Health and Sport Committee

Meeting date: Tuesday, November 6, 2018

Official Report 830KB pdf

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European Union (Withdrawal) Act 2018

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General Food Law (EU Exit) Regulations 2018

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General Foodstuffs Hygiene (EU Exit) Regulations 2018

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Specific Foodstuffs (Hygiene) (EU Exit) Regulations 2018

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Contaminants in Food (EU Exit) Regulations 2018

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Quick-Frozen Food (EU Exit) Regulations 2018

I apologise—I skipped agenda item 3, which is more EU-related legislation; we will take that item now. I am delighted to welcome Joe FitzPatrick, the Minister for Public Health, Sport and Wellbeing, Neel Mojee, who is a solicitor from the Scottish Government legal directorate, and Elspeth Macdonald, who is head of strategy and policy at Food Standards Scotland. They are here to address the committee’s questions on a number of statutory instrument proposals from the UK Government.

I invite the minister to kick off with an opening statement.

Thank you, convener. Good morning and thank you for providing this opportunity to clarify further why I am recommending that the committee consent to these UK-wide statutory instruments applying in Scotland.

As you know, the Cabinet Secretary for Government Business and Constitutional Relations wrote to the conveners of the Finance and Constitution Committee and the Delegated Powers and Law Reform Committee on 11 September, setting out the Scottish Government’s views on EU withdrawal. He said in that letter that we must respond to the UK Government’s preparation for a no-deal scenario as best we can, despite the inevitable widespread damage and disruption that such a scenario will cause. It is our unwelcome responsibility to ensure that devolved law continues to function on and after EU withdrawal.

The rationale for the proposed changes that these instruments will make is to ensure the continuation of important consumer protections provided by the current EU food and feed regulatory regime, to maintain the high standard of food and feed safety and hygiene that we currently benefit from as a member of the EU.

It is clear that the committee understands the importance of the legislation. Given the legislation’s complexity, it is understandable that you asked for additional information and clarification, which I have provided to you in writing.

In essence, the additional information related, first, to why the committee had originally received only eight days for scrutiny. That was due to the timing of the notification of the proposals from Westminster, which coincided with the Scottish Parliament recess. I am pleased to advise—as I did in writing yesterday—that officials have worked with their counterparts to negotiate revised laying dates at Westminster, which now gives the committee its full 28 days from the original notification being made. That is obviously very welcome.

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Secondly, the committee asked why the instruments had been categorised as category A as opposed to category B, as described in the protocol agreed between the Scottish Government and the Parliament. I provided more information in response to your questions. It is fair to say that categorisation is intended to be a guide to the committee, to assist with overall prioritisation, but the committee is of course entitled to ask for evidence. Hence we are happy to attend your meeting today.

Thirdly, you asked for clarification in relation to the possible implications for the proposed regulations of the recent BSE case in Aberdeenshire. I have written to confirm that the regulations are not directly related to BSE controls and that there are no impacts in relation to them. The instruments do not modify the principles or technical standards in EU law, which has served us so well; they are about ensuring the law’s continued operability should there be no deal between the UK and the EU by the end of March next year, which is a situation that I am sure that we all want to avoid.

The EU laws that are covered by these fixing instruments are concerned with general principles of food law, technical food hygiene standards and limits and levels of contamination in food. The instruments provide the mechanism by which the retained EU law in these areas might be modified in the future, if and when that is considered to be required.

As you will fully expect, we have ensured that the regulations provide for any such modifications in the future with regard to Scotland in respect of the devolution settlement. None of us wants to find us leaving the EU against our will and with no deal on 29 March 2019, but we must ensure that, should that happen as a consequence of the UK Government’s actions, there is a sound legal basis to the regulatory system for food safety to ensure that we can continue to protect public health.

I hope that that is helpful, as I hope that my written responses were.

That is indeed helpful, thank you, minister. Success in encouraging the UK Government to abide by the agreed timetables and acknowledge that Scottish Parliament proceedings operate to a different timetable from that of the UK Parliament is important, so your comments are welcome. Having got the right result in your discussions, are you content that a positive precedent has been established for the approach to further items of legislation of this type as they come forward?

