To be published as HC 120 -ii

House of COMMONS



Environment, Food and Rural Affairs Committee

Desinewed Meat

Tuesday 12 June 2012

James Paice MP and Mark Filley

Evidence heard in Public Questions 162-233



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Oral Evidence

Taken before the Environment, Food and Rural Affairs Committee

on Tuesday 12 June 2012

Members present:

Miss Anne McIntosh (Chair)

Richard Drax

Mrs Mary Glindon

Neil Parish

Ms Margaret Ritchie

Amber Rudd


Examination of Witnesses

Witnesses: Mr James Paice MP, Minister of State for Agriculture and Food, and Mark Filley, Lead Official on Food and Meat, Department for Environment, Food and Rural Affairs, gave evidence.

Q162 Chair: Minister, good morning. Thank you very much indeed for participating in our inquiry into the moratorium on desinewed meat. Just for the record, would you like to introduce yourself and your colleague?

Mr Paice: I am Jim Paice, the Minister of State for Agriculture and Food, and on my left is Mark Filley, who is the lead official on food and meat and such issues.

Chair: Thank you. Just at the outset, I should state that Newby Foods is in my constituency.

Ms Ritchie: I would also like to say, Minister, that Moy Park is in Northern Ireland, albeit not in my constituency, but nonetheless other firms feed into it.

Q163 Chair: It would just be helpful to explain the relationship between Defra and the Department of Health, and which is the lead agency for monitoring the Food Standards Agency.

Mr Paice: The Foods Standards Agency is responsible for monitoring all food safety issues. Their line of accountability is to the Department of Health, but obviously as the Department responsible for food, Defra has a close working relationship with the FSA.

Q164 Chair: Minister, when did you or the Department first learn about the measures that the Commission were proposing?

Mr Paice: Defra was first informed of the issue on 30 March. I was on leave and heard about it two or three days later.

Q165 Chair: You were not aware that this had possibly been in the offing for two years previously?

Mr Paice: No.

Q166 Chair: What did the Department do on learning of the proposals?

Mr Paice: As I said, the lead Department in Government is the Department of Health. Obviously the FSA contacted everybody simultaneously: my Department, the Department of Health and all the devolved Departments. There was a meeting held very quickly, my colleague Lord Taylor of Holbeach represented Defra as he was the duty Minister at the time, and they all agreed the actions which then took place.

Q167 Chair: Do you accept that Defra’s business plan sets out that one of the key priorities for the Department is to support and develop British farming and encourage sustainable food production, therefore presumably also food producers?

Mr Paice: Yes, of course.

Q168 Chair: Were you not alarmed that this was a ban unilaterally affecting producers in this country?

Mr Paice: We were very much alarmed by it, of course we were; so were the FSA, the Department of Health and everybody else. But as is clear-and as I know the FSA have said to you already-the Commission were being very heavy handed and threatening us with an immediate series of trade bans that could have prevented us marketing British meat or some meat products within the EU. This was at a time when we were working very hard to promote food exports. As you know, since then I have travelled to China and opened up that market for pig meat. All that would have been at risk. Although we did not agree with the Commission’s unilateral decision to act on us and not on the other countries we believe are carrying out similar practices, the fact was we were between the devil and the deep blue sea. I believe it was right, faced with the threats we were facing, to take the decisions that were taken.

Q169 Chair: What discussion did the Department have with meat producers like Newby Foods prior to the moratorium coming into effect on ruminants at the end of April?

Mr Paice: Prior to the moratorium coming into effect, a lot of discussions. However, at the time of taking the decision as to whether to comply with the Commission’s demands, there were no discussions with the industry, although the British meat processors and others were informed of the situation. It was unrealistic if we had to act very quickly. You refer to the moratorium of 26 April, but of course that was not the initial proposal. The initial proposal was within five days. The Food Standards Agency Chief Executive went straight to Brussels, I believe on 30 March, to remonstrate and try to persuade them to make changes. I am sure you have seen all the correspondence and notes of these meetings. As a result of that and subsequent discussions, the date for ruminant meat was put off until, as you say, 26 April, which was a small improvement on the original position. For nonruminants it was put off until 28 May, which obviously helped in that sector as well. Changes to the original position were achieved by discussion with the Commission, but they were achieved after the original requirement from the Commission was issued on 29 March.

Q170 Chair: Minister, the FVO visited Newby Foods in early March.

Mr Paice: Correct.

Q171 Chair: Was the Department not informed?

Mr Paice: No, nor would we expect to be. That is entirely a matter for the FVO.

Q172 Chair: But you are responsible for the food producers and the production of food.

