From: J R Wildgoose
AEFD Division A
28 May 1998
By E.mail
Mr Gordon
Copy to:
PS/Perm Sec
PSI AEFD
PS/DoH
Mr Cameron (with copy ofMr Jamieson's minute)
Mr Ferguson
Mrs Mellon
Mr Irvine
Mr Rennie
Mr Ewing
Mr Grice
Mr Walford
Solicitor
Divisional Solicitors
Mr Jamieson
Mr Sinclair
Mr Ferry
Mrs Nelson
SCOTLAND
BILL:
SCOTTISH
LEGISLATION
IN 1998/99
1.
I have seen Mr Jamieson's minute of21 May and write to offer my views specifically
in relation to the Food Standards Agency Bill.
2.
By way of background, the FSA Bill, as Mr Jamieson correctly reports, is intended to
establish the FSA. However, it is also intended to provide a new approach in food safety and
standards issues - designed to re-establish consumer confidence in the safety of food. Part of
this involves
setting a framework
of decision making which is "at arms length" from
Ministers - an infinitely
elastic term which nonetheless has importance in the consumer
confidence
context.
To achieve these aims, the FSA is proposed as a Non Ministerial
Department headed by a Commission, although reporting through Health Ministers (plural ie
including successors under Devolution)
for Parliamentary business.
A set of key guiding
principles
will be inscribed in the legislation as to the FSA's method of operation and
decision making, and it will also have the power to make its advice to Ministers public.
3.
The FSA is proposed as a UK. body - for consistency of implementation of food safety
policy and legislation (very largely ED driven) and to avoid unnecessary duplication in the
provision of (extensive) scientific ad~ice over a range of issues - some 15 special scientific
advisory
committees
currently
supply ,~advice 'on food safety issues - amongst
others.
However, we have been careful to ensure that in the arrangements for Scotland, the interests
of the Scottish Parliament and Executive are fully taken into account. For example, the FSA
ie the full UK. body, will be accountable to the Scottish Parliament,
there will be joint
appointment arrangements (Health Ministers) for all the key positions and also joint decision
AGAI0205
1.
making arrangements on all other issues where Ministerial decisions are required. There will
also be specific arrangements to ensure Scottish interests in food safety are fully taken into
account in the decision-making.
These are fully laid out in the White Paper.
(The
consultation on the White Paper ended on 15 March:.. and there was very general (almost
universal) acceptance (indeed welcoming) of the proposals at least as far as the structure of
the new body is concerned).
4.
Decisions on all these issues, particularly in relation to construction of the White
Paper had to be made at a time when policy on the Scotland Bill, and in particular the key
clauses on cross border bodies (83-85), was still being formulated. Indeed, I understand from
numerous conversations (and minuting) with Mr Crawley at the time, some of the issues
raised in the FSA debate influenced thinking on Clauses 83-85 ie possibility for joint
appointments (as distinct from merely Scottish consultation) and also the possibility of
having these Clauses apply to cross border bodies:set up after the Scotland Bill became law.
Nonetheless, at the time I agreed with Constitution Group thai the best policy was for the
FSA Bill to "wash its own face" with all the necessary accountability arrangements in respect
of the Scottish Parliament and Executive to be inscribed in the Bill. This is the policy we
have pursued.
5.
Currently the position is that the White Paper Provisions have been turned into
instructions to Parliamentary Counsel with the first few Clauses now beginning to filter back
from Counsel. I expect the bulk of these to appear in the next 2-3 weeks. Copies are going
direct to Solicitor's Office - Mrs Macdonald. The aim is to publish the Bill for consultation
end June/early July with pre-legislative scrutiny by an ad hoc committee drawn from
members of the Health and Agriculture Select Committees. The Bill will then be introduced
early in the new session with MAFF and DH Ministers aiming for second reading before
Christmas 1998.
6.
Against this background, I would offer the following comments on the points at
paragraph 2 ofMr Jamieson's minute:-
Point 2(a): I cannot see that there is any pre-emption of the Scottish Parliament's·
powers.
The aim in proceeding with the FSA is to ensure that all the necessary
powers and accountability arrangements are built into the Bill. But we have always
worked on the assumption that the Scottish Parliament/Executive could walk away
from whatever arrangements are finally set up and legislate to set up separate Scottish
arrangements. Indeed, this has been a powerful argument to use with MAFF and DH
to establish the kind of flexibility we require in light of Devolution. (I might add that
I would not advise Ministers of the new Scottish Executive to set up separate
arrangements for food' safety - given the consistency and duplication arguments
mentioned above - but this is a separate issue).
