European and External Relations Committee, 24 Jun 2003

Meeting date: Tuesday, June 24, 2003

Official Report 206KB pdf

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Food Supplements and Traditional Herbal Medicines

The next agenda item concerns food supplements and traditional herbal medicines and relates to petition PE584, which was submitted by Douglas Robison. In the first parliamentary session, the previous European and External Relations Committee took up the issue and reported on it. As members know, there are several outstanding issues. Since the start of the second session, we have had a response from the Minister for Health and Community Care. Before we discuss the main issues, I should point out that the Health Committee will discuss the subject tomorrow morning. Shona Robison, who is a member of that committee, has lodged a motion to annul the relevant statutory instrument—the Food Supplements (Scotland) Regulations 2003 (SSI 2003/278). We should bear that in mind in our consideration of the options.

The European and External Relations Committee's third report of 2003 highlighted a number of issues, which I will go over briefly before I invite comments on the minister's response to the report. The report highlighted a number of the petitioners' bones of contention. I hope that all members have had a chance to read the minister's response. It would appear that he has not addressed all the committee's recommendations. Do any members want to comment on the specific issues that were raised?

I am not sure whether you want to hold a general discussion.

Yes—we will begin with a general discussion.

As one of the members who was involved in the production of the report, it would be appropriate for me to point out that Helen Eadie, who has left the committee, undertook much of the work. A great deal of committee time went into producing the report. The briefing paper contains several options; I am not sure whether we want to discuss them at this stage.

A positive aspect of the Executive's response is contained in paragraph 11. It is my understanding that the European Food Safety Authority would have to perform an evaluation before the European Commission could change the list and amend the relevant annex of the food supplements directive. I note from paragraph 11 that the Food Standards Agency has written to the European Food Safety Authority to suggest a meeting between the stakeholders. That could offer a first step in moving the situation forward.

In the previous session, the European and External Relations Committee spent considerable time on the issue. Given that the reporters who undertook the report have left the committee, it might not be appropriate for the new committee to spend much more time on the matter, especially as the Health Committee is dealing with it. The Health and Community Care Committee was unable to do that before dissolution, because it was tied up with the Mental Health (Scotland) Bill. In my view, if the Health Committee can deal with the matter, we should pass on our report and let that committee take the matter further. That said, it is important to note the positive development in paragraph 11, which I hope will result in some action.

I am glad that Irene Oldfather finds the Executive's comments positive; I find them fairly negative, in that the minister seems to give up on expecting any change to be made in the immediate future. It seems that we are being asked to endorse a European directive that acts against the interests of Scottish citizens. The minister will not pursue the matter, because he feels right from the start that he cannot do anything about it. In my view, the directive represents all that is bad about Europe.

Do you have any comments on the recommendations or the minister's response?

No.

As Irene Oldfather said, Helen Eadie and other colleagues did a lot of work on the subject in the Parliament's first session. Although it would be more appropriate for the Health Committee to deal with the health implications, the European aspect is our interest.

The documents that we have received indicate that we are over a barrel. The problem arose quite a long time ago. As I said at our most recent meeting, it is vital to identify such measures very early in the process, so that we can do something about them. I suspect that all members of the committee, and all the constituents who are writing to us, regard the regulations as nuts. They are absurd, unjustified and unjustifiable, and will give rise to difficulties for a number of our citizens. However, we are talking about the implementation of European law and the Scottish Parliament has an obligation to transpose and implement European law. We cannot duck that responsibility at this stage, although we can learn lessons to ensure that a similar situation does not arise again.

If a health case can be made for challenging the proposals, I hope that our colleagues in the Health Committee will pursue it; we should support them in that. Let us learn from this mistake, so that we can flag up such matters much earlier in the future. Having read the documents, I do not think that the Executive or the Parliament can do much at this stage. That is a deplorable state of affairs.

I go along with everything that John Home Robertson says, as he has been involved in consideration of the issue for much longer than I have. It seems that we were aware of the problem a long time ago. I know that our members of the European Parliament have done a lot of work on the subject.

