Control of Mercury (Enforcement) (Amendment) Regulations 2025
(1 day, 18 hours ago)
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Baroness Anderson of Stoke-on-Trent
That the draft Regulations laid before the House on 17 July be approved.
Relevant document: 34th Report from the Secondary Legislation Scrutiny Committee
Baroness in Waiting/Government Whip (Baroness Anderson of Stoke-on-Trent) (Lab)
My Lords, this instrument introduces the mechanisms to enforce the EU mercury regulation in Northern Ireland under the Windsor Framework, which maintains Northern Ireland’s dual market access to the EU single market and the UK internal market. I know that questions of democratic legitimacy and the effectiveness of the Windsor Framework’s democratic scrutiny mechanisms are a frequent area of consideration and discussion, and I am sure we will discuss them again today. This affirmative statutory instrument clearly demonstrates the purpose and benefit of the Windsor Framework, but before I set out its scope and objectives, I want to provide some further background on the arrangements applying in Northern Ireland that make this measure necessary.
Dental amalgam is a dental filling material made up of a mixture of mercury and metal alloys including silver, tin and copper. It is a stable, safe filling material that is widely used across the UK to fill cavities caused by tooth decay. Compared to alternative fillings such as composite resins, dental amalgam fillings are typically cheaper and take less time to apply. Last year, the EU introduced amendments to the EU mercury regulation that applies under the Windsor Framework. These amendments introduced a ban on the use and export of dental amalgam from 1 January 2025 and a ban on the manufacture and import of dental amalgam from 1 July 2026.
Here, we saw an issue that would pose particular difficulties for Northern Ireland. We saw Members of the Legislative Assembly scrutinise the issue and voice their concerns because an immediate ban on dental amalgam would have led to longer dental treatment times in Northern Ireland, meaning fewer patients being treated. This could ultimately worsen oral health outcomes in Northern Ireland. The Government acted on these concerns and made representations to the EU. The EU Commission recognised Northern Ireland’s specific circumstances last year, leading to the bespoke arrangements for Northern Ireland that we are discussing today.
Northern Ireland will have a much longer transition period: until 2034, or until an earlier phase-out date is agreed by the Minamata Convention on Mercury, an international treaty to which the UK and the EU are parties. It will mean that the continued use of dental amalgam in Northern Ireland is aligned with the rest of the UK.
The absence of these exemptions would have meant an immediate ban on dental amalgam use and import, which would have negative health and socio-economic impacts in Northern Ireland. For instance, mercury-free alternatives, such as composite fillings, generally require longer treatment times that could strain dental service capacity and may not be suitable for all patients. This could have resulted in longer treatment times and patient waiting lists, potentially harming oral health in Northern Ireland.
A gradual transition to mercury-free alternatives will ensure a managed phase-out, therefore minimising disruptions to Northern Ireland’s dental service provision. During this time, businesses and dentists in Northern Ireland may continue to import and use dental amalgam. Such treatment may be given to UK residents only, and imports need to be proportionate with use. This gradual phase-out of dental amalgam will allow a longer period to transition to alternative fillings. This will give dentists time to improve practice efficiency, gain experience with more complex fillings and adapt to emerging alternatives, and will support the training of dental professionals.
The dental amalgam exemptions on use and import have applied in Northern Ireland since 1 January 2025, and the authorities in Northern Ireland have taken the steps required to implement them, including issuing further guidance and engaging with dentists. The purpose of this instrument is further to strengthen the enforcement measures Northern Ireland authorities can take on the ground to support the arrangements in Northern Ireland. These include powers to enforce the prohibitions on dental amalgam export and manufacture, additional reporting requirements for dental amalgam importers, and restrictions on dental amalgam use for patients as set out in the European Commission notice. The instrument also implements the allowed exemptions to the import and use of dental amalgam while Northern Ireland gradually phases out its use.
On the issue of mercury more broadly, I recognise the concerns about its environmental impact. It is a highly toxic substance that can harm human health and the environment if improperly managed. When dental amalgam is exposed to high temperatures, such as during cremation, the mercury it contains can enter the environment as a toxic gas if there are no mercury-emission controls in place. I am happy to confirm that crematoria in Northern Ireland are fitted with control technologies to reduce mercury emissions. Under our environmental improvement plan, we are taking steps and further developing plans to reduce mercury emissions, including from crematoria. As part of this, the Government will soon publish an updated process guidance note for crematoria and the accompanying government consultation response, which will include further guidance on emission abatement technologies in crematoria.
In conclusion, this measure is clear in its purpose, ensuring that Northern Ireland authorities have the powers to enforce the EU export and manufacturing prohibitions, reporting requirements and exemptions on dental amalgam use and import, as set out in the European Commission notice. This instrument will also mean that Northern Ireland continues to benefit from exemptions on dental amalgam use and import, allowing for a longer transition period and equity of dental provision with the rest of the UK. I beg to move.
Amendment to the Motion
Baroness Hoey
At end to insert “but that this House regrets that, while the Regulations will extend the use of amalgam fillings in Northern Ireland, they do so by means of placing their provision, and thus the provision of NHS dental services in Northern Ireland, on an uncertain constitutional foundation.”
Baroness Hoey (Non-Afl)
My Lords, it is nice to see the noble Baroness answering on this statutory instrument, and I thank her for her outline of what it contains. I reassure noble Lords that, while the Whip’s notice says that today’s rising time will probably be about 7 pm, I have no intention—I do not think any of us have—of continuing this debate until then. That might be helpful.
