OF&G response to government consultation on reforming framework regulation

1st October 2021

Below is our response to sections of the UK government’s consultation on ‘Reforming the Framework for Better Regulation’.

Organic Farmers & Growers CIC (OF&G) is the largest certifier of organic land in the United Kingdom.

Founded forty years ago as a marketing cooperative for organic farmers OF&G went on to become the first body to receive government approval for an organic inspection and certification scheme in the UK.

As an Organic Control Body our role is to ensure that the Organic standards[1] are carried out on organic farms and in food businesses across the UK, and to offer support and guidance for businesses who are making the switch to organic.

We certify the complete food supply chain from primary production, feed and seed to processed product including storage, warehousing, distribution and retail.

From our offices just outside Shrewsbury in Shropshire, we provide services to organic businesses across Great Britain and Northern Ireland, the Isle of Man and the Channel Islands.

Introduction

Organic Farmers & Growers CIC is the largest certifier of organic land in the UK and the first body to be approved by the government to inspect and certify organic food and farming.

We operate in the regulated arena of organic food and farming. Our responses are therefore confined to our particular knowledge and experience. While our operations are generally confined to a specific area of business nonetheless our experience of working within a regulatory framework extends over many decades and across a number of different sectors.

The following comprises our comment on parts of the consultation. We would welcome further dialogue with government on this proposed change to UK legal frameworks.

Question 1: What areas of law (particularly retained EU law) would benefit from reform to adopt a less codified, more common law-focused approach?

Question 2: Please provide an explanation for any answers given.

From our experience and knowledge and considering the impacts on businesses and communities working within food and farming therefore the natural environment and human health, we would strongly recommend the UK government maintain a strict and appropriate set of legislative frameworks.

Question 3: Are there any areas of law where the Government should be cautious about adopting this [less codified, more common law-focused] approach? Question 4: Please provide an explanation for any answers given.

In our experience a food / farming business functions well when regulation works efficiently and effectively. This is reliant on control bodies delivering consistent interpretations of relevant regulations. For us that also means we inspect all licensees on a regular basis and are ourselves audited each year by a government approved auditor.

The origin of many well-known regulatory frameworks would have arisen from common law. A move back to common law and away from the legislative format would be regressive rather than progressive and could cause serious negative outcomes for those in the business community large and small. And could cause further negative outcomes in human health and throughout the natural environment.

Commercial stakeholders along with their clients and suppliers all rely on consistent delivery of all rules, codified or otherwise. And they would all want to understand what agreements are in place and to whom one would recourse in the event of a dispute.

The regulatory framework offers a country’s population security that decisions are overseen, that the overseeing process is transparent and open to public scrutiny.

An example would be that regulation of genetic technologies would need to be clearly described and codified.

Diverging rules across the devolved nations of the United Kingdom would be a serious concern in considering any impact resulting from a poorer structure such as a simple codification of genetic technologies.

As we know food and farming are devolved areas of competency. Scotland, Wales and Northern Ireland have all adopted policy positions that are in general opposed to reducing regulatory oversight for the use of genetic engineering in food and farming.

Question 5: Should a proportionality principle be mandated at the heart of all UK regulation?

Question 6: Should a proportionality principle be designed to 1) ensure that regulations are proportionate with the level of risk being addressed and 2) focus on reaching the right outcome?

Question 7: If no, please explain alternative suggestions.

A proportionality principle would not be a responsible mandate to introduce within any UK regulation that impacts on people and the environment.

For security and ability to maintain scrutiny we would expect the UK to exercise the precautionary principle particularly when considering land management, agriculture and food supply chains and any activity that would occur within the natural environment.

In the consultation document - reforming-the-framework-for-better-regulation.pdf - the following is stated in relation to a proportionality principle and we find this to be inappropriate and does not match with our experience in regulatory practice over many decades working with food and farming businesses here and abroad:

Reaching the right outcome: regulation should be based on outcomes rather than assessing mechanistic “tick-box” compliance with rules.

The organic regulation is internationally recognised and preserves integrity by maintaining annual audits to assure certification of the process which in turn assures products are produced to the standards set in law.

We strongly believe this is effective, encourages innovation and affords security to all in the supply chain and especially to the end user.

Our operators understand the organic regulation and our sector is fully aware that the precautionary principle is an effective provision that is widely recognised and clearly is a principle that many would expect the UK Government to continue to adhere to.

As has been well documented by reports and reviews precautionary policy is necessary to protect vital and fragile resources and environments. As just one example the Dasgupta review[2] commissioned by HMG Treasury dept. states the following:

.. there is a role for precautionary policy intervention by governments and financial regulators, to compensate for the inability of markets to react in the face of potentially catastrophic losses related to tipping points (Bahaj and Foulis, 2016; Cullen, 2018; Ryan-Collins, 2019; Kedward et al. 2020).

And as stated in the UK “Biodiversity: The UK Action Plan”[3]:

The overall goal of the plan is to conserve and restore biological diversity within the UK, and to contribute to the conservation of global biodiversity through all appropriate mechanisms. The underlying principles for this are:

• where biological resources are used, such use should be sustainable;

• wise use should be ensured for non-renewable resources;

• the conservation of biodiversity requires the care and attention of individuals and

communities, as well as Government processes;

• conservation of biodiversity should be an integral part of Government programmes, policy and action;

• conservation practice and policy should be founded upon a sound knowledge base; and

• the precautionary principle should guide decisions.

Question 16: Should regulators be invited to survey those they regulate regarding options for regulatory reform and changes to the regulator’s approach?

We recognise the value of regulators seeking input from those they regulate however when it comes to consistent application of legally obligated regulations there would need to be sensible limits to which aspects any such input would be expected to influence.

Question 23: Are there any other changes you would suggest to improve impact assessments?

Impact assessments are critically important in food and agriculture sectors considering the environmental and economic impact of activity from land management to food processing.

For example, the possible impact of an activity that could cause direct or indirect harm to soils, watercourses and catchments would potentially also have a serious negative impact on food and farming businesses and indeed could adversely affect human health.

Question 24: What impacts should be captured in the Better Regulation framework? Select all which apply:

All of the following:

· Environmental health

· Human health

· Economic diversity

· Food and farming business resilience

[1] Organic standards; Retained Regulation (EC) No. 834/2007, (EC) No. 889/2008, (EC) No. 1235/2008 and Organic Products Regulation 2009.

[2] https://www.gov.uk/government/publications/final-report-the-economics-of-biodiversity-the-dasgupta-review

[3] https://hub.jncc.gov.uk/assets/cb0ef1c9-2325-4d17-9f87-a5c84fe400bd