Food Additives
Item 5 is consideration of a proposal for a directive of the European Parliament and of the Council amending a directive on food additives other than colours and sweeteners. It is unfortunate that Hugh Henry is not here this morning, as I had hoped that, as the convener of the European Committee, he would make this proposal clear to us.
I do not think that there is a problem with this. The additives in question appear to have been evaluated recently by the scientific committee on food. The thinking is that some countries have had the additives for two years and this proposed directive would standardise the position across the European Union in terms of food safety and free trade.
Are there any comments?
I have several comments. A theme that will run through most of today's meeting is that we still do not have sufficient information on this stuff. I will give an example from this directive. The appendix to the paper on consideration of European documents talks about consultation. This committee wants to examine the impact of directives and statutory instruments on people—that is the point, presumably, of consulting interested parties, consumer organisations, industry, and so on. An analysis of responses is not attached so we do not know what such people think of this.
All we had was an impact assessment form.
The impact assessment form says that the proposal will have no effect on employment. I would like to be able to test that. How can that be said with any degree of certainty? Although there is more to this briefing than we normally get, I still do not think that there is enough.
The European Committee meets on 19 October and will require a report from this committee before then. Our next scheduled meeting is 26 October. If we want to make a report, we will have to schedule another meeting.
We are going to have to make a choice: either we proceed on the basis that the dates are against us—and be aware that we will have to work with partial information—or we think of a way around the problem.
This raises the question of the information that we are being given in the statutory instruments. We do not have enough information. Many of the instruments could go through on the nod, but how do we know which ones?
Duncan has raised some important points. It seems that we have to come up with something by 19 October, but we received the instruments only two days ago and have only scant information about them.
It would probably have been unfair to Hugh, but he could have given us some background information if he had been here. However, committees should not have to process SSIs on the basis that one of their members sits on another committee.
I have raised the issue of statutory instruments with the conveners committee and with Murray Tosh, the convener of the Procedures Committee. Murray has written to George Reid, the Deputy Presiding Officer, to say that the way in which the Health and Community Care Committee has had to deal with instruments has been unacceptable.
As Duncan said, we have been given more information on this instrument than on others, but without full information we cannot be sure that what we are doing is acceptable. There is no way out of this that I can see. The issue appears to have been investigated elsewhere. As Duncan said, we are not getting the full arguments put to us; we are getting a précis of what other people have done.
It is assumed that we will pass an instrument on the nod on the basis of work that has been done elsewhere without our investigating, for example, what the additives are and what they do. What has Westminster done? We note that the instrument has been to committees in Westminster but we have only the bare bones. On this occasion, I am minded to accept the instrument and put it through.
What level of information does the committee require on items of this sort? How much time do members want to spend considering them? By going back to basics, so to speak, we would be sending a message to clerks and others that we want a high level of information on all instruments, as they could not second-guess which ones we wanted to investigate further. Obviously, that would require more time from them and us, and would have resource implications. What are the committee's views on that?
I do not think that we should insist on detailed information about everything. This directive raises many interesting general points that may come up in tomorrow's debate on concordats. David Martin said that 50 per cent of the legislation that we process in this Parliament will be European legislation, so this is a major issue. The relationship between this Parliament, Whitehall and Europe will feature prominently in tomorrow's debate.
As I said yesterday, if we had access to directives and statutory instruments at an earlier stage, we could flag up whether we want to know more about them. Because the statutory instruments that we will be dealing with later in this meeting are technical, we will not require a briefing on those. If we do not use our discretion, the committee will become tied up on unimportant matters. However, we do not have any evidence that enables us either to accept or to reject this directive. On the whole, one would tend to assume that the scientific advice is correct, but we are probably right to be sceptical—there was an item in the news this morning about food additives. Ideally, this should have been flagged up beforehand so that those of us who wanted to contact interested organisations could have done so.
When did members receive these papers?
On Monday.
If my memory serves me correctly, I received them on Friday. I was able to read them on Saturday, so I must have received them the day before. However, this was an added item.
We tend to go home to our constituencies on Thursday night.
I know. It is handy to know when people received these papers, as the current situation is unsatisfactory from our point of view. We have to fit in with other committees' time scales.
. I support what Malcolm has said. Paragraph 2.3 of document HC/99/7/2 states:
"The committee's role is to consider whether it has any serious concerns as to whether the directive should be implemented in Scotland as a consequence of it being agreed at UK level."
I do not have the time to ask the relevant people whether they have any serious concerns. None of us has the research staff to phone round the ophthalmic, pharmaceutical, dental and food additive industries. That means that I am not able to do this job as rigorously as I would like.
I do not think that the fault lies with you.
I do not think so either.
You do not want that put on record.
I am happy not to spend much time on this directive and to approve it on a nod and a wink, but I am also keen that we do this properly and are seen to be doing it properly. Is there any way in which researchers or others could inform us of whether there are any serious concerns of which we should be aware, or is it up to us to find out? That would be a very rigorous task.
