HL Deb 03 November 1999 vol 606 cc895-914

(" . The Secretary of State shall provide for an appeal to a tribunal against any decision of an enforcement authority, or of an authorised officer of such an authority, pursuant to sections 26(2)(e) and (f) of the Food Safety Act 1990.").

The noble Countess said: My Lords, in tabling this amendment I am aware that the Food Safety Act 1990, at Sections 26(2)(e) and (f), makes provision by regulations for, an appeal to a magistrates' court or, in Scotland, to the sheriff, or to a tribunal constituted in accordance with the regulations, against any decision of an enforcement authority, or of an authorised officer of such an authority; and … as respects any appeal to such a tribunal, for the procedure on the appeal (including costs) and for any appeal against the tribunal's decision".

In fact, no tribunal has ever been constituted under the Act. There are a number of reasons why I believe that it would be helpful to have this amendment on the face of the Bill.

First, in the case of the Meat Hygiene Service, it has become clear that the current appeal mechanism is totally unsatisfactory. A complaint by an abattoir or cutting plant owner or manager about the actions of an official veterinary surgeon goes initially to the appropriate regional director of the Meat Hygiene Service. He then refers it to the principal official veterinary surgeon who then consults the official veterinary surgeon against whom the complaint is made.

If the complainant is unsatisfied with the outcome, he must then complain to the operations director and, if still not satisfied, to the chief executive. As noble Lords will see, the system comprises a closed loop. Each "investigator" is part of the line management and it would hardly be surprising if at least some of the investigations did not result in a partial determination. Clearly, there is need for an independent and, I stress, impartial, appeals mechanism. I understand that the Meat Hygiene Service is currently addressing the matter and that at a recent meeting of a working group of the Meat Industry Forum there was unanimous agreement that such a tribunal is needed. The head of Meat Division 1 and the chief executive of the Meat Hygiene Service agreed to formulate some proposals. I would be grateful if the Minister can arrange for me to have the promised copy of the minutes of the meeting and perhaps advise me of progress.

My other example is what has become known as the Duckett's cheese case. Noble Lords may recall that in April 1998 a young boy was infected by E.coli 0157. This was traced to a batch of cheeses produced by Mr Duckett in Somerset. To cut what has become a saga short, a Section 13 order under the 1990 Food Safety Act was placed on all the cheeses produced by Mr Duckett. This involved a considerable quantity of cheese held for maturing by a Mr Aldridge in Surrey. Despite extensive testing no contamination was ever found in Mr Aldridge's cheeses. Under a Section 13 order there is no provision for compensation. The only course open to Mr Aldridge was to apply for judicial review. This procedure was expensive, time consuming and unsatisfactory as far as Mr Aldridge was concerned simply because the court could only determine whether the Minister made the correct decision on the basis of the information she was given.

Mr Aldridge lost his case on appeal by the Department of Health. The department has agreed to pay most of the costs. It is Mr Aldridge's contention that it was the information given to the Minister which was flawed. There is no mechanism available to him to have the adequacy of the system under which the officials operated reviewed, despite the provisions in the 1990 Act for a tribunal. The result has been a huge expenditure of public money—I wonder how many hip operations could have been covered by it—the loss of most of his business and his health to Mr Aldridge, and a suspicion that there has been a miscarriage of justice.

The most common cause of complaint is that officials have made unfair decisions or unreasonable demands. Many of these complaints could be settled cheaply and rapidly if there was an independent and impartial tribunal to hear the cases. As tribunal case law built up, both officials and producers would recognise the boundaries and the services of the tribunal would be needed less and less frequently. Therefore it is unlikely to be a significant drain on the public purse. On the contrary I believe that such a system would show considerable savings.

If the Minister is unable to accept my amendment, I hope that she will be able to give me a firm assurance that the Government will use the provisions already in the 1990 Act to set up a single system for appeals when the Bill becomes law. There is already a model upon which any appeal system can be based in the Meat Hygiene Appeals Tribunal that deals with revocations of, and refusals to, grant licences. Perhaps the Minister will consider broadening the current review of that tribunal. I beg to move.

4.15 p.m.

Baroness Byford

My Lords, my Amendments Nos. 11 and 15 are grouped with Amendment No. 10, which the noble Countess, Lady Mar, has just moved. I wish to support that amendment strongly. At earlier stages of the Bill we discussed the appeals system at great length. The Minister kindly sent me—and I suspect others—a full letter on the various aspects of appeals. That makes one realise how complicated some aspects of the matter are. I believe that a single system for appeals would assist greatly.

As regards appeals and the Meat Hygiene Service, I agree with the noble Countess, Lady Mar, that the current position is most unsatisfactory. I also support her desire to create an independent and impartial tribunal. We on these Benches support that strongly. At earlier stages of the Bill we discussed at length the Duckett's cheese case. I shall not do so again except to say that I think all of us in the Chamber believe that the outcome is not the one that we would have wished. However, that outcome arose because of the way the system is constructed.

Having shown our support for the noble Countess's amendment, I speak now to Amendments Nos. 11 and 15 standing in my name and that of the noble Lord, Lord Luke. I shall speak to the two amendments together as they are simply an attempt to find a route which is acceptable to the Government. In Committee the Minister told us that the agency would establish an internal complaints procedure. She also told us that there are various complaints channels already established by the Acts to which this Bill relates. We accept that all of this is so; but we do not agree with it. We do not wish to see the establishment of a much needed food standards agency whose modus operandi results in extra cost for those whom it controls any time they want to complain about those workings. We do not want to see the passing of an Act which turns out to be a "legal eagle's" meal ticket, as indeed the Duckett's case perhaps was.

