28 JULY 1999
By the Select Committee appointed to report whether
the provisions of any bill inappropriately delegate legislative
power, or whether they subject the exercise of legislative power
to an inappropriate degree of parliamentary scrutiny; to report
on documents laid before Parliament under section 3(3) of the
Deregulation and Contracting Out Act 1994 and on draft orders
laid under section 1(4) of that Act; and to perform, in respect
of such documents and orders, the functions performed in respect
of other instruments by the Joint Committee on Statutory Instruments.
FOOD STANDARDS BILL
1. This bill implements the proposals in the White
Paper "The Food Standards Agency: A Force for Change".
There was wide consultation on a draft of the bill which was also
the subject of pre-legislative scrutiny by a Commons committee.
The delegated powers in the bill are in clauses 17, 25, 27, 30,
31 (the equivalent of clause 30 for Northern Ireland), 32, 33,
40(4) (extension to Channel Islands), 42 and 43(2) (commencement),
and are discussed in the Government's memorandum.
THE IMPACT OF DEVOLUTION
2. The Bill establishes the Food Standards Agency
as a United Kingdom body. However, responsibility for food safety
and standards matters has been devolved to Scotland and Wales,
and will be devolved to Northern Ireland (where it is already
a transferred matter). As the Government's explanatory memorandum
explains, "the Bill therefore provides for the Agency to
be accountable to the devolved authorities in Scotland, Wales
and Northern Ireland and spells out various detailed arrangements
by which the interests of the devolved administrations will be
taken into account, including the appointment of members, the
creation of directors for Scotland, Wales and Northern Ireland,
and advisory committees for each part of the UK. The Government
and the devolved authorities concluded that it is desirable for
the Food Standards Agency to operate as a UK body because it ensures
access to shared scientific resources, avoids the need for costly
duplication of bureaucracy and will be conducive to consistency
in advice on food safety and standards across the whole of the
UK. However, the devolved authorities will remain responsible
for enacting food safety legislation in their jurisdictions and
will have the freedom to act differently, within their devolved
competence, if they so wish. The Bill therefore includes provisions,
in clauses 32 and 33,
to deal with the consequences of any change in the devolved arrangements."
3. There is as yet no formal mechanism for liasing
between Committees of this House and those of the Scottish Parliament
and the devolved Assemblies. In the absence of such a mechanism
the House will wish to note that the Scottish Parliament and the
Health Committee of the National Assembly for Wales have both
debated the proposals for the Food Standards Agency and agreed
that legislation to establish a UK body should proceed at Westminster.
DELEGATION OF POWERS TO MAKE EMERGENCY ORDERS
4. Clause 17 provides for the delegation of two existing
delegated powers from the Secretary of State or, where applicable,
the devolved authorities, to the Agency. Section 1(1) of the Food
and Environment Protection Act 1985 (FEPA) provides for a power
to make emergency orders designating areas of land or sea and
imposing prohibitions on agricultural, fishing or food processing
activities as a consequence of any environmental contamination
incident. Any emergency order under section 1 must be laid before
Parliament and expires after 28 days unless it has been approved
by resolution of each House of Parliament. Section 13 of the Food
Safety Act 1990 provides for emergency control orders prohibiting
the carrying out of commercial operations with respect to food,
food sources or contact materials where there is an imminent risk
of injury to health. The procedure followed is the negative resolution
procedure. Existing Parliamentary procedures, including the 28-day
rule for FEPA Orders, would continue to apply to any use of these
powers delegated to the Agency.
5. The Government's memorandum makes clear that both
of these emergency powers are designed to be used in a situation
of extreme urgency. It cites as a likely example of their use
the frequent need for FEPA orders in respect of certain shellfish
beds in Scotland because of the risk of Paralytic Shellfish Poisoning.
Other examples of past use of emergency orders include a number
of such orders following the Chernobyl incident.
6. Furthermore, the memorandum states that "in
practice, it is not envisaged that Ministers will want to make
use of the powers of delegation in clause 17 immediately, at least
until the Agency has demonstrated effectiveness in the use of
the powers already available to it by virtue of the Bill. Nor
is it expected that the Agency will routinely use the emergency
powers without prior consultation with Ministers. The power of
delegation does, however, ensure that there will be no procedural
inhibition on the Agency's ability to respond quickly in an emergency."
