Subordinate Legislation Committee, 16 Sep 2003

Meeting date: Tuesday, September 16, 2003

Official Report 193KB pdf

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Food Standards Agency Scotland (Statutory Instrument Process)

I bring the Subordinate Legislation Committee meeting to order. We have apologies from Murray Tosh, who has had to go to another meeting.

Agenda item 1 is on the Food Standards Agency Scotland's statutory instrument process. We have the pleasure of welcoming Martin Reid, who is assistant director of FSA Scotland, and Isla McLeod, who is from the office of the solicitor to the Scottish Executive. The committee has raised a number of issues with FSA Scotland over the past few weeks and Martin Reid has kindly agreed to talk about them. Martin will make a brief statement first.

I thank the committee for inviting the agency to today's meeting. The Food Standards Agency is a United Kingdom department, but we are conscious of the need to ensure that the requirements of devolution are fully adhered to. Therefore, I welcome the opportunity to reassure committee members that we take our responsibilities seriously and make every effort to meet the standards that the Parliament and its committees are entitled to expect.

It is regrettable to the agency—and to me personally—that the committee felt the need to express dissatisfaction with its dealings with the agency. I hope that we will be able to move matters forward constructively today.

Thank you. I will ask the first question before opening questioning up to members. How have you tried to resolve your difficulties with following a UK timetable as well as following our devolved timetable in Scotland?

The agency has specifically recognised that point, not only in the context of the Scottish Parliament, but with regard to the National Assembly for Wales, the Northern Ireland Assembly and Westminster. We are going through a regulatory review process in which we are setting out a critical path of timetables with which the whole agency needs to comply, to ensure that the various Parliaments' and Assemblies' timetables are adhered to. That is a work in progress.

We in FSA Scotland obviously make every effort to ensure that our colleagues—particularly those in Westminster and Whitehall, who lead on most of the issues with which we deal—are aware of our timetable. That has required an education process: we are aware of devolution impacts and we have tried to ensure that our colleagues elsewhere are educated on those. A series of seminars was held around the FSA that set out the timetables and emphasised the importance of adhering to them and of taking account of the different demands and processes of the different Administrations.

I feel that that message is getting through. I hope that the regulatory review process will conclude the work of the past three years and result in a standard operating procedure that will apply throughout the UK.

Does Isla McLeod want to comment just now?

No, not at this stage.

Please feel free to comment at any point. I open the meeting to members' questions.

I welcome both witnesses. I am sorry if some of our original comments to FSA Scotland were sharp. However, we were grateful for the subsequent tone of many of your responses.

When you said that your Scottish staff are well aware of the need to adhere to timetables, were you suggesting that others in the UK-wide division might not have been as aware or cared as much?

It is not a question of whether other staff care as much, because they certainly do. Awareness is the issue and we are trying to raise awareness around the entire agency. We are different from many other agencies in that we are UK-wide. We have conducted various education exercises to raise awareness about the need to stick to timetables and processes.

The issue is not about whether people care about what is happening in Scotland. We in FSA Scotland are viewed sometimes as a bit of a pain within the agency for constantly making points to our colleagues in the south.

One example of our success in doing that is that we have ensured that Scottish ministers are always properly included when UK lines are being presented for negotiation in Europe. Early experiences indicated that that process was often not well followed. We had to chase up matters to ensure that letters were going out and so on. It became clear that there was insufficient awareness around the agency of the need to do such things. However, that issue has been addressed and letters come up on a regular basis.

We also tend to see draft documents now before they are issued. In all departments there is always the question of ensuring that documents are seen timeously. We see documents timeously now, but it remains an issue. We keep an eye on that situation and ensure that everybody keeps it at the forefront of their minds.

I think that the committee would sympathise with the business of seeing documents.

Absolutely. I think that we are becoming aware, through what Martin Reid said, of his agency's complex and wide remit. An increasing amount of legislation must be coming through in your area, Martin. Is that the case?

Yes. The European Commission issued a white paper on food safety in 1999 or 2000. We expect a raft of legislation to come out of that white paper. A clear example is the continuing work on the consolidation of the hygiene directives, which will take 17 different directives on food and simplify them into three new regulations. We expect those to be adopted at the end of this year. Subsequently, we will have to review an awful lot of existing legislation and replace it with new legislation. Some of the new legislation will be similar to existing legislation, but some will require changes. Certainly, the legislation's presentation will be different from that of current legislation. Therefore, the committee can look forward to receiving much more legislation from the Food Standards Agency over the next year or two.

