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Seòmar agus comataidhean

Rural Affairs, Islands and Natural Environment Committee

Meeting date: Wednesday, January 25, 2023

Agenda: Decision on Taking Business in Private, Shark Fins Bill, Genetic Technology (Precision Breeding) Bill, Subordinate Legislation


Genetic Technology (Precision Breeding) Bill

The Convener

Our next item of business is consideration of the legislative consent memorandum for the Genetic Technology (Precision Breeding) Bill. I welcome to the meeting Màiri McAllan, the Minister for Environment and Land Reform, and her supporting officials: Rosemary Anfield, genetically modified organisms policy officer; Caspian Richards, head of the policy and pesticide survey unit, science and advice; and Emily Williams Boylston, from the Scottish Government’s legal directorate.

I ask the minister to make an opening statement.

The Minister for Environment and Land Reform (Màiri McAllan)

I am happy to say a few opening words, convener. I thank the committee for inviting us to give evidence on the legislative consent memorandum for the United Kingdom Government’s Genetic Technology (Precision Breeding) Bill.

As the committee will know, the UK Government’s bill will remove from genetically modified organisms regulations in England

“plants and animals produced using modern biotechnologies, and the food and feed derived from them ... if those organisms could have occurred naturally or been produced by traditional methods.”

The legislative consent memorandum requires us to consider one discrete aspect of the bill. The question before members today is not whether the committee and the Parliament support the policy purpose of the UK Government’s bill; we have discussed that on a number of occasions, and I have no doubt that we will continue to do so.

I note also that we are not looking today at the impacts on the bill that arise as a result of the United Kingdom Internal Market Act 2020. I wrote to the convener on 10 January to highlight the Scottish Government’s concerns in that regard; however, those are not under consideration today.

Nonetheless, I will discuss clause 42, which enables the Secretary of State for Environment, Food and Rural Affairs to make

“supplementary, incidental or consequential provision in connection with any provision of or made under this Act”.

It therefore permits the amendment of legislation that relates to the main purpose of the bill, including devolved legislation. For example, the regulation of GMOs in Scotland and of a number of other related policy areas, such as agriculture and food, is devolved and engaged here. As clause 42 permits the making of regulations that amend existing legislation in devolved policy areas, it is a provision within the legislative competence of the Scottish Parliament.

However, under the clause as it is currently drafted, there is no requirement for the Scottish ministers to consent to regulations, nor for the Scottish Parliament to scrutinise them. It is the Scottish Government’s position that allowing UK ministers to legislate in devolved areas without consent

“represents an erosion of devolved competence”,

and it therefore recommends withholding consent with regard to clause 42.

I will say a quick word on timing before I wrap up and take any questions. I note that we could have been in a different position with regard to the LCM if the UK Government had engaged with us in drafting its bill. My officials first saw the text of the bill on the afternoon prior to its introduction in the House of Commons, and—as I understand it—after, if not simultaneously with, the content being shared with the media.

It took us some time to determine whether the terms of the bill engaged devolution guidance notes and whether an LCM was required. Having established that it was, my officials and I sought to engage with the UK Government on potential amendments to clause 42, which would, in general, have required consent and might have allowed us to recommend accepting the bill or giving consent. However, that has not been fruitful and I am still awaiting a response to my letter of 8 November to Mark Spencer, the DEFRA minister.

All of that meant that it was not possible to lodge the LCM within the timescales that I know the committee would have preferred, and I apologise for that. We are happy to take any questions.

The Convener

Thank you, minister. We absolutely share your frustration at the lack of time that we have in which to look at this, and we agree that, today, we are not looking at the general principles of genetic engineering or the wider impact that the legislation might or might not have.

My question is about the fact that the Scottish Government, not the UK Government, has brought forward the LCM because the UK Government did not feel that one was required. I understand that the Scottish Government is concerned about the consequential powers in clause 42. Has the Scottish Government had any indication of how the powers are intended to be used in relation to Scotland that would cause you to raise concerns?