7. The Committee considers that the delegation of
the emergency powers in Clause 17 is both necessary and appropriate.
OTHER POWERS, INCLUDING HENRY VIII POWERS
8. Clause 25 is concerned with existing legislation
or a rule of law (subsection (7)) which prevents the disclosure
to the Agency of information that could facilitate the carrying
out of its functions or prevents the publication by the Agency
of information which it would otherwise publish under clause 19.
The clause allows an order to remove or relax the prohibition
which produces that result. Subsection (1) deals with England
and Wales, subsection (2) with Scotland and subsection (4) with
Northern Ireland. Orders under this clause are subject to affirmative
9. It is understandable that the bill should be prepared
on the basis that only experience will reveal the obstacles. The
Government's memorandum states that "in the process of preparing
the Bill, existing statutory bars to the disclosure of information
which may be relevant to the Agency's functions have been reviewed
and, where necessary, specific provision made to remove the bar."
It also notes that the power is similar to that provided for in
clause 65 of the draft Freedom of Information Bill.
10. The Committee considers that delegation is appropriate
and that the Parliamentary control is also appropriate.
11. Clause 27 provides for regulations to
require "the notification of information about tests on samples
taken from individuals (whether living or dead) for the presence
of" food-borne diseases. (There are powers in other legislation
to take such samples: these are not affected by the bill.) Subsection
(6) requires consultation with the Agency and representative organisations
before regulations are made. Subsection (8) sets out who may make
the regulations - the Secretary of State, the Welsh Assembly,
Scottish Ministers or the Department of Health and Social Services
for Northern Ireland. Where the regulations are made for England
by the Secretary of State, normal negative procedure is applied
and the equivalent procedure is applied where the regulations
are made by Scottish Ministers or the Northern Ireland department
(see clause 37(5)). The Committee considers that all this is appropriate.
12. Clause 30 provides for orders to regulate
animal foodstuffs in Great Britain (clause 31 applies clause 30
to make provision for orders for Northern Ireland) Subsection
(2) of clause 30 states that orders may apply or make provision
corresponding to any provisions of the Food Safety Act 1990 "including
any power to make subordinate legislation or to give directions"
and subsection (4) states that an order may be made to protect
animal or human health "or for any other purpose which appears
to the Ministers to be appropriate". Subsections (5) and
(6) deal with consultation and subsection (7) names the appropriate
ministers. Clause 37(4) applies affirmative procedure (each House
of Parliament, the Scottish Parliament or the Northern Ireland
Assembly). The affirmative procedure allows the Committee to accept
that in each case delegation and control are appropriate. Orders
under the clause may apply to England and Wales but the clause
says nothing about consulting the Welsh Assembly; presumably this
is because there are standing arrangements for consultation in
13. Clause 32 allows an Order in Council to
modify the provisions of the bill relating to (a) functions exercisable
by the appropriate authorities (the Secretary of State, the Welsh
Assembly, the Scottish Ministers or the Department of Health and
Social Services for Northern Ireland); (b) the powers of either
House, the Scottish Parliament or the Northern Ireland Assembly;
or (c) the constitution of the Agency. This Henry VIII power includes
the matters specified in subsection (3) and one of these is the
conferring on the appropriate authorities powers to make subordinate
legislation "in relation to the Agency or anything connected
with the Agency". Subsection (2)(b) places a limitation on
the power by excluding clauses 32 and 33 from its scope.
14. Subsection (4) of clause 32 requires the Agency
to be consulted about the proposals to use this power and clause
37(6) applies an extended affirmative procedure. It requires approval
of the draft Order not only by both Houses of Parliament, but
also by the Welsh Assembly, the Scottish Parliament and the Northern
15. As the Government's memorandum states: "The
Bill is being considered at Westminster at a time when the Scottish
Parliament and National Assembly for Wales have just taken their
powers and devolution to Northern Ireland is not yet resolved.
The Government has consulted extensively with the devolved authorities
in Scotland and Wales and in Northern Ireland and the provisions
of the Bill reflect an agreed approach. The Bill was also subject
to debate in the Scottish Parliament and the Health Committee
of the National Assembly for Wales, who endorsed the creation
of a UK body. Nevertheless, it is recognised that in the light
of experience of the use of the devolved powers, it might be necessary
to make adjustments to the constitution of the Agency or its relationship
with the devolved authorities. It is submitted therefore, that
it is appropriate to provide a delegated power to make modifications
to the Act to adjust the relationship with the devolved authorities.
