Official Report of the Grand Committee on the Food Standards Bill

HL Deb 13 October 1999 vol 605 cc65-144GC

Wednesday, 13th October 1999.

The Committee met at half-past three of the clock.

[The Principal Deputy Chairman of Committees (Lord Tordoff) in the Chair.]

The Principal Deputy Chairman of Committees (Lord Tordoff)

I call Amendment No. 28.

Baroness Byford moved Amendment No. 28: After Clause 8 insert the following new Clause

FUNCTIONS OF THE AGENCY: LABELLING, MONITORING AND NUTRITION

(" . The Agency has the function of—

1. (a) providing guidance on the content of labels or descriptions (or both) to be supplied with food;
2. (b) monitoring, at the point of sale, that all classes of food have been produced according to the standards applying to each class;
3. (c) continuing to fund research into nutrition.")

The noble Baroness said: I apologise to the Committee in advance, and I have warned the Minister, that of all the clauses to which I shall speak, this is one to which I shall speak at slightly greater length. We had a full debate yesterday on labelling and I again want to highlight some of the issues that were covered then.

Labelling is a critical issue. It is crucial to those unfortunate people who suffer acute food allergy. It is an important issue for all those who have to watch what they eat for other reasons. It is an important issue for anyone who has children or other family members that they should eat a balanced diet free of doubt from GMOs and other chemicals. It is a developing issue for farmers and for other food producers who know that their products are grown and processed under more stringent rules and subject to more rigorous inspection.

From among those people, and many others, who are simply fed up with BSE and E.coli, salmonella and the rest, there is strong support for the food standards agency. At the moment few of them realise that the Bill does not specify labelling as an agency function. The word itself does not appear on the face of the Bill. If we in this House do not use our influence to remedy this situation, I believe that millions will be disappointed and disgusted and will lose what little remaining faith they have in our political process.

In common with many others, at tense or potentially embarrassing moments I try to lighten my load by imagining the headlines in the Sun How about "Lords Eschew Labels" or "Lords like liquids labelled", with a following article explaining that so long as our wines are carefully labelled and identified clearly, we do not really care about what anyone else eats. I know that is not true, and I would hate us to be thought of in that way.

Seriously, if we place on the face of the Bill a requirement that the agency should provide guidance on labelled contents, we place on it a duty for which it can be accountable. If we do not, and it does not, we can only grumble that it is not doing the job in the way we would have liked it done.

Similarly, we should place on the face of the Bill a stipulation that the agency should devise a point of sale monitoring scheme which enforces our standards at the moment where the consumer comes face to face with the food product. European law allows us to carry out random sampling of food. It does not allow us to carry out full quality checks at the point of entry into this country. We are aware that many of our production standards are tighter and applied more stringently than their counterparts on the Continent.

If the difference in standards has no impact on the quality of the end product, then perhaps we should consider relaxing our standards and lifting some of the burden from our farmers and food processors. However, if our higher standards do mean better quality and are something in which we believe, we should be given both the evidence and the means for people to choose the best; namely labelling.

If labels and labelling are not mentioned on the face of the Bill, neither is nutrition. Again, we had a good debate about that yesterday. Mr Rooker, speaking in another place, about the £25 million research expenditure which is to be transferred from MAFF to the agency, assured us that about 30 per cent. of that sum is devoted to research into food and nutrition. Our concern is to ensure that the agency cannot drop research into nutrition in favour of that into food.

People today are increasingly both more adventurous in what they eat and more health conscious. They want definite answers to the red meat question, the red wine question, and the "Are multivitamins good/bad for you?" debate. The agency must have a leading part to play in providing those answers and must be held to account both for its programme of research and its results.

Labelling and nutrition are vital aspects of modern food technology. The food standards agency will have an impact not just within the UK but across the Continent and, if it is good enough—I am sure that all of us in this room hope that it will be—world-wide. This week, the world's population reached six billion. It is expected by the middle of the next century to stabilise at 10 billion. Nutrition and high quality food are crucial to that stabilisation. So let us play our part by giving the UK food standards agency a clear brief to which we may hold it accountable.

I turn now to two other matters. The Minister was kind enough to write to me on 8th October following the Second Reading debate and raised the whole issue of Article 30 of the treaty. I refer to the second page of her letter where she said: Where there are concerns that goods produced elsewhere may be made to different standards to those produced locally, the Court has indicated that in general, consumer protection can be assured by adequate labelling requirements, rather than prohibiting the import of the products which do not comply with local standards". She went on to say: Except in emergencies, it cannot unilaterally impose any limitations or restrictions on imports, nor can it generally inspect production premises in other member states or third countries". The letter concluded: And of course, the Agency will be able to work with our partners within Europe to ensure that the Commission is carrying out its own responsibilities effectively".

These are very pressing issues. Like other Members of the Committee, I have only recently received a press release from the Food Advisory Committee, which has been asked to look at certain topics with regard to labelling. Of these, the five I wish to mention are: what information should be legally required; how rules on labelling and advertising could help to promote healthy eating; what controls should apply to claims made on labels and in advertising; alternatives to product labelling to get information across; and labelling of GM-derived foods.

In April last year I raised the question, which the noble Countess, Lady Mar, will remember, relating to inspectors from Portugal with regard to the meat hygiene service. The noble Baroness, Lady Hayman, kindly wrote to me following my inquiry. This was taken up and I wish to put it on the record, because it accentuates the problems we are facing and why I am so heavily pushing and encouraging the Government to put labelling on the face of the Bill. I asked how many inspectors there were within the meat hygiene service in Portugal. My understanding was that there were only five. Following from that, it was reported to the Commission. The end of the letter from the Minister says: As you will see from the Commission's preliminary summary report, the FVO mission found serious deficiencies in the official controls in place and in the hygienic operation of the slaughterhouses and cutting plants visited, and accordingly recommended that immediate remedial action should be taken by the Portuguese veterinary authorities".

Certain questions arise from this. Was meat withdrawn as a result of it? Has any come into our country and, if so, would it have been labelled? And how could it have been labelled?

I apologise for spending so much time on this issue, but it is absolutely crucial. Three pig farmers came to talk to me this afternoon about their plight and it is highlighted by the fact that the beef ban has still not been properly lifted in France and Germany. The least we could do for our producers and our consumers is to adopt some system of labelling so that, if we cannot enforce certain things because of EU restrictions, of which I am acutely aware, we can at least give consumers a chance to look at a label and know clearly what it says.

Yesterday I said very clearly that if a product has a British sign on it—whatever that is—that should mean that it has been grown, produced and finished here, and not produced elsewhere but processed here and therefore has qualified for a label. I apologise to the Committee for spending so much time on this issue but it is hugely important. I hope other Members of the Committee will feel able to support my two amendments. I beg to move.

Viscount Addison

I support my noble friend. I know that we had a good debate yesterday in relation to labelling and one of the things that came out of it, having thought about it last night, was an extra adjective. Not only does labelling give one protection and promotion, but it also gives one education.

It is important that we are able to educate people to understand and read a label used across the whole spectrum. We talked about the American methods that are being used now, which are giving everybody the chance to understand labelling more clearly. It is that sort of education which will come out of clear labelling. I should like to see that education being spread even back to the schools. I know I am moving slightly away from what we are trying to do here, but if a standard labelling system is set up, it will enable schools, and even adult education centres to a certain extent, to come to terms with the new systems that we can apply.

We can apply the new labelling system well in this country; there is no reason why we should not. So I want to underline the need to ensure that the Government take this opportunity to do something positive about it.

The Countess of Mar

I agree and support the noble Baroness, Lady Byford. Is the Minister aware that we are importing Belgian hard-boiled eggs which we put into mass produced sandwiches? But those hard-boiled eggs are chemically treated and sometimes the chemical treatment goes wrong and the hard-boiled eggs have to be discarded. In view of the state of our poultry industry and the stringent efforts we have been taking to get rid of salmonella, is that fair trade?

Another point I should like to make is that at the height of the Belgian poultry and pork problems with dioxins, it was discovered that packaged chickens which had in fact been imported from Thailand and packaged in Italy—not to the hygiene standards required by the European Union—were being sold to British consumers in Smithfield Market.

I am conscious of the need for safe food but I would be much happier if I knew that we were getting quality food. Nutritional quality as well as safety is important. Those of us in the dairy business have to provide a health mark on all our products before they leave the farm. That health mark is awarded to us by the Environmental Health Authority. People who buy our products with that mark know that we produce raw milk, cheese or whatever it is to the standards required. If that were a universal standard with all food products, it would be extremely helpful.

We had considerable debate yesterday on the placing of nutritional content on labels and the noble Baroness will know my opinion in that regard.

3.45 p.m.

Lord Rotherwick

I support my noble friend Lady Byford. I wish to declare an interest as a farmer and as a food producer.

Labelling has a couple of important aims. The Food Standards Bill will ensure that labelling is legally required and that the requirement is to give full and proper information. It should also require the agency to scrutinise labelling. Labelling plays a leading part in enabling people to make informed decisions. As a food producer who comes under considerable scrutiny as to how I produce my food, I have no problem with that. And as a food producer I wish to produce food to the highest levels. However, in doing so it carries various costs which are not associated with some of the other food producers from, say, other EU countries or third world countries. We are interested that, when our food gets onto the supermarket shelves, the consumer can make an informed decision. For example, where a meat product on the left is more expensive and perhaps on the right is less expensive, one might suggest that the one on the right hand is less expensive perhaps because it has not been produced under the same scrutiny. Maybe it has had hormones injected into it, as American beef has.

There are many things that labelling can tell the purchaser. We discussed the fact that it can tell him the nutritional content of the food and about what risks that food carries. We talked about various sections of our community that may wish to know—because of their religion or whatever—what foods they can or cannot eat. We have already talked about country of origin. I feel very strongly that country of origin should be on our labels. If I take out my mobile phone I know that it is produced in a Scandinavian country; I know that mine has a German battery in it. If I take my shoes off in the evening, I know that they come from Italy. But I may not want Italian shoes—your Lordships see my point.

Viscount Thurso

Perhaps I may suggest that the noble Lord might like to think about buying British in future.

Lord Rotherwick

I did say "in the evening". The ones I have on at the moment have a British stamp. So I am a true European there. The most important thing of all is that a label should say something of the history of the food; how it was produced from the beginning to the end. In the case of my noble friend Lord Mackay of Ardbrecknish, the label might say, if it was a salmon, "Caught by spinner" or "Caught by worm". In the case of my beef—or the beef that I used to rear, which I no longer do—it should say whether it is suckle r beef and whether or not it was grain fed. In the case of pork, for instance, the label might perhaps say that it was produced with a farrowing system from an EU country, or it is a more expensive pork because it was produced in England where we cannot use the farrowing system.

Again I suggest that fruits should say that they have been produced in our country under pesticide laws that forbid certain pesticides being used. For instance, I believe in this country that we are not allowed to put certain desiccants on pears, and yet just across the Channel pears are allowed certain desiccants. That means that ours are all in different growth stages when they go on the shelves, whereas pears from Holland, having had desiccants on them, have been burnt off and therefore they are all uniform. Such a label would inform the purchasers of the type of foods they are buying and they will be able to make an intelligent choice of their foodstuffs.

I also ask rather tentatively what costs the Minister foresees falling on the farming industry if this kind of comprehensive labelling was adopted. At the present time one would be loath to see any more costs being placed on our farming industry.

The Earl of Selborne

I support my noble friend on the amendment. Perhaps I may anticipate something that my noble friend may ask. We have to understand what the restraints on labelling are and what requirements the agency will need to meet if it is to do what it is charged to do in this Bill; that is, to protect against risk.

It may well be that the standards of food safety in this country are higher than those in other member states. We have heard one or two examples of that. As I read the Bill, there is nothing to prevent the agency from determining that, if food is produced to a different specification from around the world, then it should be so labelled. That would be protecting against risk and the agency is perfectly entitled to do that, leaving aside the issue as to whether or not it should be promoting labelling. However, where it is not able to fulfil the function with which we have charged it in this Bill is where the product comes from another member state. We are not allowed to require a country within the European Union to label the food as coming from a member state other than the United Kingdom. As the Minister reminded me yesterday, European funds, which are part of the common agricultural policy funding—our own money, you might say, recycled—cannot be used to promote something which demonstrably is from one member state rather than another. She was right to say that it was not a question of legality, but simply a question of making it impossible for a promotion to stress British qualities which because of national legislation may well be of a higher standard of food safety.

We have here something that is beyond the scope of the Bill. With regard to Community law we have a problem, because in this country standards in certain respects of food safety are quite different from other member states. We are charging the agency with identifying where there might be a perceived risk. It will be recognised, presumably, that there is a risk in producing food to lesser standards, otherwise we in this Parliament would not have required a higher standard, but because of Community law the agency will be unable to fulfil that obligation.

That is a serious issue which has to be addressed. I am not suggesting that the Minister should somehow produce an amendment to this Bill which would resolve the problem because, it cannot be done like that. It has to go right back to fundamental Community law. It demonstrates the idiocy of the situation in which we find ourselves. We rightly having legislated in this country in order to achieve high standards will then have to keep quiet either because we will have promotional funds withdrawn or because we will be acting in a way which is non-communautairewhen others are identifying, say, a Belgian product as inferior and we are not allowed to do so. That is nonsense.

Lord Desai

We spoke yesterday about labelling, so there is not much more to say about that. I detect an undercurrent of protectionism; people are saying, "Let us know that foreign goods are foreign" and therefore they must be inferior by definition. They may be, but we must use some common sense about this; it is not just a question of being law abiding. As far as I remember, we have not had a microbiological crisis from imported food. There is no evidence that E.coli or any other crisis was caused because food was imported from abroad. Perhaps I am wrong.

The Countess of Mar

The noble Lord might not know about it, but only a few months ago there was some cheese in a Tesco shop in the north east of England which was contaminated and the whole thing was kept quiet.

The Earl of Selborne

While we are in the grip of reminiscence, let us not forget the Perrier water incident of a few years ago.

Lord Desai

I was talking about microbiological risks, and the big scandal of E. coli and so forth which occurred. I am not saying that foreign food is not to blame, I am saying that we have to look at microbiological risk first.

What do the labels do? They must be simple; they cannot be complicated. The noble Lord, Lord Rotherwick, wanted them to contain a complete description of the product. The leather on his shoes, for instance, may not have come from Italy. It may have come from India and the sole may have come from somewhere else. When you buy a product, the label indicates its final assembly and it is very difficult to indicate all the various components and all the processes which the goods have been through. Such a requirement placed on agricultural products it will place an immense burden on farmers or whoever will finally have to do the labelling, and it will be too complicated to understand.

We must separate these things. It is very important that the food standards agency has an educational role in clarifying our position compared with other countries, so that if people know foods are from Portugal, France or Belgium they will have some idea of the degree of additional risk they may be incurring by buying that food. You cannot state, "In Portugal this is the process and they only have five veterinary inspectors.". You cannot indicate that on a label, but it is important to give adequate information so that people can make judgments and use common sense. It should not make it too complicated.

However, we must at all costs avoid a protectionist bias whereby the food standards agency is not just protecting the consumer but the producer as well by shutting out imports. That would be very damaging, because at the very least it will lead to retaliation and will not be any good to us. Others will also do the same with British food, so we should keep the position as simple as possible and as legal as possible but think of the consumer far more than the producer.

The Minister of State, Ministry of Agriculture, Fisheries and Food (Baroness Hayman)

We have had an interesting debate and I assure the noble Baroness that she need not apologise for the length of it. It has built on some of the themes that we discussed yesterday with reference to the importance of labelling when we talked about including the matters of nutrition and labelling in various parts of the Bill. My answer on the specifics of the amendment may once again be the boring, ministerial, legislative, robot answer that the noble Lord, Lord Clement-Jones, would expect. However, that in no way implies that we undervalue the importance of labelling. The range of issues that labelling can cover was rightly pointed out. The noble Lord said that because labelling is important in different ways, it can have different functions.

We have come back again and again in Committee discussions to the danger posed to certain individuals from eating foods to which they are allergic. Therefore labelling can provide immediate and important health protection information for the individual. It can equally be vital that individuals or parents who want to ensure a nutritious and balanced diet for themselves or their children know the content of particular foods. Labelling can play an educative role as well in enabling people to understand that a particular food that they may not think contains salt, sugar or high levels of fat in fact does so.

There is a range of issues here that it is important for us to cover. To address the other side of the matter, mention has been made of the importance of producers' interests in being able to communicate effectively with consumers on issues such as welfare standards or country of origin. Some people wish to base their purchasing on their own preferences as to country of origin. That is a convoluted way of making the point of buying British mentioned by the noble Lord, Lord Rotherwick, or not buying a product from a particular country or—as we discussed yesterday— the ethical or religious reasons that people may have for choosing to avoid or specifically to support particular areas.

So there is no difference between us as to the importance of labelling. The noble Baroness, Lady Byford, rightly pointed out that the Food Advisory Committee is opening up this discussion, giving the public the chance to put their views on food labeling directly to members of the committee. The responsibilities in this area will be taken over by the food standards agency. We do, of course, have to recognise that we work in the European context here and it is important that we make progress—as the Government have been trying to do—in terms of labelling across the Community and in different countries. We are a trading nation and food is imported. It is important that we understand what is coming about and that we are working on a level playing field.

My noble friend Lord Desai was right to caution against trying to put everything on to a label. We have to put our corporate minds to the point of what the relevant information is on a particular product. I have been involved in the issue of foods with GM ingredients and then the issues that have now been raised about GM ingredients in animal foods, in the issue of GM processes that are involved in producing elements that go into a food and we have to make some decisions about what a phrase such as "GM free" means in technical terms and make sure that those phrases are used in the same way by the same people.

That takes me to the issue of misleading labelling. Concern has been expressed both today and yesterday by Members of the Committee about the potential for misleading information in a great variety of areas. Nutritional claims about food can be misleading and can give people the impression that they are buying something that is healthy in very broad terms, whereas in fact a rigorous scanning of contents might suggest that the balance of ingredients was not such that one would want to replicate the whole time.

Today we have talked about the difficulty of misleading labelling regarding country of origin. We are currently considering whether the MAFF guidance notes, for both the industry and the enforcement authorities—and we have to recognise that the local authorities are the enforcement authorities here—which have a significant effect on practice, should be revised to deal with this point. We do not believe that the current situation is satisfactory and where there is clearly some risk of consumers being misled—for example, where meat is processed in the United Kingdom but produced elsewhere—we are looking extremely carefully at what can be done. Clearly, we do not want to break the law, but I believe that there are some flexibilities to tighten up, if that is not oxymoronic in this context. We are studying carefully what we can do to stop people being misled in this situation.

In the obverse case, there are higher standards in some cases, but by no means in all. We have introduced standards of animal welfare, for example, which we believe are right and also can offer positive marketing advantage to our producers. It is perfectly possible for producers to label their products to show how they have been produced. Indeed, many producers are developing just such quality assurance schemes. That is an important area although, as the noble Earl, Lord Selborne, pointed out, it is a voluntary act and we can compel other people to label in a particular way

. Turning to research, as the noble Baroness, Lady Byford, suggested, £5 million per year in the nutritional research budget currently held by MAFF will be transferred over to the agency, which we clearly expect to continue carrying out research in this area. That was made absolutely clear in the White Paper, and there is no intention whatever to go back on that.

It would not be right, however, to predetermine in legislation the priorities in the agency's research budget at any one time and for one particular. It needs some flexibility to respond to changing circumstances and new problems. The programme at the moment is very large. There are ongoing commitments and those will be honoured, but knowing how MAFF's research budget has had to take account of BSE and fund more research into TSEs than we would have predicted 10 or 15 years ago, my experience shows that we have to be prepared to be flexible in such research budgets.

Finally, turning to the amendment, I believe that there is no need to include those specific requirements in the Bill. They are already adequately covered by existing provisions. All the functions described in the amendment form a valid part of the agency's work and we expect the agency to be active in this area. The agency has a general duty under Clause 7 to provide advice and information to the public, as weir as the general objective of protecting the interests of consumers in relation to food contained in Clause 1(2).

These aims will be met in part by ensuring that the public have adequate information to make informed choices about food by offering advice on using and interpreting the information on labelling. The noble Baroness illustrated the need to have that general duty to provide advice and information to the public and not to narrow it down simply to labelling, when she said that the public want the answers to questions such as, "Is red meat good for you?" That is not a question that can be answered only on the label of a piece of meat bought in the supermarket—it is a question which perhaps cannot even be answered! We will not go into the debate about whether an individual food is good for you, but this illustrates that we need a breadth of information coming from the agency. We absolutely intend that it should provide that and I hope that Members of the Committee will be reassured that the areas of concern which the noble Baroness has rightly raised will be covered as mainstream activity by the terms of the Bill.

Baroness Byford

I thank the Minister for that very full reply. I shall pause now.

[The Sitting was suspended for a Division in the House from 4.7 to 4.17 p.m.]

Baroness Byford

I thank the noble Minister for her response and for the trouble she has taken, and I thank other noble Lords who spoke in the debate.

