Clause 34: Duty to take account of functions of the Food Safety Promotion Board.

Under the North/South Cooperation (Implementation Bodies) (Northern Ireland) Order 1999, made on 10 March following the Agreement between the Government of Great Britain and Northern Ireland of 8 March in implementation of the Belfast Agreement, the Food Safety Promotion Board (FSPB) is established as an all-Ireland implementation body. Its functions include promotion of food safety, research into food safety, communication of food alerts and surveillance of food-borne diseases. The FSPB comes into force on the appointed day when devolution takes place in Northern Ireland under the Northern Ireland Act 1998. This clause provides for the Agency to cooperate with the FSPB in Northern Ireland, so as to ensure that it does not duplicate the activities of the FSPB.

Clause 35: Devolution in Scotland.

Clause 35 deals with two particular matters arising in Scotland.

The first concerns the power of the Scottish Parliament to call witnesses. Under section 23 Scotland Act 1998, the Scottish Parliament has a general power to call witnesses on any subject within the responsibility of members of the Scottish Executive. However, persons outside Scotland can be required to attend and give evidence only in relation to their discharge of functions of the Scottish Administration, of Scottish public authorities or cross-border public authorities (as defined in the Scotland Act). Since the Agency is not a Scottish authority or cross-border public authority, without the amendment provided in clause 36(a), the Parliament would have no power to call witnesses from outside Scotland in relation to its activities.

The provision in relation to section 70(6) of the Scotland Act concerns the Agency's accounts. Section 70(6) prevents Scottish legislation imposing a requirement to prepare accounts on cross-border public authorities, where other legislation already requires them to prepare accounts to be examined either by the Auditor General for Scotland or the Comptroller and Auditor General. Clause 36(b) deems the Agency to be a cross-border public authority for the purposes of section 70(6), so the prohibition on Scottish legislation duplicating accounting requirements will apply in relation to the Agency. As a UK non-Ministerial department, the Agency will be subject to audit by the National Audit Office.

Clause 36: Interpretation.

This contains definitions of terms used in the Bill.

Powers of entry in the Bill are related to 'premises'. Subsection (4) provides that if the definition of 'premises' in the Food Safety Act 1990 is extended by an Order under section 1(3) of that Act to include ships and aircraft of a specified description, this extended definition may also be applied to functions under this Bill.

Clause 37: Subordinate legislation.

This clause groups together the general provisions relating to the manner in which the powers in the Bill to make subordinate legislation may be used. These are the powers:

• to modify statutory bars on disclosure of information to the Agency;

• to establish a notification system for food borne diseases;

• to apply the Food Safety Act 1990 to feedingstuffs; and

• to make Orders in Council relating to the constitution of the Agency and the consequences of the Scottish Parliament or NI Assembly removing functions from the Agency.

Subsection (1)(a) provides the person making the legislation with a broad discretion as to how the legislation is framed.

Clause 38: Application of Act to Crown.

This clause applies the requirements and powers contained in the Bill (including powers of entry) to activities and premises carried out or used by or on behalf of the Crown (but does not apply to the Queen in her private capacity). This reflects the provisions of the Food Safety Act 1990, which is applied to the Crown by section 54 of that Act.

Subsection (3) permits the Secretary of State to certify that powers of entry should not be exercised in relation to specified premises of national security importance, such as defence establishments.

Clause 39: Financial provisions.

This clause provides for the Agency's expenditure to be paid from money provided by Parliament. The clause specifically provides also for grant in aid from the National Assembly for Wales. Although it is not necessary in this Bill to mention funding from the Scottish Parliament and NI Assembly, it is envisaged that they will also make payments to the Agency.

Clause 40: Minor and consequential amendments and repeals.

As in clause 18 (see note), amendments to existing Acts made by Schedule 4 are to be treated as pre-commencement enactments for the purposes of the Scotland Act 1998.

Clause 41: Power to make transitional provision etc.

This clause provides for the Secretary of State to make regulations to deal with any transitional or consequential changes needed as a result of this Bill.

Clause 42: Short title, commencement and extent.

Subsection (3) deems section 58 of the Food Safety Act 1990 to apply to the Bill. Section 58 has two effects.

First, in relation to territorial waters (i.e. inland waters and the sea, generally out to 12 miles), it deems the authority responsible for any food premises (for example on gas rigs or other fixed structures) to be the same as that on the adjoining land. This provision also determines whether a structure lies in England, Scotland or Wales.

