HL Deb 14 October 1999 vol 605 cc145-76GC

Thursday, 14th October 1999.

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

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

Clause 33 [Consequence of Agency losing certain functions]:

On Question, Whether Clause 33 shall stand part of the Bill?

Lord Mackay of Ardbrecknish

I oppose the Question that Clause 33 shall stand part of the Bill. To have a discussion about this part of the Bill, Clause 33 is as good a place as any.

If I read Clause 33 correctly, it means that at some time in the future it is possible, if the Scottish Parliament decides it, that it could set up a separate Scottish food agency from the agency being set up by the Bill. That is how I understand it; if I am wrong I shall be told.

If that is the case, we could have a situation where the Scottish food agency could be operating quite different standards and quite different rules and regulations from the agency in the rest of the United Kingdom. That perhaps would not matter if the Scottish food industry was operating to higher standards, but even if that were the case it would still cause problems for the food industry in Scotland.

When I spoke on the first day of Committee I pointed out the importance of fishing and fish processing in Scotland. Indeed, if my memory serves me right, the top four or five ports of landing by size of landing in the United Kingdom are in Scotland. The great bulk of fish caught by the British fishing fleet is landed in Scotland.

Much as we may eat a little fish in Scotland, we do not eat that much. Therefore a good deal of it has to come south or has to go overseas, in the case certainly of shellfish. I take fish as one example; it could be beef or anything else. My concern is that if we have a Scottish agency separate from the agency in the rest of the United Kingdom, and it it is operating different rules and regulations, producers could find themselves trying to operate parallel production: one line to satisfy the standards demanded by the Scottish agency and another to satisfy those demanded by the UK agency for its large English market.

It fills me with horror that, inside what is after all a 300-year-old common market, we would have a situation of non-tariff barriers. I do not want to be told that it would never happen that way because if that is so this provision should not be in the Bill. If something is not likely to happen because common sense dictates it should not happen, we certainly should not have a provision in the Bill that might bring it about. It would not involve the food standards agency but it could

At the moment the Chief Medical Officer in England has decided that it will be safe to sell beef-on-the-bone in England. The medical officers of health in Scotland and Wales have decided that they are not yet convinced and we have something of a deadlock on that subject.

If there are separate agencies the Committee will be able to see that we could have many more instances of the advice given by the agency or to the agency in one country being different from that given to the agency in another country.

The problems are obvious. While farmers are prepared to live with it for the moment, everyone knows that they will not happily live with it for very long. Certainly industry would not live with different standards being imposed north and south of the Border and then finding that the standards they used to meet their Scottish market were not adequate to meet their English one. It is so impracticable. It is incredible that the Government are serious about even contemplating the food standards agency being divided up, with one agency for Scotland and one for the rest of the United Kingdom.

I see that the noble Lord, Lord Sewel, is present for the debate. He is well aware of the issue. We have been over it many times. I am not rehearsing devolution—I accept entirely what has happened—but there are some bodies that we should think twice about devolving. The problem that we are having with the French at the moment is that the French food standards agency is saying no to British beef, which is bad enough inside the European single market. It would be 10 times worse if the same kind of situation were to arise within the single market of the United Kingdom.

I hope the Government can at least set my mind at rest on this matter and if my reading of the clause is correct, they can offer some explanation of how they think separate food standards agencies would work in the two parts of the United Kingdom. If they tell me it will never come about, then I suggest that these clauses should not be in the Bill.

The Earl of Selborne

I follow my noble friend because there is a similarity here with the time m hen the Nature Conservancy Council was split and the time in 1991 when English Nature, Scottish National Heritage and the Countryside Council for Wales took its place. There was another example of a United Kingdom organisation which had a job of setting standards—these were environmental standards: for example, standards for sites of special scientific interest. It was recognised—the point was made in a report of your Lordships' Select Committee on Science and Technology—that standards had to be UK based. Otherwise, there would have been total mayhem when it came to enforcing the standards in Brussels or indeed, as the case might have been, in an international forum such as CITES. What was determined then was that there should be a statutory committee, the Joint Nature Conservation Committee, which still continues in being. It had the job of ensuring that the component parts of what had been the Nature Conservancy Council—now the three country agencies— co-ordinated their activities in so far as setting standards was concerned.

I agree with my noble friend that it is far better not to put yourself in a position where you could quite easily have separate standards set within the United Kingdom, which had to be enforced in an international arena, or where advice had to be given to government on standards within the United Kingdom. It is totally unacceptable that standards should deviate between parts of the United Kingdom and for that reason, I agree entirely with my noble friend that any suggestion that either Scotland, or for that matter, Northern Ireland, should determine that there should be a separate agency within their area of responsibility will lead to great confusion.

At the very least, therefore, I should say that if it is decided to go this route of anticipating the day when the Scottish Parliament or the Northern Ireland Assembly may so determine the matter—this is very much a counsel of the second best—there should then be a contingency for a joint committee, such as the Joint Nature Conservation Committee. That would ensure that the agencies determining food standards are required to co-ordinate their activities. I therefore suggest that at least the Joint Nature Conservation Committee should be taken as a precedent in that respect.

Viscount Thurso

I decided that there are several things that the noble Lord, Lord Mackay, and I share. One of them is clearly "ichthyophilia" which, if my Greek is correct, is the love of fish. Beyond that, I have to say that we diverge. He has put two separate arguments into this interesting debate and I thank him for raising this matter, because it is very important that these things should be clarified. Yesterday, when we were discussing another matter he had brought up, he said that he had been rather a butterfly in the Committee. I do not object to that at all—I am delighted that he brings these matters before us because they are important and need to be dealt with. It is lovely to have him here, "stinging like a butterfly and floating like a bee"—I am sorry, it should be the other way round!

There are two distinct arguments. There is the argument as it relates quite precisely to this Bill, but there is also the underlying argument which goes right to the heart of devolution. As he has drawn our attention to the fact that the noble Lord, Lord Sewel, is far more competent to deal with these matters than ever I could be, I shall not go into that in great detail. Suffice to say that it seems that the effect of devolution was precisely to devolve certain competencies, which we all agreed on last year, to the Scottish Parliament.

