Evidence heard in Public

Questions 1 - 161



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Oral Evidence

Taken before the Environment, Food and Rural Affairs Committee

on Tuesday 15 May 2012

Members present:

Miss Anne McIntosh (Chair)

Thomas Docherty

Mr Iain McKenzie

Neil Parish

Ms Margaret Ritchie

Amber Rudd

Examination of Witnesses

Witnesses: Lord Rooker, Chair, Food Standards Agency, and Tim Smith, Chief Executive, Food Standards Agency, gave evidence.

Q1 Chair: I welcome you all to this morning’s proceedings. In particular, I welcome Lord Rooker and Mr Smith. For the record, will you give your names and position?

Lord Rooker: Jeff Rooker, Member of the other place, chair to the board of the Food Standards Agency.

Tim Smith: Tim Smith, chief executive of the Food Standards Agency.

Q2 Chair: Excellent. We are very grateful to you for participating in this morning’s proceedings. A number of us have constituency interests. As you are aware, Newby Foods is in the Thirsk, Malton, and Filey constituency, and to date, 40 people have lost their positions as a result of the decision. Mr Smith, when did you first hear about Commission proposals in relation to desinewed meat?

Tim Smith: In relation to its actions on the moratorium or the-

Q3 Chair: No, no. When did you first hear from the Commission about any proposals in relation to desinewed meat?

Tim Smith: We have been in dialogue with the Commission on desinewed meat and mechanically separated meat since the agency’s inception. There has been an ongoing-

Q4 Chair: So what date?

Tim Smith: 2000. I joined the agency in 2008 and it was in the background then.

Q5 Chair: In your memorandum to the Committee, Mr Smith, you mention the dialogue between the European Commission and the member states-so, therefore, yourselves-since 2010 over the difficulties in interpretation of the definition of mechanically separated meat.

Tim Smith: Yes. When you read the Commission’s communication, you see that what was happening was that it conducted investigations, which largely involved member states filling in questionnaires, and two things came out of that. One was a difference of interpretation about what mechanically separated meat was, and what, by definition therefore, meat was, and what was in the centre of that spectrum. While this was not a concern in terms of public health-20 member states said that-there was a difference in interpretation picked up by the Commission in those questionnaires about what different member states interpreted as the rules for mechanically separated meat. All member states agree that the definition is largely to do with the integrity of the muscle fibres of meat being largely the same as that of the meat it is derived from, which is the same for mince. The UK takes the position, as do other member states, that it is our belief that that does not constitute mechanically separated meat, because that muscle fibre is not damaged.

Q6 Chair: Since 2010, when the dialogue intensified, what discussions did you have with industry, particularly meat processors such as Newby Foods and other individual processors?

Tim Smith: This is one of those pretty rare occasions when the industry and the agency-I’m thinking about protection for consumers and the strength of our arguments-have been as one. I can think back to various meetings with industry stakeholders, particularly the BMPA and the British Poultry Council, where this has been flagged as a background issue, and we expect the Commission to reach a determination based on science and evidence. That is exactly what we would want them to do, and to put consumers first. Essentially those dialogues were about how we would influence the negotiations on behalf of the UK Government in the Commission’s consideration of effectively dealing with what has been an innovation for the last 10 years. The industry here in the UK, and in other parts of Europe too, has invested wisely, in our view, in new equipment that allows them to create a sustainable use for what used to be called-sometimes still is-the fifth quarter. It never seemed to us to be anything other than a very sensible route forward with the carcases.

Q7 Chair: Was there anything in the negotiations that led you to believe that this was going to affect particularly the UK?

Tim Smith: No. If we go back in time, we had decided to give a very clear steer to the industry in our non-binding informal guidance, which is laced with warnings about whether the Commission may or may not take a different view in the future. Around 900 tonnes of this material are used in the UK each week and 300 tonnes or so come from other member states, so our working assumption, which I think is a fair one, was that if this machinery is being sold and used in other member states and is exporting to this country, then the UK would not be alone. We just happen to have given it a particular name. We call it desinewed meat. Other member states refer to it as 3mm meat. It is sometimes referred to as Baader meat. It exists, as far as we are concerned, throughout the member states.

Q8 Chair: So does it not seem perverse now that 300 tonnes are still allowed to come in?

Tim Smith: It does.

Q9 Chair: But the 900 tonnes-what are you doing about that?

Tim Smith: It would need to be relabelled as mechanically separated meat. That would be the Commission’s view.

Q10 Chair: I asked what you are doing about it, Mr Smith.

Tim Smith: Our view is that we should impose on our industry the moratorium that we have agreed to, while at the same time pushing back to the Commission and saying, "This is not a science and evidence-based policy decision."

Q11 Chair: I am sorry, I am having great difficulty understanding. If, as you say, you always regarded the meat as safe, why would you agree to impose a moratorium?

Tim Smith: That is a very straightforward binary decision that was faced by the UK Government-

Q12 Chair: But it is not a binary decision. You just told the Committee that this dialogue was going on between the European Commission and member states. There must have been discussions within comitology and other committees and the Commission.

Tim Smith: Not comitology. Let’s be clear about what we are faced with. Once the FVO had been here and made their visits, what the Commission then did was to face us with two options. One was to impose an immediate ban five days later, or to face safeguarding measures, which effectively would have put the UK meat industry into complete turmoil and financial meltdown. So when we were advising Ministers and the industry on our two options, those were the two stark choices that we faced.

Q13 Chair: So you think it is completely in order to have a unilateral ban on the production of-

Tim Smith: No, not at all. Our position is that-[Interruption.]

Chair: Would the gentleman with the phone please leave the room until it is off?

Tim Smith: There was always a third way, which the Commission refused. When I went to see the Commission and made our points on all the aspects you would expect-on science and evidence, the technology and legalities of it, the economic reasons, and the sustainability-all those arguments were met with a stonewall response, which was, "No, we want you to ban this material and do it within five working days."

Q14 Chair: Why have other member states not had a similar ban?

Tim Smith: Because they have not had the Food and Veterinary Office mission visit the member states yet, and we have not been able to convince the Commission-

Q15 Chair: So why did you accept the FVO visit early?

Tim Smith: It is normal that FVO missions are held. We will probably be running four or five a year in this country, and all other member states face exactly the same. We are the first.

Chair: We will come on to that in a minute.

Q16 Amber Rudd: I do not quite understand the procedure for when the visits take place. Were they scheduled? Are they scheduled to take place in other countries. Can you choose whether to accept them? How does the process work? It seems like a coincidence.

Tim Smith: They are effectively auditing, on behalf of all member states, whether every member state is conforming with all the various regulations to do with food. The Food and Veterinary Office, based in Dublin, set out a programme of things they are interested in for the next few years. As they do that, they then schedule-assuming a member state is conducting the business they are interested in-a series of visits, and they have half a dozen or so visits on mechanically separated meat for this year. We just happened to be the first one.

Q17 Thomas Docherty: For clarification, are you aware of any other industry that the European Commission would start banning on an ad hoc basis, as it goes along, in a piecemeal fashion?

Tim Smith: They do this two or three times a year, they tell us, because we were appalled at the severity and pace with which they wanted us to take this action. We did not see that it was at all proportionate. Since this is, as far as they are concerned, an absolute legal requirement, they have told us that they think we should instantly be able to find a way of causing industry to change its working practices.

Q18Chair: But that is complete nonsense at every level. I am very sorry, but a number of us-I should declare that I practised European law in Brussels for a short time, for three or four years. You say yourselves that there is no threat from the meat involved.

Tim Smith: It is as safe as meat that is boned from a normal carcase in the same way.

Q19 Chair: And purely by changing the nomenclature from desinewed meat to mechanically produced meat, which the Commission was proposing to do, was going to outlaw the production of this meat.

Tim Smith: If we were to label it as mechanically separated meat, it would fall within the regulations and be allowed.

Q20 Chair: But it would not be allowed. That is the logic.

Tim Smith: Once it became mechanically separated meat, it could not then be derived from ruminant bones.

Q21 Chair: I am struggling to understand the role of the FSA. Its role is surely to protect and support industry.

Tim Smith: No, not at all.