Màiri McAllan

There are two parts to that question. First, one of the problems with that clause and with the legislation generally is that it is very unclear about exactly how the UK Government intends to utilise and implement it and about what implications that will have for Scotland. We have examined the powers that are granted to the secretary of state under clause 42, taken that to its logical conclusion and almost hypothesised about what could ultimately be done with those. Our view is very much that those are broad powers to make

“supplementary, incidental or consequential provisions”

in a bill that touches on a range of devolved policy issues from food and feed to animal health and welfare to the regulation of GMOs generally. There is a broad scope in a context of no clarity whatsoever.

Have you had any indication that the UK Government would intend to use those powers?

Màiri McAllan

I think that including them in primary legislation is an indication that it would intend to use them at some point.

Secondly, in terms of any indication that we have had about how, specifically, the powers might be used, I know that the regulation of seeds is potentially an area in which there has been some indication that an early piece of work might be done. Perhaps my officials will say a little bit more about that. In essence, placing certain seeds on the market is currently organised on a GB nations basis. Changes to that, to account for this bill, might be one of the early moves of secondary legislation.

Rosemary Anfield (Scottish Government)

There have certainly been discussions on the common framework on plant varieties and seeds, in which there has been an indication that regulations around seeds and the national list might be an area where DEFRA would look to use those powers early.

Jim Fairlie

I will follow on from what the minister has just said. The convener asked whether there is anywhere where you see the powers being used, but I am looking at the letter that the UK Government sent to you. It says:

“We have been clear that we do not presently intend to amend the GM regulatory regime in Scotland to remove categories of products which are currently regulated as GMOs. The views of stakeholders in Scotland will be central to decision-making in this devolved area of responsibility”.

That concerns me greatly. Does the UK Government intend to go beyond the Scottish Government to speak to stakeholders first, before it comes to the Scottish Government? Also, the word “presently” concerns me. It indicates to me that what the UK Government is actually saying is that it may, at some point, decide to go beyond the Scottish Government’s devolved powers so that it can make decisions at Westminster. Is that your interpretation of that letter?

I am not sure what letter you are—

Unfortunately, the paper does not immediately make it clear that that letter is from the Scottish Government.

Jim Fairlie

I apologise. The papers were not clear.

Has there been any intergovernmental discussion about the regulation of new genetic techniques in the future, including the extent to which the common frameworks process has already been used?

Màiri McAllan

Yes, there has been a lot of back-and-forth discussion between Scottish Government officials and DEFRA officials. We have gone backwards and forwards on whether an LCM is required and have discussed our attempts to amend clause 42, which would require the Scottish ministers’ consent. At a ministerial level, I have had less luck with having conversations with my counterparts. As I said, I wrote to Mark Spencer, the DEFRA minister, on 8 November to seek a conversation with him, and I have yet to receive a reply.

We are talking about widespread and complex issues to do with the application of regulation across the UK, which should have been brought to the common frameworks process long before the bill was introduced, but that did not happen. Information is now coming in, but the matter is exceptionally complex. Officials in each of the engaged common frameworks are now working through it.

I will leave it there.

Emma Harper

I was interested to learn that we received 11 responses to the committee’s call for views. Some of the responses specifically mentioned clause 42. The Scottish Animal Welfare Commission said that we should not agree to the LCM because there would be an impact on Scotland. What communication has the Scottish Government had from other stakeholders in Scotland about the LCM?

I will hand over to officials, to see whether they have spoken directly to any of the stakeholders.

Caspian Richards (Scottish Government)

We have not had direct contact with any of the stakeholders who submitted responses to the committee’s call for evidence.

There are 11 responses that express a variety of views, and it is interesting to read them. That might need to be followed up as we move forward.

We will certainly do that.

Ariane Burgess

The minister touched on this in her opening statement. She wrote to the UK Government to say that the Scottish Government did not want to

“create further regulatory divergence on the regulation of GMOs, when the European Commission is in the process of conducting its own consultation on the issues.”

The Scottish Government clearly takes a more cautious position on gene editing, which aligns more closely with that of the EU. I would like to find out more about the implications of further regulatory divergence on GMOs for the UK internal market and for the effectiveness of Scottish regulations.

