Select Committee on Delegated Powers and Deregulation Twenty-Sixth Report



ANNEX

Memorandum by the Ministry of Agriculture, Fisheries and Food and the Department of Health

Food Standards Bill

1. This memorandum, submitted by the Ministry of Agriculture, Fisheries and Food and the Department of Health jointly, identifies those provisions in the Food Standards Bill which confer powers to make delegated legislation. It describes the purpose of each relevant power, explains why the matter is to be left to delegated legislation, and the nature and reason for the procedure selected in each case.

OUTLINE AND SCOPE OF THE BILL

2. The main purpose of the Bill is to establish the Food Standards Agency, and to provide it with functions and powers; the Bill also transfers food safety and standards functions from the Minister of Agriculture, Fisheries and Food to the Secretary of State, and makes other amendments to legislation consequential on the establishment of the Agency. It also provides new powers in relation to feedingstuffs.

3. The Bill sets out the Agency's main objective as to protect public health from risks which may arise in connection with the consumption of food (including risks caused by the way it is produced or supplied) and otherwise to protect the interests of consumers in relation to food. It establishes the Agency's constitution and gives it the necessary powers to act across the whole food chain, though powers to make legislation and ultimate accountability to Parliament (and the devolved legislatures) remains with Health Ministers. The Bill also deals with a related matter, by providing powers to establish by regulation a scheme for the notification of the results of tests for food-borne diseases.

  4. The main body of the Bill is arranged as follows:

  • The Food Standards Agency (clauses 1-5), concerns the establishment of the Agency, its main objective and its main organisational arrangements including the establishment of advisory committees (more detailed provisions are contained in Schedules 1 and 2);

  • General functions in relation to food (clauses 6-8), confers on the Agency responsibility for developing food policy and advising Ministers and other public authorities, for advising consumers and other interested parties and for keeping abreast of developments relevant to its remit;

  • General functions in relation to animal feedingstuffs (clause 9) supplements the Agency's functions in relation to animal feed;

  • Observations with a view to acquiring information (clauses 10-11) gives the Agency functions in relation to surveillance and provides powers to enable it to carry them out;

  • Monitoring of enforcement action (clauses 12-16) gives the Agency a function of monitoring food law enforcement and provides powers to enable it to carry it out;

  • Other functions of the Agency (clauses 17-21) describes the Secretary of State's powers to delegate the making of emergency orders to the Agency, the Agency's power to publish its advice, its functions under other Acts and supplementary functions (detailed functions under the Food Safety Act 1990 and other primary legislation are provided for in Schedule 3);

  • General provisions relating to the functions of the Agency (clauses 22-25), concerns certain considerations which the Agency must observe in carrying out its functions; provides for directions by Ministers and the devolved authorities should the Agency fail to perform its duties, and allows for modification of enactments to allow disclosure of information to the Agency and publication by it;

  • Miscellaneous provisions (clauses 26-35), sets out the functions no longer to be exercised by the Minister of Agriculture, Fisheries and Food, and makes various provisions for consultation with other parts of Government or the devolved administrations on aspects of food safety. It also allows secondary legislation to apply to animal feedingstuffs provisions equivalent to those of the Food Safety Act 1990, and makes provisions for the modification of the constitution and functions of the Agency, in the light of experience with devolution, or in the event of Scotland or Northern Ireland exercising their right to leave the Agency;

  • Final provisions (clauses 36-43), defines various terms used in the Bill, makes provision in relation to the financing of the Agency (accounts and audit provisions are in Schedule 4), applies the provisions of the Bill to the Crown and amends or repeals legislation as a consequence of the main provisions of the Bill (details are set out in the associated Schedules 5 and 6).

5. 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). 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.

6. 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.

DELEGATED POWERS

7. The Bill contains six powers to make delegated legislation (in addition to commencement powers). It also provides for the delegation of existing powers to make emergency Orders in the Food Safety Act 1990 and the Food and Environment Protection Act 1990 from Ministers to the Agency in certain circumstances.

