Children and Families Bill
We move on to agenda item 2, which is consideration of a legislative consent memorandum from the Scottish Government in relation to the UK Children and Families Bill.
In their papers, members will find the Scottish Government memorandum, a draft motion and an explanation of the LCM procedure. This morning, we have an opportunity to question the Minister for Public Health on the LCM before deciding whether we wish to recommend to the Parliament that it be approved.
I welcome Michael Matheson, the Minister for Public Health; Kenneth Htet-Khin, who is the senior principal legal officer in the Scottish Government—it is good to have him here; and Siobhan Mackay, tobacco control adviser in the public health division.
I invite the minister to make an opening statement.
Thank you, convener.
I welcome the opportunity to discuss the draft legislative consent motion on the regulation of tobacco retail packaging. It relates to an amendment by the UK Government on 16 December to the UK Children and Families Bill. The amendment, which extends to Scotland, provides for powers to make regulations on tobacco retail packaging to reduce the risk of harm and promote health. The Children and Families Bill will return to the House of Commons early in February 2014.
Members will be aware that the amendment was laid with very little notice, given the significance of the issue. That means that the Scottish Government and the Scottish Parliament have had little time to consider the detail of the proposals. I wrote to the UK Parliamentary Under Secretary of State for Public Health, Jane Ellison, to make clear my frustration at that. However, it is an important public health matter to which the Scottish Government is committed, and the proposals will make a real impact on Scotland’s health.
Scotland is rightly recognised as a world leader on tobacco control. Our latest strategy, “Tobacco Control Strategy—Creating a Tobacco-Free Generation”, which was published last year, set out our bold vision of achieving a tobacco-free Scotland by 2034.
A key measure contained in the strategy was the introduction of standardised packaging for tobacco products. That followed a joint UK-wide consultation on tobacco packaging in 2012. I gave careful consideration to the consultation responses and all the relevant evidence on standardised packaging. I am clear that standardised packaging of tobacco products would reduce their attractiveness, increase the effectiveness of health warnings and remove design techniques that may mislead consumers about the harmfulness of the products. In particular, evidence has shown the measure to be most effective among young people.
Our tobacco strategy set out that we would await the decisions of the UK Government and the other devolved Administrations before setting out a way forward on standardised packaging for tobacco. Following a disappointing announcement from the UK Government that it would not proceed with standardised packaging but would instead await further evidence before deciding on legislation, our programme for Government set out our intention to introduce a bill on tobacco packaging in 2014-15.
Since then, the UK Government has changed its position and has decided to introduce enabling powers to regulate tobacco retail packaging, which once again opens up the potential for us to work with the UK Government on this important matter. I welcome the fact that the UK Government has followed Scotland’s lead on it.
There is merit in the Scottish Government working actively with the UK Government to deliver regulations that could come into force at the same time. Because the measure concerns the protection of public health, it is a matter of devolved competence and the legislative consent of the Scottish Parliament is required for the UK secretary of state to make regulations on tobacco retail packaging in Scotland.
The UK Government’s decision to make regulations will be subject to a further review of the evidence, which is due to report in March. I have been clear that the UK Government must work closely with the Scottish Government in developing regulations. That is reflected in the UK Government amendment and the high degree of official co-operation that has been put in place. Should the UK Government decide not to proceed with regulations or to delay or water down proposals, the Scottish Government would, of course, proceed with legislation through the Scottish Parliament.
I am hopeful that, in its latest review of the evidence, the UK Government will agree that there is strong evidence to show that regulating tobacco retail packaging will help to protect the health of future generations of young people from the harms of tobacco use.
I am happy to respond to any questions.
Thank you, minister, for that opening statement. Are there any questions from committee members?
I ask for clarity on the position, minister. You said in your opening statement that, if the UK Government does not use the powers that the LCM will give it, you will still be able to legislate separately. Does that mean that you could use the powers in the Children and Families Bill to introduce subordinate legislation, or would you need to introduce primary legislation in Scotland?