Secondly, section 58 allows the Food Safety Act to be extended by Order to structures outside territorial waters, but within areas which are British for oil and gas exploration purposes. No such Order has yet been made, but were it to be made, then the Agency would, by virtue of this clause, obtain appropriate powers in relation to the carrying out of surveys and monitoring of the work of enforcement authorities at installations in the British sector.

Schedule 1: Constitution etc. of the Agency.

This Schedule sets out detailed provisions on the constitution, staffing and operation of the Agency. The term 'the Agency' means the Food Standards Agency appointed in accordance with clause 2.

Paragraph 2 provides that members of the Agency can be re-appointed to posts they already hold or have held in the past, including those of Chairman and deputy chairman.

Paragraph 4 describes the circumstances in which the appropriate authorities may dismiss a member of the Agency. They have to satisfy themselves that the person is failing to perform his duties, has been declared bankrupt, is unable to meet his debts or is otherwise unfit to carry out his functions.

Paragraph 6 covers the circumstances in which the appropriate authorities may pay compensation to a member of the Agency who ceases to hold office. It is up to the appropriate authorities to make such a decision and thereafter the Agency is under a duty to pay whatever sum of money is decided.

Paragraph 7 disqualifies members of the Agency from standing as Members of Parliament or the Northern Ireland Assembly. Disqualification from membership of the European Parliament also flows automatically from this provision. Whether members should be disqualified from the Scottish Parliament and the National Assembly for Wales is a question for those bodies.

Paragraph 8 gives the Agency a duty to appoint other staff. The staff will be civil servants (many of the Agency's staff will transfer from the Agriculture and Health Departments). Staff transferring in this way will be formally re-appointed by the Agency.

Paragraph 11 ensures that any document which appears to be signed or sealed by or on behalf of the Agency is valid until shown not to be.

Paragraph 12 sets out to whom the Agency may delegate. Subparagraph (2) preserves the rule whereby the staff of a Minister (or in this case a non-Ministerial department) may act on his/its behalf. This is the same as the power that other civil servants exercise on behalf of Ministers.

Schedule 2: Advisory Committees

This Schedule supplements the provisions in clause 5 on advisory committees. It provides for the appointment of members, terms of reference, remuneration and expenses of committees for Scotland, Wales, Northern Ireland and England, and for specialist committees.

Paragraph 7 concerns the transfer of existing non-statutory advisory committees. A number of non-statutory independent advisory committees currently exist which deal with food related matters. They include the Advisory Committee on the Microbiological Safety of Food (ACMSF), the Advisory Committee on Novel Foods and Processes (ACNFP), the Food Advisory Committee (FAC) and the Consumer Panel. Under this paragraph the Secretary of State and the Minister of Agriculture, Fisheries and Food may direct that these committees be treated as if they were established by the Agency in accordance with clause 5 after consulting the Agency and any other authorities to whom the committees in question report.

Paragraph 8 provides that the Agency may establish joint committees with another authority. Current examples of joint committees include the Spongiform Encephalopathy Advisory Committee (SEAC), the Committee on the Medical Aspects of Food and Nutrition Policy (COMA), the Committee on Toxicity of Chemicals in Food, Consumer Products and the Environment (COT) and the Advisory Committee on Animal Feedingstuffs.

Schedule 3: The functions of the Agency under other Acts

NB As explained in the note on clause 18(2), the amendments in Schedules 3 and 4 are to Acts in their pre-devolution state. Thus, although many powers in relation to food, the environment, and agriculture have been devolved to both the Scottish and Welsh Administrations, the amendments still refer to the Secretary of State and Minister of Agriculture, Fisheries and Food alone and not to Scottish Ministers or the National Assembly for Wales (NAW). However, where the relevant functions have in fact been devolved, the references to the Secretary of State are intended to take effect in relation to Scotland and Wales as if they were references to Scottish Ministers and the NAW respectively. In general this will be the automatic result of the Scotland Act and the National Assembly of Wales Transfer of Functions Order 1999 (SI 1999/672) made under the Government of Wales Act, but the powers under those Acts will be available to make any further changes as necessary.

Part I: Functions under the Food Safety Act 1990.

This Part describes the functions under the Food Safety Act 1990 which will be taken over by the Agency. The amendments to that Act which give effect to this are detailed in Schedule 4.

