Seed Potatoes (Scotland) Regulations 2000 (SSI 2000/201)
Item 1 on the agenda is subordinate legislation. We have before us the Seed Potatoes (Scotland) Regulations 2000 (SSI 2000/201). I remind members that it was agreed at the previous meeting that, as a precaution, I would lodge a motion to annul—under rule 10.4 of the standing orders—on behalf of the committee. That will enable us to take action based on the Subordinate Legislation Committee's report, within the time scale that is allowed.
Before we deal formally with the motion, I have invited officials to explain the issues surrounding the instrument. According to procedure, it is not possible for officials to contribute to a debate on a motion to annul. I therefore propose to take time to have the issues explained and to question officials. After that, I will move the motion in my name and will allow the Minister for Rural Affairs to address the motion.
Who will explain the issues?
I will start, if I may, convener. Thank you for inviting us. I hope to give the committee such explanations as it requires. We take very seriously the issues that have arisen in the course of the committee's deliberations.
Before I start, I apologise in advance to the convener and members of committee if I do not manage to make eye contact. I regret that I appear to have developed an eye infection and the lights are making it rather difficult for me. What I am trying to express—in the nicest possible way—is that I am not looking shifty; I am, rather, impeded.
David Cassidy will be best placed to address the committee's principal technical concerns, most of which were of a legal nature.
David Cassidy (Scottish Executive Rural Affairs Department):
The Executive is grateful for the attention to detail that the Subordinate Legislation Committee has shown in reviewing the regulations—we consider them to be extremely important and significant. I propose to address the issues according to the Subordinate Legislation Committee's report.
Members will note that the Subordinate Legislation Committee drew attention first to a number of textual inconsistencies and typographical errors in the regulations. It goes without saying that those errors and inconsistencies are regretted. Members will appreciate that mechanisms that attempt to eradicate such errors are built into the process of formulation and making of regulations. It is extremely unfortunate that on this occasion, those mechanisms have not caught all that we hoped or expected they might in removing textual and typographical errors.
That said, the errors that were recorded by the Subordinate Legislation Committee are, for the most part, in the regulations' road signs—in their headings—rather than in the text. In the ordinary course of events, the Stationery Office will correct some errors, such as the omission of forward slashes and so on, in the published edition.
On the more substantial points that were raised by the Subordinate Legislation Committee, it appears that members focused on three regulations. The first is regulation 3, which relates to the application of the regulations—it is the entry door to the regulations. Secondly, that committee focused on regulation 9, which is concerned with labelling seed potatoes. Thirdly, the committee focused on regulation 20, which is concerned with an amendment to the Plant Health Order 1993. The committee also mentioned in passing regulations 6 and 7, but as members appear to be satisfied that they are legally sufficient, I do not think that there is a live issue as far as those regulations are concerned.
On regulation 3, the Subordinate Legislation Committee identified a defect in the drafting—which, it is acknowledged, could have been improved. That committee focused on the latter part of the regulation, which is concerned with authorisations. The authorisations remove marketing of seed from the regulations, but do not apply in the case of potatoes that are used for scientific investigation.
In short, while the rural affairs department is grateful to the committee for identifying that issue, and while we acknowledge that the drafting could have been improved, the point that was raised is of academic interest. Those provisions have a very short life expectancy and are extremely unlikely to see active service. They will be swept away in the coming months by provisions that will be made in the implementation of an anticipated European Community decision. One can expect that those regulations will not come before a court.
The Subordinate Legislation Committee then turned its attention to its concerns about regulations 6 and 7. It appears to have satisfied itself on those concerns, which are no longer live issues.
On regulation 9, which deals with labelling, the committee had concerns about improvements in drafting, which we acknowledge. I mentioned the opportunity to sweep away that part of regulation 3 that caused the committee concern. That opportunity could also be used to lodge amendments, which, we hope, will address and remove the Subordinate Legislation Committee's concerns about regulation 9. Those concerns are about clarification—we hope to provide that additional clarification.
Regulation 20 amends the Plant Health Order 1993. It must be said that there is a divergence of views on this point. The Subordinate Legislation Committee takes the view that regulation 20 is plainly ultra vires. The Executive's position is that there is an overlap of power in regulation 20: it is a seed potato regulation, and the Plant Health Order 1993—which is amended by this provision—deals with plant health.
I invite members to consider whether there is an overlap between seed purity, seed health and plant health.