There will always be certain anomalies. There will be moments, as the whole business of devolution develops from its current infancy into a more mature form of government, where things will appear, when taken in detail, to be awkward or odd. This is one of those things—clearly, it is more appropriate to have a UK agency, but we have devolved the competence to deal with these matters. There may indeed be circumstances where Scotland wishes to act on that, and I have no problem there. If Scotland wishes to act in matters of food standards and food safety, then let the Scottish Parliament act. Equally, however, it is quite appropriate for the UK Parliament to reserve to itself, through this clause, the right to deal with that circumstance if it arises.

I do not go down the route of saying that it will never happen and therefore we do not need it. It is unlikely that it will happen. It has gone through the Assembly of Wales and through the relevant committee in the Scottish Parliament and they have both agreed to the setting up and commended what has been done in this Bill, as I understand it. I do not want to pray in aid the Delegated Powers and Deregulation Committee report again, but that has also covered the matter.

The matter has been dealt with responsibly in the context of the inevitable anomalies that will occur with devolution. It is right that this clause be here to provide for a circumstance which, whilst unlikely, may arise.

Lord Sewel

As he was moving towards the conclusion of his comments, the noble Lord, Lord Mackay of Ardbrecknish, said he did not want to go over the devolution settlement but, in substance, that is what he was trying to do. We are faced with the inevitable consequence of the distribution of legislative competence established by the Scotland Act. That made it absolutely clear, and it was not a matter of great dispute at the time, that the Scottish Parliament would have legislative competence in the area which would include the food standards agency. That matter was generally accepted.

If that position is accepted—and the fundamental point is that nothing in this Bill can change that, because that legislative or statutory framework is established by the Scotland Act—this clause, whether it is in the Bill or not, does not and cannot disturb that statutory framework on the distribution of legislative competence between the two parliaments.

I invite the noble Lord, Lord Mackay, to see this clause as some kind of prudential provision, indicating what would happen if the Scottish Parliament decided to exercise the powers it undoubtedly has under the Scotland Bill—powers which all of us here, and certainly members of the Scottish Parliament, do not wish to see exercised in a way which would establish a separate Scottish food standards agency. However, because the legislative competence resides at the end of the day at the Scottish Parliament, there is a degree of common sense in indicating in this Bill what the process and the steps would be if that Parliament established its own food standards agency and how we would withdraw from what is now a UK body. It is a matter of sensible prudence to make the provisions clear in the Act, because there is a situation where there is legislative competence held by the Scottish Parliament and it agrees that it is a UK body. No one is in dispute about that, least of all the noble Lord, Lord Mackay of Ardbrecknish, so let us try not to build up something which does not exist.

Lord Rotherwick

Since we have now heard from the noble Lord, Lord Sewel, that there is a possibility of the Scottish Parliament exercising its powers—

Lord Sewel

I did not say there is a possibility of the Scottish Parliament exercising its powers or, if I did, I was mistaken. I was saying that the Scottish Parliament is more than content to go down the road of having a UK body but it is nevertheless the case that, in terms of the statutory framework established by the Scotland Act, the Scottish Parliament has legislative competence in this area.

4.45 p.m.

Lord Rotherwick

I am grateful to the noble Lord. I should more correctly have said "could" exercise its powers to have a separate food standards agency. Then one must go back again and explore the second clause which is all about how the agency is consisted. In the case that it could do this, provisions must exist to allow for the two members to be appointed by the Scottish Ministers to be taken back. I would ask the Minister to give an answer on the unlikely event of that happening.

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

We have had a succinct debate that has covered very clearly the issues that we have at stake here. As my noble friend Lord Sewel said, nothing in this Bill can change the legislative framework in which the decision was taken by Parliament, when passing the Scotland Act, that food safety and food standards were devolved matters and matters of competence for the Scottish Parliament.

That having been said, I can perhaps reassure the noble Lord, Lord Mackay of Ardbrecknish, that the case that he put, which I have put during Committee, that food safety is a matter that does not respect internal borders and, indeed, that we have a single market for food in the United Kingdom, is one that has been taken on board by the UK Parliament and by the devolved authorities. That is precisely why all those authorities have recognised the sense of having the UK agency and are setting up exactly that sort of agency. The food standards agency will work in a way that allows the UK to have shared access to the best scientific resources, avoids the need for duplication that separate agencies would bring and helps us to deliver consistent advice on food safety and standards across the country, which is in the interests of both consumers and producers of food.

The issue of the likelihood of change is not an imminent one. We have had very clear and distinct views from the Scottish Parliament on that matter. What is at stake here is whether we recognise as legislators that the possibility of change is there in the legislative framework; it is there in the Scotland Act, it is possible. The noble Lord, Lord Mackay of Ardbrecknish, said that he did not want to be told that it would never happen—never is a very long time. The possibility of people's views changing is envisaged in the legislative framework and it is, therefore, prudent that in this clause we make legislative provision for dealing with exactly the sorts of consequences, described by the noble Lord, Lord Rotherwick, of looking at what the effects would be on a UK agency and what consequential changes would have to be made. As I say, I do not in any way envisage that happening in the foreseeable future, but we are making prudent legislative provision against the possibility that at some further point in time the devolved authorities in Scotland and Northern Ireland, which have the power, make their own primary legislation to set up separate arrangements for food safety and standards or withdraw from some of the functions of the agency. These are the adjustments to the Food Standards Act in Clause 33; for example, the arrangement for the appointment of members, as the noble Lord, Lord Rotherwick pointed out, and the financial provisions and the transfer of any property rights, interest and liabilities as a result of changes in the structure of the agency.

Removing this provision would leave us without a principal procedure to put matters right. But perhaps even more importantly, I believe it would be sending a signal that Westminster does not accept the basis on which Parliament legislated. The fact that the Scottish Parliament has decided not to exercise those powers and wishes to be part of the UK agency is something we all welcome and would wish to preserve, but I do not think we can ignore the fact that that is not the basis on which Parliament legislated under the Scotland Act.

I can perhaps reassure the noble Lord, Lord Mackay, that some of the potential for there being different rules and regulations in different parts of the United Kingdom is not suddenly created by this possibility. We discussed the issue of greentop milk on the first day of the Committee. It is already possible for secondary legislation in Scotland to invoke a different regime in the areas of food safety and standards. It happens very infrequently, and it happens when there is a particular need for it, but we are not talking about a sudden change that would occur were Scotland—as we do not expect it to do, and as I do not believe there is any intention to do—at some point in the future to decide to set up a separate framework for exercising their competency in food safety and food standards.