I should like to raise a couple of points, but I promise I shall not take long. Let me take to task the noble Lord, Lord Desai. My suggestion of labelling was certainly not to be protectionist, because I am well aware that this would be viewed as such by some. The truth of the matter is that, taking the situation with pigs and pork, pig farmers are having to produce to different standards and they are struggling to make ends meet. Production here has decreased, but 18 per cent more is coming in from abroad. I am not being protectionist in any way; I am just trying to make Members of the Committee aware that there are practical implications to certain aspects. Labelling would help. It would not stop produce coming in from abroad and it is right that goods should come in from abroad—but the consumers, the buyers, ought to be able to make that choice. At the moment, they cannot do that.

I propose to come back at Report stage with something much simpler. Although I was very grateful for the contribution of my noble friend Lord Rotherwick, I am not looking to tie things down so tightly. I hope to achieve something that allows us to have some kind of British kitemark on our products, which will ultimately help the purchasers. I am not seeking to be protectionist in any way, because I do not believe in that.

I have two further points. One is in regard to GM labelling, about which the Minister spoke. The issue that worries me is that we have a requirement for restaurants and people who sell food to display a notice stating whether the food is GM-free or not. All that is happening is that people are putting up a notice stating "This may contain", which is not hugely helpful. A negative denial does not solve a problem. I was therefore trying to be flexible, while giving recognition to standards, in particular the risk issue raised by my noble friend Lord Selborne. It is important that we should take that point on board. I accept the Minister's chide at my red wine remark, which was a little wide of the mark, and I am well aware that it would be a health rather than a labelling implication.

I thank all those who have contributed to the debate. This is an issue which the general public will be glad we have aired. I hope that, when we speak to this again, we will come to a slightly closer understanding. I beg to leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 [General functions in relation to animal feedingstuffs]:

Lord Clement-Jones moved Amendment No. 29:

Page 4, line 7, after (feedingstuffs") insert ("and pesticides and veterinary medicines")

The noble Lord said: This amendment seeks to extend the remit of the agency in Clause 9 beyond animal feedingstuffs to pesticides and veterinary medicines. An example of animal feedingstuffs included within the clause would be something like growth promoters which themselves contain antibiotics. Clearly that is something well within the remit of the agency. However, it is a matter of considerable concern that they are not only subject to UK scrutiny but also to that of the EU. A number of decisions have been taken by EU institutions with regard to growth promoters.

Veterinary medicines can also comprise antibiotics. They similarly have a knock-on effect on human health in terms of the resistant organisms which they may create. Therefore public concern should be just as great in regard to them. The distinction between an animal feedingstuff growth promoter and a veterinary medicine is a little difficult to appreciate. The use of vancomycin in a growth promoter or as a veterinary medicine should also be of concern to the public as the knock-on effects would have a similar impact on the public. Therefore the distinction between an animal feedingstuff and a veterinary medicine seems to be rather academic in those circumstances.

Turning to pesticides, it seems rather odd that they are not included within the ambit of this clause. In moving her previous amendment, the noble Baroness, Lady Byford, referred to Sun headlines. I am not such a populist, so I would simply refer to the Independent and the Guardian headlines. The Guardian headline states, Researchers claim pesticide residues pose no healthrisks".

The Independent headline states: Pesticide residues on fruit 'no risk to public".

These are very recent headlines of 17th September in both those newspapers.

I give the Committee a flavour of the Independent article which states: Food campaigners called for new safety checks last night after fruit and vegetables sold in British supermarkets were found to contain pesticide levels above recommended limits".

The first paragraph of the Guardian article states: Government scientists moved yesterday to calm consumer fears about the level of pesticide residues found in food sold at supermarkets as campaigners called for more stringent safety checks".

It seems to us on these Benches that there is every logical reason why pesticides should be included within the ambit of the agency's powers. One has only to consider what body should be calming consumer fears and looking into the reality of whether those pesticides are indeed harmful to public health to realise that the agency should be the body doing that. Why leave it to a pesticide advisory group when animal feedingstuffs are already included in Clause 9? Why draw this line? I very much look forward to the Minister's reply.

I appreciate that the amendment from the Conservative Benches constitutes perhaps a more cautious approach to this matter although it has a similar intent. I suggest that there are very good reasons why the remit of the agency should be extended with immediate effect rather than waiting for a review as the logic of the division between those three areas eludes us. I beg to move.

The Countess of Mar

Perhaps I might say "hooray" as this is my subject. Having spent eight years on this very subject I am delighted to see these few amendments put down. I cannot see any reason whatsoever why either of these categories should be omitted from the Bill. The noble Lord, Lord Clement-Jones, made a valid point about the Pesticide Advisory Committee and Safety Directorate being the bodies which say that these things are safe. They are, after all, the licensing authorities—or at least they advise the Minister to license the products. They are not going to say that they are not safe if they have already licensed them. We have had long debates on this matter in the House over many years. I have talked about intellectual corruption. It is too much to expect the same group of people who are responsible for licensing products to say whether or not they are safe in food.

I am delighted to see this amendment. I hope the Minister will see the reality behind it. The public are very unhappy about residues in foods, whether they be veterinary medicines or pesticides, and this would help to put the position absolutely clearly. We are, after all, setting up the food standards agency in order to get away from that and away from the producers. This is one place that it really should be done.

[The Sitting was suspended for a Division in the House from 4.26 to 4.36 p.m.]

Baroness Byford

I should like to speak to my Amendment No. 89, which is linked with these amendments. The Government do not intend these areas of mass responsibility to be transferred to the agency, although they have considered the impact on food safety. This review would enable them to reconsider once the agency had been operating for five years Many on-farm activities have a direct impact on food safety, such as E-coli, BSE, the contents of animal feedstuffs and the use of pesticides and antibiotics. There are provisions in the Bill which will enable the agency to have powers on-farm. Those will include its objectives of covering food production and supply and its information-gathering surveillance powers.

MAFF will continue to have responsibility for veterinary medicines and pesticides. The principle enshrined in setting up the agency—separating regulation from the department promoting the industry—will not apply. The product approval for the surveillance of pesticides and veterinary medicines will be inside the government department that promotes the industry. The agency will have greater responsibility for animal feedstuffs than it will for pesticides and veterinary medicines. In explaining the provisions in Clause 9 on animal feedstuffs, the Explanatory Notes to the Bill state: The main reason for giving the Agency responsibility in this area is because of the possible implications of animal feedingstuffs for the safety of human consumers eating meat and animal products". The same argument applies to both veterinary medicines and pesticides.

Baroness Hayman

I believe that some of the discussion we have had on this group of amendments is based on a misreading of Clause 9 and the reasons for including animal feedstuffs specifically. I take the point that has been made and it is quite clear-cut that those pesticides and veterinary medicines can have important implications for the safety of food. It is important that the agency takes those firmly into consideration in doing its work. I suggest to the noble | Countess, Lady Mar, that perhaps there is an advantage in having the licensing body separate from that which assesses the food safety implications.

The Countess of Mar

That is precisely what I was saying. At the moment, we have the Veterinary Medicines Directorate looking at safety of veterinary medicines in animals and meat; we have the Pesticides Safety Directorate looking at grain and fruit and so forth. They all maintain that they are perfectly safe and in the case of veterinary medicines and my own particular issue with sheep dip and humans, it would be so much better. The public are concerned about the microbiological safety of food but they are also extremely concerned about residues in food. We need to make this point.

Baroness Hayman

It is a point to which I subscribe. I was trying to suggest to the noble Countess that at the moment MAFF has responsibility both for the executive agencies and for food safety. So, I have responsibility for pesticide residues, and we talked about some of the issues that can arise from them. The noble Lord, Lord Clement-Jones, brought forward the issue of imported pears. All these are mainstream food safety issues.

I should like to assure members of the Committee that the possible implications of pesticides and veterinary medicines to the safety of human consumers of food are already fully taken into account by the agency's main aim set out in Clause 1 and the general functions contained in Clauses 6, 7 and 8. These apply to all aspects of food safety, as we discussed before, from production on the farm to consumption in the home, and so fully address the agency's responsibilities—and it will have responsibilities—on pesticides and veterinary medicines as they may potentially affect human health.

There are also specific provisions elsewhere in the Bill—in Clause 29 and Schedule 3—to ensure that the agency will be fully consulted by the Pesticides Safety Directorate and the Veterinary Medicines Directorate on matters of policy. Provision is also made for the agency to nominate a member to serve on the statutory advisory committees, the advisory committee on pesticides and the veterinary products committee.

The reason I believe that the concern has arisen is that Clause 9, to which all the amendments except Amendment No. 89 refer, is included and spells out the issue of animal feedstock. Perhaps I may explain to the noble Lord, Lord Clement-Jones, who raised this point in particular, that the clause is not included to bring in the issues relating to animal feedstuffs directly as they apply to food safety or the interests of consumers concerning food. Those will be covered in the same way as pesticides and veterinary medicines by the main aim set out in Clause 1. The reason we need the reference to animal feedstuffs here is to provide a legal base for the agency to deal with matters relating to animal feedstuffs which are not directly about food safety or the interests of consumers concerning food such as animal health or operator safety.

In relation to pesticides and veterinary medicines, however, these matters will continue to be dealt with by the Pesticides Safety Directorate and the Veterinary Medicines Directorate, which are both executive agencies of MAFF. The Government considered very carefully whether they should include the PSD and the VMD within the agency's remit and took careful account of comments made in the White Paper. We concluded that it would not be the right solution to transfer PSD and VMD to the agency but that we should ensure that in various ways the agency could make an input on food safety matters.

There are many other strands of work concerning pesticides and veterinary medicines other than food safety such as user safety, of which the noble Countess is well aware, and uses for non-food-producing animals. That work will continue to be carried out by the Pesticides Safety Directorate and the Veterinary Medicines Directorate. Including those functions within the agency's remit, either now or in the future, could compromise the agency's very sharp focus on food issues. We are all agreed that we want the agency to have that sharp focus, and it could risk giving the agency some physical conflicts of interest of just the kind that the noble Countess suggested.

The Countess of Mar

Perhaps I may say that when I saw the first proposals I was absolutely horrified that they were going to encompass the VMD and the PSD. I am delighted that the situation is at it is now.

Baroness Hayman

I am grateful to the noble Countess and I hope that she is reassured that that separation does not mean that the food standards agency will not consider the issues of veterinary medicines and pesticides as they affect the safety of food. That is covered in the general and the specific areas of the Bill in Clauses 1 and 29 and Schedule 3.

In addition, the agency will be fully involved in the planning and review of residue surveillance programmes. If it felt dissatisfied with the level of surveillance being carried out, it could undertake its own surveillance or advise Ministers of the need for action under the Food Safety Act. Amendment No. 89 recognises that views can change. As I said frankly to the Committee, this was a judgment issue which was debated during the formulation of the Bill. At some later stage it is possible that the arguments might stack up differently.

The idea of a review is therefore in principle very reasonable, but I do not believe that it is necessary to write it into the Bill. The agency's activities will be kept fully under review by health Ministers. The pesticides and veterinary medicines directorates, as executive agencies of MAFF, are subject to regular quinquennial review, which takes a fundamental root and branch look at whether the structure of the agency is right and whether the positioning of the responsibilities in that particular machinery of government are right. The questions considered in those reviews could include whether to transfer any functions to the FSA.

The agency's interest in pesticides and veterinary medicines is, we believe, fully taken into account. It will have a full and effective role on food safety aspects. The other interests of consumers are pesticides and veterinary medicines. The structure that we are proposing means that there is no risk of its being over-shadowed by other considerations which currently are within the remit of those organisations. I hope that that explanation will provide some reassurance to the Committee.

4.45 p.m.

The Earl of Radnor

Perhaps I may ask a question. I wonder how much of this lies within our control or within European control? My memory serves me right, I hope, that Professor Laming of Nottingham University headed an international galaxy of veterinarians and decided that all except two of these growth-promoting hormones were perfectly safe, but before the Commission heard his report they banned it and created a mini trade war with the USA. Do we have control over pesticides ourselves or are we talking about people in Brussels?

Baroness Hayman

The noble Earl is correct; these are issues for Europe in so far as growth promoters are concerned. It is very important in the instance to which he refers that we ensure that the scientific advice available in this country is taken into the European context so that it can influence decisions taken at European level when competency is at European level. It is important that this area is covered and that we ensure that scientific advice feeds in to decisions taken at Community level and, as the noble Earl rightly says, that it has an effect on WTO negotiations and on our trade relationships with the United States.

As regards similar issues, I expect the agency to take a very close interest in matters related to antibiotic resistance. That is a matter of concern in your Lordships' House. That was the subject of a recent report from the Advisory Committee on Microbiological Safety of Food.

Viscount Thurso

Before my noble friend responds, perhaps I may ask a simple question of the Minister. There has been a considerable growth in drug resistant bacteria in hospitals and it is thought that the use of antibiotics in animal feedstuff as a routine might have an effect. What will be the agency's role in looking into this? Will it be allowed to look into it and, if so, is it compelled to look into it? In other words, has it a proactive or a reactive role in looking into that specific question?

Baroness Hayman

I must always beware of the noble Viscount when he asks me simple questions. Rather than risk giving him an answer which I think is right, if he will forgive me, I shall write to him on those specific points.

Baroness Byford

I thank the Minister for having responded to Amendment No. 89. As she quite rightly says, my concern was that a review should be considered. I wanted to put it into this clause because it is an important clause. The Minister will not be surprised if I bring forward another amendment later which asks the agency to review itself and its objectives on an annual basis. Under those circumstances, I am grateful for her comments.

Lord Clement-Jones

I thank the Minister for her carefully considered and constructive reply on the subject. I listened intently to what she had to say, particularly about the executive agencies. I do not disagree at all with the desire to keep the balance between the food safety responsibilities of the agency separate from the executive agencies within MAFF.

I was rather baffled, however, by the question of the legal base argument on Clause 9. It seems to me that what is sauce for the goose is sauce for the gander in this case. If we need a legal base in respect of animal health relating to animal feedstuffs, why do we not need a legal base in respect of veterinary medicines?

Baroness Hayman

Perhaps I may assist the noble Lord; I did not express myself clearly. We do not need a legal base in Clause 9 to take into account work on the effect of animal feedstuffs on human health any more than we need a separate legal base for the agency to take account of pesticides or of veterinary medicine in that area. Clause 9 allows the agency to be the overall agency for other areas with regard to animal feedstuffs because of the balance being smaller there, and the need for separation not being the same. Pet food is a good example of why we need this legislative cover. However, because we are content for the other elements of pesticide and veterinary medicine to be dealt with by the directorates, we do not need a separate legal base. That would be extending beyond food safety and consumer protection which is covered in Clause 1. I have obviously not helped, but hindered.

Lord Clement-Jones

The Minister elucidated my confusion; however, in some respects the Minister, with greatest respect, has extended the confusion. Even if we keep the executive agencies relative to veterinary medicine separate, the same arguments on the legal base related to animal health or whatever still apply to veterinary medicines. Clearly this is an argument which I need to consider quite carefully. I still have geese and ganders knocking around in my head as a result of what the Minister has said. I am tempted to talk about angels on pins because there may be a splitting of distinctions between veterinary medicine and animal foodstuffs, but that may be a difference without distinction or vice versa which is being made here.

Again I was reassured by the Minister's assurance that all three areas would be fought within the food safety remit of the agency and that is a very important undertaking.

Finally, like the noble Baroness, Lady Byford, I was also reassured that the remit of the agency would be kept under review. However, provided that we are certain that those three elements in so far as they affect human health, public health, food safety are already enshrined in the Bill, we have the powers of the agency that we need. I am still unclear about the aspect of animal health and whether or not we should see that addition in Clause 9 to take account of veterinary medicines. No doubt we will come back to this later, but in the in the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 30 and 31 not moved.]

Lord Clement-Jones moved Amendment No. 32:

Page 4, line 10, at end insert (", although these matters shall be secondary to the Agency's primary function or promoting and protecting public health")

The noble Lord said: The Minister has already addressed this amendment and given reassurance, in a sense, about the absolute priority of the agency. As I am sure the Minister will have recognised, this is designed to tease out a view about the agency's priorities. In a sense, whatever the agency's advice to the users of animal feeding stuffs, and whatever its exercise of its duties under Clause 9, the agency's main priority will actually be food safety and human health.

Clause 9 recognises that it is important that the agency takes a plough to plate approach to food safety, as undertaken in the original White Paper. This duty, going from plough to plate, however, should not be allowed to detract from the promotion and protection of public health and result in an agency faced with a conflict of interest. That is why I readily took the point made by the Minister about the executive agencies staying under MAFF. In this way, any functions exercised in relation to animal feeding stuff should be related to public health. Any other functions in relation to animal feeding stuff, which are not related to public health, should be reviewed according to public health function. It is a question of priorities, and the Minister has already half answered the question. I beg to move.

Baroness Byford

I rise to speak to my Amendment No. 38, which follows on from the discussions we have just had on foodstuffs. This clause specifies that the agency has the same general functions relating to animal feed as to food safety in so far as these matters relate to the safety of animal feedingstuffs and other interests of users of animal feedstuffs.

The recent dioxin scare discovered in Belgian animal feeds and the questionable content of some pig and poultry feeds, let alone the wider use of antibiotics in feedstuffs, have been much highlighted in the press recently. Other Members of the Committee referred to that earlier. This, plus the ongoing discussions around genetically modified feedstuffs, makes this clause important. If you like, in an "Ilkley Moor bar t'hat" sense, I may be defined as a user of animal feeds. However, in view of the dioxin crisis in the Belgian feed, and the content of some pig and poultry feedstuffs, we felt it necessary to take this opportunity to clarify the situation.

The dioxin position points up the problems surrounding free trade. Not only do we have no control over what our farmers feed their animals abroad, but we have little or no control over the content of animal feedstuffs imported into the UK. If this amendment is carried, it will be crystal clear that the risks to animal health arising in any way from the fault in animal feedstuffs will be clearly in the province of the agency.

Lord Clement-Jones

I am sorry to extend the proceedings on this set of amendments, but I have not spoken to Amendment No. 33, about which I should have said something. It is relevant to what we have already discussed.

The agency's responsibilities in relation to animal feedingstuffs will require that it keeps users of animal feedingstuffs informed about matters which affect their capacity for making informed decisions about them, which is what the clause in its current form would require. It is also important, however, that members of the public are kept informed about any issues relating to animal feedingstuffs that may affect their ability to make informed decisions about food. This amendment is intended to ensure that both are made explicit.

From what the Minister said earlier I suspect that what she is going to say—I am getting good at anticipating ministerial replies—is that the point is already covered by the food safety duty, that the agency will of course advise, whether it is on pesticides, veterinary medicines or animal feedingstuffs and that, therefore, we do not need this amendment. In that case perhaps the Minister could treat this as a probing amendment to ensure that she gives us the reassurances on that subject which we all need.

5 p.m.

Viscount Gage

I do not know whether it is appropriate to ask at this juncture whether the agency will have powers to make compounders state the precise ingredients of animal feed. This has been an issue. There is still no binding authority; the authority is voluntary. Will the agency have the ability to compel compounders to state ingredients precisely so that farmers can take a decision on this matter and know exactly what they are feeding their animals?

Baroness Hayman

I will deal with the final issue first. I agree with noble Lords who have commented on the inadequacy of labelling of animal feed at the moment. This is an area of EU competency. We have been working at EU level to ensure that proper labelling is provided which contains the relevant information. It is in that area, for example, that the GM content of animal feed comes into the equation.

However, we have to recognise that responsibilities in this area do not just involve labelling. Some of the problems that have arisen have not involved bad or good labelling but rather have involved the misuse or contravention of what ought to be going into the feed in the first place. This is where surveillance, monitoring and enforcement powers are extremely important. I hope that I can reassure the noble Lord, Lord Clement-Jones, the noble Baroness, Lady Byford, and others who have spoken. The intention behind these amendments as I understand it is to ensure that the agency can, and does, carry out its duties across the entire food chain. That is already covered properly in earlier clauses in the Bill. The possible implications of animal feedingstuffs for the safety of human consumers of meat and animal products are already covered under the agency's main aim in Clause 1 and under the general functions contained in Clauses 6, 7 and 8. These functions apply to all aspects of food safety throughout the production chain. They cover the agencies responsible for animal feedingstuffs which could potentially affect human health. This runs parallel to the issue of veterinary medicines and pesticides.

We come back to the question on which the noble Lord, Lord Clement-Jones, was probing me earlier; namely, why we need Clause 9 and why it contains a reference to animal feedingstuffs. This matter may be clearer when it is seen in print than it is at the moment. However, in common-sense terms this is a matter of balance. There are issues other than the implications of animal feedingstuffs for the safety of human consumers. I refer to pet food, for example. Pet food is covered by the same EU directive as animal feed. We believe that responsibility for that small area of animal feed—outside human health and food safety—lies with the food standards agency. It makes commonsense for one agency to deal with that matter. I fully accept that that is the opposite of the argument I made on veterinary medicines and pesticides because the balance of work in that area is quite different. Food safety is not the only element in pesticides, which have environmental and operator effects and are potentially harmful to human health. There are a wide range of other areas where we believe that the separation of the agency and the licensing authority is beneficial. So, it is not angels dancing on the head of a pin at all; it is a common- sense argument about where the balance of responsibility lies. I suspect, however, that I shall not have reassured the noble Lord, though I hope that maybe before Report stage I can write to him with greater clarity.

