Seòmar agus comataidhean

I am not sure what letter you are—

I will hand over to officials, to see whether they have spoken directly to any of the stakeholders.

We will certainly do that.

I am happy to say a few opening words, convener. I thank the committee for inviting us to give evidence on the legislative consent memorandum for the United Kingdom Government’s Genetic Technology (Precision Breeding) Bill.

As the committee will know, the UK Government’s bill will remove from genetically modified organisms regulations in England

“plants and animals produced using modern biotechnologies, and the food and feed derived from them ... if those organisms could have occurred naturally or been produced by traditional methods.”

The legislative consent memorandum requires us to consider one discrete aspect of the bill. The question before members today is not whether the committee and the Parliament support the policy purpose of the UK Government’s bill; we have discussed that on a number of occasions, and I have no doubt that we will continue to do so.

I note also that we are not looking today at the impacts on the bill that arise as a result of the United Kingdom Internal Market Act 2020. I wrote to the convener on 10 January to highlight the Scottish Government’s concerns in that regard; however, those are not under consideration today.

Nonetheless, I will discuss clause 42, which enables the Secretary of State for Environment, Food and Rural Affairs to make

“supplementary, incidental or consequential provision in connection with any provision of or made under this Act”.

It therefore permits the amendment of legislation that relates to the main purpose of the bill, including devolved legislation. For example, the regulation of GMOs in Scotland and of a number of other related policy areas, such as agriculture and food, is devolved and engaged here. As clause 42 permits the making of regulations that amend existing legislation in devolved policy areas, it is a provision within the legislative competence of the Scottish Parliament.

However, under the clause as it is currently drafted, there is no requirement for the Scottish ministers to consent to regulations, nor for the Scottish Parliament to scrutinise them. It is the Scottish Government’s position that allowing UK ministers to legislate in devolved areas without consent

“represents an erosion of devolved competence”,

and it therefore recommends withholding consent with regard to clause 42.

I will say a quick word on timing before I wrap up and take any questions. I note that we could have been in a different position with regard to the LCM if the UK Government had engaged with us in drafting its bill. My officials first saw the text of the bill on the afternoon prior to its introduction in the House of Commons, and—as I understand it—after, if not simultaneously with, the content being shared with the media.

It took us some time to determine whether the terms of the bill engaged devolution guidance notes and whether an LCM was required. Having established that it was, my officials and I sought to engage with the UK Government on potential amendments to clause 42, which would, in general, have required consent and might have allowed us to recommend accepting the bill or giving consent. However, that has not been fruitful and I am still awaiting a response to my letter of 8 November to Mark Spencer, the DEFRA minister.

All of that meant that it was not possible to lodge the LCM within the timescales that I know the committee would have preferred, and I apologise for that. We are happy to take any questions.

There are two parts to that question. First, one of the problems with that clause and with the legislation generally is that it is very unclear about exactly how the UK Government intends to utilise and implement it and about what implications that will have for Scotland. We have examined the powers that are granted to the secretary of state under clause 42, taken that to its logical conclusion and almost hypothesised about what could ultimately be done with those. Our view is very much that those are broad powers to make

“supplementary, incidental or consequential provisions”

in a bill that touches on a range of devolved policy issues from food and feed to animal health and welfare to the regulation of GMOs generally. There is a broad scope in a context of no clarity whatsoever.

That is a great question. On the point about the EU, the question of decoupling gene editing from the definition of GMO is not being considered uniquely by the UK Government. It is responsible of the Scottish Government to consider such developments and to listen to scientists and, equally, to civic society and to communities in order to find out their views.

We are watching closely what is happening at the UK Government level and, in particular, at the EU level. That is not only because the EU has been a beacon of environmental protectionism and progress, but, most of all, because of the very real trade implications of any divergence, which I think is what you are alluding to. The UK Government’s own impact assessment for its bill highlighted that any difference in position between the UK and the EU could create impediments to trade in the form of additional barriers and costs. That is a consideration, alongside the implications of the United Kingdom Internal Market Act 2020 for Scotland and the wider point about how stakeholders in Scotland feel about the issue.

That goes back to our earlier discussion—I am sorry, but I cannot remember who asked the question. At the moment, one of the main problems is that the clause is broad and we do not have a great deal of information about how the UK Government might intend to use it. We wanted to ensure that there would be a pretty standard consent mechanism, so that whatever issue arose in the future would be brought to the attention of the Scottish ministers, the Scottish Parliament would have an opportunity for scrutiny and we would consider the matter on its merits or demerits at the time. As things stand, we do not have that opportunity.

As I have said, albeit that the bill currently applies only to England, it touches on many aspects of devolved law—for example, food, farming, animal welfare and GMOs in general. It would be wrong of me to stray too far into hypotheticals but, right now, we have no information about how the clause might be used. It could be used in relation to any of those issues.

In my portfolio, I am not currently considering any other such provisions. Taking such powers in a bill is not unusual, but we would expect there to be a consent mechanism, which is the crux of our difficulty here. I am not sure whether my legal colleagues would like to add anything. I presume that they are working on aspects of other bills that I am not working on.

Yes, there has been a lot of back-and-forth discussion between Scottish Government officials and DEFRA officials. We have gone backwards and forwards on whether an LCM is required and have discussed our attempts to amend clause 42, which would require the Scottish ministers’ consent. At a ministerial level, I have had less luck with having conversations with my counterparts. As I said, I wrote to Mark Spencer, the DEFRA minister, on 8 November to seek a conversation with him, and I have yet to receive a reply.

We are talking about widespread and complex issues to do with the application of regulation across the UK, which should have been brought to the common frameworks process long before the bill was introduced, but that did not happen. Information is now coming in, but the matter is exceptionally complex. Officials in each of the engaged common frameworks are now working through it.

I will take the final point first. Local authorities face different situations. Something as basic as the fact that a local authority has a geography that allows more people to have their own gardens will make a difference compared with an urban local authority that deals with fewer instances of that. They certainly deal with different local circumstances and different demand, and they need to make resource decisions about that and about where to place funding as part of the block grant.

To be very cut and dried, I say that if statutory duties are not met by a local authority, it is possible in theory to bring legal proceedings against it, but I say that only as a matter of fact; the Scottish Government would not want to pursue that. We would far rather work with local authorities and the Convention of Scottish Local Authorities, if need be, to work out constructively how to make progress together. We can do that in a number of ways, such as continuing with the tripartite group and considering whether additional guidance would be helpful.

I am conscious that we produced guidance on food-growing strategies but have not done so on allotment reports, and I accept that that might be a reason why there have been difficulties. We talked about considering benchmarking data and easing regulation on permitted development rights. The Scottish Government has all those tools and, ultimately, a legal power to bring proceedings, although we would not want to go there.