Health and Sport Committee

Meeting date: Tuesday, January 26, 2021

Official Report 677KB pdf

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Provisional Common Framework on Food and Feed Safety and Hygiene

The next item of business is an evidence session on the provisional UK common framework on food and feed safety and hygiene. As we know from last week’s meeting, the common frameworks are being developed to ensure that rules and regulations in given policy areas remain consistent across the UK, following our exit from the European Union. Our role is to scrutinise the common frameworks that fall within the committee’s remit.

As we did last week, we have heard from stakeholders. We are also keen to hear from the Government, so I am pleased to welcome, for the first time in her new role, Mairi Gougeon, Minister for Public Health and Sport. She is accompanied by Euan Page, head of UK frameworks in the constitution and UK relations division of the Scottish Government, and, from Food Standards Scotland, Geoff Ogle, chief executive, and Jennifer Howie, UK frameworks and intergovernmental relations lead. We look forward to hearing from the witnesses.

The minister will make a brief opening statement about the framework.

I look forward to working with committee members in my new role. Thank you for inviting me to assist in deliberations on the provisional common framework for food and feed safety and hygiene.

Officials from Food Standards Scotland have been involved throughout the process, alongside officials from the UK’s Food Standards Agency. As the committee is aware, the framework is one of a number of provisional common frameworks that will come before the Parliament and is part of a programme that my colleague, the Cabinet Secretary for the Constitution, Europe and External Affairs, has co-ordinated for our interest. I am therefore supported today by officials from FSS and the Scottish Government.

The development of the framework has been a collaborative effort, demonstrating genuine co-operation and engagement between UK administrations. Although provisional arrangements are in place and are now live, a formal agreement to the framework would ensure that those functions previously undertaken at an EU level are delivered coherently and robustly. It would signal a formal commitment from each of the UK administrations to work together to deliver shared objectives.

The committee has asked why it is seeing the framework only now, and why it is not alongside other frameworks relating to food. That is a consequence both of the approach by consensus that we have agreed with colleagues across the UK and of wider pressures, not least the current pandemic. I assure the committee that the framework will not be finalised until all UK legislatures have had an opportunity to consider it in full.

Nevertheless, excellent progress has been made on the framework. It is one of the first to go before the Parliament for scrutiny and it will ensure that repatriated EU functions relating to general and specific hygiene and safety requirements for food and feed products and businesses will be delivered to a high standard.

The framework has followed agreed protocols for framework development and includes agreed UK processes for making policy recommendations to ministers, as well as governance and dispute resolution arrangements. It has been developed in accordance with the principles of the joint ministerial committee for European negotiations, which were agreed by the Scottish, Welsh and UK Governments in 2017, and which the Northern Ireland Executive endorsed after its re-establishment last year. They include the principle that UK frameworks should ensure the functioning of the UK internal market while also acknowledging policy divergence, and that they should respect the devolution settlements and the democratic accountability of the devolved legislatures. On that basis, we consider that the framework delivers against the principles that were agreed in 2017.

I hope that the committee found my reply to its letter of 22 December helpful in answering some initial questions. I am happy to answer further questions.

Thank you. We have a number of questions arising from our previous evidence session. Your December letter was helpful. I start by quoting Professor Paul Haggarty, a witness whom we have heard from on a couple of frameworks. His concern was that although

“The ... mechanisms in relation to food and feed safety regulation, enforcement, etc, have developed organically over decades ... It is possible that the UK may fail to maintain those standards inadvertently by failing to appreciate the full complexity of the process”.

Would you agree with that concern? Is it something that we need to be vigilant about? What is your view on how those complicated and interconnected standards can be maintained?

I can absolutely appreciate that concern. Professor Haggarty is right that it is a very complex process. However, it is not brand new to our regulators—Geoff Ogle may want to come in after me. It is a complex area, but bodies such as FSS and the FSA have been dealing with it for a number of years. Things may have developed organically over a number of years, but it is the job of our regulators to be on top of it all, which they have been throughout the process. I have every confidence in them as we move forward and do not doubt for a minute that they appreciate the complexity in how the process operates. The committee will be aware of the complexity of the process that we have just been through, because of all the statutory instruments and Scottish statutory instruments that you have had to scrutinise, which the Government has also had to do.

We have retained EU law in full, which obviously required a line-by-line analysis of food and feed law. As a result of that, I would say that we are all a lot more familiar with those requirements now that we have left the EU. However, I come back to the point that, although the process may be complex, I have confidence that that complexity is appreciated in the framework that we have established. Our regulators have been dealing with it for a long time and they are more than capable of dealing with it as we move forward.

