Examination of Witnesses (Questions 251
- 259)
MONDAY 8 MARCH 1999
PROFESSOR PHILIP
JAMES and MS
KAREN MCCOLL
Chairman
251. Could I welcome you, Professor James.
The Committee is very pleased you are able to come along here
this afternoon, effectively being the author of this proposed
legislation, the initial author of the proposed legislation. I
just wonder if you could briefly tell the Committee, do you still
agree with all your initial conclusions which were drawn up prior
to the public consultation and also, whether or not you think
that any of the areas in which the White Paper or this draft Bill
now differ from your initial recommendations are likely to hamper
the effectiveness of the Agency?
(Professor James) If I may take the first point.
I think it is right to say that I am delighted that so much has
come through of my original proposals in this draft Bill. I think
that you will be aware that I responded to the original White
Paper and I see that this draft Bill is essentially presenting
the legal mechanism whereby the principles set out in the White
Paper can be achieved. There were minor differences between what
I proposed and what the White Paper specified and I interpret
the draft Bill as in keeping with the White Paper rather than
my original proposals. There are minor differences in the way
in which I would now present proposals when I compare my current
views with those of May 1997. I think these relate primarily to
new issues of external relations and, for example, the importance
of the European dimension with which I am now much more familiar,
being so heavily involved in the Brussels committees. The second
area by virtue of my currently chairing a United Nations Commission
on Food for Global for Food Needs is, I suddenly realised, about
a year ago, that I had not given enough attention to issues that
confront port authorities in trying to monitor the nature of food
that is coming in on an import basis rather than an export basis.
Those are complex issues but I think that in my original proposals
I should have highlighted some of those in a much clearer way
than I did. Now when it comes to differences between what I proposed
and what I see enacted I think it is fair to say that I believe
that there is a need to have a very big cultural shift in many
dimensions of those organisations which deal with food safety.
Indeed, originally, I was, of course, naturally criticised for
specifying this need for certain groups, for example the veterinary
medicine area and the public analyst area. It is interesting that
since we have got over the first phase—the Royal College
of Veterinary Surgeons and indeed—on reading the two reports
from Scotland and England and Wales on the Public Analyst system—it
seems to me that the judgment that we made for the need for a
complete reorganisation in effect comes through in those documents.
The other components that I proposed, which have not come through,
relate to the pesticides and veterinary medicines' issue and I
think the actual organisation of particular committees, for example
the SEAC BSE Committee. They are still sitting half way between
the Agency and other responsibilities. I think the issues of the
expert advisory agencies and the way that they have retained,
if you like, their independence is a natural expectation of senior
scientists like myself who love to be involved in relating to
the people in power and also all the issues and do not particularly
want to have their operations transferred to some new mysterious
entity. I think the way in which the proposals have been developed
in the draft Bill now pre-suppose a much more proactive role for
the Agency if the Agency is going to achieve what I think is necessary.
So the burden on the Agency has been enhanced by virtue of it
not having as many powers as I originally proposed but, to be
fair, the compromises have emerged doubtless from negotiations
within Government between different Civil Service groups, as I
think is self-evident. I think the big issue is whether in fact
this Agency can create a new climate of opinion, analysis and
proactivity in terms of really digging deep into some of these
issues. Will it be able to do that when it is now in powerful
control of these bodies, I think those are the sorts of issues
which concern me. The funding question is another one which is
very different. You maybe want to deal with that separately. I
proposed, slightly provocatively—and I did not expect it
to come through—that the funding for local authority enforcement
would be channelled through the Agency and that the funds for
the Public Health Laboratory Service, food related microbiology—would
be channelled through the Agency without in any way dislocating
the function of the Public Health Laboratory. That of course has
not happened. Those issues impose on the Agency a greater need
to be highly effective in specifying the standards and monitoring
and the interrogative processes if that Agency is going to develop
and be shown to be effective as distinct from being a talking
shop.
252. Thank you for that. Obviously it is
a very honest analysis. Do you believe that the draft legislation
could have been better or do you think that by necessity these
negotiations have taken place and left things outside of legislation
or outside of the proposed Agency that you would have liked to
have seen? Has that weakened it?
