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Agriculture (Retained EU Law and Data) (Scotland) Bill

Overview

Most of EU law, as it stands on exit day from the EU, will convert into UK law. This is called “retained EU Law”. 

Scottish Ministers will be able to simplify or improve the European Union (EU) Common Agricultural Policy (CAP). The Bill will also give new powers for collecting agricultural data. If an individual doesn't provide agriculture data then there may be a fine. This is a new power. 

The Bill ensures that on exit day, the Scottish Ministers will have the power to ensure that CAP legislation continues. This may be as it is or with any improvements they may want to make. 

The majority of CAP legislation is about financial support to farmers.

This Scottish Government Bill was introduced by the Cabinet Secretary for the Rural Economy, Fergus Ewing MSP, on 6 November 2019.  

You can find out more in the Scottish Government's Explanatory Notes document. that explains the bill.

Why the Bill was created

The UK’s exit from the EU will mean that EU law will not apply in Scotland.

Scottish Ministers will have the power to transfer EU law into domestic Scottish law.

You can find out more in the document introduced by Fergus Ewing MSP that explains the bill. (attach Policy Memorandum)

You can find out more in the Scottish Government's Policy Memorandum document that explains the bill.

The Bill at different stages

'Bills' are proposed laws. Members of the Scottish Parliament (MSPs) discuss them to decide if they should become law.

Here are the different versions of the Bill:

The Bill as introduced

Agriculture (Retained EU Law and Data) (Scotland) Bill

The Member in charge of the Bill, Fergus Ewing MSP, sent this Bill and the related documents to the Scottish Parliament.

Bill is at ScottishParliament.SC.Feature.BillComponents.Models.BillStageModel?.DefaultBillStage?.Stage_Name stage.

Where do laws come from?

The Scottish Parliament can make decisions about many things like:

  • agriculture and fisheries
  • education and training
  • environment
  • health and social services
  • housing
  • justice and policing
  • local government
  • some aspects of tax and social security

These are 'devolved matters'.

Laws that are decided by the Scottish Parliament come from:

Government Bills

These are Bills that have been introduced by the Scottish Government. They are sometimes called 'Executive Bills'.

Most of the laws that the Scottish Parliament looks at are Government Bills.

Hybrid Bills

These Bills are suggested by the Scottish Government.

As well as having an impact on a general law, they could also have an impact on organisations' or the public's private interests.

The first Hybrid Bill was the Forth Crossing Bill.

Members' Bill

These are Bills suggested by MSPs. Every MSP can try to get 2 laws passed in the time between elections. This 5-year period is called a 'parliamentary session'.

To do this, they need other MSPs from different political parties to support their Bills.

Committee Bills

These are Bills suggested by a group of MSPs called a committee.

These are Public Bills because they will change general law.

Private Bills

These are Bills suggested by a person, group or company. They usually:

  • add to an existing law
  • change an existing law

A committee would be created to work on a Private Bill.

Bill stage timeline

The Agriculture (Retained EU Law and Data) (Scotland) Bill is currently at Stage 1.  

Introduced

The Scottish Government sends the Bill and related documents to the Parliament.

Stage 1 - General principles

Committees examine the Bill. Then MSPs vote on whether it should continue to Stage 2.

Committees involved in this Bill

Who examined the Bill

Each Bill is examined by a 'lead committee'. This is the committee that has the subject of the Bill in its remit.

It looks at everything to do with the Bill.

Other committees may look at certain parts of the Bill if it covers subjects they deal with.

Who spoke to the lead committee about the Bill

Video Thumbnail Preview PNG

First meeting transcript

The Convener

Agenda item 2 is the Agriculture (Retained EU Law and Data) (Scotland) Bill. Before we go any further, I ask any members present if they would like to declare an interest. I declare an interest in that I am a member of a farming partnership.

Peter Chapman (North East Scotland) (Con)

I declare an interest as a member of a farming partnership, too.

Stewart Stevenson (Banffshire and Buchan Coast) (SNP)

I am the joint owner of a very small registered agricultural holding from which I derive no income.

The Convener

This is our first evidence session on the bill. We will take evidence from the Scottish Government bill team who will provide information on the background to the bill and its objectives. I welcome Dr John Kerr, the head of the agricultural policy division; Dr George Burgess, deputy director of food and drink; Ally McAlpine, senior statistician; Vicky Dunlop, who is the bill team leader; and Andy Crawley, who is a lawyer for the Scottish Government. Vicky Dunlop will give a very brief introduction to the bill, of no more than three minutes, before we go to questions.

Vicky Dunlop (Scottish Government)

Thank you, convener. Good morning, committee. I thought it would be quite helpful to give the committee a little bit of background as to how the bill came about and why we need it.

Essentially, we need the bill because when—or indeed if—the United Kingdom leaves the European Union, the existing common agricultural policy rules will continue to apply across the whole of the UK, including Scotland, as retained EU law via the European Union (Withdrawal) Act 2018. Without the primary legislation, Scottish ministers would not be able to make changes to retained EU law. In their report from May last year, the agriculture champions recommended a transition period of three to five years after the UK leaves the EU.

That informed our approach to the “Stability and Simplicity: proposals for a rural funding transition period” consultation that ran last summer, in which a period of stability, with little or no change to existing CAP rules, was proposed for 2019 and 2020, followed by a period of simplicity during which the overarching structure of the CAP would be maintained but with improvements made where possible.

An analysis of the responses to the consultation was published on the Scottish Government’s consultation hub in November 2018. The outcomes of that analysis are being taken forward by the simplification task force, which we expect to report very soon, and the 2021-2024 policy and delivery co-ordination group.

All that has helped shape the development of the bill. However, the timing has been driven by the prospect of leaving the EU, and specifically the scope of the CAP from 2021. In addition, following the recent developments in the laws around data protection—namely the Data Protection Act 2018 and general data protection regulation—we decided to take the opportunity to update the legal mechanism by which the Scottish Government collects agricultural data. The current mechanism relies on powers under the Agriculture Act 1947 and is in need of updating.

There was an opportunity for a schedule to the UK Agriculture Bill to grant the Scottish ministers the necessary powers to do much of what is set out in this bill. However, as is set out in the legislative consent memorandum that was submitted to this committee at the end of last year, the UK and Scottish Governments disagreed about the reserved or devolved nature of three areas of the UK bill.

As the committee will be aware, the UK Agriculture Bill fell when the UK Parliament was prorogued in October this year. It was expected to be reintroduced following the Queen’s speech, but the early general election has overtaken those events. It will now be up to the incoming Government to decide whether to introduce an agriculture bill and what it may include.

As a result, the Scottish Government decided that the best option was to bring forward a bill to the Scottish Parliament, and that bill is the Agriculture (Retained EU Law and Data) (Scotland) Bill, which we are discussing today.

The Convener

I will ask the first question—I am not sure who will answer it. On 31 October 2018, the Cabinet Secretary for the Rural Economy was in front of the committee and was quizzed by Maureen Watt MSP regarding the Scottish Government’s ability to make payments. I will quote part of that evidence session and ask you to clarify why we need the bill. Maureen Watt said:

“The cabinet secretary will be aware that NFU Scotland is concerned that there may not be a legal vehicle for delivering payments beyond 29 March 2019—

that was to be the exit date—

”For the record, can you give me your thinking on that?”

Fergus Ewing was very clear. He said:

“we are absolutely satisfied that there is no problem with continuing to make all payments that are properly due to farmers and crofters.”

He went on to say:

“I am absolutely satisfied of that for very good legal reasons, as I have indicated. We will provide the committee with the legal advice in copperplate and detail.”—[Official Report, Rural Economy and Connectivity Committee; 31 October 2018; c 20-21.]

We never got the copperplate and detail, but at that stage the cabinet secretary was clear that there was no need for a bill. What has changed? Who would like to go with that question?

Dr John Kerr (Scottish Government)

When we leave the European Union, the retained EU law will apply and that will allow us to continue to make payments. However, as this committee in particular will know well, we have had to do an exercise to ensure that the retained EU law functions properly. That is the deficiency-fixing exercise and colleagues in this room will have done a lot of work to allow us to progress the UK statutory instruments to make the necessary fixes. That process should have come to a conclusion when we left the European Union, but a number of dates have come and gone and we still have not left the European Union. There are one or two issues that colleagues in the four Administrations are working on together to ensure that we are in a legal position to pay.

That is why Mr Ewing gave the assurance that he did at the time, which was true and remains correct, because this bill does not perform that function. That function is a process of making sure that the retained EU law works. What this bill does, and what Vicky Dunlop sought to clarify, is enable us to make amendments to the EU law in order that we can bring in any changes that the industry is looking for through the “Stability and Simplicity” consultation and to make any necessary changes once we have left the European Union.

The Convener

Today’s evidence session will be interesting, because the bill makes some fundamental changes and gives the Scottish Government a lot more powers to vary payments, maybe in preparation for changes that have not been agreed yet. I will have to put the question to the cabinet secretary as well, and ask him why things have changed so much.

Stewart Stevenson

I want to pick up on what Vicky Dunlop said about the three areas of disagreement between the two Governments, and to get on the record that the Presiding Officer has confirmed that the bill is within the legal competence of the Parliament.

Vicky Dunlop

I completely agree. The bill does not touch on those three areas of dispute.

Stewart Stevenson

That is the answer. Thank you.

Mike Rumbles (North East Scotland) (LD)

I read the policy memorandum that accompanies the bill, paragraph 64 of which states:

“during a debate on 10 January 2019, the Scottish Parliament agreed to the appointment of a group to make recommendations on future long term policy, and this ‘Farming and Food Production Future Policy Group’ was announced at the Royal Highland Show in June 2019. However, legislating for a long term rural policy in this Bill may pre-empt the Scottish Ministers’ decisions in relation to the recommendations of that group, and so negatively impact”.

I could not agree more. That is a very good synopsis of why there is no policy in the bill and some have called it a technical bill. When I looked at the bill, however, I saw that section 3, which is called “Power to provide for the operation of CAP legislation beyond 2020”, says:

“The Scottish Ministers may by regulations modify the main CAP legislation for the purpose of securing that the provisions of the legislation continue to operate in relation to Scotland for one or more years beyond 2020.”

Since I was first elected 20 years ago, I have been wary of giving ministers powers through regulations. That is necessary on occasion, but I am wary of it. Our job is to interrogate the bill. If section 3 is passed unamended, it will give ministers of whatever colour and from whatever Government we have in the future an immense power by regulations to introduce a new system of agricultural support, such as the one that the group is going to recommend to the current cabinet secretary. Section 3 does not do only what is mentioned in the policy memorandum. It would give massive power to future cabinet secretaries. Why is it phrased in that way?

Vicky Dunlop

As you correctly pointed out and acknowledged, the bill does not set out the long-term future. That will be done by the farming and food production future policy group. The bill will enable Scottish ministers to implement the proposals in the “Stability and Simplicity” consultation. Although I acknowledge and accept what you have said, the power is for the short to medium term to enable the recommendations made by the agriculture champions.

Mike Rumbles

Why does the bill not say that? It gives much more power than just that.

Vicky Dunlop

It is driven by where we are at. Andy Crawley might want to comment.

Andy Crawley (Scottish Government)

I am happy to comment on the scope of the power, given that that is the subject of the concern that has been raised. My view is that the power is not as extensive as you think. It is restricted to modifying the existing CAP legislation—the CAP law that will become retained EU law if and when we leave the EU. It is not a power to completely rewrite the common agricultural policy, nor is it even close to that. It is restricted to modifying the existing legislation, so that is a substantial restriction on the scope of the power straight away.

10:15  



More broadly, part of the purpose of the power—we might call it technical, but in a big way—relates to the fact that the CAP scheme, as I am sure members of the committee are aware, runs in phases and the current scheme is for 2014 to 2020. There are some restrictions in the CAP legislation that would cause difficulty once we get to the end of next year if the intention is to continue to operate the CAP, which is the purpose of the bill. The power is intended to be used to deal with those restrictions. If, for example, financial limits need to be modified or replaced in order to ensure that the CAP could continue to function, the power will allow ministers to do that.

I draw the committee’s attention to section 3(2), which is about that. The national ceilings are currently set under EU law. If we are out of the EU, which is the only situation in which the power would be available, our ministers will need to be able to deal with those issues.

Mike Rumbles

I hear and understand what you say but, as I said, our job is to interrogate the wording of the bill. It is absolutely clear that

“The Scottish Ministers may by regulations modify”—

I agree that it says “modify”—

“the main CAP legislation”,

but if we are out of the EU, there is no CAP. It is about what the CAP covers. The bill says that ministers may

“modify the main CAP legislation for the purpose of securing that the provisions of the legislation continue to operate in relation to Scotland for one or more years beyond 2020.”

The current minister has said that his intention is to have a new system by 2024. I would have no problem if the bill said “one or more years up to 2024”, because that would mean that the Government—of whichever colour—that we had by that year would have to come back to Parliament with primary legislation that we could interrogate.

This is a really important issue, because we are looking at the entire public policy for agricultural support throughout Scotland. Despite what Andy Crawley has just said, the bill gives ministers the power to do it without coming back to primary legislation, does it not? Will you answer that question?

Andy Crawley

I do not agree with the way that you have characterised the issue, so I do not think that I agree that the power could be used in that way. On the wider issues of CAP policy over the longer term, it is not really for me to say. I would defer to colleagues from Government on that.

Mike Rumbles

Okay. I think that this is really important. On anything that we consider, different and often conflicting legal advice will come forward. As I understand it, we have a difference of opinion on the matter. Would it not be more circumspect—let me put it in that way—to remove the doubt with a Government amendment at stage 2 and put the policy intention, which is a good one, beyond doubt in the bill? I am sure that the cabinet secretary will be listening to this. Would it not be better to put the matter beyond any possible dispute?

Dr Kerr

Before I answer that, I would like to make a small correction to Mike Rumbles’s comment a moment ago that, once we leave the European Union, there will be no CAP. That is not the case, because we will retain the EU law and confer the powers of the CAP into UK legislation. There will continue to be a CAP, and the bill’s purpose is to allow us to operate that until such time as we bring in new primary legislation.

Mike Rumbles

I understand that.