The nub of the matter is whether it is open to Parliament under a power in the Plant Varieties and Seeds Act 1964—under which these regulations are made—to make a supplemental or incidental amendment to the Plant Health Order 1993. The Executive's view is that it is. That view is based on the fact that the amendment is not substantive. The committee will agree that the provision being changed is a substantive provision—there is no dispute about that. However, the Executive feels that to consider the matter that way is to ask the wrong question. The question that the Executive asks is whether the changes being made to that substantive provision are themselves substantive.
The first change that is being made is to substitute a reference to the new regulations for a reference to the old regulations—the regulations that are being replaced by the new regulations. The second change is that a reference to Scotland should be substituted for the reference in the Plant Health Order 1993 to a
"protected region of Great Britain".
That is to take account of devolution. We are making seed potato regulations on a Scotland-only basis for the first time—that has a knock-on effect on the Plant Health Order 1993. The wording of the power in the 1964 act asks whether a change is necessary or expedient. It was considered necessary or expedient to make this incidental change to update the provision of the 1993 order. In effect, we gave it a new suit of clothes, but the shape underneath those clothes is the same.
The committee is faced with divergent views. I therefore ask members to note my point that the change to the regulation is not substantive, and to note that the issue has a short life expectancy, because consolidation of the Plant Health Order 1993 is being prepared. That task is quite close to the heart of the Subordinate Legislation Committee—its members have taken the opportunity in the past to express their anxiety to see consolidation of that order. That will also be done on a Scottish basis. When that order comes forward, any uncertainty or doubt about the provision will be removed.
I have pointed out that the most serious inconsistencies will be removed very soon in the amendments to regulation 3.
We have two other officials with us. Does either wish to comment at this stage?
Charlie Greenslade (Scottish Executive Rural Affairs Department):
Mr Cassidy has covered the main points. I am here in case any policy issues arise. My colleague, Dr Carnegie, from the Scottish Agricultural Science Agency, is here in case any technical questions about seed potatoes arise. We are happy to answer questions of that nature.
Are there any questions for the officials?
Leaving aside the divergence of opinion on regulation 20, you have said that you accept some of what the Subordinate Legislation Committee said about the errors or problems in the regulations. Why do you think those problems have arisen? Do you feel that the staff of the rural affairs department are pressurised to try to get regulations through in a certain time? Are you trying to do too much with too few resources? Is there some other problem?
The department's object is to produce perfection in the regulations. Despite the flaws, we are still proud of what has been achieved. We regret the flaws, but I can say no more than that.
Is the business of subordinate legislation becoming too complicated? Could the process be made simpler?
That is a question on policy rather than regulations.
It is perhaps a question for the minister.
I am before the committee today as a mere technician.
Although the exercise has been complex, the consolidation of a range of regulations will simplify matters for the user who wants to source a regulation and know how it is to be implemented. More work has been created to produce simplification.
There will be gains in the future.
You said that you hoped to introduce another regulation to cover some changes that were anticipated in European Union regulations. Some of us anticipate that European Union action might not happen as quickly as it could. Do you have any idea of the likely time scale for the revisions?
I cannot predict exactly when revisions will be made. When the provisions were drafted and similar provisions were introduced in England and Wales, it was expected that they would have a very short shelf-life. The European Commission has said that it wishes the Standing Committee on Seeds and Propagating Material for Agriculture, Horticulture and Forestry to discuss the movement of small packages of seed and seed potatoes. That is planned for the autumn. We expect to introduce an amendment regulation to those regulations before the end of the year, or perhaps early next year. Of course, there could be a slip between the Commission planning to do that and carrying it out. If a long delay seemed likely, we would revisit the regulations and take on board the committee's concerns.
The statement in the Subordinate Legislation Committee's report that caused this committee concern was the suggestion that defective drafting could
"constitute a breach of Community obligation to incorporate correctly the provisions of the relevant Directives into domestic law."
Will you comment on that interpretation of the effect of the problems with the drafting?
I do not accept that the regulations are in breach of European Community law—perhaps Dr Murray will think, "He would say that." The Subordinate Legislation Committee is making a point that it has often made about drafting. Part 1 of the regulations is the door through which one comes to the regulations. That door has been given to us by the European Community and we have included it in regulation 3. That door is marked marketing—what is meant by marketing? The Subordinate Legislation Committee has concerns about identifying who is liable and responsible for actions under the regulations. That answer to that lies in marketing. The question is whether someone is marketing, selling, or disposing of seed potatoes within the meaning of European Community law, which is replicated in the domestic provisions.
