Chamber and committees

I cannot add much more to what I have already intimated in the responses that I have given to the committee. We use that specific language because it has legal effect. The advice is that we would normally use that language in relation to consultations and where guidance is set out in other pieces of legislation. That particular language is appropriate because of its legal effect.

I understand the desire, which is set out in the amendment, for any consultation to be as inclusive as possible, and I absolutely support the amendment’s aims. The issue is important—indeed, it was highlighted in the committee’s stage 1 report. I note that the committee welcomed the commitments made by me and officials that the Scottish Government’s approach to consultation will be as open, accessible and inclusive as possible. As we said in our response to the committee’s stage 1 report, we intend that to be the case for all future consultations on the good food nation plans, and we agree that consultation methods should be tailored to each specific audience.

We already aim to be as inclusive as possible in our communication. So, although I whole-heartedly agree with the sentiment behind amendment 57, I am not sure what additional benefit there is in setting out a requirement in legislation to have regard to inclusive communication in relation to the exercise of all functions under the bill. I can see how the duty would operate in the context of duties to consult, for example, and I would support that aim. However, it is difficult to see how a duty to have regard to inclusive communication would operate in the context of some of the other duties that are outlined—for example, the duties to review the good food nation plans and to have regard to the good food nation plans when exercising relevant functions.

The amendment goes beyond what the committee set out in its stage 1 report, and I have concerns that, because of the wording, it might not be workable in practice. For those reasons, I urge Rachael Hamilton not to press amendment 57. Again, I would be happy to work with her in the run-up to stage 3 to find a workable alternative.

Amendments 9 and 23 are a response to the committee’s recommendations in its stage 1 report on giving further thought to the inclusion of more high-level objectives to reflect the broad vision and ambitions of the good food nation policy. The recommendation also reflected the views of many stakeholders. We agree that it would be valuable to set out our ambition in the bill, to underpin what it aims to achieve.

We have taken into account the recommendations of the committee and the contributions from stakeholders as to how that ambition should be included in the bill. We have carefully considered how to reflect that input while ensuring that any amendment has the necessary legal effect and provides clear direction to ministers.

Amendments 9 and 23 set out five principles that the Scottish ministers and relevant authorities must have regard to when preparing their good food nation plan. The five principles are intentionally high level and are set out in a format that gives them legal effect and provides clarity for the Scottish ministers and relevant authorities on what is expected of them.

We consider that the right place in the bill to state the principles is immediately following the obligations on the Scottish ministers and relevant authorities to prepare the plans. That is so that all the provisions in relation to preparing the plans follow on from one another, in a logical order.

Amendments 16 and 25, in my name, are consequential amendments arising from amendments 9 and 23. The amendments are to ensure that, as well as having regard to the principles when preparing the good food nation plans, the Scottish ministers and relevant authorities must have regard to the principles when revising the plan. Amendment 27, in my name, is also a consequential amendment arising from amendments 9 and 23. It provides a definition of “food business sector”, given that the phrase is used in amendments 9 and 23.

Amendments 81 and 82, in the name of Ariane Burgess, set out that relevant authorities should publish a statement alongside their good food nation plan and any revision of the plan, which sets out how, in preparing or revising the plan, the authorities complied with the requirement to have regard to the national good food nation plan. It would also have a section relating to the principles inserted by amendment 9. I am happy to support amendments 81 and 82.

I turn to amendments 1, 2 and 31, in the names of Rhoda Grant, Colin Smyth and Rachael Hamilton respectively. I recognise the points that the members have made. All those amendments propose text for setting out a purpose in the bill. However, as I hope that I have been able to outline, when drafting the proposed principles of the bill, we have taken care to ensure that they have legal effect. Amendments 1, 2 and 31 do not have legal effect: they are statements that do not place a duty on the Scottish Government or relevant authorities. The effectiveness of the Parliament’s legislative function depends on ensuring that bills, which will become the law of the land, contain only propositions that will have legal effect.

Amendments 9 and 23, in my name, have been drafted to reflect the views of stakeholders, to have the text in the bill that sets out its purpose or objective and to ensure that the text has the legal effect that the Scottish ministers and relevant authorities must have regard to the principles when developing their good food nation plans. For those reasons, I urge the committee not to support amendments 1, 2, and 31 but instead to support amendments 9 and 23 and amendments 16, 25 and 27, which are consequential to those.