Dr Kerr

That brings me to your point about when that will be. When we set out on this journey, we anticipated that we would be leaving the European Union in March. We then anticipated that we would be leaving at the end of October, but we have still not left the European Union. It is very difficult for officials and legal colleagues to come up with a robust point at which we can safely say that we will not need the powers in the bill, and particularly the provisions that you mentioned. We have not taken the step that you suggest and included an end date because we do not yet know when we will be in a position to have our new primary legislation in place.

Mike Rumbles

I will make a final comment. In my experience over 20 years of many Governments and civil service advice, the job of the civil service is to say to Government, “We need these powers because you might need them in the future”. The point that I am trying to make is that our job as MSPs is to make sure that the legislation that comes through is fit for purpose from our perspective.

The Convener

I guess that, when the cabinet secretary comes in, you will push him hard on that point.

Stewart Stevenson has a supplementary question.

Stewart Stevenson

I have ended up with a tiny question. I note that, in section 1, which defines terms, the definition of “main CAP legislation” refers to specific domestic legislation and includes a list of six points, so it is clear that it is not the European stuff that we are referring to.

My question relates to some of the things that Mr Rumbles said, which he has said before. The powers of ministers are all subject to Parliament. Section 3(4) says that the affirmative procedure applies. Will you confirm on the record that ministers may make no changes without the Parliament’s explicit consent? Mr Crawley is nodding to say that I am correct.

Andy Crawley

That is right.

Stewart Stevenson

Thank you, convener.

The Convener

I will park that as a comment. John Finnie expressed an interest in that as a line of questioning, so we might go back to it.

Will you clarify something? The “Stability and Simplicity” consultation has been completed, but we have not seen the results, so it is difficult to see how the bill reflects the changes that were recommended. Will the committee see that shortly?

Dr Kerr

The results of the consultation were published. We did an analysis of the results. What we have not yet brought forward is the considerations of the simplification task force. There are a couple of reasons for that. Much of what the task force discussed fell into the scope of things that we will be able to do only when we have the necessary powers to make changes. The cabinet secretary has previously spoken at the committee about inspections and penalties. In order to change those things, we have to think about the powers that we need to do that. That would fall within the scope of the bill. Quite a lot of the internal discussion has been about what we can usefully say from the simplification task force now and what we should defer until we have come forward with proposals for 2021 to 2024.

The Convener

I am not sure that that fully answers the question, but I am not sure that you are going to do that. The next question is from Richard Lyle.

Richard Lyle (Uddingston and Bellshill) (SNP)

As there are no details of any agreement between the Scottish and UK ministers on a unified policy approach to agricultural support, it is not yet clear to what extent there will be a common system for agricultural support across either Great Britain or the United Kingdom. In some ways, we will have to devise a new system, call it what you like—CAP, no CAP or whatever CAP. Are the powers that are given to the Scottish Government via this bill intended to enable simplifications or improvements to existing CAP schemes for a transitional period of approximately five years? With that in mind, are the provisions in this bill time limited?

Dr Kerr

As we discussed a moment ago in response to Mr Rumbles’s questions, the proposal is not to time limit the powers in the bill. We do not know how long we will need them for, because we do not know when we might bring in future primary legislation.

Richard Lyle

Is that because we do not know how long we will still be in the EU?

Dr Kerr

That is one of the factors at play.

Richard Lyle

We do not know, and that is the problem. You guys are grasping in the dark and people like us are criticising you for it, but what can you do? Will the policy measures to be introduced via secondary legislation be specifically time limited to the end of that transition period, if you do not know what the transition period is?

Dr Kerr

That depends on what we take powers to do. There is a range of different things that we might want to do. Indeed, we might choose to do very little; that would be in line with stability, and any simplification should limit the discussion to something that is quite small in nature. However, the specific issues will determine whether or not it is appropriate to time limit those powers, and we will have to take that on as we bring forward each piece of secondary legislation.

Richard Lyle

I have a small finishing question. Do you sometimes wonder whether you are planning for something that you do not know what you are planning for? Yes or no?

Dr Kerr

Yes.

Richard Lyle

Thank you.

Jamie Greene (West Scotland) (Con)

I have more of a technical legal question. Is all this predicated on the fallback position of the European Union (Withdrawal) Act 2018 that, post-exit, EU retained law will have an effect in Scotland, or does the bill relate directly to the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, which was passed in this Parliament and subsequently challenged, should it re-emerge? If the two Governments diverged with regard to the continuation of CAP, either during transition or post-transition, it is still unclear which of those two pieces of legislation this bill would be affected by, if at all. That is possibly directed towards a lawyer.

Andy Crawley

The drafting approach in this bill is based on the European Union (Withdrawal) Act 2018, because that is the piece of UK-wide legislation that provides for retained EU law. As you correctly say, the first continuity bill was intended to do something similar. I do not have any information on what colleagues might do about that bill and that issue but, as far as this bill is concerned, nothing needs to be done in that respect. This will stand by itself working with retained EU law.

Jamie Greene

Irrespective of whether the continuity bill re-emerges.

Andy Crawley

Yes.

Peter Chapman

The agriculture industry out there desperately needs to see what future support will look like. We know that this bill will not give us the answers to that, but it does say that it will

“enable pilot projects to be run in order to test out new policy approaches, so as to inform the development of longer term future rural policy.”

Could you indicate what the focus and purpose of those pilot projects might be, to give us an idea of the Government’s thinking about future support?

The Convener

I am pretty sure that that is for you, John, although I may have that wrong.

Dr Kerr

We are not yet at a stage to categorically say what the pilots will be, because we are still in the development stage. On Friday, we will be discussing issues with the farming and food production group that has been mentioned. That work is very much on-going and actively so. Some of the issues that were discussed by the simplification task force are being handed on specifically with what we might usefully pilot in mind. It might be helpful to remind the committee of the operating principles that were set out in the debate in January: sustainability, profitability, simplicity, innovation, inclusion and productivity. Those are the sorts of things that we are pushing towards. In the intervening time, we have also announced a climate emergency, so it is also foreseeable that the cabinet secretary will wish to address some of the pressing issues that the Government has before it in addition to those that were set out in the debate in January. That is the framework that we are working within and we are hoping to bring forward useful pilots that will help us to determine future policy. The other constraint is that it has to be deliverable within the timeframe tha tis allowed.

Peter Chapman

When are we likely to have some idea of what the pilots will look like? Is there a timescale to have some pilots at least up for discussion or being trialled?

Dr Kerr

We anticipate being able to say more in the coming months. In particular, the farming and food production group is proposing to report its recommendations in the summer. We should have something by then and we may have some simpler things from the simplification task force sooner than that, hopefully.

10:30  



Peter Chapman

The proposal is that the pilots would be funded by a cap on individual farmers’ payments—an upper limit is one of the proposals. Is there any further information that you can share on that plan to cap payments?

Dr Kerr

We set out in the “Stability and Simplicity” consultation what sum of money a proposed cap at certain levels would yield, but we have not got the discussion on the responses to a stage where we are able to share our thinking with you. We have not put decisions to ministers on that, so we are not there yet, but I can say that there was a mixed set of responses to the consultation, with a cap being favoured by a good number of responses and a cap at £75,000 to over £100,000 being the sort of level that people thought was acceptable. We have some useful information on which to build our decisions.

Peter Chapman

I have another question about powers. It is similar to what Mike Rumbles was speaking about. In theory, the proposed conferral of powers on the Scottish ministers allows the Scottish Government to implement a new system of agricultural support to replace the EU CAP schemes after the end of the transition period through secondary legislation and without the need for further primary legislation. We know that secondary legislation allows much less scrutiny by the Parliament of what is going on. Do you think that that is a sensible way to go forward?

Dr Kerr

The CAP schemes are set out and become part of retained EU law in the UK, and what we are proposing here is to amend those regulations where those amendments may create a simplification or an improvement. I think that using secondary legislation to do that is the correct vehicle for a whole set of reasons, not least of which is the timeliness and the efficacy of doing it in that way in order to get the support to farmers quickly. I think that it is an appropriate way to do it.

Peter Chapman

It means that there is less chance for scrutiny of this going forward. Do you accept that?

Dr Kerr

I think, though, that it is commensurate with the level of changes that we would bring forward.

Richard Lyle

The question that everybody always wants to ask is this: how much money do we get from the EU for this, either through the UK or whatever, and how will it be funded in the future? Will it be funded by the UK or by Scotland?

Dr Kerr

The answer to that is that we are continuing to press the UK Government to meet the commitments that were previously met by the European Union.

Richard Lyle

How much money is paid—how many millions?

Dr Kerr

It is £500 million a year or so.

Richard Lyle

Right, so who will pay that £500 million after we leave the EU? It is a simple question.

The Convener

I am sure that John Kerr would like to answer that, but it may be more appropriate to let the cabinet secretary answer it when he comes in. I think that it is more of a political question than one for the bill team. I will park John’s excitement at the opportunity to answer that and go to Stewart Stevenson.

Stewart Stevenson

My question may be for Mr Crawley. On the subject of scrutiny of legislation, be it primary, affirmative or negative, is it correct that it is entirely up to Parliament what the scrutiny process for any form of legislation is and that the difference between the types is related not to scrutiny but to the powers to amend?

Andy Crawley

I think yes. It is certainly up to Parliament to decide what level of scrutiny is appropriate.

The Convener

I have a general question. As farmers get pillar 1 and pillar 2 payments through the current CAP system, my understanding of the legislation is that it would allow the cabinet secretary to shift everything from a pillar 1 payment to a pillar 2 payment without further consultation with the Parliament. Have I got that completely wrong, or is that what the legislation suggests?

Dr Kerr

One of the reasons why we need to take these powers is to allow us to make changes such as the one that you are envisaging, although we have no plans to do something as radical as that. I do not think that that would count as a simplification or an improvement. Some people might see it as an improvement, but I think that that would be contestable. That is not what is proposed and it certainly would not be our intention to do that without bringing forward the powers.

The Convener

I was not asking whether it is proposed or intended; I was asking whether the legislation gives you the ability to do that should the cabinet secretary so wish.

Stewart Stevenson

And Parliament agreed.

Richard Lyle

That is a political question.

The Convener

No, it is a factual question, Mr Lyle. My understanding of the legislation is that, under the current system, payments can be shifted from pillar 1 to pillar 2 without further consultation.

Dr Kerr

That would require parliamentary scrutiny.

The Convener

Where does it say that?

Dr Kerr

With some of the processes that we are currently replacing by bringing the legislation into domestic law, some of the functions of the Commission are also being replaced. In order to make pillar-to-pillar transfers, we have to notify the Commission of our intention to do so, and there are limits, which are set out. We would have to follow the required process within the European framework that will have been retained. I would look to Andy Crawley to tell me exactly where that was in the legislation, because there is quite a lot of legislation and I am not familiar with the precise articles.

The Convener

Maybe we can park that and you can give me a specific lesson afterwards, so that I understand it—because I do not see it at the moment—rather than taking up any more time.

Dr Kerr

I am happy to do that.

Jamie Greene

I have listened to the first part of the session and I am still a bit confused as to what this bill does and does not do, which I do not think is a great place for the committee to be in at the moment. I am hoping that, by the end of this session and future sessions, we will have more clarity. It is still unclear. The Scottish Parliament information centre briefing, which I am very grateful for, says:

“the Bill grants powers for Scottish Ministers to, by regulation: Make changes to ... any part of the CAP legislation. Make changes to the operation and financial provisions of CAP ... Revoke or modify legislation on public intervention.”

That sounds like quite a lot, so I am still at a bit of a loss as to whether this is simply a bill that enables Scottish ministers to continue to pay CAP under the current system, to continue to pay CAP under a new system and modify the current system, or to devise an entirely new subsidy system as a result of any policy decisions that it makes. Can someone enlighten me as to where we will end up if this bill passes?

The Convener

Who would like to lead on that? It looks like John Kerr is champing at the bit.

Dr Kerr

Yes, everyone is looking at me. The purpose of the bill is to make improvements or simplifications to the retained EU law, which we will then have. The CAP legislation is quite big and it does quite a lot of things. It does things with direct payments under pillar 1—there are a number of schemes within that area of the common agricultural policy—and it does quite a lot under pillar 2, from agri-environment schemes all the way to LEADER projects, which benefit rural communities. It is doing quite a lot of things already.

The scope of the powers in the bill would allow us to make improvements or simplifications to all those schemes. In one sense, that is quite a broad range of things that we can do, but we can only change them to the extent that they are an improvement or a simplification. It does not go as far as your latter point, which would be a wholesale change. We are not proposing to get rid of pillar 1 payments or get rid of pillar 2, and we could not do so, because that would be a wholesale change. What we are proposing is to allow us to make the necessary changes to the retained EU law to continue to function.

Jamie Greene

I return to the premise of my original question. If the bill is to allow something that currently exists to continue, I understand and accept that there is a technical need for Scottish ministers to have that power. However, if Scottish ministers want to do something different from what is currently happening and the bill enables them to do that, it does not specify the limitations of what those changes may be. The cabinet secretary told the committee that the bill is “a technical bill” that is designed to give ministers powers to amend EU law in relation to the CAP but that it is not intended to make changes to existing policy. You have just said that the bill could enable quite substantial changes to policy. Can you give me an idea of some of the changes that the Scottish Government may want to make under the bill?

Dr Kerr

European Union member states already have discretion to decide which schemes they do and do not use within the different funding mechanisms. For example, in Scotland, we use voluntary coupled support under pillar 1, whereas other parts of the UK do not. It is already in our gift, within the European framework, to choose whether to do that and the extent to which we provide funding through that mechanism. Those are the types of things that the bill gives us the powers to amend as we would if we were a European Union member state or a territory therein. A wholesale change is not what is envisaged.

Jamie Greene

It is not what is envisaged, but it is possible—that is my point.

Dr Kerr

No, it is not possible, because that would go beyond the powers of the bill, which are about making improvements or simplifications.

Jamie Greene

I think that other members will have questions on that subject. Again, those are quite vague terms that could be interpreted in different ways.

I have another question. Why has the Scottish Government chosen to go down the road of introducing the bill? What was wrong with the UK Agriculture Bill? What deficiencies did you feel were not addressed by that bill, which meant that Scotland-specific legislation needed to be passed by this Parliament? I am keen to dig deeper into that.

Dr George Burgess (Scottish Government)

I will take that question.

The Convener

I feel that it is more a question for Mr Ewing to answer. However, if you want to start and let him fill in the gaps when we see him, that is perfect.

