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

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

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

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

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

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

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

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

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

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

Baroness Byford: I listened with great interest to what the Minister said and I hope that he will have listened to us and perhaps can come back at the Report

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stage with something that will more fully satisfy, I suspect, all three movers of these amendments. At this stage, therefore, I beg leave to withdraw.

Amendment, by leave, withdrawn.

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

Baroness Hayman moved Amendment No. 50:


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

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

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

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

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

On Question, amendment agreed to.

Clause 14, as amended, agreed to.

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

Baroness Hayman moved Amendment No. 51:


Page 8, line 11, leave out (“Food Safety (Northern Ireland) Order 1991") and insert (“1991 Order")

On Question, amendment agreed to.

Baroness Hayman moved Amendment No. 52:


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

On Question, amendment agreed to.

Clause 15, as amended, agreed to.

Clause 16 agreed to.

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6.15 p.m.

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

Lord Mackay of Ardbrecknish moved Amendment No. 53:


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

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

In Clause 17 we read that the Secretary of State shall authorise the agency to exercise on his behalf


    “the power to make orders under--(a) section 1(1) of the Food and Environment Protection Act 1985 ... and (b)section 13(1) of the 1990 Act".

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

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

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

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

My suspicions were doubly raised when I read that an agency is to be given that order-making power. I suspect that they will be negative rather than affirmative orders, so assuming for a minute that we

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wish to ask the Minister why these order-making powers have been taken then we pray against them. If we have a debate the agency that has exercised the power will not be able to come and answer. The Secretary of State will have to answer for something that he himself has not done.

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

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

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


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