Select Committee on Food Standards First Report


Submitted by the National Consumer Council


  The NCC was set up by the Government in 1975 to provide a vigorous, independent voice for consumers of goods and services of all kinds to central and local government, industry, public services and others. It has a special responsibility to represent the interest of disadvantaged consumers.


  The NCC warmly welcomes the Government's draft Food Standards Agency Bill. It is 10 years since the NCC first called for an independent food agency following the food scares of the 1980s (National Consumer Council, The future of food regulation: a discussion document, 1989). We argued that the industry promotion role of the Ministry of Agriculture Fisheries and Food should be separated from the regulatory and advisory role in order to minimise industry and political interference. We also stressed the need for increased openness and transparency and improved co-ordination of decision making. We believe these are important steps in improving public confidence in those who regulate food. We warmly welcome many of the provisions in the draft legislation. We very much hope that, as the Government has indicated, the Bill can secure a space in the current Parliamentary session's timetable. This is one of the Bills that the NCC sees is a key priority for legislation in the Government's programme along with Freedom of Information and utility regulation reform.

  Given our background in this area of policy, we are judging the proposals for the Agency on the basis of the following: its focus on public health and its independence from the promotion of industry; its openness; its clarity of functions particularly in working with relevant authorities; and its ability to deal with the key food safety issues. We particularly welcome the following: its remit for protecting public health; provisions for openness; the new "on farm" powers; the transfer of some of MAFF responsibilities to the Department of Health; its role in monitoring the performance of enforcement authorities; the provision in Clause 2(4) about the possibility of conflict of interests of the Agency's members. Below we comment in more detail on some of these issues and other aspects of the Bill.


  The NCC has been particularly keen to see the Agency cover "on farm" activities. There are a number of reasons for this:

    —  as stated previously, it is important for key regulatory decisions about food safety to be taken separate from the government department that sponsors that industry;

    —  many food safety concerns in recent years have arisen from activities on the farm such as salmonella, BSE, the use of antibiotics, pesticide residues;

    —  it should improve clarity about roles, responsibilities and lines of communication between different bodies responsible for the range of "on farm" duties to protect food safety.

  The NCC is disappointed that MAFF will retain responsibility for a number of "on farm" activities that have implications for food safety; the regulation of veterinary medicines and pesticides, in particular. The power of the Agency to deal with issues on the farm is, in our view, crucial. The draft Bill proposes the following for the Agency, which will have implications for its work on the farm.

    —  it's objective covers food production and supply (Clause 1, subsection (2));

    —  to take on powers currently with MAFF under the Food and Environment Protection Act, the Food Safety Act and the Radioactive Substances Act will pass to the DoH, some of which relate to "on farm" activities (Clause 24);

    —  it will be able to gather information about food safety, which might include more surveillance. Such work can be carried out at agricultural premises and in connection with agricultural business and activities (Clause 13);

    —  it will have improved powers to control substances and activities relating to farm production of food (Clause 25); and

    —  it's openness provisions (as discussed below).

  We have particular concerns about veterinary medicines and pesticides which will still be the responsibility of MAFF. The key regulatory responsibilities, especially product approvals and surveillance, will still be taken inside the government department that promotes the industry.

  We had understood from the White Paper A Force for Change that the Agency would have an effective right of veto for product approval on the Advisory Committee on Pesticides and the Veterinary Products Committee. However, our understanding now is that this is not the case. On veterinary medicines, the Agency will have an expert member on the VPC nominated by the Agency; Agency officials to advise the VPC on food safety matters, the Agency will be able to put its own advice to Ministers if it does not consider the Committee's advice properly reflects its concerns; and the Agency will have the right to publish its own advice.

  With regard to pesticides, the Agency will be able to appoint an expert member to the Advisory Committee on Pesticides; appoint an assessor to advise the ACP; and be consulted on the appointment of the Chairman and the members of the ACP. We also understand that the Agency will be able to put its own advice to Ministers and also have the right to publish its own advice. Whilst these are important powers, they are not the same as having an effective veto which enable the Agency to put a stop to a product receiving approval at all on public health grounds.

  The Government is proposing that the Agency be involved in the surveillance programmes of the Veterinary Residues Committee and the Pesticides Residues Committee. The Agency will also be able to conduct its own surveillance. The Government had indicated that it would reconsider the passing of all surveillance on pesticides and veterinary medicines to the Agency (Agriculture Committee, Reply by the Government to the Fourth Report from the Agriculture Committee Session 1997-8 "Food Safety", HC 889, June 1998).

  We remain of the view that the Agency should have more responsibility for on farm activities, particularly veterinary medicines and pesticides surveillance. Although the Agency will have improved powers to deal with food safety issues on farms, we remain concerned that the MAFF will continue to have responsibility for veterinary medicines and pesticides in particular.

