Subordinate Legislation
Seeds (Miscellaneous Amendments)<br />(No 2) (Scotland) Regulations 2002<br />(SSI 2002/564)
Item 1 is subordinate legislation. We have one instrument to consider. On 17 December 2002, we decided to seek evidence from the minister on issues that arose from the Seeds (Miscellaneous Amendments) (Scotland) Regulations 2002 (SSI 2002/520). Questions were raised about whether the relaxation of labelling and packaging rules for certain seeds could result in contamination by genetically modified organisms. The minister, Ross Finnie, kindly agreed to give evidence today.
Subsequently, because of drafting errors, the Executive replaced the regulations with the Seeds (Miscellaneous Amendments) (No 2) (Scotland) Regulations 2002 (SSI 2002/564). An Executive memorandum to the Subordinate Legislation Committee to explain the drafting change has been made available to members. We understand that the new instrument has the same policy intentions and content as the original. The minister agreed that it would be appropriate to give evidence on the new instrument.
The Subordinate Legislation Committee has yet to consider the new instrument, so we cannot make a formal decision today on whether to make any recommendation on the regulations. The formal decision will have to be made at a later date once the Subordinate Legislation Committee has completed its consideration. However, it is in order for us to consider the policy intention of the instrument in advance and to take evidence from the minister thereon. On that note, I again welcome Ross Finnie, the Minister for Environment and Rural Development, and Executive officials Simon Cooper and Charlie Greenslade.
I am pleased to have the opportunity to speak to the committee on the Seeds (Miscellaneous Amendments) (No 2) (Scotland) Regulations 2002. I apologise to the committee for the inconvenience that may have been caused. The original regulations contained a numbering error and therefore had to be replaced. However, the purpose of the regulations remains the same, as do, I suppose, the committee's concerns.
The regulations derived from European decision 94/650/EC, under which the Commission organised a temporary experiment—lasting seven years, from September 1994 to August 2001—on the marketing of seed loose in bulk to the final consumer. I am bound to say that the industry in Scotland and indeed the UK as a whole was not interested in supplying seed in bulk at that time and so did not participate in the experiment.
The results of the experiment led the Commission to conclude that the marketing of seed under such arrangements had no adverse effects on quality. Council directive 2001/64/EC was introduced on 31 August 2001 to allow the measures to be made permanent in respect of fodder plant seeds and cereal seeds by amending the respective directives. The new directive required that its provisions be transposed into national legislation by 1 March 2002.
In view of the considerable lack of interest shown by our industry, territorial departments throughout the United Kingdom delayed introducing domestic legislation pending a planned review of seed inspection and certification procedures. Unfortunately, the timetable for completing the review slipped and we decided to press ahead with making a separate amending instrument.
I was prompted to do so by the European Council legal service's advice that the directive must be implemented by member states, regardless of the fact that the directive appears to be discretionary. Our non-implementation was included in an article 226 letter and, more recently, in a reasoned opinion.
The Seeds (Miscellaneous Amendments) (No 2) (Scotland) Regulations 2002 are therefore intended to amend the Cereal Seeds Regulations 1993 (SI 1993/2005) and the Fodder Plant Seeds Regulations 1993 (SI 1993/2009) to allow marketing of certain kinds of cereal seed and fodder plant seed in bulk.
At present, the principal regulations require that seed be marketed and transported in packages or containers that are sealed in such a way that the package or container cannot be opened without destroying the seal. The amending regulations will allow certain categories of certified cereal seed and certified fodder plant seed to be drawn from bulk containers and transported loose directly to the final consumer. However, the amending regulations also require that seed sold under such arrangements be transported to the final consumer in a closed container.
The bulk seed would also require to be accompanied by a note delivered by the supplier to the final customer containing the information that appears on the official label. The regulations also provide for random samples to be taken during the filling of the container. The extent of use of the exemption will be monitored, as the quantities of seed marketed in bulk will require to be notified by the seller to Scottish Ministers at the end of each calendar year.
Committee members have expressed concerns that permitting loose transportation may increase the risk of seeds being contaminated. They particularly expressed concern about the potential for cross-contamination with GM seeds.
The first point to repeat is that the regulations specifically require that the seed be transported in a closed container to the final consumer. The regulations use the same wording as in Commission decision 94/650/EC. The purpose of the rules in the decision is to ensure that the container is closed in such a way that the seed cannot be contaminated. If seed is in a properly closed container, nothing should be able to contaminate it. To reinforce that point, it is intended that my department will issue guidance to the trade when the regulations come into force.
There is no requirement under Commission decision 94/650/EC or directive 2001/64/EC for the cleaning of containers. It is accepted good husbandry and the seed buyer's responsibility to ensure that containers are cleaned thoroughly before and after they are used to store seed.