I accept what you have said about this being a complex area in which there is a lot of European legislation and that the difficulty is not only the bulk, but the complexity of each regulation. However, you mentioned an education process. I presume that you were referring to your trying to educate Westminster about, for instance, the deadlines that must be met in the Scottish Parliament. Devolution and the Scottish Parliament have been in place for four and a half years. How long do you think that it will take those at Westminster to learn about the deadlines?

We are pretty well at the end of the road for the regulatory review process. Once it is in place it should result in a document for people to be aware of. Staff turnover has been a bit of an issue for us in Scotland, but that has not affected the way in which we have dealt with legislation. Neither should that be used by the agency as an excuse for any issues that have arisen in relation to any legislation that has come before the committee.

It is a continuing process. I do not foresee our taking our foot off the gas. In terms of ensuring that the education process continues, we will need to top it up regularly. Our staff have participated in seminars around the agency to ensure that our messages are getting across. Specific workshops are being set up at Westminster at which FSA Scotland staff will give presentations explaining specific Scottish parliamentary processes and some of the—I hesitate to use the word difficulties—intricacies of our working within FSA UK and having a UK board, but also having to be aware of our responsibilities to the Scottish Executive and the Scottish Parliament. We must continually press those kinds of points. The people whom we educated three or four years ago may well have gone by now; therefore, we need to continue the process and ensure that the new staff are equally aware of those issues.

I accept that it is a continuing process and that those who are working at Westminster will not be particularly au fait with the principles of the Scottish Parliament, which would not be top of their agenda. Nonetheless, that education must take place. Can you tell us how many times, on average, the deadlines at Westminster are missed and how that compares with the number of times that they are missed here? I ask that because, at our previous five meetings, almost without exception, the FSA's deadlines for the Scottish Parliament have been missed. That was one of the most obvious issues to arise in the first five meetings, which is why we invited you along today. Are deadlines missed to the same extent at Westminster, or is there a clear difference between the meeting of deadlines there and here?

I cannot answer that off the top of my head, but I am happy to make some inquiries and to find out the ratio of the number of times that the deadlines have been missed at Westminster to the number of times that they have been missed in Scotland over the past few months. Because of the limited resources that are available to FSA Scotland, we are quite dependent on our colleagues at headquarters for the production of the initial drafts of legislation. We suffer a little in the timing of our receiving documentation. However, as I have said, we have tried to address that and we are having some success. I hope that, in future, the number of times that the agency has to request authorisation to breach the 21-day rule will be reduced. I also hope that, when we request that authorisation in future, we will be able to provide clear justification. I fully accept that the fact that we have received drafts late is not a good enough excuse to give the committee. We will try to ensure that that does not happen in the future.

I agree that saying that you received the drafts late is not a good enough reason and I hope that that will be addressed. You say that part of the problem is a lack of resources in Scotland to deal with the legislation, most of which comes from Westminster. If the resources were available in Scotland, would you no longer have the problem?

Any office would benefit from having more resources, provided that those resources were used as efficiently as possible. We deal with a significant amount of legislation for the size of our office—as the committee will be aware through the amount of legislation that comes before it. It is possible that, if more resources were available to us, we would be able to react better to requests for legislation and things might be a little different.

We probably have sufficient resources to deal with the raft of legislation that is currently proposed; however, we must think ahead. We know that consolidation will be required and that various other regulations are emanating from Europe. We will have to examine closely the resources that are available to us and our legal colleagues to ensure that we are adequately resourced to deal with the demands that are placed on us. We have taken a preliminary look at that through our business planning process and we have consulted the office of the solicitor to the Scottish Executive. Our assessment is that we are adequately resourced to deal with our work load; nevertheless, it will require hard work to keep up with future legislation.

You seem to be contradicting yourself. Are you now saying that you are adequately resourced? In your previous answer, you seemed to be saying that the fact that you were not adequately resourced was part of the problem.