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I hope that, after the UK Government has conducted its review of evidence and reported in March, it will be content that there is enough evidence to support the introduction of standardised packaging. Should the UK Government choose not to proceed with the introduction of regulations in March, or should it seek to water them down or vary them in a way that we do not believe would be beneficial in trying to achieve the public health benefit that we believe can come from this measure, we will require to introduce our own legislation in the Scottish Parliament.
I have arranged for our officials to continue to undertake the work that is necessary to set up the consultation that would be necessary before a bill. Should there be any change when the UK review is reported on in March, we will be able to respond to it if we need our own legislation.
I have a final question on the process. The UK bill will obviously enable secondary legislation. When the secondary legislation comes to the Westminster Parliament, will another LCM come to the Parliament to be reviewed?
Given the tight timescale on the issue, which emerged just before the Christmas recess, we needed to act quickly to respond to the UK Government’s position. I put it to the UK Government that it will be helpful if the regulations that will apply in Scotland come before the Scottish Parliament so that it has the opportunity to scrutinise them. It would be helpful if we could come to an agreement that will allow us to do that while using the UK bill to achieve the introduction of the regulations. I am still waiting for a response from the UK Government on that.
It might be possible, but there are limits on the timeframe in the House of Commons, with the bill being in the House of Lords and reported on at the end of January before going back to the House of Commons. The timeframe is compressed, so another LCM might not be possible. I have put my preferred position to the UK Government, but we might not be in a position to bring the regulations to the Scottish Parliament.
I can give you the reassurance that the amendments are drafted in such a way that the Scottish Government has to be fully involved in the drafting of the regulations.
I presume that you are concerned that the legislation might be watered down from the Scottish Government’s expectation. What discussions about that concern have you had with UK ministers?
Following the joint consultation on standardised packaging, which ran from April to August, and given the evidence base that accompanied that consultation and the responses that we received, we were convinced that there is a strong case for moving forward with standardised packaging. I was very much of the view that the UK Government would also arrive at that view but, for its own reasons, the UK Government said that that was not the case. That is why we decided to implement the policy ourselves.
Given the limited time that we have had since the UK Government indicated the possible amendments, I want to be assured that, once it has completed this further review, which it feels is necessary, we will get regulations that are as strong as possible on the introduction of standardised packaging. However, I have made it clear to the UK Government that we reserve our right to act so that, if we think that the UK regulations that are eventually made are not sufficiently strong, we will seek to introduce our own legislation.
What gives you that precise concern? What advice have you had from your officials that show that you should be concerned? You used a very pejorative phrase when you said that your proposals might be “watered down”. Can you give me two or three examples of what gives you concern?
I will give you the practical example of a policy that we pursued during the work on the Tobacco and Primary Medical Services (Scotland) Act 2010: the introduction of the ban on displaying tobacco in shops.
We moved forward on that policy initially, and the UK Government then chose to follow our approach by having a display ban. The way in which the display ban was introduced in Scotland was different from that in the rest of the UK. For example, the door sizes that are allowed are different, so people can see tobacco more readily in other parts of the UK than they can here in Scotland. We took that approach in Scotland because we thought that making the door openings larger would compromise the policy intentions of the legislation. The UK Government chose to take a different approach because it thought that our approach was too restrictive and it wanted to lessen the impact that the change would have on retailers.
I offer that as a practical example of a difference of approach that we have already taken on a specific issue. We have to wait to see what is in the draft regulations, to see whether they match our view sufficiently. For example, we want to ensure that there is nothing about companies being able to have something in the tobacco packets that can be used for promotion work, or any compromise on packaging around the tobacco that comes into the shop, such as packaging for multipack deals.
We have previously taken different approaches on tobacco control matters. Given that history, it is only right that we should reserve our position on whether we choose to take a different approach until we have the draft regulations.
I would fully expect the Scottish Government to wait and see what comes through the process. I assume that the phrase “watered down” was used simply for emphasis.
Yes.
