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Lord Desai: Before my noble friend replies, I am genuinely puzzled. Never having been a Minister I am not familiar with what is going on. As I read Clause 17(3), anything done or omitted to be done by the agency shall be treated as done or omitted by the Secretary of State. Then subsection (4) says:

The noble Lord's amendments, especially Amendments Nos. 54 and 55, amend subsection (1). Is he basically tidying up and rearranging the prose, or is this a conversational point? This is what I am missing. My understanding of what he said is that someone is responsible to Parliament and it happens to be the Secretary of State.

Lord Mackay of Ardbrecknish: Perhaps I can come back on that point and help the noble Lord. I did not realise when I was looking at this, but because of my first amendment subsections (2) and (3) are not needed. Subsections (2) and (3) are needed here because the agency has been given the power, but I will freely admit that I am by no means a draftsman. I

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omitted (2) and (3) because I did not think they would be necessary if the power were still exercised by the Secretary of State.

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

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

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

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

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

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

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

I should also say that there will have to be formal written agreements between the Secretary of State and the agency setting out the circumstances in which that would be undertaken. I might also point out to the

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noble Lord that the Select Committee on Delegated Powers, when considering this matter, felt that delegation to be both necessary and appropriate.

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

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

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

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

Lord Mackay of Ardbrecknish: I am grateful to the Minister and I am satisfied that he has put the procedures on the record and underlined the fact that the Secretary of State will remain responsible.

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

Lord Hunt of Kings Heath: I would not say that former Secretaries of State have fallen down on the job. The situation has been that where an order has to be signed with extreme urgency and Ministers are not available to do it, they have then had to be signed by officials. The situation there is that they do this under a convention arising from a legal case, which I understand is called cartona. The issue is that when the

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agency is established, the agency's members and officers will not be officials from the Secretary of State's department so cartona does not automatically apply, though it does apply between the agency's members and its officials.

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

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

Amendment, by leave, withdrawn.

[Amendments Nos. 54 and 55 not moved.]

Baroness Hayman moved Amendment No. 56:

Page 9, line 18, leave out from (“modifications") to (“as") in line 21 and insert (“--
(a) to any power mentioned in subsection (1) so far as it is exercisable by the National Assembly for Wales or the Scottish Ministers, and
(b) to the power of a Northern Ireland Department to make orders under section 1(1) of the Food and Environment Protection Act 1985 or Article 12(1) of the 1991 Order,")

On Question, amendment agreed to.

Clause 17, as amended, agreed to.

Clause 18 agreed to.

6.30 p.m.

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

Viscount Thurso moved Amendment No. 57:

Page 9, line 27, leave out from (“Agency") to (“publish") in line 28 and insert (“shall (unless it can justify specific considerations of confidentiality why it should not)")

The noble Viscount said: I rise to move Amendment No. 57 and if it is to the convenience of the Committee, I shall speak also to Amendments Nos. 57A, 58, 60 and 60A. All of these amendments essentially address one issue; namely, the degree of openness that the agency is to have and how much it is obliged to publish or disclose. There are, however, some differences between the various amendments so I shall briefly explain some of the detail. It comes about simply because Amendments Nos. 57, 58 and 60 were tabled by my

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colleagues in the Commons and were not debated because of the guillotine and, therefore, we tabled them again in your Lordships' House for discussion. Meanwhile, Amendments Nos. 57A and 60A, which are the same but go somewhat further, were provided by the National Consumer Council. Like a good hotelier, I felt it wise to give noble Lords a menu of choice, so we tabled them all.

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

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

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

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

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

As these amendments are going to be withdrawn anyway, I am quite happy to accept that they may well be technically deficient in all sorts of ways but we are

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seeking to establish with the Government the principle that the agency must be pro-actively open in order to fulfil its role; that it must be an honest broker and open with the public; and that it will presume in favour of disclosure and publishing of information rather than the other way round. If somewhere in the Bill it is required to do that anyway, that will be reassuring but, if not, I would seriously ask the Government to consider bringing forward their own amendment at a later stage which achieves that objective. I beg to move.

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