Mr Paice: Ministers cannot be informed every time an inspection is carried out at any particular plant. It is the Food Standards Agency that is responsible, and this was purely an issue of food safety and meeting food safety regulations. The FVO were inspecting on behalf of the European Commission. They in fact visited six plants under the Food Standards Agency and two plants that were operated under local authority inspection. And yes, they carried out those inspections at the beginning of March, and at the end of that series of inspections, on 14 March the FVO inspectors discussed with officials from the Food Standards Agency their initial findings. I think it is fair to say that at that point they were quite clear that they were very concerned that desinewed meat, which they did not recognise as a category, existed in this country, in a nutshell.

Q173 Chair: But I think you and the Department of Health, whom we are seeing next week, accept that there are no food safety issues and there are no animal safety issues.

Mr Paice: That is correct.

Q174 Chair: I am struggling to understand why Defra did not intervene, either at the Council of Ministers level or at the Commission level. Is it a fault of the structure of how the Food Standards Agency operates in this country, or is it a fault of the representation we have with the Commission and Council of Ministers that Newby Foods and Moy Foods, for example, were so badly let down?

Mr Paice: With respect Madam Chairman, it is not a fault of anybody, or of any issue. The fact is that is the way the responsibilities in this Government operate. The Food Standards Agency is a largely autonomous body responsible for food safety standards, and the fact that we do not believe there is a food safety issue is separate to the fact that, from the Commission’s perspective, this is about compliance with how they interpret the food safety regulations. Firstly, the ban on mechanically separated meat from ruminants: they believe that there is no such category as DSM, and that all meat recovered mechanically should be classified as MSM and therefore should be banned from ruminants. As far as meat from nonruminants is concerned, they again believe it should be classified as MSM and therefore treated as MSM, which has other consequences that you may want to come on to. But this is not the fault of anybody. The system operates that the Food Standards Agency negotiates on behalf of the UK on food safety issues, and from the Commission’s perspective this is a food safety issue.

Since then, there have been numerous meetings of the Food Standards Agency and industry officials with the relevant part of the Commission, which obtained the changes I referred to and a number of other changes which we can refer to later, and certainly that is the way that these things are operating. Perhaps the most important is that they have emphasised-and the industry has now provided the Commission with a significant level of evidence, I understand, to show this-that there are a number of other countries in Europe that are also producing what we call DSM separate to MSM. We have been urging that the same restrictions should apply to all member states; this has been the fundamental concern that we have had. But until the FVO visits those member states, the Commission are not yet, it appears, persuaded that other countries carry out the same practices.

Q175 Chair: You are confirming what the Committee is putting forward, that it was inappropriate for this decision to be taken unilaterally. Also I think you yourself said earlier, Minister, that the Commission was acting on the basis of initial findings by the FVO and that their conclusions are not going to be drafted and published until September or October this year. So the whole decision taken by the Commission in this regard was presumptuous and preemptive.

Mr Paice: We agree entirely with that. Let me be absolutely clear: the Government’s position is we do not agree with the position that the Commission adopted, but we were faced with whether we simply say we do not agree with you, and therefore face what we believed to be the very immediate risk of trade bans on the sale of British meat. As I have explained to you, we felt that we had no option but to comply and-after agreeing in principle to comply-to seek alleviation of some of those restrictions, which indeed has been achieved. I am not saying that resolves all the problems, of course it doesn’t, but it is not quite as bad now as was originally expected.

Q176 Chair: Forty-five jobs at Newby Foods have already gone.

Mr Paice: I appreciate that.

Q177 Chair: The whole operation could be jeopardised. These are real jobs that people have now.

Mr Paice: Madam Chairman, I am perfectly well aware of the consequences in your constituency, and obviously it is extremely regrettable, but I have to put to you that the only alternative was for us to refuse to comply with the Commission’s proposals and face the very immediate risk that they could have imposed massive trade bans on British meat. I am not sure that would have been in the interests of your constituents, mine or the country as a whole.

Q178 Chair: Could you explain to the Committee precisely what the safeguarding measures the Commission threatened to introduce were?

Mr Paice: They did not go into great detail about what they were. We were led to believe it was, as I have just described, a trade ban on the sale of British meat and meat products.

Q179 Chair: But they could not do that, Minister, because no single market regulation has been breached here at all, the nature of the problem, as the Committee understands, is health and safety. We have established with you and with the FSA there were no health and safety grounds. I am struggling to see what single market aspect has been breached.

Mr Paice: This is not a single market aspect, Madam Chairman. Despite what the FSA and I, and I believe your Committee, believe-that there were no food safety risks-the Commission’s view is that it was a food safety issue and that they would be acting under what they believed, and still do believe, was a breach of food safety legislation. That is the basis on which they would have acted.

Q180 Chair: Who was putting the argument to the Commission, to the Council of Ministers, that this was not a health and food safety issue?

