Official Report 183KB pdf
Common Agricultural Policy Schemes (Cross-Compliance) (Scotland) Regulations 2004 (SSI 2004/518)
I call the meeting to order and welcome members of the public—although I am not sure that we have any this morning—members of the press, colleagues and the Minister for Environment and Rural Development and his officials.
Good morning. As the convener has indicated, the new system of farm support started just over a week ago. The new system gives us an opportunity to develop a more competitive and sustainable agricultural industry in Scotland in line with the agricultural strategy. Implementing the new system has been and is a substantial task. The paper that we sent to you before Christmas on implementing the CAP reforms in Scotland set that out and showed you the process for clarifying and creating the new system.
I wish to ask you about wetlands. We received a letter from you saying that they were now to be included in the register of protected areas. While the Water Environment and Water Services (Scotland) Bill was being considered, we discussed how we might help farmers to let their land revert to wetland in cases where it had been reclaimed and used for grazing. As I was driving down to Edinburgh on Monday, looking at the flooding by the Tay, I wondered whether we ought to be thinking about this more. Is there anything in the cross-compliance regulations to encourage farmers to convert their land to wetland or let their land revert to wetland where it had been wetland historically?
There are two elements to that. I will deal with the first, and Roy McLachlan will elaborate on the second. You will be aware that the legislation that we passed nearly two years ago, the Water Environment and Water Services (Scotland) Act 2003, transposed the water framework directive into Scots law. Having got that legislative base, we are still developing a number of areas. There is the whole question of river basin management and flood plain management, if we take wetlands in their widest sense. We are still working towards the implementation of that.
Under the cross-compliance regulations, farmers may allow land to revert for environmental benefit, provided that they notify us in advance that they are doing so. The one caveat is that the land has to be able to be returned to agriculture in future, if that is the desired policy at the time. In addition, and outwith the cross-compliance regulations, we have agri-environment schemes—notably the rural stewardship scheme—in which farmers receive an annual payment per hectare for allowing lands to revert to being wetlands.
So encouragement comes from the agri-environment schemes rather than from the cross-compliance regulations. The regulations seem to be neutral—people can do things if they want to, but there is no encouragement.
There is, because farmers will not receive their single farm payment if they do not comply. That seems pretty fundamental.
No, because they would get their payment if they had a meadow beside a river and kept it as grazing land.
No, I really have to emphasise this point. The inspection regime will ensure that people meet all the requirements of cross-compliance. Meeting those requirements is the fundamental precondition for receiving the single farm payment. It will not be good enough simply to say, "I've got my farm and this is the way I've always kept it." People will have to meet all the cross-compliance requirements that are set out in the regulations before the committee.
I understand that. However, the grazing lands next to the River Tay are farmed not as wetlands but as ordinary fields. Perhaps it would be better environmentally if those lands were to become wetlands, but the regulations do not encourage that.
All right—but one would love every measure to do everything. As Roy McLachlan has explained, we can assist through the agri-environment programmes, if not specifically through the regulations.
That is what I wanted to have you clarify.
Environmental gain through the creation of wetland grazing areas is covered in the advisory guidelines as an example of good practice within the overall cross-compliance measures. The guidelines are therefore not simply neutral; they are more positive.
Thank you. That is what I wanted to know.
I think that we have teased out the answer to that question.
I want to start by saying to the minister that, having read through the regulations, I find nothing that I would not consider to be good agricultural practice. It is therefore reasonable to expect the farming community to pursue the measures. The regulations will alleviate the fears that some people had—that the conditions would be so onerous as to make farming practice difficult.
We certainly hope not but, before elaborating, I want to say that it is always good to have the warm and full support of a dairy farmer for any agricultural measures.
I assume from that answer that there will be a degree of flexibility in cases in which a farmer has difficulty in conforming to the regulations. I assume that in such cases the first course of action would not be to remove the entitlement to support, but to retain the entitlement and give the farmer the facility to comply subsequently.
The difficulty with all regulations, not just agricultural ones, is that there is always a subjective element. We have gone to some lengths to train and prepare our agricultural staff and we will continue to do so to try to ensure that we apply the regulations uniformly across the piece, which we are conscious is required. We do not want to be accused of using subjective judgment in the application of the regulations, although there will inevitably be an element of that.
My next question is on a slightly different tack, but it is still on the subject of enforcement and policing. Since we joined the European Union and became involved with the common agricultural policy, accusations have been made periodically that regulations have been enforced more strictly and with more impact in the United Kingdom than they have been in other European countries. Those accusations were sometimes true and sometimes not. How can we ensure that the present regulations will not be imposed in Scotland in a way that will impose an economic disadvantage on farmers in comparison to their competitors in other European countries?