This clause simply reflects the situation under devolution as it is, and gives a fallback position which I think is absolutely justifiable and, as the noble Viscount, Lord Thurso, said, was looked at specifically by the Delegated Powers and Deregulation Committee, which recognised that it is essential to put exactly that sort of provision in the Bill. I hope that members of the Committee will agree that the clause should stand part of the Bill.

The Earl of Selborne

Before my noble friend responds, will the Minister kindly say whether, in the cause of provident legislative provision, the issue should be addressed in the unlikely event—which we all accept is most unlikely—that the Scottish Parliament wishes to exercise the powers that devolve to it? In that unlikely event, would there be any merit in putting on the face of the Bill—again I add the words "provident legislative provision"—a requirement that at least the agencies should compare notes; in other words, have a statutory committee? Would that in any way help, or would it simply be unnecessary?

Baroness Hayman

I am not sure that it would help to place it on the face of the Bill. We are dealing here with the changes that would have to be made to this piece of legislation were that withdrawal to take place. I am absolutely certain that it would be sensible to have exactly that sort of structure, and that might well fall out of the consultation on the Order in Council that took place. But to set up a statutory committee for co-operation is almost recreating the structure that would be taken apart by the Scottish Parliament deciding to act in this way. We would have to look at what actually was being proposed, because there could be alternative routes that were taken dealing with that situation as it arises. I said that this was a prudent provision given that there was competence. It is not prudent to go through the next line of what we would do in terms of alternative structures, although I am sure that any UK government and any Scottish Parliament and Executive would wish to make proper arrangements for dealing with those sorts of interface issues to which he has referred.

Lord Mackay of Ardbrecknish

I am as unconvinced about this issue today as I was when we debated the devolution of these powers to the Scottish Parliament in the Scotland Bill. They are exactly the same issues I raised of there being an internal market in the United Kingdom with the possibility therefore of different standards being imposed.

Both the Minister and the noble Viscount, Lord Thurso, seemed to think that if the Delegated Powers and Deregulation Committee looked at the matter and was satisfied, that was somehow game, set and match. I have to tell the Minister and the noble Viscount that in fact the Delegated Powers and Deregulation Committee does not discuss the merits of the issue. The questions it asks itself are more to do with secondary legislative powers. For example, it asks itself whether this secondary legislation should be dealt with by affirmative or negative procedures. It asks whether the Henry VIII clauses are acceptable. This is a substantial Henry VIII clause, and I am not convinced that the noble and learned Lord, Lord Simon of Glaisdale, would consider it appropriate so to amend an Act of Parliament by secondary legislation that the Act was changed out of all recognition.

That is the logical consequence of what may happen. One changes it from being a United Kingdom statute to being an England-only statute. One has to go right back to many of the clauses, including Clause 2, and change the composition of the board. If I had been on the Delegated Powers and Deregulation Committee, I would have said that was closer to Henry VIII than I like, but the Delegated Powers and Deregulation Committee does not discuss the merits and demerits, whether it is right or wrong that the Scottish Parliament should have these powers. It discusses whether the legislative power in the Bill for dealing with secondary legislation is appropriate to what has been done. It does not say that the issue is acceptable; it says that the legislative way is either right or wrong.

We are right to look at the issue. We are being told that it would not be sensible to have two agencies in the United Kingdom, but we ought to allow for it. That is quite an interesting piece of law-making and I may apply it to another Bill.

Baroness Hayman

We are not saying that in this Bill; that has already been said in an Act of Parliament which is the Scotland Act. We are dealing with the consequences of what has already been decided by both Houses of Parliament.

Viscount Thurso

Before the noble Lord responds, perhaps I may add one further point. The statement has been made that no one can see this happening. We have a very good precedent in the matter of BSE, where the Northern Irish as a result of having a slightly different regime were able to go back to selling beef far faster than other parts of the United Kingdom. I can see in the example of fish, which the noble Lord has already mentioned, a situation where the Scottish Parliament might well wish to include something to aid it to sell abroad or for whatever other reasons. We cannot necessarily take the argument that because, as we see it, it is a UK agency, the Scottish Parliament would not necessarily find any area where it might wish to enact some legislation. It is a perfectly appropriate consequence of that that the agency in this legislation provides the ability to deal with the consequences.

Lord Mackay of Ardbrecknish

All I can say is that I hope on that day I am not involved in any of the food-processing industries if I have to set up two parallel lines in order to deal with my two markets. I rather fear that the Scottish market might be sacrificed in favour of a larger English one. The Government and the noble Viscount tell me that will never happen. If it will never happen, why are we not saying that we will have one agency in the United Kingdom? The Scotland Act does not refer to the need for two agencies in the United Kingdom Food Standards Bill. We could stick to one agency, and if at some time in the future we decided that the Scottish Parliament wanted to go its own way, we could come back to primary legislation. Then we could deal with issues such as the one raised by my noble friend Lord Selborne—that in the event of two agencies being set up there would have to be some kind of co-ordinating mechanism to make sure that we did not get into some very deep trouble both north and south of the border.

If the Government are doing all this as a precautionary principle—"we don't think it will happen but we have to make provision because the Scotland Act says we should"—why not go that step further and do as my noble friend suggests? That is, we should put something in on that precautionary principle to say that in the event of this happening some kind of joint committee should be set up to co-ordinate these matters and to allow a channel of communication between the two agencies.

I am glad that I raised this point because it is profoundly worrying. I suspect and hope that if I have done nothing else I have probably prevented any chance of a separate agency and distinctly separate standards being set up, because people in the industry would be extremely concerned. If the possibility is there in legislation, one is entitled to ask whether it might be carried out. We shall waste a great deal of time and paper if clause after clause are put in Bills in case one day we decide to do it. I am afraid I am of the view that in that case, we have primary legislation to do it; we do not do it by Orders in Council.

I know when I am beaten by Her Majesty's Government. I knew it in the devolution Bill and I know it now. However, will the noble Viscount, Lord Thurso, who is in the food business, explain to the food processors in Thurso that perhaps at some time in the future there might be separate agencies with separate rules for Scotland and England? I believe they would meet that with a fair degree of horror. They would certainly be campaigning against him in that case. But they campaigned against him anyway, as I recollect, in the elections to the Scottish Parliament.