8. Clause 37 of the Bill makes general provisions about subordinate legislation made under it. It specifies that any power under the Bill to make any order or regulations is exercisable by statutory instrument (or statutory rule in relation to Northern Ireland); provides for any statutory instrument to contain such supplementary, incidental, consequential, transitional or saving provision as necessary, and to make different provision for different purposes; and provides for the Parliamentary procedure applicable to such instruments.

9. It should be noted that, except in relation to clauses 25, 32 and 33, the secondary legislative powers are exercisable as regards Wales, Scotland and Northern Ireland by the devolved authorities, rather than by Parliament. As regards Scotland and NI, the delegated power is always exercisable on a similar basis to the power exercised in relation to England at Westminster - so if affirmative resolution is required at Westminster, the same is needed for Scottish and NI secondary legislation. In Wales, however, all subordinate legislation which is not subject to a Parliamentary procedure is, by virtue of s 44 and 58 of the Government of Wales Act 1998, treated as Assembly general subordinate legislation. This means that, unless the executive committee of the National Assembly for Wales decides otherwise (acting under s 67 of the Government of Wales Act), the procedure in s 66 of the Government of Wales Act will apply to any legislation made by the National Assembly for Wales under this Bill. This is effectively an affirmative resolution procedure. The remainder of this memorandum deals only with the procedure applicable to legislation made at Westminster.

10. Clause 38 applies the Act to the Crown, though does not affect Her Majesty in her private capacity. This is consistent with the approach in the Food Safety Act 1990 (section 54). However, clause 38 states that it does not require subordinate legislation made under the Act to bind the Crown; thus a decision on Crown application would have to be made individually for each subordinate instrument.

Clause 17:  Delegation of powers to make emergency orders

11. 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.

12. Both of these emergency powers are of course designed to be used in a situation of extreme urgency. At present, where necessary, emergency Orders may be signed by an official of the Minister making the Order, following the Carltona principle. This may be essential, given the need for speed, if the Minister is not readily available to sign the Order. However, officials of the Agency are not officials of the Ministers who would normally make these Orders. Further, it will be the Agency rather than Ministers who have the detailed knowledge on which the decision to make the Order will be based. Therefore provision is made for the use of these emergency powers by the Agency, subject to agreement by Ministers. For example, in the light of experience, Ministers may conclude that it would be appropriate for emergency orders only of a particular type to be delegated entirely to the Agency (one possible example is the need for regular FEPA orders in respect of certain shellfish beds in Scotland because of the risk of Paralytic Shellfish Poisoning). Clause 17 therefore provides for arrangements to be made between the Secretary of State, or the devolved authority as appropriate, and the Agency, to authorise the Agency to exercise these powers on Ministers' behalf. The authority may be limited to particular circumstances.

13. 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.

14. 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.

Clause 25:  Power to modify enactments about disclosure of information

Power conferred on: The Secretary of State; Scottish Ministers; the First Minister and deputy First Minister, acting jointly (for Northern Ireland).
Power exercisable by: Order made by statutory instrument
Parliamentary procedure: draft affirmative (both Houses); draft affirmative before Scottish Parliament or Northern Ireland Assembly where made by Scottish Ministers/NI Ministers respectively.

15. Clause 25 makes provision for the Secretary of State (in relation to all enactments), Scottish Ministers (in relation to legislation within Scottish legislative competence), or the Northern Ireland First Minister and deputy First Minister (in relation to transferred matters) to make an Order to remove or relax any prohibition in any enactment prohibiting disclosure of information to or by the Agency. The power is also available to relax common law rules of law which would prevent disclosure to the Agency. The Order may make provision restricting the use to which such information is put.

16. The reason for this power is to ensure there are no significant gaps in the Agency's access to information or its ability to operate in an open and transparent way. Clause 19 provides a power for the Agency to publish any advice or information it gives or obtains (including advice to Ministers) and any other information in its possession. That power is, however, restricted in subsection (2) to prevent the agency from publishing any advice or information prohibited by an enactment, or by any Community obligation, or which would be in contempt of court. In addition, subsection (3) requires the Agency to consider whether considerations of confidentiality outweigh the public interest in disclosure before publishing.