Mr Paice: The Food Standards Agency has that responsibility to persuade the Commission. They did not achieve it, but it is their responsibility to persuade them that there was no food safety risk. You need to look at the fundamentals here, which are-despite the fact that both the Food Standards Agency and the rest of the Government believe there is no food safety risk-the Commission itself believed otherwise. It is an interpretation of the legislation. There is no definition of desinewed meat in EU legislation; the legislation refers to the muscle structures and to damage to the muscle structures. The FSA had acted previously in a proportionate way and decided that what we call desinewed meat in this country-other countries call it 3mm BAADER meat-does not undergo serious damage to the muscle structures; therefore it is not the same as mechanically separated meat. The Commission take the view that there is damage to the muscle structures, therefore it is mechanically separated meat and therefore falls with the MSM controls, which are food safety controls. The Commission has the powers to act within that.

Q181 Chair: Do you believe that the outcome would have been different had Defra been responsible for these negotiations?

Mr Paice: No.

Q182 Chair: We learned last week that the moratorium could possibly be lifted in the autumn. We are dancing on the head of a pin here, I entirely agree with you, on whether it is DSM or MSM. I think the evidence I have seen-and we have seen photographs in the Committee-is that desinewed meat is meat and should be allowed to be processed as meat, and there is no health and safety issue.

Mr Paice: I agree with that.

Q183 Chair: So will you argue the case to the Commission and the Council of Ministers, jointly with the FSA, that this moratorium should be lifted and production should continue once the FVO has given its provisional report?

Mr Paice: The answer to your question is yes, the whole Government agrees with the statement that was part of your question: that this is meat, that it is indistinguishable from what you and I would call minced meat and that therefore it should be allowed to continue in the way it is. There are various actions taking place. Firstly, the FVO are due to visit a number of other countries this year that we believe carry out the same practice, although no visits have yet taken place. That is clearly going to shift the focus quite considerably. Secondly, we are continuing to press the Commission very hard that their interpretation is wrong, that there is no food safety issue, remembering of course that the bones-which obviously are integral to this-have all been passed for human consumption; they are not SRM materials that need to be disposed of. So yes, we are all determined to try to get this sorted.

You keep referring to the question about the Government and the Council of Ministers. I need to emphasise of course that raising issues in the Council of Ministers can be highly counterproductive if you do not get support from a large number of the other Ministers. There is absolutely no reason to believe, unfortunately, that doing so would gain the support. Most of the others who may well know what is going on in their own country would probably rather keep their heads down until or unless there is an FVO mission that uncovers it. What we are going to be seeing now is import of this material-mainly classified as 3mm BAADER; I do not know the origin of that term, but that is the one they use-to replace what we now cannot use as meat. Therefore, those countries clearly will understand that that is in their interest. So I do not think we would have received any support. All the advice we have received from our officials in Brussels is that this is best kept away from Council of Ministers meetings, because of the potential lack of support.

Q184 Chair: If you just go back, the FSA were aware of the request from the FVO to have these inward visits to Newby Foods and presumably other companies as well. Would it not have been better advised for them to refuse an FVO visit until such time as they knew that FVO visits were being rolled out across the rest of the European Union? Why did we just roll over, let these people come in and ban what is a perfectly legal way of producing minced meat in this country?

Mr Paice: I do not think you can refuse FVO internal visits.

Q185 Chair: Why? We just opened our doors and let them in; we could just have said, "No thank you, come back in September".

Mr Paice: As you well know from your own background, Madam Chairman, we are members of the European Union, and you cannot just flatly say, "No, you cannot come in." That is totally unrealistic. The Food Standards Agency, in my view quite rightly, agreed to the visits. It was clearly understood that, although we were first, it was the first of a number of missions to other member states. They are still due to take place during this year. As I say, we believe that once that happens the picture will change quite significantly, in terms of both the Commission’s understanding about how this practice is carried out elsewhere but also making other countries realise there is a threat to their industry.

Q186 Chair: We could establish the basis on which the FVO were coming in, and if we thought it was just a routine visit rather than a socalled audit on FSA standards then I think it would have been incumbent on the companies to have refused a visit.

Mr Paice: My strong advice is we could not have refused it. I am sure you have the chronology of all the events going back a lot further-you can trace the issue back to July 2000-but certainly on 14 June 2011 the Commission sent questionnaires to all member states on proposals to amend the hygiene package, including questions on meat preparations and mechanically separated meat. Even before that, there had been a food hygiene working group discussing the whole issue. I have a lot of events here, but if you come on to January of this year, there were discussions in the food hygiene working group on draft Commission guidance to clarify MSM, and then as you say in early March the FVO audit mission and the consequence of that. The whole thing has been a developing sequence of events for some period of time.