Dr Burgess

As Vicky Dunlop’s opening statement set out, although our colleagues in the Department for Environment, Food and Rural Affairs sincerely offered an opportunity for the Scottish Government to participate in the drafting of the UK Agriculture Bill, our view is that the appropriate place for legislation on devolved matters is here, in the Scottish Parliament. Nothing in the bill that is before us today requires Westminster intervention in any way; therefore, the prime place for that legislation should be here. We are now slightly ahead of the UK Government, as the UK Agriculture Bill has fallen and, at this stage, we do not know when it will be reintroduced.

Jamie Greene

It is in no way the case that the bill reflects the fact that there is political disagreement between the two Governments on a number of issues and that your way of dealing with that disagreement is to legislate.

Dr Burgess

As Vicky Dunlop has set out, our bill focuses on a different set of issues from those that were identified earlier around a disagreement between the UK Government and the Scottish Government on the World Trade Organization provisions on producer organisations and fair dealing in supply chains. None of those provisions are in our bill. We sought, unsuccessfully, to improve the provisions in the Westminster bill. However, should that bill re-emerge, as we expect that it will, we will look to make its provisions more suited to Scotland.

The Convener

I think that you have pushed that as far as you can, Jamie. Emma Harper has some questions that she wants to ask.

Emma Harper (South Scotland) (SNP)

I will pick up on supply chain issues—for instance, the issues around dairy producer organisations, fruit and veg supply chains and how we protect the producers over the big guys in the business when we support milk contracts.

Section 6 allows producer organisations and associations of the producer organisations to be recognised under a given set of conditions, and organisations that are recognised in that way may be exempt from some provisions in the Competition Act 1998. I am seeking information about the extent to which the bill will cover areas that might be disputed between the Scottish Government and the UK Government. How can we support our producer organisations and make the supply chain more stable?

10:45  



The Convener

I think that is a question for George Burgess.

Dr Burgess

The provisions in section 6 relate simply to the fruit and vegetable producer organisation aid scheme, not to the fundamental issue of the recognition or otherwise of producer organisations. The United Kingdom Government has asserted that that area is reserved, but, as is set out in the legislative consent memorandum for the Agriculture Bill, we do not agree with that position. Indeed, over the past 20 years, it has been understood that, in practice, the recognition of those organisations is devolved. There has been a slightly surprising change of stance by the UK Government.

The UK Government’s proposed new legislation on the recognition of producer organisations will be in the UK bill, and the provision in section 6 is simply about the aid scheme. The UK Government does not dispute that the granting of aid to producer organisations is a devolved matter; its assertion about reserved status is more about the exemption from competition law that producer organisation status grants. There is a distinction between the two things, and I have received no indication that the UK Government has any difficulty with the provision that is in our bill.

Emma Harper

Will the bill help to promote dairy producers? We have seen the volatility in the milk market. The South Scotland region has 48 per cent of Scotland’s dairies, and there is such a difficulty. We are finding that a lot of dairy farmers do not even have contracts that will help to support them. Will the bill help to support some of the producers and make their lives a bit more stable?

Dr Burgess

This bill will not, because, in the UK Government’s view, this bill cannot. The UK Government has taken the view that producer organisation recognition and the provisions on fair dealing in supply chains, which were in the consultation that we carried out with the UK Government on dairy supply chains and mandatory contracts, can be addressed only in UK legislation, not through anything in our bill.

The Convener

Do you believe that this bill allows the development of common frameworks across the United Kingdom and that it works hand in glove with all of the United Kingdom, or is it pushing purely towards Scotland?

Dr Burgess

The bill itself does not enable frameworks to be created, nor does it get in the way of frameworks; rather, the frameworks are a concept that has been developed under the auspices of the joint ministerial committee between the Administrations. In the early half of 2018, quite a bit of work on the frameworks was done between the UK Government, us and Welsh and Northern Irish colleagues.

That work has taken a little bit of a back seat lately because the concentration has been on fixing the deficiencies in the European Union (Withdrawal) Act 2018 and on no-deal preparations. However, we are meeting our colleagues next week, and we will reassess the position, looking at frameworks and all the work that needs to be done on them. In the meantime, some work has been done on what are called working level arrangements—in essence, the practical arrangements between the Administrations—focusing on a no-deal scenario and how, in practice, we can make sure that the work between the Administrations goes on.

You could see the marketing standards provisions as an example of how we are ensuring that there can be a UK-wide framework. The provisions on marketing standards for England, Wales and Northern Ireland that are in the UK Agriculture Bill and the provisions that we have in our bill would allow Scotland, if it so desired, to keep in step and ensure that we had a UK-wide set of arrangements.

Stewart Stevenson

I was going to ask this question later, but the issue of marketing standards has come up and it is a wee technical question. Section 8(2)(d) covers labelling and section 8(2)(j) covers the place of farming or origin. Does the bill allow us to insist that the place of origin be stated on food labels?

Dr Burgess

Yes. Section 8(2) provides quite a long list of provisions, all of which come directly from the existing European legislation. Although they are framed as new powers, they are really no broader than the existing EU powers. In some areas of marketing standards, there is a requirement for country-of-origin labelling; in some areas, there is less of a requirement. What section 8(2) gives is a general power that is identical to the one that the European Union already has.

Stewart Stevenson

I do not want to go any further on that point. It was just a technical question.

We have covered a lot of ground on simplifications and improvements. I have one tiny question left, which I think we can deal with briefly. It would be helpful to the committee if we could have an early indication of any simplifications or improvements that are currently being contemplated at official level. When we have the minister before us, we might ask him about that as well.

Dr Kerr

We have noted your enthusiasm to get stuck in. We are keen that you can do so, so we will take that request away and bring something back as soon as we can.

Stewart Stevenson

In the light of the previous discussion, I expected that that might be the answer.

The less favoured area support scheme is very important and distinctly different in Scotland, as 85 per cent of our farming ground is less favoured. Is the intention to continue the current scheme for the duration of the transition period, or is it envisaged that changes may be made to LFASS? If so, when and of what character?

Dr Kerr

Mr Ewing has already said—I think that he said it at last week’s committee meeting—that we intend to bring forward proposals to change LFASS. It is quite an old scheme—in some ways, it is quite outdated—and we intend to start the process of bringing forward a replacement for it. In fact, that work has already started and we are already engaging informally with some stakeholders on the matter, as Mr Ewing indicated previously. The intention is to do that as quickly as we can.

Stewart Stevenson

As an official, are you being directed towards development of new policy or merely towards improving the implementation of the existing policy?

Dr Kerr

The main thrust of our approach on LFASS hitherto has been to use the European Union’s areas of natural constraint approach, and that is the process under which we are still working, given that we do not yet know whether we will be in or out of Europe. That is the basis on which the new scheme is being looked at. In that sense, it is a new policy because the scheme has different rules and a different basis.

John Finnie (Highlands and Islands) (Green)

I thank the panel for their input today. You have substantially covered the area, but I want to raise one small point relating to section 2 and the fact that wide-ranging powers will be conferred through secondary legislation. That issue has been well covered, but how will the views of the public and stakeholders be taken on board in producing any secondary legislation, accepting that it is for Parliament to determine how the bill is progressed?

Dr Kerr

For any new proposals such as the one on LFASS, which we have just discussed, we would normally go through a process of engagement with stakeholders, and the level of engagement would be consummate with the size of the change that we were proposing. We engage specifically with interested parties through regular meetings with key stakeholders at official level, which we have at least quarterly. Any proposals that we bring forward are consulted on in that way.

Jamie Greene

Can I clarify something? Under section 2, changes to CAP legislation will be made through regulations that are subject to the negative procedure. Can you explain why that is the case? Why will the affirmative procedure not be used? Given the importance of the future of the CAP, why will those regulations not be in a separate piece of legislation that the committee, for example, can consult fully and take proper evidence on and that people will have the ability to amend?

Dr Kerr

We have indicated that they should be subject to the negative procedure because we envisage that they will involve simplifications and improvements that are not major in nature. It is a matter for consideration, but that is our recommendation, given the magnitude of the change that is involved.

Jamie Greene

If I was a Scottish minister and I wanted to make sweeping changes to the CAP in the future, how would I go about doing that? Would I use this piece of legislation or would I need to introduce a new bill to Parliament?

Dr Kerr

As we have stated, the purpose of the bill is only to make simplifications and improvements. If we wanted to make broader changes, new primary legislation would be envisaged, and that is what we have stated that we intend to produce.

Mike Rumbles

Section 2(1) states:

“(1) The Scottish Ministers may by regulations modify the main CAP legislation.”

Can you tell me what the main CAP legislation is, please?

Andy Crawley

Section 1(2) defines the main CAP legislation, which is the list of the main European regulations that will become retained EU law. It is the direct payments regulation, the rural development regulation and the horizontal regulation. It is the basic acts. To put it crudely, it is the European primary legislation that will move into national law if and when we leave the EU.

Mike Rumbles

Ministers may, by regulation, change primary legislation that we have through the EU—is that what you are saying? You just referred to primary legislation.

Andy Crawley

It is not a like-for-like change; they are the basic acts—the important pieces of EU legislation. From our perspective, at least, the point to recognise is the scope of the change that can be made. I go back to what John Kerr said: the bill is about simplification and modernisation.

Mike Rumbles

My point is that one person’s modification is another’s change, and one person’s simplification can be quite radical, can it not?

Andy Crawley

That is one point of view.

Mike Rumbles

It can be, can it not? You are not saying that it cannot be.

Andy Crawley

I am not sure that I can answer that question.

The Convener

I think that Stewart Stevenson wants to come in. Are you going to clarify the point?

Stewart Stevenson

That is for others to say, convener. Looking at section 3(1), it seems clear to me—and I will be happy to hear confirmation that I am reading it correctly—that the modifications to the main CAP legislation are constrained to securing the continued operation of the provisions of that legislation, with section 2(2) saying:

“The Scottish Ministers may only make modifications ”

as

“would simplify or improve”.

That is it; it is not a total power to do all the things that you may wish to do.

Ultimately, of course, it is up to the courts to decide what the intention is and, therefore, it will be important that, when we talk to the minister, we seek clarity to get that on the record. Is my reading of the bill correct, in that it is not an untrammelled power but is constrained by both section 2(1) and section 3(1)? I am getting a nod from Mr Crawley. Thank you.

The Convener

I am not sure whether that puts Stewart Stevenson on the bill team or back on the committee.

Angus MacDonald (Falkirk East) (SNP)

I will stay with part 1 of the bill. What consultation has been done on the provisions relating to public intervention and private storage aid, aid to fruit and vegetable producers, the EU food promotion scheme, marketing standards and carcase classifications? What change does the Government intend to make in relation to those specific areas?

The Convener

Those are definitely for George Burgess.

Dr Burgess

Those are for me.

Most of those provisions are of a piece with the wider stability and simplicity work. As already noted, the provisions on the fruit and veg aid scheme specifically refer to simplification and improvements. There has not been specific consultation on the provisions; they were to some extent already covered by the wider “Stability and Simplicity” consultation.

11:00  



However, as I mentioned, the provisions on marketing standards are effectively a response to the provisions that the UK Government included in its Agriculture Bill. As we have set out in the policy memorandum, the risk is that, if those provisions proceeded for England, Wales and Northern Ireland, Scotland could be left adrift. It is better to take a matching set of powers here so that we can, if the need arises, make similar changes to our marketing standards.

There will already be fairly wide-ranging powers under the retained EU law to make changes to marketing standards. It is not that nothing can be changed in marketing standards; it is simply that the provisions in the bill will allow us to keep pace with other parts of the UK.

Angus MacDonald

Could you give us a bit more clarification with regard to carcase classifications? I am intrigued as to why that those are included. Why would they have to change?

Dr Burgess

The carcase classification provisions are effectively a species of the marketing standards provisions in the EU common organisation of the markets regulation. They have a slightly different origin: at the outset, the intention was more to make sure that the carcases that went into cold storage under the public intervention scheme that ran in decades gone by were of an appropriate standard, whereas the rest of the marketing standards are more directed at consumers and the retail sector—essentially, they are in the same basket as the rest of the marketing standards. In the UK Government’s Agriculture Bill, they are all dealt with in a single clause. We thought that, for clarity, it was better to separate out marketing standards and carcase classification.

At this stage, there is no intention to make any changes to the carcase classification provisions. In the past, DEFRA has suggested that it might be interested in looking at a different scheme of carcase classification in future. The current systems are more about the confirmation of the animal, rather than anything to do with what might be described as the eating quality of the meat. There has been some indication from DEFRA that it is interested in moving into that space, but at this stage, there is no proposal anywhere in the UK for changes to the carcase classification legislation.

Angus MacDonald

Thank you for that clarification. [Interruption.]

The Convener

Sorry—my phone is ringing. That is quite the most appalling thing that has ever happened to me in this committee, so I am going to chastise myself for not following my own instructions. I apologise to committee members—I hope that it never happens to you. To my wife, I say that you should not be ringing when you know I am in a committee. [Laughter.] I apologise profusely to everyone. I will talk to my wife later.

Angus MacDonald

If it does ever happen to me, I will remind you of this, convener. [Laughter.]

The Convener

Wait until I speak to my wife.

Angus MacDonald

The previous UK Agriculture Bill proposed to abolish for England, Wales and Northern Ireland the market intervention powers contained in the common organisation of the markets regulation, and to replace them with new powers that would be available during “exceptional market conditions”. The bill that is before us allows market intervention provisions under that regulation to be disapplied, temporarily or permanently, or otherwise simplified or improved, in Scotland. Does that indicate a fundamental difference in approach between Scotland and the rest of the UK? If so, what is the rationale for that?

Dr Burgess

I do not think that I would describe it as a fundamental difference of approach. We have already talked a little bit about the old days of market intervention. Many people in this room will be old enough to remember the days of the butter mountains and the wine lakes. Those have largely gone. There is relatively little use of the public intervention and private storage aid provisions at the moment. They are used a little in relation to skimmed milk powder in Northern Ireland, and the European Commission has recently opened an intervention scheme for olive oil, which is not something that affects us greatly in Scotland. However, the provisions are far less regularly used now; in fact, I would probably go as far as to say that they are used now only in particular market crisis situations.