Lord Clement-Jones

I thank the Minister for that reply, which was very much as I had anticipated. I can say that the penny is gradually beginning to drop, though I should definitely like to see it in writing. I am thinking "pets", which is the clue to the whole thing. I suspect that the wording of the clause is rather confusing. Although pet food is of course an important animal feedstuff, when taking into account the many farm animals it would not necessarily have been an obvious item for the food standards agency. However, it will do so because in a sense such feedstuffs hang together. The confusion may lie in the difference between household pets and farm animals, but they all seem to have been swept up in clause 9.

The penny is beginning to drop, unless I am mistaken. The Minister may tell me that I have totally misunderstood it, but I believe that that is where we are heading. I accept her point that the food safety duties of the agency will ensure that the public are kept informed not only about animal feedstuffs but about pesticides and veterinary medicine. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 33 to 38 not moved.]

Clause 9 agreed to.

Clause 10 [Power to carry out observations]:

Baroness Hayman moved Amendment No. 39:

Page 4, line 32, after ("activities;") insert— ("(ba) premises, businesses or operations involved in fish farming;")

The noble Baroness said: It may be for the convenience of the Committee if in moving Amendment No. 39 I speak also to Amendments Nos. 41 and 43. This group of amendments deals with the scope of the agency's ability to include fish farms within its programmes of observations under Clause 10. Amendment No. 43 clarifies the agency's power to take samples from food sources during its programmes of observation. In order properly to inform the development of food policy, the agency will need to gather representative information on food safety and related matters, subject of course to the limitations contained in the Bill and the agency's general duty to act proportionately. As the agency's remit covers the entire food chain, these observations must, similarly, cover the entire process from production to sale. Clause 10 provides the powers to make these observations.

These amendments make minor technical changes to ensure that there are no technical gaps in the powers to carry out observations. Clause 10 also gives details of the information that may be sought through these observations and this amendment includes a reference to fish farms, alongside the existing references to food, agricultural and animal feed businesses and premises. In view of the animated discussion we had about the importance of fisheries and the safety of fish as a food, I hope that the Committee will warmly welcome the filling of this gap.

I should like to comment on Amendment No. 43 tabled by the noble Earl, Lord Radnor. The amendments provide a useful clarification of our definition of fish farming. It was certainly not our intention—as he pointed out, we should be careful to avoid it— to include the production of ornamental or other fish not intended as food within the scope of the clause. The agency will in any case exercise discretion in planning surveillance to make sure that only relevant premises are included in the surveys. The noble Earl's amendment helpfully draws attention to this point and I am glad that it has given me the opportunity to put firmly on the record that there is no intention to give the agency powers in such areas as the farming or production of ornamental or other fish which are not intended as food.

I am assured, however, that as currently drafted the powers in Clause 10, which look as though they are wide enough to encompass such areas of fish production, would apply only to premises used for food or animal food production. Clause 10 states: for the purpose of carrying out its function under section 8 or its corresponding function under section 9". They relate to food safety and the other interests of consumers in relation to food. So we are certain that those powers could only be exercised in relation to premises used for the production of food or animal food. When I saw the noble Earl's amendment, I thought the point was well clarified. It does not need to be clarified in drafting terms because of that reference back, but I am happy to make it clear in terms of the debate. I beg to move.

The Earl of Radnor moved, as an amendment to Amendment No. 39, Amendment No. 40: Line 2, at end insert ("for the production of food")

The noble Earl said: I wish to speak to Amendments Nos. 40 and 42. I was not able to hear too well the answer that came and I shall read my Hansard very closely tomorrow, but I must start by reiterating that I am both a fish farmer and a processor and rear all sorts of other fish as well. Once again, I felt this was perfectly simple and these two amendments to the noble Baroness's amendments made it absolutely clear that the owners of fish farms growing food were to he visited. It is well known that some fish farms are dedicated entirely to decorative fish, some are dedicated entirely to stocking rivers, reservoirs and so forth, and many of them duplicate on those two performances.

The noble Baroness felt that her Amendment No. 43 covered the whole situation. If that is the case, the people who are going round making their observations will be visiting quite a lot of farms totally unnecessarily in order to find out whether there are food fish there or not.

Secondly, my amendment to the Minister's amendment cannot possibly be misunderstood and it seems to deal with the situation as well as anybody can. Perhaps the provision should be left out altogether because of the generalities that we were discussing. Here is a very interesting situation. We had a very wide discussion about fish yesterday, but said nothing about how they are to be examined. After all, the filleting, boning or skinning on a fish farm often takes place at sea and there is not a word about that, or wholesale markets, or anything of that sort.

Far be it from me to pile more inspections on anybody, let alone myself, but there seems to be something rather incongruous about the fact. I cannot say it is not a level playing field when one is dealing with the sea, but it seems unusual. I shall listen again to the noble Baroness's answer, but I feel my addition is more adequate than she describes. I beg to move.

Baroness Hayman

Perhaps I may respond to the noble Earl. I apologise if I was not completely clear that I was urging the Committee to support Amendments Nos. 39, 41 and 43, which include "premises, businesses or operations involved in fish farming", which perhaps gives the breadth of coverage to which the noble Earl was referring. I hope that when he looks carefully at what I said earlier as to his own Amendments Nos. 40 and 42, although on first sight it appears that they would be necessary to clarify that the only fish production with which the agency would properly be concerned was that in relation to food, I am assured that the general governing of Clause 10 by Clause 8 means that there would be no question of the agency interfering in the production of farming; for example, of ornamental fish. Perhaps it would be most sensible if I suggest to the Committee that it adopts the government amendments, which I believe are generally welcome to extend properly to fish production for food the powers of the agency. I hope that the noble Earl will read what I have said in relation to his own amendment. We can if necessary come back to it on Report.

5.15 p.m.

The Earl of Radnor

I certainly shall read it very carefully; and as I verge towards simplicity, I beg leave to withdraw the amendment.

Amendment No. 40, as an amendment to Amendment No. 39, by leave, withdrawn.

On Question, Amendment No. 39 agreed to.

Baroness Hayman moved Amendment No. 41:

Page 4, line 43, at end insert ("; and fish farming" means the breeding, rearing or keeping of fish or shellfish (which includes any kind of crustacean or mollusc)")

The noble Baroness said: I have already spoken to this amendment. I beg to move.

[Amendment No. 42, as an amendment to Amendment No. 41, not moved.]

On Question, amendment agreed to.

Clause 10, as amended, agreed to.

Clause 11 [Power of entry for persons carrying out observations]:

Baroness Hayman moved Amendment No. 43:

Page 5, line 13, at end insert— ("(ba) take samples from any food source found on any premises;")

The noble Baroness said: Clause 11 sets out powers of entry for authorised persons carrying out programmes of observation on food safety and other matters under Clause 10. Like the amendments we have discussed earlier, this is a minor technical amendment to make sure there are no significant gaps in the agency's ability to gather information, to inform policy development and protect public health. It makes clear that the samples that may be taken during programmes of observation include samples from food sources such as live animals and plants. The existing text refers only to "articles or substances". There is some doubt as to whether this would be sufficiently wide to cover any samples taken from animals and plants, which obviously could have effects on human health and food safety. For purposes of clarification I commend this amendment to the Committee. I beg to move.

On Question, amendment agreed to.

Lord Luke moved Amendment No. 44:

Page 5, line 20, at end insert— ("(e) reimburse any such business for reasonable costs incurred in copying or providing the information requested;")

The noble Lord said: I shall speak to Amendments Nos. 44 and 45 in this grouping and my noble friend Lady Byford will speak to Amendments Nos. 46 and 47.

A business employing 3,000 people with photocopying charges down to less than 1p per page and a central print facility will regard the production of a few extra sheets of paper as trivial. A farmer or a small cheesemaker on the other hand, with a printer that costs 10p plus a page to run and a photocopying facility which is five miles away and charges 5p or 10p per sheet, will think differently. Moreover the businesses may well be making millions in profit while certainly in the current climate, the farmers will be lucky to be making hundreds, and may even be making losses.

In essence, Clauses 10 and 11 concern the agency's powers to carry out observation, gain knowledge, giving it the facility for checking information, deduced, supplied or summarised. These are perfectly reasonable requirements as long as their fulfilment does not result in yet another charge to agriculture and the food-processing industry, one more charge, moreover, which is likely to weigh most heavily on those least able to bear it.

We note that the Bill empowers the agency to pay its members, to employ staff, to pay salaries and expenses, as it sees fit, to members of its advisory committees, and to receive moneys from Wales, Scotland and Northern Ireland. It is therefore only fair to enable an authorised person, acting on its behalf, to reimburse costs from those from whom it seeks information, particularly small businesses. I beg to move.

Baroness Byford

I rise to speak to Amendment No. 47. I have already referred to this clause as has my noble friend Lord Luke. The amendment asks the Government to insert after "secret" the words "or personal data". I have great difficulty with the amount of information that is likely to be required under this clause, which refers to observation.

I find that the Government who have such strong public support do not appear to be concerned enough in the Bill about the private individual's privacy. The media have been broadcasting and writing for a long time now about the world-wide influence and powers of multi-nationals and about the control wielded over governments by global moguls. I am, however, saddened and surprised to read in the Bill that trade secrets are more valuable than personal private information and that, in addition, the former are to have special protection while the latter have none.

It need not be medical information that is to be revealed. It could, for example—and I say this in all humility—be someone who perhaps is paying for the support of a child which is not part of the family and whose existence is known to a few. It could be someone who is ill. It is possible for someone to jump to the wrong conclusions about the reasons for those payments and cause a lot of distress.

I hope the Committee will agree with us that it is a serious matter and that the point should be considered.

Lord Rowallan

I must apologise for not being present when my noble friend Lord Luke introduced the problem of being in the Committee next door and mental health problems at the same time.

I am extremely concerned about Amendment No. 44. We are asking for draconian powers to be given to this agency to "inspect and copy any records" as is stated under Clause 11(4)(c). It does not state that those have anything to do with the problem that the agency is investigating at that particular time. Any records found on the premises may be copied and must be put into legible form. I have to admit that my computer always gives everything in legible form, so I am not quite certain why that does not work.

I am concerned with this because it could amount to an enormous amount of paper, and it is essential that the owner of any business is recompensed if he has to produce records which do not seem to have anything whatever to do with the case that has been brought up, unless I totally misunderstand what is in the Bill.

Baroness Hayman

I shall respond to this group of amendments and take the separate issues that have been raised one by one.

I can quite understand the thinking behind Amendment No. 44. It would be wholly unreasonable for an authorised officer to put a business to huge expense in photocopying documents or finding information; but we have to look at this in context. The officers acting for the agency in carrying out observations will be under a general duty to behave reasonably and proportionately. We anticipate that the agency will provide general guidance to its officers to ensure that they behave reasonably. There is therefore no reason why this function should result in onerous burdens or costs. Indeed, it is hard to envisage circumstances where it might. However, as the noble Baroness, Lady Byford, pointed out, the agency has power to make disbursements and, if it were considered reasonable and necessary to do so, it would have the discretion to meet reasonable costs just as, for example, when carrying out a survey at retail level, the samples would be purchased. I hope that that is reassuring to noble Lords.

I fully understand the concerns about burdens on businesses at the moment, and particularly burdens on small businesses, but the powers of the agency to ensure food safety by looking at records such as this are absolutely integral to its monitoring function. This may be a dangerous thing to say because everyone becomes keen to break with precedent, but it would not only be unusual but also unprecedented to provide reimbursement of a business for compliance with the law. That is what this amendment would require.

I hope therefore that noble Lords are reassured that we see no reason why that should normally present any large burden. It is part of the burden of being in a regulated industry and for that I make no apology. However, in circumstances where it was outwith the normal and proportionate costs, there would be some leeway within the agency to meet costs if that seemed sensible.

Moving on to Amendment No. 45, it should be clear from the powers contained in Clauses 10 and 11 that the agency will need to be able to observe all aspects of food production and supply that are relevant to its remit of protecting public health. People employed by food businesses who carry serious infections that are transmissible through food pose a potential danger to public health and that has been evidenced in the past. Records held by businesses to monitor the suitability of employees for handling food destined for sale to the public are, therefore, relevant to the agency's work. Certain types of food businesses keep such records for the purpose of giving effect to the EU vertical food hygiene directives.

However, I should like to make it clear to noble Lords that the records referred to in Clause 11(6) are quite different from personal health records as a generality. They are not a clinical matter and would not be sought by the agency. That is very specific on the particular health records that might be of relevance and are specific to the handling of food destined for sale to the public.

I should also make it clear that under Clause 11 the agency would only be able to obtain information that is reasonably necessary for the purposes described there. It would not routinely be seeking to publish information from records of this kind held by food businesses. Where access was necessarily obtained, there is no presumption that the agency would seek to disclose information on individuals since it would be obliged to take account of personal confidentiality as provided in Clause 19, and the advice is that this would be entirely consistent with the terms of the Human Rights Act 1998.

I turn to Amendment No. 46 which will require the consent of individuals.

Baroness Byford

I hope the noble Baroness will give way. I have not spoken to Amendment No. 46 which states, for which there is written authorisation to disclose from the person concerned". We now come to the amendments which relate to matters which we, on this side of the Committee, believe to be of fundamental importance—namely, the value to our society of maintaining our concern for respect of privacy.

Even in this day of electronic filing, medical records are confidential. Precisely because of electronic wizardry, it is even more important that they remain so. Surely we have a duty to guard against loans being refused, insurance terminated or jobs lost because a medical history has been revealed by an unauthorised disclosure or gossip.

It is right and proper at certain times—for instance, when applying first for life insurance—that we reveal our medical history in confidence to the insurer. But it is not right that our medical histories are revealed by a third party to a person carrying out observations designed to improve the general level of knowledge of a body whose members are bound by no form of personal privacy legislation.

In the next subsection of this clause, we learn that anyone disclosing information regarding trade secrets is deemed to be guilty of an offence and liable to a fine. However, that same person could go out of the premises and reveal in a pub that the managing director's secretary was unwell, and there would be no redress.

If there is an outbreak of food-borne disease, we all expect and hope that the responsible qualified investigators will move in, find the source, eliminate the problem, and render the affected output safe once more. In those circumstances, people working in and for the food processors or retailers have to be prepared for an outsider to access their medical records. That access should, however, be denied in circumstances where there is no emergency; where there is no infection; or where there is only a desire for general background knowledge and where the observers or authorised persons may be anyone with no level of medical qualification.

5.30 p.m.

Baroness Hayman

It is helpful that the noble Baroness explains the concern around Amendment No. 46, which I understand. Let me reiterate that the records to which we are referring here are those that have a direct bearing on public health. They include the kind of information which is covered in the EU directive to which I referred and they are not the generality of personal health records, which would not be covered and would not be sought by the agency. Some of the general issues to which the noble Baroness made reference would not be covered.

We believe that it is right, in the emergency situation of an outbreak, that the agency should be able to gain access to those sorts of health data in fulfilment of its general function of keeping under review relevant information without having to obtain prior consent. That is because of the emergency nature of what we are doing and it is entirely consistent with the terms of the data protection legislation which, in such circumstances, does not require written consent.

In practice, the agency would only need access to even those records in rare circumstances. It would not routinely be concerned with the health of food handlers but with the safety of foods themselves. It is however right that it should have the appropriate powers to investigate if it is really necessary that it should do so to protect public health. Amendment No. 46 would make it unduly difficult so to do.

I accept that the important principle of respecting privacy should be observed by this agency, as it should be observed by government overall. But I hope that the noble Baroness will be reassured that the data protection legislation covers the normal run of circumstances and that inserting a requirement for individual written consent here would be unnecessary.

Perhaps I may equally reassure the noble Baroness on her point concerning Amendment No. 47. The agency and its officers are not entitled to disclose personal information, except in the performance of public health duties. The example of talking in the pub about information gained in that way is protected under the terms of the Data Protection Act, with which the agency will be required to comply. That general protection of information, therefore, other than in the discharge of those public health duties—to stop people transmitting such information—is covered by the Data Protection Act. The circumstance that, quite rightly, is worrying to the noble Baroness is thus covered by the overarching protection of the Data Protection Act.

Lord Luke

With regard to Amendments Nos. 44 and 45, I am most grateful for what I would call the understanding reply by the Minister and in particular for her assurance about guidance to officers to behave reasonably. That seems to be the key to both those amendments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (The Viscount of Oxfuird)

I call Amendment No. 45. I have to advise the Committee that should this be agreed to, I cannot call Amendment No. 46 due to pre-emption.

[Amendment Nos. 45 to 47 not moved.]

Clause 11, as amended, agreed to.

Clauses 12 and 13 agreed to.

Clause 14 [Power of entry for monitoring enforcement action]:

Baroness Byford moved Amendment No. 48:

Page 7, line 18, after ("any") insert ("competent")

The noble Baroness said: Our main concern here, once again, is with the small company and the family run business. It is quite reasonable, for example, for an observer to turn up at a farm halfway through an afternoon. It is also quite reasonable for him or her to seek assistance in gaining an understanding of, for example, livestock movements over the past two years to market or to slaughter. It is reasonable that he might find the two brothers away at a meeting with the accountants, or the wife shopping or fetching the children from school. It is not reasonable, in my opinion, that he should accost the cowman and demand access to office and papers contained therein.

In another context, it might be reasonable for the agency investigator to turn up on a Friday afternoon at a food processing plant which closes at 1.50 for the weekend. It would not be reasonable, surely, for him to expect the cleaner to produce her keys to unlock the office to show him where the cabinet keys are and to leave him unauthorised access. This amendment seeks only to insert the word "competent" which would obviously alleviate these kinds of problems—any unpleasantness, costs and unnecessary delay. I beg to move.

Baroness Thornton

I wish to speak to Amendment No, 48A. This amendment would be an improvement in the detail to Clause 14 in one important respect. Clause 14 as it stands omits any reference to official laboratories. As presently drafted, it does not even recognise their existence, yet official laboratories, which are quite distinct from what one might call "ordinary" or non-official ones, play a crucial role in the operation of food safety enforcement.

In speaking briefly to this amendment, I should like to acknowledge the assistance of the Royal Society of Chemistry, which does an excellent job in putting issues of science and chemistry on the public agenda in their rightful place and helps people like me—who took science only to O-level—to feel that they might be more knowledgeable than they really are. I should like to thank the society. It has taken a close interest in the Bill. I am grateful to it for bringing this matter to my attention and to the attention of other noble Lords.

I wish to explore whether the Minister might agree that the Bill will be strengthened if specific reference to official laboratories were included. What are we talking about when speak of official laboratories? They are the 31 analysts' laboratories; they are the laboratories of the government chemists, the central science laboratory of MAFF, and the 33 public health authority service food examination laboratories. I might add that all these bodies support and endorse this amendment, and I hope that the Minister will also appreciate that it has no financial implications.

So, who are we talking about? One example is the public analysts' service. They have a fundamental role in food safety enforcement. Every public analysts' laboratory is an official laboratory. Public analysts are very highly qualified scientists, the crème de la crème of their profession. The work of these laboratories and of these people is absolutely central to food safety and to enforcement, which this Bill should recognise. Moreover only official laboratories and laboratories empowered by European Union member states may carry out analyses for food control which are recognised by other European Union member states.

Recognition needs to be given on the face of the Bill to the existence of official laboratories because of the high professional and scientific standards that they embody. An official laboratory has to be accredited in accordance with standards that are prescribed by EEC measures directives. Every official laboratory has also to comply with criteria stipulated by MAFF, the Department of Health and the territorial departments of Scotland, Wales and Northern Ireland. Official laboratories are thus accredited to the very highest professional and scientific standards. These criteria are demanding precisely because they are designed to ensure that food control to protect consumers is effective.

These standards apply to the staff of official laboratories, all of whom have to be properly qualified and trained; for example, all public analysts, a position enshrined in UK statues, are very highly qualified scientists. They are intrinsic to the running of official laboratories. Thus the quality control exercise in an official laboratory is of the highest standard, and the criteria of accreditation include scope for analyses to be undertaken. Surely, therefore, a Bill dealing with food standards should at the very least recognise the existence of the very official laboratories which themselves embody the highest standards in food safety.

It might be argued, perhaps, and indeed was in another place, that the current wording of subsection (5) of the Bill is deemed to include official laboratories. However, it seems to me that to suggest that just by putting in the word "laboratories" covers official laboratories misses the point. For example there is the risk that official statistics on analyses of food safety which are required to be given by all member states to the EC might originate from non-official laboratories instead of official laboratories, and if so this could degrade the quality of the information submitted to the EC and put at risk the structure of food safety monitoring. Given the current situation with beef, that is an important and relevant point and we do not wish to do ourselves any more harm in these circumstances.

I venture to suggest that this very small amendment would resolve that situation and I beg support for it.

The Earl of Selborne

I support the noble Baroness, Lady Thornton, in her Amendment No. 48A. It appears totally unnecessary to add the words "official laboratory" when we have the words "any laboratory", but it is not quite so simple. We have to recognise the status of an official laboratory both in the European Community and in this country. There is something a little diminishing, almost demeaning, about saying "any laboratory or similar premises" when we do not differentiate specifically the role of an official laboratory. We have heard in the very comprehensive and helpful statement made by the noble Baroness just how important they are and how dependent both the agency and other enforcement agencies will be on the role of official laboratories.

If it is assumed that an official laboratory can be swept in with "any laboratory or similar premises", which is the wording on the face of the Bill at the moment, there is a danger that food enforcement authorities might simply assume they are all one and the same and therefore bypass the official laboratories anyway. That clearly is not the intention of the Bill. It would be a highly unsatisfactory and quite disastrous implication.

