V OPENNESS AND ACCOUNTABILITY
A presumption of openness
51. It is to be welcomed that openness and transparency
forms part of the fifth of the nine guiding principles behind
the Agency as set out in the White Paper.[84]
The Agency's power of providing advice and information to the
general public, as well as public authorities, is set down in
Clauses 10 and 11. In oral evidence to us, the Minister for Food
Safety agreed that this power might fruitfully be extended to
providing advice to the food industry.[85]
We recommend that this is made explicit on the face of the Bill.
This power is of course indicative of the Agency's openness, but
the provision in the draft Bill relating specifically to this
principle as a whole is Clause 18. This clause provides for the
Agency to prepare and publish a statement of general objectives
which shall include, amongst other things, the objective of "securing
that records of its decisions, and the information on which they
are based, are kept and made available...to..the public".
We agree that this principle should effectively amount to a presumption
of openness on behalf of the Agency in its activities and operations.
Publication of advice to Ministers
52. A prime manifestation of this openness—and
one that is particularly connected to its openness—is the
Agency's power to publish its advice to ministers, a power set
out in Clause 11 of the draft Bill. The explanatory notes on this
clause make clear that "the Agency's express ability to publish
any of its advice to Ministers will be an important factor in
its influence and independence".[86]
The importance of this power was also expressed by Ministers in
evidence to us, and was one of the principal reasons for the strong
support for the Agency amongst consumer groups.[87]
Some uncertainties
53. This picture of openness is not, however, without
its uncertainties. The statement of general objectives and practices
which the Agency is enabled to make by Clause 18 has to be submitted
to the "appropriate authorities"—the Secretary
of State or relevant devolved authority—for approval before
publication. Moreover, "modifications" to this statement
can be made by those authorities under Clause 18 after consultation
with the Agency, but not necessarily after their approval of those
modifications. This power of the authorities goes in tandem with
their power to request particular advice from the Agency and its
corresponding duty to comply, set out in Clause 9 of the draft
Bill. Taken together they effectively mean that the Agency could
be directed in its actions by those authorities and prevented
from making a statement of its general objectives that included
matters that those same authorities wanted withheld from it. How
this stands alongside the independence hoped for from the Agency
is difficult to tell. We recommend that the Government clearly
explain the reasoning behind these powers when the Bill proper
is introduced to the House. This may then allay some of the
concerns about them expressed in memoranda and evidence to the
Committee.[88]
54. Some concern has also been expressed over the
two provisos given in subsections (2) and (3) of Clause 11 concerning
the publication of advice or information to Ministers or to the
public. The first of these provisos, contained in subsection (2)
of that Clause, concerns confidentiality, of which consideration
must be taken by the Agency in deciding whether or not to publish
any material. However this proviso is itself over-ridden by the
fact that the Agency is empowered further on in that subsection
to publish documents which contain confidential matters if it
appears to be in the public interest to do so. Despite this presumption
of openness, there have been some anxieties expressed that matters
of commercial confidentiality in particular might be withheld
from public scrutiny when they ought rather to be made available
by the Agency.[89]
We would consider there to be some justification for these fears
of consumer groups in particular were the industry itself not
just as anxious that commercially confidential matters may be
made public in too generous a manner by the Agency.[90]
There is obviously a difficult balance that the Agency must observe
here, and its practice will undoubtedly evolve over time. We
recommend that the Agency be guided by a clear presumption in
favour of openness and that the case for non-publication by the
Agency on account of commercial confidentiality is one that has
to be made strenuously rather than simply accepted. The draft
Bill should be amended to reflect this.
55. The second of the two provisos—in subsection
(3) of Clause 11—relates to information or advice being
withheld from the public domain "for the purpose of safeguarding
national security". There was some uncertainty expressed
in submissions to the Government and to the Committee about how
food safety and standards matters could be related to national
security, and the Committee sought information concerning this
proviso during our second oral evidence session with ministers.