I have some questions, which the clerks might be able to help the convener to answer. What is the time scale for the minister being forced to accept the directive and to transpose it into United Kingdom law? Can we delay implementation for a while or must we accept the directive immediately? John Home Robertson mentioned the health issues. Everything that I have seen suggests that this is a case of assuming that things are bad for people, rather than proving that they are harmful. The Health Committee will be placed in a most peculiar situation. Should we tell the minister that we are disappointed with his response and that he should reconsider the matter and try again? Should we see whether we can delay implementation of the directive?

I understand that, if the regulations are annulled, the two options are either for the UK Government to legislate on Scotland's behalf or for the EU to launch proceedings against the UK, with which Scotland would have to deal. I am not sure that there is a fixed time scale for implementation.

From paragraph 7 of the Executive's response, I understand that the UK Government has already received a derogation to extend the time scale for implementation so that we can do some work on this issue. The committee report recommended that we do a number of positive things to progress the matter. It did not recommend that we simply ignore the directive, because to do so could result in financial penalties being incurred.

Given that the committee is responsible for scrutinising the implementation of EU legislation in Scotland, it would be wrong of us not to implement the directive and to incur financial penalties. The previous committee's report makes that clear. However, the report sought ways of offering flexibility, including on the question of the positive lists. It is a step forward that, as paragraph 11 of the Executive's response indicates, the body that would be required to approve a change has been approached for a meeting with stakeholders. Perhaps the Health Committee could explore that with the petitioners.

Stephen Imrie will comment on the time scale for implementation.

The derogation to which Irene Oldfather referred enables producers of food supplements to continue selling them beyond 2005—until 2009—provided that they have submitted a safety dossier to the relevant European authority. It is not a derogation for extended discussions, but a derogation that relates to continued sale of products that do not appear on the positive lists.

If the Health Committee agrees tomorrow to annul the regulations and the Parliament approves that decision, one of two things may happen—as the convener indicated. First, having noted that the Scottish Executive has failed to transpose the regulations in the time available—they must be implemented by 31 July 2003—the European Commission would be free to begin infraction proceedings. That would not happen immediately, as it takes time to initiate such proceedings.

Secondly, under the Scotland Act 1998, the UK Government can transpose the regulations Great Britain or UK wide, even though this is a devolved competence. I do not know how long that would take. I do not imagine that transposition would be immediate, but because of the possibility of infraction proceedings I do not believe that it would take a long time. I believe that that is why the previous committee put forward the options that are set out in its report. However, it is for former members of the committee to indicate why those options were proposed.

That clarifies matters.

As Irene Oldfather indicated, there seems to be very little room for manoeuvre in this case. Stephen Imrie has explained that if we refuse to implement this European legislation we open ourselves up to possible Commission proceedings for infraction. That might or might not take time. It would be interesting to get the issue into perspective. What could failure to implement the directive cost Scotland? What penalties could be imposed?

I suspect that that question is open ended.

That is the worry.

I think that the answer is probably a lot of money.

I have a valid question that could be considered all along the line. How long will it take France to take action against us on this relatively minor matter? After all, its beef ban did not cost the French very much.

We have to consider the stupidity of the situation. All that manufacturers need to do is to set up an address in the Isle of Man and supply the UK and the rest of Europe through the internet. That would create a greater hazard than if we simply put up a bit of resistance to this silly idea.

Do we have any indication whether other countries will take the same rather reserved view on the directive as far as infractions and so on are concerned?

I have no knowledge of other countries' attitudes, but we can certainly find out that information.

This morning, I made a phone call to check out the situation and discovered that other member states do not seem to have this problem; they seem to be quite willing to implement the directive. In fact, I understand that the UK was the only member state that appeared to be having difficulty with implementation. Perhaps our legal adviser Christine Boch could confirm that.