Point 2(b):
I am not clear exactly how the constitutional convention applies,
particularly in the transition year 1998/99. Inevitably there will be a delay before the
Scottish legislative programme can proceed - whereas there is no delay in the
Westminster programme.
But given the circumstances, there must be some
transitional arrangements which do not contravene the spirit of the constitutional
convention.. What we cannot have, for the FSA, is a limbo period when the rest of the
AGAI0205
2.
UK marches ahead and we are left behind in an uncertain position. Given the political
significance of food safety, Ministers of the Scottish Executive - of whatever political
hue - could not defend this against criticism, and would not thank us for such
uncertainty .
Point 2(c):
I agree absolutely with Mr Jamieson's
comments - and, as the above
indicates, reflect what we are striving to achieve.
As also indicated above, the 'draft
Clauses are beginning to issue from Parliamentary Counsel and are being copied to
Solicitor's
office - relevant Clauses will of course be copied to Mr Jamieson.
No
doubt inconsistencies with concepts currently used in the Scotland Bill can be picked
up now.
7.
I hope these comments in respect of the FSA Bill, and how I see the position, are
, helpful.
I
J R WILDGOOSE
28 May 1998
AEFD Division Al
Room 352
Pentland House
Ext 6159
AGAI0205
3.
Mr Gordon
Copy to:
PS/Perm Sec
Mr Wildgoose
PS/DD
Mr Ewing
PS!EID
- Mr Grice ...--
PS/AEFD
MrW~
... ~"-' ..' ",
1"
i
'-/L
PSIHD
Solicitor
PSDoH
Divisional Solicitors
Mr Ferguson
Mr Sinclair
Mrs Mellon
Mr Ferrie
Mr Irvine
Mrs Nelson
Mr Rennie
SCOTLAND BILL: SCOTTISH LEGISLATION IN 1998/99
1.
I understand that it is proposed that there should be certain Bills next session in the
Westminster Parliament which will deal with devolved matters in Scotland. The examples of
which lam aware are the Food Standards Agency Bill, a Pollution Bill and a Water Bill but
there may be others.
2.
I am concerned about the implications of these Bills for devolution and the Scotland
Bill for the following main reasons
(a)
these Bills will pre-empt what the Scottish Parliament will be able to do about
those devolved matters when it assumes its full powers in June or July next year and
will be making provision about devolved matters at a time when the Scottish
Parliament has such competence;
(b)
it is inconsistent with the constitutional convention which it is thought would
otherwise have developed that, although the Westminster Parliament would, of
course, retain ultimate sovereignty, it would not legislate with regard to devolved
matters as long as the Scotland Act remains unrepealed because it would have
devolved legislative responsibility to deal with these matters to the Scottish
Parliament. Early breaches of this convention might prevent it developing at all; and
(c)
while if will be essential for these Bills to take full and proper account of
devolution, Parliamentary Counsel are concerned that they could be inconsistent with
certain of the concepts currently used in the Scotland Bill which may therefore require
to be amended as a result eg the concept of devolved competence.
3.
I really know nothing about the content of these Bills but I understand in very general
terms
C:\OFFICE\TMP\T03
I\SMC0032 I .DOC
From: J R Wildgoose
AEFD Division A
28 May 1998
By E.mail
Mr Gordon
Copy to:
PSlPeIm Sec
PS/AEFD
PS/DoH
Mr Cameron (with copy ofMr Jamieson's minute)
Mr Ferguson
Mrs Mellon
Mr Irvine
Mr Rennie
Mr Ewing
Mr Grice
Mr Walford
Solicitor
Divisional Solicitors
Mr Jamieson
Mr Sinclair
Mr Ferry
Mrs Nelson
SCOTLAND BILL: SCOTTISH LEGISLATION IN 1998/99
1.
I have seen Mr Jamieson's minute of 21 May and write to offer my views specifically
in relation to the Food Standards Agency Bill.
2.