17. The policy objective is that the Agency should operate as openly and transparently as possible, and that the general presumption should be in favour of publication. However, it is recognised that Parliament has agreed to existing statutory bars to disclosure for a good reason, and hence the Agency should not be able to override them automatically unless it is clear there is a justification for doing so. 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. Hence clause 29(3) deals with the disclosure of information related to veterinary medicinal products, which is prohibited by section 118 of the Medicines Act 1968 and similar provisions in secondary legislation; and Schedule 4 paragraphs 1 and 3 ensure that the Agency is treated in the same way as other Government departments for the purposes of receipt of agricultural census information. Clause 25 provides a power to lift or relax other bars if, in the light of experience or changed circumstances it becomes clear that the Agency is unable to obtain access to information to assist it in the performance of its functions, or is prevented from publishing information which it believes it is in the public interest to publish.

18. The power is similar to that provided for in clause 65 of the draft Freedom of Information Bill, though in this case it is limited to disclosure of information which would facilitate the Agency carrying out its functions.

19. As with the similar provision in the draft Freedom of Information Bill, affirmative resolution procedure is thought appropriate since the power provides for changes to provisions which Parliament has seen fit to include in previous legislation.

Clause 27:  Notification of tests for food-borne disease

Power conferred on: The Secretary of State; the National assembly for Wales; Scottish Ministers; the Department of Health and Social Services for Northern Ireland.
Power exercisable by: Regulations made by statutory instrument (or statutory rule in NI)
Parliamentary procedure: negative resolution of either House of Parliament, or the Scottish Parliament/ Northern Ireland Assembly as appropriate.

20. Clause 27 provides for the Secretary of State (or the devolved authorities as appropriate) to make regulations establishing a notification scheme for the results of tests for organisms causing foodborne illness in humans. At present there is a voluntary notification scheme applicable to public and private laboratories under which results of tests for the main organisms causing food poisoning are notified to the Public Health Laboratory Service (PHLS) (in England and Wales - similar arrangements apply in Scotland where notifications are made to the Scottish Centre for Infection and Environmental Health, and in Northern Ireland to the Department of Health and Social Services). However, coverage of the voluntary scheme is incomplete: although it is relatively high with around 70% of results estimated to be notified at present, greater use of private laboratories is likely to affect this in future. The voluntary scheme also applies inconsistently as regards the organisms reported. It therefore leaves considerable doubt about the real incidence of food-borne disease which affects the ability of health departments and others concerned with public health to investigate and tackle the cause of the problem. Inadequate notification may also lead to delays in the investigation of individual outbreaks of disease.

21. In practice it is envisaged that regulations under clause 27 would initially relate to salmonella, E. Coli O157 and campylobacter, and, in England and Wales, provide for notification as now to PHLS, with aggregate information being provided to the Food Standards Agency to assist it in developing policies to tackle food poisoning. However, the exact details on any notification scheme may depend in part on the outcome of follow-up work to a major study of Infectious Intestinal Disease (IID) undertaken for Department of Health which is expected to be published in full later this year.

22. It is submitted that it is appropriate for provisions about the notification of the results of tests for food-borne illness to be made by delegated legislation because these are detailed matters in which it will be necessary to take account of the precise circumstances at the time the regulations are made, in particular with respect to the types of organism to be notified and the types of tests covered, on which scientific developments are taking place all the time. It is submitted that the negative resolution procedure is appropriate in this case because the regulations will deal with a technical and not unduly onerous requirement. It may be necessary to redefine the diseases or tests covered by the regulations in response to changing circumstances.

