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These notes refer to the Food Standards Bill FOOD STANDARDS BILLEXPLANATORY NOTESINTRODUCTION
These explanatory notes relate to the Food Standards Bill as brought from the House of Commons on 23rd July 1999. They have been prepared jointly by the Ministry of Agriculture, Fisheries and Food, Department of Health, Scottish Office, Welsh Office and Northern Ireland Office in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
SUMMARY AND BACKGROUNDThe Bill gives effect to the proposals of the White Paper, 'The Food Standards Agency: A Force for Change' (Cm 3830). It was published in draft in the Command Paper 'The Food Standards Agency: Consultation on Draft Legislation' (Cm 4249) on 27th January 1999. The draft Bill was examined by the Food Standards Committee, whose report was published on 31st March 1999 (House of Commons Food Standards Committee Report of Session 1998-99 (HC 276) on the Food Standards Draft Bill).
The Bill was introduced in the House of Commons on 10th June 1999 and completed its Commons stages on 22nd July 1999.
The main purpose of the Bill is to establish the Food Standards Agency, provide it with functions and powers, and to transfer to it certain functions that are currently exercised by the Minister of Agriculture, Fisheries and Food and the Secretary of State for Health in relation to food safety and standards. Besides setting down the Agency's main objective of protecting public health in relation to food and the functions that it will assume in pursuit of that aim, it also gives it the powers necessary to enable it to act in the consumer's interest at any stage in the food production and supply chain. The Bill provides for the Agency's main organisational and accountability arrangements. In addition, it provides powers to establish a scheme for the notification of the results of tests for food-borne diseases.
OVERVIEW OF THE BILL
The main body of the Bill is arranged as follows:
COMMENTARY ON CLAUSES
Clause 1: The Food Standards Agency.This clause establishes the Food Standards Agency and sets its main objective. More details concerning the constitution of the Agency can be found in Schedule 1.
Subsection (1) establishes the Agency for the purpose of carrying out the functions that are provided for in the rest of the Act. These functions provide the framework in which the Agency will operate. The way in which they will be carried out is limited by the requirements that are set down in the subsequent clauses, in particular clauses 22 and 23. These provide for the Agency to carry out its functions in accordance with a statement of objectives and practice that has been approved by Ministers. Clause 23 furthermore requires that the Agency must act in a proportionate manner by taking account of risks, costs and benefits, as well as of any advice it receives from its advisory committees.
Subsection (2) defines the main objective of the Agency. Food safety is central to this objective, but the subsection also embraces the Agency's role in relation to nutrition and diet, and protecting the wider food-related interests of consumers - sometimes referred to as food standards. This would cover in particular such matters as the composition and labelling of food. This subsection does not imply that the Agency has any wider powers or functions than those provided by the rest of the Bill, but sets the context in which the Agency's powers must be used.
Subsection (3) establishes the Agency as a Crown body. It will be a non-Ministerial Government department.
Clause 2: Appointment of members etc.This deals with the membership of the Agency and the procedures for appointing people to serve.
Subsection (1) provides for the Agency to have a Chairman, Deputy Chairman and 8-12 other members, of whom one will be appointed by the National Assembly for Wales, two by the Scottish Ministers, and one by the Department of Health and Social Services for Northern Ireland. The rest will be appointed by the Secretary of State for Health.
Subsection (2) specifies that the appointment of the Chairman and Deputy Chairman will be made jointly by the Secretary of State for Health and his counterparts in the 'appropriate authorities' for Scotland, Wales and Northern Ireland. The 'appropriate authorities' are defined in clause 36 of the Bill and are:
Subsection (2) requires the authorities to consult each other before making appointments.
Subsection (3) provides for the authorities, in making appointments, to try to secure a reasonable balance of relevant skills and experience in the Agency's membership. The members will not be appointed to be representative of any particular interest or sector. Subsection (3)(b) requires the appropriate authorities to consider whether the person's financial or other interests - for example shares in a major food manufacturer - are likely to compromise his or her position as a member of the Agency. This does not necessarily mean that any such interests will automatically disqualify a person from appointment as a member. Under paragraph 9 of Schedule 1, the Agency will be obliged to establish and publish a register of private interests: although the Bill does not specifically require it, the Agency's procedural rules would be expected to prevent a member with an interest in a particular matter from taking part in discussions on it.