We do not wish to imply simply that we expect the agency to be wrong in its dealings. We are, however, only too well aware of some of the moves towards a European food safety Act and the fact that some countries—for example, France—already have legislation that they claim parallels this. We anticipate that there will be difficulties over the interpretation of the law, the establishment of methods of working and the rights of the agency in areas such as observation, required periods of notice prior to visiting and such like.

The situation will become even more muddled if there are different routes deemed appropriate to different problems. It is the responsibility of the agency to handle complaints speedily and effectively. Such responsibilities should be on the face of the Bill. By these amendments we are suggesting to the Minister that there should be either an appeals procedure set up and run by the agency, or a complaints procedure instituted by the Secretary of State.

Lord Monson

My Lords, the House will be aware that over the years my noble friend Lady Mar has done a tremendous amount of meticulous research into the way in which so many small producers have, unhappily, been unjustly treated by authority—however one may define "authority" at any given moment. I hope that your Lordships will support her amendment or, failing that, support one of the two opposition amendments, which may be the next best thing.

Lord Clement-Jones

My Lords, like the noble Lord, Lord Monson, I pay tribute to the expertise in this area of the noble Countess, Lady Mar. We on these Benches support her aim of seeking assurances from the Minister with regard to the setting up of the tribunal under Section 26(2)(e) and (f) of the Food Safety Act 1990, which is how we read the speech made by the noble Countess in moving her amendment. Your Lordships will know that in Committee and on Report I mentioned the Duckett's cheese case as a prime example of where the mechanisms must be improved if small producers are not to be prejudiced by the power of the enforcement authorities. We support the noble Countess's call for assurances in that respect while perhaps not going so far as to support the totality of the amendment.

Turning to Amendments Nos. 11 and 15, we have considerable doubts about whether a single, "one size fits all" appeal system will be preferential for those affected by decisions of the food standards agency. The noble Baroness, Lady Byford, mentioned the letter that the Minister was kind enough to send to us. It may have been sent to the Front Benches only; I do not know. The letter makes very clear, in considerable detail, the sheer quantity of powers to be exercised by the Food Standards Agency. It contains something like eight different forms of appeal—in magistrates' courts, before tribunals, in terms of judicial review, and so on.

Those forms of appeal have different contexts, different fora and different purposes. Simply to take one kind of appeal—which, in other cases, normally would be decided under powers taken by a local authority—and translate that into a different form of appeal applicable to the Food Standards Agency, may lead to an injustice. For instance, the rules of procedure in a magistrates' court may be more beneficial to an individual affected by a particular case. I am not saying that is necessarily the case, but to have a blanket form of appeal in those circumstances could be very dangerous.

We have had some assurances about the complaints system. Perhaps the Minister can be more specific about the requirement for the agency to establish a complaints system. The procedure would fall short of a legal appeals process but it would enable individuals to air their complaints and may give them an opportunity for compensation. We need to know more from the Minister about the kind of requirement which will be imposed on the agency in those circumstances. We need to know what kind of complaints system is envisaged and the time-scale within which it will be put into place.

It would be very helpful if the Minister could give us an idea of the time-scale—after Third Reading and the Bill has passed through both Houses—in which the mechanisms will be put in place and when the agency will be fully up and running. That would reassure some of us about how the whole process will work.

Lord Rowallan

My Lords, I congratulate the Government. In the last two amendments we have had some very good ideas from them by way of compromise. They make the whole of the Bill more palatable.

We have discussed at length the labelling and hygiene problems. However, the other rumble—which has been obvious to those of us who have attended all stages of the Bill's passage through the House— concerns the matter of appeals. We are all very concerned about the draconian powers contained within the Bill.

We must have an appeals procedure. I disagree quite strongly with the noble Lord, Lord, Clement-Jones. He said that it might be dangerous if there were a blanket form of appeal. I think it will be much better if there is one. In that way we would not have the diversity of opinions which come from different parts of the country and from different magistrates' courts, as we all too often see at present when magistrates' courts deal with other matters. We need some conformity in the whole situation. We would be much better off if we had an appeal structure within the agency.

I strongly support the amendment moved by the noble Countess, Lady Mar, and the amendments spoken to by my noble friend Lady Byford. I do not mind which system we go for, but we must have some kind of appeal structure within the Bill. Having listened so kindly and persuasively to the issues of labelling and hygiene, I hope that the Government will take cognisance of the genuine concerns within the House about the appeals situation.

I was not privy to the letter which was sent to the Front Benches but I am very concerned that we should be seen as being fair to everybody. As to cheese manufacturers, the Lanark Blue situation—which took place a few years ago in Scotland—caused enormous concern. It involved enormous costs for the people who made the cheese and very nearly put them out of business. It all turned out to be a bit of nonsense; it took too long to roll through the courts, and so on. If we had a procedure within the agency we would be much better off.

Lord Glentoran

My Lords, I wish to add yet another voice in support of these amendments. When I was sitting, temporarily, on the Front Bench in the absence of my noble friend Lord Luke, from Second Reading onwards this issue was one of the parts of the Bill which concerned me most.