Section 57 of the Scotland Act 1998 requires Scottish ministers to comply with Community law. The regulations fulfil that obligation. Regulations to implement the directive in England come into force on 31 January 2003. Amending regulations came into force in Wales on 24 December 2002 and regulations are planned for Northern Ireland. Therefore, Scotland will complete the United Kingdom's obligation to introduce the regulations.
I trust that there is an understanding of the legal obligations of the suppliers and purchasers of seed, especially in relation to the containers. The use of the word "loose" was perhaps an unfortunate interpretation of the transportation method. The regulations are explicit: although the seal may have been broken, the final form of transportation must be in a closed container.
The Executive notes contain a list of all the bodies that were brought into the consultation process before the preparation of the instrument. Did any of the consultees query the purpose of the statutory instrument?
No.
None of them queried its purpose.
I would qualify that by explaining that there has been a certain lack of interest in the matter. The Executive is not aware of purchasers in the UK, especially Scotland, who wish to avail themselves of the measure.
Happy new year, minister. I know that you have other important items on your agenda, so I hope that I will not detain you too long. The UK did not participate voluntarily in the European seven-year trial, but were any significant factors, especially the risk of cross-contamination from GM crops, taken into account in the drafting of the regulations?
I cannot stress enough the need to draw back a bit and consider the obligations of suppliers and those who purchase their seed. Under the Sale of Goods Act 1979, suppliers are required to supply seed that is fit for purpose. When seed is taken out of a sealed container, a sample must be taken. The sample is a safety valve, as it were, which allows suppliers to prove that, when the seal was broken, the seed was not contaminated.
Purchasers pay good money for seed. Therefore, if they decide that they wish to buy seed in a different form from what is normal practice, it is in their interests to ensure that that seed is carried to their premises in sealed containers, which ensure that the seed does not become contaminated. I appreciate that that is not a legal requirement, but purchasers who ignored that would be willingly permitting seed that they were buying for a specific purpose to become contaminated. I suggest that that is not in either party's interest.
I agree with you about the sale of goods legislation and the interests of the purchaser. On the delivery of seeds in closed but unsealed containers, after a container has been loaded and the batch sample tested, will the new arrangements permit deliveries from the container to multiple customers?
No.
So the regulations specifically allow the closed but not sealed container to go only from the point where it is loaded and tested to a single point of delivery.
If you look at regulation 3(2), you will see that the answer to that question is yes.
That is fine. Thank you.
On the more general question of GM contamination, have any specific tests been done to discover whether the nature of the closure of the containers that are now closed but not sealed is adequate to prevent contamination en route or otherwise by GM pollens and other small particles?
I will ask Simon Cooper to address that point. If you had read what the previous regulations said, you would understand that an unbroken seal satisfied someone only that a container had not been opened. The unbroken seal did not convey that a container was hermetically sealed. The seal was merely a physical embellishment on a package that assured a purchaser that the package had not been interfered with. The absence of a seal does not change the nature of the closure of a container. The only difference is that the previous regulations provided a legal requirement for a closed container to bear a seal. However, the word "seal" did not convey a sense of hermetic or any other type of sealing.
For the avoidance of doubt, I confirm that that was my understanding. I assume that the containers are the same containers, and that they operate to the same standards and in the same way.
They could be.
I was not pursuing that point. The regulations are being changed, so I am simply taking the opportunity to examine something that might not have been examined before in relation to the transport of seeds in such containers. I acknowledge that the absence of a seal does not in itself change the risk of contamination. I am merely taking the existence of the change as an opportunity to examine that particular issue. That is where I am coming from.
Okay. The only point that I would make is that it is clear that the regulations do not provide assurances against potential contamination. We are not required, nor is it in our interest, to gold-plate. The important issue is the nature and style of the containers, which are manufactured by the producers and the sellers. Mr Stevenson and I agreed on the effects of the Sale of Goods Act 1979. I appreciate that his current concern might be about potential contamination from GMOs. In the seed industry, it is possible for a variety of other matters to contaminate seeds, so the containers are designed with contamination in mind. It is not in the interests of a seed manufacturer or supplier to deal in contaminated seeds.
You said that the regulations do not require the containers to be cleaned between different uses. Should we be concerned that that might create the opportunity for contamination? For example, do the containers return unemptied but closed or empty but open? Are the operational parameters such that we need have no concerns or would it be appropriate to consider regulations in that regard?
That would mean introducing regulations whose provisions were in excess of those required by the directive, which raises a different issue. I have been very much guided by our department's close discussions about industry practice. I am bound to say that the industry is in no way dismissive of those points. The clear contention of the industry in Scotland, with which we have close contact, is that seed purity is important.
Absolutely.
Therefore, the industry puts its own reputation at risk, as, indeed, do producers, if they do not abide by good husbandry practice. It is our clear understanding that such a procedure forms part of good husbandry practice.
Does any other member have questions on the instrument? The minister does not want to make any closing remarks, therefore I thank him and conclude this item by reminding members that the committee will formally consider the instrument in two or three weeks' time, when the Subordinate Legislation Committee has reconsidered it.