Clause 3: Appointment of chief executive and directors.Subsection (2) gives the Agency's Chief Executive particular responsibility to ensure that the Agency is run efficiently and effectively. He or she will be responsible to the Agency's members for the day to day running of the Agency itself and will also be the Agency's accounting officer (the officer responsible to Parliament for the way in which the Agency spends its money). Under subsection (3) the first Chief Executive is to be appointed jointly by the appropriate authorities, because the members of the Agency are unlikely all to be appointed when this appointment is made. Subsequent appointments will be a matter for the Agency, with the approval of the appropriate authorities.
The separate directors for Scotland, Wales and Northern Ireland are appointed under subsection (4). Each will each head an executive body with responsibility for the operation of the Agency in the relevant part of the UK and will report to the Chief Executive. By analogy with the Chief Executive, the first appointment of the directors under subsection (5) will be made by the appropriate authority in Scotland, Wales or Northern Ireland, with subsequent appointments by the Agency with the authority's approval.
Clause 4: Annual and other reports.The Agency will be required to lay an annual report on its activities and performance before Parliament and before the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly. It may also make other reports to them.
Clause 5: Advisory committees.The purpose of the committees established by subsection (1) of this clause will be to provide a focus for Scottish, Welsh and Northern Ireland interests in food safety and standards. They will be set up with a defined remit that will reflect the responsibilities of the UK Agency. Their membership will reflect the range of interests on food safety and standards issues in Scotland, Wales and Northern Ireland. The Agency is obliged under clause 23 to take their advice into account when carrying out its functions or advising Ministers or the appropriate authorities.
Subsection (2) enables the Secretary of State to establish an advisory committee for England, or English regions, with a similar purpose to those for Scotland, Wales and Northern Ireland. This provision has been included in case the Secretary of State feels such committees may be needed in future - in particular for the English regions. There is no current intention to establish such committees at the outset.
Subsection (3) empowers the Agency to establish other specialist advisory committees if it so wished. Further details on advisory committees, including provisions for the transfer of existing committees to the Agency and the creation of joint committees, are contained in Schedule 2.
Clause 6: Development of food policy and provision of advice, etc. to public authorities.This clause gives the Agency the function of providing advice, information and assistance, including on matters relating to the development of policy on food safety and related matters, to any public authority (which would include, for example, local authorities or agencies of government). So far as Ministers, government departments and their equivalents in the devolved authorities are concerned, the Agency will have a duty to provide such advice, information and assistance on request, unless it is not reasonably practicable for it to do so (for example, because the resource costs of providing any particular item of information would be disproportionate).
The advice, information and assistance which the Agency has the function of providing could for example include making recommendations to Ministers on the need for new primary legislation or proposing secondary legislation in order to improve food safety and standards. Another important aspect of the Agency's function of assisting Ministers will be to represent the UK at working level in relevant EU and other international forums.
It is intended that the Agency as a UK body will be the primary source of policy advice in relation to food safety and associated areas to the Government as a whole, and to the devolved authorities. Most of the relevant expertise available to the Government and those authorities in the area of food safety and standards will therefore reside with the Agency and will not be duplicated within government departments. The Agency will also be able to advise on the development of policies by other Departments of Government on matters that are relevant to the Agency's own area of responsibility, for example advice to the Minister of Agriculture, Fisheries and Food on activities on the farm which may have an impact on food hygiene; or on relevant consumer protection matters to the Department of Trade and Industry.
Clause 7: Provision of advice, information and assistance to other persons.This clause deals with the provision of advice, information and assistance to the general public or to individuals and bodies who are not public authorities.
The clause allows for information and advice to be given to either the general public as a whole or to particular sections of it such as groups representative of food industry sectors. The Agency will be able, for example, to:
Clause 8: Acquisition and review of information.This clause concerns the Agency's function of keeping itself properly informed in order to carry out its other functions.
Under Subsection (2)(a), the Agency will keep abreast of new developments in discharging this general function.
Subsection (2)(b) provides for the Agency to develop its scientific understanding by undertaking, commissioning or co-ordinating research. Current research and development projects within the remit of the Agency funded by the Ministry of Agriculture, Fisheries and Food and any relevant research funded by other Departments (such as the Department of Health) will be transferred to the Agency at the outset.
Subsection (3) makes it clear that the purpose of the Agency's information-gathering activities, including the carrying out of observations (see clause 10 below), is to enable it to carry out its general functions in an informed and effective way.
Clause 9: General functions in relation to animal feedingstuffsThis clause provides that the Agency has the same functions of giving policy and other advice to public authorities, advice and information to the public and other bodies, and on the acquisition of information, in relation to animal feedingstuffs.