As I said, there may be an issue over resources. However, our current assessment is that, looking ahead, we have adequate resources to deal with future demands. The committee will be able to measure whether that assessment is reasonable and we will make every effort to ensure that those kinds of issues are not excuses that we bring to the committee for any failing on our part. I cannot prejudge what will happen further down the road, but that is the conclusion that we draw from what we have done so far in anticipating the weight of legislation that will come our way in the next year or two.

Stewart Maxwell mentioned staff training. In examining the regulations that have come from the agency, we have noted certain on-going drafting issues relating to errors that are appearing fairly constantly, such as appear in the regulations that are before us today on importing various kinds of nuts and the obligations on importers or member states. Will you address that sort of issue as well as others that we are going to mention, which are to do with the explanatory notes and transposition notes? Do you use those issues in the training of your staff, or—as Stewart Maxwell is suggesting—are you not quite at that level yet because you need more resources to incorporate all that?

Some of the issues that the committee has raised have surprised us a little. I am not saying that the committee's conclusions are not correct—we are grateful to the committee for drawing such issues to our attention—however, the difficulty that you are talking about did not appear prevalent a year or so ago and the staff in the agency who deal with the legislation have not changed. I am, therefore, at a loss as to why we would suddenly encounter a problem to do with the preparation of the legislation. Perhaps we can address that later, along with the other points that the committee wants to raise. Isla McLeod might want to talk about some of those.

I am a little puzzled as to why we would encounter problems to do with the quality of the legislation. The staffing situation has not particularly changed: the people who are responsible for preparing the legislation are essentially the same people who were responsible for doing it a year or so ago. If the committee will allow, I will really have to pass on that point. Perhaps I could promise to look into the matter back at the agency and try to identify whether there is an underlying reason why problems might be occurring. Nothing immediately comes to mind, however.

Before we go into further detail, could you answer the question that I asked earlier: if there are recurring issues, do you use them for staff training exercises?

I would say that we would do. We do not have anything factored in to deal with the specific points that the committee has discussed, but the staff have complete accessibility to Scottish Executive training, and we encourage them to take it up. Most of our staff have been through the relevant training. If there is a need to refresh people, we will look into that.

The points that have been raised over the past few months highlight one or two issues that we need to consider. We need to establish whether there is a need to go back and refresh a few people. Some training will have taken place three or four years ago now, and I would have hoped that, in the intervening period, the amount of legislation that we have been dealing with has meant that people have become more familiar with how things should be done. There should be no question of standards slipping because of that increased amount of legislation, but I can consider whether we could build in any specific training points, as you described. First, however, it is a matter of identifying whether there is an underlying reason for what has been occurring.

We will discuss some of the issues further later, but I invite Christine May to raise a point about transposition and explanatory notes.

I wish to focus on the matter of transposition notes in particular. I think that we have commented on the absence of transposition notes in most of our committee meetings this session. We understand that it is common practice to issue them in England and Wales. First, if that is the standard practice elsewhere in the UK, why do you not always provide them? Secondly, why, when the committee has consistently expressed its view that transposition notes should be there for consistency if nothing else, do you not just give us them to keep us quiet?

It is the Executive's policy not to do transposition notes for all instruments routinely. I understand that there is a continuing dialogue between the Executive and the committee about transposition notes, so I do not think that it is for me to give the committee a definitive answer today.

On a personal level, I would say that the prospect of doing transposition notes fills me with horror. In some cases, a piece of legislation can look quite simple. Some directives look quite simple on the face of it. Transposing them, however, can become quite a complex matter. I realise that that probably emphasises Christine May's point that transposition notes are needed, but if they were always required that would have implications for our work load and level of production. There is a legal requirement to produce transposition notes in England, but we have no such requirement here. That is the difference.

Ah, I see. Could I follow up on the matter of explanatory notes—or do you wish to cover that, convener?

You can do so, Christine, but first I would ask Isla McLeod to speak up a little.

I will try to do so.

We have also focused on explanatory notes, which we feel are extremely helpful to those who are using a given instrument. Would it perhaps be a good idea to provide them as a matter of course, even if some of them were simply to say that the Executive did not believe that any further explanation was required?

I am aware of the statutory instruments to which Christine May is alluding. We set out, in the explanatory notes that we do produce for instruments, what the new regulations require of the manufacturers concerned. There is a tension between our guidance, which says that explanatory notes should be brief, and the need to provide enough information for the people using the regulations. We have to be careful about that, because we do not want explanatory notes to become intimidating addenda to instruments.

