Delegated Powers and Law Reform Committee

Meeting date: Tuesday, October 1, 2013

Official Report 261KB pdf

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Instruments subject to Negative Procedure

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Food Additives, Flavourings, Enzymes and Extraction Solvents (Scotland) Regulations 2013 (SSI 2013/266)

Articles 9.4 and 9.5 of European Union regulation (EC) 2065/2003, which are specified in schedule 3 of the instrument, apply to both “an authorised product” and

“a derived smoke flavouring produced from an authorised product”.

The effect of being specified in the schedule is to make non-compliance with the provision an offence. The description of the subject matter of article 9.4 refers to both regulated substances, but the description of the subject matter of article 9.5 refers only to authorised products.

The committee may wish to accept the Scottish Government’s view that the operation of the instrument will not be affected, as the description of the subject matter is intended only to be descriptive rather than definitive of the offence. Nevertheless, the committee may consider that it is undesirable for there to be inconsistency in the approach to describing identical subject matter, or for that description to be inaccurate, particularly in the context of describing conduct that amounts to an offence.

Does the committee therefore agree to draw the instrument to the attention of the Parliament under reporting ground (h), as the explanation of the specified provisions in schedule 3 of the instrument could have been clearer?

Before the committee decides whether to do that, John Scott has a comment.

I agree with that recommendation, but I do not accept the Government’s view that the issue that has been raised is unimportant. I declare a tenuous interest as a food producer. If the instrument is left to stand in its present form, as the Government tacitly suggests should happen, that will be unhelpful to the food industry and will put doubt and confusion in the minds of those who read such instruments. I think that when we make such an instrument, we should do it properly from the outset, otherwise the industry will have to consult lawyers and so on, because they will not understand it, which will involve a cost. We should do things properly at this stage.

Do members have any other comments to make? Are we content to draw the instrument to the Parliament’s attention?

Members indicated agreement.

A further point has been raised on the instrument. Paragraphs (3) and (4) of regulation 2 of the instrument declare that references to regulation (EC) 1331/2008 are to be of ambulatory effect, but regulation (EC) 1331/2008 is not referred to in the instrument. The committee may accept that that error will have no detrimental effect on the operation of the instrument, and it may wish to note that the Scottish Government has undertaken to remove the erroneous reference the next time the regulations are amended.

However, in light of that drafting error, does the committee agree to draw the instrument to the attention of the Parliament under the general reporting ground?

Members indicated agreement.

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Town and Country Planning (Marine Fish Farming) (Scotland) Regulations 2013 (SSI 2013/277)

The committee agreed that no points arose on the instrument.