This is a case where spelling it out in detail loses absolutely nothing. It reinforces once and for all the commitment to the official laboratories, their structure and their role within the European Union. I heartily commend the amendment to the Government.

5.45 p.m.

Lord Rowallan

I strongly support my noble friend Lady Byford. I was talking about draconian powers on the previous amendment and this is where we really move into the realms of the sublime and the ridiculous. As the noble Baroness succinctly pointed out, to require a person present on the premises to provide such facilities and such records and information is ridiculous. I know that if I was absent from running my small business and came back to find that one of my employees, who knew little or nothing about the way the place ran, had allowed someone to go into my office and go through my computer files or any other files, I would take an absolute mad turn and would not be ashamed to do so. That is totally intrusive.

I would go even further than my noble friend. I would say that this inspection should not take place unless the owner of the business is present at the time. We have to be very careful in that regard. I am sure the Minister will say that I am using extremes, but unfortunately extremes can and do occur. Several people have written to me about things that Customs and Excise has done, which has the same sorts of powers to enter and do virtually anything that it wishes. It would be extremely unfortunate to have on the face of the Bill what we now have without this brake on someone misusing the powers which we are quite rightly giving. We must not ever allow those powers to be misused.

The Earl of Radnor

I speak to my amendment, which is slightly different. I agree with much that has been said before, but this is a different point. It is to do with the behaviour of the authorised person and the authorised person's companion or assistant when they enter plants, particularly those that are processing food. That is what I had in mind. I have a plant which does just that. We run under strict rules imposed by the environmental health officer and then the health and safety officer. More important, however, they are imposed by the people to whom we sell our product and they get very upset if the rules that they laid down are broken. It is painful, because that just means one loses the order and one's business does not thrive so well.

The rules relate to simple things like wearing the proper hair protector, a properly laundered coat or properly cleaned boots. Where have they come from? Is their car clean? One would not want them to have come straight from a market and have manure all over the tyres or something of that sort. It is too simple to say that they should not be smoking. In our specific instance, it includes all the entrances into the building; where one washes and changes; where one moves through the link into the actual working area.

I believe that all that should be on the face of the Bill. It is no good the inspector coming in and saying, "I am from the food agency and this is my helper", and wanting to go in the back door to see what is happening. That is not allowable and may be extremely dangerous. It could also be very awkward for the owner of the business. I hope that notice will be taken of this point. It is important.

Baroness Byford

Before the Minister responds, I wish to support the amendment. Over recent weeks, I have made visits to poultry establishments as part of my Front Bench responsibilities. The one thing which is made abundantly clear is that you must wear clean overalls, boots and hair cover. It is even asked that earrings are removed. I support this amendment, which is of extreme importance. The noble Lord has spoken on the fish industry and I have mentioned the poultry industry, but I suspect that many other industries will be faced with exactly this problem. I hope that the Government will accept this amendment.

The Earl of Selborne

I wish to speak to this amendment, too. When the Minister responds, it would be helpful to know how the producer stands if he tells the authorised person coming from the agency that, because he was not conforming, he would not be allowed into the premises—into the packing area. It would be interesting to hear from the Minister whether that would be justified in the circumstances.

As I said yesterday, like my noble friend Lord Radnor I have a packaging plant for fruits—not fish—but I face the very same problem that we are meeting with these very specific, and very desirable, protocols determined by the multiples. They are nothing to do with the sort of regulations, necessarily, that the agency will insist upon, but they include covering hair and the like, which may not always be a requirement.

If there were an instance which led to a loss of custom because a stray hair had found its way into a package, it would be very difficult to trace the person responsible, so there simply must be total standards maintained at all times. If that is what the protocol says, it must be enforced and it should surely be an absolutely essential requirement that the producer can forbid anyone—however authorised, and it might be by this legislation—to go into the relevant part of the processing plant.

The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath)

This has raised a number of interesting points around the whole issue of monitoring enforcement. I agree with the general principles expressed by Members of the Committee that it is important that this process is conducted properly and in a reasonable manner. It is my intention to indicate to the Committee that I believe that this is covered by the Bill as it now stands.

I have no doubt that the monitoring of enforcement by the agency will be a very important function and an important tool for improving practice. Over time, I am sure it will lead to greater consistency in the application of food law. In that regard, it is significant that local authorities and the Local Government Association have welcomed this proposal and they are working with the Government in undertaking some preliminary work to ensure that it operates effectively.

Let me turn to the particular issue raised by the noble Baroness, Lady Byford, in relation to Amendment No. 48. This would limit the power to require assistance to individuals who are competent to help those conducting enforcement monitoring. That seems to be common sense, but the effect that this amendment seeks to achieve is already provided for in the drafting of Clause 14(4)(d). This makes clear that an officer of the agency may only require a person to provide such facilities, information or assistance "as he may reasonably request." In our view, this would limit any request for help to individuals who are competent to provide it since it would not be reasonable to do otherwise.

In response to examples already raised by Members of the Committee in this debate, it would not be reasonable to ask a cleaner to let the officer have access to computerised records, or a security guard to show him a production line. I hope I have made it clear that, in those circumstances, the agency must make reasonable requests.

Amendment No. 48A was spoken to by the noble Baroness, Lady Thornton, who, despite the lack of an O-level displayed considerable expertise in that area. I am pleased to be able to place on record our recognition of the excellent work of official laboratories and in particular the high standards maintained by the public analysis laboratories and the public health laboratory service. Maintaining an authoritative professional resource for the analysis and adjudication of enforcement samples remains a vital element in the enforcement process. The work of official laboratories will be of particular relevance to the agency's function of monitoring the performance of enforcement authorities.

It is becoming common practice in our debates today to anticipate the Government's response to amendments. The noble Baroness, Lady Thornton, anticipated the response. I can tell her and noble Lords that official laboratories were very much in mind when the Clause 14 provision concerning enforcement-related premises was drafted. I have thus included clearing within the morning any laboratory or similar premises at which work related to the enforcement of any relevant legislation has been carried out for the enforcement authority.

On that basis, I hope noble Lords will recognise that we embrace the spirit of Amendment No. 48A that we should not overlook the critical role played by official laboratories in the enforcement process, but believe that this is properly reflected in the Bill.

I should say to noble Lords that the exercise of powers in the clause will be the subject of detailed guidance to authorised officers which will set out in more detail how they should operate and what would be reasonable.

I now turn to Amendment No. 49 spoken to by the noble Earl, Lord Radnor. Again, the noble Earl has raised an extremely interesting point. I understand the point that causes concern to businesses and recognise the particular point about the implications for small businesses. I would again say that I believe this is already dealt with in the Bill.

The agency will be required by virtue of Clause 23 to act in a reasonable and proportionate manner. I suggest that this would include observing hygiene requirements in conducting—

The Earl of Radnor

Perhaps I may interrupt the noble Lord. The point that should be made is that people who have these food processing plants have rules put upon them which they themselves think are unreasonable, so someone behaving in a reasonable manner might not conform to the rules that are applied. If those rules are broken then the order is lost.

Lord Hunt of Kings Heath

That is extremely interesting, but in relation to the rules which have to be observed, it seems to me that the point I indicated in Clause 23 that the agency must act in a reasonable and proportionate manner still stands. Clearly it is self-evident that any authorised officer would have to comply with the law on hygiene matters, and furthermore, since it is the agency's responsibility and objective to protect public health, it will clearly be in breach of that if it fails to do so.

Again, I say to the noble Earl, Lord Radnor, that since any person accompanying an authorised officer of the agency would have a direct interest in the public health purpose of the visit and will be present at the agency's behest, the same relations ought to apply to that person as well. I very much sympathise with the general principle he is aiming at, but the provision is unnecessary given the virtue of Clause 23 and the requirement for agency to act in a reasonable and proportionate manner.

6 p.m.

The Earl of Selborne

The noble Baroness, Lady Thornton, will be as disappointed as I am with the response given by the Minister to her amendment. It did not entirely take on board the concern that some of us have about the qualification of any laboratory or similar premises—and I quote now from Clause 14(5)(b): at which work related to the enforcement of any relevant legislation has been carried out for the enforcement authority". The problem about an official laboratory is that it may not be working for an enforcement authority. It may be acting as a referee of standards. Therefore this qualification as to what is meant by working for an enforcement authority seems, on the face of it, specifically to preclude the laboratory of the government chemist. This is the issue which I ask the Minister to look at again very carefully, and perhaps to write to the noble Baroness.

Lord Hunt of Kings Heath

I will try to clarify this point. It is not the intention of the Bill to bypass the role of official laboratories. I agree they have a unique and important role in food law enforcement in the UK and in the EU context. The important point to recognise in relation to this clause is that it provides supplementary powers for the agency to carry out its enforcement monitoring role. It has no impact on the statutory role of the public analyst which is covered in Section 31 of the 1990 Act and the regulations made under it.

While I follow the point that the noble Earl is making, the question of which laboratory is used is not relevant to this point. The point that we are talking about here is the ability of the agency where a laboratory has been used—whether an official laboratory or not—to be able to pursue the monitoring of the enforcement authority.

The Earl of Selborne

I have not made myself entirely clear. If the laboratory is to be inspected in order to ensure, on behalf of the agency, that the enforcement authority is working to a certain standard, that is acceptable. I am sure that the legislation will cover that point and that any other laboratory would come into the same category. However, there comes a moment when you are imposing standards whereby the food standards agency will be required to assure itself that those who are setting the standards—which may be quite remote from a sample of food—have set standards with which it is satisfied. Therefore there will not be a sample of food involved in those cases. We are here trying to determine standards of food safety and monitoring how the official referee of standards has set about his role. The role of the official laboratory is quite distinct from the role of a laboratory which has taken a sample of food as regards determining whether or not it has achieved a certain standard. That is the issue which has to be addressed.

I refer to the qualification in paragraph (b). It specifically states that the laboratory must be one where work has been carried out for an enforcement authority. The example that I have tried to instance is where that would not apply. However, there will be occasions when the food standards agency will want to have access to the laboratory of the government chemist. Will the Minister assure me that if, for example, the food standards agency wished to assure itself that the official referee of food safety standards had done its job correctly, it would be qualified to inspect those premises?

Lord Hunt of Kings Heath

I should like to take that point away and return to it at a later stage. The noble Earl has raised an interesting point which we need to consider. Nonetheless, if I may refer back to the general point, we are talking about the situation where an enforcement authority is using a laboratory to facilitate its work in these areas. This clause seeks to enable the agency to monitor the work of the enforcement authority and to have access to such a laboratory.

The Earl of Radnor

Perhaps I might say one last word on my amendment. The noble Lord has said that these people would act sensibly when visiting this hypothetical plant we are discussing and that they would keep well within all the laws relating to cleanliness and so on. The point I was making was that the rules of a plant could well be much stiffer than the law requires.

Lord Hunt of Kings Heath

The test again, which the agency itself will have to consider when it is established, is whether in those circumstances its response to standards which might be higher than legislation enacted was reasonable and proportionate.

I cannot really go very much further than that. I have tried to convey to the Committee that in general terms the agency will very much bear in mind those principles which the noble Earl has enunciated in terms of the expectations that one would have in relation to those officers.

Lord Rowallan

I am sorry to come back, too, but my noble friend Lord Radnor brought up a very important point. What is reasonable? I am still extremely concerned and in order that it appears on the record, I would like the Minister to say whether he considers that it is reasonable in any circumstances for an enforcement officer to talk to an employee of a firm without the owner of that firm being present.

Baroness Byford

Before the Minister replies, perhaps I may take up two points. Could he define who decides what is a reasonable request? For example, we have had many problems within the Meat Hygiene Service over recent months—about which this House has had many debates—about reasonable behaviour of vets who operate there and we need to look at that very carefully.

Again, the Minister spoke about detailed guidance to officers. In these three amendments we provide greater definition in the Bill. I hope the fact that so many of us have come back to raise important issues with him means that the Minister will perhaps go away and consider it and possibly come back to us at Report with greater definition.

It is a problem and I repeat that some of these units will not allow you on their premises, so it has to be written in the Bill. It is not a question of reasonableness; it is as of a right that if those are the standards that are applied, those are the standards that should be on the Bill. I support the amendment moved by my noble friend Lord Radnor.

Lord Hunt of Kings Heath

Let me try to respond to that. Clearly, it will ultimately be for the agency to make a decision on the basis, as I have described it, of the test of reasonableness. It is difficult to go into all the circumstances in which such a test might be applied because that would not be possible. The guidance that we shall be producing, however, will obviously need to pick up some of these issues and the debate that we have had today will be extremely helpful in informing it.

In relation to the question about a visit of any member of staff in the absence of the owner, it again depends upon the circumstances. If the visit were an emergency it might need to take place in the absence of the owner but you come back essentially to the question of a test of reasonableness. As I have said, the whole of the agency's performance will be based on that test backed up by guidance which will try to reflect some of the points that noble Lords have made.

Baroness Byford

I listened with great interest to what the Minister said and I hope that he will have listened to us and perhaps can come back at the Report stage with something that will more fully satisfy, I suspect, all three movers of these amendments. At this stage, therefore, I beg leave to withdraw.

Amendment, by leave, withdrawn.

[Amendments Nos. 48A and 49 not moved.]

Baroness Hayman moved Amendment No. 50:

Page 8, line 2, leave out from ("1991") to ("a") in line 3 and insert ("(in this Act referred to as "the 1991 Order") or orders or regulations made under it is (by virtue of Article 26(1A), (1B), (2), (3) or (3A) of that Order)")

The noble Baroness said: In moving Amendment No. 50, I shall speak also to Amendments Nos. 51, 52, 56, 76, 84, 86, 90, 92–94, 98, 100, 101 and 103. It is a large group of amendments but they are technical, drafting amendments which deal with Northern Ireland aspects of the Bill.

The Bill has been passing through Parliament at a time of considerable uncertainty over the future of the devolution settlement in Northern Ireland, It was therefore important that we should review the text of the Bill at the latest possible moment in order to ensure that references to Northern Ireland were all correct.

An important amendment in the group is Amendment No. 103, which ensures that powers will still take proper effect under the existing transfer of power once the devolution settlement. has come into force and the Northern Ireland Assembly with it, and the First Minister and Deputy First Minister take their powers.

Most of the other amendments concern minor drafting points which clarify the references to Northern Ireland legislation. I met Members of your Lordships' House who took part in the Second Reading debate to explain the government amendments. I hope that their purpose is clear and that the reasons for making them at what I recognise is a late stage in the passage of the Bill is understood. On that basis I beg to move.

On Question, amendment agreed to.

Clause 14, as amended, agreed to.

Clause 15 [Meaning of "enforcement authority" and related expressions]:

Baroness Hayman moved Amendment No. 51: Page 8, line 11, leave out ("Food Safety (Northern Ireland) Order 1991") and insert ("1991 Order")

On Question, amendment agreed to.

Baroness Hayman moved Amendment No. 52:

Page 8, line 23, leave out ("Food Safety (Northern Ireland) Order 1991") and insert ("1991 Order")

On Question, amendment agreed to.

Clause 15, as amended, agreed to.

Clause 16 agreed to.

6.15 p.m.

Clause 17 [Delegation of powers to make emergency orders]:

Lord Mackay of Ardbrecknish moved Amendment No. 53:

Page 9, leave out lines 4 to 6 and insert— ("(1) The Secretary of State on receiving a request by the Agency shall make orders under—")

The noble Lord said: In moving Amendment No. 53, I shall speak also to Amendments Nos. 54 and 55, which are consequential.

In Clause 17 we read that the Secretary of State shall authorise the agency to exercise on his behalf the power to make orders under—(a) section 1(1) of the Food and Environment Protection Act 1985 … and (b)section 13(1) of the 1990 Act".

Whenever I see order-making powers my interest is immediately stimulated. It was stimulated sufficiently to table an amendment. I am afraid that my databank in far off Scotland was not up to looking at what the emergency orders in the Food and Environment Protection Act 1985 entailed or those in the 1990 Act, but I assumed—and if I am wrong the rest of this argument falls—that they are orders as we would understand orders that are secondary legislation: they are orders that a Secretary of State can make that are laid before both Houses of Parliament and then either taken by the negative or the affirmative procedure.

If I am right on that assumption, what we are seeing in this clause is the Government giving order-making powers to an outside body not directly answerable to Parliament. My puzzle is why that is necessary.

In my amendment I have retained the power with the Secretary of State but I have said very clearly that I understand where the Government are coming from. They want the agency to have power to act quickly, I suspect because these are emergency orders. I have worded my amendment to say that on receiving a request by the agency he "shall" make the orders, so that he would have no option other than to make them—but he, after all, is the Secretary of State. He is answerable to Parliament and he will be making the orders. I believe that is a much more sensible way of doing it.

No doubt the Minister will tell me that other agencies have been granted order-making powers, and that may well be the case; but in a way I am not sure that just because we have a precedent that makes it right. We have an increasing avalanche of secondary legislation. If noble Lords looked at our Order Paper on Tuesday they would have seen three or four pages of secondary legislation which the Government have laid before Parliament since the Summer Recess began at the end of July. Those noble Lords who have heard me before will know that I am not entirely satisfied with the scrutiny that either House of Parliament gives to secondary legislation.

My suspicions were doubly raised when I read that an agency is to be given that order-making power. I suspect that they will be negative rather than affirmative orders, so assuming for a minute that we wish to ask the Minister why these order-making powers have been taken then we pray against them. If we have a debate the agency that has exercised the power will not be able to come and answer. The Secretary of State will have to answer for something that he himself has not done.

I find this a difficult way for us to proceed. It is giving outside non-democratic bodies the right to make legislation. It may well be that the Government of whom I was a member have done it, but I honestly do not think that necessarily makes it right. We all owe a duty to watch secondary legislation; indeed this House and the other place ought to scrutinise secondary legislation in much more detail and far more effectively than at present, because very often the secondary legislation is what drives the legislation. It is not the primary legislation at all. I speak as someone who has made quite a lot of secondary legislation in my time, so I know that the devil is often in the detail of secondary legislation.

I want the Government to explain why they have decided to go down this route. Why cannot they just leave the power with the Secretary of State and ensure that if requested to put in an emergency order the Secretary of State is obliged to do so? Perhaps they might give examples where they think this might not be a wise procedure, and perhaps they could answer the question as to who is answerable to Parliament for that secondary legislation. Is it to be the Minister or are we to look at a system where the agency will come before Parliament and answer for its secondary legislation?

I have explained these amendments as much as I need. I am sure the Minister takes on the probing point I am making. I look forward to a reply. I beg to move.

Lord Desai

Before my noble friend replies, I am genuinely puzzled. Never having been a Minister I am not familiar with what is going on. As I read Clause 17(3), anything done or omitted to be done by the agency shall be treated as done or omitted by the Secretary of State. Then subsection (4) says: Nothing in any such arrangements prevents the Secretary of State exercising any power". The noble Lord's amendments, especially Amendments Nos. 54 and 55, amend subsection (1). Is he basically tidying up and rearranging the prose, or is this a conversational point? This is what I am missing. My understanding of what he said is that someone is responsible to Parliament and it happens to be the Secretary of State.

Lord Mackay of Ardbrecknish

Perhaps I can come back on that point and help the noble Lord. I did not realise when I was looking at this, but because of my first amendment subsections (2) and (3) are not needed. Subsections (2) and (3) are needed here because the agency has been given the power, but I will freely admit that I am by no means a draftsman. I omitted (2) and (3) because I did not think they would be necessary if the power were still exercised by the Secretary of State.

Lord Clement-Jones

Perhaps I may ask the noble Lord, Lord Mackay of Ardbrecknish, whether, when he was formulating the amendment, he took account of the 26th report of the Delegated Powers Scrutiny Committee, and whether, in putting his amendment together, he thought its decision that this was both relevant and necessary should form part of his consideration?

Lord Mackay of Ardbrecknish

I must admit I did not, and I am under no obligation to do so. I want to hear what the Government have to say on this issue. They must defend their decision to go down this road and I look forward to that defence. I know that the Liberal Democrats are used to giving the Government's defence but, on this occasion, I would rather it were the Minister.

Lord Clement-Jones

I can assure the noble Lord, Lord Mackay of Ardbrecknish, that I was in no way seeking to defend the Government. I was merely interested in the spirit in which he had formulated the amendment and the knowledge he had had behind it.

Lord Hunt of Kings Heath

This has proved to be an extraordinarily exciting debate and we are most grateful to the noble Lord, Lord Mackay, for allowing us to discuss it.

I should say at the outset that we are talking, first, about food and environment protection orders which are used to deal with environmental threats—to prevent environmental contaminants such as lead or copper, radioactive matter or oil spillage from getting into the food chain—or orders under Section 13 of the Food Safety Act 1990 to deal with threats over the way in which food is provided. From that, Members of the Committee will see that we are talking largely about emergency orders which, by their nature, will be urgent.

I can assure Members of the Committee that such orders are not to be used lightly, nor is the delegation of the agency to be used for administrative convenience. We envisage these to be emergency situations where the Secretary of State is not available.

For instance, in the case of an oil spill at sea, it might be necessary to immediately restrict fishing activity in the area. The agency would therefore exercise that right on behalf of the Secretary of State. As my noble friend Lord Desai suggested, however, the Secretary of State will still remain answerable to Parliament.