Dentists in Northern Ireland are obviously relieved that the burden that was hanging over them regarding a date has now been lifted. I have brought this issue to the Floor of the House today as I feel, along with many of my colleagues from Northern Ireland, that it is important and necessary to expose how, drip by drip, the EU is taking more control over what happens in a part of the United Kingdom.
We have talked regularly about the 300 areas of law that are now out of our own Government’s hands, and sometimes it seems that no one understands the practical problems these are causing. We have seen the questions on duty-free, pet travel and the large numbers of GB businesses that are now refusing to send anything to Northern Ireland because of the bureaucracy. Just recently, in the last couple of days, we had the ridiculous situation whereby poppy sellers in Northern Ireland had to get EU leaflets and deal with EU bureaucracy to be able to sell poppies. That is outrageous, and I am sure noble Baroness would agree with me on that point.
So why am I concerned about this SI? The British Dental Association did a great job of alerting dentists in Northern Ireland to the fact that originally, the EU directive was going to ban amalgam filling from 1 January 2025 in Northern Ireland. That became a topic of much concern, and to be fair, His Majesty’s Government sought talks with the EU, which led to a Commission notice—Regulation 2024/1849—saying that instead of Northern Ireland being required to cease using amalgam fillings in June 2026, dentists could continue to December 2034.
The purpose of today’s SI is to give effect to the solution the EU Commission developed, but the solution is deeply problematic because these regulations rest on the foundation not of EU law but of a Commission notice. I am sure I do not need to remind noble Lords that there are several different types of EU law: regulations that are binding, directives that are binding, recommendations that are non-binding and opinions that are non-binding. The reality is that Commission notices do not even have the standing of non-binding law. Indeed, Commission notices are not law because, in the constitutional architecture of the EU, the Commission proposes legislation but does not make it; that is the role of the Parliament and the Council of Ministers.
The Commission is also not the judiciary; it usually adds to its statements. It usually says that
“the following is without prejudice to the fact that it is the role of the European Court of Justice to make final determinations in the application of the law”.
Indeed, after the Northern Ireland Assembly’s EU scrutiny committee had been notified of this change—and was quite pleased about it—a few weeks later the Department of Health sent it a letter regarding the standing of the Commission notice. I quote from it:
“It is described in the preamble as a ‘guidance note’ which is intended to facilitate the application of regulation (EU) 2024/1849”.
So it is not binding legislation in itself; rather, it is an interpretative aid to the application of the law in Northern Ireland, in the unique context of the Windsor Framework.
Lord Bourne of Aberystwyth (Con)
My Lords, I will make a briefer speech, not on the constitutional aspect of this but on the dentistry aspect. I thank the Minister for introducing this, and indeed the noble Baroness for moving her amendment. I do recognise that there is a very important constitutional issue as well. The amalgam ban will come in in 10 years’ time to Northern Ireland. As regards the rest of the United Kingdom, clearly, EU rules do not apply, but the supply and price chains have a massive effect, so there is an issue about the availability of mercury and amalgam within the next period.
The Minister said quite correctly that amalgam fillings are cheaper, and that treatment is far longer for alternatives. It is also worth saying that they last longer and do not need replacing as often. So there is a very real issue about the cost going forward of alternatives. Research and development is needed within the dentistry profession, sponsored and helped by the Government, to look at alternatives to mercury. We also need investment in better oral health.
Without those things, I fear that, within the next 10 years, irrespective of the constitutional aspects we are talking about, there is a real concern for dentistry and oral health not just in Northern Ireland—although, admittedly, it will hit there harder—but in the rest of the United Kingdom. I hope the Minister will be able to address that. If she does not have specific details, I would appreciate it if she could write.
Lord Morrow (DUP)
My Lords, I am pleased to support the amendment from the noble Baroness, Lady Hoey. There is no doubt that one of our greatest national institutions is the NHS. The people of the United Kingdom have in the past been exercised about the possibility that those whom they elect might tamper with it, notwithstanding their accountability to the electorate. Imagine, then, the concern that attends the prospect of having a key aspect of the NHS placed in jeopardy by the politicians of a foreign country who are not accountable to you. That is the plight that befell UK citizens living in Northern Ireland when the EU Parliament voted EU Regulation 1849 in 2024.
Being disenfranchised, which has already been mentioned, in some 300 areas of law is bad enough. But when the laws give the foreign legislators the power to strike down any aspect of one of our great national institutions, the justice of that disfranchisement is completely intolerable. It is an indignity to which the people of England, Wales and Scotland should never be subjected: why, then, the people of Northern Ireland?
In this context, I was aghast to listen last week to the Secretary of State for Northern Ireland, the right honourable Member for Leeds South, giving evidence to the Northern Ireland Affairs Select Committee in another place that the Government had “solved” the amalgam problem. That was just quite extraordinary, to put it mildly. A piece of legislation has been imposed on part of the UK by a legislature in which it is not represented, and which places a key component of one of our greatest institutions in jeopardy. Rather than standing as citizens, we are subjected to the humiliation of being taken as supplicants to the bar of the grace and favour of a foreign Executive to see what crumbs they might be persuaded to toss from their gilded table.
To make matters worse, we are expected to be thankful, grateful and accepting of it, even though we have no more made the concession than the original legislation. Whatever happened to self-respect? Whatever happened to the United Kingdom? We are then forced to confront the consequences of the fact that, rather than being treated as legislators, we are taken for dumb supplicants in the development of the alternative provision through the fact that this alternative provision further alienates us from the rest of our home country.