Q187 Chair: So you were aware of this.

Mr Paice: No, I was not aware at the time.

Q188 Chair: Even though it concerned hygiene.

Mr Paice: I am simply telling you the chronology that I now know of, and that these were matters being dealt with by the Food Standards Agency under their official responsibility.

Q189 Amber Rudd: Mr Paice, could you tell us what action, if any, Defra itself took as a Department when the moratorium was first proposed?

Mr Paice: As I intimated earlier, my colleague Lord Taylor-who was Duty Minister at the time because we were just into recess, if you recall-had, I think, a physical meeting with Anne Milton, Parliamentary UnderSecretary at Health, and with the Chief Executive of the Food Standards Agency and others representing the Cabinet Office etc, to discuss how we responded to this very, very imminent threat, which I remind you was active measures within five days.

Q190 Amber Rudd: But the FSA led on it: there was no further action that the Department took in direct negotiations or conversations with the Commission.

Mr Paice: It was a joint decision by Ministers and the FSA to agree to the Commission’s request, but from then on the negotiations about ameliorating the worse parts of it were for the Food Standards Agency to do.

Q191 Ms Ritchie: Minister, could you confirm at this stage what discussions you have held with ministerial colleagues regarding this matter in the devolved administrations, and also what steps have you taken to protect the interests of British producers of desinewed meat since the Commission published its 2010 communication?

Mr Paice: I personally have not had discussions with Ministers in devolved authorities. I probably slightly misled the Committee earlier when I said it was 30 March. It was actually 2 April when the submission went to the Minister for Public Health, copied to my colleagues and to the Ministers in the devolved administrations, to seek their agreement to implementing the Commission’s requirements. I know that at official level there were discussions between the FSA and the devolved administrations about whether to agree. My understanding is that all the devolved administrations agreed with the position we proposed to adopt, which was to accept the Commission’s request.

Q192 Ms Ritchie: Further to that, would it not have been-I am trying to use these words advisedly-prudent and in the best interests of the food industry to discuss that with the devolved authorities and the devolved Ministers? And as custodians of that, do you not think that would have been the role of the appropriate Defra Minister to do so? Surely agriculture is important as a major determinant of growth in our local economies.

Mr Paice: I stand second to nobody in my view that agriculture and the food industry is a determinant of growth. I believe that very strongly indeed. The tiers, if you like, of responsibility are pretty clearly laid down about the role of the Food Standards Agency. This was all being dealt with under the auspices of food safety. Whether we agreed there was a safety issue or not, this was how it was being dealt with by the Commission, and that is why it was right that it was dealt with by those responsible for food safety, which as you know has not been Defra’s role since 1997.

I agree with you about the impact on the agricultural and food industry, and there have been numerous meetings between myself and the industry, between my officials-Mark and others-and the industry across the UK, and discussions, I believe, with devolved administrations across the UK. Mark, do you want to add anything to this?

Mark Filley: I would just want to emphasise that it has been a collective effort to try to have discussions across the different Departments and with the Food Standards Agency to ensure we are all working together to make the right case to the Commission about the impacts of the ban, and to make the case for the steps that need to be taken to reduce its impact in the industry. So there has been a lot of joined-up working by the FSA, Defra and other Departments with interests.

Q193 Ms Ritchie: Minister, what steps did you and your ministerial colleagues take to protect the interests of British producers of DSM since the Commission published its 2010 communication?

Mr Paice: 2010 communication? As I said to you, I am not aware that any Ministers were aware of that 2010 communication, though I am aware that I was not aware. These were being dealt with at official level by the Food Standards Agency. I can assure you that, as far as I am concerned, the first time this hit my radar was at the beginning of April, probably 24 hours after it hit the Department, when, as I said, I was on leave. I was contacted during my leave on the subject.

Q194 Ms Ritchie: As a consequence of all of that, have you sought to put pressure on the Commission to ensure that there is a level playing field for British producers?

Mr Paice: I personally have not, but certainly the British Government has put immense pressure on them through the Food Standards Agency, who are the authorised negotiating body on food health and food safety issues. I do think it is worth pointing out that although I remain of the view I expressed earlier that this is a wholly disproportionate and unjustified act by the Commission, and I am not in any doubt about it, the fact is that the negotiations that have taken place since this initial request have very considerably reduced the impact of it-not enough, but considerably reduced it. Firstly, the extension to the dates I referred to earlier; secondly-although this is getting technical-the exclusion of wishbone meat from the requirements as far as poultry is concerned. They have accepted that that is, if you like, the removal of bones from meat, rather than meat from bones. It is a technical difference, but it has made a difference. On 18 April the Commission suspended discussions on its draft guidance on mechanically separated meat and indicated that it would be asking the European Food Safety Authority to look at the food safety aspects of DSM versus MSM. That is a major step forward, and leads us to maybe lifting the moratorium later on.