I should also say that there will have to be formal written agreements between the Secretary of State and the agency setting out the circumstances in which that would be undertaken. I might also point out to the noble Lord that the Select Committee on Delegated Powers, when considering this matter, felt that delegation to be both necessary and appropriate.

Lord Desai

When the agency has its agreement with the Secretary of State, will that agreement be publicly available? Will it be published?

Lord Hunt of Kings Heath

I am sure it would be right for that to be made available so that the circumstances in which delegation takes place are clear to everyone.

The actual wording of the amendment is probably defective and would end up giving too much power to the agency because the Secretary of State would have no discretion to refuse to make an order. However, I am sure that that was not the intention of the noble Lord, and that the intention was to probe the situation.

I am sure that the noble Lord, having considered this point, will see that this is a sensible arrangement. The Secretary of State remains answerable to Parliament ultimately but this is to ensure that, when urgent action has to be taken, it can be taken without delay. I believe that the formal written agreements are a safeguard in that sense, in relation to when those powers will be exercised.

Lord Mackay of Ardbrecknish

I am grateful to the Minister and I am satisfied that lie has put the procedures on the record and underlined the fact that the Secretary of State will remain responsible.

I take the point that the Delegated Powers Scrutiny Committee thought that this decision was necessary and appropriate. Interestingly, the Minister gave no justification of why it was necessary. I am intrigued by that. The only example he gave was that in the case of an oil spillage it may be decided that fishing activity in that area should be stopped. I was not aware that there had ever been any problem where an oil spillage had happened and it was decided that fishing activity should be stopped. I was unaware that there was any great problem in Government bringing forward an order and stopping fishing activity. That is what they did around Shetland and what they did on salmon farming there as well. It is, after all, what we do on the toxins, which occasionally nature allows to bloom, which damage shellfish and we cannot have our oysters from the west coast of Scotland and such places for a little while. These things happen and the Government have a whole armoury to bring in orders immediately. The Minister has led me to be intrigued as to why the Government think it is necessary to give the agency these powers. Where have current or former Secretaries of State fallen down on the job?

Lord Hunt of Kings Heath

I would not say that former Secretaries of State have fallen down on the job. The situation has been that where an order has to be signed with extreme urgency and Ministers are not available to do it, they have then had to be signed by officials. The situation there is that they do this under a convention arising from a legal case, which I understand is called cartona. The issue is that when the agency is established, the agency's members and officers will not be officials from the Secretary of State's department so cartona does not automatically apply, though it does apply between the agency's members and its officials.

If we do not delegate this matter to the agency in a situation where it is extremely urgent and no Minister is available, the orders would then have to be signed by officials of the Department of Health. Although this does not present a legal problem, the fact is that the expertise will be within the agency rather than within the department. On that basis, it seems sensible that delegation should be made to the agency which has the expertise, but within all the constraints that I have already mentioned.

Lord Mackay of Ardbrecknish

I am grateful to the Minister for that. It was very useful. I am glad that I put down the amendments because it has allowed him to make clear why this clause is needed. I do indeed recall that occasionally officials have to sign orders and I wondered whether perhaps the Government intended to give their Ministers more holidays in the future so that fewer of them would be available, but I will not pursue that argument. The Minister has been very helpful in explaining what the clause is about and indeed latterly he explained why the Government thought they should bring it forward. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 54 and 55 not moved.]

Baroness Hayman moved Amendment No. 56:

Page 9, line 18, leave out from ("modifications") to ("as") in line 21 and insert ("—

1. (a) to any power mentioned in subsection (1) so far as it is exercisable by the National Assembly for Wales or the Scottish Ministers, and
2. (b) to the power of a Northern Ireland Department to make orders under section 1(1) of the Food and Environment Protection Act 1985 or Article 12(1) of the 1991 Order.")

On Question, amendment agreed to.

Clause 17, as amended, agreed to.

Clause 18 agreed to.

6.30 p.m.

Clause 19 [Publication etc. by the Agency of advice and information]:

Viscount Thurso moved Amendment No. 57: Page 9, line 27, leave out from ("Agency") to ("publish") in line 28 and insert ("shall (unless it can justify specific considerations of confidentiality why it should not")

The noble Viscount said: I rise to move Amendment No. 57 and if it is to the convenience of the Committee, I shall speak also to Amendments Nos. 57A, 58, 60 and 60A. All of these amendments essentially address one issue; namely, the degree of openness that the agency is to have and how much it is obliged to publish or disclose. There are, however, some differences between the various amendments so I shall briefly explain some of the detail. It comes about simply because Amendments Nos. 57, 58 and 60 were tabled by my colleagues in the Commons and were not debated because of the guillotine and, therefore, we tabled them again in your Lordships' House for discussion. Meanwhile, Amendments Nos. 57A and 60A, which are the same but go somewhat further, were provided by the National Consumer Council. Like a good hotelier, I felt it wise to give noble Lords a menu of choice, so we tabled them all.

I ask noble Lords, in looking at these amendments, not to be drawn into too much discussion on the detail. It is the substance behind them to which I draw attention and suggest that we debate the principle of just how open the agency should be in the performance of its duties.

I had an experience this morning at a meeting of the RNLI where we were discussing fundraising for crew training for the lifeboat in Thurso. At the end of the meeting the young lady to whom I had been speaking asked what I was doing this afternoon. I told her we would be in Committee on this Bill and she asked if I could explain to her what the food standards agency was going to do and what it would do particularly for her, knowing nothing whatsoever about it. I was put on the spot and had to explain in a few words what we are doing.

I said there are two things. The first is to regain the public's trust in food safety by the agency being open, independent and based on science. The other point, which is equally important, is for the agency to act—I almost use the words "as an honest broker"—as an honest interface between the three partners which are the public, the Government and the industry. What came about through this discussion was the need for openness; the need for the agency to be transparent and the need for the agency to be fully trusted by the public in the main but also by the industry to make this all work.

I believe the Government agree with that. I do not believe that there is any great difference and, indeed, it was on the Second Reading debate that the Minister for Agriculture, Nick Brown, said on 21st June that one of the agency's most important founding powers is openness. He stressed later on in the same debate the need for that openness and for it to be part of the agency's remit. In particular he referred to Clause 22(2) which goes some way towards doing that.

In this clause and the amendments that I am addressing, we are back to our old friends "may" and "shall". As the Bill is currently worded, the power is given to the agency to disclose if it chooses to do so and we have already had one debate today on the importance of trade secrets and confidentiality. I believe that there has been too much emphasis on nondisclosure of information and that, for the agency to be successful and to achieve the objectives that we have all set for it, it is absolutely vital that it has a duty to disclose and that the exception should be nondisclosure rather than to have non-disclosure and the exception disclosure.

As these amendments are going to be withdrawn anyway, I am quite happy to accept that they may well be technically deficient in all sorts of ways but we are seeking to establish with the Government the principle that the agency must be pro-actively open in order to fulfil its role; that it must be an honest broker and open with the public; and that it will presume in favour of disclosure and publishing of information rather than the other way round. If somewhere in the Bill it is required to do that anyway, that will be reassuring but, if not, I would seriously ask the Government to consider bringing forward their own amendment at a later stage which achieves that objective. I beg to move.

Earl Baldwin of Bewdley

My Lords, I briefly support what the noble Viscount has said. I think we have had too much of a culture of secrecy in many government bodies through the years, and I think this amendment if passed, or something like it, would help to roll back that secrecy. I think there is importance in the use of the word "shall" in place of "may". I also support what the noble Viscount said that since one of the chief purposes of this Bill is to reassure the public it would be rather ironic if it was seen in any way on the face of the Bill to be tight-fisted over information. I think this raft of amendments deserves support.

Baroness Wilcox

I support Amendments Nos. 57 and 57A in the name of the noble Viscount, Lord Thurso, for two reasons. First, I am a great believer in public bodies operating as openly as possible, and secondly, there is an important job to do—as has already been expressed—in rebuilding public confidence in decision-making about food.

The separation of the agency from the Government is part of its openness. The transparency of information flowing from the agency and the Government, particularly on advice, will be crucial. There should be a presumption of openness. That means that everything should be open unless there is a good reason for it not to be. Like the noble Viscount, Lord Thurso, I do not think that the current wording—the use of the word "may" rather than "shall"— shows a clear presumption in favour of openness. I therefore hope that the Minister will take this amendment on board.

Perhaps in her reply to the amendment the Minister could clarify how the food standards legislation will interact with the Government's proposed freedom of information legislation. There have been conflicting signals from different parts of the Government as to what legislation takes precedence as regards openness. For example, during the Committee stage of the Food Standards Bill in another place, the former Minister of State said that, the Bill will not be outwith freedom of information legislation".—[Official Report, Commons, Standing Committee B, 8/7/99; col. 242.] However, that contrasts with what emerged during oral evidence to the Public Administration Select Committee on 22nd June. The Home Secretary indicated that the Food Standards Bill would take precedence because its openness provisions are greater than those in the current draft freedom of information Bill. This point was made by the head of the Home Office's Freedom of Information Unit. I hear the Division Bells. Shall I stop and start all over again?

[The Sitting was suspended for a Division in the House from 6.38 to 6.50 p.m.]

The Deputy Chairman of Committees (Lord Lyell)

I was harsh on the noble Baroness, Lady Wilcox, who was discussing Amendment No. 57.

Baroness Wilcox

That is very kind of the noble Lord. Perhaps I can go back to the beginning of the relevant paragraph. I was discussing how the food standards legislation would interact with the Government's proposed freedom of information legislation. There have been conflicting signals from different parts of the Government as to what legislation took precedence in the openness.

As I said, during the Committee stage of the Food Standards Bill, the former Minister of State said that, the Bill will not be outwith freedom of information legislation".—[Official Report, Commons, Standing Committee B, 8/7/99; col. 242.] However, that contrasts with what emerged during oral evidence to the Public Administration Select Committee. The Home Secretary indicated that the Food Standards Bill would take precedence because its openness provisions are greater than those in the current draft freedom of information Bill. This point was made by the head of the Home Office's Freedom of Information Unit, Lee Hughes, who said that, where there is legislation governing openness, you will get the greatest amount, whether it is in specific legislation or in the freedom of information legislation. It will be the most that will he delivered". Assuming we get the freedom of information legislation soon, two pieces of legislation will operate eventually. So perhaps the Minister could clarify how they will operate together and which legislation will have precedence.

Lord Mackay of Ardbrecknish

This group also contains Amendment No. 59 in the name of my noble friend Lady Byford.

I should like to say a few words about that amendment and about the amendment moved by the noble Viscount, Lord Thurso. My noble friend's amendment makes clear that any information which is gained and published should exclude personal data. One of the problems of the concept of freedom of information is that the information may be about people, which quite frankly they have every right to think is private and personal to them. That problem has increased enormously with the advent of the computer, databanks and all the other things about which we know. I am fairly pessimistic about one's ability to keep one's personal data to oneself the moment they appear on any computer, no matter how secure anyone may tell me that computer is. I do not believe there is such a thing as a secure computer; I believe clever people can always find a way into it. It is an increasing problem.

Here we have an agency which in the course of investigating a food processor, perhaps, may be digging and delving quite deeply, and may well find personal information. It may, for example, find the income tax details of the individuals who work in the company. I fully accept that it does not seem very relevant to the agency, but the danger is that it might in the course of its report feel obliged, if things are drawn too tightly, to reveal all the information it has discovered, and that might go much further than I suspect any of us would like. That is why my noble friend has suggested that the words "excluding personal data" should be added, to make clear that personal data, which are by definition relevant to the people employed in the factory, should not be made public.

Turning to the other amendments, I listened to the noble Lords who spoke to them and to my noble friend Lady Wilcox. I have some slight reservation which I should like to explain to the Committee. Many food processing plants do something to food which they think gives them a marked advantage over other people. There are many places that smoke salmon which believe they do so by some magical means which makes their product hugely better than everyone else's product. The same could be said about lots of other processes in the food industry. I can think of one very famous company which guards its recipes dearly, and would certainly not allow them to be known by anyone else. This agency may well have to obtain that information to work out what is happening inside a plant and how a product is created if it is looking at food standards in that product. I am quite sure the noble Viscount does not mean this, but quite clearly such information ought to be counted commercially confidential. I just have a slight reservation when I hear about openness and so forth. The noble Viscount wants to reassure me.

Viscount Thurso

I am grateful. I do not want to get into a debate with the noble Lord on the subject, but he missed a debate we had a little earlier on. If he would refer to Clause 14(8). it specifically makes the point. If my memory is right it is a crime for a trade secret to be divulged, so my comments in asking for openness were in the full knowledge that trade secrets were protected. I totally accept everything the noble Lord is saying with regard to the flavour of smoked salmon.

Lord Mackay of Ardbrecknish

I apologise for not being here earlier. I am being a bit of a butterfly in this Committee; I took down only a limited number of amendments and yesterday took part on the Floor of the House as well, so with that apology I fully appreciate therefore that the noble Viscount has taken on board my reservations. I shall not delay the Committee any further.

7 p.m.

Baroness Hayman

Perhaps a general apology ought to come from those who talk about smoked salmon at this time of the evening! This is an important group of amendments. I welcome the spirit in which the noble Viscount introduced it. It gives an opportunity to say something about the agency's power to publish information, which is an important tool in making this body open and transparent in its operations.

He is right in thinking that I shall not say that the amendments are necessarily completely technically deficient, but I do not believe that they are the right way to go about ensuring that the commitment the Government have to the food standards agency being an open and transparent body is fully realised.

We know—and the point has been made by Members of the Committee—that this openness and transparency will be an essential prerequisite in restoring consumer confidence in food safety and food standards. That is a point to which we have referred several times in our deliberations. Even without the food standards agency being in existence, we have done a great deal to open up to the public and to interested organisations the workings of committees in this area, by giving access to agendas of advisory committee meetings, the papers that are considered by the committees and the minutes of those meetings. I am looking at other ways. For example, the advisory committee on novel foods and processes could open up its procedures at an earlier stage and allow participation by members of the public.

Some of the advisory committees are holding open meetings. Next week I shall be chairing a meeting of the consumer panel advising MAFF where there have been 80 expressions of interest of members of the public in coming along to attend that meeting. We have every expectation that the agency will build on and develop such practices.

When I look at the amendments I have to advise the Committee that I do not believe it would be sensible to change the Bill in this way. Amendment No. 60 is consequential on Amendment No. 57, and similar issues arise in respect of Amendment No. 57A. They would remove from the agency its discretion to decide what information and advice it should publish. Giving the agency an automatic duty to publish everything— the transfer from "may" to "shall"—would not, we believe, be the most effective way of creating a body that is open and transparent in its operations and also has the trust of those with whom it deals.

Clause 19 currently gives the agency discretion to decide what information and advice it should publish. Clause 22 says that the agency must keep records of its decisions and of the information on which those decisions are based, and that these have themselves to be available to the general public. We believe that these two clauses already provide a sound legal framework for an open and transparent body.

Although the amendment does provide for confidentiality to be taken into account, the Bill already provides a very clear test which would require the agency to take account of considerations of confidentiality which must clearly outweigh the public interest before it prevents publication. I believe that the test is more heavily weighted in favour of publication than the confidentiality provision contained in the proposed amendment. Making a duty on the agency in the way suggested would be both burdensome and bureaucratic because the agency would then have to publish everything as a matter of course, much of which would be routine and trivial, but not perhaps open to the public interest defence as it is normally interpreted because a great many things might be of interest to the public in terms of invitations that were addressed to agency members, officials' advice on whether to accept or not, rumours and hearsay, the press cuttings that are considered and the responses to them. I fear that if all this material were put out, even in the information age, it would clog up the agency's web site and the public pressures with irrelevant and even incorrect material of no help or no use to consumers. Moreover, it would mean that the agency staff would spend all their time preparing material for publication rather than doing the real work of improving food standards. I suggest, therefore, that the agency should remain free to decide what information should be published in the public interest. The public interest test that we have provided adequately deals with any confidentiality issues.

Confidentiality leads me on to the point raised by the noble Lord, Lord Mackay of Ardbrecknish, when he spoke to Amendment No. 59. I agree with him that the agency's power to publish information and advice must not extend to personal data, but the Data Protection Act already protects personal information of that sort. Clause 19(2) specifically says that the agency may not publish anything that is prohibited by an enactment. It is therefore unnecessary to add those words since they are covered already by the prohibition which was referred to in the Data Protection Act.

I hope that that explanation of the way in which personal information, held or obtained by the agency, is already protected by the Bill as drafted, and the law as stated in the Data Protection Act, is reassuring to the noble Lord.

I have a great deal of sympathy with the intentions behind Amendment No. 60A. Let me say clearly and unequivocally that we have always said that the agency will operate openly and transparently, and the provisions of Clause 19 are designed to give a presumption in favour of openness. Equally, it was made clear that, where there are genuine grounds for confidentiality, information should not be published without first giving very careful consideration to whether or not that information should be released.

The provision in Clause 19(3) provides a test that the agency must carry out in deciding whether to publish any advice or information. That puts the emphasis on publication but, if there is strong interest in considerations of confidentiality which outweigh the public interest in the publication, that information might not be published. The judgment to be made against the presumption of openness is the agency's own—it has to decide where the balance lies. In doing so, however, it will clearly need to operate some general guidance, acting reasonably and proportionately, and taking legal advice.

As the noble Lord, Lord Mackay, said on an earlier amendment, the devil is in the detail in all these things. I would certainly support the idea that that general guidance governing the operation of the agency's discretion in this area should be published. Indeed, I believe that the general duty on the agency under Clause 22 to operate transparently, so that the public can make informed decisions about the way in which it is carrying out its functions, would oblige the agency to pro into the public domain the principles it is following in deciding what advice and information to publish. I therefore believe that this amendment is technically unnecessary and that the spirit it is trying to embody is already covered in the provisions of the Bill.

As has been pointed out, the agency will clearly need to take account of new developments including, for example, the new freedom of information Act, if Parliament approves it, together with existing legislation such as the Data Protection Act and existing guidance. The agency will, of course, be expected to go considerably further than much existing practice in terms of openness, bearing in mind the provisions we have made in this Bill.

If we look at the way in which we have been developing these areas, the extension of openness—for which we are not always thanked—is already going on. The use and publication of brand names in the results of surveys has been controversial in some areas, but it is very much welcomed by consumers because it gives them the sort of information that they want.

The noble Baroness, Lady Wilcox, asked specifically about the draft freedom of information Bill and the differences as perceived between that Bill and the general presumption of openness—as I described it—in this Bill.

It is easier to understand this if we think in terms of the proactive duties on publication of information that are put on the agency under this Bill and the reactive duties that are put generally on government organisations by freedom of information legislation. The proactive duties on publication are certainly much wider in this Bill than necessarily the draft freedom of information Bill at the moment. Those duties, as contained in this Bill, will govern the function of the agency in carrying out its work.

Perhaps I may give an example that will make it easier to understand. Let us assume that an individual asks for a piece of information from the agency. It may well be that, when looking only at the freedom of information Bill provisions, the power of discretion not to accede to that request would come into play. However, the agency will function under the legislation in which it is being set up; namely, a presumption of openness in its dealings. In asking what takes precedence, therefore, the agency will have to conduct itself on the broadest and most open principles that are set out within the legislation setting it up.

Baroness Wilcox

I am grateful to the Minister for the way that she is carefully outlining what she is saying but I should like to be sure that I heard what I believe I heard.

As the Bill is being set up before the freedom of information legislation comes into being, we are saying that what we decide in this Act will take precedence over the freedom of information Act. Is that what the Minister is saying?

Baroness Hayman

It cannot take precedence over something that does not exist.

Baroness Wilcox

Only inasmuch as it will presumably be in place and enacted before the other Act.

Baroness Hayman

This legislation will come into force before any freedom of information legislation. So in that sense, there is not an issue of precedence. This legislation puts wider responsibilities of openness and a greater presumption of openness on the workings of the food standards agency than would be imposed by the freedom of information provisions that would govern the whole of government activity. I suggest again that the draft freedom of information Bill now being reviewed before coming before Parliament provides a discretion to Ministers to withhold policy advice to them when it is requested by an individual organisation, but is under no obligation to do so.

This Bill gives the agency—and this is the proactive as against the reactive situation—a general discretion to publish its advice to Ministers on its own initiative, together with a general presumption of openness. It therefore goes much further in fact than the provisions of the freedom of information Bill and, on my reading of it, it would not be possible. If the agency chose to publish its advice to Ministers—it has the power to do so and there is a presumption that it will do so—it would not then be open to Ministers to exercise a discretion to say that they did not want that advice published. Although even listening to myself it does not sound as though I have made it very clear, I hope that some of the interactions between the draft Bill, the freedom of information legislation and this particular Bill have made the position clear. Although I understand the reasoning for suggesting these amendments, they go too far in terms of putting the burden of publishing everything on the agency. I have given some reassurance about the commitment to that presumption of openness and the mechanisms both for ensuring it and for public access to examine the way in which the agency is conducting itself in these areas.

Earl Baldwin of Bewdley

Before the Minister sits down, perhaps I may ask a question. I may be dim on this, but I have been looking very carefully as she was speaking at Clause 19. I cannot myself see any presumption in the wording either way. I may have missed something or there may be other parts of the Bill which say it. Speaking for myself, I can accept some of the criticisms of these amendments because I take the point she made about having to publish everything. But on the point of where the presumption lies, I should be grateful if she could point to where it does presume one way or the other. It does not seem to me that subsection (3) raises any presumption there which amplifies one in any way.