Under the Commission notice, from 1 July 2026 it will be illegal to produce amalgam in Northern Ireland and it will have to come from Great Britain. This introduces two compulsions. First, in order to have amalgam, Northern Ireland must buy it from GB because it is not allowed to be produced in Northern Ireland. Secondly, its movement from Great Britain to Northern Ireland is subject to the imposition of an international customs border, cutting the United Kingdom in two. This means that, from July 2026, it will only be possible to take amalgam across the red lane as if moving it to a foreign country.
In a context where the number of traders selling goods from GB to Northern Ireland is falling all the time because of the cost of having to negotiate the border, what certainty do we have that anyone in GB will be ready to sell dental amalgam to Northern Ireland from July 2026 until December 2034? While UK citizens living in England, Wales and Scotland will be protected from this uncertainty, apparently it is fine not to afford the same protection to UK citizens in Northern Ireland.
We must confront the fact that the regulations before us today rest on a very uncertain foundation. The fundamental problem is that, when interpreting the relevant EU law to which these regulations seek to relate, the European Court of Justice will have to confine its interpretation to the law. It will have to ask what EU Regulation 2024/1849 means in relation to Northern Ireland and not what the EU Commission notice means, because, rather than being the law, the latter is simply the Commission’s rather extraordinary interpretation of EU Regulation 2024/1849.
In her response, the Minister might be tempted to say that there are other examples of Commission notices performing the same kinds of feats as that which underpins the regulations before us today. I can locate only two, both of which come with the heading “DISCLAIMER” and seek to interpret the relevant legislation to the point of changing its effective meaning. Interestingly, they both relate to the Irish Sea border and attempts to interpret one’s way out of earlier problems. One relates to human medicines and the other to veterinary medicines.
Finally, could the Minister explain why it is acceptable to bring legislation to your Lordships’ House that does the following? First, it testifies the disfranchisement of the people of Northern Ireland in relation to key aspects of the NHS; secondly, it further alienates us from the rest of the United Kingdom through the imposition of a dental amalgam sea border from July 2026; thirdly, it presents all this on a legal foundation that relates not to EU law but to an interpretation of it that bears no relation to the actual legislation, and which could be struck down by the European Court of Justice at any time; and, fourthly, it acquiesces with the unconstitutional practice of, in effect, using the Executive to suspend laws made by this legislature.
Lord Reay (Con)
My Lords, I thank the Minister for introducing this debate and the noble Baroness, Lady Hoey, for her amendment. This SI addresses the implications for Northern Ireland of the Government’s decision not to follow the Minamata Convention on Mercury on phasing out the use of mercury dental amalgam fillings throughout the EU. I will say a few words on why it is concerning that the UK Government are rowing back on their Minamata commitments, and why mercury amalgam fillings, which are highly toxic, should be banned throughout the UK at the earliest opportunity.
This issue is not merely one of dentistry; it concerns public health, environmental protection and ethical responsibility. Mercury is one of the most toxic substances known to science, as the Minister readily accepted in her opening statement, and there is no safe level of exposure for humans. Studies show that mercury vapour is released continuously into the mouth from amalgam fillings, especially when we chew, grind our teeth or have old fillings removed. These vapours are inhaled, absorbed into the bloodstream and stored in the body’s tissues. Chronic exposure has been linked to neurological damage, kidney dysfunction and developmental harm in unborn children.
Lord Bew (CB)
My Lords, I thank the Minister for her statement, which filled out very carefully the exact situation that we now face with amalgam fillings in a useful and important way. I am very grateful for that.
The noble Baroness, Lady Hoey, is right on one key point. I have friends in the Irish Republic who regularly use Northern Irish dental services. This is, at the very least, a loose end in the regulations presented to us in the House today, which, in principle, place a burden on Northern Irish dentists. It is difficult to see how they can deal with it in any proper way. It is the loose end in the Minister’s very elegant introduction.
This is a sensitive matter. Reference has already been made to the operation of the NHS in Northern Ireland. One of the key differences between the Windsor Framework and the 2019 withdrawal agreement is that the Windsor Framework makes it clear on page 14 that basic state functions include medical supplies. This is essentially an issue of medical supplies. It is one of the things that can be said in favour of the Windsor Framework—indeed, it was the first item in the DUP’s election manifesto for the Assembly elections that this situation had to be rectified.
The debate today raises a degree of uncertainty as to how these matters are going. In broad outline, there is a practical resolution to most of the questions, and the Minister has made that clear, but one has to understand why there is a certain neuralgia in the public mind none the less. It is related to another issue, which is in no way the Minister’s responsibility—but it is the case that the noble Lord, Lord Murphy, has brought forward an independent report on the Windsor Framework for the Government in this House. My noble friend Lord Carlile’s Select Committee, on which the noble Lord, Lord Dodds, sits, has also produced an important document on the working of the Windsor Framework. Does the Minister have any ideas of any significant EU response to the issues that have been raised and the loose ends, one of which we have discussed—the burden apparently being placed on Northern Irish dentists? Given those two reports, I hear very little about the government response.
This is a moment of reset in Anglo-Irish relations. For example, at the British-Irish Parliamentary Assembly, which I attended last week, the Irish Minister, Mr Lawless, said that the key thing about the Windsor Framework was that it protected the Irish position on the island economy. Actually, the Windsor Framework makes it clear on page 5 that for the foreseeable future there are two economies on the island of Ireland—but for the first time in decades there was no British Minister to reply to that at the BIPA, if they had so wished.
