Rural Affairs and Islands Committee
UK subordinate legislation - The Waste and Agriculture (Legislative Functions) Regulations 2021, response from Cabinet Secretary for Rural Affairs and Islands
Letter from the Cabinet Secretary for Rural Affairs and Islands, Mairi Gougeon, to the Deputy Convener, 5 January 2022
Dear Beatrice,
THE WASTE AND AGRICULTURE (LEGISLATIVE FUNCTIONS) REGULATIONS 2021 (“SI ENV022”)
EU EXIT LEGISLATION – PROTOCOL WITH SCOTTISH PARLIAMENT
Thank you for your letter of 10 November confirming that the Committee is content for the Scottish Government to give consent to UK Ministers making regulations on its behalf in relation to SI ENV022.
In that letter you also asked me to clarify whether the Scottish Government has made any SSIs under the defective power that SI ENV022 seeks to correct.
I can confirm that the Scottish Government made the Rural Support (Controls) (Coronavirus) (Scotland) Regulations 2021 (the “2021 SSI”), which in part purported to rely on the defective power that SI ENV022 seeks to correct.
Prior to being made aware of the defective power caused by the error in the UK deficiency fixing SIs , the Scottish Government sought to use Article 75(3) of the retained EU Law version of Regulation (EU) No. 1306/2013 of the European Parliament and of the Council on the financing, management and monitoring of the common agricultural policy (the “Horizontal Regulation”) to introduce derogations to that Regulation by way of the 2021 SSI.
The defective power issue only affects the derogation in regulation 2(2) of the 2021 SSI as it relates to the Less Favoured Area Support Scheme (“LFASS”). In absence of the purported derogation, the Scottish Ministers are required to comply with the full requirements of Article 75(2) of the Horizontal Regulation before LFASS payments are made in respect of the 2021 scheme year.
The purported derogation was a response to the need to postpone on-the-spot checks as a consequence of the coronavirus pandemic. It was anticipated that the postponement of those checks would prevent the Scottish Ministers from conducting the full pre-payment verifications that are required by Article 75(2) of the Horizontal Regulation. However it has been possible to make better progress than anticipated with the verification of eligibility conditions relating to LFASS. Accordingly, the absence of the derogation relating to LFASS that was included in the 2021 SSI, will not cause any delay to the LFASS payments and the Scottish Government anticipates that Scottish Ministers will comply fully with Article 75(2) of the Horizontal Regulation in spite of the absence of the derogation. The Scottish Government does not currently intend to make an SSI re-making an equivalent derogation as it is no longer considered necessary.
I trust this letter gives you that information you require, but in the event of any queries, please do not hesitate to contact myself or my officials whose contact details are contained in the notification for the SI ENV022.
Yours sincerely,
Mairi Gougeon