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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--

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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.

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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

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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

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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

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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?


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