Our colleagues in DEFRA have decided that it is time to draw a line under the schemes and remove them. The provision in the previous Agriculture Bill would allow the schemes to be done away with.

We have taken an approach that is more in keeping with the stability and simplicity approach. We allow some simplification of and improvements to the schemes, and there are provisions to suspend the effects of the schemes. Some of the market intervention provisions are mandatory: if prices fall below a certain level, a scheme automatically kicks in. We would want to avoid a situation in which that happened in Scotland while the rest of the UK was not intervening in the same way. We could end up with one part of the UK trying to prop up the entire UK market.

The approach that we have taken allows us to suspend the operation of the schemes. The longer-term future of whether we retain anything like them will be a matter for the longer-term policy work.

The Convener

I have a question on the carcase classification provisions. George Burgess and I both know that every abattoir has a different slight permutation of carcase classification as far as pricing is concerned. The abattoir will set pricing; some abattoirs go much deeper into carcase classification than others. There is no intention by the Scottish Government to change that or to force every abattoir to use a standard form of carcase classification, is there?

Dr Burgess

All abattoirs should be operating the same carcase classification system.

The Convener

Yes, but sometimes they split the pricing, or part of the pricing, further than the basic classification.

Dr Burgess

No. Essentially, the EUROP scheme will continue. You want to be an E or a U; you do not want to be like me and be classified as a P. That scheme will remain in place. How the individual abattoirs deploy that with their suppliers, in terms how finely they set out their pricing schedule, is a commercial matter for them. The bill would not affect that. I go back to the question about fair play in the supply chain: the scheme is there to ensure a bit of rigour so that farmers do not get a poor price and discover that their animal has been downgraded without there really being any objective standard to measure that against. It provides a bit of clarity and transparency in the arrangements.

Emma Harper

I will pick up on the answers to Angus MacDonald’s questions. The previous UK Agriculture Bill proposed the abolition of the fruit and vegetable aid scheme in England, whereas the bill that is before us enables Scottish ministers to simplify—you talk about simplification, which sounds positive—and improve the on-going operation of the scheme in Scotland. Can you clarify the difference between the UK approach and the Scottish approach?

Dr Burgess

Yes. Essentially, our approach is in line with the stability and simplicity approach. We are not, in the bill, doing away with the fruit and veg aid scheme; the intention is that that would continue to operate in Scotland during the next couple of years, pending the longer-term policy work.

Across the UK, around £40 million a year goes into the fruit and veg aid scheme, of which about £4 million is for Scottish producers. There will be some complications, in that many of the producer organisations have members in a number of different parts of the UK. In fact, some of them are transnational organisations, with members in Spain. The complications of that, as part of Brexit, still have to be fully worked through.

The immediate intention is not to do away with the fruit and veg aid scheme, which in our view has been a valuable way of supporting a sector that is generally unsupported in the CAP scheme.

Emma Harper

Section 7 gives the power to revoke the EU food promotion scheme. Does the Scottish Government intend to revoke that scheme?

Dr Burgess

Yes, and we understand that that intention is shared by other parts of the UK, or at least by DEFRA. The food promotion scheme is an EU-wide competitive scheme. Some Scottish bodies have benefited from it. For example, Quality Meat Scotland has participated in previous years. At the moment, the only UK participation is through the Northern Ireland Dairy Council, which has a couple of schemes to promote dairy products, primarily in the middle east. There is no current benefit from that EU scheme.

The scheme has been translated into domestic law under the deficiencies process. We have, or will have, legislation that would allow us to operate the scheme domestically. However, essentially, we will end up with what has previously been an EU-wide competitive scheme turning into a purely Scottish scheme that is rather too heavy duty for our needs. We already have existing powers, as noted in the policy memorandum. Under the Quality Meat Scotland Order 2008, there is a power to make grants to Quality Meat Scotland, which we have already used and which could be used to achieve the same effect as the food promotion scheme. There are also powers under the Agriculture Act 1993. We already have the simpler mechanisms by which we could achieve the same end as the EU scheme would provide. Therefore, it becomes redundant.

Emma Harper

The policy memorandum states that any decision to make changes to the marketing standards

“can be taken on a case-by-case basis regarding whether to follow any changes introduced in ... the UK Agriculture Bill, or whether to retain alignment with EU law.”

How is it envisaged that taking a case-by-case approach to decision making on this or other aspects of the bill will work in practice?

Dr Burgess

At the risk of repeating the question, it will happen case by case. If DEFRA were to propose to change a particular bit of marketing standards legislation that would take it out of alignment with the European standards, that would be the point at which we would need to look at whether it was better for us—based on trade flows, for example—to maintain alignment within the UK so that the standards in England and Scotland were aligned, or to retain alignment with the EU.

At this stage, I am aware of only one proposal from DEFRA for use of the powers, and that is in relation to hops and the frequency with which hops crops have to be inspected, which DEFRA is looking to reduce. That might be one where we are quite happy to fall in with DEFRA.

Jamie Greene

You talked about hops crops marketing standards. What might a divergence in marketing standards on a practical level look like? Our understanding of food and drink and marketing standards are quite different. Will the bill allow Scottish ministers to look at changes that either the UK or the EU has made and decide which ones they prefer? Is that what you are saying to us?

Dr Burgess

Essentially, yes. If standards diverge because of decisions taken either at European level or by DEFRA and we have to decide which way to go, the bill will give us the flexibility to do it. I said earlier that there are already European powers to change marketing standards, and we would be able to use those powers but, because the ones in the UK Agriculture Bill are a bit broader, a change could be made under the UK Agriculture Bill that Europe would not be able to make. That could lead to the sort of divergence that we are talking about. In that situation, we would look at whether the balance of advantage would be for us to retain alignment with England or with the EU.

11:15  



Jamie Greene

Have you had any feedback from stakeholders about a potential divergence in standards between Scotland and England?

Dr Burgess

There has not been any comment from the stakeholders. It is worth remembering that a lot of the standards, certainly in the fruit and veg space, which is one of the main areas, are effectively developed at an even higher level than the EU. The United Nations Economic Commission for Europe—UNECE—sets standards. The most recent EU legislation on fruit and vegetable standards aligned the EU system with the new UNECE standards that kick in next month. Although they look like very broad powers, most of the standards are developed at a supranational level.

Maureen Watt (Aberdeen South and North Kincardine) (SNP)

We move on to the collection and processing of data. Section 12 gives the Scottish ministers the power by regulation under the affirmative procedure to amend the definition of agricultural activity. Does the Scottish Government intend to change the definition of agricultural activity and, if so, to what?

Ally McAlpine (Scottish Government)

The question you are asking is why the power is in the bill. At the moment, we do not want to change anything that is defined. In fact, the legislation relates to the EU law definition of agriculture as it stands. The answer is, no, we do not want to change the definition, but considering that we rely on the Agriculture Act 1947, by putting the power in the bill, we are hoping that it will have the same longevity in relation to the Data Protection Act 2018.

Maureen Watt

The definition of agricultural activity talks about:

“(i) production, rearing or growing of agricultural products, including harvesting, milking, breeding animals, and keeping animals for farming purposes.”

Is it sufficiently clear for growing fruit and veg, for example?

Ally McAlpine

We want to be able to collect information from producers of food, and I think that that is covered by the list of specifications. I do not see anything that would not allow us to collect that information from fruit and veg producers. I disagree with the idea that we would not be able to do that.

Maureen Watt

To what extent do the provisions of the bill relating to data collection and processing mirror the corresponding provisions contained in the UK Agriculture Bill as was, whether it comes back in the same form?

Ally McAlpine

We had discussions with DEFRA early on when it started discussing this, and we looked what it was trying to achieve with the bill. The focus was on animal welfare and plant health, which are covered by other legislation in Scotland.

The point that we thought was being missed was the fact that we now have the GDPR and the Data Protection Act 2018. Under that legislation, we need a legal basis for collecting data, and we need to be able to specify that and show the public and the farmers what that legislation is. The bill was an opportunity to clarify that because, at the moment, a number of pieces of legislation or EU regulations can apply. Bringing everything together in one place helps us to focus and become more open and transparent about the data that we can and cannot collect. That is the focus of our bill, and it is different from the focus of the UK bill.

Maureen Watt

I suppose that farmers will want reassurance that there will not be any more data collection, although sometimes they forget that we collect data because we are spending taxpayers’ money on their subsidies. Can we have that reassurance?

Ally McAlpine

Yes, you can have that reassurance.

Stewart Stevenson

On a technical issue, section 16(4)(a)(ii) is about helping people to manage risks,

“including, but not limited to ... climatic risks”.

I want it to be clear that that would include the particular risks associated with climate change, especially in the light of the declaration of a climate emergency. It seems to me it would but I am just seeking clarity.

Ally McAlpine

Yes, it would.

The Convener

Before we move on, the deputy convener asked about changing the definition of agricultural activity. If the definition of agricultural activity changed as a result of the bill, what effect that would have on agricultural tenancies or planning legislation that rely on the current definition of agriculture as laid down? You have mentioned the Agriculture Act 1947, so you have used various definitions. Will that be affected if you change it?

Ally McAlpine

No, it will not be affected, but I can go into a bit more detail on that.

The Convener

Rather than waste everyone’s time on it, because it is possibly quite a geeky question, I would like confirmation that the definition for planning of agriculture and agricultural legislation will not be changed as a result of the bill, thereby affecting tenancies and planning legislation.

Ally McAlpine

The bill is about collecting statistics and collecting data from farmers for survey. It does not cover planning.

Andy Crawley

No, it will not affect it.

The Convener

Andy Crawley and Ally McAlpine, you can definitely write in and confirm that it will not affect those two bits of legislation. It is critically important that the definitions of agriculture in legislation will not be affected by a change of agricultural definition in the bill.

Angus MacDonald

Following on from Maureen Watt’s questioning, I am thinking back to 2014-15 and Brian Pack’s doing better initiative, which was an attempt to reduce red tape for farmers and land managers. Has an impact assessment been undertaken to confirm that the data provisions of the bill will not impose any additional burdens on farmers, crofters and land managers?

Ally McAlpine

No, we have not done an impact assessment, and no, there will not be an additional burden. I can give that assurance because the purpose of the legislation is to define the legal basis on which we collect data. That is supposed to be open and transparent, so farmers will be able to look at the act and see whether we are doing the job that we said we would do under the legislation. The bill restricts what we can ask, so there will be no additional burden.

Within the Statistics and Regulation (Registration Services) Act 2007, we have the code of practice, which places a duty on statisticians to look at survey burden. We are always looking to reduce that. For example, there used to be the sheep and goat inventory and the December census. Those two things are now combined to reduce the burden. Going forward, the statisticians in my team are always looking at ways of combining questions and reduce the time that surveys take. We also look at the sampling frames, and at sending out as few forms as we possibly can.

Angus MacDonald

Many farmers and crofters will pleased to hear that, I am sure.

The Convener

Colin Smyth has waited patiently to ask his questions.

Colin Smyth (South Scotland) (Lab)

Absolutely, and they are very much in line with your reference to geeky questions, convener, because I have one or two quite specific questions around the importance of data collection. The policy memorandum states that the Scottish Government does not intend to collect additional agricultural data. Given the rapidly changing policy environment that we are facing with regard to issues such as climate change and Brexit, have there been any discussions about the fact that there might be a need to collect different data in the future?

Ally McAlpine

I am happy to give geeky answers; I am used to doing that. The geeky answer to your question is that we plan on collecting additional data but not from farmers and not through survey. For example, one of the things that we are currently looking at—I have a team working on this now—is the use of satellite data. At that point, things get very geeky as we are using data science to do that. Our approach involves information technology specialists, mapping specialists and statisticians working together to look at things such as what crops are growing across Scotland. There are worldwide projects going on in the area of satellite data, and we collaborate with academics with regard to what learning we can adopt in-house. We are not yet in a position to use that satellite data as we would like to, but the focus of our work in that regard is to move away from the cereal harvest and, therefore, reduce the additional data that we request from farmers, because we will be able to use new technologies to do that ourselves.

Colin Smyth

Sections 13 and 14 of the bill allow the Scottish Government to, by regulation, impose requirements on persons carrying out agricultural activity or who are in or connected with the agri-food supply chain. The delegated powers memorandum clarifies that that is intended to allow the Scottish ministers to collect data from industry or supply-chain subgroups. Can you tell us what those groups are at the moment? Is that likely to be any different from the groups that data is currently collected from?

Ally McAlpine

No. The point of the legislation is to be more open and transparent. As alluded to earlier, we have been using the 1947 act, which specifies that we can ask for data from holdings. What we are actually doing with this legislation is stating who we are already collecting data from. We are not collecting data from anybody else. The legislation restricts who we collect data from and specifies them explicitly. For example, we will ask for information from a number of suppliers and we will look back to the cereal harvest as well—we will look at where the cereal goes after it leaves the farm gate. We would be looking further down the supply chain, which we currently look at—we would just be repeating that.

Colin Smyth

So, it would just be the existing groups—the status quo, in other words.

Ally McAlpine

Yes, the existing groups—nobody new.

Colin Smyth

The policy memorandum states that data that is collected is used to analyse economic output and the performance effectiveness of policies and to help Scotland provide information on the sustainable development goals. Can you elaborate a bit on the type of data that is collected for that purpose?

Ally McAlpine

We have three main data collections that we combine to help to do that. One is the farm business survey, which involves between 400 and 500 farms. We do not do it ourselves; we contract it out to specialists, who are used to auditing financial accounts. We examine the information that we get from that and it helps us consider the effectiveness of things such as the CAP scheme. We do not ever get to see the individual record data; we get to see the analysis.

We also have the December survey, which is going out now, and the June census, which has already been out. Those focus on certain points through the year, such as what the situation has been with regard to agricultural production and where we might see problems within the production. We can alert policy colleagues if we see anything in those trends that needs to be raised. Those two surveys combined are fed into what we call the total income from farming statistics, which is a combination of those surveys and a number of other minor surveys. We take all of that information and we estimate what gross domestic product, gross value added, productivity and so on look like for the sector.

Emma Harper

My question is about the definition of agricultural activity in relation to bee keepers. In Scotland, we have hobby bee keepers and we have about 25 bee farmers. Does the definition include harvesting? Is that where bee keepers fall into the definition of agricultural activity?