  How the new arrangements will work in practice will very much depend on the administrative concordats (Consultation on Draft Legislation, Part I, Paragraph 22). If and when a new food safety issue emerges or a food emergency occurs, it is important that all appropriate bodies know what their respective roles are, who they report to, who they share information with etc. Clarity will be vital under such circumstances, particularly in reassuring the public. We recommend that the Government/Agency consults publicly about these concordats. We also recommend that once the Agency has been operating for five years, the government reviews the decision to keep the responsibility for veterinary medicines and pesticides with MAFF.


  The openness of the Agency, combined with its independence and separation from the government department that promotes the industry, are crucial elements in rebuilding confidence in food safety. The Cabinet Office recently published the results of a MORI poll it commissioned about risk (Cabinet Office, Experts debate risky business of government, Press release, 8 February 1999). One question was about the openness of government decisions. The result was that 94 per cent of respondents thought that the Government should be more open about how it makes its decisions. This applies to the Agency too. The NCC therefore places particular attention to this aspect of the Agency's work.

Access to information on decision making

  We very much welcome the fifth guiding principle about openness of decision making. This has been specifically included in the legislation in Clause 18 (2) (c) where the Agency will be required to keep records of its decisions and allow the public to see the information on which they are based so as to "make informed judgments about the way in which it is carrying out its functions". The extent of the usefulness of this provision will depend on which decisions will be included. Will it only include those taken by the Agency's Board? Will it cover its Advisory Committees? Will it cover those taken by Agency members on other Committees (e.g., the VPC)? Will it cover some decisions taken by officials of the Agency in the course of their every day work? The government should give further clarification of this point. It should certainly be stated by the Agency when it produces its statement of general objectives and practices (Clause 18).

  The NCC believes it is good practice for public bodies like the Agency to have an internal complaints procedure against refusal to supply information.

Presumption of openness

  As a general principle, we believe the Agency should operate a presumption in favour of openness about publishing information. The government has accepted this principle in its White Paper Your Right to Know which states: "Decisions on disclosure under the FOI Act will be based on a presumption of openness. Public authorities taking such decisions will therefore need to start by assessing the effect of disclosing, rather than withholding, the information." In Clause 11, subsection (1) the draft Bill says "the Agency may . . . arrange for advice or information . . . to be published in such a manner as it thinks fit." (our emphasis.) We believe this should read "shall" to reflect a presumption of openness.

Confidentiality and openness

  There are a number of references to confidentiality in the Bill. We believe they should go further in favour of openness (i.e., Clause 11(2), Clause 13(8), Clause 14(4), Clause 20(4), and Clause 21(5)). Decisions about the disclosure of information will be a balance of the public interest in disclosure against the harm that might result in disclosure. We believe that the Bill should adopt the principle of disclosure unless the disclosure is considered to cause substantial harm.

  The Agency is very likely to receive information from private or commercial organisations. For example, in the Agency's powers to carry out observations it requires information from the businesses it will visit (Clause 13(4)(d)). We believe that the Agency should make it clear to any body that it seeks information from that the information will be made public unless they can prove it would cause them substantial harm. If necessary the Agency should apply such a test to this information. When reporting decisions it has made based on confidential information, the Agency should provide a summary of that information without revealing the sensitive information.

  Further information about the NCC's views on access to information and commercial confidentiality can be found in our report Commercial Confidentiality. Copies are available on request.


  Another important issue is how the Agency will deal with risk. The Cabinet Office's MORI poll on risk looked at which groups of people the public trusted most and least to advise them about risk and one question related to BSE. It revealed that people would most trust independent scientists to advise them on the risks posed (57 per cent) and least trust government Ministers (41 per cent). The Agency has an important role in improving the public's confidence in receiving advice in this area.

  The public will judge the Agency on how it acts on problems affecting food safety whether it be an emerging disease which could affect humans or a major pollution incident contaminating the food chain. We understand that the Agency is expected to take decisions and actions according to risks and the likely costs and benefits of using and not using its powers (Guiding Principle 3 and Clause 19). Many decisions and actions it will take will inevitably be fine judgments. However, given that the Agency's remit is to protect public health, we hope that that will be its ultimate focus. Difficulties will lie where there is inadequate scientific information about the risks of a problem. It is important to bear in mind that just because there is no evidence of risk doesn't mean that there is no risk. Therefore a cautious approach should be adopted, and more research carried out. The public will judge it harshly—as it has the previous Government over its handling of BSE—if it does not act in favour of public health.

  We believe it is important that the Government is open with the public about the level of information available on food issues. The MORI survey conducted by the Cabinet Office bears this out: 80 per cent of respondents said that when the government is unsure of the facts, it should nonetheless publish what information it has. This should be the Agency's attitude to areas of uncertainty.


  We welcome the broad remit for the Agency. This is outlined in Clause 1: "to protect public health from risks which may arise in connection with the consumption of food (including risks caused by the way in which it is produced or supplied) and otherwise to protect the interests of consumers in relation to food". We also welcome the inclusion of food production and supply.