(Professor James) I think it is fair to say that
in early discussions after the election with Ministers they were
very conscious of the need to try to maintain the principles as
the negotiations were being advanced. I think that it might have
helped to overcome some of the concerns, in fact, if there had
been an overt external advisory group. I had originally envisaged
an advisory commission of some sort, and that would have been
better, I think. Originally I took it quietly through Cabinet
Office officials and the Constitution Unit and was assured that
it was a totally appropriate entity. A few days after the election
I then discovered that it was considered unconstitutional and
the more I look at it, I think the principles of what one would
have tried to achieve need not have infringed the constitutional
process. I think it might be better for our society to have seen
the process by which the Agency was being established as well
as being involved eventually once it is established. But it is
easy to say that now. I did propose it, but that was seen to be
a difficult thing to achieve at the time.
Chairman: I think
we will try and move on now and take the particular areas that
the Bill covers which hopefully you have got opinions on. Howard
Stoate?
Dr Stoate
253. I would like to look at the scope of
the Agency's work. Clearly the Agency would be involved in two
major areas of work, firstly obviously in health protection, the
microbiological side of this food safety, and secondly health
promotion by nutrition and labelling. What I would like to ask
you is do you think the balance in the Bill is about right?
(Professor James) I see this Agency—we specified
at its very beginning—as in an evolutionary process. What
is becoming apparent already—just take the recent GMO issue—is
the way in which you can have a surge in public opinion and scientific
involvement and decision making which requires a very different
perception of what the Agency should be doing. In discussions
with my assistant, Karen McColl, whom I should have introduced—my
apologies—when we were developing our proposals, it was
very obvious from our discussions with the Environment Agency
and the Health and Safety Executive, that the most crucial thing
in the drafting of the Bill is not to have everything set down
in such concrete terms that this Agency is specified precisely
as doing X and Y. Because if you do that you are burdening that
Agency in such a way that it is going to not be able to cope with
the astonishing range of issues which actually emerge. Why do
I say that in that context? Simply because the health protection
rather than the health promotion is the obsession of the last
two years: BSE, e.coli 157, salmonella, now GMO. As I indicated,
I think to an expert committee in this House, it is really inevitable
that in fact people and the body politic will see that the judgments
need to be taken on a protection basis even though, as we made
clear in our original analysis and subsequently, the health promotion
aspects in practice, from a public health point of view, have
much greater quantitative and economic importance actually.
254. I entirely agree with you there which
is why I am asking because we obviously have to make sure that
the legislation that is proposed by the Government is robust enough
and wide ranging enough to ensure that with changing circumstances,
changing public expectations and changing political analyses the
Agency will continue to cope under all those circumstances. That
is why I am really trying to get your view on whether the legislation
will be robust enough to ensure the Agency can be flexible enough
that we do not end up with an unbalanced Agency at the end of
the day.
(Professor James) It is a very difficult question
to answer because part of the analysis relating to health promotion
deals with concordats principally between the Agency and Government
Departments. Now how those concordats are developed and whether
the Agency properly, in my view, is very proactive in specifying
what they think is required and whether that concordat is developed
in almost a semi-public way rather than secretly negotiated and
the time lines for that concordat then also become important.
You can imagine, I guess, a mood change in Government where a
particular set of Departments and Ministers, and I have had personal
experience of this in the last 20 years, feel that this particular
area is of no consequence at all. Then it is really very difficult
indeed to get movement. In the way that the draft Bill is set
up, by definition food safety and food health issues extend so
broadly across Government it would be ridiculous for that Agency
to be totally responsible for all those because it would impact
on so many other dimensions, which are the proper legislative
responsibilities of the Departments. I still believe that this
Agency is going to be troubled because it is going to be very
difficult to be positive and to enter into agreements with Government
Departments if those Ministers are not so minded to help but have
that and that is inevitable as part of the process. I am sorry
to be so blunt.
255. That is fair enough actually but it
does give me some cause for concern because you said earlier that
the public health function is a much broader issue and probably
far more important to the longevity and overall health of the
nation. We have been taking evidence from witnesses before that
says actually microbiological safety is a very small issue compared
with nutrition which obviously could have a much greater overall
long term effect on people's health. If this Agency is going to
get bogged down with food safety matters and the occasional outbreak,
are we going to miss the boat in terms of actually improving the
public health?
