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Chamber and committees

Meeting date: Tuesday, May 3, 2022

Health, Social Care and Sport Committee 03 May 2022 [Draft]

Agenda: Decision on Taking Business in Private, Tackling Alcohol Harms, Provisional Common Framework on Food Composition Standards and Labelling, Subordinate Legislation


Contents


Provisional Common Framework on Food Composition Standards and Labelling

Our third agenda item is another evidence session with Maree Todd, the Minister for Public Health, Women’s Health and Sport. In this session, we will focus on the provisional common framework on food composition standards and labelling. The minister is joined online by Jennifer Howie, who is the UK frameworks and intergovernmental relations lead for Food Standards Scotland.

Thank you for staying with us, minister. I believe that you have an opening statement.

I thank the committee for inviting me to assist in its deliberations on the provisional common framework on food composition standards and labelling.

Officials in Food Standards Scotland have been working with their counterparts in the Department for Environment, Food and Rural Affairs and in the Food Standards Agency in Wales and Northern Ireland to develop a four-nations approach to delivering repatriated European Union functions on common areas of interest in the framework. Ministers of the four nations have agreed the content of the provisional framework, which was published as a UK Government command paper on 17 February 2022.

Policy on food composition standards and labelling was, and continues to be, highly regulated at the EU level. The purpose of the framework is to ensure that there is a joined-up approach across the UK on the continued maintenance of high standards of safety through delivery of regulatory functions in that area.

Throughout the process, we have committed to working collaboratively to develop common frameworks on the basis of consensus and in line with the agreed principles of the joint ministerial committee on EU negotiations. That includes the principles that UK frameworks should ensure the functioning of the UK internal market and acknowledge policy divergence, and that they should respect the devolution settlements and the democratic accountability of devolved legislatures.

The Scottish ministers fully support the common framework programme and consider that frameworks are all that are needed to manage any potential legislative divergence in the future. We consider that common frameworks provide necessary and proportionate assurance to respective Governments, legislatures, consumers, citizens and industries on issues concerning public health, and that the framework will ensure that internal market issues are duly considered in food composition standards and labelling policy development but are not prioritised over consumer interests.

I am happy to answer the committee’s questions.

Thank you, minister.

This is one of quite a few common frameworks that I have looked at over the past few years since our exit from the EU. You said that the four UK partner Governments have agreed to the framework. We have just had a session in which we talked about alcohol labelling for public health reasons. Particular countries might have slightly different public health goals, or they might think that certain mechanisms relating to labelling are appropriate to get to those goals. Were there any areas of debate in that regard before the common framework was agreed?

The common framework provides a way of working together, and it allows for divergence to occur. As I said in my opening statement, we are confident that the common framework will provide a useful way of managing discussions; that it will ensure that there is early engagement and that we work together to try to achieve consensus; and that it will ensure that, when divergence occurs, it does not take our neighbours by surprise.

In relation to the most likely area of divergence, the Scottish Government, generally, wants to align with the EU. If an area of EU food information law changes, it is likely or possible that Scotland might want to align with the EU and that the rest of the UK might not want to do so. However, Northern Ireland will, of course, have to align with the EU.

The common framework just provides a way of working.

Is there space within the common framework to allow discussions to take place about anything that happens in the future? Is there also space for parliamentary scrutiny to allow us to keep abreast of what is happening?

Absolutely. The core purpose of the framework is to prevent disputes through close collaboration between the four UK nations while respecting the devolution settlement. That means enabling policy divergence. The aim of the framework is to avoid, where possible, the need to trigger the dispute resolution process.

In terms of scrutiny, Parliament will engage with the framework through the decisions that it will be asked to take on any change of legislation that is proposed in the policy area. In essence, the framework is a way of working. It sets down the mechanisms for working together with the other Administrations of the four UK nations that share these islands.

Thank you very much. We move on to questions about domestic arrangements.

The framework commits the Scottish Government to making joint decisions about some food products that it would previously have had autonomy to regulate. Does the minister have any concerns about whether that will impact on the Government’s ability to regulate food products on public health grounds, for example?

I do not particularly have concerns about the framework. As I have said, it establishes a healthy method of working in collaboration with the four UK nations, a way of resolving conflict, and a way of enabling divergence, should that be required.