We have to recognise that we are to some extent subject to the timetabling of Westminster in relation to orders, so there might be a challenge, but it is very important that we continue to press the rights of this Parliament to scrutinise instruments and I hope that the message has got through to Westminster, to some extent.

Thank you for coming to the meeting today, minister. I want to ask about accountability. How confident are you that Food Standards Scotland has the requisite skills, competency and preparedness to take on the functions that are designated by the statutory instruments?

The functions that will transfer to Food Standards Scotland are quite limited and are in line with the role of FSS as defined in the Food (Scotland) Act 2015, which set up FSS. Food Standards Scotland’s accountability remains unchanged and is directly to this Parliament.

On that basis, on accountability for the functions described in the instruments, are you confident that we will still have the whip hand in the future?

Yes, absolutely. There is no change to the accountability of Food Standards Scotland. It is an unusual body, because other similar bodies are accountable directly to ministers. Food Standards Scotland is directly accountable to Parliament.

I do not agree that getting the UK Government to change the deadlines was a success. It seems utterly pointless to change the deadlines if we do not actually get the detail of what is being proposed. The briefing note that we received says that the process asks us to take a decision on legislation without actually having seen the detail of it, which I think is a difficult position for this committee to find itself in.

I hope that the Scottish Government would support the idea that it is important not just that Westminster complies with the timescales and—apart from anything else—takes into account that we have a recess, just as Westminster does, but that it actually gives us the detail. We do not have the detail. We are having to rely on what the Scottish Government says it has seen from the UK Government, which I do not think is enough for the Parliament or the committee to go on.

More particularly, can I ask you about the potential for policy divergence, which is raised in our briefing note? If we have policy divergence—and I appreciate that this applies only in relation to a no-deal scenario—does that open up the possibility that the UK Government, acting on its own, could prescribe for different parts of the UK the acceptance of chlorinated chicken, for example, in the context of hygiene and foodstuffs regulations, thereby undermining the position that the Scottish Government or another devolved Administration was taking if it did not want to accept chlorinated chicken?

First, the whole process is highly unsatisfactory, and we knew that that was going to be the case. That is why the protocol between the Scottish Government and the Scottish Parliament was formulated as it was; we expected to be in this position, in which we are having to consider regulations without seeing the final drafts. The protocol was established for exactly that reason: to make sure that there was the opportunity for scrutiny. Neel Mojee might talk about the timescales in that regard.

Clearly, if the instruments that are laid are not in line with what we have been told to expect and what we have told the committee, we will have to take a view. We might come back to you and say, “The orders are as we expected, and that is great. We recommend that you continue.” We might say, “The orders are slightly different, but we still think we should continue, as before,” or, if there is a significant change, we might say, “The orders that have been laid are not what we were expecting and therefore we do not recommend that they are approved.” We would then have to look at other steps that we could take.

On future divergence, you may rest assured that I would not be recommending the instruments to the committee if they gave powers to the UK ministers to provide for future policy divergence against the wishes of this Parliament and the Scottish Government. We expect that the instruments that are laid will respect the devolution settlement. If in the future the UK Government decides to go down the route of wanting to be able to have chlorinated chicken, perhaps so that it can have a deal with the United States, then under the orders as they are drafted we will be able to diverge from that and ensure that we maintain the higher standards that the EU maintains.

One of the big risks here—which is not directly related to the regulations that we are considering—is the loss of our access to the European Food Safety Authority, which I think is a gold standard internationally. That is not related to the instruments that we are talking about, but clearly it would be a matter of concern if, in the case of a no-deal Brexit, we lost that wealth of expertise.

You are quite right. It is also very worrying that we will no longer be involved in the rapid alert system for food and feed. I will not ask a question about that, but the fact that we are withdrawing from some European norms was mentioned.

I want to go back to the point about the information that we have before us. I understand the point that has been made about what the protocol allows, but the reason for that is not to do with anything that the Government or the Parliament has done; it is there because proposals have been made so late in the day. That is why we are now in this position. Do you accept that it cannot be right for a legislature to agree potential new laws or legislation without first having sight of the details?

