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Good Food Nation (Scotland) Act 2022

Good Food Nation Plans of Public Bodies

Section 10: Requirements to produce plans

29.Section 10 imposes a duty on each relevant authority to publish a good food nation plan. A “relevant authority” is a health board, a local authority or a public authority specified by the Scottish Ministers in regulations.

30.Section 25 defines a health board in terms of section 2(1)(a) of the National Health Service (Scotland) Act 1978, under which the area health boards were constituted for the purpose of exercising functions relating to the health service and making arrangements for the provision of healthcare services. The definition does not include special health boards constituted under section 2(1)(b) of the 1978 Act.

31.The term “local authority” is defined in schedule 1 of the Interpretation and Legislative Reform (Scotland) Act 2010 (which applies to the Act) as a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994.

32.The Scottish Ministers may by regulations specify other public authorities to which the duty will apply. Section 25 defines “public authority” for this purpose. Any person who is a part of the Scottish Administration would constitute a public authority for the purposes of the Act. The definition also extends to include any public body (except the Scottish Parliamentary Corporate Body), public office or holder of such an office with functions (in each case) which relates only to matters which are not reserved under the Scotland Act to the UK Parliament or which has mixed functions (i.e. some which relate to reserved matters and some which relate to matters which are not reserved) .

33.The relevant authority must publish its good food nation plan within 12 months of this section coming into force. In the case of a public authority specified by the Scottish Ministers in regulations, the regulations which impose the duty for that authority to publish a good food nation plan will also specify the period by the end of which the plan must be published.

34.Subsections (4) to (6) set out what the plan must and may contain, and require the relevant authority, in determining the content of its plan, to have regard to the scope for food-related issues to affect the same outcomes which are relevant to the national good food nation plan (see paragraph 5 of these Notes).

Section 11: Preparation of plans: principles

35.Section 11 provides that when preparing the national good food nation plan, relevant authorities must have regard to the same principles as the Scottish Ministers must do in relation to the national good food nation plan under section 2.

Section 12: Preparation of plans: consultation

36.Section 12 imposes a duty on relevant authorities to consult those the relevant authority considers appropriate on a draft of their good food nation plan and have regard to the consultation responses.

37.As is the case for the Scottish Ministers in relation to consultation on the national good food nation plan, each relevant authority must, when consulting on their good food nation plan, have regard to the importance of communicating in an inclusive way and to communicating in a way that is effective in engaging children and young people.

Section 13: Preparation of plans: consideration of national plan

38.Each relevant authority must have regard to the national good food nation plan when preparing their good food nation plan. This will mean that the relevant authorities have to have regard to the most recent national good food nation plan.

Section 14: Statement accompanying plan

39.When publishing its good food nation plan each relevant authority must publish a statement setting out how, in preparing the plan, it complied with the duty to have regard to the principles set out in section 11 and the national good food nation plan.

Section 15: Effect of plans

40.Each relevant authority must have regard to its good food nation plan when exercising certain functions. Those functions, or the description within which they fall, will be specified in regulations. For example, a description might be the “provision of food in schools” or “all functions of the local authority relevant to the provision of food in schools in the Education (Scotland) Act 1980”. This would mean that when exercising any function in relation to the provision of food in schools, or any function of the local authority relevant to the provision of food in schools in the Education (Scotland) Act 1980, the local authority would have to have regard to its good food nation plan.

Sections 16 and 17: Reporting, review and revision of plans

41.These sections mirror the reporting and review requirements in relation to the national good food nation plan set out in sections 7 and 8 for relevant authorities’ good food nation plans.

42.Section 17(4) states that the provisions of section 10 on the content of the plan, section 11 on the principles to which regard must be had in the preparation of the plan, section 12 on consultation and section 13 on the regard to be given to the national good food nation plan when preparing a relevant authority’s good food plan apply to the revision of the plan in the same way as they do to preparation of the initial plan.

43.Section 17(5) provides that, as required under section 14 for the initial plan, relevant authorities must publish a statement when publishing a revised good food nation plan setting out how in revising the plan, the relevant authority complied with the requirement to have regard to the principles set out in section 11 and the national good food nation plan.