Lord Rooker: With respect, that is not our role. Our role is set out in the legislation that set up the FSA, in section 1. It is to put the interests of consumers first in relation to food, its production, distribution, and so on. It is as simple as that. We are not cheerleaders for industry. We are not a management consultancy for industry. We are the food safety regulator. Government Departments are responsible for the economic promotion of the industry. What we seek to do-in this case, to be honest, our hands are clean-is regulate proportionately, based on risk and clear science, which we have delivered to the European Commission, and did from Leatherhead. We have no public health concern whatsoever, in respect of the product. We have not sought to gold-plate, which would have been the case if we had gone with their original definition from the discussions two or three years ago.

I am a supporter of the EU, but this is virtually a straight banana issue. This is meat. It is not mechanically separated meat or mechanically recovered meat. It is meat. It is not a purée. It is meat that we get off a carcase that has not been interfered with.

Q22 Chair: But I do not understand why the FSA did not argue this point, together with the other FSAs.

Lord Rooker: We have been doing that. The timeline that you have had-

Q23 Chair: You can just say no.

Lord Rooker: No, we can’t. The timeline you have had explains what has happened over the past decade.

Q24 Chair: With respect, Lord Rooker, you have had two years while these negotiations were going on.

Lord Rooker: With respect, Chair, they were still going on when the visit took place. As far as we are concerned, it is the EC that abandoned the discussion and then-and only then-in late March or the first week in April referred the matter to the European Food Safety Authority. They could have done that a year or more ago. We had already given them the evidence from Leatherhead, which they had never responded to. We have done this purely based on risk, on proportion and on science. They have ignored this.

At the same time, the discussions are ongoing. We are still in the committees. We are doing our bit. Industry is doing its bit. It was the BMPA that invited the Commission to come over here and look at plants in 2011. We have been open and transparent about this. Desinewed meat is not mechanically separated meat. It does not fall within the definition. That is our view. We were in discussion about that up until and including the FVO visit. It has not changed from our point of view. However, they have a legal authority that we do not have, and that is to impose, as they said, punitive measures on the UK. I do not want to exaggerate, but if we had not co-operated and they had applied full punitive measures, we could have been back to pre-6 May 2006 with a beef ban again. We are not going down that road, which is so damaging to industry.

Q25 Chair: You could simply have not applied it and let them take you to court, because you cannot have them unilaterally imposing conditions that will penalise one member state. Someone, somewhere, has to stand up for this country, and that is your role.

Lord Rooker: With respect, we are obliged to follow the law.

Q26 Chair: The law is perfectly clear.

Lord Rooker: No, the view has just been put to you by the chief executive. There were two courses of action. We thought that one would have been catastrophic for the British meat industry and therefore we sought to buy time, which is what we are seeking to do. We are seeking to buy time. We cannot control the dates of the FVO missions. They have already announced visits, I think, to five other member states. We know that, in due course, they will go to those member states. In the meantime, we are pressing the science case. Their view seems to be one of principle. If it is taken off the bone other than by a human being with a knife, it is not allowed. We do not take that view regarding desinewed meat.

Q27 Thomas Docherty: Which of you is making the decision here? Is it Lord Rooker or Mr Smith?

Tim Smith: The Food Standards Agency.

Q28 Thomas Docherty: Was it the chief executive or the chairman? We are getting a lot of answers from the chairman when we want to hear from the chief executive. The chief executive is responsible for the operations of the FSA.

Lord Rooker: Look, I am the non-executive chair of the board.

Q29 Thomas Docherty: Exactly. "Non-executive." I want to hear from Mr Smith, not from the chairman.

Lord Rooker: With respect, the kinds of questions that I was getting were questions of governance, not of operations. I will deal with governance questions.

Q30 Thomas Docherty: Mr Smith, why did you not wait until the other countries had been inspected and a decision made EU-wide? As we saw with eggs, despite the rhetoric from the Commission, on 1 January 2012 not a single second of action was taken by the Commission, so why did you not wait? Why did you effectively gold-plate?

Tim Smith: As Lord Rooker has already said, and I endorse it, we have done exactly the opposite when it comes to desinewed meat over the last 10 years. We have allowed the industry, with clear signs of evidence and consumer protection at the forefront of our minds, not to gold-plate. So, to address your timing question, what the Commission did immediately after they received the first word of how their mission had gone in the United Kingdom was effectively to issue us with this stark choice. The agency does not act alone-

Q31 Chair: What was the choice? What did they say?

Tim Smith: The stark choice was either to convert all desinewed meat into a new configuration of mechanically separated meat, which has a disastrous effect on the value of that product, or else face safeguard measures. Such measures, as Lord Rooker has already said, are effectively those that put the UK industry for meat, meat preparations and so on into a completely untenable position.

Q32 Chair: You had a perfectly good free movement argument to put to them that it was unacceptable to have a unilateral moratorium in this country whereby you are excluding home production, but allowing illegally produced meat to come into this country. I cannot understand on what grounds you went along with it. You were under no pressure whatsoever.

Tim Smith: That is completely wrong, if I may say so. The pressure we were under was this binary choice, and all the UK Government bodies that we consulted throughout the process-UK representatives, our Cabinet Office colleagues, everybody in the Department of Health and DEFRA-and all the Ministers consulted and concerned in our discussions about the UK’s response came to the same reluctant conclusion.

Q33 Ms Ritchie: It has been a very interesting discussion so far. I was wondering what discussions had been held between the FSA and the devolved institutions in Scotland, Wales and Northern Ireland. Were they informed? What did they say in the appropriate Departments about that? Did discussions take place with the actual institutions and their Members?

Tim Smith: We treated this as an incident in our way of doing things. Because it was so urgent and so significant, we ran it within the agency as a strategic incident. What that means is that Ministers in all four nations were consulted to the same level. So, Agriculture Ministers and Health Ministers-there is always the doubt that someone might see this as a public health concern, which it is not-were all consulted and all came to the same reluctant conclusion that the UK Government were faced with a stark choice: either to accept safeguard measures, which would damage the industry, probably beyond repair, or to impose a moratorium. Originally, if you remember, that moratorium was supposed to be a ban after five days, but we won a reprieve for two periods of time, both of which were reluctantly agreed by the Commission. Ministers in all four countries had to agree to the same constraints that we had seen in Westminster.

Q34 Chair: So you only consulted the Ministers in all four countries in April. You did not consult them in 2010.

Tim Smith: They have had a series of submissions over time. We laid some information before Parliament in 2010, I think, following the Commission’s communication.

Lord Rooker: In January 2011, there was parliamentary scrutiny in both Houses.

Q35 Chair: I am asking when you, Mr Smith, had these discussions with the Ministers. Did you first contact the Ministers directly? I can see that Anne Milton’s letter is dated April. At what point during the two years between 2010, when you were negotiating in Brussels, and the decision being made in April, did you first raise this as a potentially explosive industrial and political issue with Ministers?

Tim Smith: When it had become just such an issue.

Q36 Chair: When?

Tim Smith: In April, after the FVO’s mission.

Q37 Chair: So, apart from going through the formalities of laying documents before the House, you did not think it appropriate to raise this with your political masters, to whom you are accountable, before April of this year.

Tim Smith: I think there are a few things on that. Jeff will want to talk about governance. The first thing is that if we took all the issues within the European Union which have got this level of discussion going on, such as the changes in the food hygiene regulations and the changes in the way that premises are inspected, which were both at this kind of level-in our routine discussions with Ministers, both Jeff and I would make reference to hotter topics that were coming along-this was never one of those.

In neither Jeff’s time nor mine has this issue been raised to such a level, even by my officials, as being likely to cause any damage to the future of the industry, other than in very low-level ways, which is why we wrote to the industry back in 2010. We did not anticipate-if you look at the Commission’s correspondence on this, I don’t think that any reasonable person would have anticipated-that this was the likely action they were going to take, if they made any mission to any one of the member states.

Q38 Chair: So you do not see this as a dereliction of your duty in having failed to inform the Ministers as the negotiations went on.

Tim Smith: Certainly not. It was not clear to us until the mission was concluded that the Commission was contemplating taking what we regard as disproportionate action.

Q39 Ms Ritchie: Have you a trail of correspondence between the FSA and the appropriate Ministers in Health and in Agriculture in the devolved Administrations? I am talking about correspondence between you and them, and correspondence from them to you. Is it possible or appropriate for us to have sight of that correspondence, because it is my belief-I can only speak from a Northern Ireland perspective-that the Committee for Agriculture and Rural Development in the Northern Ireland Assembly never had a discussion about this and it was never informed about it?