As I said, the industry has also met with the Commission officials and the Food Standards Agency. Our own representatives in Brussels, UKREP, met on 24 April with officials and asked for further time to achieve full compliance on nonruminant DSM. The Commission confirmed that they would be open to a letter on the subject. I can say that since then that letter has been sent, but unfortunately the Commission did not agree to the extension to 1 January next year that we sought. On 25 April my colleague Anne Milton, the Parliamentary Under-Secretary for Public Health, wrote to the European Scrutiny Committee, replying to their questions. It has gone on: there has been Scrutiny Committee debate, etc. On virtually every day through April and early May there was transmission of information. We have been working extremely hard to minimise the impact on the industry, with some significant advances but not as much as we would like.

Q195 Ms Ritchie: How do you and the Department ensure that all mechanically separated meat and desinewed meat entering and leaving the UK is accurately labelled? A purely operational matter.

Mr Paice: How do we ensure it is accurately labelled? This is one of the issues: if it enters the UK, a large amount of what we have been calling desinewed meat-a term the Commission does not recognise-is coming in labelled as 3mm BAADER meat, which I understand to be obtained by exactly the same process as we obtain DSM. That is how it is labelled, and as I understand it that is lawful under the EU labelling regime.

Q196 Chair: Why are we not just labelling it 3mm BAADER meat? Why are we banning it?

Mr Paice: It is not the labelling, with respect Madam Chairman; it is the process that the Commission is banning.

Q197 Chair: But what is the process of 3mm BAADER meat?

Mr Paice: I have not witnessed it myself, but my understanding is it is obtained using the same process as we obtain DSM.

Mark Filley: That is right. I believe it comes from the name of a machine that is used to produce mechanically separated meat called a BAADER machine.

Q198 Chair: I cannot understand it. Why are we where we are? Why are we not just saying that this is 3mm BAADER meat when it is produced by the same machine in the same way?

Mr Paice: It would not make any difference, Madam Chairman. The Commission believe that if a machine is involved in reclaiming meat from bones, then it is mechanically separated meat, and that therefore what we call desinewed meat is in fact MSM. We believe therefore-this is speculation-that once they visit a plant producing 3mm BAADER meat, they should say exactly the same: this is MSM; it is not 3mm BAADER meat. It should all be classified as MSM.

Q199 Chair: Minister, who is making these points to them?

Mr Paice: The FSA and the industry have done that. They have submitted it all in writing; the Commission have all this material.

Q200 Chair: But your allies are going to be the producers of 3mm BAADER meat, who at the moment are unfairly able to import here where our own similar production of DSM meat is being taken out of production.

Mr Paice: I am not sure of your point about "my allies".

Q201 Chair: Whoever these countries are-I do not know whether it is Holland, Germany, Italy-that are producing 3mm BAADER meat, it is surely totally unacceptable that we should be importing their meat when we have banned the production of similarly produced meat in this country.

Mr Paice: I would agree with you, but we have no power to ban that import, as you well know.

Q202 Chair: With the greatest respect, Minister, you can ban it under the old Article 36, on the grounds of public health and safety. You can argue the finer points in court.

Mr Paice: We cannot have it both ways. We cannot on the one hand say, as we are arguing with the Commission and as you rightly said earlier, this is not a food safety issue, and then on the other hand say we are not going to import it from other countries because it is a food safety issue. You cannot have it both ways. We want to argue with the Commission, very strongly, that meat recovered under the low pressure mechanical separation process is not MSM; it is a separate material, indistinguishable from minced meat. That is our fundamental point; it is a separate issue that there is no food safety risk. If we are going to adopt that position we cannot then say we are not having anybody else’s in because it is a food safety risk.

Q203 Chair: But if we argued that 3mm BAADER meat entering the UK should be labelled MSM, we could argue that.

Mr Paice: Yes, that is precisely what is happening.

Q204 Chair: But why are you not arguing it, Minister? Why are you leaving it to a nondepartmental, inscrutable department of the FSA, who clearly are not making the case?

Mr Paice: It is not inscrutable, Madam Chairman: you had them here yourself to give evidence. The FSA are responsible for negotiating with the Commission on issues relating to food safety as determined by the Commission. We tried very hard to get the Commission to delay any action for us until they had carried out the FVO missions to other countries. They have refused to do so, but we hope-and as I said, it is speculative-that when they do those other missions they will realise that this is not a process unique to the UK and that many other countries are carrying out the same process.