The bill allows the Scottish ministers and relevant authorities to consult whomever they deem appropriate in the preparation of their good food nation plans. Amendments 11, 11A, 75 and 80 would amend the bill to make specific provisions about who should be consulted. Our view is that it would never be practical to list in the bill everyone who should be consulted, and the inclusion of a partial list might inadvertently give the impression that those who are listed are of greater importance or should be given greater weight than those who are not listed.

Amendment 4 would require the Scottish ministers to lay a statement alongside the national good food nation plan to detail how we carried out the consultation in an accessible and inclusive manner and to provide the responses that we received. The Scottish Government is always required to conduct consultations with an eye to accessibility and inclusivity and, given the importance of that, I understand why Colin Smyth lodged the amendment.

However, it would be useful to better understand the additional benefits that the member intends the amendment to provide—for example, we often receive significant numbers of consultation responses, which are already published with an analysis of the responses as a matter of course. We do not see a particular additional benefit to laying the consultation responses before Parliament, but I would be happy to work with the member between stages 2 and 3 to better understand the amendment’s aim and see whether we can come to a solution together.

I urge the committee not to support amendments 11, 11A, 75 and 80, and I ask Colin Smyth not to press amendment 4.

Amendments 13 and 24 would require the Scottish ministers and relevant authorities to act in accordance with their respective good food nation plans. The Government’s view is that the current wording of “have regard to” is the appropriate legal duty. Indeed, it is a legal duty that the Parliament has endorsed on numerous occasions elsewhere in the statute book, as I have mentioned in previous comments.

A duty to act in accordance with something would be appropriate for guidance that sets out how a function is to be carried out. In the case of good food nation plans, which would include outcomes and indicators as well as policies, such a duty would not be as effective.

The good food nation plans will be relevant to a wide range of policy areas and functions. A duty to have regard to the plans, which is the wording in the bill as introduced, will ensure that the plans are appropriately and effectively considered in those contexts. The current wording is, as I stated, the appropriate legal duty and a meaningful legal requirement. The duty to have regard to something is an obligation to consider it when making a decision.

I disagree with Rhoda Grant’s use of the word “only” in relation to a relevant authority being required to have regard to the plan and her comment that the duty does not hold any weight. Ultimately, the duty means that Government ministers and public bodies could be challenged in court for failing to have proper regard to the plans. There are many examples in which that has happened. Therefore, stakeholders will be able to hold the Scottish Government to account.

Taking all of that into account, I am of the view that the current wording of “have regard to” is the appropriate legal duty and I urge the committee not to support amendments 13 and 24.

I will first address Rachael Hamilton’s point and the question that she put to Karen Adam. We have covered that wording in previous discussion of other amendments. The words “have regard to” are used specifically because they have a legal effect. I have already outlined that ministers will be held to account for that, and they have been held to account for it previously. There is strength in that wording and it provides the ability to hold the Scottish ministers to account.

I will now address the amendments in the group. The bill, as introduced, confers several powers on the Scottish ministers to make regulations, and it provides that any regulations that are made using those powers will be subject to the negative procedure in the Scottish Parliament. The committee’s stage 1 report requested that the first exercise of the power conferred by section 4 to specify functions for the Scottish ministers, and any exercise of the power conferred by section 7(2)(c) to make a public authority a relevant authority, should be subject to greater levels of parliamentary scrutiny. Amendments 60 and 68, in the name of Alasdair Allan, provide for that extra scrutiny, as is recommended in the committee’s stage 1 report. Accordingly, I am grateful to Alasdair Allan for lodging the amendments, and I encourage the committee to support them.

The committee’s stage 1 report also recommended that there should be a formal provision for consultation with regard to specifying additional public authorities. I agree that additional scrutiny would be appropriate in this case. Karen Adam’s amendment 59 proposes a requirement for consultation if a new public body is to be added to the list of relevant authorities. I agree with that amendment and ask the committee to support it.

In our view, amendments 59, 60 and 68 add an appropriate level of additional scrutiny of the Scottish ministers’ powers to make regulations under the bill.

Beatrice Wishart’s amendments 62, 63, 66 and 67 would make regulations that are made under sections 7(3)(b) and 10 subject to the affirmative rather than the negative parliamentary procedure. The Delegated Powers and Law Reform Committee has indicated that it is content that the negative procedure is appropriate for those powers. For that reason, I urge the committee not to support those amendments.