Ally McAlpine

That is quite a minor issue. If it is all right with the convener, we might answer that question in writing later. I am not aware of what data we currently collect from bee keepers.

The Convener

I am sure that it would be helpful to submit the response in writing. As we all know, masses of data is kept even on things such as smallholdings with chickens, which have to register chickens in relation to avian flu and suchlike. I am sure that we would welcome knowing where our honey comes from.

11:30  



Jamie Greene

Moving on from bees, I want to ask a technical question around the collection of data, linked to the issue of CAP payments. At the moment, the financial calculation for how much someone is paid and the level of subsidy is based on certain criteria. If the policy around CAP payments were to change, so that it used different parameters and required different pieces of information from the farmer or the landowner, would that be in conflict with the policy memorandum, which states that, as a result of the bill,

“there should be no additional burden placed on farmers, crofters and land managers”?

Ally McAlpine

Part 2 is about the legal basis for us going out and asking for information from survey. We have to state that under the GDPR—that goes in the privacy notice, and we can point to the piece of legislation that says that we are asking for that data. If a farmer wants to receive CAP payments, that involves the part of the GDPR on consent—the farmer would be consenting to give their information in order to receive the CAP payments. I do not think that that is covered here. John Kerr might have something to say on that issue.

Jamie Greene

My point is that, if the bill allows ministers to change the CAP system by whatever means, and if working out the financial subsidy is based on a different set of criteria, that will inevitably require additional information to be given by farmers to the Government.

Ally McAlpine

The level of information that we collect is at the whole sector level. We are not collecting data for CAP. There is a clear firewall between what data is collected for CAP and what we collect. You could devise a different system and we would still be able to collect that data. That data is about the holistic goings-on within the sector, and we can then analyse that data to look at the effectiveness of whatever policies this Government or any other Governments want to bring forward.

The Convener

Richard Lyle, you get the last question.

Richard Lyle

I once had the good fortune to go to one of the local offices and try on the equipment that the chap uses when he goes out and measures the farm to the last inch or metre or whatever. Are we still going to have to measure up what people have in order to equate their payments to that, or can we get rid of that part of the process?

The Convener

John Kerr wants to come in, no doubt to say that it is centimetres, not inches.

Dr Kerr

Indeed, yes.

Richard Lyle

Okay, I am pre-EU.

Dr Kerr

At the moment the requirement is driven by the European Union legislation. What is envisaged is not a wholesale change, but Mr Ewing and the stakeholders are keen on reducing the burden of the legislation, if it is possible to do that, in particular with regard to where that burden is not producing a benefit to the farmers or the wider public.

Richard Lyle

We have to be able to minimise and reduce the red tape and the paperwork and the hoops that people have to go through. Some people say that you are going to take back control. Are you really going to take back control?

Dr Kerr

On that specific point about inspections and penalties, colleagues are involved in an active stream of work with specific regard to that purpose. We hope to bring forward those minimisations of the impact of that on businesses and on us in delivery terms, so that we can do our work more efficiently on behalf of the sector, too.

The Convener

That brings us to the end of the questions that members want to ask at this stage. I thank all the people who attended this morning. There are some follow-up bits of information that the clerks will be in contact with our witnesses about.

11:34 Meeting suspended.  



11:41 On resuming—  



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Second meeting transcript

The Convener (Edward Mountain)

Good morning and welcome to the 33rd meeting in 2019 of the Rural Economy and Connectivity Committee. I remind everyone to make sure that their mobile phones are on silent.

The first agenda item is the Agriculture (Retained EU Law and Data) (Scotland) Bill. Before we go into that agenda item, I invite members to declare interests. I declare that I have an interest in a farming partnership.

Peter Chapman (North East Scotland) (Con)

I declare an interest as a partner in a farming business in the north-east.

Stewart Stevenson (Banffshire and Buchan Coast) (SNP)

I have a very small registered agricultural holding, from which I derive no income.

The Convener

Thank you. This is our second evidence session on the bill. Today, we will take evidence from data and research organisations. I welcome the panellists: Maureen Falconer is the regional manager for Scotland for the Information Commissioner’s Office; Steven Thomson is a senior agricultural economist and policy advisor at Scotland’s Rural College; Professor Julie Fitzpatrick is the chief executive officer of the Moredun Foundation and scientific director of the Moredun Research Institute; and Ellen Wilson is chair of the Scottish biodiversity information forum.

The first question is from John Finnie.

John Finnie (Highlands and Islands) (Green)

Good morning. There are quite a number of questions coming up, as ever. However, will the panel members give their initial reflections on the bill, and on whether it meets their expectations and aspirations about how we go forward?

Professor Julie Fitzpatrick (Moredun Research Institute)

I think that the bill reads very well indeed. The retained European Union law is, in general, highly relevant to the Scottish position. I think that the objectives of the common agricultural policy well meet Scotland’s needs, as defined many years ago when the CAP was set up.

I think that the two acts on rural development, the three acts on direct payments and other aspects broadly fit with what Scotland will require. It is also important that we have the ability to make regional and national decisions about how CAP reform is likely to be, and that, too, is described well in the bill.

On data, I consider that the bill is correctly focused on the agri-food-chain aspects of agriculture, and that the regulation to compel supply, handling and processing of data is appropriate. There are different categories of data requirement: they are all-encompassing and cover many of the different areas of data requirement. I will not say much about data regulation and processing because that is not my area of expertise. The reasons for the data are clear and appropriate.

In the general provisions in the bill, I like the idea of the power to operate CAP regulation beyond 2020.

My thoughts on the bill, from a data-processing and data information perspective, are generally positive.

John Finnie

If other panel members have general comments, those would be appreciated. There are quite a number of specific questions to come, but I would like to hear your initial thoughts.

Steven Thomson (Scotland’s Rural College)

It is welcome that we have a bill in situ, because we need it if we are going to take agriculture forward and take payments beyond the end of 2020 when the current CAP ends. We need provision either to be able to maintain the existing regulations or to amend them as Scottish ministers and the Scottish Parliament see fit. That flexibility is important because there have always been concerns that we are overregulated. Some schemes might not be nuanced enough for the Scottish situation and, as Julie Fitzpatrick mentioned, the bill includes flexibility to ensure that we deliver policy in the right areas.

Some issues around governance remain. When the Brexit process started, I had concerns about who would act as the European Commission, the European Parliament and all the other EU institutions, because they are currently the legislators: member states have to apply to them for permission to make changes. It is important that we still have in place a check and balance. Quite a lot of it what happens will be dealt with under affirmative procedure, which is good. Ministers need the flexibility to make minor amendments without changing the nature of the legislation.

The update on data is welcome, because it explains explicitly why data are being collected and for what purposes, and it will enable the Government to share data with institutions such as ours, and to help them to analyse data in order to understand better how policy is performing and how the sector is performing. The provisions are welcome.

Maureen Falconer (Information Commissioner’s Office)

I suppose that everyone is looking to the ICO and asking, “Can they do this?”

The Convener

I should have said at the beginning of the session that if a question is not directed at you but you wish to speak, just indicate that and I will bring you in. If you all look away at the wrong moment because no one wishes to answer, one member of the panel will be nominated.

I am sorry for interrupting, Maureen.

Maureen Falconer

That is okay.

Under article 36(4) of the Regulation (EU) 2016/679 (General Data Protection Regulation), when draft legislation is proposed that involves the processing of personal information, policy makers are required to consult the ICO. The Scottish Government did that at the appropriate time.

The only issue about the content of the draft legislation on which I wanted to engage with the Government was the part about relying on consent for research purposes. That was not because we were going to tell it that it could not do that. Actually, as a matter of fact, it was—it was to suggest that it should not rely on consent, because the research that was going to be done, such as gathering information to better determine future policy, is in the legitimate interests of the policy makers. From a research perspective, consent is very difficult, because it skews results; therefore, legitimate interest is the more appropriate legal basis on which to rely.

From the regulatory perspective, the ICO had no issues with what was proposed in the bill at that time. The bill has since changed slightly, and I still have no issues. I told colleagues earlier that I was going to email to say that I did not think that you needed me to come along and speak to you, setting out the reasons why. However, the email got so convoluted that I thought that I might as well come along in person to tell you. I appreciate that data protection legislation is not the easiest legislation to get one’s head around.

Ellen Wilson (Scottish Biodiversity Information Forum)

I am not a policy expert, so I do not usually comment on bills. However, overall I welcome the opportunity that the bill provides to improve and simplify matters. That said, the simplification element brings concerns about whether it would allow us to understand the impacts for biodiversity and for the sustainable development goals. That might be getting into a bit too much detail. Broadly, I welcome the opportunity that the bill brings.

Stewart Stevenson

I seek clarification on what Julie Fitzpatrick said about the CAP meeting Scotland’s needs. I think that I heard some support for that in what Steven Thomson said about the support regime, but there was perhaps less support in relation to regulation. I am thinking of the three-crop rule, which dealt with a Mediterranean issue and did not suit Scotland for a second. Julie Fitzpatrick might want to say whether she was talking about support functions rather than regulations, or otherwise.

Professor Fitzpatrick

I mentioned support functions, but some of those come from the regulations, and that link is important. I am not a lawyer, but having read the bill and the supporting notes, I consider that the proposal covers that link. It allows for interpretation of Scotland-specific payments and for other regulatory issues to be covered under the bill. It is less about the regulations and more about the policy.

Stewart Stevenson

Thank you.

Maureen Watt (Aberdeen South and North Kincardine) (SNP)

Good morning, panel. The consultation document “Stability and Simplicity: proposals for a rural funding transition period” asked for views on changes that might be made to schemes and policies in the transition period to a new rural policy in 2024. To what extent is the bill fit for purpose in delivering the changes that will be required for that transition period?

Steven Thomson

That is quite challenging, because a consultation is a consultation. In the consultation that you are asking about, hugely disparate views and opinions were given.

There has to be scope to amend what we are doing in terms of the policy. Pilot schemes are very important: if we are to deliver policies, we must be able to test them at small or regional pilot scale, to see whether they work.

In the bill documents, I kept reading the phrase “Less Favoured Area”. That relates to legislation that has not so far been amended and which the Government wants to maintain while it considers a new scheme or delimitation for areas that face natural constraints.

The bill allows for straightforward roll-over of the legislation. Whether Parliament or society would want us to move faster, given the climate emergency and the need to take action more quickly in relation to our new net zero emissions targets, is something that the Government and Parliament will have to consider. In the bounds of what the stability and simplicity approach is set up to achieve, I think that the bill covers that.

Maureen Watt

Would you recommend that the date be brought forward, or does it have to be 2024?

Steven Thomson

The date does not have to be 2024. That is an arbitrary date that the Government has included in the bill because, post-Brexit, it wants to provide stability and clarity that will allow farmers and land managers a degree of certainty in developing and investing in their businesses.

If we need to move faster because of other factors, such as the climate emergency, or, equally, the biodiversity emergency that we face, we might want to move the industry forward faster. Generally, farmers to whom I have spoken think that three or four years is a distant horizon for change. They had the same concept of change during the CAP reforms of 2015, when the talk was of a five-year transition. Some farmers wanted a faster transition, so that they would far more quickly reach a point of clarity that would allow them to make decisions.

10:15  



Peter Chapman

I will follow up on that. You have spoken about “a degree of certainty”. The people in the agricultural industry and the farmers to whom I have been speaking are desperate for some certainty.

According to the policy memorandum, the bill allows for pilot schemes, which you mentioned. When I questioned officials last week about what ideas they have on what those might look like, I got no answer. There seems to be no idea of what any of the pilot schemes will look like. That will be a huge problem for the industry, which is desperate for ideas about where we are headed. There is a complete vacuum that the bill does nothing to fill. I would welcome your comments on that.

Steven Thomson

The bill does not address what the concepts or the construct of the pilots would be. From my understanding, however, there has been discussion in Government about pilots. I am not party to where any of those discussions are going, but I imagine that the farming and food production future policy group is considering some things. It is meant to be making recommendations in the early or middle part of next year, so those will be progressed thereafter. Until we see what the pilots look like, we cannot really make progress.

Peter Chapman

No, we cannot.

Steven Thomson

That is the reality. The stability aspect gives some certainty in that payments to farmers will continue for a period. Of course, the bill also contains a capping element, as was mentioned in the consultation exercise. Currently, the cap is €600,000. It is suggested—according to the consultation, the figures got favourable mention, at least in their reporting—that the cap would be between £50,000 and £75,000. That would be a huge reduction for some farmers. I have always said that in setting a cap, one must be very careful not to cap the wrong people—that is, the linchpins in an agriculture or food system. Some of the biggest potential recipients are among the biggest agribusinesses. Adversely affecting them could have a knock-on effect on wider industries.

Professor Fitzpatrick

For the sake of simplicity, one of the things that we could do more quickly, in order to benefit many stakeholders, is ensure access to data that is available for research, analysis and synthesis. It is difficult to get information in a number of areas due to data protection. Sometimes, data is relatively easy to get—for example, in an emergency. Better access to some of the data that is held by farmers would be very beneficial. That could be implemented quickly, and it would go some way towards addressing Peter Chapman’s question.

At the moment, there are many discussions about pilot schemes—for example, about how we could ensure use of data in sustainable agriculture in order to measure productivity, which we need to do, animal welfare and health benefits. That data needs to be released in order that we can make that synthesis and make pilots interpretable.

There are substantial discussions about how that would fit in with CAP payments, whereby some of the moneys that might currently be under pillar 2—although I know that it will not be called that in the future—could be used flexibly to give targets to pilot schemes in order to ensure that they are appropriate for wider aspects of agriculture.

The Convener

Do you want to come in on that point, Ellen?

Ellen Wilson

I do not want to come in particularly on that point, but on the point about open data. Open data is critical; I would make data open by default. It is essential that all stakeholders can access, question, analyse and play with the information from the farmer and his neighbours—all the way through to the Government and non-governmental organisations. It is essential that policy lets us access data.

Maureen Watt

What is hindering that sharing of data? Is it GDPR?

Ellen Wilson

I think that there is poor understanding of GDPR. It is probably used in defence when it could be used as an opportunity. It should not be preventing or inhibiting data from being used for appropriate purposes. Examining environmental impacts, for example, is a recognised purpose, but GDPR gets in the way. It is very difficult to acquire data fast, openly or with fair presumptions.