I agree with what the minister has said. Organisationally, we have recognised the impact of Brexit and increased our resourcing to deal with its consequences. The issue around international relations and ensuring that we maintain and work through those will be important. We have been doing that since we started. It will be important to work with the Scottish Government’s office in Brussels in keeping pace.

We also have bilateral relationships with other member states such as Ireland. I will be talking to the chief executive of the Food Safety Authority of Ireland later this week. The need to keep an eye on what is happening with EU law is not lost on us and we have set ourselves up so that we can do that.

As for the complexities of the policy, as the minister said, that is not new to us. We have been dealing with EU law for some time and the conversion process. Ninety-five per cent of food law was EU law and we have managed to translate all of that, so I am confident that we have the capacity, capability and experience that we need.

As a wee follow-on, I have two questions. I was interested to hear that you have been following EU law and that there is some form of dialogue. We heard from witnesses last week who suggested that the European Union and the European Food Safety Authority should be consulted on the framework, and on related frameworks. Is any further dialogue taking place with the EU and the EFSA?

11:30  

I appreciate that point, which I know was raised in evidence heard by the committee. I am not sure that consultation with EU institutions would be entirely appropriate in relation to how best to manage intra-UK liaison and policy. Of course, it is only right and fair that the Administrations should determine how the framework operates, and we would look to explore all possible avenues for maintaining that dialogue with the EU and its agencies.

We know that the UK will be sighted on any opinions that EFSA publishes. It is likely that, in respect of policy considerations that impact on this framework area and many others, the UK-EU joint committee on Northern Ireland will be key to the process.

More generally, the EU will form its own view on the effectiveness of the new arrangements within the UK for managing food safety. The UK will, as a third country, be part of an audit process; that is standard practice and will inform another avenue of direct engagement with the Commission in due course.

You mentioned the framework and how the UK will be involved. Going for consultation would need to involve the four nations, but we now know that it would be only three nations because Northern Ireland, under the protocol, is not involved in that particular issue. If the committee were to push for, or advise, speaking to the EU and EFSA in August, would that need to go through the UK framework, or could individual Governments or states take it forward themselves?

Sorry—[Inaudible.]—in terms of consultation or how we would engage in specific—[Inaudible.]

If the Scottish and Welsh Governments—Northern Ireland would be a separate matter—were to decide that they would like to consult with the EU and EFSA, would we be able to do that as individual states or countries? Could Scotland, Wales and Northern Ireland do that if they wanted to, or would that need to involve the four nations of the UK?

Northern Ireland is part of the framework agreement as well. That is what is important about the framework—it is essential that we have an opportunity for the four nations to come together as equals to discuss these issues. There is a memorandum of understanding between the FSS and the FSA, and there are already a lot of close working relationships in place. The framework builds on and develops those existing relationships.

With regard to our engagement, we have our own Brussels office and we are looking to continue to engage and maximise all opportunities in that regard. I do not know whether the point that you were trying to get at was whether we are able to do that off our own back or whether we would need permission, essentially, from the other countries first.

Yes—I was asking whether each individual country could engage in consultation themselves, or if it would have to be done jointly.

I will come in to offer some clarity. The answer is that both can happen. We have undertaken international engagement with EFSA, for example, jointly with Wales and Northern Ireland, and we have also had discussions on our own. Legally, we are the competent authority for food and feed safety in Scotland, and we are able to talk about those issues that are particular to Scotland.

On reserved issues such as trade, it gets slightly more complex, but I take the view that we can talk to Administrations or organisations such as EFSA either in our own right or jointly with the FSA. As I said, we have done both. It depends on the issue and the nature of the inquiry, and who is best placed to discuss it.

That clarifies some aspects of my last question.

We have talked about the common framework and how it works. Do you believe that the common framework and the new post-Brexit regime offer an adequate balance between risk assessment and risk management? I am talking about novel foods, genetically modified organisms and pesticides that are coming forward—in England there has been consultation about pesticides. I am concerned that all those things could sneak through if we do not have risk assessments and adequate balance. What is the minister’s opinion on that matter?

The arrangements that we have agreed will ensure that that balance is there. I know that the framework will not cover pesticides, but I emphasise that exiting the EU does not impact on the fundamental principles of policy making in that area. Scientific evidence and other factors will continue to inform the policy as part of the risk analysis process and all the processes that applied when the UK was required to consider its position in relation to the development of EU policy as a member state.

The letter that I sent to the committee in response to the questions that it had sent in December includes links to various papers that FSS—which is responsible for the provision of policy advice to ministers on the matters that that framework area covers—has looked at in its board meetings. The letter also includes the detailed consideration of the risk analysis process, which comprises risk assessment, risk management and communication on those processes. I go back to the beginning of my answer to this question: the arrangements that we have set in place through this framework mean that the right balance is there.

