Rural Affairs and Islands Committee
UK subordinate legislation – the Common Organisation of the Markets in Agricultural Products (Marketing Standards and Organic Products) (Transitional Provisions) (Amendment) Regulations 2021
Letter to the Convener from Mairi Gougeon, Cabinet Secretary for Rural Affairs and Islands, 16 December 2021
Dear Finlay,
SI CMO/002 The common organisation of the markets in agricultural products (marketing standards and organic products) (transitional provisions) (amendment) regulations 2021 (SI 2021/1369) (the "SI")
EU exit legislation - protocol with Scottish Parliament
I am writing in relation to the protocol on obtaining the approval of the Scottish Parliament to proposals by the Scottish Ministers, to consent to the making of UK secondary legislation affecting devolved areas arising from EU Exit.
That protocol, as agreed between the Scottish Government and then Parliament, accompanied the letter from the Cabinet Secretary for Government Business and Constitutional Relations, Michael Russell MSP, to the Conveners of the Finance & Constitution and Delegated Powers and Law Reform Committees on 4 November 2020 and replaced the previous protocol that was put in place in 2018.
The UK Government has not sought consent for the SI, however in accordance with the protocol, I attach a Type 1 notification. This sets out the details of the SI which the UK Government laid before Parliament on 9 December 2021, subject to the negative resolution procedure, and which will come into force on 1 January 2022. The Committee may wish to note that the subject matter of the SI is very similar to the prior notification in relation to the Common Organisation of the Markets in Agricultural Products (Transitional Arrangements) (Amendment) Regulations 2021 (SI 2021/652) (also referred to as the “AG/042 Regulations”).
The UK Government’s position is that the SI relates to reserved matters and as such they did not write to request the consent of Scottish Ministers. This position is disputed by Scottish Ministers who consider that the amendments relate to devolved matters. Scottish Government officials have written to colleagues within the UK Government’s Department for the Environment, Food and Rural Affairs (Defra) to seek acknowledgement from Defra that the SI contains devolved provisions.
The SI amends retained European Union (“EU”) law and domestic legislation to extend the ‘grace periods’ concerning import requirements that apply to certain marketing standards sectors (i.e. hops and hop products, poultrymeat, fruit and vegetables) exported by the EU to Great Britain (“GB”), as well as to those that apply to hops and fruit and vegetables exported by approved third countries into GB. The SI will also extend the grace periods applying to import requirements for organic products exported by the EU, European Economic Area states and Switzerland to GB. This is to align with the UK Government’s revised timetable in line with the newly revised timetable for sanitary and phytosanitary (“SPS”) border controls, which will be introduced on 1 July 2022.
The letter and non-notification sent to the Committee in relation to the AG/042 Regulations provides further background about the previous extension of grace periods for certain products.
The Scottish Government’s position is that these amendments relating to organics, hops poultrymeat, and fruit and vegetables are to provisions that relate to devolved matters. These areas of dispute have already been highlighted previously to the Scottish Parliament through the non-notifications listed in the attached notification, in particular the AG/042 Regulations.
The effect of the amendments in the SI relating to organics, poultrymeat, hops and fruit and vegetable provisions is consistent with Scottish Government policy, and hence it is likely that Scottish Ministers would have recommended consenting to the SI in a notification to the Scottish Parliament. However, the Scottish Government’s position is that these matters are devolved.
It is crucial that we ensure devolved interests are respected and we will continue to press our position with the UK Government on areas of dispute. In the meantime, and in the spirit of being open and transparent with you, I attach details of the SI for your consideration.
I am copying this letter to the Convener of the Delegated Powers and Law Reform Committee.
I would be grateful if the Committee could note the notification accompanying this letter.
Yours sincerely,
Mairi Gougeon
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