The Minister for Food Safety gave two examples of the way in which
this power might be exercised—in relation to bacteriological
terrorism and in connection with nuclear contamination of sheep.[91]
The Committee is not satisfied that the powers in this subsection
are necessary and recommend that they be removed.
Possible structural obstacles to openness
56. There are a number of structural points which
have some impact upon the openness of the Agency. These points
largely concern Clauses 4 to 6 of the Bill, dealing with advisory
committees. The advisory committees for Scotland, Wales and Northern
Ireland (and for England too, if the decision is taken to establish
one) will be set up by "the appropriate authorities"—the
Secretary of State and relevant devolved authority—in consultation
with the Agency, shall each be chaired by a member of the Agency
appointed by those "appropriate authorities", and shall
each have up to but no more than one other member of the Agency
on their respective memberships. The explanatory notes to this
part of the Bill say that the Agency will be under a duty to take
account of the advice of such committees in carrying out its functions
or advising ministers, but that the expectation is that the "Agency
will explicitly inform the appropriate authorities...of the views
of these committees".[92]
There are in addition a number of current advisory committees
which will in the future report to both the Agency and to Government
departments. These include the Committee on the Medical Aspects
of Food and Nutrition Policy (COMA) and the Committee on the Toxicity
of Chemicals in Food (COT). The Committee is concerned at the
quality of advice given by these advisory committees and recommends
that the Agency monitor the quality of such advice.
57. This comparative structural complexity has some
obvious but significant consequences for openness and transparency.
Many of the criticisms aimed at the Government in the past with
regard to its lack of openness have centred around uncertainties
as to the sources of advice received by the Government and then
acted upon, and puzzlement as to which sources were to be taken
as more authoritative than others. This was clearly seen, for
example, in the debate over whether red meat had been proven to
be carcinogenic. The general public may accept the principle that
all scientific advice comes to a greater or lesser extent bound
up with caveats and provisos of one sort or another, but when
a Government acts upon some advice and disregards other advice,
only the scientific specialist really has any chance to decide
whether such a decision was correct.
58. With the advent of the Agency, there will—as
we have seen—still be a proliferation of committees offering
advice both to the Agency and also to Government departments.
That this is so is only right, given scientific complexities and
the need for specialisation in research and thus also in advice.
However the lines of responsibility must be very clear —and
particularly clear above all in regard to openness as to the sources
of advice acted upon in any given instance. The Government has
expressed its wish to see the Agency as the principal UK provider
of advice on food policy to the Government;[93]
and undoubtedly the public will wish to consider it as the authoritative
voice on food safety in the UK also. It is in this context that
it is unclear to what extent the Agency's openness about its own
advice to ministers affects its ability to be open about advice
that it receives from other bodies.
59. It is easy to envisage a situation in which advice
given by a committee to both the Agency and the Government is
dealt with differently: the Agency receives the advice, considers
it insufficient or at fault and advises the Government differently
upon the matter in question. The Government sets aside the Agency
advice in favour of the original advice it received directly from
the committee concerned. This sort of situation will be as dangerous
for public confidence as the current complexities unless the openness
of the Agency explicitly includes openness as to all the advice
it receives from whatever source, and openness about its criticisms
of that advice. Such openness may not always have harmonious results
for the bodies involved but is absolutely essential if the Agency
is indeed to be given the precedence in advice to Government and
public that surely this draft Bill implies.
Directions relating to breach of duty by the Agency:
Clause 21
60. Some concern has been expressed primarily in
written memoranda concerning Clause 21 of the draft Bill which
gives powers to the Health Secretary to direct the Agency in certain
cases.[94]
If the Agency fails to comply with any such directions, the Secretary
of State may himself carry out those directions or remove all
the members of the Agency from office and carry out the Agency's
functions himself until new appointments are made. This power
likewise applies to the devolved authorities in so far as they
are exercisable in relation to those devolved areas. Such powers
appear on the face of things to impose an enormous restriction
on the Agency, and appear open to political abuse. The explanatory
notes state that such powers will only "be used in the last
resort where other means of rectifying problems have failed".[95]
61. The contents of Clause 19 of the draft Bill,
to which this clause directly relates, only serve to arouse further
anxieties. Clause 19 as drafted places a duty on the Agency to
take into account, in considering whether or not to exercise any
power, the nature and magnitude of risks to public health (or
other risks) and the likely costs and benefits of the exercise
of that power. It is principally the failure of the Agency to
carry out this duty with which Clause 21 deals. Consumer groups
have expressed the concern that the second component of this consideration
in particular—relating to costs and benefits—will
tie the Agency's hands and compromise its independence and authority
when, for example, publication of its advice might cause commercial
damage and cost private companies significant sums of money.[96]
It should be made clear that the prime consideration should be
given to the costs and benefits to public health.
