---

Scotland Bill

I welcome this opportunity to discuss a substantive issue in relation to the Calman commission report and the subsequent Scotland Bill. It compares favourably with some of the discussions and superfluous issues that have been raised by the SNP during the course of the evening. Hon. Members will know that the Calman commission made a recommendation on food content and labelling which, as the hon. Gentleman has pointed out, is not included in the Bill. I shall set out the Government's reasons for deciding not to include it, as was made clear in the Command Paper. Although the recommendation seems sensible on paper, it presents a wide range of difficulties in practice, and I shall set those out. As he has said, the Scottish Parliament's report on the Scotland Bill also sought a fuller explanation for the Government's position. The commission made the following recommendation:"““The Scottish Parliament should not have the power to legislate on food content and labelling in so far as that legislation would cause a breach of the single market in the UK by placing a burden on the manufacturing, distribution and supply of foodstuffs to consumers, and Schedule 5 to the Scotland Act should be amended accordingly.””" The commission also recommended that the Scottish Parliament's and Scottish Government's abilities to deal with public health issues should remain, so the recommendation does not cover this aspect, and the Government fully support that. Importantly, and rightly, Calman recognised that food content and labelling are almost exclusively regulated at European Union level, so any scope for national flexibility at member state level when implementing this European law is extremely narrow. Hon. Members will know that general and nutritional labelling is currently being recast in a proposed European regulation. The resulting legislation will be directly applicable across the whole of the United Kingdom. A number of other labelling and food standards matters are governed by European directives. Even where no specific food-related legislation has been adopted at European Union level, free movement principles mean that any food which can be lawfully sold in any member state must be able to be sold throughout the United Kingdom, and vice versa. Significantly, single market rules seeking to avoid barriers to trade being erected apply equally to rules applied in just one part of a member state. Any national measure would need to be notified at member state level, and clearance would need to be obtained from the European Commission before adoption. Before seeking such clearance, consideration would always need to be given to the potential for any disruptive impact within the United Kingdom. I emphasise to right hon. and hon. Members that the Scottish Parliament is already in a position where it cannot legislate to set particular Scottish standards for food content in cases where that would breach the single European market or supplement existing European regulations. The Scotland Act prohibits the Scottish Parliament from legislating in a way that is incompatible with Community law, and Scottish Ministers have no power to carry out any executive act which is incompatible with that law—to do so would be ultra vires and any such act would have no effect. It is relevant to the Calman commission's recommendation that member states may restrict the free movement of goods in exceptional and limited cases. One example where that might be possible is if the Scottish Parliament were to need to take action for the purposes of public health. Again, however, Calman did not suggest any restrictions in this area. The Government are aware of only two instances where Scottish food legislation imposes different requirements from those that apply in England. First, the sale of raw milk or cream for direct human consumption is banned in Scotland but permitted, subject to certain restrictions, in England—European legislation specifically allows that. Secondly, the rules regarding food storage temperature control requirements are much more detailed in England than in Scotland. Both those differences predate Scotland's ability to make its own legislation and both relate to food safety, not general food labelling or standards. That suggests to the Government that there is not a substantial problem to be addressed. There is therefore no need, in our view, to amend the Scotland Act. Amending schedule 5 to the Act poses a number of possibly insurmountable problems, at the root of which is the fact that the Calman commission's recommendation seeks to address a particular effect of legislation—that is, the breach of a single market. The purpose test that applies to the reserved matters in schedule 5 to the Act requires both the purpose and the effect of a provision to be taken into account. It is therefore possible for a provision to have an effect on a reserved matter and yet not relate to it when the purpose test is applied. Simply including a matter in schedule 5 does not guarantee that it can never be affected by legislation that is in the competence of the Scottish Parliament. There is no precedent for enabling the Scottish Parliament to legislate on a matter provided that its legislation only has certain effects. Even if it were possible to create a new type of reserved matter, there would still be problems. Indeed, any such measure would depend on a definition of what is meant by the United Kingdom single market, which is a concept at the heart of Calman's recommendation. Furthermore, any amendment of the Scotland Act would create a divergence between the different countries of the United Kingdom as the devolved institutions in Northern Ireland and Wales are not subject to equivalent restrictions. To summarise, although Scottish Parliament legislation of the type that Calman's recommendation is designed to prevent is theoretically possible, it is highly unlikely. The likelihood of the Scottish Parliament's legislating on food content and labelling in a field where exemptions can be found from single market legislation and where any applicable European regulations can be simultaneously disapplied is very limited. The likelihood of its doing so for purposes that are not related to legitimate actions in the field of public health is extremely low. Finally, any national measures on labelling or content where a member state may be able to act would need to be notified to the European Commission at member state level.