Q205 Neil Parish: You have answered part of this question, but I want to pursue you slightly on the other member states. If you look at it logically you certainly have France, Spain, Italy, Germany, all quite big beef producers, and I cannot believe that they are not getting desinewed meat from carcasses in those countries. Therefore you probably do have allies, but as you have said in previous answers they do not necessary want to put their heads above the parapet just at the moment. What is the case? Is it the case at the moment that it is only the UK that has been banned from using desinewed meat, or labelling it as such and using it?

Mr Paice: The short answer to your question is yes, except it would officially be banned if the Commission knew it was happening. I have a letter here from the Commissioner himself to Tim Smith, the Chief Executive of the FSA, dated 25 May. Obviously we would be happy to let you have this letter. If I may quote the last paragraph of this letter, it says, "Regarding compliance of rules related to MSM throughout the EU, I instructed my services to request the member states concerned to investigate the export of incorrectly labelled MSM or product that appears to be derived from beef to the UK and inform me about the results of their investigations." We can take it from that that the Commission is taking the allegations that our industry have been making seriously: that this is a practice widespread throughout the EU.

Q206 Neil Parish: Therefore, is not the Commission trying to have it both ways, basically? It is banning DSM in this country, and yet it is not taking action to stop this 3mm BAADER coming into this country under single market rules. I can understand you wanting to argue that this meat is safe to eat, and I agree with you entirely, but on the other hand, if the Commission is arguing the contrary, why is it not doing more about it? Why should we in the meantime have to put up with this 3mm BAADER meat coming into this country when we cannot use our own?

Mr Paice: I do not dissent from anything you have said, but we have to act within the law.

Q207 Neil Parish: Don’t also the Commission?

Mr Paice: I am not here to defend the Commission’s actions and I will not defend them. I believe the Commission have acted wrongly in this. What we have sought to do is mitigate the impact of that action not just on our own industry, although that is hugely important, but also on our consumer. One of the upshots of this is that a lot of products that contain DSM-which is classified as meat under our rules-will no longer contain DSM because that is classified as MSM now and is not considered meat. Therefore they will have to put alternative sources of meat into sausages, for example, in order to comply with our reserved regulations about meat contents. That is going to affect everybody down the chain. This is a serious issue; we are very much aware of it.

Q208 Neil Parish: The very nature of this meat is that not only will it be in sausages; it will be in beef burgers as well. Especially with the barbecue season coming on these are the things that are going to be traded. I know it is not exactly barbecue weather at the moment; I am always optimistic that eventually the sun will shine. But seriously, this is when this will be traded, and the beef burgers that are being imported into this country will have exactly the same meat-which we cannot produce-in them. You said that the Commission are now looking at the difference between mechanically separated meat and desinewed meat. It does beg the question that perhaps they ought to have looked at this before they did a unilateral ban on our DSM meat. I wondered whether we do not want to be more upfront and start challenging the Commission legally on their decision rather than rolling over and letting them beat us up.

Mr Paice: The option of challenging the legality of the issue was considered right at the outset when the Commission request-or instruction, as it really was-first arrived. The view taken was that although we could challenge them legally, that that would not in any way prevent them from imposing the trade restrictions I referred to earlier. Obviously it remains open to legally challenge the Commission at any stage. I agree: there is no doubt in my view the Commission acted extremely peremptorily, particularly as far as nonruminant is concerned, and they should have referred it to the European Food Safety Authority first to get the distinction between MSM and DSM. They should have then done the FVO inspections across not necessarily everybody, but a wider number to get a better feel for how common this practice is in Europe. I believe that they should have done all those things before they acted with us, but they did not. The best we can do now is encourage, persuade, cajole them to do all those things and-dare I say it-to level the playing field again as soon as possible, either by lifting the moratorium on us or at least imposing it on everybody else.

Q209 Neil Parish: It is not your direct responsibility, because it is through the Department of Health and through the FSA, but say for instance this Committee was to urge the Government to take legal action, would you support that?

Mr Paice: I cannot say to you right at this minute we would support it. Clearly, as with any recommendation from this Committee, the Government would give it very serious consideration, but we would obviously need to be guided by our own legal advice and the likelihood of success and what the downside would need to be, or might be.

Q210 Amber Rudd: Have you then decided against making representations to the Agriculture and Fisheries Council on the moratorium?

Mr Paice: We decided-temporarily for the moment, but obviously everything is constantly being considered-against raising it formally in Council, yes; that is not to say that I will not be raising it informally with fellow likeminded Ministers or Commissioners, but I do not think it is in our interest to formally raise it at Council.

Q211 Neil Parish: I think you have answered quite a bit of this next question, but what direct action have you taken at European level to protect the interests of British food producers and processors who have been affected by the moratorium?