In this House eight days ago, the noble Lord, Lord Livermore, dismissed a relatively innocent question on the green lane and its working in the Windsor Framework on the grounds that the green lane was a kind of old-style Brexit thinking. In fact, the green lane is in the Windsor Framework and is specifically referred to on page 8, so it is not unreasonable to ask how it is working out in actual fact.
For those of us who support the Windsor Framework critically but know that it leaves a lot of irritants for the public of Northern Ireland, it needs to be fully implemented. The Government cannot just pay lip service to it, as they do, but then half shy away when the Irish Government say something else, or it does not appear to fulfil commitments that were given to the electorate of Northern Ireland and are fundamental to why the Assembly and the Good Friday institutions currently operate. The fact that those commitments were given in good faith became the basis for the return of the Assembly.
A significant minority of unionists in Northern Ireland have tired of these institutions and are deeply critical of them—and, in my opinion, unrealistically and unreasonably wish to replace them. But it gives succour to that group if the Government do not just support the Windsor Framework but support it with vigour.
Lord Weir of Ballyholme (DUP)
My Lords, earlier today we had a haul of Earls—I think that was the collective term. In this debate on issues that pertain to the protocol and the Windsor Framework, I rise as one of a number of unionist Peers. I am not sure what the collective term is, whether we are an anger of Peers or a frustration of Peers. I will allow some of my more erudite colleagues to disseminate the correct answer.
The noble Baroness, Lady Hoey, made reference to the fact that a number of colleagues from across the Chamber are due on different flights tonight to return home to Northern Ireland. I am not, but I will forgo what I intended to do—a two-hour contextual dissertation on the impact of dental amalgam and its history over the past 100 years in British dentistry.
When looking at the issue and the regulations in front of us, we need to disaggregate two issues. One is the landing point of the regulation itself and the other—perhaps much more concerning, as highlighted by the noble Baroness, Lady Hoey, and others—is the underlying issues behind it. On the regulation itself, we have heard the concerns raised in relation to the continuance of mercury amalgam. I think that has been accepted largely, not simply by the UN convention but by the World Dental Federation. I think it has been accepted that there is a need at least for a phasing out of that dental amalgam. There may be some degree of disagreement over the speed of that.
We know that if immediate action was taken, there would be financial implications for dentists. Wherever we reach in the near future, the alternatives at present are considerably more costly and time-consuming. Indeed, the real concern that was raised, particularly by local dentists in Northern Ireland, was that if we faced a cliff-edge ban in 2025 or 2026, it would lead effectively to the collapse of NHS dentistry in Northern Ireland. That was a very real fear. This does not come simply within a vacuum. We have to realise that the impact, particularly for the dental profession, has arisen from the Covid situation, when it was particularly hard hit.
With that balance in place, I think that we can, as the noble Baroness, Lady Hoey, indicated, at least accept a level of relief that, instead of the immediate crisis that had been created, with this regulation we are now talking about the beginning of January 2035 for that phasing-out period. That is in line with what has been put forward by the World Dental Federation. It should also be indicated—I will be interested in the Minister’s response on this—that whatever happens in terms of phasing out, it should be done across the UK.
I commend the landing zone but join others in expressing concern over the underlying issues of how we got here in the first place. There are three major concerns. First, on the dental issue itself, when either a piece of primary legislation or regulations are passed, I think we all fall into the trap of then dismissing the issue—job done; we have reached a solution. It is abundantly clear that, with these regulations, we are putting it off to a particular point at the end of 2034. That does not mean that the issue can simply be ignored between now and then. As was indicated, there needs to be considerable investment and support to ensure that we have practical alternatives to the dental amalgam. As has been highlighted earlier, some of those seem to be in progress but, at the moment, it is indicated that the alternatives are roughly five times the cost in private practice of what they would be in the NHS. We need to be in a position where we can institute the alternative. That means a considerable amount of work. It means support for the dental profession and for this to be brought about on a UK-wide basis.
Undoubtedly, it is the case that even if this did not apply anywhere in the United Kingdom, there is a major problem facing dentistry throughout the UK because of the EU ban. It is quite likely that the supply chains, and the overall European market for dental amalgam, will collapse in the near future, which will create its own difficulties. The Government need to be aware, so I again look to the Minister to see what support they will give to the dental profession as we move ahead between now and the beginning of 2035.
Secondly, on the solution that has been reached today, I commend officials and Ministers in the Government on raising these concerns with the EU and negotiating a sensible final position. But it highlights that these issues should not have to be fought out on a one-by-one basis. It shows the fundamental flaw with the system itself. These decisions lack any form of democratic accountability because they lie, ultimately, with the EU, where sovereignty has been surrendered and a level of democratic and political autonomy has been given over. We are left in a situation where this solution has been reached only because the EU decided, in effect, to do us a favour and agree this. We cannot be in a position, in the long term, of having to fight each individual matter on the basis that issues will be resolved on the good will or otherwise of the EU. We need a better solution to that.
Finally, this also shows, as has been shown with a number of other issues that I will touch on briefly, a level of overreach when it comes to our relationship with the EU. It is undoubtedly the case that the argument for a particular form of relationship that impacts Northern Ireland is largely based on two things from an EU perspective: the protection of the single market and a reduction of any friction on a cross-border basis. But the relationship at present, through the protocol and perhaps to a lesser extent through the Windsor Framework, goes into a wide range of areas, from immigration, for example, to the selling of poppies, as the noble Baroness, Lady Hoey, indicated, which is nothing to do with cross-border trade or protecting the EU market.
