Rural Economy and Connectivity Committee

Meeting date: Wednesday, November 7, 2018

Official Report 779KB pdf

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Agriculture Bill

Item 5 is on the UK Parliament’s Agriculture Bill. I invite members to declare any interests. I will start by declaring an interest as a member of a family farming partnership.

Likewise, convener, my entry in the register of members’ interests shows that I am involved in a family farming partnership.

Item 5 relates to the committee’s consideration of a legislative consent memorandum that has been lodged by Fergus Ewing, the Cabinet Secretary for the Rural Economy. The LCM covers the Agriculture Bill that is currently being considered in the UK Parliament. The UK Government and the Scottish Government have different views on how the bill will affect the devolved Administrations.

The UK Government does not consider that consent from the Scottish Parliament is necessary, as it is of the view that the bill does not legislate in areas of devolved competence. However, the Scottish Government believes that legislative consent is necessary. The Scottish Government indicates in the LCM that it does not intend to lodge a legislative consent motion on the bill at this time as it considers that the approach that is being taken in the bill is not consistent with devolved responsibilities.

The Scottish Government is seeking urgent discussions with the UK Government on how to strengthen and protect the Sewel convention. The Cabinet Secretary for the Rural Economy has also written to the UK Secretary of State for Environment, Food and Rural Affairs, proposing amendments to the bill. The LCM states that the Scottish Government will consider progress in those discussions in deciding its position on whether to seek legislative consent for the bill as its UK Parliament consideration proceeds

As the lead committee on the bill, we are required to reflect on the memorandum and consider whether we are content with its terms. We will then report our findings to Parliament. I invite members’ comments.

In the minister’s evidence to us last week, on 31 October, he undertook to provide the legal advice—I was surprised when he said it, but we can check the Official Report—for his decision that there is no issue over the continuity of farm payments and that we do not need to rely on the UK Agriculture Bill.

In a letter that the committee has just received, the minister states:

“In my evidence session with the Committee on 31 October, I undertook to write to set out the position on the basis for continued farm support payments after 29 March 2019, as informed by legal advice.”

However, if you check what the minister actually said to us, convener, you will see that it is different from what he states in the letter. Will you write back to the minister, asking him to fulfil the commitment that he gave us last week?

The first thing that I will do is check the Official Report to ensure that I am entirely clear about what the cabinet secretary offered to provide to us. If what is offered in the letter falls short of that, I will write back to him and ask, on behalf of the committee, that he provide that information.

I will keep my comments fairly brief. There is an element of political disagreement, but the committee has a duty to look at the issue from a procedural and legislative point of view.

Given the oral evidence that was given by the cabinet secretary and his subsequent letter to us today, I am still unclear as to whether there is a substantive case that the Scottish Government has the legal ability to continue with common agricultural policy payments if it does not lodge a legislative consent motion on the UK Agriculture Bill.

In the letter that the cabinet secretary has provided, he refers to matters still being

“subject to the outcome of the Supreme Court case”

on the European Union (Legal Continuity) (Scotland) Bill, which means that there is still some subjectivity regarding the bill’s legality. I am still not clear whether there is a legal basis for the continuity of farm payments. Even if there was legal continuity and the cabinet secretary’s forthcoming legal advice is correct, my understanding is that that would allow the continuation of CAP payments only under the existing arrangements and agreements.

I believe that the committee posed questions around deviation from that and different forms of subsidy, which I do not think are covered under the European Union (Withdrawal) Act 2018 or any continuity bills that might or might not be valid in Scotland. I ask the Scottish Government to reflect on that feedback.

For that reason, I express disappointment that the Scottish Government has chosen not to lodge a legislative consent motion on the UK Agriculture Bill. However, that might be just my personal view as opposed to the collective view of committee members.

I note Jamie Greene’s comments, but I do not agree with them. The cabinet secretary’s letter sets out that the CAP payments will continue to be made after Brexit, and I am sure that the Scottish Government will do all that it can to ensure that that happens. It is up to the UK Government to come to the table to discuss the matter.