The whole process is highly unsatisfactory. Neel Mojee might want to talk a little about the timings in respect of what he has seen of the draft instruments and giving me advice to pass on to the committee.

Yes. In most cases—and certainly in the case of the instruments that are before the committee—the Scottish Government has not seen the final drafts at the point at which we have presented the notifications. The SIs are still being finalised ahead of being laid at Westminster. We try to provide as much detail as we can in the notifications, taking account of the fact that the SIs are not final and are not yet in the public domain. At the official, policy and legal levels, we see drafts from the FSA at every iteration.

Members of my team are working very closely with their counterparts in the UK Government and the Food Standards Agency, and we have regular sight of how the draft instruments are developing. Obviously, we are working very closely with our legal advisers in the Scottish Government, so the information that we are able to provide to the committee is provided on the basis of our having been very closely involved in the process.

As Neel Mojee said, the texts are not completely final yet, but we can provide the assurance that we have been working closely with our counterparts. Our focus has been on ensuring that there is on-going and continued protection of public health and ensuring that we can protect the interests of the Parliament and of the Scottish ministers to make determinations in relation to Scotland.

I think that the minister is confirming that, in relation to the items that we are discussing and other items, should there be changes in substance after this stage, he will revert to the committee and not proceed.

Absolutely. I would revert to the committee and say why we were suggesting whatever.

Okay. Thank you very much.

I thank the minister and the officials for coming to the meeting.

It is clear that there is a lot of vagueness in the Brexit negotiations. We know from today’s discussion that, if we put through the General Food Law (EU Exit) Regulations 2018, we will revoke Commission regulation 16/2001, which set up the rapid alert system for food and feed. As the minister knows, the European Commission has made it clear that, thanks to that alert system, food safety problems across the whole of the EU and the European Free Trade Association countries have been averted. We know categorically that that will disappear. What recent discussions have you had with the UK Government to set up a UK-wide system to prevent problems from happening before they result in major food safety problems in the future?

You are right. Those are significant matters that have to be resolved. It is clear that the best way of resolving them would be our being able to remain in the EU. If not, a Norway-style deal would allow us to have access to all those protections. There is still hope that we will not end up with a no-deal Brexit, but we have to plan for the worst-case scenario.

I understand that, if there is a deal, there would be legislation that would withdraw the instruments and put us back on to a better footing. Work is on-going between FSS and the Food Standards Agency to look at what frameworks we need to put in place for March next year in the event of a no-deal Brexit. Elspeth Macdonald can talk about that.

We have been working very closely with our counterparts on no-deal contingency planning. Although consideration of the instruments that are in front of the committee and lots of other instruments is part of that work, a huge amount of operational readiness contingency planning is also required.

We recognise that, in the event of no deal, we would need to address the loss of access to EU systems, so we have been working with our counterparts in the Food Standards Agency on how we could develop replacement systems or arrangements in which we would continue to get information about food safety risks in other parts of Europe and member states that are still in the EU. There are other ways in which we can try to ensure that we continue to have access to that information so that we can act quickly to protect the food chain, but we completely recognise that the loss of access to those systems would bring significant changes to how we have to operate. A lot of planning is going on behind the scenes to address those points.

Obviously, there is a lot of complexity, but simply replicating the Europe-wide model in the UK is not rocket science. How far down the track are we? Is it very likely that that will happen? Is there a plan B to have a draft UK rapid alert system for food and feed? Has something recently happened about that?

There are different layers of access to the rapid alert system for food and feed. Obviously, a member state will have the most detailed level of access, but the UK would still be able to have a public level of access outwith the EU. However, there are other systems. For example, there is the international network of food safety authorities, which is a more international system that draws information from the RASFF. That would allow us to have timely and up-to-date information about food safety risks.

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We already have very close working relationships across the four countries in the UK, and we are already pretty efficient at working collaboratively across the four countries in dealing with food incidents and ensuring that we exchange information. That approach operates pretty well at official level, and I do not see that being affected. It is more about access to the EU and the international information.

I do not disagree with the points that you have made, but it is clear that we have in the rapid alert system a gold standard across the 28 countries in the EU plus the other four countries. You are suggesting a system that is lower than that. Could you replicate what currently happens with the other nations in the UK very quickly if we withdraw from the EU with no deal?

