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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

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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

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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

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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.

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