By way of background, the FSA
Bill, as Mr Jamieson correctly reports, is intended to
establish the FSA. However, it is also intended to provide a new approach in food safety and
standards issues - designed to re-establish consumer confidence in the safety of food. Part of
this involves
setting a ftamework
of decision making which is "at arms length" ITom
Ministers - an infinitely
elastic teIm which nonetheless has importance
in the consumer
confidence
context.
To achieve these aims, the FSA is proposed as a Non Ministerial
Department headed by a Commission, although reporting through Health Ministers (plural ie
including successors under Devolution)
for Parliamentary business.
A set of key guiding
principles
will be inscribed in the legislation as to the FSA's method of operation and
decision making, and it will also have the power to make its advice to Ministers public.
3.
The FSA is proposed as a UK body - for consistency of implementation of food safety
policy and legislation (very largely ED driven) and to avoid unnecessary duplication in the
provision of (extensive) scientific adv.ice over a range of issues - some 15 special scientific
advisory
committees
currently
supply ~ftadvice'on food safety issues - amongst
other$.
However, we have been careful to ensure that in the arrangements for Scotland, the interests
of the Scottish Parliament and Executive are fully taken into account. For example, the FSA
ie the full UK body, will be accountable to the Scottish Parliament,
there will be joint
appointment arrangements (Health Ministers) for all the key positions and also joint decision
AGAI0205
1.
making arrangements on all other issues where Ministerial decisions are required.
There will
also be specific arrangements to ensure Scottish interests in food safety are fully taken into
account in the decision-making.
These are fully laid out in the White Paper.
(The
consultation on the White Paper ended on 15 March:.. and there was very general (almost
universal) acceptance (indeed welcoming) of the proposals at least as far as the structure of
the new body is concerned).
4.
Decisions on all these issues, particularly in relation to construction
of the White
Paper had to be made at a time when policy on the Scotland Bill, and in particular the key
clauses on cross border bodies (83-85), was still being formulated.
Indeed, 1 understand ITom
numerous conversations (and minuting) with Mr Crawley at the time, some of the issues
raised in the FSA debate influenced thinking on Clauses
83-85 ie possibility
for joint
appointments
(as distinct ITom merely Scottish consultation)
and also the possibility
of
having these Clauses apply to cross border bodies; set up after the Scotland Bill became law.
Nonetheless, at the time 1 agreed with Constitution Group that the best policy was for the
FSA Bill to "wash its own face" with all the necessary accountability arrangements in respect
of the Scottish Parliament and Executive to be inscribed in the Bill.
This is the policy we
have pursued.
5.
Currently the position is that the White Paper Provisions
have been turned into
instructions to Parliamentary Counsel with the first few Clauses now beginning to filter back
ITom Counsel.
1 expect the bulk of these to appear in the next 2-3 weeks.
Copies are going
direct to Solicitor's Office - Mrs Macdonald.
The aim is to publish the Bill for consultation
end June/early
July with pre-legislative
scrutiny by an ad hoc committee
drawn ITom
members of the Health and Agriculture Select Committees.
The Bill will then be introduced
early in the new session with MAFF and DH Ministers aiming for second reading before
Christmas 1998.
6.
Against this background, 1 would offer the following
comments
on the points at
paragraph 2 ofMr Jamieson's minute:-
Point 2(a):
1 cannot see that there is any pre-emption of the Scottish Parliament's·
powers.
The aim in proceeding with the FSA is to ensure that all the necessary
powers and accountability arrangements are built into the Bill.
But we have always
worked on the assumption that the Scottish ParliamentlExecutive
could walk away
ITom whatever arrangements are finally set up and legislate to set up separate Scottish
arrangements.
Indeed, this has been a powerful argument to use with MAFF and DH
to establish the kind of flexibility we require in light of Devolution.
(I might add that
I would not advise Ministers
of the new Scottish Executive
to set up separate
arrangements
for food' safety - given the consistency
and duplication
arguments
mentioned above - but this is a separate issue).
Point 2(b):
I am not clear exactly how the constitutional
convention
applies,
particularly in the transition year 1998/99. Inevitably there will be a delay before the
Scottish legislative programme
can proceed - whereas
there is no delay in the
Westminster
programme.
But given
the circumstances,
there
must
be some
transitional
arrangements which do not contravene the spirit of the constitutional
convention.
What we cannot have, for the FSA, is a limbo period when the rest of the
AGAI0205
2.
