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Lord Rotherwick: Since we have now heard from the noble Lord, Lord Sewel, that there is a possibility of the Scottish Parliament exercising its powers--

Lord Sewel: I did not say there is a possibility of the Scottish Parliament exercising its powers or, if I did, I was mistaken. I was saying that the Scottish Parliament is more than content to go down the road of having a UK body but it is nevertheless the case that, in terms of the statutory framework established by the Scotland Act, the Scottish Parliament has legislative competence in this area.

4.45 p.m.

Lord Rotherwick: I am grateful to the noble Lord. I should more correctly have said “could" exercise its powers to have a separate food standards agency. Then one must go back again and explore the second clause which is all about how the agency is consisted. In the case that it could do this, provisions must exist to allow for the two members to be appointed by the Scottish Ministers to be taken back. I would ask the Minister to give an answer on the unlikely event of that happening.

The Minister of State, Ministry of Agriculture, Fisheries and Food (Baroness Hayman): We have had a succinct debate that has covered very clearly the issues that we have at stake here. As my noble friend Lord Sewel said, nothing in this Bill can change the legislative framework in which the decision was taken by Parliament, when passing the Scotland Act, that food safety and food standards were devolved matters and matters of competence for the Scottish Parliament.

That having been said, I can perhaps reassure the noble Lord, Lord Mackay of Ardbrecknish, that the case that he put, which I have put during Committee, that food safety is a matter that does not respect internal borders and, indeed, that we have a single market for food in the United Kingdom, is one that has been taken on board by the UK Parliament and by the devolved authorities. That is precisely why all those authorities have recognised the sense of having the UK agency and are setting up exactly that sort of agency. The food standards agency will work in a way that allows the UK to have shared access to the best scientific resources, avoids the need for duplication that separate agencies would bring and helps us to deliver consistent advice on food safety and standards across the country, which is in the interests of both consumers and producers of food.

The issue of the likelihood of change is not an imminent one. We have had very clear and distinct views from the Scottish Parliament on that matter. What is at stake here is whether we recognise as legislators that the possibility of change is there in the legislative framework; it is there in the Scotland Act, it is possible. The noble Lord, Lord Mackay of Ardbrecknish, said that he did not want to be told that

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it would never happen--never is a very long time. The possibility of people's views changing is envisaged in the legislative framework and it is, therefore, prudent that in this clause we make legislative provision for dealing with exactly the sorts of consequences, described by the noble Lord, Lord Rotherwick, of looking at what the effects would be on a UK agency and what consequential changes would have to be made. As I say, I do not in any way envisage that happening in the foreseeable future, but we are making prudent legislative provision against the possibility that at some further point in time the devolved authorities in Scotland and Northern Ireland, which have the power, make their own primary legislation to set up separate arrangements for food safety and standards or withdraw from some of the functions of the agency. These are the adjustments to the Food Standards Act in Clause 33; for example, the arrangement for the appointment of members, as the noble Lord, Lord Rotherwick pointed out, and the financial provisions and the transfer of any property rights, interest and liabilities as a result of changes in the structure of the agency.

Removing this provision would leave us without a principal procedure to put matters right. But perhaps even more importantly, I believe it would be sending a signal that Westminster does not accept the basis on which Parliament legislated. The fact that the Scottish Parliament has decided not to exercise those powers and wishes to be part of the UK agency is something we all welcome and would wish to preserve, but I do not think we can ignore the fact that that is not the basis on which Parliament legislated under the Scotland Act.

I can perhaps reassure the noble Lord, Lord Mackay, that some of the potential for there being different rules and regulations in different parts of the United Kingdom is not suddenly created by this possibility. We discussed the issue of greentop milk on the first day of the Committee. It is already possible for secondary legislation in Scotland to invoke a different regime in the areas of food safety and standards. It happens very infrequently, and it happens when there is a particular need for it, but we are not talking about a sudden change that would occur were Scotland--as we do not expect it to do, and as I do not believe there is any intention to do--at some point in the future to decide to set up a separate framework for exercising their competency in food safety and food standards.

This clause simply reflects the situation under devolution as it is, and gives a fallback position which I think is absolutely justifiable and, as the noble Viscount, Lord Thurso, said, was looked at specifically by the Delegated Powers and Deregulation Committee, which recognised that it is essential to put exactly that sort of provision in the Bill. I hope that members of the Committee will agree that the clause should stand part of the Bill.

The Earl of Selborne: Before my noble friend responds, will the Minister kindly say whether, in the cause of provident legislative provision, the issue

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should be addressed in the unlikely event--which we all accept is most unlikely--that the Scottish Parliament wishes to exercise the powers that devolve to it? In that unlikely event, would there be any merit in putting on the face of the Bill--again I add the words “provident legislative provision"--a requirement that at least the agencies should compare notes; in other words, have a statutory committee? Would that in any way help, or would it simply be unnecessary?

Baroness Hayman: I am not sure that it would help to place it on the face of the Bill. We are dealing here with the changes that would have to be made to this piece of legislation were that withdrawal to take place. I am absolutely certain that it would be sensible to have exactly that sort of structure, and that might well fall out of the consultation on the Order in Council that took place. But to set up a statutory committee for co-operation is almost recreating the structure that would be taken apart by the Scottish Parliament deciding to act in this way. We would have to look at what actually was being proposed, because there could be alternative routes that were taken dealing with that situation as it arises. I said that this was a prudent provision given that there was competence. It is not prudent to go through the next line of what we would do in terms of alternative structures, although I am sure that any UK government and any Scottish Parliament and Executive would wish to make proper arrangements for dealing with those sorts of interface issues to which he has referred.

Lord Mackay of Ardbrecknish: I am as unconvinced about this issue today as I was when we debated the devolution of these powers to the Scottish Parliament in the Scotland Bill. They are exactly the same issues I raised of there being an internal market in the United Kingdom with the possibility therefore of different standards being imposed.

Both the Minister and the noble Viscount, Lord Thurso, seemed to think that if the Delegated Powers and Deregulation Committee looked at the matter and was satisfied, that was somehow game, set and match. I have to tell the Minister and the noble Viscount that in fact the Delegated Powers and Deregulation Committee does not discuss the merits of the issue. The questions it asks itself are more to do with secondary legislative powers. For example, it asks itself whether this secondary legislation should be dealt with by affirmative or negative procedures. It asks whether the Henry VIII clauses are acceptable. This is a substantial Henry VIII clause, and I am not convinced that the noble and learned Lord, Lord Simon of Glaisdale, would consider it appropriate so to amend an Act of Parliament by secondary legislation that the Act was changed out of all recognition.

That is the logical consequence of what may happen. One changes it from being a United Kingdom statute to being an England-only statute. One has to go right back to many of the clauses, including Clause 2, and change the composition of the board. If I had been on the Delegated Powers and Deregulation Committee,

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I would have said that was closer to Henry VIII than I like, but the Delegated Powers and Deregulation Committee does not discuss the merits and demerits, whether it is right or wrong that the Scottish Parliament should have these powers. It discusses whether the legislative power in the Bill for dealing with secondary legislation is appropriate to what has been done. It does not say that the issue is acceptable; it says that the legislative way is either right or wrong.

We are right to look at the issue. We are being told that it would not be sensible to have two agencies in the United Kingdom, but we ought to allow for it. That is quite an interesting piece of law-making and I may apply it to another Bill.

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