I have no knowledge about the state of implementation of the directive or about whether the UK is the only member state that is having difficulties. That question can be examined if members so wish.

I will ask the clerk whether there is any information on the level of penalties.

The size of the penalty would be conditional on the European Court of Justice judging that the UK, and in particular Scotland, was in breach of the directive and that nothing had been done to ameliorate the situation. If members are interested, I will happily provide them with information about circumstances in other member states and the levels of fines and penalties for breaching the directive. Although I do not have the exact figures to hand, I know that a case in Greece resulted in relatively substantial fines and penalties in the order of hundreds of thousands or millions of euros.

But it is still a risk.

That is fair comment.

It is clear that the previous committee, in its report, did not call for the Government to ignore the directive; instead, it simply called for changes. I sense that the present committee shares that committee's disappointment with the situation in which we have found ourselves. As part of the committee's remit is to examine lessons that can be learned in influencing EU legislation, we could suggest that this might be an issue for consideration in any inquiry along those lines.

We have a number of options as far as the debate on the motion for annulment at tomorrow's Health Committee is concerned. Shall we reiterate our previous concerns to that committee to ensure that its members are aware of them? I am sure that we could leave on their desks some bullet points that cover all the views of the European and External Relations Committee.

Is that option 2 on the briefing paper?

Yes. The paper contains three options, the second of which is that we write to the minister expressing disappointment at the Executive's response. We will copy that letter to the Health Committee. If members are happy, we could also write to the Executive about our disappointment with the responses and ask it to address many of the issues that have been raised.

As I am new to this matter and do not know a great deal about it, I would be reluctant to go beyond option 1. I do not really feel a sense of disappointment. Although I agree with Phil Gallie that regulations can sometimes be a bit daft—if that is the right word—I also agree with the minister that the response to all such matters in Europe must be a balance and compromise. Being a European is not to say, "We don't like this" and to take the huff; instead, it is to fight one's corner and then accept the collective will of the European Community while at the same time looking after one's national interests. I do not think that we are very good at getting that balance.

Bearing in mind that the directive has been negotiated, it must be implemented and the Health Committee will consider the regulations. I would be unhappy with our going beyond option 1.

In comparing option 1 with option 2, my difficulty lies with the third line of option 2, which states:

"it appears that no effort has been made to pursue directly and make formal contact".

Irene Oldfather highlighted the fact that paragraph 11 of the Executive response details the action that has been taken, so it is not strictly accurate to claim that no effort has been made to pursue the matter directly. Like Gordon Jackson, I favour option 1.

I will let John Home Robertson back in.

As you know, I am always keen to be helpful.

It seems to me that our minister had precious little, if any, room to manoeuvre. It would not be constructive or fair to criticise the Scottish Executive for the position that has been taken on the matter. However, we can convey opposition to what is being done. We could do that through an option 1 plus, by which I mean that we could do what is stated in option 1 and add a sentence that states that we are very unhappy with the way in which this is being done and that everything possible should be done to try to claw it back.

It would be useful to add words to the effect that we would like to see progress being made with the European Food Safety Authority in terms of discussions with stakeholders. The tenor of Helen Eadie's original report was that the committee was sympathetic to the position in which the industry finds itself. It is difficult to find a solution. I hope that some of the solutions that we proposed still have the potential to offer a solution. If we can do anything to encourage that, I would be keen to do it.

Is the committee happy to go along with the comments that were made by John Home Robertson and Irene Oldfather? We could also copy the recommendations from the previous committee's report to the Health Committee for tomorrow morning's debate. I accept that many members are disadvantaged because they were not part of the committee's investigation in the previous session.

Will we express the further reservations that all committee members have stated to the Health Committee for tomorrow?

Yes.

I am content as long as that is reflected.

That will be done in line with John Home Robertson's comments. We will copy the recommendations from the report. The matter will be taken forward by the Health Committee, but we can return to the issue in respect of the lessons that should be learned about influencing European Union legislation. Are members content?

Members indicated agreement.