The Agency will have wide-ranging responsibilities in the area of animal feedingstuffs. These include, for example, EU controls governing the safety, composition and labelling of animal feeds. The main reason for giving the Agency responsibility in this area is because of the possible implications of animal feedingstuffs for the safety of human consumers eating meat and animal products. This is already encompassed by the Agency's main objective in clause 1 and its advice and information functions in clauses 6-8, which apply to food safety and other interests of consumers in relation to food. However, in carrying out its responsibilities on animal feed, the Agency will also incidentally deal with matters which are not directly about food safety or the interests of consumers of food. For example, most of the relevant EU and domestic provisions also apply to pet foods, and responsibility for these cannot readily be separated from responsibility for animal feeds. Similarly there are provisions which relate to protecting the interests of the purchasers of animal feeds, or ensuring that the safety or health of the animal itself is not damaged. Although these matters are secondary to the Agency's primary purpose in relation to human health, the Agency needs to be able to have the legal basis to undertake these functions and this clause provides it.
At present, feedingstuffs are regulated by means of regulations under the Food Safety Act 1990, the Agriculture Act 1970 and the European Communities Act 1972, and by Orders made under the Animal Health Act 1981. Under the Bill, the Minister of Agriculture, Fisheries and Food will cease to have responsibility for regulations under the 1990 Act, but will remain responsible for the 1970 and 1981 Acts. The Agency will be able to give advice to both Ministers on the need for legislation under all these Acts as it sees appropriate. However, orders under the Animal Health Act in relation to feed are usually used to control feed borne diseases of animals, where MAFF's veterinary expertise is very important. Thus MAFF will retain the primary policy making role in relation to these. Arrangements will be put in place to ensure that MAFF and the Agency do not duplicate work in this area. MAFF and the Agency will co-operate closely to ensure that both bodies consult each other on feedingstuffs matters affecting human and animal health (see also clause 28 in relation to cooperation on zoonoses).
Clause 10: Power to carry out observations.This clause and clause 11 set out specific powers that will help the Agency to fulfil its general function of obtaining and keeping under review any information relevant to its work. "Observations" describes the gathering of information on food safety and related matters through undertaking surveillance programmes or by other appropriate means for this purpose. The Agency will, if necessary, be able to conduct such work at any point in the food production and supply chain and anywhere else where there might be implications for food safety and related matters. In particular, this means that the Agency will be able to undertake observations on farms.
The two clauses give the Agency specific powers necessary to obtain information, either directly or through an authorised person acting on its behalf. These powers replace existing more limited powers contained in section 25 of the Food Safety Act 1990, which allow Ministers to make orders concerning the provision of information and the taking of samples of food, substances used in the preparation of food and contact materials. These new provisions expand the previous powers to allow the Agency to carry out its proposed role in monitoring activities at earlier stages of food production and without the need for further secondary legislation; to allow authorised persons to make observations; and to require disclosure of certain relevant records relating to employees.
Examples of the types of observations that the Agency might carry out are surveillance programmes to investigate the presence of pathogens that could carry risks for human health levels; or of a particular contaminant, such as lead, in certain types of foodstuffs; or surveys of hygiene practices in a certain type of food business.
It should be noted that the powers in these clauses relate to the gathering of information of a general and representative nature and not to the investigation of individual complaints or failures for which the enforcement powers in the Food Safety Act 1990 and other powers will continue to be used by enforcement authorities. Since the observations made under this clause are not intended for enforcement purposes there is no requirement that these powers be used to gather evidence in accordance with the kind of safeguards contained in the Police and Criminal Evidence Act 1984, and thus any information obtained could not be used directly for the purposes of food law enforcement. Where apparent problems were identified in the course of a surveillance exercise, the information gathered would normally be passed to the relevant enforcement authorities who would then take a decision on the need for further investigation.
Clause 11: Power of entry for persons carrying out observations.Subsection (1) provides for observations to be undertaken on the Agency's behalf, for example by contractors such as university research teams where the Agency is satisfied that they are qualified to do the work. The authorisation for powers of entry to be used must specify the nature of the observations to be carried out. Subsection (2) requires that the decision to grant any authorisation to exercise powers of entry must be taken by the Agency itself, or a committee, sub-committee or individual member, and not by members of the Agency's staff.
Subsections (3) to (5) describe the powers to enter premises, take samples and inspect records, and the conditions under which they must be exercised. Under subsection (5), the authorised person is required to provide a receipt on request for any sample taken or document copied.