5 p.m.

Viscount Thurso

They did, and I am delighted to say that I received more votes than any other party in the constituency in which I was campaigning.

Does the noble Lord not recognise that the Scots export to many countries in Europe, to America, to South America, and all over the world? Our wonderful smoked salmon that we both love goes everywhere in the world. It goes to all sorts of regulatory areas. I fail to see what is the great brouhaha about having some slightly different regulations between England and Scotland.

Lord Mackay of Ardbrecknish

Dare I say to the noble Viscount that England and Scotland are in one large internal market, which we have been in for 300 years and in which there is free trade? We all accept that if one goes to trade abroad in a foreign country one has to deal with the issues as they affect that foreign country. I hope the noble Viscount is not saying that he would be comfortable to have England treated like that.

Lord Sewel

Following the logic of the noble Lord's argument, I cannot resist asking a simple question. Is he advocating a European food standards agency?

Lord Mackay of Ardbrecknish

There is one being advocated. As far as looking at standards as non-tariff barriers, in a single market—and that includes Europe—on all these things the sooner we have common standards we all agree to, the better, because then there will not be the market distortion we are getting at the moment, for example, with the French being difficult. It helps everybody if we can all play to the same standards and the same rules. I do not believe that the noble Lord has managed to trap me at all on that. He underlines the importance of it.

I just hope that at some time in the future the other party who would like to do a little more division of the United Kingdom does not gain control of the Scottish Parliament, because those are exactly the kind of things it will use to help it on its merry way. The Government have delivered it all to them in pieces of legislation like this. I beg leave to withdraw the motion.

Motion, by leave, withdrawn.

Clause 33 agreed to.

Clause 34 agreed to.

Clause 35 [Devolution in Scotland]:

Baroness Hayman moved Amendment No. 88: Page 19, line 9, at end insert— ("(2) It is not outside the legislative competence of the Scottish Parliament, by virtue of the reservation of matters relating to the constitution mentioned in paragraph 1 of Schedule 5 to that Act, to remove, alter or confer relevant functions of the Agency which are exercisable in or as regards Scotland. (3) Nothing in subsection (2) affects any legislative competence of the Scottish Parliament apart from this section. (4) Relevant functions of the Agency in relation to Northern Ireland shall be regarded as functions of a Minister of the Crown for the purposes of paragraph 1(a) of Schedule 2 to the Northern Ireland Act 1998 (excepted matters). (5) In this section "relevant functions of the Agency" means functions relating to, or to matters connected with—

  1. (a) food safety or other interests of consumers in relation to food; or
  2. (b) the safety of animal feedingstuffs or other interests of users of animal feedingstuffs.")

On Question, amendment agreed to.

Clause 35, as amended, agreed to.

[Amendment No. 89 not moved.]

Clause 36 [Interpretation]:

Baroness Hayman moved Amendment No. 90: Page 19, leave out line 13

On Question, amendment agreed to.

[Amendment No. 91 not moved.]

Baroness Hayman moved Amendments Nos. 92 to 94: Page 19, line 24, at end insert ("; and

  1. "the 1991 Order" means the Food Safety (Northern Ireland) Order 1991")
Page 19, line 29, leave out subsection (3) and insert— ("(3) Expressions used—
  1. (a) as regards England and Wales and Scotland, in this Act and in the 1990 Act, or
  2. (b) as regards Northern Ireland, in this Act and the 1991 Order,
have, unless the context otherwise requires, the same meaning in this Act as in that Act or that Order (except that in this Act "animal" includes any bird or fish).") Page 19, line 33, after ("order)") insert (", or under the corresponding provision of Article 2(2) of the 1991 Order.")

On Question, amendments agreed to.

Clause 36, as amended, agreed to.

Clause 37 [Subordinate legislation]:

Baroness Hayman moved Amendment No. 95: Page 19, line 40, leave out subsection (2)

On Question, amendment agreed to.

Clause 37, as amended, agreed to.

Clause 38 agreed to.

Clause 39 [Financial provisions]

Baroness Hayman moved Amendment No. 96: Page 20, line 45, leave out ("enactment") and insert ("Act")

On Question, amendment agreed to.

Viscount Thurso moved Amendment No. 97: Page 21, line 9, at end insert — ("( ) Any funding made available to enforcement authorities for enforcing relevant legislation (as defined in section 15) shall be designated as being used by enforcement authorities for that purpose only.")

The noble Viscount said: This is a probing amendment. I am grateful to the Consumers' Association which suggested it to us. As I understand the situation, funds that have been made available to local authorities are not ring-fenced and they can, if they so wish, transfer them for other purposes. For example, I believe that additional money was recently given to local authorities following the Pennington Report to ensure that measures were taken to protect the public against E.coli but without any particular mechanism for ensuring that this was how the money was to be spent. The concern is that there needs to be a more effective mechanism for ensuring that moneys made available in this way are spent in the manner in which they are meant to be spent. Therefore I wish to know whether any such measure exists within the Bill, or whether this is something that we should consider. I beg to move.

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

It is important that local authorities take their enforcement duties seriously and devote sufficient resources to do that. I recognise that if you were to ring-fence the money to be given for this purpose, that is one route but it could only be done at the expense of a serious loss of independence of local government. The great majority of central government funding for local authorities is not hypothecated, which is consistent with the independence of local authorities and, indeed, consistent with the importance that the Government attach to local accountability for local spending and taxation decisions.

I say to the noble Viscount that we have no plans to ring-fence food law enforcement resources. We strongly feel that it is a matter for local government to set their own priorities. I am sad that the noble Lord, Lord Clement-Jones, is engaged in moving other amendments in the main Chamber because yesterday he suggested that, if we were looking for consistency in amendments, we should not look to him. I often read the Liberal Democrats' election manifesto of two years ago where it says of local authorities: We will … give them greater discretion over spending". It seems rather inconsistent then to say that we want to ring-fence. I believe that local authorities are best placed to decide what their priorities should be and how they should spend their money, taking account of local circumstances. By and large, local authorities have done that effectively. However, the noble Viscount would be right to say that some local authorities have not done as well as others, and this is where the importance of monitoring on the part of the agency comes in, as we discussed at some length yesterday. I would expect the agency, in its function of monitoring, to have the ability to promote a much more consistent approach across all local authorities. It would also have the ability, of course, to make public the results of its monitoring work. That could be a very effective tool for bringing to the attention of both the people who lead local government in a particular area and also the public, as to whether there are any particular problems.