Baroness Hayman

Clause 19 must be read in conjunction with Clause 22(2), which together give the presumption of openness.

Lord Mackay of Ardbrecknish

I am perfectly satisfied with the Minister's explanation as far as my amendment is concerned.

Earl Baldwin of Bewdley

I do not want to make a meal of this, but I did have a look at Clause 22 and, again, I cannot see any presumption from this. I hear good intentions and it may be the way it works, but I still feel something a bit stronger is needed.

Lord Desai

I remarked on the fact that Clause 25(1) was a very unusual statement, allowing the Secretary of State to remove the prohibition on certain disclosure of information, and that is a very forward way of saying information will be made available even though otherwise it would be prohibited from publication. I remember remarking that at Second Reading and I thought that that was a very good indication of openness in the agency.

Baroness Hayman

Perhaps I may help the noble Earl. Although the word "presumption" does not occur in Clause 22, in Clause 22(2)(a) and (c) the use of the word "securing" puts that responsibility very firmly on the agency. It is from the use of that terminology that the presumption of openness comes. It is a drafting point, but the use of the word "securing" in those particular paragraphs—in (a) where the activities are the subject of consultation with those affected and members of the public and in (c) where, records of its decisions, and the information on which they are based, are kept and made available"— are what provides that presumption. It is not the most usual word to be used in provisions of this sort.

7.15 p.m.

Viscount Thurso

That was an interesting debate and it is an issue to which we shall return. I am grateful to all noble Lords who have taken part and for their contribution.

I want to make one or two small points, but before I do so I want to say to how grateful I am for the spirit in which the Minister has responded. I do not doubt that the Government's intention is to be open. Where I perhaps have a little difficulty is in how much that intention will be translated into reality as time goes by. There was one marvellous defence that I could see being drafted; the "Oh, we will flood you with paper" defence. I was looking across at that seat over there and thinking that if the noble Countess, Lady Mar, were in her place, she would be my best defence to that because I understand there is one official permanently employed to answer the parliamentary questions. In fact, if you just published it all, it would probably save one employee. However, I shall skip merrily over that.

The heart of what we are talking about is what is required as opposed to what can be done voluntarily and there are two points. The Minister said that my amendments would remove discretion, which is absolutely right. I want to remove discretion. Where I agree that I was probably wrong was in going too far. I certainly do not want totally to remove discretion and I certainly do not want to flood anybody with paperwork. However, I would like to see on the face of the Bill somewhere a requirement for a certain amount to be published or disclosed.

My second point—which is about freedom of information and this Bill—is that freedom of information is about the right to access. No government department or Minister has to do anything except make available that which is requested, whereas what we are asking for here is a duty to publish or disclose.

It would be helpful if we could discuss this matter, perhaps not this evening but after we have all had a chance to read the debate. First, is there a right of access irrespective of whether a freedom of information Act is published? Should we in this Bill allow a right of access to information, and if so to what information? Secondly, what should we oblige the agency to publish or disclose? I do not wish to go any further than that now. It may be that when we have all had a chance to read what has been said and perhaps had a meeting to see where our minds might meet, we could come back to the matter at a later stage. Those are the two core points that I wish to make. I thank the Minister for her response. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 57A to 60A not moved.]

Baroness Hayman movement Amendment No. 61:

Page 10, line 13, leave out subsections (7) and (8) and insert— ("( ) In this section "enactment" means an enactment contained in, or in subordinate legislation made under, any Act, Act of the Scottish Parliament or Northern Ireland legislation.")

The noble Baroness said: In moving this amendment I would like to speak also to Amendments Nos. 85, 95 and 96, which I can assure the Committee do not change the substance of the Bill and are technical in their nature. The first three amendments amend the definition of "subordinate legislation". Basically we have taken the definition of "subordinate legislation" out of the interpretation clause, Clause 36—which relied on the Interpretation Act 1978—because there was some doubt as to whether that definition would work properly in a devolved context. As regards most of the rest of the Bill, the term is adequately defined already. However, it was necessary to have a definition of "subordinate legislation" in Clause 30 which concerns the making of orders and animal feedingstuffs, so these amendments add one back in.

Amendment No. 96 is a minor change to remove an ambiguity in the terminology used in the financial provisions. It makes clear that the additional money that may be provided by Parliament under subsection (2) of Clause 39 relate to legislation passed by Parliament as distinct from the Scottish Parliament or the Northern Ireland Assembly. These are very technical points, and I hope the Committee will be able to accept them. I beg to move.

On Question, amendment agreed to.

Clause 19, as amended, agreed to.

Clause 20 [Power to issue guidance on control of food-borne diseases]:

Lord Luke moved Amendment No. 62:

Page 10, line 33, at end insert ("but ensuring that the guidance is received by the relevant authorities before it is released to the general public or the media")

The noble Lord said: Many of us will be fairly regular listeners to the early morning news programmes. Not only do they delight one in revealing what is going to be in someone's speech later in the day, but frequently they "scoop" an item not due for general release until later in the week. This is, I accept, the era of the leak, whether authorised or not.

However, there is a side to this which is alarming to many. How often do the media convey unwelcome news on the side effects of drugs and on the results of research? Never mind that the figures may point to a "2 per cent. increased risk" or a "one in ten million chance" of something happening. It is all news and must be rushed to an audience of millions with not a second's delay.

We on this side of the Committee, are anxious that, particularly in the case, say, of a food poisoning incident, the general public should not be in a position to act before those who must deal with them have had time to make adequate preparations, brief their staff, set up stringent follow up procedures and so on. We have only to consider recent reports of the pressure put on GPs by an early release of a meningitis diagnosis to understand how much delay was caused simply through a flood of incoming calls from anxious patients. I beg to move.

Baroness Byford

I rise to speak to Amendment No. 63 which requests that: The Agency shall publish a notice period of not less than twenty working days before implementation of any activity which does not fall under section 20". I notified the Minister that "section" was my error.

This is to cover the event of a crisis such as an outbreak of widespread food poisoning. The agency must certainly be free to act quickly. However, in much of its work it will be assessing evidence collected over time and devising methods of improving food safety. Many of the methods will employ relatively small measures on a par with, for example, date-stamping egg boxes. No big deal— to use a modern parlance—but for those who have to buy the stamps, rearrange the packing process, add a step to the inspection process, train their staff and perhaps even negotiate an adjustment to a job description, some time is needed in which to do it.

There are those who would claim that a minimum notice period should be as long as three months. We feel that that is unrealistic. That is why the amendment suggests that four weeks would be generally accepted as enough— more often than not—for changes that need to be put in hand and which will already have been anticipated in advance.

Lord Hunt of Kings Heath

This has been an interesting debate and I welcome the opportunity to discuss the question of general guidance which is covered by Clause 20. Turning first to the concern that guidance would reach the public or the media before the authorities that were going to be asked to consider it or to put it into effect, I take the point raised by the noble Lord, Lord Luke, about issues in relation to, say, food poisoning. He also talked about the issue of meningitis and vaccination and the information which he said was not available to GPs before it reached the media.

Those are not the kinds of cases that would apply to Clause 20. Clause 20 is associated with the agency's power to issue general—I stress general—guidance on the management of outbreaks of food-borne illness. In other words, the agency might from time to time issue guidance material on the management of outbreaks much as we issue codes of practice under Section 40 of the Food Safety Act. The guidance that is covered in this clause, therefore, should not give rise to panic amongst the general public or enquiries from the media necessarily.

I agree with the principle that bodies like the agency should ensure that addressees receive guidance in time to deal with inquiries from the public or the media, or indeed other local bodies with an interest. I would certainly expect the agency to run its affairs efficiently and take all possible steps to ensure that people who need to have the information get it quickly as well as operating in a generally open and transparent manner. In relation to the clause I hope that what I have said reassures the noble Lord.

I turn to the publication of a notice period of not less than 20 working days. I reiterate the comments that my noble friend has made on a number of occasions this afternoon. We expect the agency to act in an open, transparent and consultative way. The amendment would require the agency to publish a written notice before it could do anything except issue guidance to local authorities and health authorities on the management outbreaks of food-borne illness. I am sure that is not what the noble Baroness intended. I assure her and other noble Lords that the agency will not be able to rush into things with undue haste. It will need, of course, to respond instantly in an emergency. Otherwise, it will generally be required to consult widely. It will always need to operate openly in relation to all those affected. Clause 22 ensures that. There is also a statutory duty to consult before making regulations under the Food Safety Act.

This amendment would be impractical to operate. in the spirit of the comments I have made, I would invite the noble Lord to withdraw the amendment.

Lord Luke

I am grateful to the Minister for his answer to Amendment No. 62. I beg leave to withdraw.

Amendment, by leave, withdrawn.

Clause 20 agreed to.

Clause 21 [Supplementary powers]:

[Amendment No. 63 not moved.]

Clause 21 agreed to.

Clause 22 [Statement of general objectives and practices]:

Lord Clement-Jones moved Amendment No. 64:

Page 11, line 11, after ("shall") insert (", following consultation with all interested parties including members of the public,")

The noble Lord said: This group of amendments, Amendments Nos 64 to 68, attempts to make a number of changes to Clause 22, relating to publication by the agency of its general objectives and the other objectives contained within Clause 22(2).

First, we believe that subsection (1) should place a duty on the agency to prepare and publish a statement of general objectives, only after consultation with interested parties. That should be a mandatory requirement under this clause.

Secondly, Amendment No. 65 extends the general objectives to ensure that not only its activities but also any administrative arrangements, such as the concordats between government departments and agencies, should be the subject of consultation.

Thirdly, in that self-same Clause 22(2)(a), the consultations should again be mandatory. The words "where appropriate" should be deleted and members of the public should have the right to be consulted on those concordats.

Fourthly, in Amendment No. 67, with regard the keeping of records in Clause 22(2)(c), the duty should not only extend to making sure that the records of the agency's decisions are kept and made available with a view to enabling members of the public to make informed judgments and so on, but also those decisions should be those of the committees of the agency and representatives of the agency. There are a number of differing intentions behind that group of amendments.

Finally, in Clause 22(7), there is again a belt and braces provision regarding consultation with members of the public. We believe that the agency should consult all interested parties, including members of the public, before the statement is finalised. It should also be ensured that the agency consults not just on its activities but on its administrative arrangements and those concordats. It is also important that the public should be consulted on those concordats as a right. I beg to move.

7.30 p.m.

Baroness Byford

I rise to speak to my Amendment No. 69 which asks the agency to submit an annual report to Parliament, setting out in its first statement its current objectives and how it intends to attain them.

Setting up a large, monolithic-like food standards agency is a mammoth task. We are very much exercised about the hows and the wherefores and the workings of it. We should not forget, however, that we need to look forward and envisage the future.

Were all produce to be labelled by country of origin and processing and packaging, with nutritional values measured, published and known down to the amount of the salt in a pre-dinner crisp, and were hygiene standards the envy of the world, the FSA would surely need, even then, to find new objectives.

Joking apart, most organisations require a view of their objectives on a regular basis, partly to ensure that they do not have too many to meet them adequately, and partly to ensure that they keep up with change. In the agency's case, the outcome of each regular review should be laid before Parliament and hence be open to informed scrutiny and discussion.

We feel that it is essential to match a statement of objectives with an assessment of the methods and resources which will be necessary to meet them. Hence it follows that any restatement should be accompanied by a matching section on how matters will be progressed. Indeed, in an earlier amendment we talked about a five-year review on pesticides and animal feeds, and I advised noble Lords that I would return to this issue later.

It is fair to remind your Lordships that schools, for example, are required to draw up an annual development plan which is scrutinised as part of the Ofsted inspection process. The Government have now added to that requirement that each LEA must also prepare an annual development plan which is also subject to an Ofsted examination, and this is behind the thinking and the reason why I speak to this amendment.

Baroness Wilcox

I rise to speak to Amendment No. 67. In addressing this amendment, I should first like to express my support for the sentiments of the wording in Clause 22(2)(c). The openness of the decision-making process is crucial to restoring public confidence in decision-making about food. Consumers need to be sure that all the factors and interests have been properly balanced in the decision-making process. Having it specified in legislation that, records of [the agency's] decisions, and the information on which they are based, are kept and made available with a view to enabling members of the public to make informed judgments about the way in which it is carrying out its functions". is a considerable step forward. I recall that the National Consumer Council proposed to the Select Committee looking at the draft freedom of information Bill that such sentiments should be included in a "purpose" clause for that legislation. The purpose of my amendment, however, is to ensure that this important provision will apply to a range of decision-making by the agency.

Perhaps the Minister will kindly respond to the following. Will the provision relate to decisions taken by the advisory committees of Wales, Scotland and Northern Ireland as established in Clause 5 of the Bill? Will it cover the decisions of the agency's advisory committees? The agency is due to provide the secretariat for some of the advisory committees, including those on the Microbiological Safety of Food and on Novel Foods and Processes. Will this provision apply to them?

How will the provision apply to committees where the agency is providing the secretariat jointly with a government department? For instance, the agency and Department of Health jointly will provide the secretariat for the Committee on Medical Aspects of Food and Nutrition Policy (COMA). Will they be open about the decisions taken there? Will the provision cover decision-making of bodies on which the agency has a representative? For example, the agency will nominate members on to the Advisory Committee on Pesticides and the Veterinary Products Committee; will this provision apply to them?

I hope that the Minister will be able to clarify these points. The decisions taken by many of these committees will be of considerable interest to consumers and have consequences for public health. Therefore I submit that the decision-making process should be as open as possible for them as well as for the agency's board itself.

Lord Hunt of Kings Heath

This is an important and interesting debate. We all share the desire that this agency will work effectively and restore public confidence. We all agree that one of the ways that public confidence will be restored and maintained is that the agency needs to act in an open, consultative and transparent way. I very much share that view. It is the philosophy that the Government have expressed in the White Paper and in terms of the drafting of this Bill. Although I would not recommend acceptance of the amendments that have been proposed in this debate, the spirit expressed by the movers of them are in fact going to be very much reflected in the practice of the agency.

I turn first to Amendment No. 64 which is concerned with the suggestion in relation to statements and the question of consultation. I am confident that the agency will wish to consult relevant parties during the preparation of the statement. As I have already said, we expect the agency to operate a consultative way by virtue of Clause 22 and the current drafting of the clause certainly allows it the option of deciding to go for formal consultation. It is right, however, that we should give the agency some discretion in deciding whether or not to do this. It is also worth making the point that once the statement is published, people will almost certainly comment upon it. I would also expect, as has been referred to in previous debate, that the agency will review the statement from time to time and that there will essentially be a developing, dynamic process of statements, working out in practice, feedback and revision of statements, which will be developing during the lifetime of the agency.

I turn to Amendment No. 65. I am glad to have the opportunity to say something about administrative concordats because they have been the subject of much interest. I should stress that these will not be legal documents. The purpose is to ensure effective working relationships between the agency and other government departments with which it deals regularly. Essentially, they are about the nuts and bolts of the agency's daily dealings with other departments and they will set out the way in which officials will deal with each other. Similar documentation has already been prepared and published between the devolved authorities and government departments. We would also expect the agency to develop similar good working relationships with a whole range of outside organisations such as consumer bodies, the Consumers' Association, local authorities, professional interest such as the Local Government Association and industry bodies as well and public health bodies.

The agency's own concordat documentation will be published. I expect the agency, which as I said will be open and consultative in its way of working, will want to have informal discussions with relevant bodies in the course of preparing those concordats. However, one should bear in mind that these are about internal working practices which are clearly mainly a matter for the two parties who will sign them. In any case, these concordats are, as I already said, nuts and bolts documents, by their nature administrative and not a matter to be mentioned in primary legislation. Subsection (2)(b), taken with subsection(2)(a), has already achieved the aim behind the amendment.

I turn to Amendment No. 66, which also concerns consultation with members of the public. I recognise how important it is for the general public to be properly involved in the agency's activities. I expect that they will be consulted on all possible occasions and certainly wish to see that happen. I have no doubt also that the agency will wish to use a variety of methods to involve the public, including the Internet, conferences, market research, open meetings and all the other paraphernalia of consultation and involvement that is used by modern organisations.

That will obviously provide a rich source of information and views to the agency. One has to say, however, that there will be some occasions when it will be impossible for the agency to consult the public on a particular issue and take the proper action to protect the public health. I am thinking here of an emergency where there is an imminent threat to food safety. On these occasions, it would still be possible for the agency to invite some consumer representatives for discussion but, clearly, it would not then be able to consult the public at large. I hope the Committee will agree that the phrase "where appropriate" is, for good reasons, a practicality and a necessary qualification in this part of the Bill.

I turn to Amendment No. 67. I welcome the debate about the transparency of the agency and its advisory committees and particularly the comments made by the noble Baroness, Lady Wilcox. Let me stress again that the agency's decision-making processes will be open, transparent and consultative in order that the interested parties, including representatives of the public, can see the basis on which decisions have been taken and are able to reach an informed judgment about the quality of the agency's processes and decisions.

Although this applies to the agency itself, there is no reason why the principles should not apply to the advisory committees. In practice they will because the committees are already operating with a much greater degree of openness, for example publishing agendas, papers and minutes and holding open meetings. The agency will have to take the advisory committees' advice into account in taking its decisions. Therefore the information they provide will be the type of information that the agency will make publicly available under Clause 22.

Finally, I turn to Amendment No. 69 which concerns the submitting of the agency's statement of objectives—

[The Sitting was suspended for a Division in the House from 7.43 to 7.53 p.m.]

Lord Hunt of Kings Heath

I was responding to Amendment No. 67. There are two other points I should make on this. The noble Baroness raised the issue of a committee such as COMA and asked what the position is there. This is a Department of Health-led committee where the agency will have a share of the secretariat. My understanding is that the general principles that I have enunciated will apply to that committee. It is more difficult to comment on the other area the noble Baroness mentioned which concerns committees or bodies to which the agency nominates representatives.

Baroness Wilcox

I hope I may stop the Minister there.

I hear what the Minister is saying but I hope that he will discuss the Advisory Committee on the Microbiological Safety of Food and the Advisory Committee on Novel Foods and Processes because they are food committees.

Lord Hunt of Kings Heath

The principles that I enunciated would apply to those committees. Where I have some difficulty is in relation to the other point the noble Baroness raised which concerned committees to which the agency nominates representatives.

I turn to Amendment No. 69 which concerns the laying of the agency's statement of objectives before Parliament. I agree with the aim of the amendment. First, the agency cannot simply produce its statement and never review or revise it. As I said earlier, I see this as a dynamic process where the statement is subject to revision. I also agree that the statement should be laid before Parliament. Clause 22 already gives the agency power to revise the statement and submit it to the appropriate authorities. I believe that it is right to allow the agency some discretion to decide when to go through the whole process of revising the statement, rather than to make it a duty to do this each year. We should also bear in mind that this is a statement of the agency's general objectives and principles, in effect its guiding principles, which will not necessarily change each year. Its detailed work programme will each year be set out in an annual business plan which will be published so that members of the public will be able to find out about the agency's plans and how it intends to put those into effect. I hope that what I have said reassures noble Lords about the statement of general objectives and principles. It is not something which will be produced just once and then put on the shelf. I am confident that it will provide the framework for the agency's work, and as such it will be revised from time to time and the results will be considered in an open and transparent way. I hope that I have given the assurances that noble Lords require in this area, and would invite noble Lords to withdraw their amendments.

Baroness Byford

Before the noble Lord sits down I would like to come back to him on his response to my Amendment No. 69. While I accept that he is pleading for flexibility on this review, schools—which I mentioned in my comments to him—have no such flexibility. The food standards agency which we are setting up is a very important body, and I felt quite strongly that there should be a review on an annual basis. My amendment sought to provide nothing other than that. While I hear what the Minister has to say, I am not inclined to change my enthusiasm for it.

Lord Hunt of Kings Heath

It may be helpful if I say that the business plan of the agency will be published annually, and therefore that might be more akin to the kind of report about which the noble Baroness is talking. The agency may decide that the statement of general principles needs to be revised at very frequent intervals, or it may decide that those principles hold good for a period of time. It is there that we need the flexibility.

Baroness Wilcox

I take a moment to read exactly what my amendment had said, and the kind response of the Minister. I admit that I thought I would be very lucky if I had agency representatives on other committees. I can quite see why other committees might wish to do other things their way, but I suspect I do not have committees of the agency either. At this stage I should have liked an assurance which is better than that which I have been given. A little more clarity would be helpful.

8 p.m.

Lord Hunt of Kings Heath

I hope I said what the noble Baroness required. I said that there is no reason why the same principles that apply to the agency's decision-making process themselves should not apply to the advisory committees. Probably I was speaking when the Division bell went!

Baroness Wilcox

I apologise if I appear to be wasting time. Do I take it, therefore, that when we come back to the next stage it will read "the decision of the agency and its committees"?

Lord Hunt of Kings Heath

No, it is not necessary for that to happen. Clause 23 of the Bill already provides that the agency has to take into account the advisory committees' advice in making decisions and that the information they provide will be the type of information that the agency will make publicly available under Clause 22.

Baroness Wilcox

I shall of course withdraw the amendment, although I must say that anything that closes down rather than opens up anything at all to do with this new food agency will be a retrograde step.

Lord Clement-Jones

This has been a very interesting debate and I should like to thank all who have contributed to it. I thank the Minister for his "curate's egg" reply, and I shall explain that in a minute.