So you would reject that concern.
What implications would there be for the seed potato industry if the committees decided to annul the regulations?
The regulations are important for Scotland because they regulate our seed potato industry, which is an important part of our agricultural sector. Without regulation of marketing, seed potato growers would not be able to market their produce.
The regulations require seed potatoes that have been in the ground during the summer and which are about to be lifted to undergo a growing-crop inspection. They also require the growing crop to meet the standards and requirements that are laid down in the regulations and which underpin our seed potato classification scheme. Without that, seed potatoes would not receive a certificate of classification and the growers would not be able to apply for the harvested tubers to be inspected and labelled—to receive a plant passport. Growers are unable to sell their seed potatoes legally on the market if they are not labelled officially by the Scottish Executive rural affairs department. The power to do that would be removed should the regulations fall.
The industry, which is valued at about £80 million per annum, would be unable to market any of its produce. That would leave the Scottish potato industry open to importation of substandard seed potatoes and we would have no powers to regulate the market in Scotland. The European Community directive would always underpin our regulations, but that directive would be toothless if the domestic regulations were not implemented. There would be two consequences of not passing the regulations: our growers would not be able to market their produce and Scotland would be open to substandard seed potatoes coming in.
Would not the previous regulations cover for the absence of those regulations?
I am advised by my lawyer that they would not. If the regulations fell, the previous regulations would not necessarily be reinstated.
There are no further questions for the officials. I thank David Cassidy, Charlie Greenslade and Stuart Carnegie for coming along and I invite them to withdraw from the witnesses' chairs while the committee progresses to the next part of its agenda, which is to move the motion to annul. The motion to annul is fairly simple, but I will say a few words before moving it. It was lodged in my name on behalf of the committee.
I welcome the Minister for Rural Affairs, Ross Finnie, who has come to address the motion. It is an important part of the duty of the Rural Affairs Committee to scrutinise statutory instruments. It is a responsibility that we have taken very seriously since the committee's inception. It must be noted that we try, at times, to spend as little time as is reasonably acceptable in dealing with statutory instruments. Occasionally, however, an instrument comes along that has a report attached and we are required to take longer to study it a little more closely. One such instrument was the Seed Potatoes (Scotland) Regulations 2000 (SSI 2000/201), which came with an extensive report from the Subordinate Legislation Committee.
In consulting officials from the rural affairs department during the previous few minutes, the committee addressed quite a few of the points that were included in the Subordinate Legislation Committee's report and we have raised our concerns. Having taken advice from a number of sources, however, two elements of the regulations still give concern to members of the committee.
The first is the suggestion that regulation 20 is ultra vires—something that not all of us would necessarily have understood from our knowledge of Latin, but which we have taken the opportunity to have explained to us. During that explanation, concern was expressed that it might well be the case that regulation 20 is ultra vires.
The second concern was substantially taken up by Dr Elaine Murray—that elements in the regulations may cause concern with regard to the implementation of European regulations. For that reason, and in order to air those points with the minister, it is my duty to move motion S1M-1159 on behalf of the committee.
I move,
That the Rural Affairs Committee recommends that nothing further be done under the Seed Potatoes (Scotland) Regulations 2000 (SSI 2000/201).
Thank you, convener. I hope that Mr Cassidy, Mr Greenslade and I have clarified that we take seriously the role that the Rural Affairs Committee and the Subordinate Legislation Committee play in scrutinising subordinate legislation. We are disappointed about the errors and inconsistencies that appeared in the regulations.
I refer to the two substantive points that still cause members concern. We have given the matters careful thought, and I regret that our robust view is that in regulation 20, there is an overlap between the regulations and the Plant Health Order 1993. The regulations not only deal with the protection of the seed potato, but regulate its health. Nevertheless, that overlap does not lead to an ultra vires situation. The changes that the Subordinate Legislation Committee is calling for are entirely logical and consistent with our aims in legislating.
In making new regulations, we obviously make changes. They might be substantive changes, but they are, nevertheless, logical. In consolidating the order to make the regulations exclusively Scottish, we are changing the regulations to meet those points.
The second question—which Dr Murray raised—was whether the regulations are compliant with EU regulations. I hope that Mr Cassidy has made it clear that regulation 3 is a gateway that has been lifted directly from the European regulation. As far as we are concerned, therefore, the regulation is exactly as it was envisaged by the regulators.