Good morning to the minister and her officials. We have described the new landscape of regulation, the common framework and the post-Brexit regime. My first question is general: how might all the issues that could arise from the new landscape impact on innovation in our food and drink sector? Secondly, do you foresee any consequences for human health?

The overriding interest in the matter is the protection of public health, and the focus on that protection is the key element for all of us. We obviously do not want to see an impact on innovation in the food and drink sector, but it is clear, in the situation that we now face, that businesses will have to adapt to the added friction with which leaving the EU has presented us.

For many businesses, that adaptation might include direct investment in the EU rather than at home in order to continue to export to the EU market, because of added pressures due to the increase in bureaucracy as a result of our leaving the EU. It was reported the other day that that is what the Department for International Trade has advised businesses to do.

We are concerned about the impacts that those changes have on the food and drink sector and on our ability to innovate. In relation to the arrangements in the framework, the situation outlines how officials and ministers across the UK will liaise on a lot of the matters that are in the framework’s scope. The new landscape, in and of itself, should not directly affect innovation, but the very nature of the fact that we have left the EU and the added burden of bureaucracy could have one of the biggest impacts on it.

I am interested in interoperability of the framework with Ireland and the Northern Ireland protocol. Do you have any concerns on that point?

Yes, there are some concerns, but as I said in responses to the previous questions, the framework is a four-nations agreement. It is intended that we have as consistent an approach as possible between the four nations. However, it is also designed to help and acknowledges that the devolved Administrations should have the right to consider what is in the best interests of the countries that they represent, and to build on that policy divergence.

It is clear that changes to EU law will require to be considered through the framework process, given that EU law will apply in Northern Ireland. The Scottish Government has already set out our view that law in Scotland should be aligned with EU law; we want to do that as far as is possible, where it is in our best interests. The framework arrangement means that it is inevitable that changes to EU law require to be considered in a UK context. We will have to monitor that very closely, too, as we progress through the coming months.

Thank you for that, minister. Geoff Ogle said that FSA and FSS and EFSA all work well together anyway, because relationships have been built over the years. You mentioned divergence, which is also interesting to me. Divergence has always been recognised as being legitimate, where an Administration can show legitimate cause. In its response to the committee, the Scottish Government said:

“Due to the relative size of production bases, this will mean that food law will be determined across the UK as a whole in no small part by the administration with the biggest sectoral interest.”

Will that have an impact on Scottish producers if our market is smaller than the wider English or UK-wide market?

Emma Harper has raised an important point. As I said in response to the previous question, we have already set out our view that, as far as possible and where it is appropriate, the law in Scotland should be aligned with EU law. In relation to the possibility for divergence within the framework, Scotland might find itself in a better place with regard to providing necessary assurances to, for example, auditors. Ultimately, however, that would be a matter for the EU alone to determine.

I have talked about the frameworks allowing the four nations to build on existing relationships with agencies that we had worked closely with throughout the process, and to work together as equal partners. The biggest threat to all that is the UK Internal Market Act 2020. As members of the EU, when it came to mutual recognition the principles of subsidiarity and proportionality allowed for divergence, and had respect for devolved policy making. The act could undermine the good work that we could have achieved through the establishment of frameworks.

I have a final question. On many occasions, I have raised in the chamber and in the Rural Economy and Connectivity Committee issues in relation to how we support the best produce coming into the country, and how we ensure divergence on the safety of food, which is a key issue for me.

I have mentioned the Food and Drug Administration in America having the “Food Defect Levels Handbook”, which says that levels of contaminants that we would not normally find acceptable in our food supply chain are acceptable in the USA. Will the common framework be part of keeping an eye on that, or part of how we scrutinise future trade deals, given that levels of defects that are acceptable in some countries are not acceptable in the UK?

If other witnesses wish to support the minister with comments, they should type “R” in the chat box.

11:45  

Again, Emma Harper has raised an important point that plays into concerns that we have about whether what is laid out in the United Kingdom Internal Market Act 2020 means that we could be forced to accept goods that have been produced to standards that we would not necessarily accept. That is an approach that, again, completely undermines the framework process in which we have engaged in good faith, and which built on existing positive relationships.

The internal market act also legislates for problems that do not exist. In all the engagement that we have had with the UK Government over the past four years, not one area was identified as a problem that the act would address. In many ways, therefore, we do not see the need for the internal market act, which undermines work that we have done in good faith.