As you say, there is an anecdotal perception that we have applied the agricultural subsidy regime more stringently than other countries have. You will recall that, in 2000, we set up a little group of people from the agriculture sector to investigate and examine the way in which we applied the regime but, much to the group's astonishment, it had to conclude that we were not over-egging the regulations.
Will the so-called level playing field continue to be monitored on a Europe-wide basis?
We will continue to ensure that we do so but, as I say, we have gone to great lengths internally to ensure that the regime is not disruptive, particularly given that inspection continues to be a key element in the enforcement of the regime. We intend to co-ordinate the requirements for inspection in a way that will not lead to multiple farm visits, which are the most disruptive aspect of the regime for the economic progress of individual farms.
I welcome the regulations, but I have a question about monitoring and review. The regulations will establish a baseline from which we can, I hope, go on to improve the condition of our agricultural environment over time. On some aspects, particularly soils, we have a long way to go to meet best practice and to show substantial improvement. I want to quiz the minister a bit more on that. How will the Executive review the conditions and monitor them over time? How might we go beyond what is proposed and set more stringent standards as conditions improve over the years and decades ahead?
Mark Ruskell's question contains two separate elements, which I want to separate out into what might loosely be called issues concerning the management of the land—such as the different ways in which we monitor things such as soil condition and quality across the piece—and the way in which those issues interface with the regulations that are before us today. We must remember that it is not entirely at our hand to change the level and range of the standards that apply under the common agricultural policy instrument. On the other hand, that does not prevent the Scottish Executive from having a general land environment policy or from seeking to use other instruments to achieve that policy. The issue is how we mesh those two things together.
As well as the need for equity in the application of the directive across Europe, a consideration is that setting the threshold too high could ultimately mean that we suffer disallowance if we fail to meet the standard that has been set. As the money is European money, we are required to have discussions with European auditors. They have been surprised at the standards that we have set on good agricultural and environmental condition. They felt that we have set ourselves a challenging task. Such issues also need to be taken into account.
We will stop at that point because we are experiencing some technical difficulties. As members may have noticed, the microphones have not always switched on for the correct speaker. I understand that we need to suspend the meeting for a couple of minutes to reboot the system.
Meeting suspended.
On resuming—
Before we were interrupted, Linda Rosborough had just answered a question that Mark Ruskell had asked. He wants to pursue the topic further.
I hope that you can hear me a bit better now.
There is a requirement to assess the impact of the system in the new framework for the single farm payment scheme. In the past, that was not normal practice for pillar 1 schemes. That requirement will be replicated in other European countries, and the impact of the scheme will be measured in that way.
How will that monitoring be effected in Scotland?
Our analysts will work out a programme of monitoring but they have not started doing that yet.
Will that feed into an eventual review?
We are required by Europe to analyse the impact of the programme that we are implementing, which will then feed into European consideration of the impact of the programme.
Is there a timescale for that?
No.
Clearly the requirement to keep land in "good agricultural and environmental condition" is meant to ensure compliance with various European directives. Does it ensure compliance with the water framework directive?
The GAEC requirements do not do that. Perhaps Roy McLachlan can help with that question.
That is not one of the 18 regulations that are within the statutory management requirements for cross-compliance.
Will it become one of the regulations that will ensure compliance?
It is more likely that there will be regulations to take further the water framework directive. Among other things, we are working on what other regulations are required. We have the framework, because we have passed the 2003 act and we have done a lot of work with the Scottish Environment Protection Agency and others to analyse river basins and get a better idea of the base level, catchments and characteristics. You will be familiar with all of that. The next element of our work will be to decide whether we need powers to ensure that the landowners and managers who are within those catchments are doing what is required to meet and raise the standard.
At some point, we will get feedback on where we fit with the rest of Europe in relation to how the scheme is impacting on the wider environment. That picks up on the point that Alex Johnstone made about whether we are going too far and on Mark Ruskell's point about whether we are going far enough—I am sorry for broadly paraphrasing everybody's views. It will be useful for us to get a sense of the overall achievements that are likely across Europe.
I was interested in the minister's reference to a female being an alien species.
SEERAD is the principal inspector in relation to any regulations that we enact. As I have made clear, we are trying to ensure that there is a single inspection, something that is helped by the fact that fewer schemes are now in operation.
Has there been any analysis of whether farmers will have to do less paperwork for cross-compliance than they had to do for the previous CAP schemes?