I have more concerns about the United Kingdom Internal Market Act 2020 on that front. That act tramples over devolution, and it was not consented to by Scotland or Wales for exactly that reason. The public health concerns around that act were well rehearsed as it passed through Parliament. That piece of legislation concerns me. It might well constrain or weaken my ability to take public health action in Scotland, because products that can be sold in England will automatically be able to be sold in Scotland, too.

Will you provide clarity about the dispute resolution process where differences occur? Are you satisfied that an effective process is in place?

I am satisfied that an effective process is in place. I hope that we do not reach the point of triggering it. For all that the impression that is given is that we are regularly in conflict with one another in the four nations, we actually work together closely on a number of issues across the board in health, and we have strong working relationships, particularly in my portfolio. Therefore, I expect us to be able to avoid triggering that conflict resolution process.

I will bring in Jennifer Howie to talk a little bit more about the detail of how the process will work should it be triggered.

Jennifer Howie (Food Standards Scotland)

Thank you, minister. You have pretty much covered it, but the intention is very much for officials to continue to work—[Inaudible.]

Jennifer Howie has frozen. We will bring her back.

In essence, there are different tiers of intervention. We expect much to be resolved at the official level, as it currently is. We expect that to continue and ministers to be able to be pulled in to work together to resolve issues, should that be needed. However, I do not expect that to happen frequently.

We move on to the theme of managing divergence.

In February, you spoke about how you were keen to remain aligned with EU law where such an alignment was appropriate and in Scotland’s best interests. Will you give any examples of where the Government might choose to diverge from EU law?

In this policy area, I probably cannot. Brexit is a very recent phenomenon, so when we think about how our systems are working since we left the EU, it is quite difficult to think of examples. However, what you suggest is perfectly possible, if we think about how the structures work. For example, Food Standards Scotland advises the Government on the safety of food products. It might be that the EU body will give the EU different advice and we will decide to stick with the advice that we have been given in Scotland. That is possible.

However, we will align with the EU where we possibly can. It is clear that Scotland did not want to leave the EU, and the Scottish Government is keen that we rejoin it as soon as we are an independent country. In the meantime, we have structures in place that will give us independent advice, and we will make decisions that are best for Scotland at the moment.

If Sandesh Gulhane has no more questions, we will move on to the United Kingdom Internal Market Act 2020, which has been mentioned. David Torrance has more detailed questions about it.

It is my favourite subject, minister. What impact will the United Kingdom Internal Market Act 2020 have on Scots law on food composition standards and labelling?

In our analysis—and this is why it causes so much concern—the operation of that act means that, irrespective of the necessity or proportionality of any public health priority in Scotland or, indeed, in any other part of the UK, any national measure could be caught and radically undermined by the automatic application of the act’s market access principles. In place of a common framework that is designed to manage policy divergence through dialogue and agreement, we would have, in effect, the automatic recognition of standards that had been set elsewhere, regardless of local circumstances, the wishes of the relevant legislature or the policies of the relevant Administration.

In evidence to the committee, Quality Meat Scotland said that it is vital that the common framework should “respect devolution settlements” by allowing for “policy divergences”. Does the Scottish Government intend to request exclusions from the act in policy areas that are covered by the common framework?

Although the act was passed in 2020, it is still bedding in. We are still trying to understand the impact of that piece of legislation on our public health decisions, and I cannot at the moment think of an area in which we would be looking for exclusions.

The framework allows for divergence and respects the devolution settlements. For public health reasons, and all reasons, we prefer that mechanism for resolving issues of divergence.

Thank you.

Minister, before I bring in Evelyn Tweed, I should let you know that your official Jennifer Howie is back online but with sound only. I will not bring her back in just now, but I thought that I should let you know that she is there should you need to refer to her.

The minister has covered the areas that I was going to raise, which was helpful.

We will move on to questions about the Northern Ireland protocol.

The Northern Ireland protocol interests me because I am interested in the port of Cairnryan and the transport of goods between Cairnryan and Larne and Belfast. How will the food composition standards and labelling framework impact on or affect the operation of the protocol?