Section 18: Publication of documents: inclusive communication

44.In the same way as the Scottish Ministers are required to have regard to the importance of communicating in an inclusive way when publishing documents in relation to documents relating to the national good food nation plan, relevant authorities must have regard to the importance of communicating in an inclusive way when publishing documents under any of sections 10, 11, 12, 13, 14, 15, 16 or 17 of the Act in relation to their good food nation plan.

Section 19: Establishment of Scottish Food Commission

45.Section 19 provides for the creation of a new body to be known as the ‘Scottish Food Commission’. The Gaelic name, Coimisean Bìdh na h-Alba, has equal legal status.

46.The Scottish Food Commission is established by section 19. Subsection (3), introduces a schedule which makes further provision about the constitution and operation of the Commission. Further notes on the schedule are given in paragraphs 61 to 78 of these Notes.

Section 20: Functions of the Commission

47.Section 20(1) sets out the functions of the Commission; namely (1) to keep under review progress in achieving the outcomes in both the national and relevant authority good food nation plans and the effectiveness of the plans in addressing food-related issues, and (2) to advise, inform and assist the Scottish Ministers and relevant authorities with a view to promoting and supporting progress in achieving the plans’ outcomes and improving their effectiveness in addressing food-related issues.

48.The Commission must have regard to any request by the Scottish Ministers for its assistance in relation to a particular matter.

49.The Commission may make formal recommendations in relation to both the national good food nation plan and any relevant authority’s good food nation plan. These recommendations must be published.

50.Subsection (5) gives the Commission certain powers for the purpose of its functions. This is “without prejudice” to the general powers which the Commission is given in Part 2 of the schedule – that means that the conferral of these specific powers does not give rise to any arguments that the general powers are in fact narrower than they appear to be.

51.Subsection (6) confers a power on the Scottish Ministers to confer on, modify or remove functions pertaining to the Commission by regulations. But this is subject to the important limitation in subsection (7) to the effect that the power in subsection (6) cannot be exercised in a way that would result in functions being conferred on the Commission which do not relate to the national good food nation plan or the good food nation plans of relevant authorities. This means that the power cannot be used to confer a function independently of the plans – so, for example, the power could not be used to give the Commission a direct responsibility for food safety.

Section 21: Independence of the Commission

52.Section 21 provides that the Commission is not subject to the direction or control of any member of the Scottish Government in exercising its functions, subject to any contrary provision in the Act or any other enactment.

Section 22: Funding and financial assistance

53.The Scottish Ministers may provide financial assistance to the Commission. Such assistance may include grants, loans, guarantees and indemnities. Any financial assistance given may come with conditions attached, such as conditions as to repayment or the repayment of interest. These conditions may be varied from time to time by the Scottish Ministers.

Section 23: Publication of documents by the Commission: inclusive communication

54.The Commission, in publishing a document with its formal recommendations under section 20(4) of the Act, must have regard to the importance of communicating in an inclusive way.

Section 24: Meaning of “food-related issue”

55.This section defines “food-related issue” with reference to the definitions of “food” and “food matter” in sections 53(1) and 54 respectively of the Food (Scotland) Act 2015.

56.Section 53(1) refers to the definition of “food” in Regulation (EC) No. 178/2002(1) as at 7 December 2004. This means that the definition is consistent with European legislation and with the interpretation of “food” set out in various sections of schedule 5 of the Scotland Act 1998.

57.Section 54 defines “food matter” as any matter connected with health which may arise in relation to the consumption of food, or other interests of consumers in relation to food.

Section 26: Ancillary provision

58.Section 26 provides for the Scottish Ministers to be able to make by regulations any incidental, supplementary, consequential, transitional, transitory or saving provision they consider appropriate for the purposes of, in connection with or for giving full effect to this Act or any provision made under it. Such regulations may modify any legislation, including this Act.

