Chamber and committees

Thank you, convener. I also welcome Tim Eagle to the committee. I look forward to working with him over the coming period.

Thank you for inviting me to speak about the Free-Range Egg Marketing Standards (Amendment) (Scotland) Regulations 2024. The draft instrument will amend assimilated European Commission regulation 589/2008 on the marketing standards for eggs—the egg marketing standards regulation—with regard to the 16-week derogation period that is allowed in the event of a housing order being implemented.

The egg marketing standards regulation requires boxes of class A eggs to be marked with their farming method. For the farming method “free range”, poultry must have continuous daytime access to open-air runs. At present, the egg marketing standards regulation allows a derogation for eggs to be marketed as free range for only the first 16 weeks of any housing order that is introduced. Following that, the eggs must then be labelled as “barn eggs”. The instrument will remove that 16-week limit.

Last year, the EU changed its legislation to remove the 16-week limit on the derogation period, as we are proposing here, so that eggs could continue to be marketed as free range regardless of how long hens had been housed under temporary housing restrictions. That followed a period of consultation.

Outbreaks of avian flu in recent years have, unfortunately, required housing orders to be put in place in the United Kingdom. In 2021-22, that covered the whole UK and exceeded the 16-week derogation period by six weeks, to a total of 22 weeks. In 2022-23, England, Wales and Northern Ireland put in place a housing order that exceeded the 16-week derogation period by seven weeks, to a total of 23 weeks. Both those instances required a change to the labelling of eggs, from “free range” to “barn”, for the short time after the 16-week derogation period.

As the industry has noted in its response to the consultation, which I will come on to, those changes come at a financial cost. Although the current risk level for avian influenza in poultry is low—it is very low for premises with good biosecurity—it is anticipated that the UK might face outbreaks of the virus in the future. As such, a longer-term approach to the issue is the most practical route to take.

Members will be aware from the committee papers that the UK Government and the Scottish Government consulted on the issue jointly, and the results of that consultation show that removing the 16-week limit on the derogation, which will align with what the EU has done, is the preferred route for the industry. More than 70 per cent of the respondents to the consultation were in favour of the removal of that limit, and the figure among Scottish respondents only was even higher at 84 per cent.

As well as keeping Scottish industry on a level playing field with the EU, the change that we propose in the regulations today is also likely to keep us in line with the rest of the UK. Removing the limit on the derogation period reduces potential costs to businesses that they would otherwise have to bear as a result of having to switch labelling from “free-range eggs” to “barn eggs” following the end of the 16-week derogation period. Eggs that are produced in different parts of Great Britain are often packed in the same facility, so if the legislation were to differ across the nations, there could be increased complexity and costs arising from different labelling requirements at different packing houses, which could lead to possible disruption in the supply chain.

In practical terms, then, this small proposed change allows eggs to be labelled as free range for the full duration of any housing orders that are put in place for the health and welfare of laying hens. I note that the current legislation already allows for a substantial period of 16 weeks.

The draft instrument also makes a minor update to terminology, replacing retained EU terminology with assimilated terminology under the Retained EU Law (Revocation and Reform) Act 2023 and clarifying that the derogation applies to any housing order that is made under assimilated law.

I hope that my remarks have been helpful in setting out the rationale for the instrument, and I am happy to take any questions that members might have.

Our chief veterinary officer is very diligent about all such things. She is constantly tracking what is happening across all sectors—not just what is happening with avian flu.

They were not that I am aware of, but let me take that to its logical conclusion: if I were the guy with the free-range hens, I would not want my birds to be inside for all that time. It would just add costs and give me issues to deal with. If you are a free-range egg producer, you want the doors to be open and the birds to be out as often as they possibly can be.

I cannot honestly give you an answer as to whether the barn-egg guys were concerned about that, but I would not have thought that that was the place where most of the concerns came from. I can certainly write back to you if we find that to be an issue.

Housing orders will be brought in only in the event of an outbreak of avian flu—that is the first thing that we need to get on the record. A 16-week derogation period already exists, so that practice is already happening.

I take on board the concerns that have been expressed; in fact, I was just speaking to Darren Cormack yesterday about how we can ensure that this happens. We cannot legally force supermarkets to do anything, and one of the reasons why is that, if we had a housing order here in Scotland as a result of an outbreak of avian flu somewhere, we could, as I said in my opening remarks, have eggs coming up from England to be sold in Scotland, because packing houses work backwards and forwards across each other. We would then have to have a separate labelling system for Scottish eggs that had been housed, and English or Welsh eggs that had not been housed, and things would become very messy.

As for what we will do for the consumer, we will make it as publicly and widely known as we can that there is a housing order in place, and that for a limited period free-range hens will be housed for health reasons. As soon as the area in question is free of the flu, the guys who run the free-range hens will be opening the doors to let the birds out, because they do not want them inside any longer than anybody else does. The reality is that avian flu is circulating in the country, and we are likely to see other outbreaks, so we want to make it as easy as possible to keep eggs flowing backwards and forwards across the UK.

If a housing order were to be introduced, the Government would absolutely put out the message that there was such an order on free-range hens, because of the threat of avian influenza. I think that everybody is now aware of the problem that we have had over the past number of years with outbreaks of avian influenza—I think that people understand that. We would be very proactive about ensuring that people understand that a housing order has been put in place for that reason and what it would mean for free-range eggs.

We would also ask retailers to ensure that they brought their consumers up to date with what is happening. We cannot force them to do so, but we can certainly encourage them to ensure that they are being as helpful as they can be in order to allow people to buy as honestly as they can.

