Official Report 743KB pdf
Our next item of business is consideration of a legislative consent memorandum on the Product Regulation and Metrology Bill. I welcome Richard Lochhead, the Minister for Business and, from the Scottish Government, Euan Page, who is the head of UK frameworks, and Pieter van de Graaf, who is head of international trade flows and regulations.
I invite the minister to make a brief opening statement. Although I failed miserably to achieve this last week, I also encourage everyone to keep their questions and answers relatively brief when we open the meeting up to discussion with our witnesses.
It is nice to be before the committee for the first time in a while. I thank you for the opportunity to outline the Scottish Government’s current position on the Product Regulation and Metrology Bill. Because the metrology aspects of the bill are reserved and are not covered by the LCM, I will, as you would expect, focus on the product regulation element.
The UK Government has said that the creation of broad powers to regulate product characteristics, as proposed by the bill, is necessary to fill the regulatory gap that has been caused by exit from the European Union.
Unfortunately, the approach that has so far been taken in the bill does not respect the devolution settlement or the legislative competence of this Parliament. For example, exceptions to the product safety reservations that are included in the Scotland Act 1998 have not been adequately recognised, which means that some devolved product categories would fall unnecessarily within the scope of the bill.
Similarly, the bill grants regulatory powers to UK ministers in relation to the efficiency, effectiveness and environmental impacts of products, although those matters are largely devolved. The bill does not currently contain any mechanism to prevent UK ministers from using those powers in devolved areas without consent from Scottish ministers or oversight by the Scottish Parliament. That is why we have recommended that the Scottish Parliament should not grant legislative consent to the bill at this time.
The Scottish Government believes that the regulatory requirements for products in the UK should align with those in the EU. British Chambers of Commerce recently called for
“as much alignment as possible”,
which would help to facilitate trade with our most important trading partner.
The UK Government has announced plans to align with some specific EU product regulatory changes, which is to be welcomed. Although the environmental power in the bill is limited to alignment with EU law, the other powers can be used either to align or to diverge. UK ministers have stated that they want to keep both options open, although there are nods to alignment elsewhere in the bill. The impact of the bill on wider EU alignment at UK level therefore remains unclear. As a result, its impact on the UK internal market also remains uncertain.
Despite gaps in the policy background, we continue to engage positively and constructively with the UK Government. I am pleased to say to the committee that the UK Government has now agreed with our view that clause 7 covers devolved matters and requires legislative consent. We are hopeful about reaching further agreement on other issues in the bill, which might eventually allow us to change our advice to you on consent.
Thank you again for inviting me along today. I will do my best to answer your questions.
Thank you, minister. I will open it up to members’ questions, starting with Murdo Fraser.
Good morning, minister and colleagues.
Thank you for setting out your view on the LCM in your opening statement. It is fair to say that the advice to the committee from the Scottish Parliament information centre is that this is an area in which lines between what is devolved and what is reserved are quite blurry, and it is quite difficult to distinguish between what might be a reserved competence and what might be a devolved competence. For example, regulations covering technical standards for products are reserved, but regulations relating to efficiency and effectiveness might not be, and it is perhaps difficult to distinguish between the two.
It would be helpful if you or your officials could give us some practical examples of areas in which a conflict might arise, if you are able to do so. That might better explain your hesitancy about granting consent.
That gets to the crux of the issue. It is an enabling bill, so many such questions will be answered only once the UK Government takes a decision on how to use the enabling powers and brings forward the secondary legislation. We would then have to look at each individual case, and at that point, we would have to take a view on those questions.
In the wider sense, one of our key concerns is the mismatch between what is devolved under the Scotland Act 1998 and what would be excluded under the bill by the UK Government. There are two lists, and they do not match. Clearly, we would like to see what is devolved, according to the 1998 act, being replicated in the exclusions in the UK bill. That would result in a clear match, which is what we are pursuing.
There are a number of devolved issues involved, including food, agriculture, horticultural products, fish products, seeds, animal feedstuffs, fertilisers and pesticides. Under the 1998 act, those areas are devolved, so we would like to see them in the list of exclusions in the UK legislation.
I will bring in colleagues on your wider question about the definition of efficiency and effectiveness, which is not easy to answer because it is a technical bill. Pieter, do you want to add anything?
The matter is complicated because the reservation is quite technical in nature. Although technical standards and requirements in some circumstances are reserved, the powers are not limited to technical issues. Anything that is non-technical would be devolved in the case of efficiency, effectiveness and environmental impact.