While it is important that we discuss this matter, it is best left to individual local authorities to make these decisions. We have a very important safeguard in the monitoring role of the agency.

Viscount Thurso

I am very grateful to the Minister for explaining the Government's position. The possibility is that if I kept speaking long enough and my noble friend Lord Clement-Jones, in another chamber, spoke reasonably briefly, he would come to respond himself. I shall be very brief.

The noble Lord mentioned the manifesto, of which he has obviously read more than I have. I fought that election without bothering to read the manifesto, but I was not a candidate!

On these Benches we have always been quite keen on hypothecation in certain areas. We certainly see a place for hypothecation but now is not the moment to argue about that. Suffice to say that, much as we admire many things about Gladstone, the Consolidated Fund is perhaps one of his negatives that might now bear a small amount of revision. We are delighted to see that the Government have taken on hypothecation, at least in principle, and that the Deputy Prime Minister has seen such value in its use. So there is a place for hypothecation.

Broadly I agree with the Minister that local government should be given freedom and discretion, but that does not mean that, in particular areas, some linkage should not be necessary—particularly where one is asking the local authority to enforce legislation, where there is a very distinct requirement, as opposed to the discretion; for example in leisure and tourism. It is perfectly right for a local authority to decide to spend a little less on tourism and leisure and a little more on looking after people in their area, whatever they want to do. This is a particular case, however, of seeing that enforcement takes place.

I have listened carefully to what the noble Lord said: I should like to read it in Hansard and see what my noble friend has to say. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hayman moved Amendment No. 98: Page 2 l, line 44, leave out ("the Northern Ireland Act 1998") and insert ("any Act")

On Question, amendment agreed to.

Clause 39, as amended, agreed to.

Clause 40 [Minor and consequential amendments and repeals]

Baroness Hayman moved Amendment No. 99: Page 22, line 4, at end insert— ("(2A) The National Assembly for Wales (Transfer of Functions) Order 1999 shall have effect, in relation to any Act mentioned in Schedule 1 to the Order, as if any provision of this Act amending that Act was in force immediately before the Order came into force.")

On Question, amendment agreed to.

Clause 40, as amended, agreed to.

[The Sitting was suspended for a Division in the House from 5.13 to 5.23 p.m.]

Clause 41 [Transfer of property, rights and liabilities to the Agency]:

Baroness Hayman moved Amendment No. 100: Page 22, line 15, leave out ("Food Safety (Northern Ireland) Order 1991") and insert ("1991 Order").

On Question, amendment agreed to.

Clause 41, as amended, agreed to.

Clause 42 [Power to make transitional provision etc.]:

Baroness Hayman moved Amendment No. 101: Page 23, line 11, leave out paragraph (b) and insert— ("(by) the First Minister and deputy First Minister acting jointly, in relation to provision dealing with transferred matters (within the meaning of section 4(1) of the Northern Ireland Act 1998).").

On Question, amendment agreed to.

Clause 42, as amended, agreed to.

Clause 43 [Short title, commencement and extent]:

Baroness Hayman moved Amendment No. 102: Page 23, line 14, after ("section") insert ("and paragraph 4(2) of Schedule 5)").

The noble Baroness said: In moving this amendment I will speak, with the permission of the Committee, to Amendments Nos. 116, 117, 119, 125, 126 and 128. This is a further group of technical amendments to Clause 43, Schedule 3 and Schedule 5 to the Bill, to take account of the changes made to the Food and Environment Protection Act 1985 following devolution. Under the Scotland Act 1998, functions under the Food and Environment Protection Act which are exercisable in or as regards Scotland have been transferred to Scottish Ministers. To facilitate this it was necessary to make some technical amendments to the Act, and that was done in June this year by an order made under the Scotland Act 1998.

These amendments are essential to avoid any inconsistencies in the statute book, and I would urge their acceptance by the Committee. I beg to move.

On Question, amendment agreed to.

Baroness Hayman moved Amendment No. 103: Page 23, line 19, at end insert— ("(3A) Until the day appointed under section 3(1) of the Northern Ireland Act 1998, this Act has effect with the substitution —

  1. (a) for references to the First Minister and deputy First Minister acting jointly, of references to a Northern Ireland Department;
  2. (b) for references to an Act of the Northern Ireland Assembly, of references to a Measure of the Northern Ireland Assembly; and
  3. (c) for references to transferred matters within the meaning of section 4(1) of the Northern Ireland Act 1998, of references to transferred matters within the meaning of section 43(2) of the Northern Ireland Constitution Act 1973;
  4. (d) for references to paragraph 1(a) of Schedule 2 to the Northern Ireland Act 1998, of references to paragraph 1(a) of Schedule 2 to the Northern Ireland Constitution Act 1973.")

On Question, amendment agreed to.

Clause 43, as amended, agreed to.

Schedule 1 [Constitution etc. of the Agency]:

Viscount Thurso

moved Amendment No. 103A: Page 25, line 33, at end insert—

("Declaration of interests, etc.

13. Proposed members of the Agency shall complete a declaration detailing their business interests, whether they have been made bankrupt, been a party to voluntary arrangements, whether there are any judgements against them, whether they have been convicted of any offence involving fraud or dishonesty or an offence under legislation (whether or not of the United Kingdom) relating to companies (including insider dealing), building societies, banking or other financial services, or if they have been disqualified as a director or of any other material information, and this declaration should be publicly available for inspection one month before appointment.")

The noble Viscount said: This again is by way of a probing amendment. I had rather hoped that my noble friend Lord Clement-Jones would be here to do the probing, but in his absence I shall do my best. Essentially this is about trying to see what the Government's thinking is in relation to the probity of those who are going to be members of the agency. I am sure noble Lords are aware that when one becomes a director and one's company is listed on the Stock Exchange, one has a very complicated form to fill out which goes into an immense amount of detail. The Stock Exchange—as a number of other bodies—takes a tremendous amount of care that people who are to be directors of public companies are the right sort of people, do not have criminal records, have riot been bankrupt, and declare in all ways possible their interest and their probity.