On aggregate, it is almost as if there must be less. Not so much on the cereal side perhaps, but on the livestock side, which makes up 48 per cent of Scotland's output and where five or six schemes are being replaced by the single farm payment, it is inevitable that the number of forms that have to be filled out will be reduced. There will be one single farm payment form to complete, and I hope that we will move towards improving our ability to accept such forms online. We will continue to reduce the level of form filling per se and increase the ease by which that can be done. A substantial number of farmers will have far less form filling to do.
I welcome the minister's comments about the Freedom of Information (Scotland) Act 2002 and the money that farms receive as subsidies. In the past, there has been difficulty in accessing that information because we have been told that EU regulations made it impossible to divulge certain information. Has that now changed? At what intervals will we be told about the payments to farms? Can the minister confirm that the subsidies contained in a single farm payment could be more than £1 million and that such a payment may be made to one farm?
Several questions are raised in that. First, the historic position was that, under certain European regulations, information was almost equivalent to some of the information under the Data Protection Act 1998, so we were unable to release it. Secondly, the position has now altered, and we are not inhibited in our ability to implement in full the Freedom of Information (Scotland) Act 2002 in the same way. That said, I caution that, although the 2002 act allows for retrospective inspection, we are not entirely clear on the matter, because of the way in which the regulations are worded—indeed, our lawyers are wrestling with that problem. Although the relevant European regulation has been changed, we are not entirely convinced whether the effect is retrospective. Notwithstanding the fact that the 2002 act has only just been implemented, it is possible to go back in time with an FOI request, and to look into things such as payments. I am prepared to comply with requests about frequency and regularity.
We could debate whether large equals sustainable in the context of our earlier discussion. I was merely trying to emphasise that we are now able to gain access to information that could be misinterpreted by the public. I do not wish to misinterpret the facts about whether someone is receiving the appropriate amount of money. It was wrong of the minister to suggest that that was the inference behind what I said.
I have made it clear that we intend to comply with the Freedom of Information (Scotland) Act 2002. We have not yet come to a view on what is the most appropriate way in which to do that, as we have not been able to discuss the matter as yet with the relevant people. I made it absolutely clear that we will be fully FOI compliant in relation to agricultural subsidies.
Okay. No member is indicating that they want to ask any further questions. We have covered quite a lot of ground. Are members content with the instrument and are they happy to make no recommendation to the Parliament?
Members indicated agreement.
Environmental Information (Scotland) Regulations 2004 (SSI 2004/520)
We move on to consideration of the Environmental Information (Scotland) Regulations 2004. Once the officials have swapped places, we will commence our evidence taking on the instrument. The last couple of questions on information on subsidies under the new FOI regime demonstrated the little bit of crossover between the instruments.
I have with me Andrew Mackie and Barry McCaffrey, who is on the legal side.
I invite members' questions or comments.
I welcome the provision of more environmental information to us. However, an unintended side effect of the regulations might be the release of sensitive environmental information, such as information about the location of protected plant or bird species, which could lead to an increase in wildlife crime. Do the regulations contain provisions that ensure that such information will not be released? It would not be in the public interest for such information to be disclosed.
Many exemptions have been watered down or removed, but if you look carefully, you will find that exemptions still exist to deal with practical situations. We must consider the matter carefully. Although there is a general presumption in favour of disclosure in the regulations, we might also have to consider whether disclosure would be in the public interest. You asked about threatened species. I have carefully read my general notes, but perhaps Barry McCaffrey will guide you to the specific regulations that will help to answer your question.
There are grounds for the refusal of a request for disclosure. For example, regulation 10(5)(g) provides that a request may be refused if disclosure would be likely to prejudice substantially
Information should be withheld only in exceptional cases, but the situation that I described would clearly be one such case.
In a sense, the presumption is in favour of disclosure, and one is then required to make an argument as to whether there is an overriding public interest. If there is a threatened species, common sense would dictate that that would be brought within the mischief of the subparagraph to which Barry McCaffrey just referred.
Absolutely.
That is a helpful clarification, as it would be counterproductive to override one of the objectives of a previous act that we all supported. However, I take the point that the exemptions are crafted in such a way as to avoid information being withheld just because that is convenient. Information should be widely available to the public under the new regulations, and I think that we probably all welcome that.
Members indicated agreement.
Waste (Scotland) Regulations 2005 (Draft)
We have more subordinate legislation on our agenda. We are now considering the draft Waste (Scotland) Regulations 2005. Parliament must approve the draft instrument before it can formally be made, so we have before us a motion, in the name of Ross Finnie, inviting the committee to recommend to the Parliament that the instrument be approved. The minister will move that motion for us.