That is certainly the intention but, obviously, until the final details of the contingency planning are determined, I cannot provide the assurance that that would be every bit as good.

But we are withdrawing from the EU, and the instrument will withdraw us from the scheme.

In a no-deal situation, the UK would not be able to remain within the rapid alert system for food and feed. Were there to be a negotiated settlement and a deal between the EU and the UK, the situation might be different.

The Scottish Government has responsibility for the categorisation of the instruments. That falls to you. The General Foodstuffs Hygiene (EU Exit) Regulations 2018 and other regulations appear to confer powers on ministers. I think that the question why they have been categorised as category A, which covers proposals of a technical nature, rather than category B, which covers proposals of greater substance, was raised with you. Will you respond to that?

If members look at the protocol that was agreed with the Parliament, they will see that, in effect, category A covers technical proposals and proposals in which there is no policy change. Although powers are moving, the instruments would not change anything on the ground, so one minute before Brexit and one minute after it the technical application of the regulations would be the same. There are no policy choices in them. However, the Government makes judgment calls, and it is clear that that is simply guidance. It is about helping to prioritise. If the committee decides that it wants to be more robust in its scrutiny, I absolutely respect its right to do that. It was written into the protocol that the committee can take a different view. The approach does not affect the committee’s view; it is aimed at helping it to prioritise.

I understand.

Good morning. I want to follow up on the point that David Stewart made. He mentioned that the EFSA is the gold standard. Given that the UK has helped to develop that gold standard—in fact, it has probably been one of the key driving forces in developing it—why do you consider that, with no deal, we would have a lower standard? The UK drove those standards in the first place.

We have to recognise that, in the event of a no-deal scenario, we might not have access to the EFSA in the way that we do now. To be clear, it is not just EU nations that have access to that agency, so it is possible that, if there is anything better than a no-deal Brexit, we might manage to have access to it. It is the gold standard. It is clear that it is our job to ensure that the law works as it should, which is what the instruments would do, but, if we do not have access to the EFSA, we will need to ensure that we have something else in place to maintain standards at the same level.

The Scottish Government’s view is that we would want to maintain standards that are as closely aligned as possible to those that our European neighbours have, so there are on-going discussions between FSS and the FSA in order to try to ensure that we have that backstop. If we cannot be part of the EFSA, we need to do something else. That is why discussions are on-going.

All of that work is going on for the worst-case scenario. I think that everyone in the room hopes that we will not get to that. A huge amount of effort is being spent on dealing with a scenario that should have been ruled out by now. That is the most frustrating thing. A huge amount of the Parliament’s, the Scottish Government’s and Food Standards Scotland’s time is being used to prepare for a worst-case scenario that we all hope will not happen.

I asked a very specific question. The UK has been a driving force in developing a gold standard in the European Union. Why do you think that we would reduce our standards with no deal?

I do not think that. We will have to work to ensure that we can set something up to maintain standards, whatever they are. Work between the FSA and FSS is on-going to ensure that we can maintain those standards. That has to be our aim. The idea of chlorinated chicken horrifies me.

I think that that point is understood.

Good morning. Following David Stewart’s and Brian Whittle’s questions, it is important to get on the record that, post-Brexit, food standards legislation will be just as strong as it currently is. Scaremongering does not help that debate.

On a specific point, I take it that you accept that it is best to deal with the regulations on a UK-wide basis.

I am recommending that the specific instruments are accepted on a UK-wide basis. It is important that the regulations respect the Scottish Parliament’s place and the fact that the matters are devolved. Therefore, in any future arrangement between the FSA and FSS, it is important that Scottish interests are protected. I am sure that you think that the Scottish Government will ensure that that is the case.

I agree that it is important that we look at matters through clear glasses rather than through rose-tinted or more opaque glasses. The instruments are about ensuring that the law the day before Brexit withdrawal is maintained the day after.

Thank you very much, minister. I think that that deals with committee members’ questions. I am grateful to you for your time. We will no doubt be in touch again on many of the instruments in the very near future.

I suspend the meeting briefly while the panel changes.

10:08 Meeting suspended.  

10:11 On resuming—