Tim Smith: One of the strengths of the agency is that it is a UK-wide body. While a lot of the activities within the food sector are devolved, the agency has worked effectively across all four nations for 12 years. It is our belief that the offices of the FSA in Aberdeen, Belfast and Cardiff did exactly the same job as they would have done on any other emerging problem for the food sector or for consumers, and consulted appropriately. I am happy to provide all the correspondence; it is probably on the website. Everything we do is open and transparent, including all our dealings with the Commission.

Q40 Chair: Just before we move on, did you receive draft guidance from the Commission in January this year suggesting that desinewed meat would fall within the new definition of "mechanically"?

Tim Smith: It did not really change their position. What had been discussed through the various committees and working groups, at a reasonably low level with officials, had not even reached the Standing Committee at this stage. They were developing a new response to the innovation that the industry here and across the rest of Europe had developed. There was anticipation among officials across Europe that there would need to be a change in the hygiene regulations and possibly other regulations on the production of desinewed meat, because the questionnaires that they had sent out revealed that there were varying degrees of understanding of what constituted mechanically separated meat and what constituted meat.

Q41 Chair: Did you inform producers of desinewed meat of the contents of the draft?

Tim Smith: Yes.

Q42 Chair: When?

Tim Smith: Through their trade bodies.

Q43 Chair: Why did you not contact the producers, those few companies that were going to be directly affected?

Tim Smith: As far as we were concerned, there was going to be no direct effect. So, we would have talked to their trade bodies-

Q44 Chair: Sorry. Why?

Tim Smith: In January, there was no hint that they were going to be affected in the way that you suggested.

Q45 Chair: But what about February, when they actually went to visit one of them?

Tim Smith: The BMPA, very sensibly, created a very nice document, which they sent to the European Commission last year, inviting people over. We wanted to bring this matter to a head. Those people who were producing desinewed meat were involved in this process throughout 2010, 2011 and 2012. They knew what the Commission’s hesitation was. They had invited the Commission over to review their processes and effectively to confirm that what they were doing was within the rules. The Commission has, on a number of occasions, as you will see from the correspondence, refused those invitations-in our view, wrongly. I would commend to the Committee the paper written by the British Meat Processors Association as an excellent summary of the issue that was facing them as the producers of these meat products and us as their regulator, concerned with ensuring that the regulations are being properly applied, but always thinking about the consumer protection angle.

Q46 Chair: Just to help the Committee, when the Commission escalated this to a ban, what legislation did the Commission quote?

Tim Smith: To be honest, I would have to get back to you on that. I don’t know.

Q47 Chair: Could you write to us, because it is extremely important that we understand?

Tim Smith: Will do. Certainly.

Q48 Amber Rudd: Could I come back to the visit from the Food and Veterinary Office? What did you understand was the purpose of that visit? Do you feel that they had an open mind when they arrived?

Tim Smith: It is easy to look back with hindsight. I think it is now clear that what they were intending to do, and what they will do in other member states-I am certain of that-is to look at the interface between what they regard as mechanically separated meat and what the industry and regulators in those different member states view as mechanically separated meat. What they were intending to do, in my opinion, having read their brief, was effectively to look at the processes-the low-pressure methods-for separating meat from meaty bones. We are talking here about bones that are sometimes 80% meat, which normally, 10, 20 years or even longer ago, would have been boned out by people with knives. There is now equipment that does that.

What they were intending to do was to determine whether the muscle fibres were being damaged sufficiently to cause that to be mechanically separated meat, rather than meat that would have been boned out in the normal way. Our view was that Newby Foods and others, which have done an excellent job of innovating in this area, would be able to demonstrate, using the Leatherhead method, with histology and microscopy, that the muscles were not being damaged. We were confident that the industry was in a strong position to demonstrate that this meat was meat and not mechanically separated meat.

Q49 Amber Rudd: So the swift moratorium came as a surprise to you. Did you realise that it could be a possibility?

Tim Smith: When I re-read the papers now, they were clearly intending to look at that interface. Our assumption was that they would then go back with that evidence and use it, as they were gathering for other member states, to inform their discussions with officials about what this innovation now meant, as opposed to it leading to some form of punitive action. We did not perceive it as being likely that there would be any punitive action.

Q50 Neil Parish: To carry on the same questioning, Mr Smith: had you anticipated that the Commission might impose a moratorium while the draft guidance was still under consideration? That is the whole crux of the matter. It is being considered across the rest of Europe, and yet we have a ban.

Tim Smith: No. We took the view that because we had created the test, because we had sent it to the Commission for peer review and because we suggested that EFSA ought to look at this, our working assumption was and is that the sensible course of action would be to ask the scientists to have another look at the subject, while allowing the production of the meat to continue unaffected. There is no discernible difference from a consumer, public health point of view between meat derived from this low-pressure method and meat that comes from having an extra team of people boning out on the table.

Q51 Neil Parish: I understand that. We, in this room, if not in the European Commission, are clear that this desinewed meat is not mechanically recovered meat. There is a difference, and I think that is the problem. Am I right to say that at the moment, while our companies, such as Newby Foods, cannot recover this meat, 300 tonnes of the same meat is still being used in the same process and industry, going into our food chain and being imported?

Tim Smith: No. The moratorium applies equally to meat that comes from either ruminant bones, which is now banned, or non-ruminant bones. The moratorium became effective on ruminant bones recently. The moratorium on non-ruminants comes in at the end of May, and, as a consequence, any material that is designated desinewed meat, 3 mm meat or Baader meat will not be usable, whether it has come from the UK or any other source. Quite what is going to happen to that meat on the continent-it is exactly the same problem as we will have here.

Q52 Neil Parish: Yes, but at this moment in time we have this moratorium in place in this country, but across the rest of Europe they are still able to use the same meat under the same process to go into the food chain. Is that right?

Tim Smith: The rules relating to labelling are the same here as they are in the rest of Europe.

Q53 Neil Parish: No. Just answer the question, please: is that meat going into the food chain across the rest of Europe? I believe that it is.

Tim Smith: It would be marvellous if we, or any of us round the table, could demonstrate that we were not working on a level playing field. The Commission’s single strongest argument is that it wants to establish a level playing field by which all member states conform to the same regulations. I cannot definitively say-nor would you really expect me to-that in any of those member states that the Commission is about to visit through its Food and Veterinary Office it will not find precisely the same material. The Commission has written to the Chief Veterinary Officers of all those member states, which is the entry point, to tell them that it has made this determination and to remind them of their responsibilities.

Q54 Chair: So it should be illegal to produce this meat?

Tim Smith: Yes. If the moratorium here is for anything, it is to prevent the instant ban and to allow our industry at least a little time to prepare for the situation, as is said to be the case in the rest of Europe. We doubt, as I am sure the Committee will, that this material-this 3 mm meat or desinewed meat-is being used in other processes in other parts of Europe, and I am sure that our industry colleagues will confirm that if you asked them. The machinery exists. For example, we know that there are at least 150 pieces of equipment similar to that used in our chicken processing plants here across the rest of Europe.

Q55 Chair: Just to confirm: I think that you said in response to an earlier question that 300 tonnes of meat produced in this way in other member states is still coming into this country.

Tim Smith: The moratorium for non-ruminant bone desinewed meat does not come into effect until 26 May.

Q56 Chair: How much of the 300 tonnes is non-ruminant?

Tim Smith: I could not tell you.

Q57 Neil Parish: So are you confident that on 26 May no meat from this desinewed process across the rest of Europe will enter Britain?

Tim Smith: I have already said that I cannot be certain of that.

Q58 Neil Parish: And you are going to be absolutely certain of that.

Tim Smith: No, I cannot be certain.

Q59 Neil Parish: Okay. Let’s get that on the record.

Why is it that you do not take action to maintain a single market position, because, basically, with my knowledge of Europe, I would be damn certain that across France and other member states they will probably not be banning this meat until the Commission takes some sort of action against them? What we do is roll over and say, "Okay, we’ll ban this process" and, within a month, we have put people out of business, we have put the meat industry under huge pressure-we have had huge pressures from Europe over the years, rightly or wrongly, over BSE and other matters-and yet you do not stand up for our industry. As far as I can see, Newby Foods and others surely have a case against you that you have not stood up for the UK interest and that, under single market regulations, we have actually banned this product while other member states are allowing it to carry on. That is the situation at the moment, is it not?