My instinct was to say that, unfortunately, I did not think that we could give you an answer to that—and, indeed, that is exactly what the answer is. We have no certainty about when or how a housing order will have to be brought in, because we do not know when—or whether—the disease will resurface. You know as well as I do that these things happen, and can happen quite suddenly. At the moment, we do not have any indications in that respect. This is just about putting in place a safeguard that will give us the mechanisms to deal with it, when and if it does happen.

If a housing order is introduced, there will, in the first instance, be a full public announcement by the Scottish chief veterinary officer. That is the first thing that will happen, and it will be fully in the public domain and communicated in a variety of ways—for example, through a signed declaration added to Scottish Government social media messaging, infographics to be issued by the Scottish Government communications and ministerial support directorate and the Animal and Plant Health Agency comms team on Twitter/X and Facebook, and emails from the Scottish Government’s disease control branch to Scottish stakeholders. The Scottish Government would also be looking to issue further notices to inform the public and media about the housing order.

As for supermarkets, there is, as I have said, no legal requirement on retailers to provide a sign saying that their free-range eggs are from hens that are currently being housed. However, they must be mindful of prohibitions in the Food Safety Act 1990 on the selling or offering for sale of food,

“the presentation of which is likely to mislead as to the nature or substance or quality of the food”

and publishing any

“advertisement ... likely to mislead as to the nature, substance or quality of the food”.

Retailers must adhere to those requirements.

I would imagine that, from a supermarket’s point of view, it would want to ensure that it put up such a notice. I distinctly remember seeing, when there was a housing order in place, a notice on a shelf in Tesco in Perth, saying that there was a housing order due to avian flu and that the eggs came from free-range hens that were currently being housed. Tesco or Waitrose—or whoever it might be—will take their own steps to protect their reputation, because if they do not inform their consumers, they could be accused of being misleading.

As far as the Government is concerned, we will do everything that we can to inform people. Supermarkets have their own requirements, but they also have their own reputations to protect. This is the most logical way for us to proceed. After all, we cannot say how long a housing order will last: it could last 16 weeks, 20 weeks or 28 weeks and we will not know until the outbreak is contained. This, therefore, is a logical and practical way of trying to get over the problem of our hitting the 16-week mark then having to change everything.

The vast majority of respondents and producers were in favour of the derogation, but a small minority of respondents thought that the proposed change could be misleading and confusing for the general public. In order to mitigate that we are, as has been published in the notes to the consultation, ensuring that, if housing orders are introduced for free-range hens, notices will be issued to inform the public and the media. We will also encourage the industry and retailers to communicate that to their customers.

I think that the concern that was expressed was more about mis-selling. If the birds had to be housed for health issues—say, to protect them from avian influenza—it could be construed that the eggs that were sold would not actually be free range. However, having to make these changes every time there is an outbreak creates problems for the sector.

Good morning. Thank you for inviting me to discuss the regulations. As we know, franchising is an important tool for local transport authorities to improve services in their area. However, it is also a significant intervention in the local bus market. The franchising provisions in the Transport (Scotland) Act 2019 set out a new franchising model that seeks to deliver greater scrutiny and transparency in the franchising process. A key aspect of that is the inclusion of a final approval stage that is external to the authority, which assesses the proposals before the franchise can take effect. The act provides that safeguard to ensure that local authority transport authorities’ franchising proposals have been carefully considered.

Rather than providing for the decision to be made by the Scottish ministers, the 2019 act provides for an independent panel to be appointed by the traffic commissioner, with the intention of depoliticising the final decision-making process. Those measures were included in the Transport (Scotland) Bill at its introduction, they remained throughout the bill stages and they were agreed to by Parliament. Parliament also agreed that detail about the operation of the panels would be set out in regulations. The regulations that we are considering set out that detail and are fundamental to the operation of the franchise process in Scotland, not least because they will give local transport authorities certainty about how their franchising proposals will be considered.

The regulations make provision on a range of administrative and procedural matters in order to provide clarity and legal certainty on how panels should operate, and they include eligibility criteria that preclude the appointment to a panel of anybody who might be employed by operators that are affected by franchising proposals or who could otherwise not act impartially in deciding whether to approve a franchising framework. The approach is designed to secure the independence of the panel’s decision making. The regulations and the 2019 act provide guidance to panels on what they must consider when assessing a local transport authority’s franchising proposals and provide further clarity on what is and is not relevant to the panel’s decision making.

We have engaged closely on the development of the regulations with key stakeholders, including local transport authorities and the traffic commissioner’s office, and their involvement has been crucial in creating procedures that will ensure that the approval process is transparent and impartial. There is a keen appetite among a range of parties and stakeholders—including MSPs, some of whom are sitting here today—for franchising to be available to local transport authorities.

Calling for amendments to legislation or failing to pass the regulations will result in Scotland falling further behind in delivering franchising to improve services for passengers, as any proposal that would seek to significantly amend the panel process as set out in the 2019 act would require primary legislation. As committee members know, policy development of that sort can be significant and would not be completed before the end of this parliamentary session. As I have said, the regulations make important provision on the operation of panels as envisaged by Parliament when it passed the 2019 act, and annulling them could result in local transport authorities deciding to delay any franchising proposals, because of legislative uncertainty.

I am happy to answer any questions that members might have.

It is, but I go back to the point that Mr Matheson made. We have a timescale in which to get things done, so I would much prefer that we get the SSI passed now to allow us to progress the work on franchising and to ensure that we continue making progress such as we have already made.