Scotland Act 1998 (Modification of Schedule 5) Order 2014

Lord Wallace of Tankerness Excerpts

Wednesday 7th May 2014 Grand Committee

Moved by

[Lord Wallace of Tankerness]

That the Grand Committee do consider the draft Scotland Act 1998 (Modification of Schedule 5) Order 2014.

Relevant document: 24th Report from the Joint Committee on Statutory Instruments.

[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of the Scottish Parliament and the executive competence of the Scottish Ministers was, therefore, limited by an out-of-date definition of “food”.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.

--- Later in debate ---

My noble friend Lord Foulkes also mentioned the slightly wider issue of sittings of the House. I know he feels strongly—quite rightly—about sittings but he did not mention that the principle of simultaneous sittings of both Houses of Parliament seems to have gone. Time after time, Parliament sits, but only one House of Parliament. That is dodging accountability. Last week, we had Statements on the Floor of the House of Commons but nothing in the House of Lords, because we were not here. This Government are going down the road of accepting the very dangerous principle that Parliament can sit, but with only one House. However, that is a slightly wider issue, and I place on record our full support for the Minister’s explanation and for the order.

[Lord Wallace of Tankerness]

My Lords, I thank noble Lords who have participated and thank them for the welcome they have given the order. My noble friend Lord Mar and Kellie was absolutely right to remind us of the importance of the food industry in Scotland and the importance of maintaining its quality.

My noble friend the Duke of Montrose raised some technical issues. He asked whether, following devolution of zootechnical feed regulation, matters would work in the same way in England and Wales as in Scotland and whether it would be necessary for Scotland to set up its own veterinary medicines directorate. Veterinary medicines will continue to be regulated by Defra. It is because certain items in the EU definition were removed from the definition of veterinary medicines that we are having to make this adjustment. Veterinary medicines will continue to be regulated by Defra—in practice by the Veterinary Medicines Directorate—and so the system will be the same in England and Wales as it is in Scotland. Non-medicinal zootechnical issues will be devolved, but that will be about implementing European Union law, and there will therefore still be consistency north and south of the border.

[Lord Foulkes of Cumnock]

The Minister made a point in relation to the question from the noble Duke, the Duke of Montrose. Can he confirm that the work undertaken by Defra, in Scotland as well as in England and Wales, is one of the many things that would have to be torn apart if Scotland separated from the rest of the United Kingdom?

[Lord Wallace of Tankerness]

The noble Lord makes a very alert and important point. The Veterinary Medicines Directorate is a directorate of the United Kingdom Government and would not automatically be transferred or shared in the event of a yes vote—which I hope will not happen. It is yet another example of one of the many institutions and agencies which operate on a Great Britain basis. I believe they operate successfully on that basis.

In response to the noble Lord, Lord Foulkes, Parliament should certainly not just be a rubber stamp for the Government. It is important to put on record that the process we are following here is set out in a law passed by Parliament. As I have indicated, this order has been debated in the House of Commons and approved by it. The fact that we are having a debate on it is very healthy and right and proper. The issue is, indeed, technical but nevertheless the debate has offered noble Lords an opportunity to express their views and to ask some very pertinent questions.

I certainly agree with the point made by the noble Lord, Lord Foulkes, which I think was echoed by the noble Lord, Lord McAvoy, and my noble friend Lord Mar and Kellie, that this is an example of the devolution settlement working. I think that it is a very good example of that. It is a technical issue but it shows a willingness to address practical issues in a practical way as and when they arise. Under the previous Administration, a certain amount of executive devolution was achieved on these issues through a Section 63 order. However, we now have a position whereby the Scottish Government have decided to establish a new food body for Scotland which will take on the roles and responsibilities of the UK-wide Food Standards Agency. Therefore, there is legislation going through the Scottish Parliament and a Bill has been drafted to sit within the limited sphere of legislative competence in relation to food and animal feed as set out in the 1998 Act. If this House passes the order—it will also need to be passed by the Scottish Parliament and then submitted to Her Majesty in Council—the Scottish Government intend to seek an amendment to widen the scope of the Bill to bring it in line with the scope of the existing food and animal feed law, as amended by this order. Therefore, the issue is of practical relevance given that the Bill is currently before the Scottish Parliament.

We have shown good will in negotiations and discussions with officials in the Scottish Government, my own department and other departments of the UK Government, not least Defra. That is a good practical example of the flexibility of the system. People refer to the status quo but I do not believe that there is any such thing as the status quo in relation to something which has evolved since 1 July 1999. The system has shown its ability to respond to different circumstances and I sincerely hope will continue to do so as we move forward. I again commend the order to the Committee.

[Lord McAvoy]

Before the noble and learned Lord sits down, would he care to comment on the limited ability to hold a Government to account due to the lack of sittings?

[Lord Wallace of Tankerness]

My Lords, I will have to check but I do not think that there are many, if, indeed, any, fewer sitting days this Session than in the previous Session. The number of sitting days is not far off that for the previous Session. No doubt my noble friend the Leader of the House would be able to give the exact figures. I do not think that it is unique for one House to sit when the other is not. That probably happened under the previous Government as well. I am sure that the noble Lord will welcome the fact that the House will not sit in order to accommodate the Liberal Democrat conference in Glasgow in October. I do not welcome it as I have lost my excuse for not attending the conference. However, that does mean that the two Houses will be in step as regards when they are sitting, or not sitting in that case.

Motion agreed.