SP Paper 397 (Web Only)
49th Report, 2013 (Session 4)
Remit and membership
1. The remit of the Delegated Powers and Law Reform Committee is to consider and report on—
(i) subordinate legislation laid before the Parliament or requiring the consent of the Parliament under section 9 of the Public Bodies Act 2011;
(iii) pension or grants motion as described in Rule 8.11A.1; and, in particular, to determine whether the attention of the Parliament should be drawn to any of the matters mentioned in Rule 10.3.1;
(b) proposed powers to make subordinate legislation in particular Bills or other proposed legislation;
(c) general questions relating to powers to make subordinate legislation;
(d) whether any proposed delegated powers in particular Bills or other legislation should be expressed as a power to make subordinate legislation;
(e) any failure to lay an instrument in accordance with section 28(2), 30(2) or 31 of the 2010 Act; and
(f) proposed changes to the procedure to which subordinate legislation laid before the Parliament is subject.
(g) any Scottish Law Commission Bill as defined in Rule 9.17A.1; and
(h) any draft proposal for a Scottish Law Commission Bill as defined in that Rule.
Nigel Don (Convener)
Stewart Stevenson (Deputy Convener)
Committee Clerking Team:
Clerk to the Committee
The Committee reports to the Parliament as follows—
1. At its meeting on 1 October 2013, the Committee agreed to draw the attention of the Parliament to the following instrument—
Food Additives, Flavourings, Enzymes and Extraction Solvents (Scotland) Regulations 2013 (SSI 2013/266)
2. The Committee’s recommendations in relation to this instrument are set out below.
3. The instruments that the Committee determined that it did not need to draw the Parliament’s attention to are set out at the end of this report.
POINTS RAISED: INSTRUMENTS SUBJECT TO NEGATIVE PROCEDURE
Food Additives, Flavourings, Enzymes and Extraction Solvents (Scotland) Regulations 2013 (SSI 2013/266)(Health and Sport Committee)
4. This instrument revokes the current instruments relating to food additives, flavourings, food enzymes, smoke flavourings and extraction solvents and replaces them with a single instrument. Changes were required to the existing regulations to reflect the transitional periods applying to the application of the EU list of approved flavourings.
5. One change of significance is to make references to the EU provisions “ambulatory” so that they are to be read as amended from time to time. Amendments to the list of approved food additives etc. will therefore automatically be recognised in domestic legislation without further amending instruments being required.
6. The Regulations are due to come into force on 31 October 2013.
7. In considering the instrument, the Committee asked the Scottish Government for clarification of certain points. The correspondence is reproduced at the Annex.
8. Schedule 3 of the regulations sets out those provisions of EC Regulation 2065/2003 which are enforced by the regulations. Contravention of those provisions is an offence. An explanation of the subject matter of each specified provision is provided in the second column of the table in the Schedule. The Scottish Government accepts that the description provided of Article 9.5 in that table is inconsistent with that provided for Article 9.4 and does not fully describe the scope of the Article.
9. The Committee draws the instrument to the attention of the Parliament under reporting ground (h) as the explanation of the specified provisions in Schedule 3 of the instrument could have been clearer in the following respect.
10. Both article 9.4 and 9.5 of Regulation 2065/2003 specified in that Schedule apply to both “an authorised product” and “a derived smoke flavouring produced from an authorised product”. The effect of being specified in the Schedule is to make non-compliance with the provision an offence. The description of the subject matter of article 9.4 refers to both regulated substances but the description of the subject matter of article 9.5 refers only to authorised products.
11. The Committee accepts the Scottish Government’s view that the operation of the instrument will not be affected as the description of the subject matter is intended only to be descriptive rather than definitive of the offence. Nevertheless, the Committee considers that it is undesirable for there to be inconsistency in the approach to describing identical subject matter, or for that description to be inaccurate, particularly in the context of describing conduct which amounts to an offence. The Committee is also concerned that the approach taken could be unhelpful or cause confusion to users of the instrument.
12. Regulation 2(3) and (4) specify EC Regulations which are to be read as having effect as amended from time to time (that is they are of “ambulatory effect”).
13. Regulation 2(3) & (4) declare that references to Regulation (EC) No 1331/2008 are to be of ambulatory effect but Regulation (EC) No 1331/2008 is not in fact referred to in the instrument. The Committee accepts that this error will have no detrimental effect on the operation of the instrument and notes that the Government has undertaken to remove this erroneous reference the next time the regulations are amended.
14. The Committee also draws the instrument to the attention of the Parliament under the general reporting ground as it contains this drafting error.
NO POINTS RAISED
15. At its meeting on 1 October 2013, the Committee considered the following instruments and determined that it did not need to draw the attention of the Parliament to any of the instruments on any grounds within its remit:
Rural Affairs, Climate Change and Environment
Marine (Scotland) Act 2010 (Commencement No. 3 and Consequential Provisions) Order 2013 (SSI 2013/276 (C.22));
Town and Country Planning (Marine Fish Farming) (Scotland) Regulations 2013 (SSI 2013/277).
