Protecting food standards

Ross Finnie, Chair of public watchdog agency Food Standards Scotland has written to the Minister of UK Negotiations on Scotland’s Place in Europe, Michael Russell, highlighting his “concerns about the risks and potential detriment to consumers in Scotland” of the UK Government’s proposals to take control of devolved responsibilities following Brexit, including in areas relating to food standards.

In his letter, Mr Finnie says that if such matters are reserved to the UK Government, “it will be difficult for Scottish stakeholders’ voices to be heard, or for the needs of businesses or consumers in Scotland to be given priority”.

He goes on to cite policies to tackle obesity and the issue of food and drink labelling as areas which could be adversely affected, saying that the UK Government’s stance “suggests a potential shift that is too much towards protecting businesses interests at the expense of consumers’ interests”, adding that “as long as public health is devolved, then it makes no sense that the tools to tackle these issues are reserved.

Mr Russell has replied, outlining the Scottish Government’s position on UK-wide common frameworks after Brexit.

Read both letters below.

Letter to Minister for UK Negotiations on Scotland’s Place in Europe

22 March 2018

Dear Mike

There will be no one more acutely aware than you of the implications for Scotland of the position articulated by the UK Government of the twenty four areas where they consider that it will be necessary, when the UK leaves the EU, for them to take control of matters of devolved competence that are currently regulated through EU law. As you know, that list includes food (and feed) safety, hygiene, compositional standards and labelling, including matters concerning nutrition and health.

I am sure that you will appreciate that as Chair of a non-Ministerial public body created by an Act of the Scottish Parliament, I would be failing in my duty to the Parliament if I did not write to you to set out my concerns. The reservation of these powers to Westminster upon exiting the EU would prevent Food Standards Scotland from discharging its statutory functions as set out in the Food (Scotland) Act 2015, and in meeting the wider objectives of Scottish Ministers in terms of protecting public health and improving diet, whilst regulating the food and feed sectors in accordance with the Regulatory Reform (Scotland) Act 2014 and the Scottish Regulators Strategic Code of Practice.

Clearly, negotiations are ongoing between the Scottish and UK Governments, but from the perspective of food safety and standards, it seems likely that UKG will argue the need for cross-UK consistency as being essential for trade once the UK leaves the EU as regulatory assurance is intrinsic to securing trade deals. However, if those matters are reserved to the UKG to determine, it will be difficult for Scottish stakeholders’ voices to be heard, or for the needs of businesses or consumers in Scotland to be given priority. I have outlined below some practical examples of the consequences of these areas being entirely reserved to UKG.

The SG has recently completed a consultation on developing a strategy to reduce obesity in Scotland. Reservation to the UK of policy and legislation on food standards and labelling mean that Scotland would not have competence to regulate in this area to improve public health. On the basis of the UKG’s view, there can be no differences of approach across the UK to ensure the ‘integrity of the UK internal market’. Similarly, in relation to adding information about alcohol units to labels on alcoholic drinks, if food labelling is reserved, this labelling would not be something that Scottish Ministers and the Scottish Parliament could determine, as the legal competence for labelling would be reserved to Westminster. And while the stated purpose of the UK Government is to consider temporarily withholding powers in

these areas, the justification for doing so – to protect the internal market in the UK - does not imply any time bar to such a restriction. Furthermore, the focus on the internal market fundamentally undermines the other responsibilities of Scottish Ministers and there appears to be no acknowledgement of that either. Government interventions in the “internal market” are not new and in fact, as you know, are fundamental to how Government makes improvements it desires in areas such as public health.

From a general public health perspective, with respect to the issues of regulation on the safety, labelling and composition of foods, this currently clearly falls within devolved competence and links closely to the Scottish Government’s overall strategic objectives in public health improvement. As Chair of a public health body, protection of the internal market and facilitation of trade at the expense of Scotland being able to determine the right market intervention measures to ensure public health protection suggests a potential shift that is too much towards protecting businesses interests at the expense of consumers’ interests. The reality is that most of our regulatory remit – and indeed the UKG’s in relation to these matters in England - involves a degree of intervention in the market to deliver public health

benefits. As long as public health is devolved, then it makes no sense that the tools to tackle these issues are reserved. At best, UKG would simply agree to changes that Scottish Government asks for (although this assume changes wouldn’t interfere with the internal market), but at worst, any health protection measures could be enabled only with the permission and agreement of UKG. The “track record” in this regard is not promising.