Clause 30:  Animal feedingstuffs: Great Britain

Power conferred on: The Secretary of State and the Minister of Agriculture, Fisheries and Food, acting jointly (for England and Wales); Scottish Ministers (for Scotland).
Power exercisable by: Order made by statutory instrument
Parliamentary procedure: draft affirmative (both Houses); draft affirmative before Scottish Parliament

23. Clause 30 provides for the Secretary of State acting jointly with the Minister of Agriculture, Fisheries and Food (or, in the case of Scotland, Scottish Ministers, acting alone) to make an order applying provisions equivalent to those in the Food Safety Act 1990 to the regulation of animal feedingstuffs.

24. The Bill provides for the Agency to take policy responsibility for animal feedingstuffs matters as they potentially affect the safety of food for human consumers (this is provided by virtue of its main objective in clause 1 and its advice and information functions in clauses 6 and 7). It also provides, in clause 9, that the Agency should undertake the same general functions in relation to the safety of animal feedingstuffs and the interests of their users. This is to ensure that where the Agency takes the lead responsibility in matters relating to animal feedingstuffs which are incidentally also concerned with animal health or consumer protection for the purchasers of the feed (such as for example some feed labelling matters), it is included within the Agency's remit.

25. The Government's intention is that the Agency should be able to take the policy lead in a wide range of matters governing the safety, composition and labelling of animal feeds. However, the Ministry of Agriculture, Fisheries and Food will retain policy responsibility for some aspects of animal feed legislation related to the control of feed-borne diseases of animals. At present, feedingstuffs are regulated by means of regulations under the Food Safety Act 1990, the Agriculture Act 1970 and the European Communities Act 1972, and by orders made under the Animal Health Act 1981. To reflect the split of responsibilities between the Agency and MAFF in relation to feedingstuffs, it was proposed that the Agency's responsibilities should normally be discharged under the provisions of the Food Safety Act 1990, while the MAFF responsibilities which relate to animal health should be dealt with under the Animal Health Act 1981. However, currently much feed legislation is made under the Agriculture Act 1970, the provisions of which are now somewhat outdated. It was therefore proposed in the White Paper in January 1998, 'The Food Standards Agency - A Force for Change', that the 1990 Act should be extended in scope to cover animal feeding stuffs and to supersede the relevant provisions of the 1970 Act.

26. In practice, amending the 1990 Act to cover animal feedingstuffs would have meant extensive and significant redrafting of the provisions of that Act. It would also have potentially unbalanced the present Bill by producing an excessive emphasis in the Bill on animal feedingstuffs matters, including matters not related to food safety. Clause 30 therefore provides for an order-making power under which Ministers may establish new provisions for the regulation of animal feed to replace Part IV of the Agriculture Act 1970 with provisions based on the Food Safety Act 1990. The aim is to produce a more coherent body of legislation in which there is greater consistency in the regulation and enforcement of matters related to human and animal food. The new Order should also allow regulations made in implementation of EC obligations in this area to be shorter and simpler. Given the continuing interest of Agriculture departments in animal feedingstuffs matters, the power is proposed to be exercised jointly by the Secretary of State and the Minister of Agriculture Fisheries and Food for England and Wales.

27. It is submitted that delegated legislation is appropriate in this case because the new order will simply parallel the provisions of the 1990 Act. Had the necessary detailed amendments been made in the Food Standards Bill, they could, as indicated above, have obscured the major objective of the Bill, the creation of the Agency and the provision of related food safety functions. Moreover, the Government has just completed the process of establishing a new specialist advisory committee to advise on animal feedingstuffs matters, the Advisory Committee on Animal Feedingstuffs, as signalled in the White Paper. The new Committee will meet for the first time in autumn 1999. The Government believes it would be helpful to seek the advice of its new advisory committee before making any changes to the regulatory framework for animal feedingstuffs in implementation of clause 30.

28. Since the Order is designed to replace provisions in primary legislation, it is submitted that it is appropriate that the affirmative resolution procedure should apply.