I am sure that the Minister and the Government are aware of the huge powers which the agency will be given under the Bill. They will be aware of the possible impact that its various arms could have all over the kingdom; of the complexities within it and the different disciplines it will cover—which will be added to by devolution and the different laws for Scotland, Wales, and, one hopes, Northern Ireland, and so on.

From the very beginning of the passage of the Bill through the House we all said that, for the agency to get off to a good start and to succeed, it is most important that it wins confidence quickly—not only the confidence of the general public but of the industry. To quote the Minister, the industry goes from the plough to the platter. It covers all manufacturing, all supply and all transportation—everything. It is huge. The decisions of the agency will impact very heavily on all parts of that industry. At the moment it is in a fairly weak state, particularly the farming sector.

Our discussions this afternoon have demonstrated how unsure, uncertain and unclear the appeals situation is as regards decisions which could impact adversely on businesses, on lives and on jobs. I urge the Government to do their best to clarify the appeals procedure. Whether that procedure should be a single appeal or as the noble Baroness has outlined in her letter—which I have not seen but which I understand—I do not know. But it is very important that the appeals process should be clear and easily understood, both by those implementing the work of the agency and by those who will be working within its remit.

4.30 p.m.

Lord Lucas

My Lords, I rise to support Amendments Nos. 10 and 15, at least in their spirit. Over the years we have seen the trouble caused when enforcement authorities choose to exercise their powers too liberally and irrationally. Concentrating best practice and building up a body of expertise through a tribunal, as has already been provided for in the 1990 Act, seems an excellent complement to the agency being created by the Bill. That would facilitate the whole process of securing understanding and agreement of what the rules and regulations mean. Furthermore, a consensus could be established across the country without the occasional blow-ups that we have seen in the past.

As to the two amendments in the name of my noble friend Lady Byford, I favour Amendment No. 15. I do not believe that it would be helpful to have an appeals procedure—singular—set up for the agency. Appeals would involve questioning the decisions of the agency and bringing them into legal doubt. That should be thought about carefully and controls can best be implemented by existing procedures. However, for the agency to command public respect, there must be a way for those aggrieved by the agency's decisions to challenge those decisions and to have an open assessment made. That may well be the complaints procedure and I do not mind whether it is set up by the agency or the Secretary of State. However, I would welcome a clear statement from the Government that that is their intention.

Baroness Hayman

My Lords, I can respond positively to the request of the noble Lord, Lord Lucas, and, I hope, as I have been urged to do by the noble Lord, Lord Rowallan, respond positively in this area. I hope to be positive and to be clear, but I am not sure whether my response will be simple. Several noble Lords have pointed out that we are dealing with a complex area. That complexity is well illustrated in the first amendment in the name of the noble Countess. Lady Mar. She is right to point out the enabling powers on appeals that are already provided for in the Food Safety Act 1990.

Those powers have been used to set up the tribunal to consider appeals on decisions concerning the licensing of fresh meat plants. That is an interesting example of the value of having an appeals tribunal that builds up a level of expertise and knowledge so that it can give reassurance to those operating in that particular area. That responds to the request for a mechanism to provide an independent element when assessing appeals made against the agency. However, I part company with the request for a unified appeals procedure. That is because I question whether the same body looking at appeals concerning the licensing of fresh meat should also look at appeals across the whole range of the food standards agency's remit.

In my letter to noble Lords who have raised the issue—I apologise that it was not more widely circulated—I set out the range of powers and activities and the range of legislation with which the agency will deal. The challenge will be to ensure that for all those activities there will be an appropriate appeals mechanism. However, that appeals mechanism will not necessarily be the same in every case. For some it will take the form of a tribunal because that will be the appropriate way forward. In other areas—for example, those covered by the Food Safety Act 1990—a method of appeal through the judicial system in the magistrates' courts is provided for. That applies to appeals against local authority enforcement decisions on improvement notices. That method has operated for nearly a decade. Different methods apply to different sections of the Food Safety Act. In a moment, I shall say something on the circumstances surrounding Duckett's cheese and the use of emergency powers, which is an area of particular difficulty. However, I should be reluctant to remove from those who wish to appeal against a decision made under the provisions of the Food Safety Act their ability to go to law under the existing judicial arrangements.

As I have said, there are a number of different matters against which people may wish to appeal. For example, appeals against a decision by the agency to publish confidential information of a personal nature would come within the scope of the Data Protection Act. If the agency were so challenged by an individual or a body, that individual or body could appeal to the Data Protection Registrar. Again, it is very questionable whether the tribunal covering disputes on meat hygiene regulations should be the same body as looks at data protection issues.

There is a range of complex issues here. We must ensure that, through such a complex mesh, two objectives pertain. First, each exercise of power must be adequately covered by an appeals mechanism that is appropriate to the task. Secondly, the mechanism must be made accessible to those individuals who want to use it. I must tell the House that I do not think we can get away from the complexity inherent in the variety of appeals mechanisms, but we must try to make the system easily accessible. I shall look to the chair and chief executive of the new agency to embrace as an early task the drawing up of explanatory material on the different appeals mechanisms for those who wish to put forward a complaint.