  We welcome the inclusion of nutrition into the Agency's remit. We do recognise the need for DoH to take overall responsibility for government policy on nutrition (as in all the health promotion policy). However, any conflicts of interest that are present in food safety between safeguarding public health and promoting the industry could also apply in the area of nutrition. It is important for the public that the information and advice they receive about diet should also be seen to come from an independent and trusted source. We are disappointed that the Committee on Medical Aspects of Food and Nutrition Policy will not be within the Agency's remit, and urge the Government to reconsider this.

  We are also disappointed that the Agency's remit in Clause 1 does not include "promotion" as well as protection. It seems to us that there is a fine dividing line between what is promotion and what is protection in the organisation's functions. Many of the Agency's activities (some of which are outlined in Clause 10 of the Explanatory Memorandum) would fall under the category of "promotion", i.e., providing information and advice about a healthy diet, running information campaigns. We urge the Government to reconsider this point.

General objectives

  Clause 18 sets out a provision for the Agency preparing and publishing a statement of its general objectives, including how it will consult. However, there is no provision in the clause for consultation with outside interests prior to the publication of the statement of general objectives. This should be included.


  Clause 21 of the Bill gives the Secretary of State powers to issue directions to the Agency under certain circumstances. One circumstance is if it fails to follow its statement of objectives (under Clause 18). The other is if it fails to take account of the size or nature of the risk, or the costs and benefits, or relevant advice from an advisory committee when exercising its powers (as set out in Clause 19(2)). If the Agency fails to comply with these directions the Secretary of State, under Clause 21, may take over the powers of the Agency or remove all the members of the Agency from office.

  One consequence of the Secretary of State having this power is that, if the Agency takes a decision which the industry does not like, he could well be lobbied heavily by them to issue directions to the Agency under Clause 21. Also, the way in which the Secretary of State uses these powers could threaten its independence. We understand that accountability is important with the ultimate sanctions resting with the Secretary of State, but we recommend that the circumstances in which this power might be used should be clarified. The wording of Clause 21 should require the Secretary of State to make public his reasons for using these powers.


  The NCC does not have an objection in principle to regulatory bodies being funded by the industries they regulate. Therefore we do not oppose the Government imposing a levy on the industry to fund the Agency's costs. We do not believe this will threaten the independence of the Agency given that its remit is the protection of pubic health. However, there is a case for the £32 million start up costs being paid for by the taxpayer.

  The Government has said the amount of money raised from the industry will not exceed £50 million a year. We do not believe this would be a disproportionate burden on consumers. If the £50 million were spread across all the households in the UK, it would amount to around 4p/household per week. This figure should also be seen in the context of the average expenditure on food per person per week being £14.67 in 1997 (MAFF, National Food Survey 1997, 1998).


  We welcome the provision in Clause 2 for the Agency members having a variety of skills and experience (subsection 2). To restore public trust in food regulation, it is important that the members themselves are perceived to have the confidence of the public. However, we would like it to be clear in the Bill that the majority of members should have a public interest perspective. It is important that at least one of the people appointed (excluding those appointed under subsection (3) from Wales, Scotland or Northern Ireland) should specifically have "an interest of consumers in relation to food" in subsection (2). Also, the choice of Chairman and members will send an important signal to the public. We also recommend that the Chairman of the Agency should be an individual with a public interest background rather than from the industry. We recommend that the wording of the Bill should be altered to reflect these points.


Agency's powers "on farm"

    —  The Agency should consult publicly about its concordats with relevant authorities.

    —  If MAFF continues to have responsibility for veterinary medicines and pesticides, the government should review whether these responsibilities should move to the Agency after it has been operating for five years.


    —  The Government should give more information about the types of decisions that will be covered by its openness provisions in Clause 18(2)(c).

    —  There should be a general presumption of openness relating to the publication of advice and information (Clause 11(1)).

    —  There should be a presumption in favour of disclosure of information relating to confidentiality unless that disclosure was considered to cause substantial harm.

    —  When carrying out its observation powers under Clause 13, it should make clear to any business that the Agency should be able to publish information collected unless it was likely to cause substantial harm. Where such information is considered to be too sensitive to be published, then the Agency should give a summary of that information, without revealing the sensitive part of that information.

    —  Where the Agency does not necessarily have sufficient information to make a clear statement about a food issue it should nonetheless publish what information it does have available.

    —  The Agency should consider having an internal complaints procedure against refusing to supply information.

The Agency's remit

    —  The Government should reconsider its decision to exclude COMA from the Agency's remit.

    —  The Government should include "promotion" as well as protection in its remit in Clause 1.

    —  The Agency should consult with relevant outside organisations about its draft statement of objectives (Clause 18).

Powers of Secretary of State

    —  The Government should clarify the circumstances under which the Secretary of State should make his powers under Clause 21.

    —  When utilising any powers under Clause 21, the Secretary of State should make public his reasons for using those powers.

The Agency's funding

    —  The Government should consider using taxpayers' money to fund the start up costs of the Agency.


    —  The wording of the Bill should be changed to require a majority of the members of the Agency to come from a public interest background, and at least one of those specifically should have a consumer interest.

    —  The Chairman of the Agency should come from a public interest background.

March 1999

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