Section 27: Regulations

59.Section 27 provides for the powers of the Scottish Ministers in the Act to make regulations to include the power to make incidental, supplementary, consequential, transitional, transitory or saving provision, and to make different provision for different purposes. Subsections (2) to (12) make provision about the parliamentary procedure which applies to different sets of regulations. Further information on the regulation-making powers contained in the Act can be found in the Delegated Powers Memorandum published at introduction together with the Supplementary Delegated Powers Memorandum published following Stage 2 of the Bill for the Act’s passage through the Scottish Parliament.

Section 28: Commencement

60.Section 28 provides for sections 24, 25, 27, 28 and 29 to come into force the day after Royal Assent. The Scottish Ministers may commence the other provisions of the Act by regulations. The power to make commencement regulations includes a power to make different provision for different purposes, and to make transitional, transitory or saving provision.

Section 29: Short title

61.Section 29 provides for the short title of the Act, the Good Food Nation (Scotland) Act 2022, by which it may be cited.

Schedule

Scottish Food Commission: Constitution and Operation

62.The schedule makes further provision about the Scottish Food Commission.

63.Paragraph 1 states that the Scottish Food Commission is a body corporate. This means that it has a legal personality separate from that of the people who comprise it.

64.Paragraph 2 states that the Commission is not to be regarded as a servant or agent of the Crown, or having any status, immunity or privilege of the Crown. Neither its members nor its staff are to be regarded as civil servants.

65.Paragraph 3 (Part 2 of the schedule) sets out the Commission’s general powers which are broad in nature.

66.Paragraphs 4 to 8 of the schedule provide that the Commission may establish committees and sub-committees, regulate its own procedure and that of its committees and sub-committees and may authorise any of its members, committees, sub-committees or staff to carry out some of its functions (and to the extent) the Commission decides. Paragraph 8 provides that the validity of anything done by the Committee or a person authorised to do something on behalf of the Commission is not affected by a vacancy in its membership, a defect in the appointment of a member or the disqualification of a member after they have been appointed.

67.Paragraphs 9 to 11 make provision about how the Commission is to be held accountable. The Commission is required by paragraph 9 to produce a corporate plan, which is to be submitted to the Scottish Ministers for approval, modification as they consider appropriate or rejection. The Commission must comply with the corporate plan once it has been submitted to and approved by the Scottish Ministers. The plan can be revised either on the voluntary decision of the Commission itself or when required to do so by the Scottish Ministers.

68.The Commission must prepare and keep proper accounts and accounting records and produce a financial statement of accounts each year, a copy of which is to be sent to the Auditor General for Scotland for auditing (paragraph 10).

69.The Commission must also produce an annual report as soon as reasonably practicable after each financial year. This report is to be made publicly available and copies are to be sent to the Scottish Ministers and laid before the Scottish Parliament, respectively.

70.Paragraphs 12 to 17 make provision about the membership of the Commission including how members are appointed, the duration of their tenure in office, their remuneration, allowances and pensions, the circumstances in which a member’s tenure may be terminated early and grounds for disqualification as members.

71.The Commission is to consist of a chairing member and at least 2 but no more than 4 other members (paragraph 12(1)). Paragraph 12(2) confers a powers on the Scottish Ministers to alter the maximum number of members by regulations.

72.Paragraphs 18 to 20 make provision for the Commission to be able to appoint staff, on terms and conditions approved by the Scottish Ministers.

73.With the approval of the Scottish Ministers, the Commission may pay or make arrangements to pay pensions, allowances and gratuities to or in respect of anyone who is or has been a member of its staff.

Application of public bodies legislation

Ethical Standards in Public Life etc. (Scotland) Act 2000

74.Paragraph 21(1) of the schedule adds the Scottish Food Commission to the list of devolved public bodies in schedule 3 of the Ethical Standards in Public Life etc. (Scotland) Act 2000 (“the Ethical Standards Act”). This means that the Scottish Food Commission will need to:

  • have a code of conduct for its members, whose compliance with the code will be policed by the Standards Commission for Scotland (see sections 3 and 9 of the Ethical Standards Act), and

  • maintain a public register of its members’ interests (see section 7 of the Ethical Standards Act).