Subsection (6) provides for access to health records of people employed in food production, but only where that information is relevant to food safety. For example, under certain of the food hygiene directives, employers are required to obtain medical certificates assessing their employees' suitability, on health grounds, to be employed in the handling of food, so as to ensure they do not constitute a general risk to public health. This provision would not, however, allow the Agency general access to an individual's personal health records.
Subsection (7) makes it an offence for any authorised individual to disclose any information he or she has obtained during the course of carrying out observations about any trade secret, other than in the course of his or her duty. This provision does not in any way restrict the provision of any information to the Agency, or affect the Agency's own powers to publish information. It deals with the kind of situation where an authorised person entering premises as part of a duty to carry out observations obtains commercially confidential information and then, acting in a private capacity, passes that information on, for example, to a commercial rival of the business. As such it parallels section 32(7) of the Food Safety Act 1990.
Subsection (8): this provision is similar to that contained in the Food Safety Act 1990. The current maximum value of a level 5 fine is £5,000.
Clause 12: Monitoring of enforcement action.This clause empowers the Agency to monitor, set standards for and audit the performance of enforcement authorities (which are defined in clause 15) in carrying out food law enforcement.
Subsection (2) gives the Agency power to set standards against which to monitor performance. Normally, these would be set in respect of enforcement authorities generally, although the power extends to the setting of standards for individual authorities, should this be necessary.
Under subsection (3) the Agency must publish (as part of its annual report) information about its own performance as an enforcement authority corresponding to the information it would obtain about other authorities. At present, for the most part, this would relate to its role in enforcing the provisions of the various meat hygiene regulations through the Meat Hygiene Service (which will become part of the Agency) and in the enforcement of dairy hygiene regulations.
The general publication of audit reports by the Agency is dealt with in clause 19.
It is envisaged that a reasonable period of time would be provided for an enforcement authority to report back under subsection (5)(b) on its response to a report on its performance that was issued under subsection (4). This would take account of the need for local authorities to consider their response in the course of their usual committee cycle.
Clause 13: Power to request information relating to enforcement action.This clause and clause 14 provide the specific powers necessary for the Agency or an authorised person to carry out the monitoring role provided for in clause 12. At present, section 41 of the Food Safety Act 1990 makes provision for Ministers to require reports and returns, but does not allow for audit visits or the provision of detailed returns, statistics and supporting documentation, nor does it provide for Ministers to set performance targets in relation to enforcement. Part IV of the Agriculture Act 1970 contains no powers comparable to section 41 of the Food Safety Act 1990. The majority of the powers contained in these clauses are therefore new.
Subsection (1) empowers the Agency to require any information that may be relevant to its assessment of an enforcement authority's performance. As provided for in subsection (2), this requirement would apply to anyone representing, working for or acting on behalf of that authority.
Clause 14: Power of entry for monitoring enforcement action.Subsection (1) provides for the Agency to authorise the use of powers of entry in connection with its enforcement monitoring function. Under subsection (2), the decision to grant any authorisation must be taken by the Agency itself, or a committee or sub-committee or individual member, and not by the Agency's staff.
Subsection (4) provides an authorised person with powers to enter and inspect individual premises in order to carry out monitoring work. Besides giving access to records and data held by the enforcement authority or anyone acting on its behalf, this power also provides for the taking of samples.
Subsection (5) specifies the types of premises that may be entered under the previous subsection. Besides offices and other premises used by the enforcement authority, this would include any laboratories that provide it with services relevant to its enforcement activity (this would include both in-house and independent laboratories). The Agency would not be expected to publish the details of the performance of the laboratories themselves; nor would its monitoring powers impinge on any service provided by the laboratories to private customers. The third category of premises subject to these powers covers any in which food law enforcement may be carried out (i.e. food shops, food manufacturers etc.).
Subsection (6) provides a power for an authorised person when entering premises to be accompanied by another person. This might, for example, be a technical expert or an official from an interested government department other than the Agency, or possibly an official of the European Commission who was engaged in a routine audit of member states' enforcement of the provisions of EC food law.
Subsection (7) requires that the authorised person must provide a receipt on request for any sample taken or document copied.
Subsection (8) provides for an offence for the same purpose as that described in clause 11(7) above but also covering a person accompanying an authorised person under subsection (6).
Subsection (9) adapts the provisions of this clause to monitoring of enforcement activity of the Agency itself or of Ministers or the devolved authorities (for example the enforcement of meat hygiene legislation). The power of entry is excluded as it would be unnecessary to give a power to the Agency to authorise a person to enter its own premises.
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| © Parliamentary copyright 1999 | Prepared: 26 July 1999 |