Food Additives, Flavourings, Enzymes and Extraction Solvents (Scotland) Regulations 2013 (SSI 2013/266)
On 20 September 2013, the Scottish Government was asked:
1. To explain why references to Regulation (EC) No 1331/2008 are declared to be of ambulatory effect by regulation 2(3) and (4) when that EC Regulation does not otherwise appear to be referred to in the Regulations (or to explain where it is referred to)?
2. To explain what is meant in each case by “transitional measures…..to be read with [that] Regulation” in regulations 3 and 4 and whether, given that these qualify the scope of conduct which constitutes an offence it is sufficiently clear what conduct will engage the offence without express reference to the relevant transitional provisions?
3. Whether the application of section 21 of the 1990 Act by regulation 17(1)(b) will operate as intended in relation to offences under regulations 3 to 6 which relate to “products” and contravention of regulation 11 which applies to “extraction solvents” given that section 21 as modified provides defences with reference only to the preparation of “food”?
4. Why the following are not specified provisions:
a. Article 18.1(a) of Regulation 1333/2008;
b. Article 14.3 of Regulation 1332/2008 (by contrast with Article 26.2 of Regulation 1333/2008);
c. Article 4.1 of Regulation 2065/2003 (by contrast with Article 4.1 of regulation 1333/2008).
5. Given that the description of Article 9.4 of Schedule 3 is clear that the requirements apply to “a derived smoke flavouring produced from an authorised product” as well as “authorised products”, why does the description of Article 9.5 not also make clear that it applies to “a derived smoke flavouring produced from an authorised product” when the Article so applies?.
The Scottish Government responded as follows:
1. The Scottish Government accepts that the reference to Regulation (EC) No 1331/2008 is not effective as there is no reference to any Article or Annex of that Regulation elsewhere in the Regulations. However, this will have no impact in practice as Regulation 1331/2008 establishes a common authorisation procedure for food additives, food enzymes and food flavourings and does not require enforcement measures. Food business operators will ensure that they use the most up-to-date version of the common authorisation procedure, in any event, to reduce their administrative burdens. The Scottish Government will remove the unnecessary reference when the next substantive amendment is required.
2. The statement in regulation 3 that specified provisions of Regulation 1333/2008 are to be “as read with” “transitional measures … to be read with that Regulation”, refers to the other instruments containing transitional measures that form part of the definition of Regulation 1333/2008, as set out in regulation 2(1). Similarly, for regulation 4 the statement that specified provisions of Regulation 1334/2008 are to be “read with transitional measures contained in or to be read with Regulation 1334/2008” refers to the instrument containing transitional measures that is set out in the definition of Regulation 1334/2008 contained in regulation 2(1). These transitional provisions in EU legislation have direct effect and stakeholders need to read all the relevant underlying EU legislation to identify which requirements affect them, and which transitional arrangements are relevant to those particular requirements. The Scottish Government’s view is that the Regulations are sufficiently clear on what conduct will engage each offence, in these circumstances.
3. Where a “product” is also food under the Food Safety Act 1990 the due diligence defence in section 21, as modified by regulation 17, will apply for offences under regulations 3 to 6. The due diligence defence will not apply to the preparation of extraction solvents which are not food nor to the preparation of products which are not food. This is the intended policy of the Scottish Government and is consistent with the existing domestic provisions.
4. The provisions listed below are not “specified provisions” for the reasons given—
(a) Article 18.1(a) of Regulation 1333/2008.
This provision contains a permission qualified by a condition (which refers to compound food other than as referred to in Annex II). Article 4.1 of Regulation 1333/2008 is specified in Schedule 1 and the entry is “as read with …Article 18.1(a)” and also refers to Annex II, including the conditions contained in it. Therefore Article 18.1(a) is enforced without being specified separately.
(b) Article 14.3 of Regulation 1332/2008 (by contrast with Article 26.2 of Regulation 1333/2008.
The main purpose of the Regulations is to consolidate the existing Regulations in which different approaches had been taken. The policy for this consolidation is, in the main, to continue with existing arrangements but not to add to them unless there is a specific policy reason. As the previous Regulations which implemented Regulation 1332/2008 did not provide that the requirement to inform the Commission in terms of Article 14.3 was to be enforced, the same approach has been taken in these Regulations. However the Scottish Government will review the effectiveness of enforcement of these specific provisions to determine whether any future alignment of these similar provisions might be required.
(c) Article 4.1 of Regulation 2065/2003 (by contrast with Article 4.1 of Regulation 1333/2008).
Article 4.1 of Regulation 1333/2008 relates to placing on the market of unauthorised substances and requires to be enforced in the Regulations. In contrast, Article 4.1 of Regulation 2065/2003 relates to conditions of authorisation, which is an administrative process which does not require to be enforced.
5. It is accepted that the description in the 2nd column of the table in Schedule 3 to Regulation 2065/2003, which relates to Article 9.5 should, for consistency, have referred to “a derived smoke flavouring produced from an authorised product” as appears in Article 9.4. However, this omission has no operative effect as it is only the provisions specified in the first column of that table that are referred to in regulation 5, which creates the substantive offence. Therefore the Scottish Government takes the view that no confusion arises and no amendment is required.
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