62. In the light of obvious outside concern about
this possible infringement of the Agency's independence, we sought
information from ministers as to the possible scenarios considered
which would require such powers to be taken. The Minister for
Public Health accepted that the reserve powers in this clause
were "pretty substantial"[97].
The Minister could add little more as consideration of what scenarios
would trigger these substantial powers was then still underway.
We have since been sent a short memorandum by the Minister which
gives some details as to the possible scenarios involved. Such
scenarios include "gross misuse of public funds by the Agency
and failure to exercise financial control" and "serious
disagreement with Health Ministers or the CMO [Chief Medical Officer]
on the magnitude and scale of risk to public health and the scientific
basis for the Agency's advice".[98]
There appears to be a significant difference between these
two scenarios in relation to Clause 21. It seems to us reasonable
that these powers should be invoked in relation to the misuse
of public funds. But, given that the Agency has independence in
its provision of advice, and given that the Government can disagree
with that advice and act independently and contrary to it, it
appears perverse that the Government can invoke such draconian
powers when the Agency disagrees with its advice and acts accordingly.
We ask the Government to clarify further what such a disagreement
leading to these powers being invoked would entail and who should
act as arbiter in cases where there was obviously a fundamental
difference of opinion as to the authoritativeness of any given
piece of research responsible for such a disagreement.
Administrative Concordats
63. In Part I of the consultation document on the
draft Bill, it is stated that "the relationship between the
Agency and other departments and with the devolved authorities
should be underpinned by a series of administrative concordats,
which would be published documents, setting out the duties and
responsibilities each will have in relation with the other".[99]
Given the large number of Government departments with which the
Agency will be dealing in its food safety and standards remit,
and the enhanced complexities of such relationships following
devolution, it quickly became apparent to us that these concordats—which
do not figure on the face of the Bill at all—would be of
enormous significance in providing the general framework within
which the Agency is to operate.
64. Some memoranda received both by ourselves and
the Government expressed concern that these concordats might not
be published and could serve to conceal links between departments,
agencies and the Agency which might limit the Agency's independence
or obscure its commitment to openness.[100]
The Committee sought more information from ministers on this subject
during oral evidence. The Minister for Food Safety made it clear
that "the concordats are basically there for the conduct
and administration of public affairs",[101]
that "they are there so that inside Government, between agencies,
between ministries, between territorial ministries, there is a
set of rules about how to work together to arrive at solutions...,who
takes the lead on which, the swapping over of budgets, and who
pays for what".[102]
The Minister for Public Health in her evidence before us stated
that "concordats will not be legal documents and cannot override
the Agency's power to publish its advice".[103]
65. Certainly some questions remain, and therefore
some anxieties will remain also in the public mind. It is essential
that the public is given as much information about these documents
as soon as possible. The Minister for Public Health implied that
more information on these concordats would be available in time
for standing committee stage on the Bill proper. We believe that
such information should be available to the House upon second
reading. It is not sufficient that the Government claim that
such documents are innocuous and that there is no need to provide
them for public scrutiny while stressing the importance of openness
in building the public's confidence with regard to the Agency,
who will be a partner in all these concordats. The House and the
public at large must know what form they will take, who is to
have responsibility for drawing up these concordats, who will
have final responsibility as to their content in situations of
disagreement over that content, who will oversee their implementation
and monitor their effectiveness, and to what extent they will
be made public. Concordats will have to be in place from vesting
day and therefore will need to be drawn up prior to the setting
up of the Agency. Drafts of concordats and their successors must
be provided to the House upon introduction of the Bill so as to
inform sensible debate on this otherwise obscure matter. Final
versions and revisions should be made available for scrutiny by
a select committee of the House (see below).