Baroness Bennett of Manor Castle (GP)
My Lords, I thank the Minister for her very clear introduction to this statutory instrument and the noble Baroness, Lady Hoey, for raising this issue, even though I will take a very different approach to the SI. I will park the constitutional questions, leaving the Windsor Framework to one side, and raise the issue of why Britain is trailing globally on the issue of mercury dental fillings.
I take issue with the Minister’s introduction, which talked about a stable, safe and typically cheaper material. It is worth stressing that this SI provides bespoke arrangements—here, I am looking at it purely from the medical health side—for a longer transition period away from mercury dental fillings in Northern Ireland compared with the EU, a delayed phase-out that is in line with the rest of the UK. This is bad for the people of Northern Ireland, bad for the UK and bad for the world.
Coincidentally, a new study is out today from the Rivers Trust and Wildlife and Countryside Link that shows that more than 98% of fish and mussels tested in English waters contain mercury levels above EU safety limits. In fact, more than half the fish and mussels tested have mercury levels more than five times above the EU safety limits. We all know that mercury is a potent neurotoxin, even at low levels of exposure. There is the tragedy of Minamata, the disease that resulted from the industrial release of methylmercury in Japan. This has been known for many decades. Some 43 countries have now banned mercury amalgam fillings, including the EU and the Scandinavian countries, but also countries such as Tanzania and Indonesia.
The practical reality is that crematoriums are now the second-largest source of mercury emissions to the air, after the combustion of fossil fuels. We know that fossil fuels are and have to be on the way out for other reasons, so the percentage contribution will only rise higher and higher. As has been mentioned, there is the Minamata convention meeting in November, and there is talk of a global phase-out by 2030, led by African countries including Botswana and Burkina Faso.
I raised issue with the “cheaper” point. Cost is often cited as the reason why we have to go slower, but countries such as Germany use safer alternatives and the cost is only very marginally higher. If Germany can manage it, surely we can manage it too.
It is also important to understand the issue of mercury pollution on a global scale. It is interesting that the African nations are leading at that November convention, because the rise in the price of and demand for gold is also associated with massive increases in mercury pollution around the world. We are used to the idea of blood diamonds; mercury-poisoning gold might not be such a catchy phrase, but it is something we should really be talking about. The risks are particularly acute in the Amazon, as highlighted by the campaigning priest Miguel Ángel Cadenas, who works in Peru. It is also a huge issue in artisan gold mining in Africa, and globally it is estimated to release 800 tonnes of mercury into the air per year. That is nearly 40% of global emissions.
These are global emissions; they do not stay where the emissions happen. I point the Minister to a very important study that has just been published in the journal of the European Geosciences Union. We are used to the idea that food crops are being contaminated by taking up mercury from the soil, so the mercury has drifted in dust around the world, settled in the soil and then been taken up. This study has demonstrated, which we have not realised before, that the mercury is being taken in from the air by plants when they photosynthesise. It is going directly into the green, leafy crops that we all need.
I put to the Minister that this SI takes Northern Ireland in the wrong direction. More than that, the Government are not taking the steps they need to take for public and environmental health here in the UK and for global One Health.
Lord Dodds of Duncairn (DUP)
My Lords, I will briefly make a few comments on this regret amendment in the name of the noble Baroness, Lady Hoey. I am grateful to her for tabling it, as it allows a debate on this important issue, which has caused concern in Northern Ireland about access to NHS dentists and not having massive expense imposed on people seeking dental treatment.
I listened very carefully to the arguments that were put forward by the noble Baroness, Lady Bennett, and by the noble Lord, Lord Reay, who spoke very eloquently about why they believe the EU is right to move to a speedy removal of dental amalgam. I also listened very carefully to other noble Lords who spoke about their real concern about a cliff edge, the impact that there may be on the supply chain and so on, in relation to this ban happening in Northern Ireland and not in other parts of the United Kingdom.
Whichever side of the argument noble Lords are on, whether for implementing an immediate ban, slowing it down, or having it at all, this is an issue that should be debated and decided by us. That is the crucial question. There is a multitude of issues within the Windsor Framework, of which this is one tiny example, ranging from the environment, agriculture, manufacturing and thousands of regulations. In Northern Ireland, we can debate until the cows come home about whether they are good or bad ideas and whether the principle behind them is a good or bad thing—which is good, and we should be debating that—but there is nothing we can do about it. The debate in the Northern Ireland Assembly is irrelevant; the British Parliament has no powers. That point has been highlighted by my noble friends Lord Morrow and Lord Weir, and by the noble Baroness, Lady Hoey.
It is an amazing situation that the arguments that are being put forward in relation to these matters have no relevance in Northern Ireland, because the European Commission and the European Union will decide the matter and not give a fig for what anyone elected in Northern Ireland says about it.
When these issues are raised, with there being example after example, I know that there are people in the generality of Parliament who do not take a great interest in these matters, may find this tedious and may even find it laughable at times. You see people who ask, “What is this all about? What are they going on about again?” But time after time, we are seeing a situation where the impact on Northern Ireland is not just in terms of the economic costs of divergence, as has been recently highlighted by the Federation of Small Businesses report and by the Murphy review of the Windsor Framework, which the noble Lord, Lord Bew, referred to and which was highlighted in the recent report of the Northern Ireland Scrutiny Committee of this House. I would urge your Lordships to read that report, which sets out in very stark terms the cost and the economic damage in a whole range of areas.
