Select Committee on Food Standards Minutes of Evidence

Examination of witnesses (Questions 660 - 679)



  660.  I do not want this to hog the debate again——
  (Mr Rooker)  You had better not name the school, is all I can say.

  661.  It is a while ago and I did take it up hot and strong, but it is important to get it clear because if it had to be filtered through your Department and then your Department spoke to the DfEE, then the question of public knowledge about it gets a bit diluted because what your Department says to Education is not public knowledge and so this is why I am rather interested in making quite sure that they can have a direct relationship as well.
  (Tessa Jowell)  Well, I can give you that assurance, and I would also say that the second safeguard would be that the Agency would have the power to publish the advice that it had given, so I think that you are absolutely right to pursue this point of consistency in openness and it is a very important part of the Agency's function that they operate in that way.

  662.  Well, then if I can move on to another clause, clause 21 talks about the power of the Secretary of State where if he thinks there has been a serious failure by the Agency to conform with clause 19, then he may give the Agency such directions as he may consider appropriate. We are a little bit puzzled. We think it would be handy if that was clarified a bit more. For instance, could you suggest a possible scenario where such powers might be invoked? They are quite strong powers, you see, and it could be something which gets raised in relation to the independent nature of the Agency, so on what kind of thing could the Agency fall down which would leave the Secretary of State to invoke clause 21?
  (Tessa Jowell)  I accept the point that these are pretty substantial reserve powers by the Secretary of State and I would just say two things. First of all, I would like to write to the Committee setting out some examples which demonstrate the exercise of these powers, and the reason why I ask to write rather than give you examples now is that there is work currently under way in the Department looking at this kind of scenario-planning and I would rather give you the benefit of that than a more speculative answer which I think would be less useful to you.

  663.  That is helpful. Just not to labour it too long then, looking back at clause 19 which is referred to in clause 21, subsection (2) is about taking into account the nature and magnitude of risks and also the likely costs and benefits. Those are things on which opinions might well differ and yet this is where the Secretary of State could step in, so I think that is where some alarm bells might ring unless there is further clarification. In particular, thinking of costs and benefits, I wrote in my margin, "Whose costs and whose benefits?" and where will the Agency strike a balance seems to go to the heart of the Agency's functions and I would not like to think that the Secretary of State could come in and decide, for instance, the business costs were more important than consumer benefits, so that is the sort of thing which underpins this question in my mind.
  (Mr Rooker)  We have to read the two clauses, 21 and 19, in conjunction, but you have got to read them in conjunction with 18 of course because 19 is triggered by what is published in 18. Clause 18 will be put before the House about the objectives of the Agency and its practices, the way it will work, and quite clearly if it goes out of bounds, and it works both ways because, on the one hand, the Secretary of State may say, "Do something that I think you should be doing, but you are not doing", and, on the other hand, he could say, "Don't do something", so it works both ways, but Tessa is quite right. I know obviously the Bill was born out of both departments, and MAFF kicked it off, but the work that is going on in the departments about the scenarios, we have emergency planning, we do do these things in Whitehall, and we do not advertise the fact, but we do do our own emergency planning, sit there and play the games and take them very, very seriously and these things are going on now within the Department of Health team to see whether the structures we have got in the Bill will work in the sense of some of these problems that you can think about.

  664.  We decided that we would not go through it clause by clause; we are not a standing committee. We have not done, but obviously we have to keep coming back to the actual draft Bill, otherwise we will go roaming off too far from our remit. Can I ask about one further thing then that you might be able to supply us with along the same lines which is in relation to clause 11, subsection (3) where it says, "The Secretary of State may, for the purposes of safeguarding national security, direct the Agency with any advice or information specified..." et cetera, "which shall not be published, and I find that a rather puzzling thing, national security in relation to food standards or protection or safety or whatever, and I would like an example either now or followed up when you write to us.
  (Mr Rooker)  Well, we have got two examples and they are the ones I know and which come to mind because they are the ones we deal with. They are nuclear safety and biological terrorism. These are matters where they are national security and food is connected. There is a division within the Joint Food Standards and Safety Group that looks after what I call the "tick-tock" sheep that are still around on the hills of Cumbria following Chernobyl, and all that work goes on because it is essentially part of the food chain. When issues arise with a nuclear accident in respect of scenarios, and we do do the game plays on that and look at it, that is where the issue is and it is not for something that is embarrassing to the Government. National security is not equated with government complacency or government embarrassment in that sense, or it should not be and it is not under this Government anyway.

  665.  It has been known.
  (Mr Rooker)  It has been in the past, yes.

  666.  Public immunity is not something with a tremendously good reputation. The nuclear one, I can see it up to a point, but in a way if there was something to do with nuclear reactions in sheep, I would rather like to know about that, so I feel my security might be in conflict with your idea of national security.
  (Mr Rooker)  I do not want to set a hare running with the wrong analogy, but I was giving the example. We were open about the sheep, by the way, and we pay the farmers for testing the sheep each year. I am told there is a premium on the farms where there are restrictions and I think there are ten or eleven holdings in Cumbria still under restriction as a result of Chernobyl.