I presume that you are asking the committee to support the legislative consent motion today because the principle is that we will get to the Scottish Government’s objective far quicker by doing so than we could on our own. At the recent session with the cabinet secretary, he said that the timeframe that we have been working to was up to 18 months. If we compare our 18 months with what the motion offers, the Scottish Government and many of us round the table believe that there is strong evidence for pursuing the motion. How will doing so affect the 18-month timeframe? How much sooner will we be able to see the legislation in place if we pursue the course that you are recommending?
The report that the UK Government has requested on a review of evidence is due to be published in March of this year. My view is that we should be in a position to have draft regulations quickly after that, and there will obviously then be a level of consultation with specific stakeholders. There will not be a general consultation, but there will be a specific engagement with the interested parties.
Once the regulations have been agreed, they are notifiable under European technical services regulations, for which there is a three-month standstill. If any European country makes a note of interest in the matter, there could be a six-month standstill.
My view is that we could move forward within this calendar year. The issue will be whether the UK Government agrees with that timeframe. I want it to happen sooner rather than later, and I hope that the UK Government will also be of that view. Aside from the technical aspects, we could be in a position in which the issue is taken forward in this calendar year.
So we could take at least eight months off the current process.
Yes, it could be quicker, pending any external challenges.
Thank you, minister.
I apologise to the committee for being late—I had a family problem to deal with. I am sorry to arrive late, particularly as the committee was considering sport earlier.
My question follows on from the convener’s question, although I may be looking at the issue in a slightly different way. I think that it is a weakness for Governments and political parties not to change their minds. I always think that it is a mistake for people to believe that, because they have made a statement, it is wrong to change their mind, so I welcome the change of heart and I hope that it is real.
I think that there is cross-party consensus in Scotland that what the Scottish Government is proposing—which, by the sound of it, is what the Westminster Government is proposing—is a good thing. What would happen if we went down this route and the Westminster Government changed its mind again? Would that put in jeopardy any action in Scotland? Would we have enough time to legislate on the issue in the current session of Parliament?
We are fully engaged with the UK Government on taking forward the regulations that will be necessary to accompany the bill. The amendments that the UK Government has lodged place a requirement on it to consult us on that process. That work is already starting, even though the bill is still going through the House of Commons.
I have instructed my officials to continue the work that we have been doing to take forward our own legislation in the Scottish Parliament. The next stage is to have a public consultation on a draft bill, and the work continues. If, when we get to March and to the point of looking at the detail of the regulations, we feel that we have to proceed with our own legislation, we will be in a position in which we have continued that work and we will be able to see it through. We will be able to introduce legislation in the timeframe that we have set out in the programme for government. Our timeframe would not be compromised.
Okay. That is good.
I share the minister’s concern about the short timescale for us to discuss the matter. Our current position is that we want to wait and see what the report on the independent review says before we take a final policy position on the issue. At this stage, we would be happy to support the LCM, but we will reserve our policy position until we find out the outcome of the review.
Good morning, minister. Do you have any indication of how much cross-party support there is at Westminster for the measure?
I think that there is cross-party support for it. Members who follow the policy issue might be aware that there was some surprise when the UK Government took the position that it did in August or September of last year, at the end of the consultation, given the nature of the consultation and the evidence that was submitted alongside it.
I think that the timeframe associated with some of the amendments has come about partly because of cross-party support for the measure in the House of Lords, to which the UK Government has had to respond. It has responded to that support by lodging its own amendments. It would be fair to say that there has been a level of cross-party support in the House of Lords that, to some degree, has pushed the agenda on in a way that I do not think that the UK Government anticipated.
Committee members have no further questions. Do you need to make any other remarks, minister?
No.
Therefore, I put the question: does the committee agree to recommend to the Parliament that the legislative consent motion on the UK Children and Families Bill be approved?
Members indicated agreement.
I thank the minister and his team for their attendance and participation.
That concludes the public part of the meeting. As previously agreed, we now move into private session.
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Meeting continued in private until 12:00.