Official Report 683KB pdf
Our second item of business is consideration of two supplementary legislative consent memorandums on the Product Regulation and Metrology Bill. I am pleased to welcome Richard Lochhead, Minister for Business and Employment, and Dr Pieter van de Graaf, who is head of international trade flows and regulations at the Scottish Government. I invite the minister to make a brief statement on the Scottish Government’s position. I will then open it up to members’ questions.
Thank you, convener, and good morning to the committee. It is good to be here in the James Clerk Maxwell committee room, given that, after this, I am speaking at a joint event held by the Royal Society and the Royal Society of Edinburgh—I will mention that I was in this room this morning.
Thank you for giving me the opportunity to update you on our position on the Product Regulation and Metrology Bill. As I outlined to you all last December, it is primarily a framework bill that will provide powers to the United Kingdom secretary of state to regulate products in a range of sectors. The Scottish Government was previously unable to recommend that the Scottish Parliament give its consent to provisions in the bill being introduced. Our primary concern at that time was the proposal to grant broad powers to UK ministers to regulate products in certain devolved areas without the oversight of the Scottish ministers or the Scottish Parliament.
In March 2025, a supplementary legislative consent memorandum was lodged. That followed a Government amendment in the House of Lords that extended the scope of the powers. As the amendment did not address the Scottish Government’s fundamental concerns with the bill, our recommendation at that time remained unchanged. My officials and I continued to engage with the UK Government to secure changes to the bill that would allow us to change the recommendation.
As a result of our engagement, I am pleased to say that the UK Government has now introduced a consent mechanism to the bill. That amendment means that regulations made under the powers in the bill cannot materially change devolved law without the prior consent of the Scottish ministers. Of course, I would have liked the UK Government to have gone further, for example by granting concurrent powers to the Scottish ministers or by removing devolved product categories from the scope of the bill. However, it remains the case that the amendment removed our primary concern and, as such, represents a significant improvement on the bill as introduced. The amendment allowed us to lodge a second supplementary LCM on 29 May, which recommended that the Scottish Parliament provides consent to the bill.
The UK’s product regulatory framework is largely inherited from the European Union, and it is mainly assimilated law, which was formerly known as retained EU law. As a result, the Scottish Government expects that, subject to the agreement of parliamentary authorities, statutory instruments made by UK ministers under the bill would fall in the scope of the agreed SI protocol on scrutiny by the Scottish Parliament. That means that the Scottish Parliament will have important oversight of the Scottish ministers’ consent decisions under the mechanism. The committee might be interested to note that both the Welsh Senedd and the Northern Ireland Assembly have consented to the bill.
Thank you again for inviting me. I look forward to any questions that you may have.
Thank you very much for that, minister. I will open it up to questions, starting with the deputy convener.
Good morning, minister. Thank you for joining us. You referenced the fact that the Scottish Government does not have concurrent powers. That is surely a concern, given the Scottish Government’s focus on the highest standards for products, that being so clearly linked to our provenance and brand. Therefore, why have you accepted that by now agreeing to the LCM?
Thank you for the question. Our preference, because we could not see why the UK Government should object, was to ask for three things: the consent of Scottish ministers for any changes; devolved issues to be excluded from the bill, to reflect the Scotland Act 1998; and the potential for concurrent powers to allow us to take decisions under the legislation in Scotland. Of those three, the main one was to get consent given to Scottish ministers for any changes that affected devolution. There is a backstop in the Environment Act 2021 and the Environmental Protection Act 1990 for developing our own standards, which was used, for instance, for the banning of single-use vapes. Our preference would be to have concurrent powers, but we have a backstop in other legislation. As I said before, the other reason is the fact that the main thing for us was to get consent for Scottish ministers.
What consideration have you given to the potential for divergence from EU regulation by the UK Government against a principled approach and agreement of this Parliament, wherever possible, to align? Have you considered practical examples of where that might occur?
