Scotland Act 1998 (Modification of Schedule 5) Order 2014

Earl of Mar and Kellie Excerpts

Wednesday 7th May 2014 Grand Committee

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, I shall provide a brief summary of what this draft order, which was laid before the House on 17 March 2014, seeks to achieve. The order is made under Section 30(2) of the Scotland Act 1998, which provides a mechanism whereby Schedule 4 or Schedule 5 to that Act can be modified by an Order in Council, subject to the agreement of both the UK Parliament and the Scottish Parliament. This order will amend Schedule 5 to the Scotland Act 1998, which I shall refer to as the 1998 Act, to update the definition of “food” in that Act. It will also amend Section J4 of Schedule 5 to the 1998 Act to reflect the agreement reached regarding the regulation of animal feeding stuffs.

Upon devolution, the regulation of food safety and standards was devolved under the 1998 Act. As at 1 July 1999, the 1998 Act understood “food” to be as was defined by the Food Safety Act 1990. Post devolution, that definition was changed on a GB-wide basis by the Food Safety Act 1990 (Amendment) Regulations 2004 to align it with the new European Union definition of “food”. The definition at devolution and the definition post devolution are largely similar, but they are not identical. I would like to be clear that this is a technical, legal difference and there is not necessarily a specific food which would have fallen under one definition and not the other. Importantly, this 2004 change resulted in a mismatch between the legal definition of “food” in the 1998 Act and “food” as it was defined in EU law. The legislative competence of the Scottish Parliament and the executive competence of the Scottish Ministers was, therefore, limited by an out-of-date definition of “food”. This was never the intention of the 1998 Act.

Similarly, in relation to non-medicinal animal feed and additives, the regulation of animal feed safety and standards was also devolved under the 1998 Act, except for the regulation of veterinary medicines, which was reserved. Section J4 in the 1998 Act reserves the subject matter of the Medicines Act 1968, which I shall refer to as the 1968 Act. Section 130(1) of the 1968 Act, as it stood as at 1 July 1999, defined “medicinal product” as including substances fed to animals and, therefore, veterinary medicinal products. However, it was subsequently agreed between the Veterinary Medicines Directorate—an executive agency of the Department for Environment, Food and Rural Affairs—and the Food Standards Agency that certain zootechnical additives, which do not have a medicinal effect on the animals that consume them, should be regulated within the framework of animal feed law rather than veterinary medicines legislation. It was agreed that the Veterinary Medicines Directorate would regulate for the UK all matters falling within the scope agreed and set out in the Veterinary Medicines Regulations 2005. Although those regulations have since been revoked, being replaced or amended by new veterinary medicines regulations almost every year, the definitions of “veterinary medicinal product” and “specified feed additives” have been unchanged since 2005. In effect, certain animal feed-stuffs and additives ceased to be veterinary medicinal products yet continued to fall within the scope of the reservation stated at Section J4 in the 1998 Act. Thus, the legislative competence of the Scottish Parliament and the executive competence of the Scottish Ministers was limited.

To address these problems, in 2005 and 2006 orders were made under Section 63 of the 1998 Act to update the executive competence of the Scottish Ministers by transferring certain necessary functions to them. These orders allowed Scottish Ministers to continue to regulate for food safety and standards by giving full effect to EU law, and also allowed them to legislate for, and control, all non-medicinal animal feed in Scotland. However, those orders did not, and could not, address the issue of the Scottish Parliament’s legislative competence in these areas. This Section 30 order will bring the Scottish Parliament’s legislative competence better into line with the executive competence of Scottish Ministers, both by updating the definition of “food” in the 1998 Act—thus bringing it into line with European Union legislation—and by amending Section J4 of Schedule 5, with respect to animal feeding stuffs. We believe that this order is a sensible way of addressing the anomalies I have described.

This order demonstrates the Government’s continued commitment to working with the Scottish Government to make the devolution settlement work in a very practical way. I hope the Committee will agree that this order is a reasonable use of the powers in the Scotland Act 1998. The order was debated in the House of Commons on 29 April this year and received the approval of that House on 30 April. I commend the order to the Committee. I beg to move.

[The Earl of Mar and Kellie (LD)]

My Lords, I thank the Minister for explaining the content of the order. I welcome any move that is devolutionary in character. I certainly believe that Scottish-branded food and the animal feed-stuff that goes toward producing it are a central part of the Scottish economy and the tourist economy. I believe that Scottish farmers and growers are some of the most efficient in the world and that the Scottish Parliament therefore should certainly be in direct control of this type of regulation.

[The Duke of Montrose (Con)]

My Lords, I thank the noble and learned Lord the Minister for so fully explaining the ins and outs of these various additions to Schedule 5. On the question of bringing these regulations into line one with the other, I was interested to hear about the devolving of zootechnical feeds and items like that, but the notes to the order talk about some elements that are quite difficult to get one’s head round, such as medicinal products for use in animals that are not veterinary medicinal products or feed additives. First, will the regulations now work in the same way both in England and in Scotland? Secondly, I understood that all of these subjects were controlled under the Veterinary Medicines Directorate in practical terms. Does this mean that the Scottish Parliament will now need to set up its own Veterinary Medicines Directorate because the regulations devolve the matter to the Scottish Parliament?