  667.  That is not secret?
  (Mr Rooker)  That is not secret, no. It is out in the open, and so are the feral pigeons that got stuck up in Sellafield. We told people about that, though we hoped they were not eating wild pigeons anyway, but they were very radioactive because they had been in places they should not have been. That was not secret, but these are the two issues and I am sure that the people sitting behind us can provide a note to the Committee that does not cause a problem for anybody to explain that the reasons for this being in the Bill are so that the Agency is covered and we do not have to come back with primary legislation if such a problem does arise.

  668.  Very finally then, going back a little bit, but not wanting to go down the avenues that have already been explored at all, except in relation to sewing, I am rather keen on a stitch in time saves nine, and I just have been turning over in my mind this £25 million and indeed your £130 million that you started with, and in comparison with the problems and the costs when anything goes wrong, if places have got to be shut down and all of that, is it not rather a small amount anyway? I rather hoped that there would not just be a transfer of money, but extra money to take into account the relative risks. Is the Government doing enough about relative risks and benefits?
  (Mr Rooker)  I can provide you on a single sheet, and it is a single sheet, but it is probably A3, with a breakdown of, say, the £130 million, so that you get some rough divisions, but———

  669.  I am sure you are spending it admirably, Minister——
  (Mr Rooker)  There are no new resources. Without the levy, there will not be the Agency anyway, so it is a question of transferring over what work takes place into the Agency. The future is a different issue. We have to think of how we set the Agency up, but leaving that on one side, there is a huge programme, for example, of things that have gone wrong, and, say, BSE is not part of this. There are tens of millions of pounds being spent on this side of research quite separate from the ring-fenced money that will come out for food standards and safety. It is quite separate and a huge amount of research is going on on that, mega-millions, believe you me.

  670.  So if the Food Standards Agency felt that there was some important issue that could not properly be explored within this budget, presumably it could raise that with the Secretary of State for Health, so he could raise it with the Treasury so that they could do some risk-benefit analysis?
  (Tessa Jowell)  Absolutely and it might actually be more appropriate that research that was needed in relation to a particular issue was actually done by another research organisation which, as Mrs Wise will be aware, is very much the pattern within which research is conducted within the Department of Health. By no means all the research that is used to develop policy is actually funded directly under the auspices of the Department of Health.

Mr Walter

  671.  I would like to move on to a number of aspects of the Agency in the European and international dimensions. Now, it appears that the Food Standards Agency officials will often be speaking on behalf of the UK Government at European and international level. Is that a correct understanding?
  (Tessa Jowell)  Yes.

  672.  Well, given that, if the Government can ignore the advice that the Agency gives it on matters relating to food safety which might on occasion form the basis of negotiations in Brussels, let's say, would that not compromise the independence of the Agency if it was having to represent a government which had not taken its advice?
  (Mr Rooker)  I do not think so. Officials currently negotiate in Brussels, having received instructions from ministers. There are many occasions that I can recall in the last couple of years when, because of the way the negotiations have gone in Brussels, literally people are on the phone because different compromises can be reached to see whether or not we either vote for, against or abstain and the ministers take the decisions. Our officials are doing the negotiation day in and day out. I do not see a difficulty about that. I suppose an example is that prior to the Government coming into office, negotiations were taking place in Brussels, as I made clear, I think, a few days ago at the PNQ, relating to the labelling of GM soya and maize. I changed the instructions. Now, those instructions were carried out. It would be the same situation. Nobody was arguing, "We don't agree with what you are doing" and just because they are in the new Agency, they will still be the main forum for representing Britain in international negotiations. One final example I can give you which is much more recent to show how the Joint Food Group is, if you like, locked into this already, the other evening I hosted a reception at Lancaster House for the delegates to the Codex Committee on Fats and Oils which is hosted every two years in this country. The secretariat provided for that and the staff are all from the Joint Food Standards and Safety Group. The Committee is being chaired this week by a MAFF official, and they are all part of the group, so we are involved in that all the while with international negotiations. At the end of the day of course the decisions will be made here in the House of Commons or by ministers in respect of international obligations. The Agency will be the key provider of policy advice, research advice, and other matters from within its expertise, which the Joint Food Standards and Safety Group performs now at this present time. In the position that you raised, it may be that the Agency has previously given advice, for example, based on something that one of the advisory committees has said about a product or a substance and the Government takes a different view. Well, the benefit of the Agency is that under those circumstances, everybody, everybody would know that the Government has taken a different view. Today you do not know that.