Reporting
66. In the same way that the Agency will set standards
for local authorities in the matter of food law enforcement, and
will monitor and audit their performance against those standards,
it will be important for the Agency itself to be audited and open
itself up to scrutiny and examination. This will anyway apply
to the Agency in its capacity as an enforcement body—with
regard to its MHS activities—although it appears that in
this instance the Agency will in effect be auditing its own activities.
It is clearly important that its other activities are also monitored:
ideally all these activities should be audited by an external,
independent body. The Agency will of course lay an annual report
before Parliament, the National Assembly for Wales, the Scottish
Parliament and the Northern Ireland Assembly in accordance with
Clause 8 of the draft Bill, and may also lay such other reports
as it desires before those bodies from time to time. We recommend
that as a minimum the Agency's reports should indicate annual
progress in food safety and in raising dietary and nutritional
standards. No doubt Members of these legislatures will take
a great interest in the Agency; and the appropriate concordat
between the Agency and its lead government department, the Department
of Health, will no doubt take account of the need for strong links
and good communication between the Agency and these legislatures.
Professor James in his report suggested that a select committee
might be set up to monitor the work of the Agency;[104]
the establishment of such a committee would be of course a matter
for the House. We expect that the House will at an early stage
consider the need for such a committee, but our preference
would be for scrutiny to be undertaken by a sub-committee of an
enlarged Health Committee, possibly one having a wider public
health remit.
The culture of openness
67. Much comment has been made about the new culture
that the Agency is intended to bring to the food safety and standards
situation in this country. As we have seen above this new culture
will to a great extent depend upon the people who direct the operation
of the Agency, and upon those who work for it. However just as
great an influence upon the Agency's culture will be its openness
and the transparency of the procedures of its executive. This
openness is not just a component of its independence from those
Government departments who used to carry out much of its work,
but also serves to stress and make explicit that independence
to the public at large. It will be essential that the Agency in
all its activities espouses the principle of openness in its activities.
84 The Food Standards Agency: a force for change,
Cm 3830, January 1998-page 5. Back
85 Q.761. Back
86 The
Food Standards Agency: consultation on draft legislation,
Cm 4249, January 1999-note on Clause 11. Back
87 See,
for example, the written memoranda submitted to the Committee
by the National Consumer Council, by the Consumers in Europe Group,
and by the Consumers' Association. Back
88 See,
for example, the written memoranda submitted to the Committee
by the Consumers' Association and the Chartered Institute of Environmental
Health. Back
89 See
the memorandum submitted to the Committee by the National Consumer
Council. Back
90 See
the memorandum submitted to the Committee by the Food and Drink
Federation. Back
91 QQ.
664-7. Back
92 The
Food Standards Agency: consultation on draft legislation,
Cm 4249, January 1999-note on Clause 4. Back
93 ibid-note
on Clause 9. Back
94 For
example, the memorandum from the National Consumer Council. Back
95 The
Food Standards Agency: consultation on draft legislation,
Cm 4249, January 1999-note on Clause 21. Back
96 See
the memoranda from the National Consumer Council and the Chartered
Institute of Environmental Health. Back
97 Q.662. Back
98 See
the Government memorandum to the Committee on scenarios relating
to Clause 21. Back
99 The
Food Standards Agency: consultation on draft legislation,
Cm 4249, January 1999-part I, para 22. Back
100 See,
for example, the memoranda submitted to the Committee by J Sainsbury
plc and by the Consumer in Europe Group. Back
101 Q.731. Back
102 Q.732. Back
103 Q.738. Back
104 Food
Standards Agency: an interim proposal by Professor Philip James,
30 April 1997-Part II, Chapter 6. Back
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