As the committee will be aware, the Scottish Government’s position is to align our regulations with those of the EU as far as possible. We have made those points to the UK Government, and there have been signs from the UK Government that it might reflect environmental law at EU level in UK domestic law. For instance, I have read that it has said that it will align with EU law on product regulation for radio equipment and related issues. Perhaps the UK Government is moving in the same direction as us, but it has retained the ability not to align, whereas our preference is that we should align with EU law.
What products might be affected is an open question. It just depends where the debate takes us in the future. However, as a principle, for all kinds of reasons, our principal position is that we should align with EU environmental law.
In areas where the UK Government might seek to diverge, do you think that you are covered by now having the requirement that it must seek consent from Scottish ministers?
Yes. The bill that we are discussing today is a framework bill, so, if any secondary legislation were to be introduced by the UK Government, we would have to wait to see what was being addressed by those bits of secondary legislation.
You have led on to my next question. What concerns do you have about the fact that it is a framework bill, given the considerable uncertainty that is engendered by any framework bill?
Framework bills can have their uses, and successive Scottish Parliaments, since 1999, have passed framework bills on all kinds of issues. The reason this UK framework bill is important is the potential impact on devolved matters; with a framework bill, we do not want to have to deal with lots of issues coming to us down the pipeline that might impact on devolution. That is why we are taking seriously the obligation in the primary legislation to seek consent from the Scottish ministers.
Good morning, minister. Following on from the deputy convener’s questions, I want to understand the practical impact of the bill being passed. The context is clearly that, under the United Kingdom Internal Market Act 2020, the UK Government has the overriding objective of ensuring the free flow of products around the UK. You have told us that the consent of Scottish Government ministers would be required for any changes. How does that interact with the UK Government’s ambition to ensure that standards apply on the same basis around the UK?
I will reiterate the Scottish Government’s position on the 2020 act, as you would expect, which is that we are wholly opposed to it, because it interferes with the principles of Scottish devolution. We are still looking for the relatively new UK Government to address Scottish concerns about that. It is the elephant in the room, to a certain extent.
We are opposed to the internal market act, because we could have this legislation that deals with product standards but who knows what would happen in the future if there was a divergence? If we used our own environment or environmental protection legislation—you know the background to this—we would, in theory, potentially have to deal with the threat of the UK Government using the internal market act to override decisions taken by this Parliament. It is difficult to answer on how that will interact in the future, but that is the backdrop that affects a lot of these issues.
I will be more specific. The amendment that you referred to says that the consent of the Scottish ministers would be required. Does that, in effect, give the Scottish ministers a right of veto over regulation changes that would apply to the whole of the UK?
You are saying “apply to the whole of the UK”, but we are asking for devolution to be respected. The purpose of the exercise is that regulations should not automatically apply to the whole of the UK; they should take into account devolved responsibilities. If our consent was sought over changes affecting devolved responsibilities, we would expect our decision to be respected by the UK Government. That is what the law will say.
That would mean that, if the Scottish ministers refused consent and the UK Government respected that, it would apply to product regulation UK-wide.
Only in relation to devolved responsibilities.
Yes, but the purpose of the bill is about having standard regulations across the UK. What I am saying is that, if the Scottish ministers can stop changes in the devolved space, that will not just impact on Scotland. If the ambition is to align product regulation across the UK, that will surely have an impact across the UK.
That is part of the debate, is it not? You could argue that the United Kingdom Internal Market Act 2020 is the legislation that is used to ensure that regulations are adhered to across the whole of the UK, rather than the particular bill that we are discussing today. The 2020 act is so controversial because the purpose and theory of the act is to override devolved responsibilities, whereas, here, we are talking about a particular bit of legislation on product regulation.
I have one more question about scrutiny. Mechanisms in the bill for the scrutiny of decisions taken by UK ministers are, of course, a matter for the UK Parliament. How will decisions that will be made by the Scottish ministers—for example to grant or withhold consent—be scrutinised?
Apologies—I am not quite sure that I understand your question.