Mr Paice: As I have said, we have tried very hard to get the Commission to mitigate the impacts, firstly by the delay to implementation dates, secondly by classifying certain meats that we previously called DSM-such as wishbone meat, as I referred to, and others-as meat, not MSM. We persuaded them to allow certain products that were in the food supply chain to continue their way through the supply chain rather than having to be dumped. What else have we achieved, Mark? There are a number of other things.

Mark Filley: In relation to enforcement, Minister, there is recognition in the Commission that it will take time to fully comply with their labelling.

Mr Paice: Though the letter that they sent us in response to the request to delay to 1 January next year refused it, the phraseology is that we must do it as soon as possible, which is useful.

Q212 Neil Parish: We have discussed building alliances as well as is possible at the moment. As they are not ruminants, I take it pig meat is not affected by this process?

Mr Paice: Oh yes it is.

Q213 Neil Parish: It is.

Mr Paice: There are two categories: for ruminant meat-beef, sheep and goat meat, I presume-DSM had to be banned and classified as MSM on 26 April; for nonruminant meat-pigs and poultry-it is 28 May. MSM from beef is banned altogether, whereas for pig and poultry, as of 28 May, DSM is now classified as MSM, with the exceptions I have referred to.

Q214 Neil Parish: So it has to be classified as MSM but it can still be used in sausages and beef burgers-well, not beef burgers, pork burgers-can it, or what?

Mr Paice: Yes, it can be included in such products, but it cannot be classified as meat. It is not part of the meat content.

Q215 Neil Parish: The reason I am pressing you on this is because naturally if you look at Germany and central and eastern Europe, they eat virtually nothing but pig meat. Therefore it is a big issue, as far as that is concerned. If you are going to build alliances in the future, one way of doing it I suppose, if it is possible, is to have private meetings and try to frighten them all to death that that is going to happen to them. Otherwise, as you quite rightly said in your opening statement, they are going to keep their heads down and hope it is not going to happen to them. I do not think they are, but if the Commission is right and they want to pursue this ban, they have to pursue it all across Europe or they will have to allow us to do it, won’t they?

Mr Paice: Yes.

Q216 Neil Parish: How can you build those alliances?

Mr Paice: Mr Parish, you have had years of European experience; you know the ways to operate in Europe. You are right: they are often private discussions with potential allies to try to build up that level of support before you do something formally or publicly.

Q217 Richard Drax: Minister, you hinted already about the legal action that the British Government may or may not take, but what input has Defra had specifically to pursue that avenue of taking legal action against the Commission?

Mr Paice: Specific input has been to be involved in the crossGovernment discussion on the subject.

Q218 Richard Drax: But have you taken advice from lawyers? Have you physically sat down and said, "Do we have a case here? Shall we pursue it?"

Mr Paice: We have certainly taken legal advice from our own lawyers.

Q219 Richard Drax: What did they say?

Mr Paice: Precisely as I described earlier: they do not think we have a particularly strong case and the risks of the precautionary measures, as the Commission called them-safeguarding measures-of bans would still stand and could be imposed.

Q220 Richard Drax: I do not want to get tangled up in the legal argument, but why do we not have a strong case when I think we all admit there is no risk to health; it seems to have come in at very short notice; and it is going to cost God knows how much money. It is another example, dare I say it, of the EU-which as you know I adore-

Mr Paice: As I understand it-and you will appreciate I am not a lawyer-the criteria for this material is laid down in legislation in terms of being mechanically separated. It is mechanically separated, not in the same process as what ends up as a meat paste, which is what we tend to call MSM, but nevertheless machinery is involved in creating DSM. Secondly, the legislation refers to the impact on the muscle structure as a means of separating it from conventionally butchered meat, if you like. Although Leatherhead Laboratories devised a test for us that can distinguish between the much lesser-I am not saying nil, but lesser-muscle damage to DSM than to MSM, the Commission refused to recognise that test and have said there is clear muscle damage, therefore it is MSM. DSM does not exist, in their view: it is either meat or it is MSM. Our lawyers’ advice is that that is where the weakness is because there is muscle damage: nothing like the extreme muscle damage that just creates a paste, but we cannot argue that there is not any muscle damage.

Q221 Richard Drax: So legal action is out for the moment?

Mr Paice: I would not say it is out, but it does not look very promising.

Q222 Neil Parish: You were saying the Commission is hell bent on anything mechanical. I take it we use suction to get this meat off, so therefore it is not actually cutting, but you could physically go down through with a knife and cut off these carcasses, and be much more likely to get any chip of bone or whatever in it, and yet they are not going to ban that.

Mr Paice: No; indeed that is how it used to be done.

Q223 Neil Parish: Could we not therefore make a legal challenge on that?

Chair: I think we need to get the guidance, which has now been delayed.

Neil Parish: It was just a thought.

Mr Paice: It is an interesting point that we can certainly take back.