These functions allow the Agency to act as an enforcement authority in similar circumstances to those in which the Minister of Agriculture, Fisheries and Food, the Secretaries of State for Health, Scotland and Wales can act (the option of allowing any of the Ministers to be an enforcement authority is retained). These provisions do not therefore create new powers. In addition, the Agency may grant consents or give directions in relation to emergency control orders (see also clause 17); issue Codes of Practice and give directions for their enforcement (in both cases after consulting the Secretary of State); require returns of information from food authorities; exercise default powers; and undertake consultation on proposals for regulations and orders on behalf of the Secretary of State.

In general, the functions of the Minister of Agriculture, Fisheries and Food will be transferred to the Secretary of State for Health, although the Bill retains the option for the Minister to be an enforcement authority. The Minister's current enforcement functions (for example on dairy and meat hygiene) will be transferred to the Agency by amending relevant secondary legislation.

Part II: Other functions.

Paragraph 8: Section 4 of the Medicines Act 1968 provides for the establishment of committees to advise on various aspects of the licensing of medicines (including veterinary medicines). Subparagraph (2) amends this provision to provide for the Agency to nominate a member of any committee established under it dealing with veterinary medicinal products for appointment by the Secretary of State.

This provision will in practice apply to the Veterinary Products Committee, which considers applications for authorisation of new veterinary medicines and related products. (It should be noted that, as with the Advisory Committee on Pesticides, it is expected that the Agency will also provide an adviser to this committee and its sub-committee).

Section 129 of the Medicines Act 1968 provides the general procedure for the making of regulations and orders under that Act. Subparagraph (3) amends section 129 to specify that the Agency must be consulted on any new regulations concerning veterinary drugs or medicated feedingstuffs.

Paragraph 9, subparagraphs (1) and (2) set out the Agency's functions in relation to emergency control orders made under the Food and Environment Protection Act 1985 (FEPA 1985), conferred by amendments to sections 2 and 3 of that Act. Consequential amendments are set out in more detail in Schedule 4.

Subparagraphs (3) to (5) amend Parts II and III of FEPA 1985, which relate respectively to the licensing of deposits at sea and of pesticides. The amendments introduce a requirement for the Agency to be consulted on licensing matters under Part II (dumping at sea), and a more general requirement for consultation of the Agency on matters covered by Part III (pesticides).

Powers are available under Part II of the Food and Environment Protection Act 1985 for Ministers to license the deposit of substances and articles in the sea and the loading of vessels with materials destined for incineration at sea. For these purposes, "Ministers" means the Minister of Agriculture, Fisheries and Food and the Secretary of State (in practice the Secretary of State for the Environment, Transport and the Regions) acting jointly. They may also make orders which specify types of operation which do not need a licence or which specify the conditions under which they may be exempt.

The purpose of such powers is primarily to protect the marine environment and to prevent interference with legitimate uses of the sea, and it is proposed that the powers should remain with Ministers as defined. However, in view of the potential effects of dumping at sea on the safety of food obtained from it, subparagraph (3) amends the powers to grant exemption from the requirement for licences to require that the Agency be consulted before any exemptions are made or conditions for exemptions set down in law.

Subparagraph (4) requires the licensing authority (which is the Minister responsible for fisheries in the place where dumping is proposed) to consult on specific applications and on the general way in which food safety should be addressed when considering licence applications. The licensing authority is obliged to take the Agency's advice into account.

Part III of FEPA 1985 concerns the licensing of pesticides and related products for the purposes of protecting human, animal and plant health, safeguarding the environment and securing safe, efficient and humane methods of controlling pests. Primary responsibility for such licensing lies with Agriculture, Health and Environment Ministers. Section 16 of the Act relates to the requirement on Ministers to consult the Advisory Committee on Pesticides (ACP) on proposals:

• for regulations;

• for giving, revoking or suspending approvals of pesticide products;

• for conditions to which they are considering making approvals subject.

Subparagraph (5) amends this provision to require Ministers to consult the Agency as well as the ACP on proposals for regulations, and from time to time on the general policy towards pesticides approvals. These are similar to the provisions concerning veterinary products outlined in the notes to clause 29 and Schedule 3, paragraph 8 above.

In practice, the amendment means that the Agency will be formally consulted by officials from the Pesticides Safety Directorate on policy advice that they intend to submit to Ministers on any of the above three matters where there are implications for food safety. It will also be achieved through the provision by the Agency of an assessor to the ACP and its sub-committee (the assessor's duty is to contribute to the assessment and authorisation of pesticides). This supplements the provision in subparagraph (6) below.

Subparagraph (6) amends the FEPA 1985 to provide for the Agency to nominate a member of the Advisory Committee on Pesticides.