(Professor James) Thank you. Originally in our
proposals we proposed a very big distinction between the Commission
and the Executive. Now apparently I understand that the legal
draftsman, and I use the Health and Safety Executive analysis
and analogy as a way of simplifying this, I am told that he said
the distinction is unnecessary. The benefit of so displaying it
in our proposals was to make an important distinction between
the policy development which was exclusively a Commission or upper
echelon entity and the Executive which had the proper responsibility
for surveillance and action which I saw much more as involved
in these microbiological issues. When you are dealing with nutrition,
which has been highly controversial here in Britain and people,
and experts abroad think we are living in the 19th century in
terms of our attitudes towards nutrition. But given our perspective,
it is clear I think to me that the nutrition/health area is very
much a Commission or a top level operation. Otherwise people will
misinterpret it and they will say "What, this enforcement
authority is now going to tell everybody that they must have so
much vitamin E per day and they darn well better eat this, that
and the other". That is a ridiculous view of the proactive
approach to nutrition. So I think there is a lot of confusion
to get over and I think the nutrition/health development will
very much depend on what emerges in this early phase of reconsidering
public health in Britain. Public health in Britain has been vestigial
in terms of Department of Health responsibilities and actions
for decades—since the founding of the National Health Service
actually. The question is how is nutrition going to actually be
incorporated into an effective way for public health? I would
guess the Minister, who I understand was a witness here, will
be trying to see how to blend activities of the Food Standards
Agency with a proper public health function of the Department.
I think that the problem will be that most people see nutrition
and health promotion in a rather antiquated health educational
mode.
4
256. Does that mean that you do not see
the Food Standards Agency as the lead Agency on nutrition? Is
that what you are saying?
(Professor James) I think that it will be the
lead Agency on a whole host of issues relating to nutrition. You
just have to look at the FDA range of analyses that they have
to go through, simply in legislative terms, in terms of nutrition,
in terms of novel foods, in terms of labelling, in terms of a
special foods for particular needs. There is a whole host of enormous
issues which in fact the Agency will have to be fundamentally
primarily involved in. I think when it comes to actually the health
promotion you are dealing with a whole host of other issues, for
example catering standards in schools and, the mechanism by which
the Education Department deals with how the school environment
is developed. We actually put in to the Ministries after the election
a further report on school nutrition and health which was again
a little controversial because we believe that the diet and health
of British school children is really surprisingly poor——
257. I agree.
(Professor James) —— compared with
most European Union countries. The Scandinavian experience suggests
that we need to be much more proactive. I do not think that the
Agency is likely to be given, in the British climate, responsibility
for specifying to the Department for Education precisely what
the Department for Education should be doing in a school context.
Therefore, I think that the Agency should have a role but to define
that in legal terms would be quite difficult and that is why I
think that I am fudging on the issue of how you would write a
Bill which would allow the positive aspects of nutrition to be
pushed by the Agency. I think that this is something on which
the Agency will be judged and if it is failing that will be because
the Department of Health has not co-operated or the Agency has
not seen its role in an effective way.
258. That is the point I am trying to get
at. You have already said that it is now immensely complex, nutrition
policy cuts across every Government department and is an immensely
complex area. If the Food Standards Agency is not going to make
that simpler and more straight forward then what is it going to
do with nutrition? From your answers it may make it more complex
and not less and that would surely be a disaster.
(Professor James) I see the Agency's role to be
so fundamentally involved, for example, in the development of
policy in the sorts of sagas we have had over the last 30 years
of huge conflicts of interest with major industrial groups wanting
to modify and not believing particular analysis of public health
and so on. I think the Agency's job will be to ensure that does
not happen either by virtue of its being in total command of the
secretariat and making major nominations, if not all nominations,
to the proper analytical advisory committees. Even if it is only
partly involved in a conjoint committee it has got to make very
sure that particular interests are exposed and that the public
health agenda is the primary one.
259. The bottom line and the point of my
questioning is is it going to have the powers to make that work
or is it just going to be another talking shop that issues nothing?
(Professor James) My problem in answering your
question is that I am not a good enough lawyer—I am not
a lawyer at all—I do not know what would be required to
actually achieve that and still retain the normal responsibilities
of the Department of Health.
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