So it is not just the cost but the democratic cost as well. We cannot decide these matters. I thought the most telling remark that the Minister made in her introduction, in recognising the problem and hearing what people were saying in Northern Ireland, was that the UK Government “made representations to the EU”. Somebody mentioned self-respect and dignity; this is what we have come to in Northern Ireland on this issue and across a thousand directives and regulations, across 300 areas, for vast swathes of our economy.
We will continue to highlight this issue, because it is something that is ultimately going to cause major problems down the line. I have been warning for some time about the Northern Ireland Assembly, which has been set up, has worked and has done many good things, but, as the noble Lord, Lord Bew, referred to, the basis on which it has been restored and commitments that were entered into that the Government have been cast aside. EU labelling was to be introduced for the whole of the UK, which was a commitment in Safeguarding the Union. That was one of the reasons why the Assembly was restored, but it has been cast aside, rejected and torn up; commitments have been shredded and have not been implemented. This is another example of where we are going wrong and where, ultimately, the Northern Ireland Assembly will be placed in danger.
It may be a minority concern now—it is hard to know, but we will soon find out at the next election—but the recent Northern Ireland Life and Times survey by Queen’s University indicated growing concern in the unionist community about the implications of all these issues. If that is replicated in an election, it will be very difficult to have the stability within the Assembly that is needed to have a strong unionist and nationalist presence in the Executive. I do not say that out of any desire to see it collapse or anything like it, but I am just pointing out a reality.
Whitehall generally, the Government and the big parties need to understand what is at stake. There is a growing disillusionment, anger and frustration that these debates, which we should be having in the Assembly in Northern Ireland or here, are not happening. The decisions have been made by bureaucrats in Brussels, by the Commission, and imposed on Northern Ireland, and then we have to go and beg for a grace-and-favour extension to not have it implemented immediately. That is happening over and over again.
This has been a useful debate, and I commend those who have spoken and highlighted all these issues. I know that the Minister takes a very strong interest in Northern Ireland, follows these things deeply and cares about Northern Ireland, and I look forward to her response.
Baroness Suttie (LD)
My Lords, I, too, thank the Minister for her very clear presentation. I take the opportunity to wish the noble Baroness, Lady Hayman, a speedy recovery. If she is watching this debate today, she should know that we are all thinking of her. I thank the noble Baroness, Lady Hoey, for the opportunity to have this debate, because it is an important debate. However, as ever, it is a debate about two different issues. The first is the ongoing constitutional debate about the functioning of the Windsor Framework and the democratic questions arising from Northern Ireland having to accept decisions taken by the European Union when we no longer have representation there since leaving the EU. The second debate is the substance of these regulations: the phasing out of amalgam dental fillings and the exemption for Northern Ireland to 2034. I will deal with the latter point first.
I believe the exemption to 2034 is welcome. The NHS in Northern Ireland, and dentistry in particular, is in a state of some crisis. This nine-year exemption will allow time to make the transition from amalgam to composite fillings in a planned and phased manner, and will avoid the shock to Northern Ireland dentistry which many dental professionals warned about. Clearly, I am not a dentist. I listened with interest to the noble Lord, Lord Weir, and to the noble Lord, Lord Reay, but it is noticeable, I would say, that amalgam fillings have seen a marked decrease in popularity in recent years. People are keen to choose the more aesthetically pleasing white composite fillings.
The noble Lord, Lord Reay, powerfully made the case in his speech that the use of mercury amalgam fillings has always been somewhat controversial. They require much greater drilling in the tooth, which can have long-term consequences. They add enormously, as the noble Baroness, Lady Bennett, has said, to mercury pollution in the environment. Ahead of this debate today, I was reading that a recent medical research paper has indicated that their use might even have an impact on arthritis. I would be grateful if the Minister could, as the noble Baroness, Lady Bennett, asked, clarify the Government’s position on eventually banning mercury amalgam fillings in England.
Like the noble Baroness, Lady Bennett, ahead of the imminent meeting on the Minamata Convention on Mercury being held next week, from 3 November to 7 November, I would be interested to know the Government’s response to a proposal by the African nations for a ban on dental amalgam by 2030. I believe the Minister in her opening remarks said that if amalgam fillings are eventually banned for the rest of the UK ahead of 2034, Northern Ireland would follow suit and these regulations would fall. I would be grateful if she could clarify that in her closing remarks.
On the constitutional issue, as noble Lords will know—indeed, it would not be a debate on a regret amendment from the noble Baroness, Lady Hoey, if I did not point this out—if we had not left the European Union then we would not be having these arguments, because we would have been able to make the case within the EU institutions on behalf of UK dentists, including Northern Ireland dentists, at the Council and the European Parliament. But she and I are never entirely going to agree on those matters.
As others have said, the Windsor Framework is very far from perfect. There is a democratic deficit, and it is something that we in the rest of the UK are going to have to face if we go further down the route of dynamic alignment. But I would argue that this set of regulations is a positive story. There was an issue, and the UK Government and the EU listened, the Northern Ireland Assembly made the case powerfully, and an exemption to 2034 was granted. That is why on these Benches we support these regulations and oppose the amendment of the noble Baroness, Lady Hoey.
Lord Blencathra (Con)
My Lords, I welcome the amendment from the noble Baroness, Lady Hoey, because it allows us to debate a very important subject. It is important on two counts, as we heard in the debate: first, on the constitutional issue, and, secondly, on the merits or demerits of amalgam—and some powerful speeches were made pointing out how dangerous it can be. It has allowed us to hear an excellent opening address from the Minister.