I shall move from the appeals mechanism to the complaints mechanism. In earlier debates I made it clear that we have in mind a single complaints mechanism. That is important, because the complaints mechanism may point people in the direction of a speedy resolution by approaching a senior officer or the chair of the agency to resolve a straightforward matter where someone has made a mistake and an apology is sought. Equally, it may be that someone wishes not only to complain, but to undertake an appeal. The complaints mechanism should be the one-stop agency that ensures that the person is directed to the appropriate appeals mechanism. In some cases that mechanism might be the courts; in some it might be a specialist panel; for others the most relevant course might be an administrative review. The right route of appeal should be sought according to the particular circumstances of the case. As has already been pointed out, to lay down only one procedure would be likely to disadvantage people. However, there is a great advantage to be had from a single administrative procedure to deal with complaints, in that the complainant can be guided quickly to the appropriate route of appeal.

In this area the amendment of the noble Baroness, Lady Byford, is defective because it refers to a single mechanism. We believe it is necessary to put in place a single procedure that directs people to the right mechanism through which to pursue their appeals. Furthermore, potential complainants should as far as possible make use of existing routes of appeal rather than creating within the agency a new avenue that duplicates those routes or, indeed, that tries to deal with a wide variety of different circumstances.

I believe that the assurances the Government have so far given make clear that there is no possibility of the agency being set up without an appropriate complaints procedure. In any case, under "Service First" and better regulation principles the agency will be obliged to have such a complaints procedure in place. It will need to be well publicised, accessible, fair and efficient. Everyone should be able to find out quickly how to make a complaint and what will be the appropriate channel for them to pursue their case.

The noble Lord, Lord Clement-Jones, asked about the timetable. As soon as the agency is set up it will need to have a complaints procedure. I would expect the chairman to take personal responsibility for seeing that that was in place. I hope it will be possible to consult a little in the early months and to refine how the complaints procedure works out. The agency should not be set up without a complaints procedure because it will be a public body. It will come under the "Service First" principles and the principles of better regulation and will need to have such a complaints procedure. In that way we can cover the need and timescale for putting in place a complaints procedure and ensure that that puts people in touch with the appropriate route of appeal.

The noble Countess rightly pointed out that there may be areas where the coverage is not currently adequate. She referred in particular to the Meat Hygiene Service. I shall certainly ensure that the minutes of the meeting to which she referred are sent to her. I can reassure her that the Government agree that the current internal Meat Hygiene Service arrangements for looking at appeals need an independent element injected into them. We need to look at appropriate expertise and put in place the appropriate complains procedure. We are committed to an element of independence in that.

It may be that the work of the Meat Hygiene Appeals Tribunal should be expanded to cover these complaints and not simply licensing complaints. However, it may be that another form with an element of independence separate from the licensing tribunal is more appropriate. We have not yet come to the point of deciding which is the appropriate mechanism with an element of independence in it, but we will do so. I can give the noble Countess an assurance on that point. I hope that she and others will continue to be involved in the debate and so ensure that that is done.

Finally, perhaps I may deal with the issue of the lack of an immediate avenue of appeal in cases where emergency legislation has been made. I refer to the Duckett's cheese case. This is a difficult matter. The powers in Section 26(2)(e)of the Food Safety Act 1990 would not provide for an enforcement tribunal to consider appeals on the use of emergency powers, wide-ranging as they are. This matter was debated at some length and is in contradistinction to the non-emergency use of powers under the Food Safety Act. Emergency powers are by nature designed for use in the rare cases where rapid and decisive action is needed to protect public health. Providing for appeals against the provisions of emergency legislation raises the risk of holding up urgent action to protect public health while a grievance is considered. There are other routes by which grievances can be pursued in these circumstances, including judicial review. However, I know the noble Countess feels that that is not adequate in this area.

I would suggest to her that there are complicated issues here concerning the decision as to which powers it is appropriate to use in such circumstances.

4.45 p.m.

The Countess of Mar

My Lords, perhaps I may help the noble Baroness. I accept that in the Duckett's cheese case the Minister made the decision to place the Section 13 order on the basis of the information that she had. She was right to do so. The problem is that the information she had may well have been flawed. Once a Section 13 order is in place, nothing can be done about it. However, the individual concerned should be able to say to an appeal tribunal, "Look, this is the information as it was; this is the information which was given to the Minister. Therefore, the decision to place that order was flawed and I should have compensation." That is what this is about. We believe that the Section 13 order was placed to avoid compensation. Does the noble Baroness understand?

Baroness Hayman

My Lords, I do understand, although I have to say that during the debates on the Food Safety Bill the issue of compensation was carefully considered. It was felt inappropriate that considerations about compensation should enter into Ministers' minds when making decisions about emergency action on grounds of food safety. There was considerable debate on the issue.

I understand what the noble Countess is saying. However, I must point out to the House that the Duckett's cheese case was, albeit under judicial review, considered twice by courts of law which upheld government action. This is a specific and difficult area and one in which a balance of considerations should be taken into account, including those of access to compensation, when invoking emergency powers. There is a heavy onus on Ministers to ensure that the case for emergency action has been clearly made before the relevant powers are invoked and that the powers will be used in a reasonable way that can be upheld in a court of law. That test is a sound and reasonable one and it is appropriate to the special circumstances in which these kinds of measures are taken.

I understand the concerns that were raised over the Duckett's cheese case and everyone involved in it has reflected on those circumstances. But I have to say to the noble Countess that I do not believe that that case is either so clear cut or so generally applicable as to send us down the route, which her amendment would do, of creating a single appeals mechanism for a very complicated case like that and all the other issues with which the food standards agency will have to deal. I hope the House will accept from me the argument that the necessity is to cover appropriately all areas of appeal. I trust I have illustrated that the powers are there so to do if we discover a lacuna in the appeals mechanism such as the need for independence regarding the Meat Hygiene Service. The Government recognise that because the appeals procedures are complex and are different in different circumstances, they should be clearly articulated to those who need to use them. Equally, the Government will take steps to ensure that the agency institutes a one-stop complaints procedure, part of which will deal with run-of-the-mill complaints—if I may put it that way—and part of which will give people access to the appropriate appeals mechanism. We shall be charging the agency on its inception with setting up such an appeals procedure.