Professor Fitzpatrick

Another issue concerns data that is collected for specific purposes. If we want to use that data for a different purpose, which might or might not be aligned with the original purpose, we need to get permission to do so. That is certainly the case across the animal health sector, and I imagine that the approach applies more widely.

The Convener

I see that Maureen Falconer wants to come in. In responding, can somebody say whether commerciality aspects in respect of data collection from neighbouring farms need to be considered? Perhaps Maureen can pick that up.

Maureen Falconer

I cannot speak about commerciality, but I will pick up on what has been said about use of data, including big data.

I bring to the committee’s attention what is in the preamble to the GDPR—these aspects are also in the preamble to the 1995 data protection directive, from whence derived our previous regime. The former talks about data protection as the purpose of the GDPR, but people forget that it also refers to the free movement of data. It talks about protecting personal data, but one of the big purposes behind data protection legislation is to allow free movement of that data. As I said, people often get caught up in the first part of the GDPR, on protection, and forget about the second part.

In addition, people look at the articles in the GDPR but not at the recitals. We are fortunate in having the recitals in that piece of legislation because, in addition to the letter of the law as set out in the articles, they provide us with the spirit of the law. Recital 4 states that

“personal data should be”

used

“to serve mankind.”

That is what the GDPR actually says.

Again, people do not realise that the whole point of data protection is to provide a framework for safe and secure use of personal information. That includes data sharing. The legislation is set up not to be obstructive, but to provide a good framework for use of personal information.

For many years, the ICO has been trying to encourage use of open data in order that data is freely available for people to use. It is absolutely within the legitimate interests of a Government that is making policy decisions to gather as much data as it can so that it can create evidence-based policy, which is what people want. From a data protection perspective, and from my perspective—I know that it is easy for me to say this—that is not an issue. However, it absolutely is an issue for individuals who get caught up in it.

Steven Thomson told me about the issues that he has had recently. There is a lack of understanding that relates to the myths that surround data protection, just as myths surround health and safety legislation. If people would only realise that data protection legislation is an enabler rather than an obstacle, data sharing would be so much easier.

Richard Lyle (Uddingston and Bellshill) (SNP)

I return to Steven Thomson’s point. If there is a vacuum in the UK Government, how can the Scottish Government or the bill team know what to do? They are not being told how much money they will get or what systems are going to be used. That is the point. Do you agree? If there is a vacuum, how can we make a plan?

The Convener

Perhaps Ellen Wilson can reply, without being overtly political in her answer.

Ellen Wilson

Actually, I would like to return to John Finnie’s question. He asked whether the legislation is fit for purpose with regard to the transition from what we have now. I am not able to comment so much on the detail of the legislation, but I can come at the issue with a fresh pair of eyes from the biodiversity data angle.

I do not know whether the committee is familiar with the report of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services, a summary of which was published recently. The report makes it clear that, without a transformative change in these types of policies, there is no policy scenario under which we will reverse the declines in biodiversity. That is not writ large in the bill, which does not really reflect the contribution of the agricultural sector to those biodiversity declines. It does not bring to life the opportunities to respond to those declines—it could go further in that regard.

The Convener

Emma Harper has a supplementary question, and then we will move on to the next topic.

Emma Harper (South Scotland) (SNP)

My question is about data. We have been trying to find out how many dairy farm workers are from European countries. Across my region and in north-east Scotland, there are many dairy farm workers from European Union countries, but we have been unable to find out which countries they are from and where they are working. That information is directly related to Brexit and the freedom of movement of people in the future, but we cannot make policy for the future if we do not have that data in the first place. People are not asking for the names, addresses and ages of those European workers; we just want the basic figures so that we can move forward and plan our policies for the future. Is there a misunderstanding here? How can we get that data?

The Convener

When panel members answer, they should bear it in mind that farmers will be listening in order to know how many pages they will have to complete in the survey.

It is a genuine question, in the sense that a lot of data is collected. It is about how we use the correct data.

Maureen Falconer

From what Emma Harper said, I think that she is talking about aggregate data. It is not personal data; it is anonymised, so the data protection legislation does not kick in. I do not know why you are not getting the data, if that is all that you are asking for. If there is no compulsion to provide that information, it might be that people—farmers or whoever—are just not willing to take the time to provide it.

Steven Thomson

I can answer the question from a data perspective, having done the migrant labour survey, in which we used the official databases to try to work out how many European migrant workers are working in Scottish agriculture. There were no questions about which countries people come from in any of the official documentation, so we had to go back and survey them. We found that some of the bigger producers that have traditionally not been in the CAP had not been returning their census forms. The bill tries to overcome that issue by giving the Government some powers to take action against them.

As the convener pointed out, there is a challenge in that agriculture is heavily surveyed. We probably know more about the agricultural sector than we know about any other sector, because of the CAP payments. I always have concerns that, as we are dealing with commercial enterprises, some of the data might include sensitive business information. We have to take cognisance of that when we look at statistical data and data sources. Not all of the data should be open, and not all of it can be.

It is up to the individual to make a commercial decision on whether they are going to use the various tools that are in the public domain in order to help them to make decisions. Some of the data might be provided by Government or by research organisations, and there will be conditions attached to its use. We have to be careful about that.

One condition that always applies when we get access to data is about disclosure. When we gather data on farmers, we are careful, and we have to follow pretty strict procedures as to how we report that data.

The biggest concern for Government is probably that some of the data that it collects is provided by farmers on a voluntary basis. Farmers volunteer to help the industry to better understand what is happening in the industry. If we suddenly decide that the data should be open and we should know who these people are and so on, those farmers might choose—legitimately—not to provide it. In some instances, we have to take an awful lot of care with the data that we are talking about.

Stewart Stevenson

This question is for the ICO, once again. It is about anonymised data. I understand that there are some constraints to prevent anonymised data from revealing personal data. In particular, where the count of personal data in a category is five or less, the information is not disclosed. Most farms will have fewer than five people on them so, in many cases, anonymised data is not a magic bullet. I wanted to get that on the record.

Maureen Falconer

Stewart Stevenson is absolutely correct. That is more to do with statistical matters. I cannot remember the actual word—I am not a statistician—but there are rules and regulations, or understandings, around the use of statistics. Where there are small numbers in a population, someone could be identified even though only the figures are being used. For example, thinking of disability, if there is one person in a wheelchair in a small population, it is likely that people will know who that person is even if their name is not mentioned. We have to be careful and think about how the statistics might be perceived.

10:30  



There is also an issue in respect of anonymised data. Some people think that, if the data that is in their hands is anonymised, it is no longer personal data, but that is not necessarily the case. When anonymous information is published and I access it from my side of the fence, it is anonymous, because I will not know who the individuals are, as long as statistical controls—that is the term that I was looking for earlier—have been applied.

However, on the other side of the fence, if I have the anonymised data and the key to unlock it and apply it to an individual, it is personal data that I have in my hands. That does not mean that I cannot publish it and use it. I can do that, but if I have the key to unlock it, there needs to be that realisation that what I have is personal data.

The Convener

We will move on to the next question. I apologise to Steven Thomson, as the previous area of questioning took quite a long time. You will probably get a chance to come in in a moment, Steven.

Mike Rumbles (North East Scotland) (LD)

Good morning, panel. I am interested in making sure that the intention in the Scottish Government’s policy memorandum is reflected in the bill. The policy memorandum says that the bill is intended to legislate for changes up to 2024. However, section 3(1) of the bill states:

“The Scottish Ministers may by regulations modify the main CAP legislation for the purpose of securing that the provisions of the legislation continue to operate in relation to Scotland for one or more years beyond 2020.”

I raise that because section 2 gives the Scottish ministers powers to

“simplify or improve the operation of”

CAP legislation, but one person’s modification of the main CAP legislation could be somebody else’s improvement and major change.

I am certain that the Government’s intention is to legislate to implement the future rural policy that it is working on now for 2024. However, I see a problem in the way that the bill is written. After 2021, we might have a different Government that will look at the powers provided through the bill and decide that it does not need to introduce a bill on policy for post-2024. Do you have any comments on that?

Steven Thomson

You are right about modification, in the sense that one person’s improvement could be to somebody else’s detriment.

I think that the terminology of improvement is used in a general sense. In my work with Brian Pack on red tape and the regulation of farming, we identified a number of instances for simplification, but we were told that we could not have it because of the EU rules—the EU would not accept it. I think that simplification in those areas would make life easier for people on the ground.

I cannot speak for the Scottish Government because I am not part of it or party to its thought processes on the issue. The “one year and thereafter” approach seems logical, given that the Government proposes to introduce a new bill. I get the point that a new Scottish Government in 2021 might not need or want to introduce a bill and that there is nothing to compel it to do so.

I think that you are asking whether the power needs to be time bound in order to force a future Government to introduce a bill, so that the power does not roll over in perpetuity. I cannot answer that.

Mike Rumbles

Do you think that we need a new bill for 2024 onwards that relates to the policy that the Government is working on at the moment?

Steven Thomson

If we do not have one, we will still be in our present path dependency and will potentially not deliver the outcomes that society, the Government, the Parliament and—probably—farmers want. We are stuck in a path-dependent agricultural policy, but we have an opportunity to break that path dependency by coming up with something slightly different. That is not to say that we could not have lots of winners and lots of losers, but we should start to focus on the outcomes that we want to achieve. I think that that is what the Government is looking to do, but I am not part of the futures group, so I cannot comment on that. We should be looking afresh for something new.

Richard Lyle

Mr Thomson has said what I believe: we need to look for something new. I said in my previous question, which was not answered, that the vacuum in the UK Government is spilling over to the Scottish Government, which does not know what we should do. We need to have a plan and to ensure that it suits everybody. As Mr Thomson rightly says, there is an opportunity to look at the issue.

The bill gives the Scottish ministers powers to modify the financial provision in the CAP legislation, for example to ensure that there is a legal basis for setting a maximum spend for agricultural support and to amend how funds are spent, who gets the funds and how much individual recipients get. What are your views on the changes that need to be made? Do you have any concerns about what Scottish ministers might or might not do? What do you recommend? I will be interested to hear your answer, Mr Thomson.

The Convener

It sounds as though that question is for you, Steven.

Steven Thomson

Have you got a week? [Laughter.]

The Convener

It would also be helpful to hear from other members of the panel.

Richard Lyle

I am sorry that I gave a long preamble. We do not know yet what money will be available, but the main question is about how we should spend whatever money is available. Should the jam be spread out more to reach people who did not get enough in the past? Should we try to help everybody or just a section of people? I am interested in the panel’s views.

Steven Thomson

Those are challenging questions. A lot of people have mulled over where we need to go with agricultural policy. The bill’s provisions are quite strong in that they allow ministers to amend—under the affirmative procedure, I think—how much we transfer between pillar 1 and pillar 2. The provisions would allow us to change the national ceiling, which is the budgetary constraint. As Richard Lyle rightly said, we do not know what that constraint will be. The decision on what the budgetary ceiling for agriculture will be is for this Parliament to make, as well as for the United Kingdom Parliament. The Scottish Parliament has not made that decision, never mind the UK Parliament, and one has to follow the other.

On priorities and whether we should change the way in which things have been done, we need to determine the outcomes that we are trying to achieve. We are trying to achieve lots of different things through agricultural policy. When we look at the principles of the CAP that are listed, I think, in the explanatory note, we realise that we are dealing with a really broad-brush policy. We are trying to deal with biodiversity, climate change and farm and rural incomes. We are trying to achieve an awful lot. We cannot target our policy unless we better understand the outcomes and the geography of the outcomes.

Food is fundamental to agricultural policy so, at some point, we need to support food production. We need to support marginal areas where there is extensive food production, but we also need to think about trees, for example, and whatever else we are doing in relation to land management. We need to take a step back from the broad-brush approach that is being taken through non-targeted area-based payments. What are they rewarding? They are rewarding minimal activity in some areas. We need to look again at that whole process.

Richard Lyle’s point about those who did not have funding highlights the path-dependent nature of agricultural policy. We always revert to saying that we do not want to have too many losers, but we often forget about the people who came in later and did not have funding in the first instance.

As an aside, I note that I gave evidence yesterday to the just transition commission, which has been set up to provide advice to the Scottish Government. I think that it will come back with recommendations on where our policy on agriculture and land management might need to go in order to accelerate things towards achieving the target for net zero emissions.

Given all the objectives that the Government is trying to achieve, we must be careful about how we target such support in the future. Our approach does not need to be the same for the whole of Scotland. We have been very critical of the EU for apparently having a one-size-fits-all policy, but that accusation is not really true. If we look at agricultural policies across Europe, we see that they are entirely different, although their bases under the EU framework might be the same. We need to do the same thing in Scotland. What works in Lothian might not work in Shetland or the Western Isles, so we need to have the flexibility to have a more place-based or regional understanding of our policy.

Professor Fitzpatrick

I reiterate what I said at the beginning of the meeting. I like the bill because its approach is generally positive. It is good that we are aiming to retain EU laws where appropriate, but the bill allows us to refocus on Scottish issues and have the flexibility to support the appropriate sectors in Scotland. As Steven Thomson described, agricultural payments can be made in all sorts of ways, but the main point is that they have to drive beneficial changes in Scotland, which might well differ from the changes in other parts of the UK.

The payments need to be based on productivity. I am a firm believer that food production is an essential aspect of the Scottish economy, and it is also important for Scottish people to be able to eat our regional and national foods. For the first time, we have an opportunity to combine food production with sustainable metrics—for example, with food production that also addresses the target of having zero carbon by 2045. We could do that in different ways in different food production sectors such as lowland, upland, hill and moorland, and crofting. However, in order to do that, we need to develop methods of measuring sustainable production and apply them to the right areas. A considerable amount of work is being done on that. A key aspect is regional benchmarking, which involves setting out what we expect Scottish farming to do in each region.

That brings me back to data. The relevant data is there, but we need to benchmark it and use it regionally if we are to drive improvement and change. For me, the CAP repayments should be used to drive beneficial change and hold recipients to improving their management of agricultural land. We could argue that such an approach could be used in other parts of the UK, but there are specific issues in Scotland that we need to address in that way.

Richard Lyle

Basically, we should target the money towards achieving better outcomes and better food production.

Professor Fitzpatrick

Yes.

Richard Lyle

People would then have an incentive because, if they wanted a wee bit more money, they would have to do better.