I congratulate the noble Baroness, Lady Hoey, on two counts, the first being her assurance, and that of the noble Lord, Lord Weir, that we will finish by 7 pm. Of course, this being Northern Ireland business, I was betting on 6.55 pm. The second count is that Peers from Northern Ireland have raised the important constitutional question. I say to the noble Lord, Lord Dodds, that I do not find this tedious at all. I am afraid I share his view that, sooner or later, this is going to come to a crunch. We have yet another regulation before us here which will slowly drive a wedge between our United Kingdom and our Northern Ireland.
I had no idea about the poppies issue. I Google searched it after the noble Baroness mentioned it, and I was appalled to find that she is absolutely right—EU interference with selling poppies in Northern Ireland.
We on these Benches recognise the importance of reducing mercury use in line with the Minamata convention. We do not oppose the principle of this instrument. However, it is right that we probe the Government on how it has been implemented, particularly regarding dental amalgam and its replacement, as my noble friends have discussed.
Northern Ireland, as we know, has been granted a longer-term transition period, allowing the continued import and use of amalgam until 2034 to avoid disruption to dental services. Apart from my noble friend Lord Reay, most Members in the House seem to agree that the extension is sensible while we look for workable alternatives. What engagement has taken place with dental practitioners in Northern Ireland? How will the Government monitor the practical impacts of divergence between Northern Ireland and Great Britain? How will any future decision under the Minamata convention affect this timeline?
We note the British Dental Association’s concerns about cost and capacity. Amalgam, it says, is a widely used and affordable material, and replacing it too quickly, without proper support, could worsen access issues. My noble friend Lord Bourne also wanted reassurance on that point. On the other hand, my noble friend Lord Reay, in a very powerful speech, pointed out the severe dangers of mercury amalgam and that alternatives were available already—almost as cheap and better.
I simply do not know. I will not say that finding the answer is like pulling teeth—there is no time for silliness—but the Government ought to know. If the Government do not know now, hopefully in the next few years they will. Will we be able, before 2034, to find for the whole United Kingdom—not just Northern Ireland but the whole United Kingdom—a reasonably cheap alternative to dental amalgam?
We do not oppose this instrument, but we urge the Government to remain alert to its impact on front-line services to ensure that both patients and practitioners in Northern Ireland and the United Kingdom are properly supported. I urge the Government, as soon as possible, to work with those developing alternatives to make sure that a replacement is available to Northern Ireland and the United Kingdom as soon as practicable.
Baroness Anderson of Stoke-on-Trent (Lab)
My Lords, I was tempted to make a joke about filling the gap in the noble Lord’s information, given what we are talking about. Noble Lords are aware that I am passionate about Northern Ireland, and there are many issues that I thoroughly enjoy talking about with Members of your Lordships’ House. I did not realise that dental amalgam was going to be one of them, so noble Lords will have to bear with me.
I am very aware of people’s travel arrangements for this evening, so I will be short and sweet, but I will reflect on Hansard in case I have missed anyone’s comments. I also hope that my noble friend Lady Hayman is getting better, but I am not sure that watching your Lordships’ House is going to assist in that, so I hope she is having chicken soup and lying in bed.
Many points have been raised, and I will try to cover them all. There are some on which I would like to reassure noble Lords. On others, I think it might be helpful to Members of your Lordships’ House if I offered a meeting to discuss the constitutional aspects of this with regard to the Windsor Framework, because as the noble Baroness, Lady Suttie, highlighted, we have a constitutional issue here and we also have the SI at hand.
I will try to touch on many issues for reassurance, but noble Lords are aware that this is not the first, nor will it be the last, time that we talk about the effectiveness of the Windsor Framework and where some of the challenges are. I would very much welcome the opportunity to have further conversations on it.
The noble Baroness, Lady Hoey, touched on the fact that pressure was placed through discussions in Parliament and elsewhere to make sure that this issue was raised. In fact, the noble Baroness had the benefit of being the first person to table a Question of this Government on any issue, and it was on this issue on our first day out. I thought I was going to have my first outing as Northern Ireland spokesperson talking about this issue; it turns out I was not first, but I was not going to escape.
Turning to the specific concerns that were raised, I want to put noble Lords’ minds at rest about poppies. They are available to be bought, with additional materials, and are freely available in Northern Ireland. As noble Lords are aware, I would be horrified if people could not purchase them.
The EU Commission notice was touched on. The Government have considered all our obligations in developing this SI, including the nature of the notice. The arrangements are already in effect and have been since January this year. The SI strengthens the enforcement measures, and we are comfortable with where we are; the SI gives it further practicalities.
On enforcement, the Northern Ireland Environment Agency—an executive agency of DAERA—will keep accurate records of all regulatory and enforcement action undertaken, along with information provided by Northern Ireland’s Department of Health. This will enable assessment, over time, of the impact of the prohibitions and exemptions on Northern Ireland.
I also assure both the noble Baroness, Lady Hoey, and the other Members of your Lordships’ House who raised this issue that there will be no guards on the border checking people’s teeth. I know that that was a concern, but I assure noble Lords that it will not be how enforcement of this is done.
Dental tourism and members of the republic using these services was raised by several noble Lords. Republic of Ireland patients will not be entitled to NHS dentistry, and residency needs to be proven. People will still be able to access their dentist in Northern Ireland in the same way as they did before non-amalgam fillings, as they can in the Republic of Ireland, but not via the NHS.