Freedom of Information (Scotland) Act 2002

75.Paragraph 21(2) of the schedule adds the Scottish Food Commission to the list of Scottish public authorities in schedule 1 of the Freedom of Information (Scotland) Act 2002 (“FOISA”). This means that the Commission will be subject to the requirements that Act places on public bodies, including requirements to provide certain information to the public on request and to have in place a scheme for the pro-active publication of information it holds.

76.Being a public authority within the meaning of FOISA also makes the Commission a “Scottish public authority” to which the Environmental Information (Scotland) Regulations 2004 apply.

77.In addition, as a public authority within the meaning of FOISA, the Commission is a “public authority” or “public body” for the purposes of the General Data Protection Regulation by virtue of section 7 of the Data Protection Act 2018 (subject to the Secretary of State not making regulations under that section to remove its “public authority” status). The General Data Protection Regulation (also commonly referred to by the acronym “GDPR”) is Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data. There are particular rules applied to bodies classified as “public authorities” (over and above those applied to all data processors) in the GDPR and the Data Protection Act 2018. An analysis of those rules is beyond the scope of these Notes.

78.Further, being a public authority within the meaning of FOISA makes the Commission subject to the duties imposed by section 44 of the Climate Change (Scotland) Act 2009 and, as such, liable to monitoring and investigation under Part 4 of that Act.

Public Appointments and Public Bodies etc. (Scotland) Act 2003

79.Paragraph 21(3) of the schedule adds the Commission to the list of specified authorities in schedule 2 of the Public Appointments and Public Bodies etc. (Scotland) Act 2003 (the “2003 Act”). This means that the Scottish Ministers, when appointing the Commission’s members, will need (under section 2 of the 2003 Act) to comply with the code of practice on public appointments produced by the Commissioner for Ethical Standards in Public Life in Scotland.

Public Services Reform (Scotland) Act 2010

80.Paragraph 21(4) of the schedule adds the Commission to the list of bodies in schedule 8 of the Public Services Reform (Scotland) Act 2010 (“the 2010 Act”). This means that the Commission will be subject to the duties to report after each financial year on:

  • expenditure (see section 31 of the 2010 Act), and

  • the steps it has taken to promote and increase sustainable growth and improve its efficiency, effectiveness and economy (see section 32 of the 2010 Act).

Public Records (Scotland) Act 2011

81.Paragraph 21(5) of the schedule adds the Commission to the schedule of the Public Records (Scotland) Act 2011 and thereby makes it subject to the duties created by that Act to produce, implement and keep under review a records management plan.

Procurement Reform (Scotland) Act 2014

82.Paragraph 21(6) of the schedule makes the Commission subject to the procurement rules applicable to contracting authorities in the Procurement Reform (Scotland) Act 2014.

1

“food”…means any substance or product, whether processed or partially processed or unprocessed, intended to be, or reasonably expected to be ingested by humans.

Food” includes drink, chewing gum and any substance, including water, intentionally incorporated into the food during its manufacture, preparation or treatment. It includes water after the point of compliance as defined in Article 6 of Directive 98/83/EC and without prejudice to the requirements of Directives 80/778/EEC and 98/83/EC.

Food” shall not include:

(a)

(a) feed;

(b)

(b) live animals unless they are prepare for placing on the market for human consumption;

(c)

(c) plants prior to harvesting;

(d)

(d) medicinal products within the meaning of Council Directives 65/65/EEC and 92/73/EEC;

(e)

(e) cosmetics within the meaning of Council Directive 76/768/EEC;

(f)

(f) tobacco and tobacco products within the meaning of Council Directive 89/622/EEC);

(g)

(g) narcotic or psychotropic substances within the meaning of the United Nations Single Convention on Narcotic Drugs, 1961, and the United Nations Convention on Psychotropic Substances, 1971;

(h)

(h) residues and contaminants.

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Explanatory Notes

Text created by the Scottish Government to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Acts of the Scottish Parliament except those which result from Budget Bills.

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