Tim Smith: If I can pick the question out of that, my belief is that the Commission is acting in good faith in trying to establish a level playing field, in which meat can only be described as meat if it has not been through this mechanical process and the muscle fibres have not been damaged in any way. If it has gone through that process, whatever the pressure, whether it is low pressure or high pressure, the Commission’s perspective is that this product is mechanically separated meat and can be used for all meat preparations as long as it is properly labelled-but not ruminant bones.

My belief is that the Commission is endeavouring to level the playing field, and only the evidence of the FVO will show whether it has been successful or not. But we have taken a very direct line with the Commission, throughout this period, to negotiate for what is a sensible and sustainable, innovative process that allows people, such as Newby and others, to continue what is a sensible business operation, in our view, since it poses no consumer risk.

Q60 Neil Parish: Are you actually going directly to challenge the Commission on its view? Is the Commission actually saying this is mechanically recovered meat?

Tim Smith: No-separated meat.

Q61 Neil Parish: Mechanically separated. The Commission is actually saying that?

Tim Smith: Yes.

Q62 Neil Parish: And yet you do not believe it is?

Tim Smith: No.

Q63 Neil Parish: Are you challenging the Commission legally on this point?

Tim Smith: We have to continue to take advice as to whether or not there is a legal case to be taken by the UK, or by the representative businesses that were affected by this, against the Commission. For the time being, what we have been doing is trying to minimise the damage to the industry by trying to negotiate just exactly what it is that it is trying to stop happening. That takes days, not a matter of hours, so we have been endeavouring through that period to engage with the Commission. There is no point in simply sitting in our respective ditches firing at each other; we need to engage with the Commission on what it is it is trying to resolve.

Q64 Neil Parish: With humble respect, I suggest you try and fire at all, let alone which ditch you sit in. Furthermore, have you ever known in your experience the Commission previously demanding the almost immediate secession of any established method of food production in the absence of any perceived risk to public health, because this is the crux of the matter?

Tim Smith: No.

Q65 Neil Parish: Are you talking to your lawyers? Surely, if companies such as Newby Foods have been put out of business and the Commission has not acted legally, not only are they being put out of business, but they are entitled to legal compensation. Why should a company be put out of business when we in this country believe that that meat process is perfectly fit for human consumption? Yet they are being put out of business.

Tim Smith: Precisely, and that has been our line with the Commission throughout this period of discussion and negotiation with it, which is why we are so puzzled by the severity and timing of its actions.

Q66 Chair: But Mr Smith, you do not seem even to know which law the Commission is applying.

Tim Smith: I can tell you now-my officials have helped me with this-the ruminant bones were prohibited for use and for the production of mechanically separated meat under the EU TSE regulations No. 999/2001; the non-ruminant bones are covered by the hygiene regulations No. 853/2004, which defines mechanically separated meat; and MSM, which is not therefore regarded as meat, under the EU labelling regulations.

Q67 Chair: But surely you could have challenged that yourself, on the basis that it was disproportionate and that there is no known health risk from this.

Tim Smith: We did, precisely.

Q68 Chair: It would help the Committee enormously if you could talk us through how you challenged it.

Tim Smith: I am happy to share the correspondence with the Committee and, again, we will be putting it into the public domain. The Commission wrote to us following the FVO mission. We have been in correspondence with it since-effectively, rejecting its analysis of desinewed meat. That is on the record. I am sure that industry people who have been following this closely will also have made similar representations to the Commission. There is very little difference between the industry’s position and ours.

Q69 Chair: Is there anything to prevent the industry or Newby Foods from taking a judicial review against your decision?

Tim Smith: Not at all-it’s their choice.

Q70 Chair: Because that, surely, is the cheapest option for them. It is a lot cheaper than making a formal application to the European Court of Justice. If they were to take a judicial review against your decision, it would at least provide them with some relief until the moratorium were imposed across the rest of Europe.

Tim Smith: I am not in a position to give them any kind of legal guidance, but I can tell you that Newby have already taken legal advice and may well come to that conclusion.

Q71 Chair: The legal advice seems to be pointing in the direction-possibly-of a European Court action, but much the swiftest action, which would buy them more time, would be to review your decision.

Tim Smith: And we would then be placed in a difficult position as the competent authority charged with enforcing the regulations, as they had been recently reinforced to us by the Commission.

Q72 Chair: In response to Mr Parish’s question, we have established that there is no precedent for the sheer speed of introducing this measure and the sheer impact it would have. These products will still be sold, and they could be made with the meat coming in from other European countries until the moratorium takes effect there. That is completely wrong.

Tim Smith: But they can be now.

Q73 Chair: But that’s wholly unacceptable.

Tim Smith: UK and EU production can continue until 26 May. Whether the material comes from other member states or from the UK, we would regard that as a sensible use of material that has already been prepared.

Q74 Chair: I am a little concerned that in answer to an earlier question, you understood that the Commission had written to the veterinary officers of counterpart-

Tim Smith: All the member states, yes.

Q75 Chair: So they are at a much earlier stage. They are six months, or three or four months away from a ban’s being imposed.

Tim Smith: I don’t anticipate that my-

Q76 Chair: Just talk us through it. The procedure was: you received a letter in January, through the FVO, asking for an inspection, which took place in February, so we are still four months ahead. It is completely unacceptable at every level of UK or European law that the ban should have taken place in this country before it took effect across the piece, because you are meant to be safeguarding our consumers, who are now still eating meat that is produced in what the Commission says is an unacceptable way. The Committee would like to hear what you are doing about it, why you rolled over and were tickled, and banned it in this country, and allowed imports from other member states. It is completely unacceptable at every level.

Tim Smith: If that were true, it would be. The disproportionate nature of what the Commission has done is why we have argued for the moratorium to be extended.

Q77 Chair: With the greatest of respect, you have only asked for it to be extended by one month for non-ruminants.

Tim Smith: No, we haven’t just asked for that.

Q78 Chair: You have just told the Committee, Mr Smith, that the ban will take effect from 1 June-the end of May. I don’t think you mean to, but you keep contradicting yourself. You have just said that the chief veterinary officers of other member states have only just received the letter informing them that their inspections will take place one month, two months, three months down the road. There will then be the same three or four-month procedures, and they might ask for an extension, too. Potentially, this meat could still be imported from other European countries into our country. It could be eaten by our consumers for another four or six months.

Lord Rooker: That is not true.

Q79 Chair: It is true-Mr Smith just told us.

Lord Rooker: That is not true. No, Mr Smith has explained in detail that it would not be allowed to be used in the production of products in this country. Once the end of May comes, if that date does not change, there will not be import of desinewed meat.

Q80 Chair: There will be, because they are months behind us.

Lord Rooker: No. Our food producers-the food business operators in this country-will not be able to use, in any of their products, desinewed meat.

Q81 Chair: I am not going to name them, but it does not prevent the makers of the canned food from taking them directly from the importers.

Lord Rooker: It will be illegal because the product would not be allowed-

Q82 Chair: It will not be illegal because they have not had the inspections, and their veterinary officers will just be-

Tim Smith: No, the Commission say that they have told all member states that they expect them to comply now.

Q83 Chair: But they have not visited them.

Tim Smith: But the enforcement-you are quite right-may well take longer than that. Can I just clear up the timings? Each of the member states is aware well in advance of the arrival of the mission that the mission is for a particular subject and on a particular date. What then follows is pretty much as you have described it. The chief veterinary officer letter is quite separate from the missions and is a reminder to all member states, caused by the inspection of all these other plants in the United Kingdom, that it is the Commission’s view that this desinewed, low-pressure, mechanically separated meat, as the Commission refers to it, has to be labelled and has to be used as MSM. It cannot be described as desinewed meat. The enforcement is a different question, and one on which I am not clear enough about what other member states will do-you may have a view. The Commission’s position is that, as far as they are concerned, they expect all member states to comply now, and that compliance is anticipated to have taken effect at the same moment as our ban was being imposed by the Commission.

Q84 Ms Ritchie: As a follow-on to that, and in pursuance of the same line of questioning, if the Commission has serious concerns about the production of DSM, why is it that a moratorium has been placed on the UK, and why was that requested?

Tim Smith: They are not just concerned about the United Kingdom; they are concerned to ensure that all member states comply with their reading of the regulation, which is that the mechanical damage caused by this low-pressure and high-pressure machinery makes it clear that there can be only mechanically separated meat and meat that is taken off the bone using a knife. That is what they have told all member states. They have not just told the UK.