We should like to know whether people who are appointed to government bodies or government agencies have to go through a similar process. It may well be that there is an existing process, about which I do not know, and that may be the simple answer the Minister will give me. If that is the case, I should very much like to have it on the record. If that is not the case, I should like to explore why that is so and whether we should, in fact, have some mechanism. We have a duty of care to ensure that people who are to sit on bodies such as this agency—from whom we are going to expect a good deal and in whom the public are going to put a great deal of trust—are the right people. I beg to move.

Baroness Byford

Before the Minister replies, I should like to refer to the whole question of age, which I do not recollect seeing included. So many committees to which one puts one's name forward have an age limit and I wondered whether that applies in this case. I support the support.

Lord Hunt of Kings Heath

I am happy to answer the first point made by the noble Baroness, Lady Byford, immediately and say there is no age limit, and I am very glad to do that. I listened with great interest to the noble Viscount and I accept very much the need and responsibility for a great deal of care to be put into the process of appointment in ensuring that the people who are appointed are of a very high standard. I do not think any noble Lord would disagree with that.

I am grateful also for the opportunity to tell your Lordships a little more about the process of appointment and how we will ensure that the points raised by the noble Viscount are adequately covered. I have no doubt that getting very high quality people with leadership skills as members of the agency is crucial to its success and in ensuring that the public have great confidence in what it is doing.

We think that the Bill's provision contained in Clause 2(3)(b) ensures that the question of conflict of interest will be considered when appointing members. A provision in paragraph 9 on publishing the register of members' interests also ensures that this information is in the public domain.

I also draw the Committee's attention to a change made to the Bill in another place where the Government accepted an Opposition amendment to give the agency a duty to publish a register of members' interests. I am sure the Committee will agree that this is a very important guarantee of openness and transparency.

I recognise the anxiety about conflicts of interests. If the appointments process failed to assess this matter thoroughly the consequences could clearly be serious. I need hardly say that the appointments process in any case has been conducted under Nolan rules. These require applicants to sign a declaration about conflicts of interests. The information supplied to applicants made it clear that it was essential for all agency members to serve without any actual or perceived significant conflict of interest. The interviewing panels were and are scrutinising the information supplied by applicants in the declaration. Application forms and CVs are very important as regards the probing of applicants at an interview.

We have said all along that the people appointed to the agency will be appointed on the basis of their individual qualities and experience, not to represent particular interests. On that basis we have not invited any organisations to propose people for membership. Indeed we placed advertisements in June, inviting individuals to apply, and we made it clear that we would not consider anyone unless he or she had submitted an application. I am pleased to say that there was a good response and over 120 people applied for the posts of chair and deputy, and well over 600 people applied to serve as members.

An interview panel made up of representatives from the Department of Health, from Scotland, Wales and Northern Ireland, with the Parliamentary Commissioner for Standards as the independent assessor, has now considered all the applications for the posts of chair and deputy. The Secretary of State and his equivalents are now considering the shortlist and we expect an announcement in the next few weeks. As regards members, interview panels are now considering member applications. Again, it is hoped that those who are appointed will be announced in December. I hope I have indicated that these appointments are being conducted in a rigorous way which will ensure that the chair, deputy and members of the agency will be people of the highest calibre, integrity and probity. That, of course, is absolutely right if this agency is to get off on the right foot, as we all wish. I hope that I have reassured the noble Viscount on that.

5.30 p.m.

Baroness Byford

Before my noble friend replies, I ask the Minister a question following on from yesterday's discussions when my noble friend Lord Rotherwick, who is not in his seat at the moment, raised the whole question of the make-up of the committee of 12 members.

I know that notices have gone out and people have put their names forward, but can the Minister clarify whether any appointments will be made before this Bill has reached the statute book? That might be of concern to us. What is the position?

Lord Clement-Jones

Perhaps I may ask another question, so that the Minister has to rise again only once. In his response I heard him talk about Schedule 2 in terms of the declaration of interests. Can he give chapter and verse, because I must confess that I have looked through it and I cannot see the relevant wording. When we composed the amendment, we certainly looked quite carefully at the Bill to see what requirements it contained as regards the declaration. I know that the Minister referred to the substantive clause, but there was a further reference to the schedule in what he said which I could not quite understand.

Lord Hunt of Kings Heath

That was my fault—I should have said paragraph 9 of Schedule 1. If I confused the noble Lord by not mentioning the schedule, I apologise.

As far as the other point made by the noble Baroness is concerned, my understanding is that those appointments will be made after the Bill is cleared.

Viscount Thurso

I am grateful for that reply, both for the fact that the noble Lord, Lord Hunt, has accepted the spirit in which we moved the amendment and for his reassurance as to the examination of candidates to ensure both the quality that they will be required to display and an open declaration of their interests.

I am grateful for the point made by the noble Baroness, Lady Byford, in relation to age. I had not thought of it, but it is a valid one. As the years go by, I think of it more and more. I am equally pleased that the Minister was able to reassure the Committee.

There was one point in the Minister's reply that I found particularly important, and with which I agree. He said that people will be appointed as individuals to act—if I can coin a phrase from your Lordship's House—"on their own honour". It is vastly better than having a bunch of people sent in by various representational sections which always ends up with the wrong kind of politics. I am very pleased that people are being appointed for their individual ability and that some experience may not preclude them from being appointed.

In the light of the Minister's response, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 agreed to.

Schedule 2 [Advisory committees]:

Lord Clement-Jones moved Amendment No. 104: Page 25, line 43, at end insert— ("( ) Before appointing a person as chairman or member of the advisory committee, the authority making the appointment shall have regard to the desirability of securing that a variety of skills and experience is available among the members of the committee (including experience in matters related to food safety and standards including nutrition and labelling or other interests of consumers in relation to food).")

The noble Lord said: Far be it for me to praise government drafting, but Clause 2(3)(a) is admirable in its effect on the way in which the agency itself will be made up. That is wording to which we can all subscribe as far as it applies to the agency itself in terms of ensuring that there is a variety of skills available to members of the agency. It goes on at greater length in terms of the experience relating to food safety or other consumers' interests. That is an excellent assurance to members of the public that the agency 'will not just be sectoral in the way that it is composed.