Beatrice Wishart’s amendments 61 and 65 would make regulations that are made under section 4 subject to the affirmative rather than the negative parliamentary procedure. However, as noted in relation to the other amendments in the group in Beatrice Wishart’s name, the DPLRC was content that regulations under section 4 should be subject to the negative procedure. Alasdair Allan’s amendments 60 and 68 are in response to the approach that was recommended by the committee—namely, that the first set of regulations that are made under section 4 should be considered under the affirmative procedure, with subsequent amendments considered under the negative procedure. I am of the view that Beatrice Wishart’s amendments go further than the approach that was recommended by the DPLRC and this committee. For that reason, I urge the committee not to support amendments 61 and 65.

In summary, I urge the committee to support amendments 59, 60 and 68 and not to support amendments 61 to 63 and 65 to 67.

I reiterate that this bill is a framework bill and it provides exactly that—it sets the framework for the good food nation plans. I have listened to members who have lodged amendments, and I understand that they feel strongly that the targets, indicators and additional outcomes that they want to add to sections 1 and 7 are important and that there is merit in adding them. However, my view, which is also shared by a number of stakeholders who gave evidence to the committee at stage 1, is that setting out targets, indicators and outcomes in detail in the bill is problematic. If they are set out in primary legislation, it is challenging to ensure that they are and remain up to date and meaningful. There is also a risk that the focus will be only on the targets and indicators that are set out in the legislation.

I have been listening to the contributions today and I know that there are a great many issues that we need to tackle. I do not disagree with that or with the ambitions that the amendments are trying to achieve. However, putting those targets and indicators in the bill risks the legislation becoming one long list of targets that might not be relevant in five years’ time. Being able to take account of changing circumstances and make changes promptly and easily is more achievable if the targets are set out in the plans rather than in legislation.

If we were to add targets to the bill, there would be a risk of future food plans focusing solely on those targets and neglecting other, equally important considerations that we should be taking into account. We want food plans to cover the whole of the wide-ranging nature of the good food nation vision. For that reason, I am of the firm view that the place for the level of detail that members are talking about is in the plans. In its stage 1 report, the committee agreed that it would not be appropriate to include detailed targets in the bill and that the good food nation plans are the best place for them to be set out.

Rachael Hamilton’s amendments 69 and 46 propose text in relation to procurement, and Colin Smyth’s amendment 7 sets out a target that, by 2030, 60 per cent of food that is served on the premises of public bodies should be sourced from Scotland. Of course, there are strict rules around procurement, and that might mean that the intended aim of the amendments could not be achieved. For example, the trade and co-operation agreement with the European Union contains a duty of non-discrimination in procurement. That means that a sourced-in-Scotland target would be incompatible with our international obligations and would not be possible to implement. A requirement that imported produce must meet the same standards as food produced in Scotland would have to be considered in the context of international obligations, the United Kingdom Internal Market Act 2020 and procurement rules. However, the Scottish Government supports the use of procurement to support the social, economic and environmental wellbeing of our areas, and it is looking into opportunities to require local sourcing in public contracts.

I hope that what I have said highlights some of the issues that need to be considered when we are adding text about targets into legislation and that the examples that I have given illustrate my point about the risks that are associated with including in legislation text such as that suggested by the amendments.

Many of the issues in Monica Lennon’s amendments 70, 72 and 77 are already covered in statute, so it is not necessary to include the proposed changes in the bill.

All education authority and grant-aided schools in Scotland are under a statutory duty to comply with the Nutritional Requirements for Food and Drink in Schools (Scotland) Regulations 2008, which set out strict standards that all food and drink served in schools must meet. The regulations would also apply in relation to Beatrice Wishart’s amendments 35 and 49, as they apply to all food and drink provided as part of the school day, including breakfast and lunch provision.

In summary, I again state that the bill is a framework bill and is not the place for the level of detail that is proposed in the amendments—the most appropriate place for that would be in the plans. I therefore ask the committee not to support any of the amendments in the group.

The bill as introduced requires the Scottish ministers and relevant authorities to have regard

“to the scope for food-related issues to affect”

matters that are listed in sections 1(5) and 7(6). Those matters currently include social and economic wellbeing, the environment, health and economic development.

Jenni Minto’s amendments 37 and 51 add “animal welfare” to those lists, and her amendments 36 and 50 add text after the word “health” in sections 1(5)(c) and 7(6)(c), so that they would read:

“health and physical and mental wellbeing (including in particular through the provision of health and social care services)”.

Ariane Burgess’s amendments 73 and 78 propose additional wording in relation to the environment in sections 1(5)(b) and 7(6)(b), to ensure that regard is given to climate change and wildlife and the natural environment, as part of the consideration of the environment in the preparation of good food nation plans.