Q85 Ms Ritchie: Then, as a consequence of that, do producers in other EU countries remain able to export desinewed meat to the UK? I can think of where I am coming from in Northern Ireland where producers in the Republic of Ireland could produce or export this meat, and thereby place Northern Ireland producers at a distinct disadvantage.

Tim Smith: It should be clear to all member states from the correspondence and the communications given by the Commission that they consider desinewed meat, or any other designations that they use in other member states, to be outside of the regulations. It has either got to be labelled as MSM, or it is meat that is derived from processes of traditional boning. That is it; there are only two categories. There is nothing in the middle. All member states will have received the same correspondence as we did about the consequences of that advice.

Q86 Ms Ritchie: Notwithstanding what you have already said through the Chair, does the FSA have any power to protect the industry? I know that Lord Rooker said earlier that your job is to protect the human being and in turn to protect the industry in the longer term, but can you not stop this happening and thus protect our industry and our inhabitants?

Tim Smith: From our point of view, Lord Rooker is entirely right. Our first thought is to the consumer’s protection, and our second thought is to work only on science and evidence-based policy and to be proportionate in everything that we do. All those principles run through everything the agency ever does. We have been open and transparent with the Commission in what has been happening. Our continued belief-we are aligned entirely with the industry on this-is that this is an innovative, sensible process that causes no additional public safety risk and should be allowed to continue. We have been trying with the commissioner and with other member states to come to that conclusion, rather than the conclusion the Commission have reached, for 10 years or more.

Lord Rooker: Could I just add to that, at the risk of being accused of deviation? You raised the issue about meat coming up from the Republic to the United Kingdom in Northern Ireland. It will not be possible for producers of foods in Northern Ireland actually to use desinewed meat from the Republic after the date, because it would have to come into Northern Ireland as mechanically separated meat. Therefore, it would not count on the restrictions of our labelling. Our labelling is unique in meat in European terms of consumer protection. It will not count as meat in the product. It will not count towards the minimum percentage of, let’s say, pork in a pork sausage. It would count only as mechanically separated meat. That does not count as meat on the constituent part of the meat product. It has to be labelled separately. In that respect, there would not be a disadvantage.

First, it should not be coming in as desinewed meat, because it cannot be used as desinewed meat. Therefore, producers in Northern Ireland would be paying less because they would be buying it as mechanically separated meat to put in meat products, but it does not count as meat under our labelling regulations. So it does not count towards the percentage minimum of meat. To that extent, from a practical point of view, notwithstanding everything that Tim Smith said is correct, it is completely disproportionate. We don’t want this attack on our industry. It should not be to the detriment of producers, only insofar as they are paying less for mechanically separated meat. It was called desinewed meat last month; mechanically separated meat now. They will pay less but it will not count towards the meat as the constituent part of the meat products.

Q87 Ms Ritchie: Further to that, have you had communication with your equivalent authority in the Republic of Ireland with regard to this matter? Would it be possible to have sight of that correspondence?

Tim Smith: Our director responsible for the Food Standards Agency in Northern Ireland is in regular contact with his counterpart in the Republic. I know that Alan Reilly, who is chief executive there, is more than aware of the consequences of the mission here. That dialogue is routine and regular and has contained commentary about this particular issue. Yes, we are happy to provide evidence of that.

Q88 Chair: Mr Smith, Newby Foods lodged a formal complaint to the FSA of the circumstances of the visit and inspection by the FVO in February. How did you respond to that?

Tim Smith: I am going to see Newby on Friday.

Q89 Chair: This is two months after the event and you have signed up to the moratorium in between.

Tim Smith: We have. Newby’s complaint will be investigated in the normal way that these things have to be. That is a rather slow process, which doesn’t help anybody. We have been very clear with the Commission about the plants most affected by its proposed ban and our change of that to a moratorium. The situation with Newby is completely intolerable, unnecessary and disproportionate. We have made that clear at every twist and turn. That does not prevent the Commission from threatening us again with safeguarding measures if we continue to support the continued use of their products.

Q90 Chair: So, what are the safeguarding measures that the Commission keeps threatening you with?

Tim Smith: Effectively, it can ban the sale and use of meat and meat preparations from the UK in the rest of Europe, which would effectively put the red meat and poultry industry into complete disarray, because it would have the same effect in the UK. It is as punitive as the Commission can be.

Chair: We might come back to that.

Q91 Mr McKenzie: Continuing the question on the moratorium: given the Commission’s insistence that the UK impose a moratorium on ruminant DSM at very short notice, are you confident that you will be able to persuade it that reclassification of non-ruminant DSM should be postponed to 2013?

Tim Smith: I am not confident, because our entire agency principles are based on science and evidence. In our reading of it, this decision does not appear to be based on that science and evidence. We think the industry and its advisers and the scientific bodies it has consulted have come to a very sensible conclusion about what desinewed meat is and is not. The Commission has failed to be convinced by that and has now called for its own scientific evidence to be produced by EFSA. I think its version of holding this line until EFSA has delivered its opinion is the wrong one, but it is the line that I expect the Commission will follow.

Q92 Mr McKenzie: So when do you expect a response?

Tim Smith: EFSA could take at least six months to come to a conclusion on whether the process of low-pressure separation of meat from meaty bones is the same as mechanically separated meat. I can tell it the answer now: it is not.

Lord Rooker: We could show you this by film if you want?

Chair: I have a little slideshow that I can share with colleagues.

Q93 Neil Parish: Mr Smith, are you aware of any scientific evidence being presented to the Commission that contradicts your view that DSM does not result in any significant loss or modification of muscle fibre structure?

Tim Smith: No, the critical word in their reading is "mostly the same" as minced meat. If you think about the variety of equipment used to produce minced meat from the normal muscle of an animal, that will vary fairly significantly depending on the machinery, the pressure and the fat content that the industry is trying to achieve.

I went to Dunbia recently, and they were kind enough to show me their process. If you compare 80% visible lean pork mince derived from shoulder meat with the meat that comes from their desinewing process, they are, to all intents and purposes, identical to the consumer. Microscopically, they are mostly the same, and they are mostly the same because there are inevitable differences in the way that the meat shears under load. They are emphatically not mechanically separated meat, which results in muscle breakdown and causes the loss of fluid from the muscle cells, effectively forming what I think Lord Rooker referred to as a slurry or paste. That is not what this is.

Q94 Neil Parish: So you believe that this meat is perfectly fit to eat and that there is no scientific basis for it to be stopped by the Commission? Can you not legally challenge the Commission’s definition? Also, can’t other member states do so? What are you doing to talk to other member states about their attitude towards it?

Tim Smith: Since the FVO mission concluded, we have been in conversation with member states and our legal teams, both in the UK and with the United Kingdom representative in Brussels, on the basis that if this develops in the way it has, the UK Government should be contemplating-we would only be giving advice to the UK Government-the actions that might result from the industry taking legal action or we ourselves taking the risk of taking legal action. That decision would be made above my pay grade.

Q95 Chair: Can I turn to the FSA’s advice in your written evidence on the Commission’s draft guidance to the Standing Committee on the Food Chain and Animal Health on 18 April? The Commission stopped work on the guidance to consult the European Food Safety Authority, but you were told that it would take six months for the European Food Safety Authority to carry out its work. Would it not have been more appropriate to have allowed the European Food Safety Authority to establish the safety aspects? What support did you have and what discussions did you have with your counterparts? Why did you not heed the advice of the Food and Drink Federation and the British Meat Processors Association, both of which said that scientific advice should have been received before a moratorium was agreed to?

Tim Smith: The process that we followed reflected the urgency that the Agency and its officials were placed under, which is this binary decision. I have said this already, but it would have been entirely more sensible for the Commission officials and our officials, and all the other member states involved in this process-something like 20 are engaged in this process-to have asked EFSA to take an opinion but to allow the process to continue in the interim. That would have been the most rational thing. I am sure the industry and ourselves took the same view, and there isn’t any change in my mind that suggests that that would not have been the most rational and proportionate action for the Commission to take. I was not given that choice. I was given choices: one was to ban the product immediately, and the other was to put the UK into safeguarding measures.

Q96 Chair: If we just hang on there for a moment, how many other member states do you know have been threatened, or were threatened at that time, with punitive measures if they did not reclassify desinewed meat as mechanically separated?