Clause 31:  Animal feedingstuffs: Northern Ireland

Power conferred on: The Department of Agriculture for Northern Ireland and the Department of Health and Social Services for Northern Ireland, acting jointly.
Power exercisable by: Order made by statutory rule
Parliamentary procedure: Draft affirmative (NI Assembly)

29. Clause 31 makes parallel provision in respect of Northern Ireland as is described in relation to clause 30 above.

Clause 32:  Modification of this Act

Power conferred on: Her Majesty by Order in Council
Power exercisable by: Order in Council
Parliamentary procedure: draft affirmative resolution of both Houses of Parliament, the National assembly for Wales, the Scottish Parliament and the Northern Ireland Assembly

30. Clause 32 provides a general power by Order in Council to modify the Act concerning the constitution of the Agency, or any functions exercisable in relation to it by any of the 'appropriate authorities' (as defined in clause 36), or the powers of Parliament, the Scottish Parliament or the Northern Ireland Assembly.

31. As explained in paragraph 5 the Agency is being established as a UK body operating in a devolved area in which the devolved authorities have legislative responsibilities. 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.

32. Since the Agency is the shared responsibility of Parliament and the devolved legislatures, the procedure chosen is that of Order in Council because it is clear that for the Agency to function successfully as a UK body it will depend on co-operation between the four authorities and therefore any amendments to its constitution and functions will need to be jointly agreed. The Order in Council procedure provides the most appropriate procedure for allowing each legislature formally to consider and consent to any changes. Again, this is precedented by the Scotland Act 1998. The affirmative resolution procedure is appropriate since the exercise of this power would result in amendments to the primary legislation.

Clause 33:  Consequences of Agency losing certain functions

Power conferred on: Her Majesty by Order in Council
Power exercisable by: Order in Council
Parliamentary procedure: draft affirmative resolution of both Houses of Parliament, the National assembly for Wales, the Scottish Parliament and the Northern Ireland Assembly

33. Clause 33 provides for circumstances in which the Scottish Parliament or the Northern Ireland Assembly pass any act to provide that any functions of the Agency are no longer to be exercised in Scotland or Northern Ireland, as the case may be (this would include circumstances in which those parts of the UK withdrew entirely from the Agency, as they are entitled to do within their devolved competence). 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.

34. The Order in Council procedure is chosen for the reasons described in relation to clause 32 (paragraph 32 above).

Clause 40:  Minor and consequential amendments and repeals

35. Clause 40(4) provides a consequential power related to the application of the Food Safety Act 1990, as amended, to the Channel Islands. Section 57 of the 1990 Act provides for Her Majesty, by Order in Council, to direct that the provisions of the Act shall extend to the Channel Islands, with any exceptions or modifications as specified. This clause provides for an Order to extend to the Channel Islands any amendments to the 1990 Act made by this Act. This matter is considered appropriate to delegated legislation given the very limited nature of the power which simply extends very slightly the existing powers in the 1990 Act. The 1990 Act does not provide for any Parliamentary procedure for Orders in Council of this kind.

Clause 42:  Power to make transitional provision etc.

Power conferred on: The Secretary of State; Scottish Ministers for matters in the legislative competence of the Scottish Parliament; First Minister and Deputy First Minister, for transferred matters.
Power exercisable by: Regulations made by statutory instrument (or statutory rule in NI)
Parliamentary procedure: negative resolution of either House of Parliament, or the Scottish Parliament as appropriate.

36. Clause 42 provides standard transitional provisions to make regulations to deal with consequential changes to primary or secondary legislation as a result of the Bill. For example, a number of regulations or orders made under the 1990 Act will need to be amended to replace references to the Ministry of Agriculture, Fisheries and Food with references to the Agency. It is submitted that delegated legislation is appropriate in this case since these are matters of detail arising out of the Bill.

37. It is considered that the negative resolution procedure is appropriate given the limited and detailed nature of the power.

Clause 43:  Short title, commencement and extent

Power conferred on: The Secretary of State.
Power exercisable by: Order made by statutory instrument
Parliamentary procedure: None

38. Clause 43(2) provides the usual power to commence the provisions of the Bill on such days as the Secretary of State may by Order appoint. Different days may be appointed for different purposes. No Parliamentary procedure is provided for an order in accordance with normal practice, given the limited scope of commencement orders.

July 1999


 
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