For example, you are saying that the Scottish ministers will have the power to withhold consent. How will such decisions be subject to scrutiny?
The Scottish ministers will have to look at each case on its merits and decide whether they want to give consent. As a Government, we would look at an issue in detail, as we do with any issue that comes from the UK Government that affects Scotland. We would then write to the Parliament under the protocol, because the provisions in the bill relate largely to retained EU law that is being taken forward through the bill, and that is the agreed protocol for this kind of legislation. We would write to the Parliament, explain the Scottish Government’s view as to whether or not we recommended giving consent and the Parliament would have the opportunity to respond to that. It would be the usual process for scrutiny.
09:15
I have two questions that are largely about exploring the same theme slightly more. If I understand correctly, the intention of the bill is to allow the UK to align more closely with the EU. Is that written into the bill or is that just how the current UK Government has said that it intends to use the bill? Could a different UK Government use it to diverge from the EU?
My understanding is that the UK retains the right to diverge from the EU, but that it has indicated that it would want to align with the EU on environmental law and in some other cases—I cited one example earlier. I guess that it will treat matters on a case-by-case basis.
Following up on what my colleagues have asked, it seems that cumulatively, between this bill and the UK Internal Market Act 2020, there is a significant hampering of devolution in Scotland. Instead of having legislation that allows Scotland to actively diverge on areas of environmental protection, packaging and so on, in order to protect our environment and to implement recycling schemes, we are reduced to saying whether it is okay for the UK Government to impose UK-wide legislation on us. It does not sound like we are able to actively diverge on those matters any more.
I think that you are right to have that concern. As I said when I appeared before the committee last December, we were puzzled as to why we were getting resistance to respecting the devolution settlements. That is very unfortunate. What is the controversy over ensuring that the list of topics excluded under the bill reflects the Scotland Act 1998? Of course, the UK Government was not willing to accept that. As I said before, we asked for two or three things. We got the key one, which is what we are talking about: the obligation on the UK Government to seek consent from the Scottish ministers on anything that affects devolution. However, the fact that we encounter resistance for what, in our view, should be automatic, is a concern.
It concerns me also that there appears to be a creeping rolling back of devolution. Each piece of legislation, such as this bill, does not seem so bad by itself, but the accumulation means that the powers of the Scottish Parliament to diverge and to put in place our own legislation to protect Scotland’s environment are absolutely being restricted. I share your frustrations on this. I would like to feed back to the Scottish Government that I certainly support it pushing back harder on protecting Scottish devolution. The direction of travel is very worrying to me.
I agree with your concerns. I can only assure the committee that there are wider conversations taking place between the Scottish Government and the UK Government about a lot of the issues.
I will ask the daft laddie question. We have had LCMs on the bill in front of us a number of times and I think that we are into the realms of some very technical aspects of both legislation and intergovernmental relations. Could you outline what precisely the bill will do and what the Government is concerned that it will not be able to do, with some examples? I understand that metrology is essentially about the regulation particularly of measures and metrics around product standards. Could you explain to me in broad terms, so that we can recap and be clear about what we are talking about, what that is and give some examples of the Scottish Government’s concerns?
First, the motivation for the bill, as explained to Scottish Government stakeholders, is to modernise the regulation of products as the world is changing fast around us, different types of products are coming on to the market and there are different issues to take into account. That is absolutely fine and understood. We have no objection to that.
When a UK bill comes forward, however, and it applies to areas that are devolved, it is our job, clearly, to stand up for Scottish devolution and the right of this Parliament to decide on those devolved issues. We had concerns because the bill gave UK ministers the ability to regulate devolved issues without the consent of the Scottish ministers. For instance, fish, fish products and seeds were not on the list of excluded products in the schedule to the bill. There is a schedule to the bill that lists excluded products to which the bill would not apply, and some of those topics are devolved but not all the devolved topics were on that list. That left the UK Government able to regulate products for which the responsibility is in this Parliament.