With regard to the recommendation in front of us, I suggest that we note the memorandum and await the outcome of the discussions between the UK and Scottish Governments. I do not see any problem with the continuation of CAP payments or with the cabinet secretary’s letter. There might be a point about what the legal advice was, and I agree with the convener’s suggestion that we should write to the cabinet secretary about that. However, I think that we should just note the contents of the memorandum and move on.

The committee will be well aware that Governments do not usually publish their legal advice. What is set out in the letter is perfectly straightforward. Various issues are being mixed up. We need to wait and see how the Agriculture Bill progresses at Westminster. I took it that the cabinet secretary was saying that, on the UK’s exit from the EU, nothing will change regarding the payment of CAP payments. In the final paragraph of his letter, he says that the Scottish Government

“is continuing to explore all the necessary adjustments”

and to consult all relevant bodies on what should happen after exit day, but CAP payments will not be affected.

I note that most of those comments were based on the letter, not the memorandum.

For information, what the cabinet secretary said last week—if this is the relevant part—was:

“I hope that, once the legal advice is shared and members have looked at it, they will come to the same conclusion as I have done”.—[Official Report, Rural Economy and Connectivity Committee, 31 October 2018; c 21.]

As I understand it, the clauses of the Agriculture Bill in relation to which there is an issue with legislative consent are clauses 22 to 24, 25 and 26, which deal with producer organisations, fair dealing obligations and the World Trade Organization agreement. Those are the areas of dispute between the two Governments. I do not think that we are able or need to form a view on that; I agree that we should just note the contents of the memorandum.

It is absolutely the case that there is a difference of opinion on whether we have the ability to carry on making payments. That is not just my view—our members of Parliament at Westminster say that, and NFU Scotland has serious concerns about whether we will continue to have that ability. There is dubiety.

We definitely need legislation to come up with new and different ways of paying moneys for farming, but that is probably a debate for another day. I believe that there are significant concerns in the industry, which I share. We have not seen the legal advice, and the letter does not contain the legal advice, which is what we were promised. In my opinion, the worry and confusion remain.

As far as the LCM is concerned, I think that the only thing that we can do is note it, but that is not to put to one side the concerns that I and the industry have about whether we have the necessary legislation in place to enable us to continue making payments.

The Parliament has lawyers, too. The cabinet secretary said that he was going to share the Government’s legal advice with us, but I wonder whether the committee could contact the Parliament’s legal advisers to ask for an opinion on whether what we have been told is correct.

Colin, you have not said anything. Do you have anything to add before I try to summarise where we are at?

I agree with Mike Rumbles’s last point. It is fundamental not just to our consideration of the memorandum that is before us but to the future work of the committee that we know the legal opinion on future payments.

I will try to draw all those comments together. I think that there are two strands, one of which is the legal advice, which I would like to put to one side for the moment in order to concentrate on the legislative consent memorandum, which is what we have been asked to look at.

As a committee, we are probably in the position of being tied into noting the contents of the LCM. However, I think that it is entirely right and proper for us to ask the Government to keep us updated on all the things that it is doing in relation to the LCM. It would be helpful for the committee to know what amendments to the Agriculture Bill the Scottish Government has lodged and what discussions it has had with the UK Government on the operation of the Sewel convention. I think that that is how we should deal with the LCM. We should also ask to be kept in the loop, because that is fundamental to what we are trying to achieve.

As far as the legal advice is concerned, it was helpful of John Mason to quote the cabinet secretary’s evidence, but I will need to double-check exactly what he undertook to provide. I am fully aware that Governments do not usually offer to share legal advice, but the cabinet secretary appeared to make that offer. If he did indeed make that offer, it is right and proper that we get the legal advice and look at it.

I propose that that would be a sensible way of dealing with the issue that would reflect everyone’s views. Is the committee prepared to agree that that is how we should proceed?

If we do not get the legal advice after you have written to the cabinet secretary, we have another alternative, which is to write to the Parliament’s legal team.

I understand that there are alternative options, but let us hope that the cabinet secretary sticks to his word and provides the advice, if that is what he said he would do.

Is the committee satisfied with the course of action that I have suggested? Do members agree to note the LCM, to request regular updates on all the matters that I have identified and to write back to the cabinet secretary, asking him to provide the legal advice if that is what he said he would do last week?

If that is at all practicable.

Members indicated agreement.

Meeting closed at 12:27.