Tim Smith: I will take it the other way round, if I may. I suspect that at least half a dozen serious meat-producing countries will have looked at what has happened in the UK and anticipated what is going to happen if they have a similar mission.

Q97 Chair: I do not think the Committee is persuaded that you have resisted. We are absolutely onside with you with the definition that desinewed meat is perfectly legal and should continue to be legal and that there are absolutely no grounds for the Commission to have gone down this path of reclassifying the way that meat is produced. Do we understand why the Commission has gone down this path? Has anyone explained it? Have you questioned it?

Tim Smith: No, and I have questioned that on every occasion when we have had the opportunity. My officials have been to see the Commission officials and have pressed them on why now and why so punitive and why the time scale. This is completely disproportionate.

Q98 Chair: But why not just why?

Tim Smith: Precisely. I am in exactly the same place as you. The officials are working at a normal working level to reach agreement which would then inform the next version of the hygiene regulations, because that is what this is about. When they put their questionnaire around the member states, 20 or so responded and said they saw no public health problem with this and that they were anticipating that the missions, the Commission’s scientists and everybody else would get together and be able to reach a conclusion during the process rather than going through this very odd, offer-deciding route.

Q99 Chair: But surely you would have been in a very strong position if you and your opposite numbers had simply said, "Let us wait for the European Food Safety Authority to give us the scientific evidence." That would have given the industry plenty of time to prepare. It is much more normal: six months or 12 months. I cannot quite understand why you did not try to force the Commission’s hand to go down the normal route.

Tim Smith: No, well the process that we followed, which was that we were given these two binary choices-

Q100 Chair: Two binary choices?

Tim Smith: Sorry, the binary choice of safeguarding measures or banning gave us no time whatsoever to garner support from other member states. I have no doubt that that member state support is there.

Q101 Chair: But you are not backward in coming forward, Mr Smith. Why did you not just get together with your colleagues to say, "Up with this we will not put"?

Tim Smith: That is the next step, if you follow me. But it cannot stop the moratorium.

Q102 Chair: But it is too late. Forty jobs have been lost. There is one company, if not two, potentially at risk here.

Lord Rooker: There would have been an awful lot more jobs lost if they had brought punitive measures in. That is for sure, Chair. We are the only country, as far as I am aware, that has put scientific evidence-the Leatherhead evidence from a world class laboratory-into the European Commission. Nobody else has done that. That is to back up our science. The question is why have they never responded to it? Why did they not refer it to EFSA when we sent that in? We were asking that at the time. It was part of the discussions we were having prior to the visit.

Q103 Chair: Anne Milton, in writing her letter to colleagues, surely should have been there at the ministerial meeting and said, "We are going to wait six months until we have got the scientific evidence."

Tim Smith: Yes, in hindsight, if we had had the opportunity to garner support in advance of the Commission coming here or the Commission forming their opinion once they had seen the FVO results, then we might have been in a stronger position to resist because we would not have been alone. I do not think for a minute that we are alone.

Q104 Chair: You have just slightly contradicted yourself. We appear to be alone because we are so fast forward that we are the only one who has had the inspections.

Lord Rooker: Yes, but Mr Smith has already said that we had no indication whatsoever that they would take the view they took and the action they took in March. We knew about the visit and we knew about the argument of definition. I think that was in answer to Mr Parish. We had no indication whatsoever that they would take immediate action with a punitive threat.

Q105 Chair: Just for the record, the first indication came on 18 April when they escalated the level of advice. So they withdrew the draft guidance. Is that correct?

Tim Smith: Yes

Q106 Chair: But it would have still been an option for Anne Milton and Ministers from other member states who resisted it at a Council of Ministers meeting.

Tim Smith: It could have been. I do not know.

Q107 Chair: But was that option considered?

Tim Smith: In the course of how the UK Government were going to respond either to safeguarding measures or the ban, in the heat and smoke of that first discussion some thought would have been given to advice from our colleagues in Brussels on how to respond to it.

Q108 Chair: Is it still an option?

Tim Smith: It ought to be, yes.

Q109 Chair: So we could urge the Minister to respond in that way.

Tim Smith: Yes.

Q110 Neil Parish: Further to that talk about Brussels, did the Food Standards Agency request DEFRA to raise this at an agricultural European Council?

Tim Smith: We have had conversations with the Minister responsible, and I know he will do that, yes.

Q111 Neil Parish: What, now? Not previously.

Tim Smith: No, in the course of our discussions with Ministers since the FVO came-over the Easter period-it was certainly in Jim Paice’s view what he needed to do.

Q112 Neil Parish: But you did not raise that earlier at Council?

Tim Smith: No.

Q113 Chair: Just to be clear, who is ultimately responsible for this whole thing? If it were DG SANCO, presumably it is the Health Ministers.

Tim Smith: Yes. We are the competent authority responsible for the enforcement hygiene regulations and their application within the UK. Health Ministers are our postbox Department effectively, so we do not answer to them, but through them. Our Agriculture Ministers obviously clearly need to be thinking about the way that the industry is being reflected and sponsored within their own particular jurisdictions.

Q114 Thomas Docherty: The first one, perhaps Lord Rooker can help me with, because it is a Government issue. Can you explain the relationship on public health between the UK Government, the devolved institutions and yourself on the dialogue? Is it purely a Department of Health FSA or does it also require an input into the devolved institutions?

Lord Rooker: Sorry about my voice being a bit bad this morning.

We are a UK Government Department. We are not anybody’s agency or a quango, although our title is agency. We are a freestanding Government Department. We are a non-ministerial Department, of which there are about 20. We answer to the four Parliaments in the UK: Northern Ireland, Wales and Scotland and obviously here at Westminster. We answer to those Parliaments-to the Select Committees, as we are now, through health Ministers. That is our postbox. It could be any group of Ministers, but preferably not the food-sponsor Ministers, which is why we do not answer through DEFRA. From that point of view, we are unique.

We are a UK Government Department working in a devolved subject area, at any point in time. The three other devolves can pull the trigger and set up their own workshop, but it is a UK operation. That is was how it was set up in parallel with devolution. That is the way it has worked quite successfully. We have good, close ties. I maintain and build as Ministers come and go, working with six different political parties, with Northern Ireland, Wales and Scotland. There have been various coalitions before here at Westminster of both Agriculture Ministers and Health Ministers, but I do that basically as contact at board level as the face of the FSA to a non-executive board of independent people. The operational issues are carried out by our directors in Scotland, Wales and Northern Ireland who service the Ministers’ Departments there, the private office, and answering PQs and preparing for debates. That is the nature of our relationship. It is a bit unusual in a Whitehall context, I agree.

Q115 Thomas Docherty: That is very helpful. We have heard references to Anne Milton two or three times. At any point have you since Easter, for example, tried to get the former Health Ministers around the table and said-to use your own words, Lord Rooker-"We think that this is disproportionate. It is not science led, and it will impact on British industry"? Have the four Health Ministers come to you?

Lord Rooker: No. I have to say, in another, entirely different context, getting the four Health Ministers around the table has proved to be-I will not say impossible-difficult. I know that the Scottish Health Minister does want to talk to his three other colleagues about the issues relating to governance and the application of the Scudamore Report, and the possible dislocation of the FSA in respect of Scotland. That has not proved possible. Tomorrow is the deadline given for their comments. To get them round the table did not even prove practical on that, let alone this, particular issue.

I have to say, by the way, I suspect-I don’t know, because obviously I am not party to the discussions-at the end of the day, while it is the four Health Ministers, the UK’s view in Brussels goes through a different channel. There will be a Cabinet sub-committee, Foreign Office UKRep. There will be a collective corporate decision at Government level. Obviously, at the day to day level, it will be the Health Ministers. But then you have to have DEFRA and the agriculture Department involved, so there will be a corporate decision at the centre of Government here at Westminster, where the Foreign Office would clearly be involved.

Q116 Thomas Docherty: But you would expect-I am sure Ms Ritchie would agree-that the devolved institutions would have a view.

Lord Rooker: Yes.

Q117 Thomas Docherty: But you are saying that there has not been a discussion because of Nicola Sturgeon.