I do not want to dismiss the points that have been raised, but if one considers the issue, the regulation cannot be ultra vires, or we would not be here. We have given the matter careful thought. If we believed that an essential part of the regulation would be ultra vires because of the element of overlap and protection between seed purity and plant health, we would accept the point that was made. However, that is not the case. If there were even a remote possibility that we would not comply with EU regulations, we would have had to say so.
Those explanations have been necessary to answer the points that were made. No matters of such substance remain that mean that the committee has to invoke an annulment that would have the effect—as Mr Greenslade said—of leaving the sector unregulated. That would cause difficulties in relation to the crops that are currently in the ground and would give rise to problems with imports. I hope that the committee, having considered carefully Mr Cassidy's and Mr Greenslade's points, will accept the explanations that have been given. I invite the committee to agree to withdraw its motion to annul.
I am reassured on some points, particularly by what has been said about the short shelf-life of some of these regulations, and the fact that other problems will be addressed this year or next in a forthcoming order.
There is a clear divergence of opinion on regulation 20; the Executive holds the view that the regulation is within scope and the committee that it is ultra vires. That difference in legal advice is a minefield that I do not want to enter. One would think that the regulations could be open to court challenge, which would be the final way to resolve that difference. One would not like to see the Executive embarrassed in the courts. Usually, to save the Executive embarrassment—something that I am always keen to do—I would seek to annul the regulations. However, we are pulled up short by the advice that we have received, from SERAD's lawyers and from the Subordinate Legislation Committee, that if we annul the regulations, the previous regulations that are revoked by this one will remain revoked. That seems curious, but is apparently the legal consequence of the legislation. Therefore, we would end up with no seed potato regulations whatsoever. That is not a desirable situation.
More generally, I am concerned that we spend so much time considering statutory instruments. Very few of them are absolutely new, and most simply annul the previous set of instruments. We will find ourselves over a barrel every time we come up with criticisms of a statutory instrument. There is a general flaw in the procedure, which, I gather from our previous conversations, seems to have existed for about 50 years. However, that is no reason why it should not be addressed in the fulness of time. We should never be in the position where we cannot take a decision simply because something else has been cancelled—that would be invidious.
I agree with Alasdair Morgan's comments on the flaw in the system. There is a clear difference of opinion. The Subordinate Legislation Committee's view is in black and white:
"In the Committee's view there can be no doubt that regulation 20 is ultra vires."
The minister makes the point that his legal advice is that it is not ultra vires. We are now caught in a difficult situation where, if we were to annul the regulations, there would be chaos in the potato industry. We should not be in that position. Some thought needs to be given to ensuring that we have a better time scale to allow the Executive to go back and reconsider regulations. However, in this case, we are left with no option.
If there are no further comments, perhaps the minister would care to reply to the points that have been raised.
I agree with the point that Alasdair Morgan made. It is not helpful for the committee to be put in such a position. I am not a lawyer, so I cannot offer any explanation. As members will know, I am just an accountant.
Not just an accountant.
The only comfort that I can offer Mike Rumbles—I know that it is not great comfort—is that we took it very seriously when the Subordinate Legislation Committee drew to our attention its opinion that the regulation was ultra vires. We have considered the matter carefully and the explanation that Mr Cassidy gave is a reflection of that further consideration. That does not narrow the gap, but I offer that as an explanation of where I am coming from.
On behalf of the committee, I will withdraw the motion to annul the regulations. During the discussion it has become clear that, in the Executive's view, annulling the regulations would cause complications. I hope that by going through this process we have highlighted the concerns of both the Rural Affairs Committee and the Subordinate Legislation Committee about the procedures for such instruments. Perhaps such issues could be addressed when statutory instruments are prepared in future. I thank the minister and his officials for attending the committee to defend the regulations.
Does the committee agree to withdraw the motion?
Members indicated agreement.
As lawyers say on such occasions, I am obliged.
The next item on the agenda is the Sea Fisheries (Shellfish) Amendment (Scotland) Bill. We indicated that consideration of that item was not likely to take place before 2.45 pm, and not everyone who is likely to be involved in the discussion is present. Therefore, I propose a brief adjournment, during which we will assemble the relevant people. We shall then progress to item 2 on the agenda.
Meeting adjourned.
On resuming—