Subordinate Legislation
Contaminants in Food (Scotland) Amendment Regulations 2007<br />(SSI 2007/470)<br />Materials and Articles in Contact with Food (Scotland) Regulations 2007 (SSI 2007/471)
Good morning and welcome to the eighth meeting in session 3 of the Health and Sport Committee. I ask everyone in the room to ensure that their mobile phones are turned off, please. Apologies have been received from Michael Matheson and Dr Richard Simpson, who is ill.
We have two instruments to consider under the negative procedure. Scottish statutory instrument 2007/470 will enforce a European Commission regulation that will revise the maximum level of fusarium toxins—I should have practised saying that—in maize and maize products. The Subordinate Legislation Committee has raised no issues in relation to the regulations.
SSI 2007/471 will enforce a European Commission regulation on good manufacturing practice in respect of materials and articles that are intended to come into contact with food, and will implement a directive on materials and articles that are made of regenerated cellulose film and are intended to come into contact with food. The Subordinate Legislation Committee drew our attention to the regulations on the ground that an explanation had been sought from, and provided by, the Scottish Government.
No comments have been received from members and no motions to annul have been lodged.
Do members agree that the committee does not wish to make any recommendations in relation to SSI 2007/470 and SSI 2007/471?
Members indicated agreement.
Natural Mineral Water, Spring Water and Bottled Drinking Water (Scotland) (No 2) Regulations 2007 (SSI 2007/483)
Agenda item 2 is consideration of another instrument that is subject to the negative procedure. The purpose of SSI 2007/483 is to amend the Natural Mineral Water, Spring Water and Bottled Drinking Water (Scotland) Regulations 2007 (SSI 2007/435), which we considered on 31 October. The regulations contained a drafting error.
We had arranged to take evidence from a representative of the Food Standards Agency Scotland, but he has had an accident, unfortunately—I trust that it did not have anything to do with our calling him before us—and he has been taken into hospital. Therefore, I welcome Patrick Layden QC TD from the Scottish Government's legal directorate, who has been given the task of speaking to us. I ask him to speak to the regulations and to then take questions from members.
Patrick Layden (Scottish Government Legal Directorate):
I regret the absence of Sandy McDougall of the Food Standards Agency Scotland. However, the interests of the FSAS and the Scottish Government Legal Directorate in the matter are the same, so I am grateful to the committee for allowing me to represent both organisations.
First, I apologise unreservedly on behalf of the FSAS and the Scottish Government Legal Directorate for the typographical error that caused us to have to replace SSI 2007/435. I will explain how the error was made. The process of drafting this Scottish statutory instrument—which is, in essence, a revocation and re-enactment of previous SSIs—began some time ago, but was delayed last year because the regulations had to be referred to the European Commission under the technical standards and regulations directive. Work resumed this summer. The process involves the FSA in London preparing a draft which is then passed on to FSA Scotland and to my office. We look at such things critically, because everyone is concerned to get such things right. We do not draft our own regulations in Scotland because doing so would not be very user friendly: the people who use the regulations prefer to have the same regime north and south of the border. Therefore, even in cases in which we could do things differently, we try to do things the same. However, we take account of drafting and other alterations that have been made in London and we ask why things are being done in particular ways.
In this case, the draftsperson in England was replaced after the summer, and the new person rearranged some of the material. We took account of that in our next draft, but that was when the typographical error came in—regulation 12 is where the error occurred. I have copies of the regulation with me if committee members would like to see it. A look will make it clear what happened: the word "not" was missed out in regulation 12(1)(b). In spite of the fact that lots of people looked at the regulation here, in Aberdeen and in London, the error was not picked up.
I do not know whether committee members have noticed, as I have, that once you imagine that a word is there, your eye runs over it and you seem to see that it really is there. The point was not noticed before the instrument was laid on 20 September, and it was not noticed in either of the committees of this Parliament that considered the regulations. The point was finally noticed by a stakeholder who looked at a copy of the regulations and said, "What's all this?" As soon as we found out about it, we sent a submission to the minister and presented a new statutory instrument.
The end result was that the new instrument came into force before the old instrument had come into force, so there was never a time when the law was wrong. However, we deeply regret having made the mistake, we deeply regret not having noticed it, and we deeply regret having wasted the committee's time with a replacement instrument. I apologise for that.
There are no questions from committee members, so I thank Patrick Layden. We are all somewhat culpable—certain committees here should perhaps have noticed the mistake along the way. What has happened just shows that it is often the person who has to implement a statutory instrument who notices problems and asks, "How on earth do I do this?"
I thank Mr Layden for coming to explain what happened. We will all, including the Subordinate Legislation Committee, have to pay more attention in the future.
We all will. Thank you very much indeed.
Are committee members agreed that the committee does not wish to make any recommendation in relation to SSI 2007/483?
Members indicated agreement.