Q224 Mrs Glindon: If at a later date the moratorium were to be lifted on advice from the European Food Safety Authority, would you support British producers in seeking compensation from the Commission?

Mr Paice: I would have to take legal advice on a) whether we had the right, and b) whether we had any prospect of getting it, but I of course cannot say no. Obviously, if we can get compensation for our producers from something the Commission has done wrong, clearly we would want to pursue that. I would need to take proper advice before deciding how or what to do. I suspect it would be for them to pursue with Government support, rather than us do it direct, but it is not an issue we have yet formally addressed. I cannot give you an absolutely clear answer, but obviously I am sympathetic.

Q225 Chair: Do you know the dates of the FVO missions or visits to other member states?

Mr Paice: No, I do not, and I do not think we do. No, we do not.

Q226 Chair: Are we asking?

Mr Paice: Have we asked for the dates?

Mark Filley: I don’t know; I would have to check.

Mr Paice: It is a fair point.

Q227 Chair: Do you think it is a good thing that the draft guidance on the interpretation has been put on hold, and that there is now going to be a six month delay? Is it really in the interests of British producers that a decision will not be reached by the European Food Safety Authority before September/October? Do you think that is a good thing?

Mr Paice: Of course I wish we were not in this position, so nothing is a good thing, but if they are now belatedly going to take advice from the European Food Safety Authority about whether there is a food safety issue here then that must in itself be good, because it might lead to redressing the wrong we believe has been done.

Q228 Chair: Presumably-and the FSA accepted this was a possibility-it would be open to the companies affected, like Newby Foods and Moy Park, to bring an action of judicial review?

Mr Paice: They could do that at any stage. Indeed, one of the industry bodies could do so, if they wished.

Q229 Chair: Would the Government be minded to join with them to help defray their costs, so you would be a party to that case?

Mr Paice: We would have to consider it if they made that approach to us, and they have not. Our decision would have to be informed by the legal advice that I have just described and precisely the grounds on which they were planning to go. As I have said, at the moment the indications are that the answer would probably be no, we would not, because we do not think there would be a likelihood of success. If the advice was otherwise, clearly we would take a different position. I am not ruling it out.

Q230 Chair: You have given yourself some pretty comprehensive grounds for such a review. You will be familiar with the note from the European Scrutiny Committee who looked at this. Obviously we are keeping them closely informed of our evidence sessions and any conclusions that we reach in this regard. They concluded particularly that the Commission contemplated the action at such short notice and that presumably the situation within the UK was well known in advance of the visit of the FVO audit visit. Given the practical effect on UK producers of a more or less immediate ban unilaterally that does not apply in other EU countries-as you said, this dancing on the head of a pin between mechanically separated and desinewed meat, and now this new element of the 3mm BAADER meat-there seem to be a number of grounds. That would seem to be a fair outcome, would it not, rather than the Government going on its own but you joining together with the producers?

Mr Paice: It is certainly a possibility; as I say, I am not ruling it out.

Q231 Chair: Do you believe through this whole sorry saga there are lessons the Government can learn from the handling of this particular issue?

Mr Paice: There are always lessons to be learned from everything. Overall, I think that the FSA should have been more aware of the developments that I have described, particularly over the last 12 months and where that was heading. I certainly do not know what happened in the fortnight between the end of the FVO mission, when the mission clearly stated that they felt there were very serious shortcomings, and 29 April when the FSA got the letter from the Commission. I am not sure that anything was done. But I have to say I do not think anybody, the FSA or anybody else, could have foreseen the precipitate nature of the Commission’s request, if you want to call it that, on that day. That we were given five days was almost unprecedented.

Q232 Chair: In the climate that the Government is looking to reduce the number of arm’s length public bodies, would this not be a good opportunity to review the role of the FSA, to possibly abolish the FSA, to subsume its respective responsibilities under your Department and the Department of Health in the hope that such a scenario as we have been presented with today will never occur again?

Mr Paice: Madam Chairman, the Government did consider the future of the FSA amongst all of its arm’s length bodies reviews at the beginning of this Parliament, and indeed made very significant changes. Food labelling came back to Defra; nutrition went back to the Department of Health, so that the Food Standards Agency was narrowed down very much to purely its food safety responsibilities. I think there is a strong argument that that is best left with a largely autonomous body, given some of the history we are all well aware of over the last 20 years on food safety issues, so taking it out of links to industry, in our case, or links to the Department of Health, although the ultimate arbiter is the responsible Department. I do not think this is justification to abolish the Food Standards Agency, to answer your question, no.

Q233 Chair: Okay. We are very grateful to you both for being here today. We look forward to having the Minister of Health next week.

Mr Paice: Thank you.

Prepared 15th June 2012