Good Food Nation - specified functions: overview

Section 6 of the Good Food Nation (Scotland) Act 2022 Regulations on specified functions and functions falling within a specified description: An Overview

1. Legislative Context

Section 6 of the Good Food Nation (Scotland) Act 2022 (“the Act”) places a legal duty on the Scottish Ministers to have regard to the national Good Food Nation Plan (“the Plan”) when exercising a specified function or a function falling within a specified description. A function can be either a power or a duty.

"Specified” is defined in the Act as “specified in regulations made by the Scottish Ministers”. Therefore, the relevant functions, or description within which they fall, will be set out in regulations.

The first regulations made under section 6 are subject to the affirmative procedure. Subsequent regulations are subject to the negative procedure.

A similar set of regulations will be drafted for relevant authorities (set out in section 15 of the Act) at a later stage. This will require a dedicated consultation exercise involving relevant authorities. Regulations made under section 15 are subject to the negative procedure.

2. Why Specify Functions and Descriptions?

Specifying functions and descriptions provides several benefits over a more general have regard duty:

• It makes it clear when Scottish Ministers must have regard to the Plan.
• It avoids placing unnecessary requirements on policy areas that do not deal with food related policy.
• It makes clear links between the Good Food Nation work and specific policy areas, ensuring that the most relevant parts of government activity consider the wider food policy context as described in the Plan.

This is a new approach and therefore we do not have examples of previous regulations.

3. What has informed the drafting of the Regulations?

We consulted on an initial list of topic areas in spring 2024 as part of the wider consultation on the draft Plan. Many suggestions were received and an exercise to assess their suitability was undertaken. In addition to the external consultation, extensive engagement with policy colleagues in the Scottish Government has taken place. Refinement of the content of the regulations will continue over the summer. It is our intention that policy areas mentioned in the Plan will be captured by a specified function or description, where appropriate.

4. Content of the Regulations

The regulations will most likely be structured into two schedules.

a. Schedule 1 will cover specified functions. These are references to specific legislative provisions which contain functions of Scottish Ministers.

b. Schedule 2 will cover specified descriptions. These describe a general function of government (e.g. development of policy) and link it to a specific topic area. A function which falls within the description will then be caught by the ‘have regard’ duty. The descriptions are more general than the specified functions and enable non-statutory functions to be caught by the duty.

5. Example Provisions

To aid with the understanding of what the regulations on specified functions and descriptions might look like and contain, we have provided examples below. The final regulations will contain a larger collection of both specified functions and descriptions. These examples might also change as the drafting further develops.

An example of a specified function is:

• Making regulations under section 56A of the Education (Scotland) Act 1980 (nutritional requirements for food and drink in public schools).

This legislative provision confers on Scottish Ministers a regulation making power to specify nutritional requirements for food and drink in public schools. By specifying this function in the regulations, Scottish Ministers must have regard to the Good Food Nation Plan the next time this regulation making power is exercised.

An example of a specified description is:

• Making policies (including proposals for legislation), strategies, plans about any of the following matters:

a) Nutrition, including nutritional recommendations, information or requirements

b) Breastfeeding

This requires the Scottish Ministers to have regard to the Plan whenever they make policies, strategies or plans in relation to these subject matters. As these examples illustrate, the description captures a broader range of functions than the more targeted specified function. The matters listed above are examples only, the final list will be more comprehensive.

6. How will specified functions work in practice?

The duty to have regard to the Plan will apply whenever the Scottish Ministers exercise a specified function, or function which falls within a specified description, once the regulation is in force.

The duty to have regard to the Plan is only engaged when the relevant function is exercised; this means it will arise at different times, depending on when each function is next exercised. Moreover, some functions will be exercised more regularly than others, meaning that the duty to have regard to the Plan will be engaged more frequently in those instances. Therefore, the effects of the duty will not be immediate.

'Have regard' means that the relevant document is taken into account when exercising a function and, if the Scottish Ministers decide to depart from it, they must have and give clear reasons for doing so. For example when developing new policy on community growing, Scottish Minister must be able to explain how the Plan was taken into account in the development of this policy.