In addition to that, I note that the act is not a good piece of law. Emma Harper mentioned a specific example; I will give another example of what the framework would cover. The market access principles in the internal market act mean that a food additive that had not been authorised in Scotland, but which had been authorised in England, could not be sold here. If the additive was added to bread here, that bread would not have been produced in accordance with local law. Although the additive could therefore be sold and added to bread here, we would not be able to sell that bread in Scotland. However, if the bread was made in England using that additive, it could then be sold in Scotland. Likewise, a Scottish manufacturer could sell the bread that they make back to England. I highlight that example to show the complexity in the internal market act, and how it is not good law because we will have such complex problems to deal with. The example highlights just one area in which we could see problems developing.

I, too, welcome the minister to the committee and to her new post, and I wish our witnesses a good morning.

I have only one question—about pre-market approvals and reauthorisations. The minister will be aware that we have heard from the Food and Drink Federation Scotland, which has real concerns about manufacturers having to adhere to two regimes—the Great Britain regime and the Northern Ireland-EU regime. Is not that likely to be detrimental to trade within the UK and from the UK to the EU?

I absolutely agree. The impact on Scottish businesses that supply Northern Ireland is of huge concern. David Stewart is absolutely right; as a result of the Northern Ireland protocol, businesses that export to Northern Ireland will have to ensure that they are compliant not only with regulations and law in the relevant part of the UK, but with EU law.

Over the course of the past couple of days, we have seen smaller businesses in Scotland ruling out exporting their produce to Northern Ireland, purely because of that bureaucratic burden and the extra work that it has put on them, which is simply not sustainable.

There is, of course, a further irony in that there is no mutual recognition. Any business that wants to trade with the EU has to meet EU standards. Although the UK might be able to diverge for some markets, for the EU market—which is by far our largest—EU requirements must still be met. Irrespective of any legal alignment under the deal, the friction that is currently being built is symptomatic of the UK’s status as a third country outside the EU, and of Northern Ireland’s status as set out in the Northern Ireland protocol.

Good morning, minister, and welcome to your new post. I hope that you do extremely well.

You said of the UK Internal Market Act 2020 that it is the biggest threat to the frameworks and that it creates complexity that did not previously exist. Can you give us more detail on how the act will impact on and interfere with how the frameworks operate?

As I have said in my responses to previous questions, the positive part of the frameworks is that they build on existing relationships and work on the basis of the four nations coming together equally to manage divergence in respect of devolved competences. They respect the fact that we might do different things and they try to manage that as well as possible. The four nations had managed to reach agreement on that approach.

The UK Internal Market Act 2020 is a massive threat to agreement on and implementation of the common frameworks, because the incentive to manage policy divergence is completely removed if standards that are set in one part of the UK must automatically be recognised in all other parts. As Emma Harper suggested earlier, the relative size of the production bases means that food law will be determined across the UK as a whole, and in no small part by the Administration that has the biggest sectoral interest. That is of huge concern to us.

Late amendments to the bill allow disapplication of the market access principles from individual legislative measures in common framework areas. However, that decision can be applied unilaterally by the UK Government. The fallback is that it would always be the UK secretary of state who would have the final decision. Again, as I have said, that removes the incentive for co-operation that we had established through the common frameworks process. It also undermines a key plank of the framework, which is that ministers would be able to take decisions for their own countries. At its worst, the act makes that whole process irrelevant.

We consider that the common frameworks are all that are needed to ensure that internal market issues are considered in policy development. The vast majority of stakeholders feel the same. Our analysis of the Internal Market Act 2020 is that irrespective of the necessity for or proportionality of any public health priority in Scotland—or any other part of the UK—any national measure could be caught and undermined by automatic application of the act’s market access principles. That is of huge concern and undermines the process with which we have been engaging in good faith.

I will make two quick points on that. First, divergence, or the ability to diverge, is not a new concept: it was a concept when we were members of the EU. Secondly, there is, even when we were within the EU, a history of divergence within the UK on a range of policy areas, with policy being tried and tested in one area then rolled out across the UK. To take a non-Scottish example, plastic bag charges were introduced first in Wales, then that policy was rolled out. There is concern that divergence is being seen as a bad thing that could interfere with the internal market. However, in public health terms, and in a range of other areas, divergence is a good thing because it enables improvements that could then have wider application.

Finally, the principle behind the frameworks is that they should be common frameworks; divergence is not an objective, in itself. Through the frameworks there is recognition that where divergence can be objectively justified and there is a rationale for it—in this context, a public health rationale—it can be enabled.

On the minister’s final point, we have been told by people who think that they are very important that the new office for the internal market is very important. How are Scottish interests being represented in that new office? Who will represent Scottish interests?