Part VI of the Environmental Protection Act 1990 (EPA 1990) is concerned with preventing or minimising any damage to the environment which may result from the escape or release of genetically modified organisms (GMOs). Lead responsibility for this area of policy lies with the Secretary of State for the Environment, Transport and the Regions.

Paragraph 10 amends section 126 of the EPA 1990. Section 126 makes it a requirement for regulations controlling the import, acquisition, release or marketing of any GMOs and related matters to be made jointly by the Secretary of State for the Environment, Transport and the Regions and the Minister of Agriculture, Fisheries and Food, where the regulations concern any matter with which the latter is concerned. The amendment made by this clause does not alter this requirement, since MAFF will retain an interest in the economic and environmental implications of GMOs for the farming and food industries after the Agency comes into being.

It does however introduce mechanisms to ensure that the Agency can exercise the same degree of influence as MAFF does now (acting via the Secretary of State for Health on any functions which should be reserved for Ministers). In particular, the Agency must be consulted before any regulations on the deliberate release of GMOs are made where these relate to matters connected with its food safety and consumer protection remit.

The proposed amendment to section 126 would have the following effect.

Subsection (1) of this new section continues the Minister of Agriculture, Fisheries and Food's role in relation to regulations under Part VI of the EPA 1990. It does however exclude him from the power to make regulations relating to fees and charges under section 113 of that Act (but see Subsection (6) below).

Subsection (2) introduces a new requirement for the Agency to be consulted before any regulations under Part VI of EPA 1990 are made, where these relate to matters within its remit.

It should be noted that subsections (1) and (2) do not give the Secretary of State for Health any explicit role in the making of regulations. This is because it is not normal for legislation to refer to particular Secretaries of State: instead a general term is used, so in principle any Secretary of State could sign any legislation, while standard administrative arrangements are used to ensure that interested Departments are involved as necessary. The requirement for consultation with the Agency will go further by providing a statutory guarantee that health interests relating to food are fully addressed. The Agency will of course be able to advise the Secretary of State for Health to intervene with his Environment opposite number if it feels that food safety implications are not being given sufficient weight.

Subsection (3) preserves the Minister of Agriculture, Fisheries and Food's role in all the functions under Part VI (other than the power to make regulations, which is dealt with under subparagraph (1) above).

Subsection (4) applies in relation to the powers (other than powers to make regulations):

• under section 108(8), to require certain persons to apply for authorisation to release GMOs;

• under section 110, to prohibit certain persons from releasing GMOs if it is believed they risk damaging the environment;

• under section 111, to issue consents for the release of GMOs;

• under section 112, to set conditions and limitations on the granting of consents under section 111.

The effect of the amendment is that these powers must now be exercised jointly by the Secretary of State, the Agency, in relation to matters connected with food safety and other interests of consumers in relation to food, and the Minister of Agriculture, Fisheries and Food where he is also concerned with the matter in question.

Subsection (6) requires the Secretary of State for the Environment, Transport and the Regions to take account of costs incurred by the Minister of Agriculture, Fisheries and Food and the Agency in drawing up charging scheme under section 113 of the EPA 1990.

Subsection (7) qualifies the subsections of this clause that deal with joint action and consultation. Essentially, it provides that any regulatory power or function exercised under this subsection is not rendered invalid if there is subsequently any question as to whether it should have been done (or not done) jointly with, or else following consultation with, the Minister of Agriculture, Fisheries and Food or the Agency (or both), rather than by the Secretary of State (for the Environment, Transport and the Regions) acting alone.

Paragraph 11 sets out the Agency's right to be consulted on authorisations to dispose of radioactive waste. The detailed amendments to the Radioactive Substances Act 1993 are made in Schedule 4.

Schedule 4: Minor and Consequential Amendments

This Schedule makes minor amendments to other legislation which are a consequence of the creation and new responsibilities of the Agency, and also to provide for the functions of the Agency provided in Schedule 3.

Paragraph 1 amends the relevant legislation on agricultural statistics that applies in Scotland, and has the same purpose as paragraph 3 (see below).

Paragraph 2 amends the Trades Descriptions Act 1968. Orders made under that Act concerning food or feedingstuffs will in future be made jointly by the President of the Board of Trade, the Secretary of State for Health (rather than the Minister of Agriculture, Fisheries and Food), and the Scottish, Welsh and Northern Ireland Ministers if appropriate. The Agency will also be consulted. In practice, this provision is likely to be used only rarely since these provisions are largely duplicated by powers in the Food Safety Act 1990 and the Agriculture Act 1970.