We have taken on board the committee's previous comments. For subsequent instruments, which we will be making over the next few months, we will be incorporating an explanation setting out, as briefly as possible, what the changes from the previous regulations are—although that is not always the easiest thing to do.

To return to something that Martin Reid said earlier about liaison with colleagues down south and consultation on timetables, do you have direct liaison with the European Commission, and do you get opportunities to emphasise specifically Scottish elements?

As the committee will be aware, the lead on European issues resides with Whitehall. We have a good working arrangement in the agency. If there are particular Scottish issues pertaining to what has emanated from Brussels, we have the opportunity to lead on them. There have been only a limited number of examples of that, but we certainly have every opportunity to feed in Scottish views. If there are particular Scottish points, then there is the opportunity for officials from the FSAS to attend meetings so as to ensure that they are raised. There are mechanisms in place to ensure that Scottish issues are taken into account, either in developing UK lines or at the early stages of negotiations on working documents, and I am quite satisfied that what is currently in place is working.

That is the formal mechanism but, in my experience of working with the European Commission, a lot of preparatory work is done through informal networks. Do you make use of such of those as are available to you?

Yes. We have good contacts with individuals in the Commission in those areas that particularly affect Scotland. I know that it is not everybody's favourite way of communicating, but direct e-mails work quite effectively at an informal level.

That is good. Thank you.

For clarification, could I ask Isla McLeod to summarise the position in relation to transposition notes and explanatory notes? I am sorry—I did not pick up everything that you were saying earlier.

My apologies—I will move my microphone nearer to me.

There is a continuing dialogue between the Executive and the committee in relation to transposition notes. There is a common policy across the Executive, which is not to provide them routinely. I cannot give you a definitive answer on that point today; it is for the Executive to decide on that.

Explanatory notes are particular to the individual instrument that they accompany. We have taken on board the committee's comments that—in relation to the particular instruments that I have in mind—there should perhaps be a little more explanation of the changes from the old to the new regulations. We have provided that in instruments that we have been preparing subsequently.

It is quite difficult, however. There is a tension between providing an informative appendix to an instrument for the person using it and providing too much information. On the instruments that the committee is alluding to, the directives that we are transposing seem to be small and straightforward, with fairly straightforward sets of regulations but, if we try to think of a concise way to set out for the user what those changes are, we find that they are in fact very many and very small. A detailed explanation of the changes between the old and new instruments would end up being quite substantial.

We have taken on board the committee's comments, and we are now including an additional paragraph, setting out the changes between the old and new regulations. However, of necessity, such an explanation has to be limited in what it can actually say.

If an explanatory note has been developed for particular regulations—perhaps the first set of regulations—and there does not necessarily need to be another explanatory note for subsequent sets of regulations, is it possible that at least something from that explanatory note might be included with later regulations? I am trying to think about how we could get a little more help. We can find it difficult to put matters in context and get behind them, particularly when we must consider a large number of instruments in a week. Explanatory notes are very useful.

I hope that we have managed to achieve what we are trying to do in the instruments that will come through over the next few months.

Okay—we shall see.

We shall.

I would like to return to something that Martin Reid said. Martin, you said that you were searching to find out where there might be difficulties—I think that you used words with that meaning—and that you could not understand why we were bringing up issues that were not brought up a year ago.

It is not that I do not understand or accept the issues that the committee has raised with the agency—it is perfectly valid for the committee to raise such issues—but there seems to be have been something of a blip in the agency's record over the past two or three years. We have not picked up particular problems with how the agency has prepared legislation for the committee and I would like to investigate whether there is an underlying reason for such problems occurring now and to identify whether there is a training issue or some other reason behind those problems occurring.

The agency wants to maintain high standards in the quality of legislation that proceeds to the committee and—with respect—I do not want to spend too much time explaining the agency's problems to the committee. I would like to take a little time to investigate whether there is an underlying reason why such things occur and identify whether there is a training need. If there is such a need, we will certainly look to put training in place either through formal training mechanisms via the Scottish Executive or perhaps a specific exercise that we can carry out within the agency.

Will you write back to the committee about what has happened when you have done your investigation?

Of course.

Thank you.

As there are no other questions, I thank Isla McLeod and Martin Reid for coming to the meeting.