Those amendments reflect evidence that was given to the committee at stage 1, as well as feedback that the Scottish Government has received from stakeholders. Stakeholders told us that, in the lists of outcomes, there should be specific reference to animal welfare, climate change and biodiversity and all types of health, as well as to impacts on the provision of health and social care.

Rachael Hamilton’s amendments 38 and 52 and Monica Lennon’s amendments 74 and 70 add “education” and “child poverty” respectively to the lists in sections 1(5) and 7(6). I support those amendments.

The amendments mean that, when determining the content of their respective good food nation plans, the Scottish ministers and relevant authorities must have regard to the scope for food-related issues to affect outcomes relating to animal welfare, a broader description of health, climate change, wildlife and the natural environment, education and child poverty.

In our view, the additions that are proposed in amendments 37, 51, 36, 50, 73, 78, 38, 52, 74 and 79 are appropriate and ensure that those important matters will be considered when the content of good food nation plans is determined. The amendments also allow for future additions to the lists in sections 1(5) and 7(6).

However, the benefits of Rachael Hamilton’s amendments 39 and 53, which propose wording that would allow other matters to be added to the lists in sections 1(5) and 7(6), are not so clear. There is already a requirement to have regard to, among other things, the subject matters that are listed in those sections. If Rachael Hamilton agrees not to move amendments 39 and 53, and the consequential amendments 84 and 85, I would be happy to work with her before stage 3 to try to identify alternative wording.

I reiterate that this is a framework bill, so it would be more appropriate to include the level of detail in Beatrice Wishart’s amendment 55 in good food nation plans. For that reason, I urge the committee not to support the amendment.

Beatrice Wishart’s amendment 41 would require the Scottish ministers to “act in accordance with”—rather than “have regard to”—the international instruments that are listed in section 3 when preparing the national good food nation plan. We consider that the appropriate legal duty is to “have regard to” such instruments, and the Parliament has endorsed that form of legal duty on numerous occasions, as evidenced in the statute book, because it is a meaningful requirement. It is an obligation to consider the matter when making a decision. There are many examples of Government ministers and public bodies being successfully challenged in court for failing to have proper regard to a matter, so stakeholders will be able to hold the Scottish Government to account.

In this context, a duty to “act in accordance with” a provision of an international agreement would be tantamount to incorporation. The Scottish Government is committed to incorporating the rights that are listed in section 3 of the bill in the upcoming human rights bill, but it is important that we do not pre-empt that bill by incorporating certain rights in the Good Food Nation (Scotland) Bill. Not doing so will ensure that we create a coherent rights framework that avoids the fragmentation of rights and inconsistent mechanisms for their enforcement. For those reasons, I strongly urge the committee not to support amendment 41.

In summary, I urge the committee to support the amendments in the group that have been lodged by Jenni Minto, Ariane Burgess and Monica Lennon. I ask Rachael Hamilton not to move amendments 38 and 53 and the consequential amendments 84 and 85, so that we can work together in advance of stage 3 to identify a workable alternative. For the reasons that I have set out, I ask the committee not to support amendments 41 and 55.

You are absolutely right: there are undoubtedly challenges in that area, which is reserved to the UK Government. We continually engage with the Office of Gas and Electricity Markets to raise the significant issue of what are, essentially, penalties that we face in Scotland. We continue to raise that with Ofgem and the UK Government.

That is a really important point. We must continue to monitor that, because things have escalated and become worse even since the plan was published. That is why the monitoring of the plan and of the objectives and commitments that we have set out is important. The route map that we will publish shortly is also an important part of that process. It will set out in more detail the actions that we will take to meet the commitments in the plan.

We have regular communication about that in a couple of different forums. The national islands plan delivery group has been meeting quarterly to look at the route map. We are in constant discussion with that group, which is made up of local authorities and third sector and community representatives. There is also the islands strategic forum, where we engage with local authorities and their chief executives to talk about how we can work together to address challenges as they emerge. Through that regular engagement, we can identify emerging issues and try to address them.

We also have a number of different strategies. We passed the Fuel Poverty (Targets, Definition and Strategy) (Scotland) Act 2019 and we have a fuel poverty strategy. A variety of funds are in place to help those who are experiencing the worst fuel poverty. There is no doubt that people living in our island communities feel the pressure acutely, so it is important that we do everything that we can by working across Government to tackle those issues.