Paragraph 3 provides that information on agricultural holdings obtained for the purposes of compiling the agricultural and horticultural census in England and Wales may, at the discretion of the Minister of Agriculture, Fisheries and Food, be disclosed to the Agency for purposes connected with carrying out its functions. This would allow the Agency, as a non-Ministerial government department in its own right, to be treated in the same way as Ministerial government departments, to which disclosure is currently possible under section 3(1) of the Agricultural Statistics Act 1979.

The Agency would use information obtained in this way to assist it in planning food safety surveys on farms (in preparing for a survey of the presence of salmonella in poultry, for example, it would need to know where poultry breeding took place). The information would also assist the Agency in considering applications for industrial discharge authorisations, on which it will be a statutory consultee, as well as in dealing with emergency contamination incidents. In practice, the Agency is likely to use such data infrequently and on a limited scale.

Paragraph 4 amends the Food and Environment Protection Act 1985 Part I. References to the Minister of Agriculture, Fisheries and Food are removed, so these functions may now only be exercised by the Secretary of State.

Paragraphs 5, 6, 8, 9, and 10 amend the Food Safety Act 1990, removing references to the Minister of Agriculture, Fisheries and Food. They also provide for some of the powers described in Part I of Schedule 3.

Paragraphs 7 and 20 concern the Isles of Scilly. Due to the slightly anomalous position of the Scilly Isles in the local government structure, the 1990 Act provided that its application to the Isles could be subject to such exceptions and modifications as Ministers may direct. In practice however, the only modification which has been necessary is to provide for the council of the Isles of Scilly to be the enforcement authority in the Isles. This has now been made explicit by amendment to s 5 of the 1990 Act (Schedule 4 paragraph 7), so s 57(1) is no longer necessary and ceases to have effect (paragraph 20).

Paragraph 8 amends section 6 (enforcement) of the Food Safety Act 1990. It provides for the Secretary of State to direct that a duty imposed on an enforcement body under the Act should instead be discharged by himself or by the Minister of Agriculture, Fisheries and Food or by the Agency. It also provides for the Agency to be one of the bodies which may be named as an enforcement body in regulations made under section 6 of the 1990 Act (it is envisaged that this power will be used for instance in relation to the Meat Hygiene Service, which will become part of the Food Standards Agency). Amendments also provide for the Secretary of State to take over a prosecution begun by another person under the Food Safety Act 1990 (this replaces a similar provision in the current Act) or for the Agency to take over such proceedings with the consent of that person or at the direction of the Secretary of State.

Paragraph 9 amends section 13 of the Food Safety Act 1990 (emergency control orders). Power to make emergency control orders will transfer to the Secretary of State, although this may be delegated to the Agency under clause 17 of this Bill. The amendments in paragraph 9 allow either the Agency or the Secretary of State to consent to exemptions, give directions to prevent food subject to an order being used commercially, and to recover costs from persons failing to comply with an order.

Paragraph 14 concerns offences by Scottish partnerships. Section 36 of the Food Safety Act 1990 provides that, where an offence under the Act committed by a body corporate is proved to have been committed with the consent or connivance of (or be attributable to any neglect on the part of) a director, manager, secretary or similar office holder of the body, or by a person purporting to act in such a capacity, that person (as well as the body corporate) is deemed guilty of the offence. It has been held that in Scotland the words "body corporate" include a partnership which in Scots law has an identity separate from that of the individual partners. This clause adds a new Section 36A to provide that individual partners may be charged along with the partnership in respect of any offence committed under the Act.

Paragraph 15 amends section 40 of the Food Safety Act 1990 in the following ways. Subparagraph (2) inserts a new subsection (1A) to give the Agency power, after consulting the Secretary of State, to issue a direction to a local authority to ensure that it complies with a statutory code of practice issued under Section 40. Subparagraph (3) amends section 40(2)(b) to require local authorities to comply with a direction of the Agency, but the power of Ministers to direct is abolished. Subparagraph (4) amends section 40(3) so that the Agency rather than Ministers can obtain a court order forcing a local authority to take appropriate action where it fails to comply with a direction but it must consult the Secretary of State before doing so. Subparagraphs (5) and (6) amend section 40(4) of the Food Safety Act, concerning consultation of interested parties before issuing codes of practice. Ministers are required to have regard to the Agency's advice on these matters. The requirement to consult relevant organisations is retained, although consultation carried out by the Agency may be taken as meeting this obligation.

Paragraph 16 amends section 41 of the Food Safety Act 1990 by removing from the Minister of Agriculture, Fisheries and Food the power to require local authorities to provide information that is relevant to their enforcement work carried out under the Act and assigns that power to the Agency.

