Select Committee on Food Standards First Report


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 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).


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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