We have talked about the use of the annual report. It would be helpful if each year in the annual report to Parliament the agency reported back both on complaints and on the use of the appeals procedures. I should like to take that forward.

I hope the House will agree that, although the amendments are appealing at first glance—they have the appeal of simplicity—sometimes as legislators we cannot respond to that siren call. However, the principles that underlie them are covered both in the Act and in the additional mechanisms that I have outlined.

Lord Rowallan

My Lords, before the Minister sits down, can she say for the avoidance of doubt in which Act or other legislation the one-stop body is set out?

Baroness Hayman

My Lords, the complaints procedure will be part of the work of the food standards agency. It is not explicit in the Bill because it is governed by the guiding principles under which the agency will work—namely, transparency, accessibility and accountability—and because the agency is obliged under the "Service First" principles and the principles of better regulation to have such a complaints procedure. Equally, I have given assurances at every stage of the Bill that such a complaints procedure will be set up. Were the agency to default on that, the courts would be able to look at Hansard and see that those undertakings had been given at the Dispatch Box.

Baroness Byford

My Lords, before the Minister sits down, I understand that she believes that my Amendment No. 11, dealing with appeals, is totally unsatisfactory. Having listened to her words carefully, and bearing in mind that today is the last chance we shall have to make clear what we are doing, perhaps I may clarify this point with her. I understand from the Minister's response to my Amendment No. 15 that the only point in the amendment about which she is unhappy is the reference to "a single mechanism" rather than "a single procedure". If that is so, will the Government consider accepting the amendment? I do not quite know what the position is, and I realise that this is my last chance to raise this matter. I give way to the Minister.

Baroness Hayman

My Lords, I am sorry not to be of help to the noble Baroness. If she looks closely at her Amendment No. 15, she will see that it confuses two things. It seeks to set up a complaints procedure, but then states that that procedure shall, provide those aggrieved by any decisions or actions taken by the Agency with a single mechanism for challenging those decisions or actions". When we come to "challenging", we are talking about appeals procedures, and, as I have stated, the appeals procedures have to be differentiated.

I hope that the noble Baroness and other noble Lords will accept that there is no doubt that the agency will have a complaints procedure. I have explained the various reasons and mechanisms under which it will have such a procedure. It will be a single route in order to put people in touch with the appropriate appeals mechanism.

Lord Clement-Jones

My Lords, before the Minister sits down, will the complaints system, as mooted, allow the agency to consider the question of compensation or will there purely be other forms of redress?

Baroness Hayman

My Lords, I speak off the cuff. Most government departments are able to make exgratia payments in response to complaints if they believe that that is appropriate. Without prior notice, I should not like to suggest and pre-judge the exact terminology of the complaints procedure. However, I am willing to take up that point, examine it in some detail and write to the noble Lord if that would be helpful.

The Countess of Mar

My Lords, I am grateful to the Minister for her full reply. Perhaps I may make two points absolutely clear from the beginning. I intended no inference whatever that the Minister was ever involved in thinking about money in relation to the Section 13 order. However, I do believe that that was in the minds of the officials. That is a different matter. That would have clouded the advice that they gave her. Secondly, the judge in the judicial review found for Mr Duckett. He said that the department had used measures that it should not have used as an expedient.

There also seems to be a slight confusion between complaints and appeals. Many complaints arise in conjunction with appeals, because of the way in which enforcement matters have been handled. Those are the matters about which I am concerned. If the food standards agency fails to publish a leaflet, or uses the wrong words in a leaflet, that is a totally different matter. That would give rise to what I would call a straightforward complaint, almost a moan. But when there are serious complaints that need to be addressed—for example, the manner in which officials operate within the system—serious consideration should be given to a tribunal.

The Minister has talked about the complexity of the food standards agency. I do not know whether she is aware that I sit on the Immigration Appeals Tribunal—and there is nothing more complex than that. However, we do our job successfully. I am a lay member; I have no legal qualifications. Perhaps I may suggest that, when the Government are considering how the body will be set up, they examine the possibility of having one legal chairman and two lay members who are able to receive both written and oral information, interpret it, and arrive at well-balanced decisions. That might well be worth looking at. In the meantime, I thank the Minister and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 11 not moved.]

Clause 22 [Statement of general objectives and practices]:

[Amendment No. 12 not moved.]

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

Baroness Byford moved Amendment No. 13: Page 12, line 29, at end insert ("; and

The noble Baroness said: My Lords, in moving this amendment, I shall speak also to my Amendment No. 14.

The aim of these two amendments is to ensure that the regulatory burden on businesses is not increased unnecessarily. The Government's Better Regulation Task Force stated in its report on the principles of good regulation that governments should be satisfied that regulations are necessary, fair, effective and balanced, and must enjoy a broad degree of public confidence. The report prescribes five principles against which regulations and their enforcement should be measured: transparency, accountability, targeting, consistency, and proportionality. The first amendment would require the agency to take account of those principles in deciding whether and how to exercise its powers.