By the same token, consumer organisations feel that they ought to be made explicit in terms of the advisory committees of the agency, and the purport of this group of amendments, Amendments Nos. 104, 106, 109 and 110, is designed to reflect the same wording in so far as they reflect the other advisory committees for Northern Ireland, Scotland and Wales, where they are set up for the regions of England, and any other advisory committees.

That kind of safeguard is needed, but I cannot see that it is necessarily encompassed within Clause 2(3)(a) itself, and I do not know that one could read into that clause a duty to ensure that advisory committees have the same requirement for a variety of skills. I await the Minister's reply with interest. I beg to move.

[The Sitting was suspended for a Division in the House from 5.38 to 5.48 p.m.]

Lord Hunt of Kings Heath

I respond to the noble Lord, Lord Clement-Jones. First, I thank him for his congratulations to the Government on the skills with which we have put this in. I notice that his congratulations did not go to the extent that he repeated word for word the words in the Bill; he has added one or two words in relation to nutrition and so on, which we have already debated.

We wholly endorse the principle underlined in the amendments of having a variety of interests among members of committees, but we do not consider it right to spell this out in the Bill for advisory committees. Apart from the regional committees, with which I shall deal first, we are essentially dealing with non-statutory committees. We believe the agency needs some flexibility on how those should be set up.

In relation to the regional committees, the appropriate authorities will wish to ensure that they are not dominated by one particular interest. It is right, however, that they should exercise their own judgment in relation to that. I am tempted to quote again from the Liberal Democrat manifesto on the power of competence of the devolved authorities, but I shall resist. As far as the specialist advisory committees are concerned, they are clearly key to ensuring that the agency's actions are all based on the best available science. Members of those committees will of course have to be appointed on merit and be clearly recognised as the best possible people in their particular field.

I would expect the agency to follow the Government's practice and include public interest or consumer representation on these committees. I remind the Committee that the agency itself, in considering their advice, will ensure that the wider public interest is taken into account. We should not rule out the possibility that the agency might need some purely specialist committees, including for example perhaps a specialist consumer committee. We have already debated the subject of nutrition labelling at some length so I will not repeat the arguments deployed on those matters in relation to the wording of the noble Lord's amendments. We do, however, seem to have the balance right in terms of setting out the principles in relation to the appointment of members to the agency. It is also right to allow some discretion as far as the regional committees and the specialist committees are concerned.

I turn to the suggestion made by the noble Lord concerning the concept of lead authority in relation to joint committees. I appreciate the reasons for the noble Lord's suggestion. One has to reflect that the reason for wishing to have joint committees is that more than one department may need their advice. It will be important in that respect to ensure that an impression is given of joint ownership rather than of one department seeking to dominate the other. We must avoid the impression that one authority has a greater right to the committees' time or could exercise undue influence in setting the work programme. That would be damaging and should be avoided. It is important that advisory committees retain their independence to advise on matters within their remit.

In practice it is sensible for the administrative lead of any committee to lie with one department or body. I refer to preparing agendas and circulating papers. That is already achievable through the Bill as drafted. The arrangements made to establish a joint committee mentioned in paragraph 8(1) to this schedule could well cover administrative support to the committee. We recognise that the work of a committee is unlikely to divide exactly between the sponsoring authorities. It is likely that one authority with a major interest will shoulder much of the administrative burden. That could change over time, however, and it would be wrong to fix a division of responsibilities that might in time prove not to be appropriate. In those circumstances I hope that the noble Lord might agree to withdraw his amendment.

Lord Clement-Jones

I thank the Minister for his reply. References to the Liberal Democrat manifesto have been rife this afternoon and we welcome any publicity for what was a fine document! Perhaps, however, the Minister and I should debate the principles of federalism on another occasion. The essence of the matter is, of course, that the principles by which a body is going to be run and established and take its decisions need to be set out in a clear manner. How those decisions are taken in practice is undoubtedly a matter for federal action as regards Scotland, Wales or Northern Ireland. We believe that the same principles should apply.

The Minister produced his best argument when he addressed the aspect of specialist consumer committees; namely, that in some cases it might not be appropriate to have that balance. They were specifically designed to be specialist consumer committees or specialist producer committees. Therefore it would be inappropriate to seek the balance that I have mentioned. As far as the general regional committees are concerned, there may well be other arguments. At this stage it would be best to consider carefully what the Minister has said and then debate the Liberal Democrat manifesto at a future date. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment Nos. 105 to 110 not moved.]

Schedule 2 agreed to.

Schedule 3 [The Agency's functions under other Acts]:

[Amendments Nos. 111 and 111A not moved.]

Baroness Byford moved Amendment No. 112: Page 28, line 6, at end insert— ("( ) When making an order under section 42, the Secretary of State must specify the period for which the Agency is empowered to exercise the default powers.")

The noble Baroness said: The Bill amends Section 42 of the Food Safety Act 1990 and empowers the Secretary of State to direct the agency to carry out the enforcement functions of an enforcement authority that has failed to meet its obligations. We suggest that there should be some time limit, that it should not be open-ended and that, if it were so, it would give the agency increasing powers which could be used long term. The amendment would ensure the agency does not carry out these functions indefinitely but for a limited period as specified by the Secretary of State. I beg to move.

Baroness Hayman

Perhaps I may reassure the noble Baroness on the issue that lies behind this amendment while not accepting the amendment itself. The default provisions we are discussing, which will be available to the Secretary of State, are intended for use only in the last resort and where other channels of action have failed. I do not expect them to be exercised by the agency under the authority of the Secretary of State on anything but the rare occasions where there is a serious failure occurring over a period of time which it has not been possible to rectify through the agency's own powers of standard-setting, monitoring, audit and advice.

It may prove further reassuring if I point out that the power may only be exercised in cases where a local authority has failed to discharge a duty, rather than failed to do anything which in the agency's opinion it should have done. Therefore, it is not a matter of what is called in other circumstances "creeping competence". The fact that the Bill enables the Secretary of State to name the agency as the default authority under these provisions does not create any new powers. Rather, the Bill makes a technical change designed to ensure that the powers currently available to Ministers to take default action through their officials can continue to be exercised by the Secretary of State once the relevant officials transfer to the agency.

I would certainly expect the agency, in cases where it might be directed to take over the work of a failing local authority, to do so with discretion and for no longer than is absolutely necessary. It lies at the root of our approach to general food law enforcement that local authorities will retain primary operational responsibility and that their independence of action will, as far as possible, be respected.