Lord Rooker: No. You asked about around the table. I answered the question as it was put to me in that sense. There has been correspondence. Government works by correspondence, by and large. That is the way the system works. It was a bit of a surprise to me, I can tell you, but that is the way it works. There has been correspondence, and people have been kept informed with submissions and briefings. Everybody has had all the paperwork. This is not a Westminster operation. We are not London-based in that sense. Everybody has had everything that we have got here in our folders, for example. Everybody is aware. The fact of the matter is, only the plant in Northern Ireland plus the plants in England are actually affected. There are not any in Wales or Scotland actually affected by this decision.

Q118 Thomas Docherty: Has the Northern Ireland Government made representations to you or to-?

Lord Rooker: It just so happens-I might have caught this throat I’ve got on planes, as you do-last week I saw the Northern Ireland Health Minister. The previous week, I had seen the Scottish Health Minister as part of my routine arrangements. I updated him-we had a very brief meeting-on about half a dozen subjects. This was one of them. I explained what we had done. Obviously, we have spent a long time on it this morning. In short, we were pushing this. It was disproportionate. We would do what we could to fight it. We would stick to what we were doing: use the science and the evidence and proportionality. It is the proof that we are not gold-plating. They are seeking to gold-plate this. The EU is seeking to gold-plate this now. I just updated him as to where we were on that. That was last Wednesday.

Q119 Chair: Can I just ask would it not be normal with the nature of this decision for it to be taken by the Health or Agricultural Council rather than purely by committee?

Lord Rooker: When you say committee, what committee?

Q120 Chair: Or even by the EFSA? Do they have that much power? Who actually took this decision?

Tim Smith: Which decision?

Q121 Chair: The decision to ban.

Tim Smith: The Commission took the decision to give us those two options.

Q122 Chair: It’s not normally subject to a ministerial decision?

Tim Smith: No. The Commission can do that. In answer to a previous question, I did say that we asked the Commission how rare this was and they said that between two and four times a year they take this threat of safeguarding action.

Q123 Ms Ritchie: As a follow-on to Mr Docherty’s question, specifically about the Northern Ireland Administration and the fact that Lord Rooker met the Health Minister last week, what was his particular view, considering that in another life he is also a farmer?

Lord Rooker: I see him as a Minister, not as a farmer. Let’s get this clear. These are matters of probity and governance that are not part of my remit. I deal with all the Ministers on the same basis. There is no problem. There will be a private secretary present. There will be a note of the meeting. I have no problem with that being discussed. Let us be clear: there was no long discussion. I updated him on about six issues in about 25 minutes. These are current issues related to what’s going on. This was one of them.

Q124 Thomas Docherty: Just to clarify, the Health Minister spent two or three minutes discussing this issue?

Lord Rooker: As I say, I updated the Minister. I had 25 minutes. There were several issues that I needed to update him on.

Tim Smith: And the Minister would have had submissions in the same way as all the Ministers had during the course of the events that led up to the moratorium. They would have had a chance to push back at the agency or any of their colleagues. Those written materials are available.

Lord Rooker: By the way, he was very well briefed and knew exactly what I was talking about. My director was there as well, from Northern Ireland-or Tim’s director at that point. He was very well briefed and knew exactly what I was talking about. I was not telling him about this for the first time, believe you me. He explained to me some techniques of taking the sinews out of chicken legs, for example, in a way that I didn’t understand.

Chair: Can we turn to product producers?

Q125 Mr McKenzie: Do you believe that you have adequately represented the interests of British producers in dealing with this issue?

Tim Smith: I think the FSA has, because we are so clear about the rights and wrongs, the science and the evidence, and the proportionality of it. The frustrations we felt are those that you have expressed this morning, which is the way in which the Commission has chosen to handle this particular affair as an incident, rather than as a whole series of iterative processes that leads us to the right, evidence-based conclusion. Because they are outside of our normal way of working, or anybody else’s way of working, it has been very difficult to push back, other than to resist the outright, total ban within five days and change it to a moratorium, and then to start seeking support and evidence again to push back on a more medium-term basis, but that, I recognise, does not help those people who are impacted by this in the immediate future.

Q126 Mr McKenzie: The evidence that you produced supports the position in respect of your argument. Was that immediately put to one side by the Commission, or did they consider it and then decide that it was inadequate? Why was that evidence not accepted, if you are saying, as you are, that you have put in-depth evidence in place and were the only country to do so?

Tim Smith: We have not had a formal response to the evidence that we submitted or to the tests produced by a very competent authority, Leatherhead Food Research, which did the work for us. The Commission never gave us a formal response as to whether they consider that to be an acceptable form that detects, at microscopic level, whether damage is caused to the muscle fibres. I cannot give you an answer as to why they have failed to respond to that, but it is the same kind of activity that led them to move this from being a working-level discussion, bringing that to a halt, and then to raise it to the Standing Committee on the Food Chain and Animal Health, which is again incomprehensible to those of us who normally work with the Commission on a week-by-week basis.

Q127 Mr McKenzie: Do you feel that that was adequate evidence to support the interests of these?

Tim Smith: There are two risks that the Commission is identifying. The first is to do with the transmissible spongiform encephalopathy regulation, which is the bit on ruminant bones. Our principles there are pretty much the same as we have just described in terms of muscle fibre, but include the fact that all specified risk material is removed from the process and properly disposed of before it can ever be treated. Again, we are certain that that is a sensible way to approach it. We asked the chief medical officer to join us in this, and she has asked the Advisory Committee on Dangerous Pathogens to have a look at that bit of evidence from a UK perspective. However, I can see no immediate risk that that will change our approach.

On the hygiene side, which is the damage caused to muscle fibres, nobody else has produced either a peer-reviewed study or any other form of study that demonstrates that there should be any concerns about this process. Since we have been firing into the Commission, and they have been welcoming that evidence, we have never had any sort of push back from them that suggested that it was not adequate. EFSA will determine that as they go through their process.

Q128 Chair: Following it through to its logical conclusion, if the European Food Safety Authority reaches a conclusion after six months that no possible damage can be caused to health, will the moratorium be lifted, in your view?

Tim Smith: What the evidence will be used for is to inform the new

hygiene regulations, which are effectively under reform. It would be my anticipation that, if the evidence supported the continued use of these bits of equipment in all the various food factories across Europe, then yes, it would be reinstated.

Q129 Chair: The trade could be reinstated.

Tim Smith: Yes.

Q130 Chair: Just to pursue Mr McKenzie’s point, are you chasing the Commission to respond to your request?

Tim Smith: Yes.

Q131 Chair: And have you put your evidence before the European Food Safety Authority?

Tim Smith: No. When the Commission puts the call to EFSA to do that, we expect that it will only begin with our evidence, because there seems to be no other evidence to suggest a different course of action. We will be immediately in front of the relevant committee at EFSA.

Lord Rooker: Can I just add something relevant to that? I only have what I am about to read out: "We understand from industry that German research bodies are planning to collaborate in the testing regime for desinewed meat." The French, apparently, have also developed a method of scientific analysis for desinewed meat, which is, of course, what Leatherhead did for us. That was our piece of class research, which we sent in. By the way, it was sent to the Commission last July. We are not talking about five minutes ago; this was done last July.

Q132 Amber Rudd: Do you remain satisfied, Mr Smith, that desinewed meat has no public health risk?

Tim Smith: I do, yes. The way that the industry has approached this innovative way of effectively harvesting meat from meaty bones is entirely sensible. It is only the same as having lots of people with lots of knives at the end of the line. It is no different from that process.

Q133 Chair: What would help the Committee enormously is if you could share with us the two legal bases that you say that you were issued with, so that we could look at that for ourselves.

Tim Smith: No problem.

Q134 Neil Parish: The FSA did research that showed consumers viewed DSM as being distinct from MSM and that it should count towards the meat content in the final product. The question is: do you believe that the Commission’s conclusion in 2010, that labelling provision for high-pressured and low-pressured MSM should not be differentiated, reflects the views of consumers?

Tim Smith: No. This is a sensible bit of consumer research, largely undertaken by Which?, I think. Which? was concerned that, since the designation of desinewed meat was particularly a UK issue, consumers should understand what was being done on their behalf for their meat products. It also addressed whether they would prefer to have clearer labelling. I think if you ask consumers about whether they want clearer labelling on any food matter, they will always ask for more, rather than less. It was no great surprise to us.

I do not think that the Commission has taken too much notice of what consumers’ perceptions are or are not when it comes to mechanically separated versus desinewed versus meat. That does not seem to have been an important part of their consideration. Since we were concerned particularly about food safety and the confidence in the food chain that consumers have, we were keen to see what the Which? research told us. While it was not a great surprise, it was also a useful bit of evidence for us.