When I spoke to the second of these amendments in Grand Committee, I said: 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".—[Official Report, 13/10/99; col CWH 28]

I have received backing from many, including the CLA.

The Bill stipulates that the agency, in deciding whether or not to exercise its powers, must take account of the nature and magnitude of the risk. The agency might well include in its deliberations the risk to business, but an explicit direction in the Bill as provided by these two amendments to be mindful of the regulatory burden and to consider how it might be reduced would go further and would reassure businesses that might be affected. I beg to move.

Lord Hunt of Kings Heath

My Lords, as the noble Baroness has said, these two amendments revisit points that we debated at length both in Grand Committee and on Report.

First, we firmly endorse the need for the agency to observe the principles of better regulation—namely, the principles that she read out, of transparency, accountability, targeting, consistency and proportionality—in carrying out its functions. As I said in Grand Committee, the agency, as a public authority, will be under an automatic duty to observe the general principles of public law under which it must act reasonably. It will also have the express duties set out in Clause 22.

We have also stated—and I reiterate the point—that the principles of better regulation will be included in the statement of objectives and practices. Many noble Lords will welcome that. Similarly, the requirement in Clause 22 that the agency should make public the basis for its decisions and the power to publish any information in its possession are intended to ensure openness and transparency. The whole issue of openness was debated extensively on Report when my noble friend gave commitments about the way in which the agency would operate. I believe that the points she made then amply meet the concerns that the noble Baroness raises now.

The amendment also refers to reasonableness. We agree that the agency should in every case act in a reasonable and proportionate manner. It must have proper regard for the needs of businesses as well as consumers and not make unreasonable demands. The concept of reasonableness is already addressed in the Bill. Clause 23 requires the agency to take account of a range of factors when considering how to exercise its powers and to ensure that its actions are reasonable. The agency will also elaborate in its own statement of objectives on how the principles of reasonableness and proportionality that are already reflected in the Bill will be applied to the specific area of surveillance. We have already made clear that the agency will prepare guidance to its authorised officers on the proper use of these powers.

I turn to the second amendment. I agree with the noble Baroness that the agency should take full account of the possible cost burdens on those who are potentially affected by its activities. I believe, however, that that is already provided for. As the noble Baroness herself pointed out, the agency will be obliged by Clause 23 to assess the effect of any regulation, its method of enforcement and its costs and benefits. Therefore, the agency will be well placed to consider whether changes to either are appropriate, taking into account the purpose of regulation, its effects on businesses, the best use of resources available for enforcement and the overarching aim to protect public health.

The drafting of this amendment is unclear. As someone who has happily been a bureaucrat for many years before coming to your Lordships' House, one person's bureaucracy can be another's sensible regulation. We must not forget that the agency's main aim is the protection of public health. This amendment might lead one to assume that the agency is there to protect business first and foremost. The amendment is also unclear in that it refers to "the burden or cost" and uses the word "elsewhere". One would be concerned about the inclusion of a technically defective amendment at this stage. I hope the noble Baroness accepts that the strength of the Bill's provisions meets the important points that she raised.

5 p.m.

Baroness Byford

My Lords, I thank the Minister for his response. I am somewhat disappointed that he is unable to accept my amendment. In both Committee and later stages we debated at great length the cost not just to businesses but to the taxpayer. One is not concerned simply with bureaucracy at one end but with government costs as well. In Committee I argued that the Bill should include the ability to reduce costs if at all possible, and that is the particular aim of Amendment No. 14. On the one hand, the noble Lord accepts my argument but, on the other hand, he does not believe that it is necessary to reflect it in the Bill. I believe that that accentuates my point that it should be in the Bill.

Lord Hunt of Kings Heath

My Lords, I believe that there is sufficient in the Bill to cover the points that the noble Baroness makes. I do not argue with the noble Baroness about the importance of the matters to which she refers.

Baroness Byford

My Lords, I accept that. We have had debates about openness, reasonableness, proportionality and many other matters over the past few days. I suspect that this is not a battle that I shall win. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 14 and 15 not moved.]

Clause 36 [Interpretation]:

Baroness Hayman moved Amendment No. 16: Page 20, line 28, at end insert— ("(2A) In this Act the expression "interests of consumers in relation to food" includes (without prejudice to the generality of that expression) interests in relation to the labelling, marking, presenting or advertising of food, and the descriptions which may be applied to food.").

On Question, amendment agreed to.

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

Baroness Byford moved Amendment No. 17: Page 29, line 6, at end insert— ("(2) Such an order shall expire after twelve months; and any subsequent order to renew this power shall be limited to twelve months.").

The noble Baroness said: My Lords, Amendment No. 17 seeks to insert the words, Such an order shall expire after twelve months".

Instead of leaving the matter open-ended, the amendment seeks to impose a time limit. I am aware that 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 authority that has failed to meet its obligations. This amendment would limit the duration of such an order to 12 months. In Committee the debate was whether the period should be three months, six months or whatever. We on these Benches feel strongly that the Secretary of State should be required to make another order that might be limited to 12 months after the expiry of the period.

Our lives are constantly ruled by laws and statutory instruments, many of which originated before the second world war and some in the previous century. It may be that this Bill will still be on the statute book in 2025 or 2050. I should hate to think that the food standards agency would then have responsibility for a finite but larger number of local authority enforcement roles. We do not believe that it is the intention of the Government to place such a burden on the agency; nor do we believe that a local authority which fails to carry out its duty will not pretty quickly put its house in order. A 12-month review would, surely, encourage such a process. I beg to move.