We do not have a meeting between today and 26 October. The European Committee meets on 19 October and has to deal with the instrument then. Theoretically, what Mary said about access to research or references is correct, but we do not have a meeting scheduled to deal with this matter. We would have to timetable a special meeting, ask for research to be done prior to that and have anyone that we wanted to speak to appear before us. We cannot fashion that out of the air.
I am not asking for a special meeting. Yesterday Ben had one of his researchers phone round some of the major food industries to ask whether they had any concerns. I thought that that was an excellent approach. However, we do not have the staff to pursue it. I am not asking for further meetings, but is there anything that would allow us to fulfil our role as outlined in paragraph 2.3?
At the conveners committee yesterday, as a result of my taking forward points about research back-up that had been raised in this committee, a report about research was put before us. There will be some changes in the way in which the internal research capacity works and we were given some indication of the budgets. This year, the budgets cover both internal and external research capabilities, including special advisers, and they seem reasonable given that this is a short year.
I maintained our position that we were not happy with the amount of research back-up to which committees have access. That is an on-going problem, and we hope that it can be addressed using the limited resources that are available. It has been suggested that, twice a year, committees and conveners should give researchers an indication of their research needs. That does not mean that we can phone them at home on a Friday night and say, "By the way, can you do some research on food additives for me by Wednesday morning?" Some of the ideas that have been put to us were good, but I added the caveat, on behalf of the committee, that I was still unhappy about the level of research.
We still do not have a research capability and, as you said, Mary, that will mean that members of the committee will end up using their own staff. My assistant, who is employed to help with constituency work, spends 50 to 60 per cent of her time on committee business. The work will fall on our own staff and on researchers in our party groups. With respect to all the researchers in our party groups, we need access to non-partisan research, and that will be difficult.
Later this year, we shall tackle the issue of community care and I hope that we can give our research back-up a steer as to the issues that we want to consider so that, over the next few weeks, they can do that background work for us. We must be aware of the constraints under which they are working and give them as much time as possible, but we should be able to demand that service of other instruments in the Parliament. As a committee, we need to know in good time whether we need to hear evidence or whether we need research. It is not acceptable to have papers delivered to members just a couple of days before a committee. By the time people are back in Edinburgh on a Monday afternoon, there is too little time to study the research papers before a 9.30 committee on a Tuesday morning.
That takes us away somewhat from the problem before us, but it is worth putting our concerns on record. I know that the Presiding Officer reads all our deliberations, so maybe he will read this and take it on board. Coming back to food additives, do you have any comments, Kay?
I would back most of what Malcolm Chisholm said. We cannot make a blanket decision about how we are to deal with such things because many of them are purely technical issues. I would be concerned about setting a precedent. We should know more about the issue of food additives before making a decision. The fact that it has been through committee at Westminster does not necessarily mean that it would also be in the best interests of Scotland. The whole idea of a Scottish Parliament is to address the needs and wishes of the people of Scotland. Members will not be surprised to hear that its having been through Westminster would not be a recommendation to me simply to nod my head.
The non-partisan point that I made, Kay, was that the instrument has also gone through the scientific committee and Westminster.
I do not doubt that we may end up coming to the same view, but I do not want to create a precedent. We must be careful that we do not allow things to slip through that may not be in the best interests of the health and well-being of the people of Scotland.
We have had this discussion at great length before. It was Ben, I think, who said that the committee was not being shown the respect it deserved. A message has been sent that we are not getting enough time, yet here we are, back in the same position. Frankly, it does not fill me with great hope for the future.
We must remember what the committee's role is. If we pass the instrument that is before us, we are saying that we are happy with it. We will then be on record as officially having given the nod to something that we do not properly understand.
As you say, convener—and I have no doubt that you are correct—the time scale is entirely inflexible and there is no way that the deadline can be pushed back. We therefore have two options. If the instrument absolutely must go through, we can pass it on the nod. However, if we do that, we should make a statement to say that we are passing it purely as an administrative procedure, and not in any way on the instrument's merits, for which we have no evidence. Alternatively, we do not pass it.
I come back to the point that not all instruments have the same worth or weight. I have questions on, perhaps, four or five of them, but that is not to say that the rest of them could not go through as a technicality. Could we put those ones through, to get them out of the way, and come back to consider the contentious ones? Convener, you will have to tell us whether we can do that, as it will be driven by the timetable. If we are wasting our time trying to consider this instrument again, we should move on, but say explicitly that we are passing it only as an administrative procedure.
There are obviously strong feelings about this issue, which I accept and echo. The key question is whether committee members feel strongly enough. We can pass the instruments with a caveat, as Duncan suggested, that we are doing so purely as an administrative thing, due to lack of time. However, if we feel strongly enough about it, we can say that we must have another meeting of the committee and call witnesses. I will get a feel for how the committee wants to proceed once Richard has spoken.
We need to separate the specific issue from the general issue. On the general issue of the time we have to consider instruments, the committee's view seems to be clear—we are getting a little frustrated, to put it extremely mildly, at being given instruments, which may or may not be contentious, at such short notice. We are all agreed on that. We should, therefore, make a statement saying that we are not prepared in future to consider statutory instruments that are laid before us at one day's notice. We have the right to decide our agenda and we will say that we will not accept such instruments onto it. We need to take a tough line on that matter.
