Health and Sport Committee, 24 Sep 2008

Meeting date: Wednesday, September 24, 2008

Official Report 269KB pdf

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Subordinate Legislation

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Plastic Materials and Articles in Contact with Food (Scotland) Amendment Regulations 2008 (SSI 2008/261)<br />National Health Service (Travelling Expenses and Remission of Charges) (Scotland) Amendment (No 2) Regulations 2008 (SSI 2008/288)

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National Health Service (Optical Charges and Payments) (Scotland) Amendment (No 2) Regulations 2008 (SSI 2008/289)<br />National Health Service (Charges for Overseas Visitors) (Scotland) Amendment Regulations 2008 (SSI 2008/290)

Good morning, everyone, and welcome to the 22nd meeting in 2008 of the Health and Sport Committee. I remind all members—given what happened last week, this advice has particular direction—to ensure that their mobile phones and BlackBerrys are switched off.

Apologies have been received from Rhoda Grant, who has a clash with another committee obligation.

Agenda item 1 is subordinate legislation. There are four negative instruments for consideration.

Scottish statutory instrument 2008/290 exempts victims or possible victims of human trafficking from national health service charges that are normally levied on overseas visitors. The regulations also amend the definition of services that are subject to that and other exemptions. The Subordinate Legislation Committee brought the regulations to our attention on the ground that further information was sought and received from the Scottish Government, with which that committee is satisfied.

SSI 2008/289 amends the National Health Service (Optical Charges and Payments) (Scotland) Regulations 1998 to reflect forthcoming changes to the benefits regime. The regulations were not brought to our attention by the Subordinate Legislation Committee.

SSI 2008/288 amends the National Health Service (Travelling Expenses and Remission of Charges) (Scotland) (No 2) Regulations 2003 to reflect changes in the benefits regime. The regulations were not brought to our attention by the Subordinate Legislation Committee.

SSI 2008/261 provides for the enforcement of European regulations that set transitional migration limits for plasticisers in gaskets in lids that come into contact with food. The regulations also correct errors in the principal regulations. The Subordinate Legislation Committee brought the regulations to the committee's attention on the grounds that there is a doubt about whether parts of the instrument are intra vires, because of the failure to adequately justify their coming into force less than 21 days after the instrument was laid before Parliament; there was a failure to provide the Presiding Officer with such an explanation when the instrument was laid; and there was an apparent failure to provide transitional arrangements for substance reference 74560.

The Subordinate Legislation Committee wrote to the Minister for Parliamentary Business on 17 September to express its serious concern about the handling of the regulations. A copy of the letter is enclosed with members' papers. No comments have been received from members and no motions to annul have been lodged.

Do members wish to make any comments on the regulations? I will hear from members first and then go through the procedural options.

I will probably state the obvious, but I will do so for the record. I am not sure that I have ever seen such strong criticism of an organisation by the Subordinate Legislation Committee. The Food Standards Agency seems to have broken almost every code and rule in the book. A member of the Subordinate Legislation Committee said, "The position is extraordinary." Apparently, officials knew about the errors in April but failed to rectify them by June. There is concern about how the FSA has handled the matter and its failure to answer the Subordinate Legislation Committee's questions. It misapplied and breached the 21-day rule. The convener of the Subordinate Legislation Committee, Jamie Stone, has asked the Minister for Parliamentary Business, Bruce Crawford, for a response by 14 October. The rules have been well set in the years for which the Parliament has been in existence, so I am surprised by how badly the regulations have been managed.

I seek clarification. I agree with Mary Scanlon's comments and the criticisms laid against the FSA. However, I am slightly puzzled as to who actually drafted the instrument and who laid it. It would be rather odd, given the obvious frailties of the FSA, and I would be slightly surprised if—I stress if—it was Government draftsmen who drafted the instrument and therefore the minister who laid it. If they did that, I wonder why. Surely they, too, must have been aware of the difficulties with the FSA.

What option is open to us?

I want members to have their say and put comments on the record before I tell them what the options are.

I was present at the Subordinate Legislation Committee meeting when this issue was raised, as was Dr McKee. As members will note from the papers before us, Jackie Baillie expressed her concern at the meeting about the validity of the instrument if it was progressed further. I note also from the papers that the FSA said that it

"does not consider this error to have a significant effect. There is no substance with Ref. No. 74530 listed in Annex III to the Directive which will minimise the risk of confusion."

The FSA has put its hands up, therefore, and acknowledged that a serious error was made. However, it has said that, although the error was serious because the correct procedure was not followed, it will have no significant impact.

I will clarify for members what our options are. Our reporting deadline for all the instruments is 6 October, which means that SSI 2008/261 could come back to the committee at our next meeting, on 1 October, if members are so minded. Our options are as follows. First, we could press the Government to respond to the Subordinate Legislation Committee's letter in a shorter timescale than that requested by that letter; we could press for a response either in time for our next meeting, or in time to allow for a motion to annul to be lodged for that meeting should members be unhappy with the Government's response—in other words, by this Friday.

Alternatively, we could take evidence from Government officials at our next meeting, although that would in effect commit the committee simply to noting the instrument. If any member were to lodge a motion to annul, a Government minister would come to the meeting for a debate on the motion. As a member of the Scottish Government is entitled, under standing order rule 10.4.2, to debate a motion to annul an instrument, I could not permit a motion without notice at this meeting.

The feeling I get from the committee is that there should be a severe rap on the knuckles rather than a nuclear option.

Members indicated agreement.

Is the committee therefore content for us to press the Government to respond in a shorter timescale than that requested in the Subordinate Legislation Committee's letter? I suggest that it should respond by this Friday. The response could then be circulated to committee members. That would leave our options open. Is that agreed?

Members indicated agreement.

Thank you for your co-operation.