I understand that in broad terms, but we are talking about a bill that is about regulating how those products are packaged and the information that is presented to consumers or purchasers, because quite often, those sorts of products will be commercial. In an earlier answer, you stated a concern about divergence on that point from EU requirements, and we can see that we would not want to have fundamentally different packaging with different measures that gets in the way of selling products into those markets. If that is true for European markets, is that not also true for wider UK markets?
Are the points that you raised on the concerns about divergence from the EU not equally applicable to divergence from UK standards? Is that not where the balance that the UK Government and the Scottish Government are seeking to address lies? Is there not a common thread between your concerns about EU divergence and perhaps some of the UK Government’s concerns about internal market divergence?
We have a Scottish Parliament and we have Scottish devolution. Following your logic, what is the point of having Scottish devolution and a Scottish Parliament if we want everything across the UK to be the same? Clearly, we have different circumstances at times. I am speaking in very broad terms here, but two thirds of the UK fishing and seafood industry is based in Scotland and responsibility for that lies with this Parliament. If, for instance, we had not got consent—which we now have in the bill; that is what the debate has been about—for the Scottish ministers to be consulted before UK legislation was used to regulate fish and fish products, I suspect that there would be an outcry in Scotland saying that the UK was regulating on a devolved issue that is the responsibility of the Scottish Parliament. You either believe the principles or you do not.
Forgive me, you are slightly putting words in my mouth. Equally, if we had fundamentally different standards for weights, measures and product information from the rest of the UK that made it difficult to sell to the rest of the UK, there would be an outcry among those self-same people. There is a balance to be struck, partly because withdrawing from the EU has meant that there is a broad range of market regulation that now exists at UK level that was previously at European level. More importantly, as much as I believe in devolution, I also believe that we want common market standards and as big a market as possible, including at UK level. All that I am asking is whether there is not a balance to be struck and whether divergence is not a concern regardless of what market you are talking about. Is it not about how those competing interests are balanced?
That may well be so in some cases. Clearly, in a case whereby the UK Government came to us to seek consent on any secondary legislation impacting devolved issues, we would have to look at the merits of that. We do not know what would come in the future because it would be through future secondary legislation at UK level. We cannot just leave an open door, however, because there may be some occasions on which the regulation was not appropriate. The principle that we are trying to adhere to is that we cannot just say, “Even though this is impinging on devolution, maybe it is in our interests to have the same products across the UK.” You have to safeguard against the fact that in the future that may not be in our interests, so we have to make sure that we are consulted. If you were right and the regulations were uncontroversial, we might give consent—who knows?—but the point is that we should have the right not to give consent.
I understand that. Basically, I think that there is a balance to be struck. Given that the bill was essentially inherited from the previous UK Administration—and I think that we are still in a new world in terms of understanding market regulation in a post-EU context—has the Scottish Government made an approach to the Cabinet Office seeking a broader set of principles and understandings, so that devolution is front-loaded into its thinking? It appears that we have found ourselves in the position of having to think about devolution after legislation has been drafted. If the Scottish Government has such concerns, is it trying to be proactive about finding new approaches to these issues?
Yes. There is a lot of engagement, particularly between Angus Robertson, the cabinet secretary with responsibility for the issues, and the UK Government. I am not directly involved in those discussions but I can assure you that there has been a lot of engagement and contact with the UK Government on all those issues.
Have you formalised that in any way, by trying to seek a more systematic approach?
Yes, there is a lot of work going on with the new UK Government. In particular, we were told that it has an aspiration to reset the relationship between the UK Government and devolution to the Scottish Parliament. Clearly, we do not think that that has quite been delivered, but Angus Robertson and my colleagues in the Cabinet are taking a very close interest and there is lots of engagement. You may wish to write to or contact Angus Robertson about that and get more details.
As there are no more questions, I thank the minister and Dr van de Graaf for joining us. That brings the evidence session to an end and I will briefly suspend the meeting to allow for a changeover of witnesses.
09:25 Meeting suspended.