Furthermore, we are signed up to various levels of representation and democracy. Members of the European Parliament have presumably considered, discussed and debated such European legislation, as the UK Government will have done, in terms of how it affects the areas of the United Kingdom for which it is responsible. We receive such legislation third hand. It should not, therefore, be impossible when the instruments are laid to receive at least an indication of how the debates at other levels went.
If debate has not taken place at the other two levels, we have an obligation not to pass the regulations without having a proper discussion. If it has, it is a matter of judgment—we must decide whether the debate was adequate. If it was inadequate, as Kay suggests, we need to reconsider.
The specific instrument before us deals with additives, which are a difficult subject—they are not non-contentious, as some of the other instruments that have been laid before us are. On a fairly rapid reading, it seems that this instrument deals in part with areas such as gases being used for packaging—something for which the United Kingdom has been pressing for a considerable time. Our food industry has already been using gases. The document therefore ensures that the European legislation comes into line with what we have been seeking.
Page 4 of the explanatory memorandum says that the
"temporary . . . authorisation for the use of the propellant gases butane, iso-butane and propane in certain vegetable oil food sprays . . . lapsed at the end of December 1997."
The Government has been pressing the Commission to come forward with proposals, so the Commission is responding to something that we have been asking for. Presumably, the United Kingdom Government considered the scientific evidence before making the Miscellaneous Food Additives Regulations 1995. There has already been a series of debates on this issue.
I do not have any problems with the gases, but I have no feel for the other bits, which deal with wood rosins and propylene. We may have to take them on the nod.
We should not pass anything to do with food additives and colourants. We are not here to be ciphers, just rubber-stamping anything. I have not read through the papers at all—I have been in Glasgow for the past two days. I am not prepared to put my name to them, just as you would not want to sign a blank cheque. We should turn down the two most contentious ones—
There are two separate types of business for us—there is a European document and there are Scottish statutory instruments. At the moment, we are considering the request for European scrutiny advice. Having listened to members' comments, I am minded to try to find time for a further meeting to look at the issue. That would also provide a further opportunity to find out more about the particular food additives. We need proper notification of matters that are to be put before us, so that we can do some background research and can learn about the debates which, as Richard said, have been held elsewhere on European directives and so on.
In this instance, we probably would have been okay, but why should I and why should committee members, as elected representatives, pass something just because we think that it is probably all right? That is not good enough. We are in a Parliament and we have to have respect for ourselves—that is the message that I am hearing loud and clear from the committee.
We will proceed with this at a future meeting, which we will have to arrange. In the meantime, with the clerks and the research team, I will come up with some background research and some ideas on the people whom we might call as witnesses.
The first document deals with the harmonisation of food additives throughout the European Community, which is part of the completion of the single market. It comes under a strict European directive. It is all very well our using our time to scrutinise the document, but if we disagree with it, what can we do?
We have to investigate that.
I would like to know the answer.
Yes, we need to know the answer. This is probably the first of many such European proposals.
I appreciate what you are saying about the document—you are absolutely right. To allow us to get background research, it would be useful if members could tell you what specific information they were looking for.
Would it be acceptable for members to do that today and tomorrow morning?
It was becoming an interesting political discussion, but I will not go down that route. Directives are interesting, and I hope that they will come up tomorrow. There is flexibility in the implementation of some directives, and the situation becomes interesting in terms of Whitehall and the Scottish Parliament.
I agree in principle with what you are saying, but I am not clear when the meetings will take place if the European Committee is to deal with the matter on 19 October.
We are working to a tight timetable—I appreciate that. The view of the committee is that we should have another meeting to deal with the matter.
The next items are negative instruments. We have met them before. No motion has been lodged to
"recommend that nothing further be done under the instrument."
That is a wonderful line. Perhaps it is too early in the morning for me.
Some of the instruments are worth commenting on. I believe that the Subordinate Legislation Committee has done so; we would do well to echo some of its comments. All the SSIs are subject to the negative procedure. The report states:
"Any MSP may by motion propose to the lead committee that the Committee recommend that nothing further be done under the instrument. No motions have been lodged."
I think that that means that we can simply take note and agree that the attention of Parliament need not be drawn to the instrument.
I would like to make a general point. There is a serious issue about the standing orders, particularly rule 10.4.
The Parliament is trying to deal with statutory instruments in a better way than Westminster does, but it seems that we are dealing with them worse than Westminster because we can discuss them all we like, but—as there is no motion—we cannot do anything about them.
Paragraphs 1, 3 and 4 of rule 10.4, which all mention 40 days, do not make sense. We should amend that rule to ensure that motions can be lodged within 40 days. We are time-barred already: even if we find that there is something terribly wrong with the SSIs, there is nothing that we can do about it.
If we find a problem with these SSIs today, we should be able to lodge a motion within 40 days, but we cannot because of the other daft rules that state that the Parliament has to debate them within 40 days as well. It is impossible.
We should bring that to the attention of the Procedures Committee.
I do not want to spend too much time on the SSIs, but we should make comments.