Under the UK withdrawal agreement, Northern Ireland remains in the UK customs territory while remaining aligned with EU regulations. That means that Northern Ireland has to do what the EU regulations require. Scotland did not vote to exit the European Union. Could Scotland also align with EU regulations and work in the way that is intended by the Northern Ireland protocol? I would be interested in pursuing whether we could basically work as part of a Northern Ireland protocol if we chose to continue to align with EU policy.

11:30  

The framework is a four-countries agreement and it was intended to drive consistent approaches across the UK, while acknowledging policy divergence. It is absolutely clear that any change to EU law will have to apply in Northern Ireland. Therefore, should the other countries in the UK choose not to align with the EU, there will be divergence. Scotland has an aim of remaining aligned with the EU, but should England and Wales choose to diverge, there will be divergence across the UK. That is an inevitable consequence of our exit from the EU and of the Northern Ireland agreement.

However, this framework enables even that situation to be managed carefully in a way that will work. So long as the policy options are underpinned by robust evidence, and the framework processes are followed, there is no reason why any divergence per se should undermine the framework. The framework enables divergence; it does not prevent it.

Emma, do you have anything else to add?

No, I think that that is okay. If the framework allows for or enables divergence, that means that it supports the continuation of a Northern Ireland protocol that has been established to allow Northern Ireland to continue to be aligned with the EU regulations—is that right?

Northern Ireland will automatically align with EU regulations, whereas Scotland will make a policy choice to align with EU regulations. I guess that that is the difference.

Thank you.

The final questions are from Stephanie Callaghan.

Does the Scottish Government have any concerns about the periodic and exceptional reviews and how they are triggered? Are you quite happy with that area?

We are quite happy with it. The intention is to review the framework a year after implementation and at three years thereafter. At heart, it really is just a document that describes a way of working healthily and productively together. If issues arise, that might be more about whether the framework was followed. We are all getting used to this new world, so it might be that the framework was not followed rather than that the framework is faulty. Therefore, we need to let the processes bed in a little before we can fairly assess whether a review process is appropriate. However, we will certainly keep an eye on how these things work. As I said, all four UK ministers agree that the framework is a reasonable way forward. I hope that it provides us with a way of working together that avoids conflict and, where conflict and divergence are necessary, it enables that as part of the devolution settlement.

How will the Scottish Parliament and other stakeholders be able to contribute to the review process? Has a process for that been set up yet?

I think that there will be future discussions about that between Scottish Parliament and Scottish Government officials. We will definitely consider a possible approach to the post-implementation monitoring of frameworks, but I expect Parliament to be fully involved. Individual review processes are currently being developed, and I wonder whether Jennifer Howie wants to say a little more about that.

FSS is responsible for three of those frameworks, and it will collectively involve a number of departments across the UK, alongside consultation with stakeholders, about how to ensure that the process is well informed—cutting down on duplication of effort among all four nations but also making sure that plenty of evidence comes forward to inform decisions. I ask Jennifer Howie to say a little more on that.

I hope that everybody can hear me, and I apologise for my poor line in rural Aberdeenshire.

It is fair to say that there is probably a two-pronged way for stakeholders and parliamentarians to scrutinise how the frameworks are working. The outputs of the frameworks process will be items of draft legislation that come before the Parliaments. If, in their respective legislatures, parliamentarians feel that an issue has arisen from the consultation in relation to any specific item, there would, potentially, be feedback in that way.

When it comes to the broader programme of frameworks that have been developed in the—[Inaudible.]—themselves, Scottish Government officials are working with their counterparts in the Cabinet Office and in other Administrations; they have been responsible for putting together the programme using the detail that they are following in portfolio areas. For example, they are currently developing guidance about annual reports that might come before the Parliament on specific framework areas, whether those are singular or batched. As the minister has said, we would not want to overburden the legislatures with framework reports. However, should those be forthcoming, as we expect to be the case, those reports as presented to the Parliament would provide another opportunity for feedback.

The output of specific issues is in the draft legislative opportunities, which could include feedback on whether due process was considered to have been followed in relation to those items, and then we are generally—[Inaudible.]—on the operation of the frameworks system. Discussions are on-going across the Administrations on the latter.

Thank you very much. We heard you, Jennifer, although it was a bit patchy in areas. We got the general gist.

Minister, we have no more questions for you, so I thank you very much for the time that you have spent with us this morning on both agenda items.

We will allow the minister and her officials to leave before we move on to the next items on our agenda.