First, I welcomed his statement that he believes the spirit of the amendments will be reflected in the practice of the agency. That is a good statement to make. Then in reverse order of welcoming, I welcomed some of the definite statements that he made. He said that the agency concordats will be published, although at the same time he said that these were rather "below stairs" arrangements and not something one would wish to include in primary legislation. I am not quite sure whether one could see those as purely administrative. As to the way in which the responsibilities are shared out, it is rather important that members of the general public know how this is done—it should be made public. However, I welcome the fact that he said they will be published.

Secondly, I welcome the definite statement from the Minister with regard to the committees. The noble Baroness, Lady Wilcox, tried to tease out the precise nature of the Minister's undertaking, but I heard the Minister say that, in practice, the agency will make available the information of the committees. I welcome that unequivocal statement.

It is when I come to other areas that I become rather less satisfied with the Minister's reply. When he was talking about the way in which the public are to be consulted, he was confident that the agency will do something—he expected that they would. The clause allowed the agency to do something and he had no doubt that the agency would do something. Those are all flags to me, indicating that we can say what we like during the passage of this Bill. I have no doubt at all that Minister's intentions are absolutely genuine, as were the statements in the White Paper, but it is not enshrined in legislation. The Minister was quite frank and said they must have discretion, and that there are some occasions when that kind of consultation will not be possible. In a sense, he has not minced his words. However, all those areas of uncertainty give rise to doubt about whether the primary legislation is sufficiently specific. While we will withdraw this amendment at this stage, we shall read. Hansard very carefully and it may well be that we will want to come back at Report stage. In the meantime,, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 65 to 69 not moved.]

Clause 22 agreed to.

Clause 23 [Consideration of objectives, risks, costs and benefits, etc.]:

Lord Clement-Jones moved Amendment No. 70:

Page 12, line 15, after ("costs") insert(", including any potential long-term costs to public health,")

The noble Lord said: This is where we come to the important meat of this Bill. That is not intended to be a pun, but there are so many English metaphors relating to food and—I dare say?—the last thing we want to mention at this time of night is food!

Clause 23 is important and I welcome the existing contents, but it needs further amplification. Amendment No. 70 adds on to the likely costs and benefits of the exercise or non-exercise of the power., in any manner which the agency is considering, as one of those matters to be taken into account in the exercise of the agency's power, the words: including any potential long-term costs to public health". In view of the history of food safety in this country, this is of enormous importance. It is important that the agency considers the potential long-term costs to public health in the exercise of all of its powers. It needs to take a long-term view and it cannot afford, in public health terms, to take the short-term view. Indeed, one could say that Amendment No. 72 says the same thing in a different way—the precautionary principle is trying to take the long-term view. It is taking the cautious view, not a balance of probabilities view. In a sense, particularly in the realm of novel foods or GM foods, it is placing the burden of proof on those who wish to introduce novel foods or genetically modified foods, for instance. I put it no higher than that.

Those fall into the same category and I believe they put an essential additional duty on the agency. I believe that that is necessary not only on their own merits but also to give public confidence in the agency itself. It is the case that on a number of occasions, certainly in reply to questions from myself, Ministers have stated that a precautionary principle is applied by both the Department of Health and the Ministry of Agriculture. I do not believe that that is something novel; I do not believe it is something that is not already applied; but I believe that it should be made explicit on the face of the Bill.

The second major area for us is the whole question of impact on the small producer. I must apologise to the Committee that Amendment No. 73A is so late. It is late by oversight, not because it is an afterthought. It is central to our thinking on the exercise of the powers of the agency.

On Second Reading I took the liberty of discussing the issue of the Ducket's Cheese case at some length. It seems to me that although at the end of the day the department did not overreach itself, the issues raised by that case are of sufficient importance to give rise to an amendment to the Bill. The facts behind that case were that a stock of cheese valued at £50,000 was destroyed when no sample of that cheese showed the presence of E-coli. That demonstrates to me the need for a safeguard of the type that is introduced. The small food processor, craft producers and small food retailers must have the confidence that those powers will be exercised proportionately. That is a European legislative word, but it is exactly the phrase that best describes the way that these powers should be used. I look forward to the Minister's reply. This is a vital part of the way in which the agency should exercise its powers, we believe. I beg to move.

Earl Baldwin of Bewdley

I hope the Committee will forgive me. I have a longstanding engagement at a dinner that has already begun as a farewell to the hereditaries among the Cross Bench Peers. It is a pity I mentioned that in the context! I have had a word with the noble Baroness and she does not mind if I pick up her reply in Hansard afterwards.

I shall be as brief as I can. I am looking particularly at Amendments Nos. 70 and 72 to which I have put my name and at the short-term timeframe that is usually considered with food safety, when I think we need to be certain that we look at the longer-term things with public health: the chronic, long-term problems which are much harder to track down and a good deal more difficult to treat. I am thinking of things like the cocktail of low-level additives and colourings and pesticides in our diet where even the best efforts of toxicologists cannot give us all the information we want. I am thinking of GM foods and all that they entail. There was room for a precautionary principle with BSE. All these things are very important.

If we look beyond the toxicology to the broader field of nutrition, we come up against the evidence of the harmful effects of the standard western diet. Yesterday I quoted from a recent WHO report on that. It is worth noting that primitive people never got the cancers, the diabetes, the tooth decay that modern industrial man and woman are prey to. Heart diseases can take half a lifetime to manifest themselves. As with cancer, the seeds are sown long before in the kind of diet that young people choose.

There was a particularly interesting thing during the summer. I wrote a letter to The Times about it which it did not publish. It has just occurred to me that I can get it published in Hansard at no cost: Sir, You report that researchers have shown that a low-calorie diet may slow down the ageing process. This may 'lead to the development of drugs' to make us live longer. Why not just eat a low calorie diet? My point obviously was in my concern that we are a very drug-orientated society in terms of medicine, but the point for this Committee is that there is some interesting research—admittedly, it has not got very far— suggesting that if we consumed far less calories we would be healthier and live longer. That could be something that the agency could possibly look at. It would be most unfortunate if the food standards agency did not take that on board. The message is not getting across.

It is not popular of course. We dealt with the business of advice to the public yesterday, but it is a nettle that needs to be grasped and the sooner the better before we go too far down the wrong track. Of all the long-term risks to public health, the refined, packaged, animal-based, salt-laden, nutrient-rich western diet is possibly the greatest and, on past evidence, this is not an easy message for governments to trumpet. So the incorporation of these amendments would make it more likely that we get the information we need to live to a healthy old age.

Baroness Byford

I speak to my Amendment No. 71 which asks the Government to include the words, whether it is possible simultaneously to reduce the burden or cost (or both) of bureaucracy elsewhere". As the Bill stands, the agency has no duty to attempt to control either its own costs or the costs caused to others by its requirements, unless I misread the Bill and perhaps the noble Earl, Lord Baldwin of Bewdley, will tell me I have.

We feel that is wrong from the point of view of the taxpayer who, particularly in Scotland, Wales and Northern Ireland, will be able to see an annual sum of money paid over to the agency for the support of those activities that cannot be funded by the levy. It is also wrong from the point of view that the levy payer needs to know that he will not be paying an ever-widening and deepening black hole. For instance, on 29th June this year, in a Written Answer to me, the noble Lord, Lord Donoughue, confirmed that it was some 36 months since any spinal cord was found attached to a bovine carcass during an abattoir inspection. That is indeed good news that we all welcome. However, I understand it to mean that the measures put in place to stop any BSE-infected meat leaving abattoirs have been successful. I hope that powers will be considered even now as to how that burden of measures can be reduced without risking the increase of infection.

We believe it is both possible and reasonable for the agency to have continuous regard to the control of costs without jeopardising the successful pursuit of food standards.

Perhaps I may pick up on a point that was raised earlier. I too would like to speak briefly on the effect that some of the requirements will have for businesses in long-term planning. It is not easy to switch and direction needs to be given so that they can plan ahead. It affects small businesses more than larger businesses. I should like to include those as well in my remarks.

8.15 pm

Lord Luke

As regards Amendment No. 73, the Government's Better Regulation Task Force stated in its report on the principles of good regulation that government should be satisfied that regulations are necessary, fair, effective, balanced and enjoy a broad degree of public confidence. It prescribed five principles against which regulations and their enforcement should be measured—transparency, accountability, targeting, consistency and proportionality.

The Minister has already acknowledged the importance of transparency in a previous response. The noble Lord, Lord Clement-Jones, mentioned proportionality. It would be a good thing to see all those live on the face of the Bill.

Baroness Hayman

This is an interesting group of amendments. I have some sympathy with most of the points that have been made and the issues raised. I hope that I can reassure the Committee that it is not necessary to amend the Bill in order to ensure consideration of the broader points that have been brought forward.

I start with the issue of the long and short-term costs to public health. The noble Earl was right to point out to us that the long- term effects of nutrition and the effects on public health are something that all of us, throughout the debates on this Bill, recognised must be taken into account.

I have to say in my boring draftsman role, that since potential long-terms costs to public health are by their nature costs as well as being risks to public health, they are specified in subsection (2)(a) of the Bill as it stands. The agency will of course be required to consider all of those before exercising any power. It would be wrong to give greater emphasis to one type of cost rather than another. I hope that the Committee will be reassured that the agency, when assessing costs, is not only taking account of immediate costs to business, which is one side of the debate that we have had on this group of amendments. Also and equally it must take account of the costs to public health, both long and short term, if it fails to take action.

By Virtue of its main objective of protecting public health, the agency will have a clear remit in relation to all risks connected to food consumption. It should ultimately be for it to determine its priorities within that framework and to do some balancing of the different risks. That is one of the problems which confronts decision-makers all the time. If one were dealing only with one set of risks on one plane, then one can see quite simple directions of decision-making. It is when one is trying to balance and deal with different types of risk over different time frames that come together in the same set of decision-making that the difficulties occur.

Amendments Nos. 71, 73 and 73A are all, in various ways, about the principles of good regulation. As the noble Lord, Lord Luke, suggested, principles of better regulation have been established. I hope that it will reassure him to know that the agency, as a government department, will be required to observe the principles of better regulation, including the need to take a balanced and proportionate action to draw up a full regulatory impact assessment in proposing new legislation to Ministers. The Bill goes significantly further than that, however, by expressly giving force to these principles. In particular, Clause 23(2)(b) requires the agency to take account of the likely costs and benefits of the exercise or non-exercise of any power. This, together with the duty in Clause 22(2)(a), to consult wherever possible before acting, should ensure that the agency is alert to the consequences of its proposed action, in particular the likely burdens on business. Indeed, in Clause 22, the requirement to take account of risks goes further still, since that would include risk to businesses as well as to health.

The better regulation principles to which the noble Lord, Lord Luke, referred will represent an important basis for assessing the effectiveness of the agency as a regulatory body. Where they are not already given explicit force in the Bill, we expect the agency to make use of its statement of objectives and practices to expand upon them as necessary. We made clear that this would be done when we consulted on the draft Bill at the beginning of the year. However, in some respects the Bill as drafted already goes further than the better regulation principles themselves.

Turning to the issue of small producers and the need to encourage small businesses, the Government certainly recognise both their importance and the particular difficulties that regulation can impose on them. There was a short reference to that when we were talking about the costs of photocopying, for example, falling on a small rather than a large business. Amendment No. 73A adds nothing, however, to the substance of the Bill. Clause 23 already requires the agency to take account of risks, costs and benefits, which would include the probable effect on small businesses. There is, thus, a mechanism for taking into account the risks to businesses as well as those to public health. The agency would be accountable for any failure to observe these requirements.

When speaking to these amendments, the noble Lord, Lord Clement-Jones, referred to the issue of Ducket's Cheese, as he did on Second Reading. He recognised that the appeal judges agreed with the judicial review judge that the cheese that was held in that case was reasonably regarded as unsafe and that an emergency control order was indeed a proportionate response. We have discussed that issue of proportionality. Of course, we recognise the effect that an emergency control order may have on a small business but the power is used very rarely. Ultimately, however, that power is needed to protect public health. I have to say to the noble Lord that he should consider his argument about the proportionality principle which may sometimes not be immediately at one with the issue of preventing burdens on small businesses.

This is the difficulty to which I was trying to refer earlier when suggesting that, if one were only dealing with one set of risks at any one time and there were only one set of factors to consider, decision-making would be greatly simplified. A precautionary approach to issues of food safety is, as the noble Lord suggested, absolutely the right approach to take. It is certainly the approach that the Government are taking now. It is the approach that we would expect the food standards agency to take.

However, I would suggest to the noble Lord that it is not sensible to insert the words "the precautionary principle" into the Bill. There are definition problems here. The "precautionary principle" describes the process by which we pursue the protection of public health, a process by which we approach decision-making, but it does not have a clear definition or ground rules for its application. This means that if we placed his amendment on the face of the Bill, there would be unconditional acceptance of the precautionary principle as such.

We would all be aided by some greater definitions other than the one relating to the environment from which we are working here. We are looking at this point and I believe it will be considered sometime next year by the codex alimentarius. Common understandings of terms like the "precautionary principle" would be very helpful. However, I hope it will be reassuring to the noble Lord, Lord Clement-Jones, if I make clear that we believe this clause already provides the necessary basis on which to follow the kind of precautionary approach that I have described. Subsection (2)(a) reads that the agency shall take into account: the nature and magnitude of any risks to public health, or other risks, which are relevant to the decision (including any uncertainty as to the adequacy or reliability of the available information)". That is one of the issues at the forefront of the precautionary principle. In simple language, if there is any doubt about the evidence or lack of it, the agency should proceed with caution. So while I very much accept and agree with the noble Lord's argument that this is the type of approach that we should adopt in the workings of the agency, it is envisaged in the legislation as drafted.

Lord Desai

Perhaps I may add one point to what my noble friend has said. She has already anticipated the conflict between the two amendments introduced by the noble Lord. The precautionary principle says when in doubt, do not worry about financial cost; just worry about public health. It is very tempting to worry about financial cost. The precautionary principle would say, "To hell with the £50,000, stop, destroy it".

Secondly, I want to make one point about the precautionary principle and its applicability. This is just a little plug for my own institution. The London School of Economics is setting up a centre for risk and risk management where we will come to terms with how we define and manage some of these difficult issues. It is not an easy matter.

Lord Clement-Jones

I thank the Minister for that very useful reply, which unpacked for me quite a lot of the clause. It was a very helpful explanation. In reply to the noble Lord, Lord Desai, it is traditional in this House for people to make conflicting statements, quite often in the same speech, and indeed to table conflicting amendments at the same time, so I am following a perfectly proper tradition in this respect.

I recognise that in certain duties of the agency there will be a need to balance conflicting principles, and this is the essence of what most decision-makers have to do. On the one hand one is trying to achieve things for consumers in terms of openness and making sure that one does not prejudice the future, and on the other hand there are other interests which have to be upheld, whether they are those of large or small producers, scientists or whoever. That is the difficulty about legislating in this area.

My thrust was directed not towards the principles adopted but to the behaviour in practice. I do not want to argue the toss on the Ducket's case—the department had the legal decision in its favour—but there was still an argument to be had about the heavy-handed nature of the behaviour involved. Being a lawyer I certainly do not believe that winning a legal case always proves you are right. That is absolutely not the case and it allows us to chew over the facts of the case well after either plaintiff or defendant has won, and we can still have a view about that.

I thank the Minister and I shall consider her response extremely carefully. I suspect that she is entirely correct about the fact that the proportionary principle is already enshrined in Clause 23(2)(a)—the uncertainty point—but we will have a look at that and consider whether we shall come back at Report stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Byford had given notice of her intention to move Amendment No. 71:

Page 12, line 19, at end insert ("; and ( ) whether it is possible simultaneously to reduce the burden or cost (or both) of bureaucracy elsewhere")

The noble Baroness said: The Minister did not make any comment in response to my Amendment No. 71 and I should be quite grateful if she would. Obviously it has implications to require the agency to look and see whether some of the practices in which it is currently involved could be redressed, taken back, and that is why I spoke about it particularly. The example I gave was with regard to abattoirs, but it could be other issues as well. Perhaps I could give the Minister a chance to reply. I shall not move Amendment No. 71.

Baroness Hayman

I apologise to the noble Baroness if I did not make it clear, but in my dealing with the issue of better regulation I was applying those to Amendment No. 71, because the purport of that amendment is ensuring the agency takes full account of the possible cost burdens on those potentially affected by its activities, and takes balanced and proportionate action to draw up a full regulatory impact assessment in proposing new legislation, looking at the costs and benefits of the exercise or the non-exercise of any power.

Those governing principles are the same for the workings, for example, of the Meat Hygiene Service. I believe she gave the example where there is specified risk material whether the same level of inspection was necessary given that the level of inspection we have at the moment is proving effective. You can argue that one either way, but if you reduce the level of inspection you might reduce the level of compliance; or if the level of compliance is very high you might reduce the level of inspection. Those decisions can only be taken when you apply the principles of better regulation, so that you are not overweening in the regulatory process but you are sufficiently rigorous to ensure that regulation is taken through. We have a framework within the Bill, and within the principles of better regulation, for ensuring that that takes place.

8.30 p.m.

Baroness Byford

I am grateful to the noble Baroness for her response. If I have missed that point, I apologise. I am obviously anxious that we do not keep increasing burdens of responsibility on businesses, in whatever form that might take. Sometimes one needs to stand back and look at this matter. Within this particular clause I have not picked up that point. If the noble Minister is assuring me that it is included and I have missed it, I will listen to what she says, look at Hansard, and re-read the clause. I thank her for her comments.

[Amendment No. 71 not moved.]

[Amendment No. 72 not moved.]

Lord Luke had given notice of his intention to move Amendment No. 73:

Page 12, line 19, at end insert ("; and ( ) the need for transparency, accountability, targeting, consistency and proportionality in the conduct of its activities")

The noble Lord said: I just wish to thank the noble Baroness—

The Deputy Chairman of Committees

If the noble Lord wishes to speak, I shall have to call the amendment. If he wishes to speak, he is perfectly at liberty to do so.

Lord Luke

All I was going to do was to thank the Minister for her answer and beg leave to withdraw the amendment.

The Deputy Chairman of Committees

If the noble Baroness or anyone else wishes to contribute, they may. If no one else wishes to contribute, and the noble Lord wishes to withdraw the amendment, the amendment is withdrawn.

Lord Luke

I shall not move Amendment No. 73.

[Amendment No. 73 not moved.]

[Amendment No. 73A not moved.]

Clause 23 agreed to.

Clause 24 [Directions relating to breach of duty or to international obligations]:

Baroness Hayman moved Amendment No. 74:

Page 12, line 36, leave out paragraph (b) and insert— ("(b) by the Scottish Ministers (in so far as it is exercisable by them within devolved competence or by virtue of an Order in Council made under section 63 of the Scotland Act 1998);")

The noble Baroness said: With the permission of the Committee, in moving Amendment No. 74 I will also refer to Amendments Nos. 87, 88 and 99. I hope I can be brief in so doing. This is another set of rather technical amendments arising from devolution and from the fact—as Members of the Committee will be well aware—that food safety and food standards are devolved matters. We need to ensure that the Bill correctly reflects the position following the devolution legislation and takes account of the appropriate devolved responsibility.

We have an analogous set of amendments in relation to Northern Ireland. I recognise that we are dealing with these amendments at rather a late stage, but Members of the Committee will be aware that the effects of devolution have been developing over the past few months. Devolved bodies in Scotland and Wales only took up their powers on 1st July and we were therefore unable to make these technical changes earlier.

Given that explanation, and the fact that if Members of the Committee want further clarification on any of these points I will be happy to give it, I beg to move.

On Question, amendment agreed to.

Clause 24, as amended, agreed to.

Baroness Byford moved Amendment No. 75: After Clause 24, insert the following new clause—

APPEALS

(" .—(1) The Secretary of State shall set in place an appeals procedure under which individuals or bodies may appeal against decisions of the Agency.

(2) If an appeal is upheld the Secretary of State may give the Agency such directions as he may consider appropriate for remedying the situation.")

The noble Baroness said: In moving Amendment No. 75, I refer again to access to premises. This Bill gives the agency wide powers to enter premises to collect information and to demand co-operation and assistance. It also confers powers to enforce standards. Inevitably, there will be those who feel aggrieved, unfairly treated, or even victimised. I have been told that the recourse to law is open to every adult in the UK. The Minister should surely speed up the response and uniformity of treatment. It should also help to ensure that where the agency is found to be at fault the punishment is not limited to fiscal penalties but is made to fit the crime.

With the permission of the Committee, we shall discuss Amendment No. 111 at the same time, which my noble friend Lord Luke will address. I beg to move.

Lord Luke

Amendment No. 111 is coupled with Amendment No. 75. The object of the amendment is to amend the Food Safety Act 1990 by stipulating that its appeal procedure could apply to the agency whenever it acts as an enforcement authority.

Lord Clement-Jones

I support Amendment No. 75. It seems to us a very necessary addition to the Bill. It is an odd situation that the agency has absolute power, particularly where it has direct enforcement powers. That is an area where we feel most uncomfortable and we feel that the appeals procedure envisaged by this amendment would be of most value. We believe that the noble Baroness, Lady Byford, has put forward strong arguments in that regard.