Paragraph 17 amends section 42 of the Food Safety Act 1990 by empowering the Secretary of State to direct the Agency (as an alternative to designating another local authority) to carry out the enforcement functions of a local authority that has failed to meet its enforcement obligations.

Paragraph 18 amends section 45 of the Food Safety Act. Shortly after the enactment of the 1990 Act, the Parliamentary Joint Committee on Statutory Instruments expressed some doubt as to whether section 45 allowed for charges to be imposed on application for a licence, rather than on its granting. This amendment makes it clear that section 45 enables Ministers to provide for charges to be imposed on application (for example, for a licence) and not just on completion of a transaction.

Paragraph 19 makes amendments to section 48 of the Food Safety Act 1990, concerning consultation before legislation is made under that Act by the Secretary of State. These are similar in effect to those described in paragraph 15(5) and (6) above.

Schedule 1 to the Food Safety Act 1990 supplements the subject areas in which regulations may be made by Ministers under section 16 of that Act. Paragraph 21 provides additionally for regulations to control substances and activities relating to the farm production of food sources* which may have an impact on food safety or otherwise affect consumer interests. The effect of this amendment is therefore to extend the scope of the Food Safety Act 1990 to cover the whole of the primary production end of the food chain. However, these powers will normally be used in relation to on-farm activity only where existing powers available to, for example, Agriculture or Environment Ministers are unavailable or insufficient.

*     Food source is defined in the Food Safety Act 1990 (section 3) as any growing crop or live animal, bird or fish from which food is intended to be derived (whether by harvesting, slaughtering, milking, collecting eggs or otherwise).

Paragraph 23 revokes any byelaws made (or having effect as if made) under section 15 of the Food Act 1984 and which were continued in force under the Food Safety Act 1990. That Act abolished the power to make food byelaws, subject to a provision which saved those in force immediately before the Act came into force. Byelaws related to miscellaneous matters are no longer needed in view of the current legal provisions for food safety and standards.

Paragraph 24 amends provisions of the Radioactive Substances Act 1993 (RSA 1993) to make the Agency the statutory consultee of the Environment Agency (EA) and the Scottish Environment Protection Agency (SEPA) on authorisations to dispose of radioactive waste, as well as on the revocation and variation of such authorisations. This will enable the Agency to influence the control of an important potential hazard to food safety. The Agency will replace the Minister of Agriculture, Fisheries and Food and the Secretary of State for Wales in these roles as far as England and Wales are concerned and the Secretary of State for Scotland in relation to authorisations issued by SEPA.

Subparagraph (2) amends the relevant provisions of RSA 1993 to make the Agency the statutory consultee on authorisations in place of Ministers.

Subparagraph (3) does the same in respect of the revocation and variation of authorisations.

Subparagraphs (4) and (6) remove references to the Minister of Agriculture, Fisheries and Food from those parts of the RSA 1993 where he no longer has a function.

Subparagraph (5) amends section 25 of RSA 1993. That section allows the Secretary of State for the Environment, Transport and the Regions to restrict access to information in applications under the Act on grounds of national security. The section (prior to the amendment made by the Bill) makes it clear that this power did not release the EA or SEPA from their duty to consult Ministers on applications for discharges and did not apply to any information sent by the EA or SEPA to Ministers. The amendment made by this paragraph simply relates the provision to the Agency rather than to Ministers, to ensure that the Agency is able properly to exercise the consultation function given to it by subsections (2) and (3).

Before setting charges in relation to licence applications, including those under the RSA 1993, the Environment Agencies are currently obliged to take into account the costs and expenses of the Minister of Agriculture, Fisheries and Food and certain of those of the Scottish and Welsh administrations (i.e. those performed by the Scottish and Welsh administrations which would be performed by the Minister of Agriculture, Fisheries and Food in England). The Minister's and Secretary of State's functions under the RSA 1993 are being transferred to the Agency (see note to paragraph 19 above), and, accordingly, the amendments to Environment Act 1995 made in paragraph 25 specify that it is the Agency's costs and expenses that must be taken into account.

As the Minister of Agriculture, Fisheries and Food will no longer have responsibilities in this area subparagraph (4) removes the need for that Minister to approve any relevant charging proposals.

Fees charged by the Environment Agencies for licences may include an element to meet the costs incurred by the Agency. Subparagraphs (5) and (6) allow for these sums to be transferred from the Environment Agency to the Agency after collection.