Professor Fitzpatrick

Absolutely. Such incentives could be set in areas such as quality food production and animal welfare. In areas where we want to promote sustainability, they could be set in environmental schemes that protect biodiversity and allow farming to go hand in hand with it. I could give lots of other examples in the environmental area, but the idea is that, in the various sectors, there should be targets for each person to do better than they are currently doing, for the benefit of the whole of mankind.

Ellen Wilson

I echo the comments of Steven Thomson and Professor Fitzpatrick, but I want to make a point of my own. If the division of money across the UK came down to application of the Barnett formula, that would not be great for biodiversity. Scotland holds more and richer populations of important threatened species, so it has many more of them to conserve and many more are left here than exist in other parts of the UK. It is therefore crucial that Scotland receives sufficient funding to honour the value that such species have for biodiversity, in which regard Scotland punches at a level way above those of the other UK countries.

10:45  



Mike Rumbles

Steven Thomson and Julie Fitzpatrick have made it clear that they think that the bill is comprehensive legislation that could change policy. That brings me to the point that I want to make. If we give that power to a future minister, post-2021, under this primary legislation he will be able to bring forward new policy and all that the committee will be able to do is say yea or nay. We will not be able to change anything that the Scottish Government brings forward.

Earlier, I asked whether you thought that, post-2024, it will be more appropriate to have a policy bill—which the Scottish Government tells us it wants, and I support that view—so that we can get our teeth into it and improve it. Whatever colour we are, we know that all Government bills can be improved. My worry is that, if we pass this bill in its current form, the Scottish ministers will not need to bring forward a policy bill. What do you think?

The Convener

Who wants to reassure Mike Rumbles?

Steven Thomson

If the Scottish ministers wanted to make fundamental changes to the current agricultural policy, that would need to be done in the form of a new bill. They could amend how much is going in from pillar 1, but remember that we will still be bound by the EU in all of that. If we want to trade with the EU, under the terms of the withdrawal agreement—whether we agree with it or not—we will still be bound by ceilings and certain percentages that can be paid under different aspects. International trade will determine future agricultural policy needs as much as we think it should, and, until we start going down that route, we cannot design a future agricultural policy. Our trading partners will be important in dictating or bounding what we can put into future bills.

Nevertheless, your point is clear: the question is whether, under the bill as it stands, the Scottish ministers can change materially the principles of the existing legislation enough that we would not recognise the agricultural policy. I do not think that they could do that under this bill. For example, I do not think that they could get rid of the basic payment. I am not a legal expert; the committee members know the law better than I do. However, I suggest that, if the Government were trying to make such changes, it should do that through a bill.

Mike Rumbles

You said that we could transfer funding from one pillar to another.

Steven Thomson

We can do that now under EU rules. We have been able to transfer from pillar 1 to pillar 2, and we chose to do that from 2007 onwards. We were one of the few states that made voluntary transfers from pillar 1 into pillar 2—there were also the compulsory EU transfers. That is where the measure is. If a top-up is needed in pillar 2, we would take some money out of pillar 1 and top up pillar 2, in order to have pilot schemes. That is my understanding of what ministers are trying to achieve.

The Convener

My understanding of the bill is that they could take all of the pillar 1 funding and put it into pillar 2. At the moment, there is a modulated bit that goes across. Is that your understanding or is that wrong?

Steven Thomson

As I keep saying, I ain’t a legal expert.

The Convener

Okay. Maybe we need to ask the minister about that.

Steven Thomson

Maybe there needs to be a restriction on the amount that can be moved between pillars.

Professor Fitzpatrick

I understand the question but I cannot answer it, because there are complexities in the wording of the bill that need to be looked at by lawyers. We are suggesting that everything looks as if it is there; the timing and the issues of other policy bills are a matter for the Government and the lawyers. However, the principle is that we retain flexibility so that, over time, we can make adjustments as and when our farming systems change.

Jamie Greene (West Scotland) (Con)

We could spend a lot of time discussing the future of the policy and what it should look like. The panel will be aware that the current UK Government has committed to the same levels of funding that exist under the CAP until 2024. However, that is obviously a financial amount; there is not necessarily a policy behind it, and there is divergence of policy across the four nations, which have produced separate papers and which are very much looking at that issue.

Going back to what the bill is or is not, does the panel think that the intention of the bill is simply to allow the Scottish ministers to continue to pay under the current scheme, or is it to diverge from the current scheme or to simplify or improve it in some way? Indeed, is it to go beyond that—as do parts of the bill, such as sections 7, 8 and 10—and allow us to make regulatory and marketing standards changes, as well as changes to the financial method of paying farmers?

Steven Thomson

My understanding is that the UK Government had committed only up to 2022 because that was going to be the end of the parliamentary session; it cannot not commit up to 2024.

Jamie Greene

That depends on what happens in two weeks’ time and who the Government of the day is.

Steven Thomson

Yes. We will not know the date that any commitments will be made up to until the next Parliament comes in. As I mentioned, the policy will then have to come through this Parliament. Although the UK Government may give the Scottish Government money at the existing levels, this Parliament will have to allocate that money to agriculture. My understanding, from speaking to Treasury colleagues, is that they will not ring fence the money and that, potentially, it will come in the Scottish allocation.

On the other provisions, from reading between the lines and speaking to policy colleagues, I believe that the bill is meant to allow the Government to deliver existing policy as it is and make amendments that are beneficial to the farming population and perhaps society, as we move towards climate change targets and improve biodiversity, through the principle of the new policy development process. The bill clearly talks about enabling future policy development; it does not talk about wholesale changes in policy at this moment in time. Added up, all the different parts of the bill suggest that it is interested only in trialling new aspects that would come forward in a future bill or policy.

On European marketing, if we are no longer going to be part of the collective, we would want to be able to withdraw from collective initiatives. For example, there was an initiative whereby the European Union was trying to promote lamb consumption across European Union markets collectively—not Scottish, British or Spanish lamb specifically, but just lamb. We would probably automatically not want to be part of such initiatives, so we would need to withdraw that part of the bill.

There also needs to be scope to maintain intervention. The EU has that potential, and America uses it in emergencies. We need to have the scope for storage and intervention in the markets in exceptional circumstances. A hard Brexit or a no-deal Brexit may be such an exceptional circumstance in which we might need scope for that far sooner than we think.

Jamie Greene

I have a brief supplementary question. If there were to be not just simplifications or improvements but substantial changes to the way in which we support farmers, through a new system that came off the back of whatever policy the Government of the day introduced, would you prefer such changes to require a substantial piece of legislation that went through this Parliament? Would that be a better approach than using this bill to make those sweeping changes?

Steven Thomson

If the system was substantially different, it would need pretty strong scrutiny not just by this Parliament but by stakeholders, the wider public and the people who would be affected by it. If there were to be substantial changes to the way that we support the land-based sector through agricultural policy, I would want parliamentary scrutiny of them.

Peter Chapman

I ask Steven Thomson to clarify something that he mentioned in his previous answer. Is it his understanding that any money that comes from the Westminster Government to support agriculture in Scotland will not necessarily be ring fenced and that that money could be siphoned off for other things once it arrives in Edinburgh? If that is his understanding, that is a huge worry for me and for agriculture in general.

Steven Thomson

My understanding is that we would be given the Scottish allocation, of which agriculture funding would be just one part, and that it would be for the Scottish Parliament to determine how that money was spent. That is my understanding—I might be wrong—from various discussions at Westminster and up here.

Jamie Greene

I will move away from payments and turn to standards.

I do not know whether any panel member watched, or has read the Official Report of, last week’s evidence session. I asked, if there was a divergence in direction of travel between the EU and the Department of Environment, Food and Rural Affairs on matters of marketing or regulatory standards, what effect the bill would have on the Scottish Government’s ability to choose between them. The answer that I received from Dr George Burgess was:

“If standards diverge because of decisions taken either at European level or by DEFRA and we have to decide which way to go, the bill will give us the flexibility to do it ... we would look at whether the balance of advantage would be for us to retain alignment with England or with the EU.”—[Official Report, Rural Economy and Connectivity Committee, 20 November 2019; c 25.]

Do panel members have any views on that? Does the bill bring any benefits, advantages or problems in terms of regulatory divergence?

Professor Fitzpatrick

It would be beneficial to have the option of following both. Again, that would allow a Scottish interpretation to be applied to the comparison of regulatory decisions made by the EU and by the UK. The regulations might change because of our different farming systems—our continuing focus on sustainable productivity, for example. Animal welfare is another really important issue on which we need to be able to compare what the EU decides to do and what the UK does. I think that the bill covers that, through the agricultural activities and areas defined within it.

Steven Thomson

A concern that I have always had about putting the EU acquis into UK legislation is that, if we are to trade with the European Union going forward, we will need to comply with its rules and regulations anyway; therefore we cannot be too divergent. We need the flexibility to deal with its changes and regulations, otherwise we might not be able to sell product to it. We also need the flexibility to relabel things as Scottish or British when labelling standards are slightly different.

Standards need to be set in the frameworks and the regulations that surround agriculture. We do not just talk about agricultural policies as being payments, remember: there is a whole series of legislation surrounding things such as traceability and pesticides. We need commonality on those standards across the UK, and we will probably need quite a lot of similarity with the EU. I think that the bill allows for that. When I read the bill, at first, I was slightly confused as to its wording, but then I came to understand what the Scottish Government officials intended in terms of their ability to adapt to whatever Westminster might choose to do.

Stewart Stevenson

I will move on to the collection and processing of data—we have covered quite a bit of that subject en route.

My main question is probably for the Information Commissioner’s Office. In the current context, what is the legal need for us to update how we acquire, process and use data?

11:00  



Maureen Falconer

Where do I begin? I feel a bit like Steven Thomson felt earlier.

I will talk through the basics of data protection. In the processing of personal information, processing is anything that can be done with a piece of personal data. That is set out in the bill, and it simply mirrors what is already set out in the GDPR and the Data Protection Act 2018. We have to work within six data protection principles, which form the framework for the lawful processing of personal information. The first two principles are the most important, because they provide the foundation for any processing of personal information. You could get the rest right, but if you do not get the first two right, you are building on sand.

Stewart Stevenson

Fascinating as that it is—it is necessary that we understand it—I wonder whether I might ask a narrower question. Why are we doing anything with data in relation to this relatively narrow bill? What is driving that?

Maureen Falconer

The current data protection legislation allows us to share information, so why is that addressed in the bill? Is that your question?

Stewart Stevenson

Yes.

Maureen Falconer

It is in the bill for the sake of clarity and to ensure that there is an unambiguous legal gateway to allow for information sharing. I looked at the Scottish Parliament information centre briefing on the bill and saw that alternatives had been thought about. You could have relied on the Agriculture Bill that is going through Westminster, but you would have been trying to fit the processing activity into something that was not specific to that activity, so you would have had to use broad terms. Instead, the bill breaks it down into specific terms. It sets out the purposes, which is the second data protection principle; the lawful processing, which is the first principle; the issues of fairness and transparency, simply by being here; and the regulations that have to follow in relation to the information.

Stewart Stevenson

One of my colleagues will talk a bit more about the purposes section of the bill—section 16—so I will not open a discussion on that at this stage.

It is simply about using the existing powers and, in a bill that is about agriculture, stating them in relation to agriculture. That is the purpose, rather than the creation of any new powers.

Maureen Falconer

Indeed.

Angus MacDonald (Falkirk East) (SNP)

We discussed data collection earlier, but I am keen to hear the panel’s views and reflections on the way in which Scotland collects and uses agricultural data. What types of data that is currently collected by the Scottish Government do your organisations rely on?

Steven Thomson

We rely on it all. Our research, which is funded significantly by the Scottish Government, makes heavy use of some of the Scottish Government data sets. In particular, we use the farm business survey, which is the financial data that is currently gathered under an EU regulation, to understand the financial performance of agriculture.

We use data such as the June agricultural census and the December agricultural survey. Colleagues in other institutes make heavy use of the agri-environment climate scheme—AECS—application system data, which allows us to look at what is happening in farms at field and more nuanced levels. We use data from the cattle tracing system and the ScotEID data sets. We use data from a wide ambit to portray a picture of agriculture in Scotland and to look at whether policy interventions are having an effect—whether that is the desired effect or otherwise.

There are a host of other biodiversity data sets that are perhaps more in the public domain, but they are not really part of the data collection exercise that the Scottish Government is talking about. Under the bill, pretty much all those data sets will be used for research purposes, where appropriate.

Professor Fitzpatrick

I will not repeat what has been said, but I agree with what Steven Thomson said about all the data types that he described.

Moredun works mainly on animal health, so we are interested in farm productivity levels, which allow for the benchmarking of different quartiles of production; animal health and welfare data, which we get from Food Standards Scotland disease data; data on soil types and animal movements, including cattle movements; and data that is held by organisations such as Quality Meat Scotland, which receives funding from the Scottish Government.

I emphasise that the data types that are collected in Scotland will change in the future, because we are using big data much more and our understanding is evolving incredibly rapidly. The data types in Scotland that will link to the CAP and to the Scottish Government will differ from those in other parts of the UK. That is really important. I now better understand that the sections on data have been included because there will be different types of data in our systems.

Ellen Wilson

The biodiversity sector uses lots of data sets from agricultural information. In particular, the agri-environment climate scheme field boundaries are critical but are often difficult to get hold of. Having things set out spatially is relevant and important for us.

Our contribution will be the other way around: we might be involved in collecting many of the biodiversity data sets on which the Government will rely to understand responses to particular prescriptions and interventions. It is particularly important to us that we understand exactly what intervention has happened, so that we can look at the impact and value of the scheme and at whether it is appropriately targeted.

Angus MacDonald

Are your organisations in a position to collect or process agricultural data on behalf of the Scottish Government?

Steven Thomson

Yes. Our colleagues are contracted to collect the data for the farm business survey. The Government does not go out into the fields and deal with the farmers. It is likely that there are other instances in which the Government uses contractors to collect such data. Part of our organisation knows the identity of such individuals, but that data goes to the Government, which anonymises it, and then I get the anonymised data sets.

There is real complexity to understanding data. We have not mentioned data linkage, but one of the powers of research is being able to link different data sets together to enhance our understanding. Under the GDPR, we are allowed to do that, but it now involves a slightly more complex process. We have to be robust and explicit in how we do things.