Barry McCaffrey put his finger on the relevant subparagraph of that previous instrument so quickly that it seemed prudent to retain him. I am also joined by Charles Stewart Roper from the waste side of the Scottish Executive Environment and Rural Affairs Department, who is much more familiar with the detail of the regulations.
First, I apologise that I will have to leave the meeting in a few minutes.
Those are two entirely separate questions. The definitions of waste give rise to interpretation difficulties. In general, if anything that is designated as waste is not changed from being waste by a subsequent process, its next use must comply with the regulations.
We are obliged to use the European definition of waste, which is founded on the question whether something has been disposed of by some agent. The courts ultimately decide the detail of the definition of waste; whether a substance is waste is a judgment for them.
The second issue is slightly different, because it does not depend wholly on the definition of waste. Lord Reed's judgment has several elements to it. Scottish Power's principal case, which was that the residue was less harmful than had been argued by the Executive and SEPA, was not upheld by Lord Reed. He found that the waste that is used in the process as it currently operates was sufficiently hazardous for it not to be given an exemption.
Will you clarify the impact that the amended regulations will have on householders? What will be allowed and what will not be allowed by way of waste disposal within householders' curtilage? How will that be monitored? Will householders be informed about the new regulations?
I presume that the regulations will apply to every householder in Scotland, because you said in your opening remarks that they would firm up the duty on us as individual householders.
That is right, but although householders will not be able to treat, keep or dispose of controlled waste in a manner that is likely to cause pollution, we do not believe that that obligation will necessarily be burdensome.
Householders might burn rubbish at the bottom of their gardens, not realising that they are doing something that is outside the law. There is room for confusion about what people can and cannot do.
You have rightly put your finger on the essential remedy to that problem, which is the dissemination of information from the Executive to local authorities and from them to ordinary householders. There have always been inspection regimes and local environmental officers. We hope that a combination of those regimes and the work to clarify to ordinary householders their obligations will reduce significantly the small number of incidents that give rise to serious environmental damage in communities.
The regulatory impact assessment had three options. You have chosen the second. You rightly rejected the third option, which was a complete revision of the waste regulations, but is there potential to revise the regulations in the future? If so, at what point will that be done?
I always see such potential. I share the general view that Mark Ruskell articulated in his first question on the first instrument that we considered today. When we have regulations we should try to get people to comply with them in the first instance and then assess how effective they are and ask whether we can raise the bar. The major reason for the present regulations is that, although only two industries were not controlled by the previous regime, their impact could, if not regulated, be damaging. We must assess how effective the waste management regime is and, on the basis of that assessment, perhaps seek to raise the bar. I do not disagree with Mark Ruskell that we must constantly try to improve, but we must do so in a way that brings people on side. We can regulate until we are blue in the face, but if we have hostile users, all we will get is people who seek to avoid following the law. We need to establish standards and to demonstrate what improvements have taken place. Assessment is required—we will continue to do that.
My point is not really about raising the bar, but about looking for a win-win situation. The impact assessment states that, in the long run, complete revision of the regulations would reduce costs to businesses. Clearly, if we want businesses to recycle more, reducing costs is a good way forward. The question is about how we move the system forward. The minister has a latent interest in zero waste and, at some point, we will need to consider the regulations in order to reduce costs for businesses and increase our recycling, reuse and reduction. I am interested to hear more about that.
To be honest, I do not have a specific timescale, but we are moving towards a position of constant review. In the past, we tended to pass regulations and say, "That's okay. We've done that; tick the box." The department and I are genuinely concerned about measuring outcomes; we are not just interested in regulation, which was how we worked in the past. Now that we have regulation, we are much more concerned about measuring the outcomes. The further we go down that road, the more we will become aware of the need for further changes to regulations.
Why do the courts, rather than the Scottish Executive or you as a minister, decide what is acceptable for various categories of waste? That is more of a philosophical question. I note that some of the definitions are quite politically charged and, as Charles Stewart Roper outlined earlier, they certainly have financial implications. Do you think that it is correct for the courts to decide what is regarded as waste, rather than the Scottish Executive?
As Barry McCaffrey said earlier, we always try to get a definition that will define the Scottish position and at the same time comply with European regulations, but occasionally we are driven in our interpretation of such a regulation by the need to be quite clear that we keep within its ambit as laid down in the directive.
