II AGENCY MEMBERS: "THE
COMMISSION"
19. Clause 2 of the draft Bill deals with what has
become known as the Agency's "commission", the appointed
members of the Agency who will govern its activities. Schedule
1 to the Bill sets out the constitution which will govern these
appointed members. The draft Bill allows for a membership of between
ten and fourteen (the explanatory notes state that the Agency
is envisaged as normally having twelve members[18]),
with that membership to be appointed by the appropriate authorities
(the Secretary of State for Health, and the relevant devolved
authorities in Scotland, Wales and Northern Ireland). One of these
members shall be appointed as chairman and another as deputy chairman.
The members are intended to act collegiately and reach collectively
agreed decisions.[19]
We believe that where it proves impossible to come to a collective
view the two sides of a contending argument should be fully expressed.
Subsection (2) requires that a reasonable balance of relevant
skills and experience be reflected in the Agency's membership;
and in addition subsection (3) requires two members to have particular
knowledge of issues of relevance in Scotland, and one member each
to have knowledge of such issues in Wales and Northern Ireland.
In certain cases the appropriate authorities acting jointly can
also remove a member from the Agency.
20. It is on subsection (4) that a great deal of
public attention has been focused. This subsection places a duty
on the appropriate authorities to consider whether any potential
member of the Agency "has any financial or other interest
which in their opinion is likely to prejudice the exercise of
his duties". This has been seen by the food industry in particular
as an unwelcome signal that anyone with an industry background,
and anyone still involved with the industry, would be barred from
membership.[20]
This prime concern of the industry is of course at the same time
a matter that consumer groups, for example, welcome.[21]
The Irish food agency, for example, has made much public credit
out of preventing any of its membership from having food industry
connections.[22]
The explanatory notes to this subsection however say that while
the appropriate authorities have a duty to consider interests,
no interest will of itself disbar anyone from membership of the
Agency.[23]
While this note does not explicitly contradict itself, it leaves
the situation far from lucid.
21. We therefore decided to raise this matter with
ministers in evidence. The Minister for Food Safety was forthright
in his interpretation of the subsection. "Nobody will be
excluded from applying and their interest and their expertise
could be relevant anyway....Nobody is ruled out because of a beneficial
interests which may be a pension, shareholdings...".[24]
Clearly, in view of this, individuals with an industry background
could be members of the Agency; indeed, in view of the Minister's
expectation that most members will be employed only on a part-time
basis by the Agency[25]
(with the probable exception of the chairman and the chairs of
the advisory committees for Scotland, Wales and Northen Ireland),
a member of the Agency could still be employed by the industry
during his membership. The Minister confirmed that all members
would be expected to have another, separate, source of income
from whatever remuneration they receive from the Agency.[26]
However, the Minister was just as clear in stressing how individuals
will be appointed as individuals and not as representatives of
any group, whether from local government, the industry or the
consumer side.[27]
We recommend that at second reading the Minister should make
explicit the criteria by which members of the Commission are selected
and interests are declared. The Minister further clarified
that members' appointments are at the moment expected to be for
from three to five years.[28]
The Minister also made it abundantly clear that membership of
the Agency will be advertised publicly following second reading
of the Bill, at which point the Government will have received
authority from the House to proceed in such advertisements. Appointments
will be fully consistent with the Nolan and Peach principles.[29]
22. Given the fact that members of the Agency will
in all likelihood be in receipt of remuneration from a source
other than the Agency, and given the variety of interests, financial
and otherwise which members might have, it will clearly be important
for members to make open and public declaration of any relevant
interests. These will of course not be solely related to members
from industry backgrounds: members from various backgrounds could
for example hold shares in food companies, and many scientists
and academics in the food arena are at some time or another in
receipt of sponsorship monies from the food or related industries,
or employed on research contracts with them. Provision is made
for a register of interests to be established under paragraph
9 of schedule 1 to the draft Bill. It is absolutely vital that
such a register be as open as possible, so that the independence
of the Agency is not compromised by the interests of its members.
Explanatory notes make clear that "although the Bill does
not specifically require it, the Agency's procedural rules would
be expected to prevent a member with an interest in a particular
matter from taking part in discussions on it".[30]
With the openness and transparency of the Agency being so fundamental
to its aim of creating public confidence in itself and thus in
its work to ensure standards and safety in the food chain, it
is clearly essential that the Government consider whether the
transparency set down in the Bill is sufficient; and that the
Agency's members recognise the position of public trust that they
hold and act accordingly.
23. The "Commission" will have a fundamental
role to play in generating the new culture that the Government—and
most outside bodies—hope will inform its policy and activities.
This new culture, expected to provide a new and fruitful approach
to food policy, will first of all have to permeate the Executive
which will manage and carry out the activities of the Agency.
The Chief Executive's post will be a full-time position,[31]
and will in the first instance be appointed by the appropriate
authorities, thereafter being appointed by the Agency members,
with the approval of those authorities. Separate directors for
Scotland, Wales and Northern Ireland will each head an executive
body with responsibility for the operation of the Agency in the
relevant part of the UK.[32]
By analogy with the Chief Executive these directors will in the
first instance be appointed by the appropriate authority in the
part of the UK concerned and will thereafter be appointed by the
Agency with the approval of that appropriate authority.[33]
The staff of the central headquarters of the Agency are expected
to number in excess of 400-450: of these approximately 300 are
expected to come from the Joint Food Safety and Standards Group.
The remaining 100-150 will come from the Civil Service and from
outside that Service.[34]
It is to be hoped that in its recruiting the Agency considers
the extent to which staff might be able to assist in the formation
of the new culture required from the Agency.
24. Membership of the Agency will reflect different
geographical remits and different expertise and backgrounds. It
is to be hoped that despite this disparateness, a cohesive culture
emerges that will serve to provide the country with the confidence
in the food chain that it deserves.
18 The Food Standards Agency: consultation on draft
legislation, Cm 4249, January
1999-notes on Clause 2. Back
19 ibid. Back
20 See,
for example, the written memoranda submitted to the Committee
by Tesco and by the Food and Drink Federation. Back
21 See,
for example, the written memorandum submitted by the National
Consumer Council. Back
22 QQ.
242-3. Back
23 The
Food Standards Agency: consultation on draft legislation,
Cm 4249, January 1999-notes on Clause 2. Back
24 Q.749. Back
25 ibid. Back
26 Q.754. Back
27 Q.763. Back
28 Q.753. Back
29 Q.747. Back
30 The
Food Standards Agency: consultation on draft legislation,
Cm 4249, January 1999-note on Clause 2. Back
31 Q.753. Back
32 ibid. Back
33 The
Food Standards Agency: consultation on draft legislation,
Cm 4249, January 1999-note on Clause 3. Back
34 Q.759. Back
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