Màiri McAllan

That is a great question. On the point about the EU, the question of decoupling gene editing from the definition of GMO is not being considered uniquely by the UK Government. It is responsible of the Scottish Government to consider such developments and to listen to scientists and, equally, to civic society and to communities in order to find out their views.


We are watching closely what is happening at the UK Government level and, in particular, at the EU level. That is not only because the EU has been a beacon of environmental protectionism and progress, but, most of all, because of the very real trade implications of any divergence, which I think is what you are alluding to. The UK Government’s own impact assessment for its bill highlighted that any difference in position between the UK and the EU could create impediments to trade in the form of additional barriers and costs. That is a consideration, alongside the implications of the United Kingdom Internal Market Act 2020 for Scotland and the wider point about how stakeholders in Scotland feel about the issue.

Good morning, minister. I had a question about the EU, which you have answered quite comprehensively. Where else do you see the powers of clause 42 being used?

Màiri McAllan

That goes back to our earlier discussion—I am sorry, but I cannot remember who asked the question. At the moment, one of the main problems is that the clause is broad and we do not have a great deal of information about how the UK Government might intend to use it. We wanted to ensure that there would be a pretty standard consent mechanism, so that whatever issue arose in the future would be brought to the attention of the Scottish ministers, the Scottish Parliament would have an opportunity for scrutiny and we would consider the matter on its merits or demerits at the time. As things stand, we do not have that opportunity.

As I have said, albeit that the bill currently applies only to England, it touches on many aspects of devolved law—for example, food, farming, animal welfare and GMOs in general. It would be wrong of me to stray too far into hypotheticals but, right now, we have no information about how the clause might be used. It could be used in relation to any of those issues.

Is this the first time that you have had concerns over a clause similar to clause 42? Have there been other examples of Westminster legislation in relation to which you have had to consider such a clause?

Màiri McAllan

In my portfolio, I am not currently considering any other such provisions. Taking such powers in a bill is not unusual, but we would expect there to be a consent mechanism, which is the crux of our difficulty here. I am not sure whether my legal colleagues would like to add anything. I presume that they are working on aspects of other bills that I am not working on.

Emily Williams Boylston (Scottish Government)

I would simply add that we need to assess each bill on its own merits. Certainly, the Scottish Parliament’s standing orders do not necessarily exclude consequential provision. We considered clause 42 in the context of the bill and took into account areas that could potentially be affected by consequential amendments.

The Convener

I want to get this clear in my head. As a norm, other pieces of legislation will have a clause similar to clause 42. We see that in UK and Scottish legislation. However, it is only in this instance that the Scottish Government has decided that an LCM is required and the UK Government has decided that it is not required. Is that correct?

Emily Williams Boylston

I cannot comment on the generality of bills. I can say that this bill is significant in that it relates to an area of policy that is itself devolved but also has massive impacts on other devolved policy areas, albeit that the bill’s substantive provisions apply only in England. It would probably be difficult to find other examples that would neatly match that particular pattern, which is why we assessed it on its own merits.

Thank you. That is helpful.

Emma Harper

I want to pick up on what you said about the broader impacts of the bill. The issue is not just clause 42. Are we worried about other issues?

NFU Scotland’s response to the call for views didnae really talk about clause 42, but it considered that gene editing techniques could have potential benefits for

“food, nutrition, agriculture, biodiversity and climate change.”

I am interested in hearing your thoughts on the bill’s broader impacts in Scotland.

The Convener

Can I interject here? We are trying to avoid getting into a bigger discussion about the pros and cons of the Genetic Technology (Precision Breeding) Bill at the moment. It would be helpful if, at some point in the future, we could have the minister and her officials back with us to set out the Scottish Government’s position. We could also take the opportunity to hear other stakeholders’ views. Today, though, and with the information that is before us, I would not want to put the minister or committee members in such a position when we are specifically considering the implications of the LCM and clause 42.

I apologise, convener.

The Convener

That is quite all right.

As members have no further questions, I thank the minister and her officials for joining us. I suspend the meeting briefly, after which we will move on to our next item of business.

10:20 Meeting suspended.  

10:21 On resuming—