People collect data for the Government in various ways. I probably could not list them all just now, but I could ask our colleagues which governmental data sets we collect.

Angus MacDonald

That would be helpful.

Ellen Wilson

The biodiversity sector, for all taxonomic groups, relies on volunteer data collectors, who come from all walks of life and from all locations in Scotland. Their work culminates in the “State of Nature” reports, which are the flagship reports in which the Scottish Government has an interest. The reports set out the declines and the impacts in relation to the industry that we are talking about.

I am a member of RSPB Scotland, and we collect lots of data from long-term bird monitoring schemes. However, the wider Scottish biodiversity information forum community will collect all sorts of taxonomic information and provide some of the expertise that is needed to verify data sets. We are instrumental in some of the verification processes that support biodiversity.

Steven Thomson

We collect a lot of survey data through either the strategic research programme or contract research. Generally, that information does not go to the Scottish Government. We hold it, control it and analyse it, and then we delete it when we are finished with it. Although the Government pays us to do those things, those are not the official data sets that we have been talking about in relation to the bill. The Government needs explicit data sets to help us to best understand agriculture.

Emma Harper

Steven Thomson talked earlier about collecting lots of data in agriculture and there are obviously important reasons why we do that. We look at agri-food supply chains and the health and wellbeing of plants, animals and people, and there are issues around soil, biodiversity and climate change. Section 16 of the bill has multiple lists of what we are looking at when we collect data. I will not read them all out, but do you think that anything is missing or that the bill will cause any problems for collecting the data?

Professor Fitzpatrick

The lists are pretty inclusive from an agricultural point of view. I will leave biodiversity to Ellen Wilson. From my point of view, the bill makes good provision for data to be collected and it clarifies many of the issues. Some of the definitions of animals and so on are quite broad so that lots of things will fit into them; otherwise, the list would be incredibly long. The broad definitions cover the types of data sets that we would wish to use.

Ellen Wilson

Broadly, the lists are about right. My concern would be that if simplification drives the collection of less data it would mean that we could less effectively ascertain impact and value. We must continue to collect sufficient information around impact and value so that we can target and understand the impact of the system.

Emma Harper

There are climatic risks and risks from disease and pollution, so it is obviously really important that data is collected and managed.

Ellen Wilson

Very much so. All sectors can contribute to that. The offering from the citizen’s science side of things is collecting information over and above what the monitoring schemes currently provide. It can detect early arrivals and help with identifying particular diseases and understanding their ecology. There is a whole thing in support of collecting data that makes it possible to extend the evidence base and to verify and have early warning of invasive species.

The Convener

Does Steven Thomson want to add anything?

Steven Thomson

No. I was going to say that the bill is not specific on the social dimension—employment and the people engaged in the sector—but then I found it. It is important that we understand the challenges, but the bill mentions

“the health and welfare of people or animals”

so there is a social dynamic in it.

Stewart Stevenson

I want to ask specifically about section 16(4)(g), which says

“monitoring or analysing markets connected with agri-food supply chains or agricultural activities”.

I am interested in the supply chain, because it is clear from the definitions that the supply chain is essentially everything from the cauliflower being in the ground to it appearing on my plate. It is acknowledged that supermarkets have a quasi—or perhaps actual—monopoly power in relation to farmers. Might we be able to gather data on that to offset the acknowledged weaknesses of the Groceries Code Adjudicator? Part of the adjudicator’s brief is to ensure that direct suppliers are treated fairly, but there is a widespread view that they are not. Is that your understanding of what that provision would enable? Are you aware of any Scottish Government activity on that at the moment? It clearly crosses the legislative boundary between Westminster and Scotland.

The Convener

I forgot to say at the beginning of the meeting that if everyone looks away at the same time, I will have to nominate somebody to answer. You all looked away but Steven Thomson put his hand up, which was lucky because he was going to be nominated anyway.

Steven Thomson

Such an exercise would involve the collection of market data on the prices that farmers get at various stages of the process. I understand that it would also collect data from abattoirs, on throughput and so on.

11:15  



I am not sure that that has always been the intention. When the UK Agriculture Bill was introduced I thought, “Wow. How are they going to achieve that through the entire food chain?” It could be a real challenge to obtain that level of data throughout the process—from the ground to the plate, as Stewart Stevenson put it. The rationale behind the UK Agriculture Bill was to have fairness across the supply chain and to require data in order to determine that. That places a heavy burden on us to conduct a new data exercise that we do not currently do.

Data sets such as those produced by Kantar Worldpanel and dunnhumby mean that we can understand prices at the retail end. However, we do not know what the price differentials are between processors and retailers. The Agriculture and Horticulture Development Board collected some data that showed that it was possible to calculate the spread from farmer to retailer so that we could understand how much differential there was between the consumer price and the farmer price. The food processing element was the 50 per cent or so in between those prices.

I do not really know what the exact purpose of section 16 is, but it would be useful for us to understand better where the margins are. I know that there are very tight margins in the abattoir and food processing sectors, but that data is not publicly available.

Stewart Stevenson

You are not disagreeing—although you are not necessarily agreeing—with the proposition in section 16 that

“analysing markets connected with agri-food supply chains”

could confer a power to collect data from supermarkets. When that section is read with section 13, which is about requirements to provide information, that could require supermarkets to provide such data. I see that you are nodding your head, so I take it that you are reading it in that way.

Steven Thomson

That is how it reads. Again, though, as I am not in the Government I cannot tell the committee what the thought process behind the section is. If it is as Mr Stevenson suggests, that might mean that we would also have to collect data from distillers, millers and similar producers.

Stewart Stevenson

In fairness, I am only dealing with what is in the bill. I do not actually care what the Government thinks; I care only about what it writes in the bill.

The Convener

I am afraid that Stewart Stevenson’s questions have prompted a whole lot more. I will take questions from Emma Harper, followed by Maureen Watt, before I come to Colin Smyth, who will therefore have a bit of a pause before asking his question.

Emma Harper

My question is just a wee supplementary on that point. It is important that we look at such markets, because we do have challenges in the sheep sector. Our sheep meat goes to other places, because Scottish folk do not eat it. There is also volatility in the milk market or dairy sector, which means that we have a supply chain that might or might not be interrupted. Would that be part of this analysis of markets, so that we can look at where our supply chain is broken or fails to support the producers rather than the processors and then the retail giants such as Tesco?

Professor Fitzpatrick

Those are questions for legal advisers. I can see that we cannot just force companies or organisations that claim commercial interest to provide information unless they are in direct receipt of Government funding in some way. Although I agree with the principle that it would be nice to have data—and it is very important for the future of all our different food chains—I just cannot see that the bill would allow that to happen.

Maureen Watt

Given the answers to that question, and what Julie Fitzpatrick said earlier about biodiversity and climate change, in the future will supermarkets have to change their view of what is provided by farmers and not be so prescriptive about the fat content of beef or whatever?

Professor Fitzpatrick

In an ideal situation everyone down the food chain would have discussions on such issues. However, given the realities of data protection requirements and companies having to produce data, I cannot see that the bill would allow that to happen. However, I agree that, in principle, it would be very nice indeed if we could have such a situation.

The Convener

We will leave the matter there and move on to a question from Colin Smyth.

Colin Smyth (South Scotland) (Lab)

We have touched on this issue quite a lot. For the avoidance of doubt, the policy memorandum states that

“data collected is used to analyse economic output”

as well as

“performance ... and effectiveness of policies”,

and to help

“Scotland provide information in the Sustainable Development Goals.”

Are we currently collecting the right data for those purposes? Given the impact of coming political change and climate change, and the subsequent pressures on rural business, will we have to collect additional data in the future? Does the bill allow for that?

Ellen Wilson

We probably do not collect sufficient data; we would require an assessment to find out what we need to do to remedy that. The effects of climate change and biodiversity crises are coming up—indeed, they are with us now—and we need to ensure that agricultural policy and the bill support our ability to respond to those challenges. There is much to do.

Colin Smyth

Under the bill, will we be able to collect the data that will be required in the future? Will any restrictions result from the bill?

Ellen Wilson

The bill might permit more collection of data—the issues relate more to design and efficacy, and the purpose for which we would use the data. Some rigorous scientific design is needed in order to ensure that the criteria are met and that the data really does explain the impacts that are being felt.

Steven Thomson

At some stage, we will have to work out the extent of the data burden on people, because it should not be excessive. The Government does not ask for data on everything. Otherwise, farmers would be doing paperwork all the time—some of them already think that they already are, probably.

I will make a point about supermarkets, because they get a hard time. Some of the people who are on aligned contracts with the supermarkets are jumping through incredible hoops in order to get premiums, so the supermarkets are driving private delivery of public goods and environmental benefits.

Professor Fitzpatrick

With regard to data collection in the future, changes in the trading arrangements for animals, plants and food products might pose additional risks in all parts of the UK, including Scotland. I hope that that does not happen. We always need to be prepared to start data collection at the very last minute where there might be, for example, an incursion by an exotic disease—or even by a new and emerging disease, because genetic mutations mean that new organisms can appear. There always has to be provision for the unknown unknowns.

Colin Smyth

Does the bill make provision for the unknown unknowns?

Professor Fitzpatrick

I think that it does. The list in the bill is not exhaustive, but it is broad enough to include almost everything that I can think of, without being too prescriptive.

Maureen Falconer

Section 16 sets out a list of very broad purposes. The Data Protection Act 2018 states that the second data protection principle refers to “specified” lawful purposes. However, there is absolutely no problem with further processing under the data protection legislation as long as that processing is for a purpose that is not incompatible with the original purpose. Some of the purposes in section 16 are so broad that I could well imagine the data being used for further purposes that are aligned with the purposes in the bill. From a data protection perspective, that would be fine.

The Convener

Before we go on to the next question, Emma Harper wants to follow up on her earlier question.

Emma Harper

I just want to clarify that when I said that Scottish folk do not eat enough sheep meat, I was wanting to say, “Let’s all eat more and support our local farmers.”

The Convener

I was sure that that was what you meant in the first place. The next question is from Peter Chapman.

Peter Chapman

The Scottish Government states that there will be no additional requirements placed on farmers and crofters in order to collect the additional data, which is very welcome. As Steven Thomson mentioned, farmers are out there to produce food—they do not want to be sitting in offices all day collecting data.

The Scottish Government also says that it is exploring new technologies including satellite mapping. How useful is satellite mapping? Is it available now, and is it used? Are there new technologies coming down the road that would help us to collect data without placing additional burdens on the producers who are at the sharp end?

Ellen Wilson

Everything from drone imagery through to artificial intelligence will really help, but it still has to be tailored. There is no substitute for checking what is happening on the ground and training the computer to understand what it is seeing and interpreting. That comes back to design, which needs to be based on why we are collecting the data and what we will get from it, so that we can take advantage of technologies. There are huge opportunities.

Professor Fitzpatrick

I agree. The opportunities to make data collection easier are numerous. There are good examples including smart farming and targeted pesticide applications for crops, as well as sensors on animals that measure their wellbeing and temperature, how they are moving around, and the onset of disease. The bill has to be able to cope with new technologies, which we hope will reduce the burden of data collection on farmers while still ensuring that the data is collected.

Steven Thomson

We are discussing two elements here. One concerns private data, which involves the farmer buying a piece of tech: in general, data from that will not make its way into the public domain, whether we like it or not. As researchers, we might get access to such data through collaborations.

With regard to Peter Chapman’s question on satellite imagery, the answer is yes—it might provide scope for farmers not to have to declare information in their June census form or AECS form. The technology can be used to see which crops are growing, which would save time and effort.

On bovine electronic identification, there have been a lot of discussions with ScotEID on whether a new tagging system could replicate or get rid of the passport, which places another data burden on farmers. There are opportunities in lots of areas for removing, through technology, the regulatory data burden. I know that the Scottish Government is trying to minimise the amount of effort that goes into filling in forms for the June census and the December survey. I understand it that the Scottish Government is looking at all opportunities.

The Convener

We have nearly finished questions—I have just one more. That last answer has made me feel slightly better; I know how much farmers across Scotland look forward to getting their census forms when they come out. [Laughter.]

Farmers are asked a list of questions, many of which could be self-populated in forms by information that the Scottish Government already holds—for example, on numbers of stock on a holding. All that information is already recorded. It also includes information on cropping and the age of the grass, from the previous agricultural census form that was filled out.

Some farmers will get more than one agricultural census form, because fields can form different holdings. Is there any chance that the data provisions in the bill will make the process easier? I hope that farmers will not have a book to fill in, and that the Government forms will be self-populated with some answers that it already holds. Who would like to answer that? Perhaps Steven Thomson can go first. It would be a nice Christmas present for farmers if he can tell them that that is the case.

Steven Thomson

You have just told them that, convener.

The Convener

No—I am asking whether you think that that will be the case.

Steven Thomson

All right. I think that the Government has been trying to do that. You are quite right that because we collect data for official purposes at business level, and data at holding level for other purposes, those cross-purposes are leading to confusion.

I often hear that there are 54,000 farmers in Scotland. I know that there are 54,000 holdings, however, which is totally different from the number of farmers as business units. That is the issue—there is a technical difficulty. The Government has used the CTS data, where it has that information, to populate the survey. It is probably not using the sheep inventory, because that is done at a different point in the year and it needs to understand the number of lambs. There are challenges. I understand the frustrations, but the data is useful.

The Convener

Does anyone else want to comment?

Ellen Wilson

It should not take a bill to enable us to make the process easier. We should be continually improving how we hold, collect and store data. There is endless opportunity, and it would be great fun to do that. Would not it be wonderful if we could continually improve every single aspect of data collection? Improvement should be perennial, and the process should become more and more wonderful. There is so much public good coming from the sector that it really merits investment in monitoring and in the service design side of things. If the bill can make provision for a proportion of the available funds to go into that side, it would help everybody.

Professor Fitzpatrick

My final view is that, because of the lack of time for data issues, it is really important that we focus on the most important data, and that we use that data in the most important and beneficial ways in order to drive the country to achieve the many outputs that we want. If we combine the datasets that we have, and if we get even better datasets in the future, we will have a great opportunity for science, farming and the countryside to come together and produce excellent outputs.

The Convener

That is a positive note on which to end. I thank all members of the panel for coming this morning. Your evidence has been extremely helpful.

11:30 Meeting suspended.  



11:36 On resuming—  



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20 November 2019

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