The noble Lord, Lord Bourne, and several noble Lords asked about dental amalgam and what the Government are doing to improve dental services. State-funded healthcare is a devolved matter and responsibility of the Scottish, Welsh and Northern Ireland Governments. I was pleased to see the Northern Ireland Government announce an extra £7 million for dentistry services this year, but we are working together on both the issues that dentists currently face and these issues.
On the proposed updates to mercury regulations in Great Britain and what action is being taken in the UK to reduce mercury use, the UK will be laying legislation this year to prohibit the import, export and manufacture in Great Britain of a number of products containing intentionally added mercury. These products will also be phased out in Northern Ireland by the EU mercury regulations. The legislation will prohibit several mercury-containing products.
I apologise to the noble Baroness, Lady Bennett, as I realise that some of her issues interlay with others. The health impacts of the continued use of dental amalgam were touched upon. Dental amalgam is a well-established, safe and effective dental filling material. There is no evidence that amalgam fillings cause any harm to the health of dental patients. However, mercury, when released into the environment in large volumes, can cause harm and this is carefully managed by the UK to reduce any environmental impact.
Baroness Anderson of Stoke-on-Trent (Lab)
I have not finished addressing the points the noble Baroness raised, if she will bear with me.
The noble Lord, Lord Reay, asked what we are doing on our long-term use of mercury, and about the Minamata convention. Noble Lords are aware that discussions will again be occurring at COP next week on what happens next with Minamata. The actions we are taking align with our international commitments under the Minamata Convention on Mercury, which is an international treaty. The convention is aimed at protecting health and the environment from the harmful effects of mercury, and the UK is a fully committed party to this convention. Our current measures were based on decisions made at the fourth and fifth Minamata convention of the parties.
In addressing what will happen next with our dental amalgam being in line with the Minamata Convention on Mercury, UK-wide restrictions on dental amalgam use have been in place for certain populations since 1 July 2018. These include children under the age of 15, and pregnant and breastfeeding women. Since 1 January 2019, there has been a requirement in UK law to use dental amalgam only in pre-dosed encapsulated form, and for dental facilities to be equipped with amalgam separators to minimise dental professionals’ and the environment’s exposure to mercury. There will be further discussions on dental amalgam at the upcoming Minamata conference of the parties, which starts next week. Discussions and conversations on these issues are ongoing.
Lord Blencathra (Con)
I am grateful to the Minister. This is not a specific Northern Ireland point, but we heard a fairly powerful speech from the noble Baroness, Lady Bennett of Manor Castle, who said that Germany has introduced an alternative that it is only marginally more expensive than mercury amalgam. My noble friend, Lord Reay, made the point that mercury should be banned immediately because of this alternative. Will the Minister raise with the Ministers in the Department of Health and Social Care that we want a statement on these alternatives? Is the noble Baroness, Lady Bennett, right? Is my noble friend right? Do we have to wait 10 years before we have a replacement? We really could do with a statement from the Department of Health on the work that is currently happening on alternatives, such as that in Germany.
Baroness Anderson of Stoke-on-Trent (Lab)
I thank the noble Lord. I will raise that with my colleagues in the Department of Health. Some of these discussions are genuinely active as part of the negotiations at COP next week. We cannot withdraw dental amalgam without having cost-effective alternatives, as I would hope these alternatives are.
As ever, it is a privilege to spend time talking about the impact of legislation on Northern Ireland. I am grateful that everyone has stayed on a Thursday evening to discuss it with us, and I wish everyone safe travels.
Baroness Bennett of Manor Castle (GP)
I thank the Minister for the offer of a letter about the gold mining issues. All these are related, because it is the amount of mercury in the environment, globally, that matters. I mentioned a study about British seafood—fish and mussels—which was produced literally a couple of hours ago. I am aware that it is not the Minister’s department, but I hope that, when she is recovered soon, the noble Baroness, Lady Hayman, or the relevant person could write to me on the fish study as well.
Baroness Anderson of Stoke-on-Trent (Lab)
As I said, I will reflect on everything that the noble Baroness said, and I will make sure that she receives the letter.
Baroness Hoey (Non-Afl)
My Lords, having listened to the debate, I feel I should have declared an interest at the beginning, in that I have amalgam fillings. I am very pleased that the Minister reiterated that, whatever the issue is in the longer term, amalgam fillings are safe. We would not want to be worrying the millions of people out there who have amalgam fillings.
I know that the Minister is not the Minister for dentistry—and I am sure she does not want to add that to her title. It was a very interesting debate, much wider than I had intended, in the sense that it was a constitutional issue that I wanted to raise. It has been very helpful—and I now know where the dentists among us are sitting for when my amalgam fillings go.
I thank everyone for speaking, particularly the Minister for her response. I hope she knows how well she is thought of in Northern Ireland. I thought her response was, in the circumstances, given the Government’s policy positions, very helpful indeed. It might be helpful if she could write to me outlining exactly what the legal position of the Commission’s notice is.
Finally, this is not about dentistry—although, if we are to ban amalgam fillings, we need to start now, to make sure our dentists are able to cope, because they will certainly have extra costs, which will be an issue in Northern Ireland.
The noble Lord, Lord Dodds, in his usual way, expressed how frustrating it is now for people in Northern Ireland. At the beginning, when all this happened, a lot of people in the public thought that it was all about business—big business, small business—and nothing to do with us. Now they are seeing so many things happening—the chickens are coming home to roost, as they would say. I really hope that noble Lords listening to these Sis—which we will continue to challenge, because we need to get the information out there—will understand that Northern Ireland is being treated as a second-class part of the United Kingdom. That is not acceptable. I beg leave to withdraw my amendment.