MEMORANDUM 27
Submitted by the National Consumer Council
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.
INTRODUCTION
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 AGENCY'S
ROLE ON
THE FARM
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.
OPENNESS
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.
Risks
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.
THE AGENCY'S
REMIT
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.
Nutrition
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.
POWERS OF
THE SECRETARY
OF STATE
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 AGENCY'S
FUNDING
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).
MEMBERSHIP
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.
RECOMMENDATIONS
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.
Openness
— 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.
Membership
— 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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