There are examples of how the UKG has responded on reserved issues that impact on devolved matters. On the advertising of foods that are high in fat, salt and sugar, FSS has recommended more action be taken to regulate how these products can be advertised and marketed. SG Ministers have consequently sought powers in this regard, but these have not been forthcoming. Scotland has also demonstrated the willingness to act on a UK basis where the evidence shows that it makes sense to do so. Most recently this has been in relation to the fortification of bread and flour with folic acid, to improve health outcomes related to births affected by neural tube defects, yet the UKG has steadfastly shown no signs of intervening in the market to improve health outcomes.

If the UKG’s proposals do proceed, then Scotland’s food regulator would lose its status as the policy maker and competent authority in Scotland in areas where the UK Government propose restrictions on Scottish Ministers and that competence has been conferred on FSS. In these areas FSS would become subservient to the wishes of the UKG, and whichever Whitehall department it conferred competence on a UK basis. Such a reservation of competence would put Scotland in a significantly worse position than before FSS was established in 2015. Whilst FSA acted across the UK before FSS was established, it did so in a landscape where competence was devolved to Scottish Parliament through Scottish Ministers. Going forward even that would no longer be the case. If the UKG’s proposals become reality, competence would with the UK departments (FSA/Defra/DH) and accountability would be to Westminster.

Of course, in the context of Brexit and the very many difficulties associated with it, I fully recognise that some compromise between governments will be necessary. My purpose in writing this letter is to put on record my concerns about the risks and potential detriment to consumers in Scotland, should Ministers and the Parliament be unable in future to act in their best interests.

A copy of this letter goes to Cabinet Secretaries, Shona Robison and Fergus Ewing, Aileen Campbell Minister for Public Health and Geoff Ogle FSS CEO.

Yours sincerely

Ross Finnie

Chair

Food Standards Scotland

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01 May 2018

Dear Ross

Thank you for your letter of 22 March.

I am very grateful to you for sharing your concerns with me. These highlight clearly the very important matters at stake and why it is so important that we protect the powers of the Scottish Parliament, so that Food Standards Scotland can continue to get on with the vital work of protecting consumers in Scotland in these key devolved areas. 

You will be aware of the on-going discussions between the Scottish Government and the UK Government on the EU (Withdrawal) Bill. Whilst good progress has been made in agreeing where common frameworks across the UK may be appropriate in the future upon EU exit, it is essential that this is done on a basis of trust between the governments and where the Scottish Parliament agrees that is appropriate.

Unfortunately the UK Government’s proposed amendments to the Bill do not proceed on this basis. Under these amendments regulations would be made under clause 11 by the UK Government which would prevent the Scottish Parliament from exercising its responsibilities in these areas for up to 7 years, whether or not the Scottish Parliament agrees to those arrangements. The Scottish Government could not recommend that approach to the Parliament.

I note that in your letter you express concern at the UK Government’s argument that a temporary restriction is required in order to protect the “UK internal market”. You point out that this justification does not in fact imply restrictions should be time limited. Worryingly the UK Government did indeed use this argument when it published its amendments on Wednesday. We are also concerned at the implications this line of argument will have for the longer-term or permanent reservation of devolved powers.        

My position throughout has been clear, that the principles of devolution must be respected and that if the competence of the Scottish Parliament to legislate in respect of devolved matters is to be restricted in any way, then the Parliament’s consent must first be obtained.

It remains the Scottish Government’s position that we are not opposed to common frameworks where these are in Scotland’s best interests.  However, we will continue to defend the right of the Scottish Parliament and the Scottish Government to decide what those best interests are.

I understand my officials are in contact with yours to further explore the matters you have raised in detail and are working together to counter any potential negative impacts on our policy ambitions.  I would also like to thank you for informing me of these risks and I can assure you that the Scottish Government will continue to do all that it can to protect public health in Scotland.  I hope this reply offers you some reassurance and I am grateful to you for agreeing that your letter and my response could be made public for the purpose of informing debate on this matter.  I would be happy to meet with you to discuss further. 

Michael Russell