicable.
2. Appropriateness statement
The Minister for Environment, Energy and Rural Affairs, Lesley Griffiths, has made the following statement regarding use of legislative powers in the European Union (Withdrawal) Act 2018:
“In my view the Plant Health (Forestry) (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019 do no more than is appropriate”. This is the case because the Regulations largely correct technical deficiencies that will arise from withdrawal and ensure that the existing regimes for safeguarding UK biosecurity will continue to operate effectively, in Wales, once we leave the EU. This is in line with Government policy.
3. Good reasons
The Minister for Environment, Energy and Rural Affairs, Lesley Griffiths has made the following statement regarding use of legislative powers in the European Union (Withdrawal) Act 2018:
“In my view there are good reasons for the provisions in this draft instrument, and I have concluded they are a reasonable course of action”. This is because there is real public concern about biosecurity and that the government should at least maintain the protections that currently exist. The public would also expect us to be able to take enforcement action against those that are in breach of plant health (forestry) legislation. In addition, businesses would expect us to provide conditions within Wales that support the trade and movement of plant material.
4. Equalities
4.1 The Minister for Environment, Energy and Rural Affairs, Lesley Griffiths, has made the following statement(s):
“The draft instrument does not amend, repeal or revoke a provision or provisions in the Equality Act 2006 or the Equality Act 2010 or subordinate legislation made under those Acts.
4.2 The Minister for Environment, Energy and Rural Affairs, Lesley Griffiths, has made the following statement regarding use of legislative powers in the European Union (Withdrawal) Act 2018:
“In relation to the draft instrument, I, Lesley Griffiths, have had due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act 2010”.
4.3 Little or no impact on equalities is expected.
5. Explanations
The explanations statement has been made in paragraph 4 (Purpose & intended effect of the legislation) of the main body of this explanatory memorandum.
6. Criminal offences
6.1 The Minister for Environment, Energy and Rural Affairs, Lesley Griffiths, has made the following statement regarding use of legislative powers in the European Union (Withdrawal) Act 2018.
“In my view there are good reasons for the creation of criminal offences and for
the penalties in respect of them in the Plant Health (Forestry) (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019.”
Amendments to existing offences in the Plant Health Order 2005 will be needed to reflect new requirements introduced through the Plant Health (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019 for regulated third country goods which enter Wales via the EU, which have not been subject to plant health checks in the EU and arrive at fast-moving, high volume Ro-Ro ports. The new requirements will require these goods to be moved inland and held securely until plant health checks have been completed. The new offence will provide the ability to enforce and prosecute serious cases of non-compliance with these new requirements.
In addition, a new criminal offence is also required to enforce any failure to comply with any prohibition or restriction in demarcated areas to prevent the spread of certain harmful plant pests in cases where this is an outbreak involving certain pests.
Offences under the Plant Health (Wales) Order 2018 carry, on summary conviction, a penalty of a fine not exceeding level 5 on the standard scale.
7. Legislative sub-delegation
7.1 Not applicable.
8. Urgency
8.1 Not applicable.