The other key point to note is that there is mention in the 1998 act of the implementation period completion day, which basically means the end of the Brexit transition period. Therefore, there is a distinction between existing EU legislation and the technical matters in there, and anything new that is legislated on by the EU in the future. The latter would be devolved in relation to efficiency, effectiveness and environmental impact, whereas existing EU legislation would be reserved. Therefore, there is quite a complex mixture.
Thank you for confirming the complexity of the issue, which is helpful in itself.
Can I ask about one more thing? You referred to EU alignment. With regard to regulation powers in this area, is there anything that the Scottish Government would do differently from the UK Government, or is it too early to make that prediction? I know that the Scottish Government’s general approach is to progress with EU alignment where possible, but would the Scottish Government seek to do that even if it meant taking an approach that was different from that of the UK Government?
Your question raises a number of questions. We would have to wait and see how the secondary legislation is used under the enabling bill. We would look at each case on its merits, but the Scottish Government’s policy is to align, as far as possible, with EU legislation. We welcome the fact that the new Labour Government is not actively non-aligning, as seemed to be the position of the previous UK Government. There is a change, which we are paying close attention to. We hope to have a constructive relationship with the UK Government regarding secondary legislation, but we will have to wait and see what is proposed.
Colleagues might wish to ask about the wider issue of internal markets, which the committee might have discussed. That would take us into a slightly different, but linked, debate about what would happen if we took a different position and there was then a debate about the United Kingdom Internal Market Act 2020. Does that make sense? We know that there are examples of times when we have taken a different position and the United Kingdom Internal Market Act 2020 has been used to stop that going forward. There might be implications.
I am going to assume that the bill was initiated before the general election under the Conservative Government, which—as the minister pointed out—took a different direction of travel.
How might the bill interact with the 2020 internal market act and how might it limit Scotland’s ability to take the lead on fully devolved environmental protection and our ability to maintain alignment with the EU?
I will give a quick response, then Euan Page, who is our resident expert on those issues, might want to come in.
In my response to Murdo Fraser, I began alluding to the big picture of whether Scotland should take a different view—in line with what we hope will be confirmed as the devolved aspects of the bill—if that could then be overridden by the 2020 internal market act. For example, if we took a different view on product legislation, and even if Scotland adopted different regulations that were passed by this Parliament and put in place, businesses or manufacturers might be able to align with English regulations and be protected by the 2020 act. That is directly relevant.
Euan might be able to add more.
I think that we should guard against too much speculation about how that might play out. However, as the minister says, a relevant measure that is made under the bill would be caught by the 2020 internal market act, just as any other measure would.
For example, in a scenario in which the delegated powers in the bill were used to create England-only provision that diverged from regulatory requirements in Scotland, the mutual recognition principles of the bill could raise questions about the legal effect of any laws made. As the minister alluded to, we have seen that happen to legislation that has been passed by this Parliament. However, that takes us into the speculative realm: much will depend on the nature of measures that are taken under delegated powers.
I have one more question. Under the devolution settlement, the Scottish Parliament should be able to scrutinise and give consent to legislation that concerns devolved matters. The bill, as it is currently drafted, includes no requirement to obtain consent in all devolved areas.
The Scottish Greens agree with the Scottish Government that the legislation does not respect the devolution settlement, and will not give consent to it in its current drafting. Does the minister know whether the new Labour Government is open to redrafting the bill, or will this be the first incidence of its breaching the Sewel convention?
09:45
We are getting some positive signals from the UK Government. Although the negotiations are on-going, we are not over the line yet, so we have to wait and see. However, I had a constructive meeting with Lord Leong, who is the minister dealing with the legislation on behalf of the UK Government in the House of Lords, through which the bill is going just now. We are waiting to see what happens next, but discussions are on-going. We feel reasonably positive that there will be some movement in Scotland’s favour that respects the devolution settlement but, of course, we just have to wait and see.
Theoretically, could the bill not be overridden by the United Kingdom Internal Market Act 2020?
That is always a concern. The bill is an enabling bill, so should the delegated powers be used, there could be instances in which, as you have said, no matter what action the Parliament takes under devolved powers, it could be overridden by the 2020 internal market act. Again, that is two steps away from where we are just now; we are just trying to focus on fixing the situation.
You are obviously having constructive discussions with the UK Government. Can you say a bit more about the specific asks that you have made? In the eyes of the Scottish Government, what are the solutions?
First, I previously alluded to the fact that there should be a match between the list of what is devolved in the area under the Scotland Act 1998 and the list of what is excluded under the UK bill. In our view, the lists should match, which would respect the devolution settlement and the Scottish Parliament.
Secondly, there is an issue around the extent to which the Secretary of State in the UK Government would use the bill to introduce secondary legislation. Where that would impinge on devolved powers, legislative consent clearly must be sought from the Scottish Parliament.