The Countess of Mar

My Lords, I support this amendment. In view of the "no stress" day, perhaps I should inform the Minister that at this stage I shall not move the amendments standing in my name. There is a feeling afoot that perhaps the food standards agency will gradually gobble up all the local authority enforcement powers in order to amass more power to itself. I understand that that is not the Government's intention, but it may be the intention of a future one. We have already had this debate. I give the noble Baroness, Lady Byford, my full support.

Baroness Hayman

My Lords, I recognise the concerns that the default provisions in Section 42 of the Food Safety Act may be used in ways that are not now envisaged or in circumstances that have not yet arisen because the powers have not been used at all in the past 10 years. The House may be reassured if I reiterate the position. Perhaps noble Lords will forgive me for going over arguments debated in Grand Committee. These powers are available only for use in the last resort and only where other channels of action have failed. We do not expect the Secretary of State to make an order to empower the agency to act in default of a failing authority except on very rare occasions where a serious failure has occurred over a period of time which it has not been possible to rectify through the agency's normal powers of standard-setting, monitoring, audit and advice.

I agree that, if it is necessary for the agency to be directed to take over the work of a failing local authority, it should do so for no longer than necessary. That is the concern which underlies her amendment. That also lies at the root of our approach to general food law enforcement. Local authorities will retain primary operational responsibility and their independence of action will, as far as possible, be respected. However, we are not convinced as to the practicality of setting a maximum time limit of 12 months to any order or renewal order. We are talking here about exceptional and rare events and need to ensure that Ministers have flexibility in the way that they may use these powers.

The powers in the 1990 Act enable Ministers to place limits on an order if they wish. The relevant period could be less than 12 months, if appropriate. There is a very simple remedy if the powers are no longer needed or if the agency were thought not to be using them effectively, which is that the Secretary of State could himself just revoke the order. We do not believe it would be helpful to limit room for manoeuvre by specifying a time limit on the face of the Bill.

I have to say equally to noble Lords that the amendment is technically defective. While normally I do not like to use that as an argument in early stages of the Bill, the fact that it would be necessary to amend the Food Safety Act through Schedule 5 as well as Schedule 3 does mean that this amendment is defective. I believe that we have done a good job in your Lordships' House in improving the legislation and not sending deficiently drafted legislation to another place on an issue on which I believe there is no need to take action because there are safeguards and certainly no evidence of abuse. I hope that in any case I have been able to give some reassurance to your Lordships as to the limitations that are already inherent in this power.

Baroness Byford

My Lords, I thank the Minister for her response. I am sorry that at this late stage I have managed to come up with an amendment that is technically defective. I think I am at the end of the plank and walking into the sea because there is no recourse for me at this stage. Much as I would like to say "boo", I fear I am stuck there without a canoe as well.

I only hope that the Government will bear in mind the debate that we have had on this defective amendment. It is important that this issue should not be overlooked. I hope that our desire that there should not be long periods of unlimited approval and that an order should be sought will be borne strongly in mind by Ministers when they refer to Hansard. I am anxious, as other Lords have mentioned in earlier debates on the Bill, because this Bill contains huge powers. I feel that this amendment would have been a sensible move and I am only sorry that I have been proved totally inadequate at this stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 18 not moved.]

Baroness Byford moved Amendment No. 19: Page 30, line 9, leave out sub-paragraph (2).

The noble Baroness said: My Lords, I rise to move Amendment No. 19, to which I spoke at Committee stage. The Medicines Act 1968 provides for Ministers to consult, such organisations as the Ministers concerned consider appropriate before setting up the Veterinary Products Committee, and states that the Ministers shall appoint the members of the committee".

For the past 30-plus years, this has been done with great store set by the independence of those very members. Indeed, that freedom from party or factional allegiance has been much envied internationally.

Coming up to date, I draw the attention of your Lordships to the words of the noble Lord, Lord Sainsbury, on 19th May this year when he summarised the guidance on the use of scientific advice in policy making as governed by the overriding principle of selection based on merit. An appointment made by a Minister on the say-so of the foods standards agency is not necessarily going to be meritorious.

In the context of food safety and in the light of the European Scientific Committee's ruling in favour of British beef, it would be appalling if any such appointment were felt to be factional or partisan. It would be even worse if it were to be judged that, under European law, such an appointee should be disbarred from speaking or voting on food safety matters, especially as I understand that almost half of all the existing licensed animal medicines are for pet use and have nothing to do with food or the remit of the food standards agency.

The food standards agency should emulate the Health and Safety Executive and the Environment Agency and send an observer to the meetings of the Veterinary Products Committee. Any conflicts or problems that arose should then be dealt with through the system of published protocols that we have been promised. I beg to move.

5.15 pm
Lord Hunt of Kings Heath

My Lords, I understand this amendment has been prompted by the concerns of the noble Baroness about the future independence and integrity of the Veterinary Products Committee to which, like her, I am happy to pay tribute for many years of effective work. However, the effect of the amendment of the noble Baroness would be to remove the requirement that the agency should nominate, and I stress the word "nominate", a member of that committee. I believe that her concerns are unfounded and that limiting the agency in this way would be an unjustifiable restriction on the agency's input into matters relating to veterinary medicines which, your Lordships will recall, and indeed as the noble Baroness mentioned, we debated extensively at an early stage in the passage of this Bill.