What is considered to be waste is very much driven by the waste framework directive, which starts off broadly by stating that waste is anything that it is intended will be discarded. For a number of years, the European Court of Justice has had to interpret that case by case and to decide whether something is being discarded as waste. It takes into account a range of circumstances, including the potential of the material to harm the environment. The classic example in the domestic context is Lord Reed's having to grapple with the circumstances in which dried sewage sludge was disposed of at Longannet; in that case, he had to consider all the circumstances. The key factor is whether the matter that is being discarded can harm the environment.
A European issue on which we are trying to take a view—we will continue to try—is the extent to which improved recovery techniques allow us to reconsider criteria for assessing whether material that has properly been defined as waste, but is processed, can be removed from the ambit of the waste regulations. There have been substantial technical improvements with which I am not sure the legislation has caught up. Perversely, if we continue to describe such material as waste and therefore require a licence to use the end product, that might militate against our having more techniques for reuse and recycling. That must be considered at European level.
That is what my question was about. The environment is changing, given the options that might be available. We do not want to discourage technical ways of dealing with waste if they have wider environmental or social benefits. It is difficult to trade those things off, but we have to join the dots between different policies on recycling and waste management rather than have a narrow definition. Such a definition might strictly be correct in relation to what was desired when it was drafted, but we might now have a different view.
Absolutely—my department is pursuing that. I have a simple example that we resolved because there was a slight error in the information. There is a plant in Scotland that burns chicken litter for energy. One of its by-products is residue that is left after the heat treatment, which can be used as a fertiliser. That has been analysed and checked and there is nothing wrong with it, but it falls within the definition that the convener mentioned, so it is necessary—the material having been designated as waste—to find a way out of its being so designated. If that is not done, the fertiliser would continue to be regarded as waste and no one could apply it to the land unless they had a waste licence. In this case, we found a way out, but it is an area of the law that requires examination. I do not want anything to stand in the way of reuse and recycling of materials.
That was helpful. We have had all our questions clarified—
I still have a short question in relation to option 2, which mentions small additional costs for businesses to comply. Will SEPA have any costs that have not been mentioned so far?
From the information that we have, our general view is that the impact of the regulations will be to bring other bodies within their scope and that they will cover minor mineral wastes. We have consulted those bodies and do not think that the regulations will impose a burden on them that they are unable to manage. In some senses, consolidated regulation is helpful to such bodies because it means that they know what is brought within the mischief of the regulations. Having total coverage across the piece will be helpful, but there will be instances in which they will have to implement the regulations. However, we do not think that the regulations will have anything other than a fairly neutral effect.
I have a separate and small question on the previous subject, although I do not necessarily want to take up the committee's time at the moment. Richard Lochhead mentioned paper crumble from recycled paper. Can the minister come back to us in writing about whether an exemption could be extended to that area, or tell us how that would happen? It would be interesting to know that in the context of the minister's answer to the convener's question.
I will be happy to do that.
Motion moved,
That the Environment and Rural Development Committee recommends that the draft Waste (Scotland) Regulations 2005 be approved.—[Ross Finnie.]
Motion agreed to.
I thank the minister and his officials.
Water Environment<br />(Register of Protected Areas) (Scotland) Regulations 2004 (SSI 2004/516)<br />Salmonella in Laying Flocks<br />(Sampling Powers) (Scotland)<br />Regulations 2004 (SSI 2004/536)
The committee has two further instruments that are subject to the negative procedure to consider. The Subordinate Legislation Committee has considered the instruments and an extract of its report has been circulated to members. That committee commented only on the Salmonella in Laying Flocks (Sampling Powers) (Scotland) Regulations 2004.
I marked "Good" in the margin of the letter.
That is as good as it gets. I take it that we have no comments to make to Parliament and that the instrument can go through.
It is daring of any politician, particularly a Conservative politician, to make a comment on salmonella in laying flocks, but I appeal for the sins of the father not to be visited on the son—although in this case, the father is more like a wicked auntie, if you know what I mean.
We know what you mean.
I do not intend to oppose the regulations—I support them—but they raise an issue that has been mentioned to me. I wonder whether we could take it up in writing.
You have agreement from Karen Gillon. It would be useful to clarify those points with ministers. I am conscious that the labelling we now have on eggs lets the consumer decide what kind of eggs to buy according to organic standards, animal welfare standards or whatever, which is great from our perspective. You are not suggesting that we do not pass the instrument?
No.
I would be happy for the committee to write to the minister for clarification. That would be useful. Nobody is concerned about our passing the instrument, but we will get that extra information. Are members content?
Members indicated agreement.
We have clarified that we are content with the instruments and are happy to make no recommendations to Parliament.
Meeting closed at 12:47.