Where I am not convinced is to the practicality of Amendment No. 112, which would require a time limit to be applied to any authorisation to exercise default powers. As I have already explained, these powers will be exercised in very exceptional circumstances where a serious lapse has occurred. In such circumstances, I suspect that the time required to resolve the problem is unpredictable by us in this Committee at this time. The consequences of a requirement to set a time limit could well be that it is over-estimated and that a new order might well have to be made to rectify the original limit. I hope I may have given the noble Baroness some reassurance that there are limitations already inherent in this power and that, on that basis and in light of what I believe would be practical difficulties of putting a specific time limit, the noble Baroness will feel able to withdraw this amendment.

Baroness Byford

I thank the Minister for her full response. When she said "only in the last resort" I began to think that if my noble friend Lord Mackay were standing here he might well be responding slightly differently following our discussions on the opening amendment this afternoon!

I appreciate that it applies only when a local authority has failed to discharge a duty. To a certain extent I obviously accept that it is difficult to put a time limit on because it might vary, depending on what sort of duty has not been discharged. It was a probing amendment and I am grateful to the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6 p.m.

Baroness Byford moved Amendment No. 113: Page 28, line 6, at end insert— ("( ) 'The Agency shall recover in full from the food authority the actual costs it has incurred when acting in default.")

The noble Baroness said: Amendment No. 113 would require the agency to recover its actual costs for acting in default from the enforcement authority which has failed to meet its obligations. During the past two days in Committee we have talked about the vast costs of running the agency. That is the reason behind the amendment. It would provide the local authority with an incentive to monitor the agency's charges and to exert pressure on it for them to be kept as low as possible. Again, in Committee earlier we talked about the fact that in some instances, particular the Meat Hygiene Service, charges are made and therefore anything that helps to keep the costs within reason is the purpose behind my amendment. I beg to move.

Baroness Hayman

I understand the motivation behind the amendment as explained by the noble Baroness. The amendment would, in effect, require the agency to recover from the failing authority all of the costs of carrying out default action and not give the authority control over the agency's expenditure.

Although I sympathise with the idea that an authority which has failed to discharge its duties to the consumer should be required to meet the costs of that failure, especially in the serious circumstances that I described when speaking to Amendment No. 112, as a general rule the taxpayer as a whole should not pay for the failings of the local authority. However, I do not believe that it would necessarily be appropriate in every case. There may, for example, be instances in which a problem of a very unusual nature had occurred outside the bounds of a local authority's normal enforcement responsibility. That problem might well have placed some increasingly unmanageable burden on the local authority in question, even though it might have been acting in good faith.

In those circumstances, therefore, I believe that the agency might well wish to take a sympathetic view and waive some or all of the costs arising from a default action. I suggest that the power to recover costs—and that power does exist—lies with the agency and it can do it. The provision as it stands at the moment means that the agency does not have to recover the full costs in every case. That would be the general rule, but we believe that leaving some flexibility for what would be in any case very unusual circumstances and might be unusual in the sense of putting an overwhelming burden on the particular local authority, would be a sensible course of action. On that basis, I hope that the noble Baroness will feel able to withdraw the amendment.

Baroness Byford

I thank the Minister for her response. I felt that she understood the problem but did not wish to accept my amendment, which asks for full costs. I will certainly take it away and give it some thought and we may have an opportunity to discuss the implied desire behind it, even if the wording is perhaps too stringent for the Committee at this stage. I beg leave to withdraw the amendment

Amendment, by leave, withdrawn.

Baroness Byford moved Amendment No. 114: Page 28, line 6, at end insert—

("Section 45 (regulations as to charges)

No regulations to which this section applies shall be made (whether alone or with other regulations) by or in connection with the Agency unless a draft of the statutory instrument containing the regulations has been laid before, and approved by a resolution of, each House of Parliament.")

The noble Baroness said: The effect of this amendment would be to increase the level of Parliamentary scrutiny of the agency's charges, by making the Secretary of State's regulations requiring or authorising charges subject to the affirmative procedure in both Houses of Parliament. I beg to move.

Baroness Hayman

I understand the concerns about charging, which have been behind several of the amendments and discussions we have had in Committee. The requirement for orders to be made under Section 45 of the 1990 Act, to be subject to negative resolution as they stand at the moment, is consistent with similar general charging powers in other legislation. Parliament has decided on numerous occasions that the negative resolution procedure is appropriate in this kind of case.

The purpose of these powers is to provide for the cost of carrying out enforcement duties to be recoverable from those receiving an enforcement service. It is therefore limited to enforcement work and could not be used, for example, to finance any of the wider activities of the agency such as its developing policy or providing advice. Indeed, it is a principle of EU law that charges linked to the exercise of a statutory function may recover no more than the cost of carrying out that function, so there is a stricture there. Where regulations make charges with additional costs loaded on, then express authority under the terms of the Finance Act 1997 already calls for the affirmative resolution procedure to be applied.

Since the powers in section of the 1990 Act do not provide for additional costs to be recovered over and above those arising from enforcement, the affirmative resolution convention is not relevant. If any Members of this House or another place have particular concerns about a particular charging regulation, then the negative resolution procedures that apply provide an opportunity to pray against the SI. I would, however, observe that while this has happened, there have been numerous occasions on which regulations made under section 45 have not been thought necessary to be the subject of such a debate. I hope, therefore, that Members of the Committee will agree that there is no need to alter the provisions for the negative procedure as set out in the Bill.

Baroness Byford

I again thank the Minister for her response. It is interesting that over these past three days of debate we have found that, in many instances, what we are trying to do in this Bill actually comes into conflict with EU law. Unless I have misunderstood what the Minister just said—I give way.

Baroness Hayman

I did not say that it came into conflict with EU law but that EU law ensures that national governments cannot behave improperly in terms of recovering more than the cost of a particular element of regulation that is, itself, governed by EU law. The affirmative resolution procedure that the noble Baroness seeks to achieve would, in fact, be invoked in those circumstances. It is a failsafe mechanism.

Baroness Byford

I thank the noble Baroness for that clarification. With those few words, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hayman moved Amendment No. 115: Page 28, line 10. at end insert—

("PART IA

    cc167-76GC
  1. FUNCTIONS UNDER THE 1991 ORDER 3,527 words