As a result of the UK leaving the EU on 31 January 2020, the UK Agriculture Bill makes provision for future agricultural policy for England to replace the EU Common Agricultural Policy, as well as on a number of policy areas which apply to the whole of the UK, including to Scotland. For more detail on the UK Agriculture Bill, you can read the SPICe briefing on the Bill.
This blog explores how the UK Agriculture Bill applies to Scotland, and the Scottish Government’s and Scottish Parliament’s views on the issues covered in the Bill. The Bill is a revised version of the UK Agriculture Bill which partially made its way through the UK Parliament in the 2017-2019 session but fell at dissolution. As in the 2017-19 version of the UK Agriculture Bill, the UK and Scottish Governments disagree to some extent regarding whether consent is needed for certain provisions, and the terms of Scottish consent to other provisions.
As agriculture is a devolved policy area, not all parts of the Bill apply to Scotland. For example, the Bill makes provision for a new post-Brexit agricultural policy framework, but for England only. The Scottish Government introduced the Agriculture (Retained EU Law and Data) (Scotland) Bill in November 2019. This Scottish Bill makes provision for an interim approach to agriculture policy for Scotland based on simplifying and improving retained EU law. The Scottish Government intends to bring forward new legislation in due course to make provision for a longer-term agricultural policy for Scotland.
The UK Agriculture Bill is currently at Report Stage in the House of Commons. This took place on Wednesday 13 May.
The Scottish Government lodged a legislative consent memorandum and motion for the UK Agriculture Bill on 4 May 2020.
Which parts of the Bill apply to Scotland?
The UK Government consider that the following clauses apply to Scotland, though do not feel that consent is required for all of these provisions:
- Part 1, Clause 17: Food Security
- Part 3, Clauses 27-30: Fair dealing with Agricultural Producers and Producer Organisations
- Part 4, Clauses 31-32: Fertilisers and Identification and Traceability of Animals
- Part 4, Clause 33: Red Meat Levy
- Part 5, Clause 36-7: Organic products
- Part 6, Clauses 40-42: World Trade Organisation Agreement on Agriculture
The Bill requires legislative consent from the Scottish Parliament for clauses on Food Security, Fertilisers, Identification and Traceability of Animals, Red Meat Levy, and Organic Products, but not on Fair Dealing with Agricultural Producers and Producer Organisations, or on provisions to comply with the WTO Agreement on Agriculture.
What does the Memorandum say?
The Scottish Government’s Legislative Consent Memorandum states that the Scottish Government agrees with the UK Government that consent is required for the parts that have been identified as needing Scottish consent, but only gives consent to some of these provisions, and not to others (more on this below).
However, the Scottish Government disagrees that consent is not required for provisions on fair dealing obligations and producer organisations, and for provisions on the WTO Agreement on Agriculture (AOA).
Consent for some provisions, but not for others
On those provisions where it is agreed that consent is required, the Scottish Government have recommended consent on some provisions and not others. They recommend that consent be given for:
- Part 1, Clause 17: Food Security
- Part 4, Clause 31: Fertilisers
- Part 4, Clause 33: Red Meat Levy
However, the Scottish Government have not recommended consent on other aspects:
- Part 4, Clause 32: Identification and Traceability of Animals; and Part 5, Clause 36-7: Organic products – The Scottish Government considers that regulations made by the Secretary of State under these powers which extend to Scotland and relate to devolved matters should only be made with the consent of Scottish Ministers. Therefore, legislative consent is not given for this clause.
On both of the above clauses the Scottish Government state in the Memorandum that
“if the UK Government is prepared to amend the Bill to this effect, the Scottish Government would be able to recommend consent to these provisions in the Bill.”
The Memorandum alludes to positive discussions on these two issues between the UK and Scottish Governments.
Other provisions – is consent required?
The Scottish Government feels that other provisions that extend to Scotland but where the Bill does not currently require consent, do in fact also require the consent of the Scottish Parliament.
On fair dealing obligations, the Memorandum states that the Scottish Government
“…considers that this requires the Scottish Parliament’s consent as it is for devolved purposes, namely the regulation of unfair contractual terms in commercial contracts by agricultural producers in Scotland.”
The Scottish Government also disagree that provisions on producer organisations relate to competition law, and argue that the provision requires Scottish Parliament consent because it:
“is for a devolved purpose, namely the promotion of an effective agricultural market. It effectively replaces the EU producer organisation regime, which was clearly for that purpose”.
Finally, the Scottish Government disagrees that consent is not required for provisions on the WTO Agreement on Agriculture (AOA). The AOA is an international treaty that sets rules for trade in agricultural products. The AOA covers market access, domestic support and export competition. The AOA categorises domestic support into three different categories (or ’boxes’), depending on whether they are considered to be trade distorting. There are upper limits on how much domestic support that is potentially trade distorting can be given to producers.
The provision in the UK Agriculture Bill relates to setting financial ceilings on the amount of support that each UK nation can provide, the classification of support into different boxes under the WTO AOA, and allowing the UK Government to act as final arbiter in any disagreements between UK administrations about classification of support. The Scottish Government considers that UK-wide arrangements on these issues require the Scottish Parliament’s consent.
This is because the Scottish Government considers that the allocation of support and the setting of financial ceilings can affect devolved competence on agricultural policy and agricultural support. They suggest in the Memorandum that
“[current provisions] would allow the Secretary of State to decide how schemes, such as the Beef and Sheep coupled support schemes and the Less Favoured Area Support Scheme, would be classified under WTO rules, and how much money could be paid from them.”
According to the Memorandum, some progress has been made on this provision, but not enough for the Scottish Government to recommend consent.
What have the Scottish Parliament’s committees said?
The UK Agriculture Bill has been scrutinised by the Delegated Powers and Law Reform (DPLR) Committee, the Environment, Climate Change and Land Reform (ECCLR) Committee, and the Rural Economy and Connectivity (REC) Committee.
Having already asked a number of written questions of the Scottish Government, the DPLR Committee wrote to the Cabinet Secretary for the Rural Economy and Tourism on 12 May 2020. In particular, they asked the Cabinet Secretary to provide assurances by 19 May that the Scottish Parliament would be notified in advance of Scottish Ministers consenting to the UK Government making legislation on devolved competence.
The ECCLR Committee also wrote to the Scottish Government on a number of issues related to those areas that require Scottish consent, and in relation to the broader implications of the Bill on the environment, and on Scotland’s devolved competence in these areas.
Summarising their correspondence in a letter to the REC Committee, ECCLR Committee raised the issue of whether aspects of the bill would constrain policy divergence on devolved policy. For example, in relation to trade agreements and the clause on compliance with the WTO AOA, they asked to what extent Scottish Ministers’ policy options within devolved competence would be limited after the transition period, “for example, with regard to maintaining a level playing field on environment, animal welfare and food safety.”
The REC Committee considered the LCM in their virtual meeting on 13 May, and questioned the Cabinet Secretary for the Rural Economy and Tourism. Following this consideration, including on issues such as funding and common frameworks, the Committee has recommended to the Parliament that they agree to the Legislative Consent Motion, which would give consent to some, but not all provisions of the UK Agriculture Bill.
The Legislative Consent Motion leaves some issues unresolved, such as whether an agreement will be reached between the Scottish and UK Governments on the WTO Agreement on Agriculture, organics and identification and traceability of animals.
In addition, following the Report Stage in the House of Commons on 13 May 2020, questions remain on issues raised that are not directly related to legislative consent, for example on addressing standards for food safety, animal welfare and the environment, and what funding will be available for Scottish agriculture.
Anna Brand, Senior Researcher, Agriculture, Rural Affairs and Fisheries