  673.  Minister, forgive me, but the Agency is supposed to be independent.
  (Mr Rooker)  Well——

  674.  It is supposed to be an independent agency that the public has confidence in because it is independent of government.
  (Mr Rooker)  It is independent of the day-to-day control of ministers. As I explained at our previous hearing, its legal structure is as a non-ministerial department akin to Customs & Excise, which is the example I gave. Nobody ever accuses Customs & Excise of being a tool of the day-to-day operation of Treasury ministers, but it has got to answer to Parliament by ministers; it is a public body and there has got to be accountability. You misuse the word "independent". It is independent compared to what happens today, no doubt about that, because it is under the day-to-day control of ministers giving decisions on all kinds of issues. That would not be the case in future because the commission, the board and the chair would have a totally different relationship with the Secretary of State for Health and it would be much more open and transparent. The idea that this is independent, ie, a loose tie around the food industry, that clearly is not the case from the guiding principles that are set out in the White Paper and are converted into legislation, so it has to work within the rules that the House will establish in due course, assuming it passes the Bill.

  675.  So you are saying the Agency is not independent, so the Agency comes up with some advice for the Government based on research which we have just been talking about at length, the Government rejects that advice, and you are saying then that the Agency is then bound by the decision of the Government and not by its own conclusions and it has then got to go and promote the Government's policy rather than its own research findings and its own advice?
  (Mr Rooker)  Well, you give an interesting example and it would be interesting to see what happens in due course with the nature of those who manage and govern the Agency. That is why we need some real quality people and that is in no way disparaging the people operating the Joint Food Standards and Safety Group because the relationship between the Agency Chief Executive, the board and the commission of the Agency with ministers will be totally different from what the relationship is with the senior civil servants who head up the Joint Food Standards and Safety Group today, but yes, the point about it is that ministers will be more accountable because the Agency advice will be in the public domain. It is not the case today.

  676.  Let me move on to a slightly different topic. I am not happy with the answer you have given me, but we will move on to a slightly different topic, though very much related. The Agency will be giving advice not only to ministers of the UK Government, but will be giving advice to ministers in Scotland and Northern Ireland who might actually take a different view from the view in London. As a scenario, let us say that the Consumer Affairs Council in Brussels was deciding whether or not unpasteurised milk should be banned across the European Union, and I do not know what that would do for the French cheese industry, but, nonetheless, let us use that as a scenario. In Scotland it is banned and in England and Wales it is not. Who are they representing?
  (Mr Rooker)  Funnily enough, I thought that might get raised again, but you raise an interesting example because most of our food law, food policy is governed by membership of the European Union. Now, food safety and food standards is a devolved issue for the Scottish Parliament and we are setting up a UK Agency at a very delicate time obviously during the course of elections and hence we have only got draft clauses in for that and we have made that clear, that we shall come back in due course. However, whilst there can be differences, as indeed there are today, as we freely admit, between Scotland and England in some respects, if the European Union makes a decision and it is subject to qualified majority voting and a decision is taken that the UK Government, let us say, is against, because that is the scenario you are promoting, that is the law. Scotland is still part of the United Kingdom, it is still a member of the European Union, so that becomes the law. The decision the European Union took last September over the labelling of GMOs is already the law of the land, but the fact is that we cannot enforce it because we have no SI for penalties and offences which we will have before the end of the month. Scotland and the devolved governments cannot opt out of European Union decisions and in the example which you give, if that were to pass, and there is no proposal for that, that would be a European Union-wide legal requirement which you could not opt out of just because you were a devolved region of a unitary state.

  677.  I am not suggesting you could opt out of it, but in arriving at that decision, whether it be by qualified majority or an absolute majority, whose case are they representing? Are they representing Scotland's case or are they representing England and Wales's case?
  (Mr Rooker)  In the first case that you give I suspect they will put both sides of the argument.

  678.  Which side are they going to vote on because at the end of the day it comes down to a vote.
  (Mr Rooker)  Yes, but it will the UK Government Minister who is there representing the United Kingdom who will get to sign the vote. The vote will carry, by the way, following collective decisions in Whitehall. This is not something where one votes on a hunch. We are not acting as individuals. You appreciate that. We are acting after having discussions with colleagues in Government. Generally speaking, we do not vote, we try and get a consensus. There are many issues currently where I have discussions with Scottish colleagues simply because the nature is different. Food and health is split between two Ministers. I discuss both with Sam Galbraith and Lord Sewel because one has health and the other has agricultural responsibilities and yet they both at times come together in the areas that I touch on. That will be a collective decision in Whitehall of the United Kingdom Government. The United Kingdom is a member of the European Union, not Scotland, Wales and Northern Ireland.

  679.  I would like to come round to the other side of this coin now and take the Single Market in the European Union and maybe even slightly wider than that, the provisions of the World Trade Organisation, but let us just deal with the Single Market provisions. The Food Standards Agency is going to have certain powers, advisory or otherwise, with regard to the Meat Hygiene Service with regard to food production and with regard to food retailing. If you take food production the provisions of the Foods Standards Agency on food production could be much more stringent than those that obtain elsewhere in the European Union. Do you not see a conflict here in that British food manufacturers may find that the provisions of the Food Standards Agency are that much more onerous on them than they are on their Continental competitors? There will be nothing that the Food Standards Agency can do to control the quality or standards of food coming into the UK as long as they meet the basic provisions agreed out in Brussels.
  (Mr Rooker)  I have to say the premise of your question is that everybody else has lesser quality and lesser standards than us and that would not wear well across the European Union.

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