I would describe the office in much the same way as I have described the act; I would say that it is completely unnecessary. Structures already exist for gauging the market impact of proposed new measures and sharing such information among Administrations and relevant agencies. We therefore see the office as being not really essential. Perhaps our view would be different if the UK Government had been willing to consider sharing the chairing of it or moving it around. However, the UK Government has very much held to itself the rights to monitor and to provide advice. I have concerns about how Scottish interests will be represented in the office. The committee should put to UK Government ministers questions on how they will recognise Scotland’s interests within that system.

I will add to the minister’s points by highlighting that the act was amended to bring in additional provision on the composition of the office for the internal market, including a requirement to seek consent for specifically Scottish appointments to the body. However, if such consent is not forthcoming, UK Government ministers can proceed after a delay of one month. In the rules on the body’s composition there is very little to provide for certainty that Scottish ministers’ views will be reflected on the board. It is important not to overemphasise the suggestion that the office for the internal market provides any safeguard or means of working against direct application of the act’s market access principles.

Good morning, everyone. I welcome the minister to her new position.

The committee heard, from the Food and Drink Federation Scotland, concerns that manufacturers will have to adhere to two regulatory regimes, which is likely to be detrimental to trade both within the UK and from the UK to the EU. Is there any early evidence of such an impact?

As I said in earlier answers, we have already seen businesses giving up on exporting because of the bureaucratic burden that now exists. I absolutely agree about the concerns that have been highlighted by the Food and Drink Federation Scotland on the impact that the situation will have, and is already having, on Scottish businesses that supply Northern Ireland. Those concerns will also apply to trade between Scotland and the EU that is routed through Northern Ireland.

As I said earlier, because of the Northern Ireland protocol businesses will have to ensure that they comply with two sets of legislation, which will automatically be a huge new burden for them. A number of small businesses have already stopped trading. I hope that we will not see more of that and our relationships with Northern Ireland decreasing through there being fewer people looking to trade there. That is the reality of where we currently are because of the need to adhere to two regimes.

I welcome the minister to her position.

I am interested in exploring the dispute resolution mechanism. In his written evidence to the committee, Professor Paul Haggarty said:

“The Framework repeatedly stresses that disagreements will be rare and there is a lot of emphasis on goodwill and the desire for the nations to work together constructively.”

He also suggested that it is

“more likely that differences between nations will arise primarily in relation to risk management and the interpretation of evidence.”

Does the minister agree with Professor Haggarty that it would have been useful to stress test the likely effectiveness of the framework by exploring difficult scenarios that are actually quite likely to arise?

12:00  

In an ideal world, we would not be having to go through the process of live testing the framework right now; ideally, we would have gone through scrutiny and had everything in place by the end of the transition period. The current situation could have been avoided. However, we are where we are. Ideally, we would have done everything and been prepared beforehand.

On some of the other points, including the one that was made by Geoff Ogle, our starting point is not automatic divergence. We are building frameworks based on close working relationships that already existed; for example, I have talked about the memorandum of understanding between the FSA and FSS. There are many on-going relationships and communication right across the UK, among all the interested organisations. That gives me hope when it comes to the dispute resolution mechanism that is laid out in the framework. We will not automatically dispute everything; as I said, our starting point is not policy divergence.

However, the dispute resolution process is there, should issues emerge, and it will, I hope, mean that issues are resolved as early as possible. That process would be triggered only as a last resort; every effort would be made to reach consensus on matters that are within the scope of the framework, which should to some degree mitigate the risk of escalation.

The committee considers itself to be a conduit between stakeholders and the Scottish Government. How will you keep the committee informed, and the Parliament up to date, on implementation of and changes to the common framework, including proposals for related legislation, as the process goes along?

Essentially, I want to assure the committee that I and the Scottish Government absolutely believe that there has to be effective parliamentary scrutiny of that, so I would seek to keep Parliament and the committee updated and to keep the flow of information going as much as possible. I believe that discussion about how we will do that is on-going between Scottish Government officials and Scottish Parliament officials.

Again, one of the key ways in which Parliament would engage with the framework would be through being asked to make decisions on the Government seeking to change legislation. That will go through the normal scrutiny process. I reiterate that the frameworks that we are developing are, in essence, mechanisms for work between Administrations. Their critical function is to deliver recommendations for statutory change that we might want to implement, and such proposed changes will drive Parliamentary engagement with the framework.

Of course, I will continue to keep the Parliament updated, because, as I said at the start of my response, I think that we need that effective scrutiny.

I thank the minister and her officials for taking part in our meeting today. It has been extremely helpful to committee members. We will consider our further response to the provisional framework in due course; indeed, we will do so later this morning.