Similar provisions exist in respect of cross-border public authorities
in section 89 of the Scotland Act 1998. It should be noted that
the clause does not provide for modification of the Agency's functions."
16. The Committee always examines Henry VIII powers
with particular care. In this instance the scope of the clause,
whilst appearing somewhat wide, is concerned with issues of food
standards and designed to permit the effective functioning of
the bill in the context of devolution. This fact, together with
the demanding special affirmative procedure provided in the bill,
makes it acceptable to the Committee. We consider that both the
delegation and the control are appropriate.
17. Clause 33 deals with the consequences
which would follow if the Scottish Parliament (or the Northern
Ireland Assembly) were to pass an Act providing for any functions
of the Agency to be no longer exercisable in or as regards Scotland
(or Northern Ireland). Subsection (2) allows an Order in Council
to make consequential provision including modifying the bill or
any other Act. The Government's memorandum explains that "the
clause provides for any necessary adjustment to the Act (for example
the arrangements for appointment of members, or the financial
provisions), and for the transfer of any property, rights, interest
and liabilities as a result of the changes in structure. The clause
is closely modelled on section 90 of the Scotland Act 1998, which
deals with changes to cross-border public authorities within the
meaning of that Act in similar circumstances." Again there
is a requirement to consult the Agency (subsection (6)) and the
requirement that the draft must be approved by five resolutions.
18. The Committee considers that delegation of this
Henry VIII power is appropriate (indeed unavoidable) and the control
19. Clause 37 contains supplementary provisions
about subordinate legislation under the bill. Subsection (1) applies
to all the powers in the bill and extends them to allow the making
of "supplementary, incidental, consequential, transitional
or saving provision" and this is further extended by subsection
(2) which allows an order under clause 25, 30 or 31, to include
"provision amending or repealing any enactment or subordinate
legislation". As clauses 32 and 33 allow the modification
of enactments, the only power extended by subsection (1) which
does not allow the amending or repealing of enactments is that
in clause 27 (notification of tests for food-borne disease) where
the extension is clearly not needed. The powers in clauses 25,
30 and 31 are all subject to affirmative procedure - the draft
must be approved by each House, if it is made by a U.K. minister;
by the Scottish Parliament, if made by the Scottish Ministers;
or the Northern Ireland Assembly, if made by the First Minister
and Deputy First Minister or by a Northern Ireland Department.
The Committee considers that this extension of the powers in clauses
25, 30 and 31 is appropriate and that the Parliamentary control
is appropriate as the primary powers are subject to affirmative
20. Clause 36(4) extends an existing power
(section 1(3) of the Food Safety Act 1999) to enable account to
be taken of the need to extend the meaning of "premises"
in that Act to provide for purposes relating to the bill.
21. Clause 40(4) allows an Order in Council
to extend to the Channel Islands an amendment or repeal of the
1990 Act made by the bill. As is customary with extensions to
the Channel Islands or the Isle of Man, there is no provision
for Parliamentary control.
22. Clause 42 contains a power to make by
regulations transitional and consequential provisions and savings.
The regulations are to be made by the Secretary of State, the
Scottish Ministers or the First Minister and Deputy First Minister
as appropriate. Subsection (2) provides that the regulations "may
make modifications of any enactment (including an enactment contained
in this Act)". Clause 37(5) applies negative procedure (at
Westminster, Edinburgh or Stormont as appropriate). While a power
to make "modifications" is close to being a Henry VIII
power, the power is conferred for transitional purposes only and
the Committee accepts that it is an appropriate delegation and
that the Parliamentary control is appropriate.
23. The only other power in the bill is a simple
commencement power in clause 43(2).
24. There is nothing in the bill which the Committee
wishes to draw to the attention of the House.
MENTAL HEALTH (AMENDMENT) (SCOTLAND) BILL
25. This Bill contains no delegated legislative powers.
1 Which we discuss in detail below. Back
2 We were satisfied with the delegation of that power; see our 21st
report, session 1998-99, HL Paper 79. Back
3 This report is also published on the Internet at the House of
Lords Select Committee Home Page (http://www.parliament.uk), where
further information about the work of the Committee is also available. Back