UK.marches ahead and we are left behind in an uncertain position. Given the political
significance of food safety, Ministers of the Scottish Executive - of whatever political
hue - could not defend this against criticism, and would not thank us for such
uncertainty.
Point 2(c):
I agree absolutely with Mr Jamieson's comments - and, as the above
indicates, reflect what we are striving to achieve. As also indicated above, the ·draft
Clauses are beginning to issue from Parliamentary Counsel and are being copied to
Solicitor's office - relevant Clauses will of course be copied to Mr Jamieson. No
doubt inconsistencies with concepts currently used in the Scotland Bill can be picked
up now.
7.
I hope these comments in respect of the FSA Bill, and how I see the position, are
, helpful.
I
J R WILDGOOSE
28 May 1998
AEFD Division Al
Room 352
Pentland House
Ext 6159
AGAI0205
3.
Mr Gordon
Copy to:
PSlPenn Sec
Mr Wildgoose
PS/DD
Mr Ewing
PSIEID_
. -~~~~:
fd-- .-----@)-.- -I~~[\- --.----------
PSI AEFD
q.kf,ord
/r)
"-'1
PS/HD
Solicitor
.>
L
PSDoH
Divisional Solicitors
Mr Ferguson
Mr Sinclair
Mrs Mellon
Mr Ferrie
Mr Irvine
Mrs Nelson
Mr Rennie
SCOTLAND BILL: SCOTTISH LEGISLATION IN 1998/99
1.
I understand that it is proposed that there should be certain Bills next session in the
Westminster Parliament which will deal with devolved matters in Scotland. The examples of
which lam aware are the Food Standards Agency Bill, a Pollution Bill and a Water Bill but
there may be others.
2.
I am concerned about the implications of these Bills for devolution and the Scotland
Bill for the following main reasons
(a)
these Bills will pre-empt what the Scottish Parliament will be able to do about
those devolved matters when it assumes its full powers in June or July next year and
will be making provision about devolved matters at a time when the Scottish
Parliament has such competence;
(b)
it is inconsistent with the constitutional convention which it is thought would
otherwise have developed that, although the Westminster Parliament would, of
course, retain ultimate sovereignty, it would not legislate with regard to devolved
matters as long as the Scotland Act remains unrepealed because it would have
devolved legislative responsibility to deal with these matters to the Scottish
Parliament. Early breaches of this convention might prevent it developing at all; and
(c)
while it"will be essential for these Bills to take full and proper account of
devolution, Parliamentary Counsel are concerned that they could be inconsistent with
certain of the concepts currently used in the Scotland Bill which may therefore require
to be amended as a result eg the concept of devolved competence.
3.
I really know nothing about the content of these Bills but I understand in very general
tenns
C:\OFFICE\TMP\T03)
\SMC0032)
.DOC
(a)
that the Food Standards Agency
Bill is intended
to establish
the Food
Standards Agency which, if it had been established this session, would have been
dealt with as a cross-border public authority.
Indeed the kind of provision which will
be required to be made in this Bill to achieve the separate exercise of functions i!1~ H_
Scotland will be very simi}~~~Jqnd_of
provision which-it~is-ettVisaged·wmfi.a-ve
to be-m-adein thecase-·ofthe
Forestry Commission by an order under clause 84 of the
Scotland Bill;
(b)
that the Pollution Bill is intended to give effect to an EC Directive which is
due to be implemented by end October 1999. It might therefore have been the fIrst
EC Directive implemented by the Scottish Parliament.
I am not certain whether this
Directive gives rise to questions regarding the split of UK/GB quotas on pollution
output; and
(c)
that the Water Bill will contain purely Scottish provisions which are unrelated
to any English provisions ~bout the establishment of a Commissioner.
4.
It seems to me that, in these circumstances, there should be some clarifIcation as to
what are the implication of these Bills for devolution in general and the Scotland Bill in
particular, having regard to the considerations mentioned in paragraph 2 above. We also need
details of what provision will be made in each of these Bills about devolution ie, amongst
other things, the functions they will confer on the Scottish Ministers and how their terms will
inter-relate with the provisions of the Scotland Bill.
. lain Jamieson
J L JAMIESON
21 May 1998
Constitution Group
Solicitor's OffIce
I-D25
Victoria Quay
Ext 0575
Fax 7804
C:\OFFICE\TMP\T031
\SMC00321.DOC
Document Outline