I think the mood of the House at that stage was very much that it was right that the agency should play a part in matters relating to veterinary medicines. Throughout the development of our proposals for the food standards agency we have kept its proposed remit across the entire food chain firmly in mind. I believe that if we are firmly to restore the lost consumer confidence in food controls it is essential that we establish a body that is kept informed of relevant developments, is able to make its views known and, where necessary, able to take effective action on matters concerning food at any point in the chain from production to consumption.

We explained previously that the Government had taken the view that it was right for the regulation of veterinary medicines to remain a matter for the Veterinary Medicines Directorate but equally it was right that the agency should be involved in the work of that directorate in various ways, including through nominating a member to serve on the Veterinary Products Committee. We believe that, through that ability to nominate a member of the committee, the agency will be at the heart of the procedure for examining veterinary medicines, able to make its views known and play an active and constructive role.

We need only recall comments made here and in the other place over recent weeks about concerns over the possible effects of antibiotic use in food producing animals and about the use of hormones to realise the interest taken in the use of veterinary medicines and the concerns that many have, rightly or wrongly. about the implications for food. I think the agency's nominee must be able to speak authoritatively on food safety matters and work collectively with other members of the committee in making decisions. They will offer their expertise on any potential public health implications of the authorisation of veterinary medicinal products relating to food safety and I believe that this process of nomination will in fact aid the work of the Veterinary Medicines Directorate as well as the agency itself.

In conclusion, the noble Baroness expressed her concern about an appointment of a member to the directorate being on the say-so of the food standards agency. I believe that nomination means just that and not appointment. It is for the Ministers to make the appointment and if they are not satisfied with the person or persons put forward by the agency for potential nomination they are very much at liberty to ask the agency to think again and put forward further names. I hope that on that basis the noble Baroness will be reassured and will withdraw the amendment.

Baroness Byford

My Lords, before the noble Lord sits down, perhaps I may clarify one point. I think I am right—I need a little clarification on this—that previously perhaps 10 names were put forward for consideration. From reading the Bill, I had understood that the agency would nominate only one person and that that person would be appointed under the procedures that have existed hitherto.

Lord Hunt of Kings Heath

My Lords, there are two points to be made here. First, I would expect that the procedure under which a person is nominated and appointed would come under the general procedures for public appointments which cover many of the aspects she raises. However, I reiterate the point that, even if the agency were to nominate one person, it would still be very much in the hands of Ministers to decide whether they thought that that nomination were acceptable. Alternatively, they could ask the agency to submit more names. Ultimately, it would be in the hands of the appointing Ministers and not the agency.

Baroness Byford

My Lords, the Bill is confusing and I thank the Minister for his explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 5 [Minor and consequential amendments]:

[Amendments Nos. 20 and 21 not moved.]

Baroness Hayman

My Lords, I beg to move that the Bill do now pass.

Moved, That the Bill do now pass.—(Baroness Hayman.)

Baroness Byford

My Lords, I shall speak briefly because I realise that time has marched on. I thank all noble Lords on all sides of the House who have taken part in our debates. The Bill went to a Grand Committee which many noble Lords might think is not the most ideal way to hold a Committee stage, but we battled very well. I sincerely thank Ministers who responded to our amendments for the way in which they approached the discussions. We hope that this Bill leaves our House in a better state.

The Earl of Radnor

My Lords, I offer my grateful thanks for all the assurances that were given by the noble Baroness, Lady Hayman, and the noble Lord, Lord Hunt.

The Countess of Mar

My Lords, I endorse the words of the noble Baroness, Lady Byford. This is an extremely important Bill. It was overwhelmingly pleasant to deal with all the amendments without any nastiness or unpleasantness and to arrive at this stage with a consensus and agreement that perhaps we have done the right thing.

Viscount Thurso

My Lords, it gives me great pleasure to echo the sentiments of the noble Countess, Lady Mar. I believe that we have covered all the stages of the Bill without a single vote. That is testimony not only to the tenacity the noble Baroness, Lady Byford, and the noble Earl, Lord Radnor, for tabling their amendments, but to the generous spirit in which the Government Front Bench received our representations and accepted our points. I thank them for that. I also thank the officials who have been most co-operative and helpful in making our job easier.

I conclude on another note. About two weeks ago when speaking on a tourism issue, I observed that it would be the last time I would speak in your Lordships' House on that subject. However, another tourism Question is tabled for tomorrow and I have had to arrange to go to Scotland to make that prophesy come true. Now I can clearly state that this is the last time I shall take part in a Bill in your Lordships' House, and what a pleasure it has been.

Baroness Hayman

My Lords, I shall respond to the noble Viscount by saying what a sadness it will be for all of us not to have him participating in debates. His contributions to debates on the Bill have ranged from the emollient to the sharp, but they have always been constructive, as has been his contribution in the House generally. We shall all miss him as a contributor.

I should not like to destroy the consensus of opinion in the contributions just made. Our debates have been positive and from those who have sought to improve the Bill we have seen a balance of tenacity and flexibility. I much prefer to conduct business in such a pleasant atmosphere when we get results. It is an important piece of legislation, but it is better for its passage through this House.

I thank not only those noble Lords who have contributed to and enlivened the debates in your Lordships' House and in Grand Committee, but the officials who have worked on the Bill. They have been most helpful to me and, as has been stated, to everyone throughout the House. That has appeared in the quality of the scrutiny and so my final thanks go to them.

On Question, Bill passed, and returned to the Commons with amendments.