Thirdly, there is the wider issue of the environmental impact of products, which we will pay attention to as well, because we want consent to be sought where there is an impact on Scotland.
Good morning, minister. You might have already mentioned this, but this is just so that I am clear. You are saying, in relation to the mismatch between the lists, that you are seeking to see in the bill the same list of what is specifically devolved and set out in the 1998 act, but that the UK IMA could override that, regardless. I think that that is the point that you made earlier. In that case, what is the point? How are you seeking to address the matter? We know that a most comprehensive cross-party report was done here in Parliament, which set out a wide range of issues in relation to the UK IMA. Beyond the lists matching, what are you doing to make the point about the UK IMA in the light of the situation and the complexities therein?
Well, we have a new UK Government, with which the First Minister and colleagues are raising issues in relation to the internal market act. We would like to see it being removed from the statute book, and we await the response of the UK Government. We have a new Government and a more constructive relationship exists with it, so far. We want results from that new constructive relationship, so whether the UK Government addresses Scotland’s concerns about the IMA will be a good test of that new UK Government. Time will tell: I cannot answer that question just now.
Again, although this is a backdrop issue, it is a very serious one. We must ensure that the devolution settlements are respected in the day-to-day legislation that goes through the UK Parliament. That is what this is about. We cannot predict how the delegated powers will be used. As I said earlier, it is an enabling bill, so should the UK Government introduce legislation, we want to ensure that devolution is protected—otherwise, what will happen will be against Scotland’s wishes.
The issues are very important, which is why I want those assurances to be put in the bill at this time, as we want with all legislation. Although it is obviously disappointing that those assurances were not, from the word go, contained in the bill, we are having constructive discussion with the UK Government to ensure that the bill is amended.
On your point about the lists, one of our objectives, as I said previously, is to get a match between the two.
You rightly made the point that it is an enabling bill—a framework bill. You will be aware that there has been quite a lot of discussion in the Parliament about framework bills and what they enable. Efficiency and effectiveness has been discussed, and there has been scrutiny by MSPs of the matter in the chamber and in committees.
Have you given any thought to how you will ameliorate the potential risks, if Scottish ministers have the potential to give consent, but still ensure that the appropriate scrutiny can take place, given that framework bills limit effective scrutiny in the chamber? That is, in general, considered to be an issue by members across the committee.
We would ensure that scrutiny took place at the point when secondary legislation or delegated powers were used under the enabling power, because if that were to impinge on devolved issues, we have a process in the Scottish Parliament to allow it to be scrutinised by committees and others. Stakeholders would be able to have their views heard as well, because the Scottish Government would have to make a decision as to whether to recommend consent on each issue. That is probably the point at which scrutiny and involving stakeholders would happen.
At the moment, the bill is vague—it is a very high-level enabling bill—so it is difficult for any of us, including stakeholders, to give a view. Members can see that the definition of what is covered by the bill is high level and quite broad. We are therefore not yet in a position give clarity on that.
Minister, in the list that you gave of devolved issues involved, you mentioned pesticides as, I think, an example of products that have an environmental impact. Could you clarify whether we face the prospect that the UK could take a different approach to the sale, transport and use of pesticides in Scotland, which would fundamentally oppose the view that the Scottish Government might have on the same matter? Could you say something about the situation that applies to Northern Ireland, which is allowed to align more closely with EU guidelines? Is it possible that three different sets of circumstances could apply to the use, sale and transport of pesticides?
All that I can say at the moment is that the reason why we are determined to try to secure assurances for the Scottish Parliament and respect for devolution, under the bill, is to ensure that we avoid such scenarios. I cannot foresee how the UK Government will use the bill or enabling powers on pesticides or anything else, but we want to safeguard against such scenarios by ensuring that in relation to pesticides, which is one area that is devolved, devolution is respected under the UK bill, so that decisions are for Scottish ministers and not for UK ministers. That is all that I can say about it, at the moment.
On Northern Ireland’s relationship with the EU, members will be aware, as it has been repeated many times, that the Scottish Government—given the irony that Scotland voted against Brexit—did not get the same helpful access to the EU market as Northern Ireland has, and there is obviously a separate debate about that.
On a technical point, Mr Coffey, one of the very few areas that is excluded from the automatic effect of the IMA’s market access provisions is pesticides.
There are no more questions, so I thank the minister and his officials for joining us today.
That brings the evidence session on the LCM to a close. I suspend the meeting to allow a changeover of witnesses.
09:54 Meeting suspended.Air ais
Subordinate LegislationAir adhart
City Region and Regional Growth Deals