Baroness Hayman

The agency that we are considering under the Bill will, like all government departments, be obliged to act reasonably and in accordance with the specific criteria set out in Clause 23, with costs and benefits., in reaching decisions or taking action. If it fails to do so it can be judicially reviewed. Moreover, the Bill provides for Ministers to intervene where the agency has deviated from those principles.

I quite understand the concern that those affected by the agency's actions should have access to an adequate system of redress. As we discussed earlier, the agency will certainly be transparent and open in its operation, and I believe that that should apply particularly to how it deals with complaints and representations about its decisions.

I agree that the agency should have procedures for dealing with complaints about the way in which it works, not only about the decisions that it has reached. I assure your Lordships that the agency will establish and publicise a procedure for dealing with such complaints, which would in any case be required by the service first principles of government. There will be in that sense a separate mechanism for people who are aggrieved about the workings of the agency to take up their complaints.

We do not believe, however, that we need to provide a separate new appeals mechanism in the Bill. There will be various routes to challenge the agency's decisions and actions, depending on the circumstances. The coverage of the procedures is fairly comprehensive, although the right route depends on exactly what the complaint or appeal relates to. That is why it is important that there is a complaints procedure for the whole agency which can, as necessary, refer people to the appropriate mechanism.

The agency's own complaints procedure is of course one of those mechanisms, but complaints may be made directly to ministers or they may be made via Members of Parliament. Complaints can also be made, if necessary, to the Parliamentary Commissioner for Administration. Appeals may be made to a Crown Court against the judgment given by a magistrates' court in a prosecution relating to regulations made under the Food Safety Act 1990.

There are also appeals under Section 37 of the Food Safety Act 1990 against the action of enforcement authorities. This would include local authorities and might cover matters such as appeals against food safety improvement notices and appeals against decisions to remove prohibition orders and notices. There is judicial review of any decision taken by the agency, and there could also be defamation action.

This illustrates that the range of fields and legislation with which the agency is dealing is varied, and we must recognise that there may be separate and distinct appeals procedures already in existence. The spirit of those moving the amendments is that there should be an over-arching channel by which complaints can be made as well as the appropriate mechanism for formal appeal, and I can assure Members of the Committee that that will take place.

The noble Lord, Lord Luke, in speaking to Amendment No. 111, referred to the Meat Hygiene Service and to the enforcement of dairy hygiene legislation for which the agency will resume policy responsibility.

Lord Luke

I thank the Minister for giving way. I did not refer to those things at all. Amendment No. 111 states: The decisions of the agency when acting as an enforcement authority shall be subject to the appeals procedure".

Baroness Hayman

I apologise to the noble Lord. When acting as an enforcement agency, the agency will be undertaking the responsibilities of the Meat Hygiene Service and the dairy hygiene business. That is when it will act as an enforcement authority rather than a food authority.

Lord Luke

I am grateful to the Minister for that explanation.

Lord Clement-Jones

Perhaps I might ask the Minister another question, which may be unfair. In terms of the local authority powers which can be taken over by the agency, is an appeal through the magistrates' courts equally available against the agency's enforcement actions?

8.45 p.m.

Baroness Hayman

As I understand it, there is an appeal when a local authority acts as a food authority in those areas. In the limited circumstances when we envisage the food standards agency would take over the role and act as a food authority, as I understand it, it would be subject to the same appeals procedure as if a local authority were taking that action. I should like to verify that, if the noble Lord will allow me, and write to him if I am incorrect.

The reason I misunderstood the amendment of the noble Lord, Lord Luke, was not only the technical issue, but because of the practical issue regarding the concern about the operation of the Meat Hygiene Service and the way in which appeals, reviews and complaints against that body could be undertaken. In fact, the chief executive of the Meat Hygiene Service recently established a working group to review the existing service's appeal procedures in co-operation with representatives of the meat industry. I understand that there have been good discussions at initial meetings of how the procedures might be improved.

I pay tribute to the noble Countess, Lady Mar, in her absence because she has been assiduous in following up this issue; in discussing how the Meat Hygiene Service's internal appeals procedure could be made more transparent and give reassurance to those who use it. On that basis, I would suggest that whatever the outcome of the exercises which are taking place to look at the MHS's internal appeals procedure, the critical point is that the appeals procedure laid down in Sections 37 and 39 of the 1990 Act already applies to the key elements of the enforcement of meat hygiene legislation. That power is also available to Ministers to extend that to licensing as appropriate. It is an important issue and I hope that we can make progress in the specific area of the Meat Hygiene Service. I hope that I have reassured noble Lords that we shall be looking to the agency itself to have an adequate system of redress both for complaints against its operations and its decisions and to set up a complaints procedure.

I hope too that by describing the other avenues that are open in specific circumstances, I have illustrated that it would not be sensible to set up one single separate appeals process for all the varied functions and responsibilities. There are quite technical differences, as we discovered, between food authorities and enforcement authorities as suggested by these amendments.

Lord Clement-Jones

Perhaps I may quickly make a point before the noble Baroness, Lady Byford, responds. The Minister has made some very valuable points here in terms of unpicking some of the elements. From my point of view, however, it would be helpful if she could expand on that, perhaps in correspondence. Particularly in the exercise of the direct enforcement powers, there seems to be a great deal of uncertainty and worry about the state of the appeals system. In fact, the Minister has clearly set out that in many of those areas the agency is treated as if it were a local authority, or the meat hygiene service and so on. It steps into the relevant shoes and those provisions apply. It would be useful if the Minister were able to elucidate on that. Clearly, it would be marvellous if she were able also to talk about what form of complaints system is envisaged; what degree of independence it would have from the agency and so on. We are probably too early in the process for that but it would be helpful if we could have clarification of some of the more legal aspects, perhaps by way of correspondence.

Baroness Byford

I thank the noble Lord for that interjection. It very much follows on from our concern that the appeals procedure should be totally separate—and seen to be so—from the agency itself. That is why our amendment suggests that the appeal should be upheld by the Secretary of State at a hand's distance away.

My next amendment, sadly for everybody, goes on to deal in a little more detail with the Meat Hygiene Service. It would seem more sensible, therefore—in view of the lateness of the hour and not because I would not wish to speak more to this—if at this stage I withdraw the amendment but say that we shall deal with it in more detail at Report Stage. Any further dialogue between us in relation to that may be extremely helpful.

Viscount Thurso

It may be helpful if the volume were turned down on the monitor so that it stops sounding in the middle of noble Lords' speeches. It is rather off-putting and is just a simple matter of turning down the volume.

The Deputy Chairman of Committees (Viscount Simon)

We shall see if it is effective.

Amendment, by leave, withdrawn.

Clause 25 agreed to.

Clause 26 [Statutory functions ceasing to be exercisable by the Minister of Agriculture, Fisheries and Food. 1985]:

Baroness Hayman moved Amendment No. 76:

Page 14, line 31, leave out subsection (2) and insert— ("(2) The functions of the Department of Agriculture for Northern Ireland under—

1. (a) Part I of the Food and Environment Protection Act 1985; and
2. (b) Part 11 of the 1991 Order (except Articles 8(7), 10(5) to (7), 11(5)10 (10), 18(1), 22 and 25(2)(e) and Schedule 1),

shall cease to be exercisable by that Department. (3) Subsections (1) and (2) do not affect enforcement functions under directions or subordinate legislation under the enactments mentioned in those subsections (or any power under those enactments to confer such functions in directions or subordinate legislation).")

On Question, amendment agreed to.

Clause 26, as amended, agreed to.

Baroness Byford moved Amendment No. 77: After Clause 26, insert the following new clause—

MEAT AND HYGIENE SERVICE

(". Responsibility for the Meat and Hygiene Service shall be assumed directly by the Secretary of State.")

The noble Baroness said: This amendment would request a new clause being added which should read: Responsibility for the Meat Hygiene Service'', the word "and" should not appear, shall be assumed directly by the Secretary of State".

In the amendments I have listed for this Bill I have tried not simply to revisit issues that were aired in another place. Rather we consider that most of these items have been rejected by the Government and have already received sufficient attention to make sure that the Government know their own mind and are happy to accept the consequences of their actions.

However, the Meat Hygiene Service is both essential to the production of safe meat and highly contentious in its method of operation and charging rates. It is moreover the subject of much argument in the methods and operations of the varying charging rates. We welcome the Government's decision to postpone the extra charges which were due to have been imposed in April this year which Nick Brown announced recently, but of that £150 million, £149 million would have been charged directly to producers to pay for inspections. In the short term this is welcomed, but in the long term it does not solve the overall problem on charges.

The Meat Hygiene Service is the subject of much argument over the implementation of the European directives. In the circumstances it is not right that such a service should answer directly to the agency responsible for both setting standards and enforcement of their implementation. This clause, if accepted, would mean that the food standards agency does the research and sets the standards, the Meat Hygiene Service implements the standards in the workplace, and the local authorities inspect the quality of the work done in the workplace. The food standards agency monitors the work which the local authorities do, and where necessary takes action to enforce the original standards.

Such a system would operate through a series of checks and balances which would help to ensure that our meat is safe to eat, but the safety has not been bought at unreasonable cost as the result of unnecessarily long-winded procedures. I hope that is clear.

Baroness Hayman

I fully accept what I believe the noble Baroness was suggesting; that her Amendment No. 111A could sensibly be discussed in the context of this amendment if Members of the Committee were comfortable with that. Then it would need to be moved at a later stage, but the two do hang together.

Baroness Byford

I am grateful to the Minister and I apologise to Members of the Committee, because it was an oversight that they were not together. I had not picked up the fact that it was due to come later.

In Section 40, the term "food authorities" should be amended to read "enforcement authorities", which should be defined as including food authorities, the Meat Hygiene Service, the Dairy Inspectorate, and any other enforcement agencies which the Minister, or the Secretary of State, may designate.

On appeals, the essential requirement for the appeals system is that it should make enforcement of Section 40 codes more accessible and transparent. At the moment, the only enforcement is by the direction of a Minister, but any person aggrieved by the failure of an enforcement authority to obey the provision of a code has no redress of right. He or she must rely on the grace and favour of the Minister, short of a judicial review, which as we know has its own limitations.

The idea, therefore, is that a person subject to the activities of an enforcement authority, which are in terms subject to a Section 40, code should be able to appeal to an independent tribunal in the event he or she believes that the code has not been obeyed or properly applied. The issue can then be heard by that tribunal and its findings conveyed to the Minister following which a direction could be made. There should be provision for an award of compensation to anyone who has been materially affected by a failure to obey the code. Arguably, the enforcement action, which is subject to abuse, should be stayed pending the outcome of an appeal with the proviso that the Minister may direct the implementation of any measures which he believes necessary to safeguard public health.

Additionally, it is essential that the decisions of the food standards agency, including the provision of advice, should be open to appeal by an independent tribunal. Also a refusal to withdraw advice should be capable of appeal.

To avoid complication, it would be useful to have a unified appeal system but with the discretion afforded to the tribunal chairman as to the panel members on any specific issue to permit specialists to hear a specific case. Given the butchers' licensing provisions which are to come into force, it would be useful if licence refusal or revocation appeals were also heard by this tribunal rather than by magistrates' courts as proposed. Equally, the Meat Hygiene Tribunal of England and Wales could be brought into this system and I thank the Minister for allowing me to bring this up at this stage. I beg to move.

Viscount Thurso

My Amendment No. 77A is grouped with these amendments but, given the lateness of the hour and the debate we have already had, I do not intend to move it and I will come back to it at a later stage.

9 p.m.

Baroness Hayman

Meat hygiene enforcement is a key element of food safety and a major factor in public confidence about food. The agency's main objective will be the protection of public health and excluding meat hygiene enforcement from its control would leave a major gap in its remit. The noble Baroness is right to say that this issue has been debated at some length and there is strong feeling on both sides.

We have come to the conclusion that it is right that the agency should retain oversight of both policy and enforcement in relation to meat hygiene. Separating them would be both artificial and unnecessary. There is an essential synergy between policy development on meat hygiene and its delivery through the enforcement process and we believe that it is important to retain close links between the two. Experience of recent years, I suggest, has surely taught us that if nothing else.

Because it is an executive agency without any separate identity, the Meat Hygiene Service does not need to be mentioned in primary legislation. Powers are provided, however, in Schedules 3 and 5 of the Bill, to enable the Secretary of State to name the agency as an enforcement authority. This, together with parallel amendments to the relevant meat hygiene regulations, will enable the agency to assume formal ownership of the MHS and carry out meat hygiene enforcement on behalf of the Secretary of State.

It might help Members of the Committee if I explain now how we propose to provide for control over the MHS, because the first amendment begs the question of what we mean by responsibility. In practice, day-to-day running of the Meath Hygiene Service will be the responsibility of its chief executive. He will be answerable for its executive decisions to the agency's chairman and members who, having overall responsibility for the agency's activities, will be publicly accountable for all aspects of the Meat Hygiene Service's work. The agency's chief executive is also liable to be summoned to appear before the Public Accounts Committee to give evidence on the discharge of its responsibility as accounting officer for the MHS. These activities will come under the general control of the Secretary of State who will be responsible for the key policy and legislative decisions governing the way in which the MHS operates.

While he will be publicly accountable for those decisions, he will not automatically be answerable for the executive operations of the MHS. We consider an important feature of the agency's arm's length relationship with Ministers, which the noble Baroness was supporting, is that it will take direct responsibility for those matters. On the basis of those considerations, I suggest that it would be misleading to provide in the Bill for the Secretary of State to take direct responsibility for the MHS. In particular, it would confuse the lines of accountability that I have already described and could raise unwarranted expectation about the level of involvement that the Secretary of State should have in operational matters. I believe also that it would be an inappropriate and serious erosion of the agency's ability to act in the interests of public health to keep the MHS outside the agency.

I hope, however, that what I described earlier in terms of the agency's own work—for example to set up a complaints' procedure with an element of independence in it—will reassure some of those who have had concerns about the workings of the agency. On that basis, I hope the noble Baroness, Lady Byford, will feel able to withdraw that particular amendment.

In relation to manuscript Amendment No. 111A, there is some misunderstanding as to the drafting. The noble Baroness, Lady Byford, referred to appeals mechanisms in relation to Section 40 codes. We have already debated the question of appeals fairly fully, and, as was suggested by the noble Baroness, Lady Byford, and the noble Lord, Lord Clement-Jones, I undertake to write to them setting out precisely how those appeal mechanisms would work. I will pick up the points made about Section 40 codes in that reply, but I simply add now that a court would normally take into consideration the contents of a code of practice in considering any particular case.

I believe that the amendment is designed to ensure that the enforcement work of the Meat Hygiene Service is susceptible to the same powers of direction currently applicable to local authorities. However, there are a number of serious difficulties with the amendment as it is currently drafted both in terms of what it seeks to achieve and in the drafting.

The noble Baroness, Lady Byford, may be aware that a technical government amendment in another place to the Bill was made that corrected the provision originally empowering the agency only to direct enforcement authorities on the implementation of Section 40 codes of practice. The problem with that was that Section 40 codes apply only to the work of food authorities—that is local authorities—and not to central enforcement authorities such as the Meat Hygiene Service.

Amendment No. 111A would have the effect of reversing that correction, and leave a factual error in the Bill because there would be a faulty reference to the Food Safety Act. It is not only on the matter of the technical deficiencies. On my earlier point about appeals in relation to Section 40 cases, in view of the lateness of the hour, my feeling is that neither my explanation nor people's understanding of it is perhaps of the quality that it would be were it earlier in the day. It would perhaps be helpful to the Committee if I wrote to noble Lords on these specific points.

Baroness Byford

I am grateful to the noble Minister. My powers of concentration and of getting information which we seek has reached the point of not being productive. I hope we will return to it at Report stage, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 77A not moved.]

Clause 27 [Notification of tests for food-borne disease]:

[Amendment No. 78 not moved.]

Clause 27 agreed to.

Clause 28 [Arrangements for sharing information about food-borne zoonoses]:

[Amendments Nos. 79 to 81 not moved.]

Clause 28 agreed to.

Clause 29 [Consultation on veterinary products]:

Lord Clement-Jones moved Amendment No. 82:

Page 16, line 19, leave out ("from time to time") and insert ("regularly")

The noble Lord said: We are getting to the final furlong so I will be extremely brief. It is a straightforward amendment. The Bill simply states that the consultation with the agency is "from time to time". We believe that the word "regularly" would impose a rather clearer duty on the various Ministers, Secretaries of State and so on, whether specified in Clause 29 or by the Schedule 3 amendments to other primary legislation. I beg to move.

Baroness Hayman

This is an issue of the need for the Civil Service lexicon, to which I have referred in other debates with the noble Lord, Lord Clement-Jones. 'The issue is whether "regularly" or "from time to time" gives greater assurance to the Committee and legislators that the consultation will actually take place, and at reasonable intervals, as the noble Lord was anxious to ensure. I have to assure him that "from time to time" does not necessarily mean infrequent or irregular contact. It is intended to give the flexibility to consult as often as circumstances require. That is preferable to "regularly" which could mean, for example, quinquennially, which I am sure would not be what the noble Lord would wish.

These are drafting points, but I am assured that one can ensure regularity better by putting "from time to time" rather than "regularly" in the Bill, counterintuitive though that may seem. It may be reassuring to the noble Lord if I tell him that there will be working agreements on how these consultations will take place within the concordat between the agency and other government departments. Those concordats will be publicly available and provide a more flexible way of ensuring that the contacts take place, and are seen to have taken place with sufficient regularity, but without requiring the more mechanistic approach of specifying the frequency in legislation. On that basis, I hope the noble Lord will feel able to withdraw his amendment.

Lord Clement-Jones

I thank the Minister for her assurance about the working agreements, which I am sure will be far more practical than the wording of any primary legislation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Clement-Jones had given notice of his intention to move Amendment No. 83:

Page 16, line 32, leave out subsection (3) and insert— ("(3) Section 118 of the Medicines Act 1968 (restrictions on disclosure of information) shall not apply in relation to the disclosure of information to the Agency for the purpose of a consultation under this section. (4) Where information of a description mentioned in section 118 of that Act is disclosed to the Agency for the purpose of such consultation, the Agency—

1. (a) shall take account of any considerations of confidentiality attaching to the information; but
2. (b) shall disclose the information (or any of it) for the purpose of any of its functions if it appears to the Agency to be in the public interest to do so.")

The noble Lord said: Because the Minister has explained to me that veterinary medicines are very adequately covered in the Bill, and that only a cannibal could put forward Amendment No. 83 on the basis that it covers medicines for human consumption, I do not move this amendment.

[Amendment No. 83 not moved.]

Baroness Hayman moved Amendment No. 84:

Page 16, line 35, at end insert— ("(4) This section applies to the Department of Health and Social Services for Northern Ireland and the Department of Agriculture for Northern Ireland as it applies to the Minister of Agriculture, Fisheries and Food.")

On Question, amendment agreed to.

Clause 29, as amended, agreed to.

Clause 30 [Animal feedingstuffs: Great Britain]:

Baroness Hayman moved Amendment No. 85:

Page 17, line 3, at end insert— ("(4A) The provision which may be made in an order under this section by virtue of section 37(1)(a) includes provision amending or repealing any enactment or subordinate legislation.")

On Question, amendment agreed to.

Clause 30, as amended, agreed to.

Clause 31 [Animal feedingstuffs: Northern Ireland]:

Baroness Hayman moved Amendment No. 86:

Page 17, leave out lines 20 to 22 and insert ("shall have the same power to make provision by order for Northern Ireland by reference to the 1991 Order as the Ministers have by virtue of section 30 to make provision by order for England and Wales or Scotland by reference to the 1990 Act.")

On Question, amendment agreed to.

Clause 31, as amended, agreed to.

Clause 32 [Modification of certain provisions of this Act]:

Baroness Hayman moved Amendment No. 87:

Page 17, line 25, leave out subsections (1) to (3) and insert— ("(1) Her Majesty may by Order in Council make such provision as She considers appropriate for modifying—

1. (a) the functions exercisable under this Act by any of the appropriate authorities (including functions exercisable jointly by two or more of them);
2. (b) the powers under this Act of either House of Parliament, the Scottish Parliament or the Northern Ireland Assembly;
3. (c) the constitution of the Agency.

(2) Without prejudice to the generality of subsection (1), provision made under paragraph (a) or (b) of that subsection may—

1. (a) confer on any one or more of the appropriate authorities functions (including powers to make subordinate legislation) which relate to anything connected with the Agency or its activities;
2. (b) confer powers on either House of Parliament, the Scottish Parliament or the Northern Ireland Assembly.

(3) Where provision is made under subsection (1)(a) or (b), the provision which may be made in the Order by virtue of section 37(1)(a) includes provision modifying functions of, or conferring functions on. the Agency or any other person in connection with any one or more of the appropriate authorities or with any body mentioned in subsection (1)(b). (3A) For the purposes of subsection (1)(c) the reference to the constitution of the Agency is a reference to the subject-matter of sections 2 to 5 and 39(7) (together with Schedules 1, 2 and 4). (3B) The provision which may be made by an Order under this section does not include provision modifying this section or section 33 (except that where provision is made under subsection (1)(c) the Order may make consequential amendments to subsection (3A)).")

On Question, amendment agreed to.

Clause 32, as amended, agreed to.

The Deputy Chairman of Committees

This may be a convenient moment for the Committee to adjourn until tomorrow at 4.30 p.m.

The Committee adjourned at twelve minutes past nine o'clock.