The Agriculture (Retained EU Law and Data) (Scotland) Bill was introduced to the Scottish Parliament on 6 November 2019 and passed Stage 1 on 5 May 2020.

Why is the Bill required?

The Common Agricultural Policy (CAP) was launched in 1962. The purposes of the CAP include providing support to farmers and improving agricultural productivity in order to ensure a stable supply of affordable food; assisting with climate change; and promoting employment in the agricultural sector.

CAP applies across all EU Member States and is managed and funded at European level.

Under the terms of the Withdrawal Agreement agreed between the UK and the EU in October last year, essentially all aspects of EU law will continue to apply in UK law as if the UK remained an EU Member State during the transition (or implementation) period (this includes the CAP Rules and Regulations).

The Withdrawal Agreement, as an international treaty, is given domestic legal effect by the European Union (Withdrawal Agreement) Act 2020.

The 2020 Act also amends the European Union (Withdrawal) Act 2018, providing for the retention of EU (derived) law as it stands on "Implementation period completion day", currently 31 December 2020. This new body of UK law, the so called "retained EU law", will continue in force in domestic law until repealed or amended. See our previous blog.

Agriculture is a devolved area of policy in Scotland with many decisions being made by the Scottish Government, including those implementing the CAP.

The Agriculture (Retained EU Law and Data) (Scotland) Bill (the Bill) provides Scottish Ministers with the necessary powers to make changes in relation to the CAP, which will become "retained EU law" at the end of the transition period, and for it to continue to apply in Scotland, allowing subsidies to continue to be paid to eligible landowners and occupiers.

What does the Bill do?

The Bill seeks to provide the Scottish Ministers with the power to simplify and improve the CAP following the UK's departure from the EU. In addition to permitting the existing CAP to apply in Scotland, there are new aspects introduced by the Bill, such as:

  • power to modify financial provision;
  • power to make new provision about marketing standards in relation to agricultural products and the classification of carcasses; and
  • power to make provision about the collection and processing of information connected with food supply chains and agricultural activities.

The primary objective of the Bill is simplification of the CAP. One example is in relation to the current support for Less Favoured Area (LFA). Under the CAP, the support available for farmers in the 2020 year under the Less Favoured Area Support Scheme is to be substantially reduced and then shift to a new scheme in 2021.

The Bill will allow Scottish Ministers to modify this proposed amendment and provide them with the power to direct support as they deem necessary.

How does the Bill shape policy for the future?

There are a number of areas where the Bill provides for Scotland to diverge from the current position.

If passed in its current form, Scottish Ministers will be able to make changes to aspects of the CAP such as the level of payments, the legislation on public intervention and private storage aid (support schemes to stabilise the price of products), make changes to the classifications for pig, beef and sheep carcasses, and amend the definition of ‘agricultural activity’.

While the Bill permits existing support to continue to apply in Scotland, it does not set out the future direction of policy or support.

The Bill came under criticism for providing a lack of direction for future policy from the Rural Economy and Connectivity Committee that reviewed the Bill at Stage 1.

The Scottish Government's response to this criticism was that the Bill is purposefully designed to address process and not future policy.

While the Bill is an interim measure focused on process, it seems unlikely that we will see radical policy changes being made in the near future.

What next?

At Stage 2, the Bill will undergo more detailed scrutiny and consideration of proposed amendments. Provided the Bill passes the second stage, it will be considered by Parliament as a whole with further amendments possible at the third stage.

If no amendments are proposed, or Parliament agrees on the Bill, then it is passed and proceeds to Royal Assent.

As the UK transition period is currently scheduled to end on 31 December, we expect the Bill to receive Royal Assent in the second half of this year to bring the CAP into Scottish legislation.

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