Q135 Neil Parish: You have actually presented that to the Commission then, have you?

Tim Smith: Yes.

Q136 Neil Parish: Did they take any notice?

Tim Smith: Not that I can tell you, no.

Q137 Neil Parish: Can I just, with your indulgence, Madam Chairman, go back to one last question in my previous question? You said that it was above your pay grade as to whether you should advise the Government to go for legal action against the Commission. How do we press for legal action to be taken? Do you not believe that to be almost part of the job, if the Commission acts illegally?

Tim Smith: I may have slightly misled you. It is not beyond my pay grade to make a recommendation that we should do it, but in the process that followed the Easter discussions with Ministers, and, as Lord Rooker said, with the relevant Cabinet Sub-Committee, it has become clear that, if we decided, as a Government, to do that, the agency would produce the evidence and the supporting materials and someone else would make that decision.

Q138 Neil Parish: You have led me quite rightly to ask: have you actually advised the Government that they should take legal action?

Tim Smith: We haven’t yet.

Q139 Neil Parish: But are you considering that?

Tim Smith: Yes.

Q140 Thomas Docherty: Can you just clarify, Lord Rooker? When you say the Government, we mean the UK Government acting unilaterally.

Lord Rooker: Yes, because it is the UK that is a member of the EU and we are the UK competent authority in that sense. Again, that would be a collective decision around Whitehall.

Q141 Thomas Docherty: And you expect Governments to be talking to one another.

Lord Rooker: Yes, I would expect them to be talking to one another.

Tim Smith: And there is one other step that I should introduce into that, which is a very short step, and that is that the officials or civil servants would effectively recommend that course of action to the board, and Jeff, on behalf of the board, would recommend that course to Ministers.

Q142 Chair: I am slightly confused as to why you have not done that at this stage, knowing all the facts as you have presented them to us today that this moratorium is being unilaterally imposed against us. You mentioned the Which? evidence, on the back of which I understand that Newby Foods made a significant additional investment in its production.

Tim Smith: Our primary concern-we are still attempting this-was to push out as far as possible the impact of the second moratorium. The first one came and went very quickly. You are entirely right that included in the things that we are now engaging with is our determining with lawyers what our recommendation should be to Ministers in respect of pushing back right to the heart of the Commission.

Q143 Ms Ritchie: Have you received any representations in support of the Commission’s decision to impose a moratorium? I can nearly guess what the answer is, but we would like to hear it from you.

Lord Rooker: No.

Q144 Ms Ritchie: Do you expect to?

Lord Rooker: No.

Q145 Chair: Did you consider any alternative actions, such as requesting a derogation for the UK either until other countries caught up or to allow yourselves proper consultation of all the member states? You were saying up to 20.

Tim Smith: Again, we relied on the very sensible advice given to us by the UKRep people in Brussels, and their perception was that, since this had gone from zero to 100 overnight in the way that it had been handled-from it not being an issue to safeguarding measures-the most sensible course of action was the one that we adopted. That does not mean to say that we do not live to fight another day, and, as you suggest, the options open to us may well include those that you have mentioned.

Q146 Chair: Have you received the FVO report of their visit?

Tim Smith: We received last night a draft report, which we have now been asked to comment on.

Q147 Chair: But does that not seem entirely out of order?

Tim Smith: Yes.

Q148 Chair: Are you objecting?

Tim Smith: It is not entirely unusual that the FVO missions take this long to produce their draft report.

Q149 Chair: But they have pre-empted a decision before you or the company have had the chance-

Tim Smith: It would seem that how this worked for them is that they had a gathering immediately after the FVO had met the nine businesses that they visited and they pushed this immediately through to the appropriate group of senior officials in the Commission who then drafted the letter to the agency, which we responded to. They felt that they had enough evidence from what the FVO mission had revealed to press ahead.

Q150 Chair: Was that your opinion-

Tim Smith: My suspicion is that when we get a chance to read the draft report produced by the Commission, it will not differ materially from the facts that were presented in the Commission’s letter.

Q151 Chair: When you were presented with the binary decision and the safeguard action, did you take legal advice to question whether the Commission had the legal power to carry out its threat?

Tim Smith: Yes.

Q152 Chair: From whom?

Tim Smith: My own lawyers, who then consulted Treasury solicitors and others.

Q153 Chair: What was the purport of the advice?

Tim Smith: That the Commission had very carefully crafted their binary decision for the UK Government.

Q154 Chair: It is open for you or the Government to make a legal challenge against this.

Tim Smith: That was one of the first options that we considered.

Q155 Chair: Is it still under consideration?

Tim Smith: Yes.

Q156 Chair: Is it actively being considered?

Tim Smith: It is, but I do not want to talk too much about the legal advice.

Q157 Chair: That is fair enough. You have been very helpful.

Just from the gist of the questioning and the evidence this morning, do you think that any lessons could be learned from your handling of this issue?

Tim Smith: We have gone over the timeline since before Lord Rooker and I were at the agency-that is four and a half years for me-and I can find nothing in the track of evidence or the track of materials presented to officials that suggested that this course of action was likely. If you presented me with the same materials now on a similar issue, I would come to the same conclusion.

Lord Rooker: I will just add to that, because since I have been at the agency I know I have asked more questions of officials and of the board about in-vitro meat production in laboratories for the future than I ever did with this. I did not ask anything about this because it was not on the radar, and because it was part of the normal ebb and flow. It has never been to the board. There was no reason for it to go to the board. Obviously, there will be a report to the board next week. I have asked more questions about things that are happening with meat in laboratories than I ever have about this. This was not on the radar, and there was no reason to expect it to be. It is the nuclear option that they have used in a disproportionate way.

Chair: We will not question you any more on the legal advice.

Q158 Thomas Docherty: I think I heard you say earlier that when you re-read some of the European documents about this from the Commission, they had a different slant on it, if I have not put words into your mouth. Is that correct?

Tim Smith: If I read the Commission communication with the benefit of hindsight you could see where this might end up. But I could not have seen it, and I am sure that my colleagues in other member states reading it did not see it in the same way. I do not think anybody has changed any of their activities in any member state, including the United Kingdom, as a consequence of what was written. That forms the basis of what the missions have been tasked to do, and now it is apparent what it is that they were seeking to achieve.

Q159 Thomas Docherty: While I understand what you mean- given the information that you had at the time, you feel you made the right decisions- would you not accept, and this is not meant to be a criticism, that agencies need to invest time in better interpreting, if you pardon the use of the word, what the European documents are leading towards rather than taking them at what appears to be face value?

Tim Smith: I accept that that is not a criticism. I think the work of our organisation is pretty much risk-based. Everything we do has got that-you can imagine the sort of risk registers that we create. Most of those are to do with risks that we anticipate happening and those that we could anticipate happening in the worst possible scenario. Since I have been at the agency, and probably before, we have run a very straightforward programme of horizon scanning and risk analysis that tells us where we might fall foul of any particular UK or, more likely, EU regulation. This has never come up as one of those in the top 10.

Lord Rooker: If I could just add, since Tim’s time at the agency-it is nothing to do with me-we have had a permanent presence in Brussels, which we did not have before. We have actually got an official seconded in to operate and to watch for things coming down the conveyor belt, because it is too late when the regs are published. I do not want to say we have done everything, because you can always do more. You can always improve and be better, and I fully accept that. In Tim’s time we have placed someone in Brussels because we could see, potentially-not enough for this-that for the issues that arise we needed early warning.

Q160 Chair: One last question. Would you consider a moratorium to be a temporary cessation of activity?

Tim Smith: That is what my intention was, introducing that word. The Commission wanted to use the word "ban", but I wanted to give the industry a genuine sense of optimism that we were not going to give up on this subject because there was no reason to.

Q161 Chair: So if the European Food Safety Authority were to rule that it is not harmful, would you have to go through the process of asking for a moratorium to be lifted, or would it be automatically lifted?

Tim Smith: This is going to sound like an odd answer. I think because the food hygiene regulations would have been developed in parallel, it will almost certainly just be contained in the new food hygiene regs.

Chair: You have been very generous, Mr Smith and Lord Rooker. Thank you both very much indeed for participating. I am going to ask that we continue in private session for five or 10 minutes, so I ask everyone to vacate the room. Thank you all very much indeed.

Prepared 17th May 2012