House of Lords - Explanatory Note
Food Standards Bill - continued          House of Lords

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Clause 34: Duty to take account of functions of the Food Safety Promotion Board.

Under the North/South Cooperation (Implementation Bodies) (Northern Ireland) Order 1999, made on 10th March following the Agreement between the Government of Great Britain and Northern Ireland of 8th March in implementation of the Belfast Agreement, the Food Safety Promotion Board (FSPB) will be established as an all-Ireland implementation body. Its functions include promotion of food safety, research into food safety, communication of food alerts and surveillance of food-borne diseases. The FSPB Order will come into force on the appointed day when devolution takes place in Northern Ireland under the Northern Ireland Act 1998. This clause provides for the Agency to cooperate with the FSPB in Northern Ireland, so as to ensure that it does not duplicate the activities of the FSPB.

Clause 35: Devolution in Scotland.

Clause 35 deals with two particular matters arising in Scotland.

The first concerns the power of the Scottish Parliament to call witnesses. Under section 23 of the Scotland Act 1998, the Scottish Parliament has a general power to call witnesses on any subject within the responsibility of members of the Scottish Executive. However, persons outside Scotland can be required to attend and give evidence only in relation to their discharge of functions of the Scottish Administration, of Scottish public authorities or cross-border public authorities (as defined in the Scotland Act). Since the Agency is not a Scottish authority or cross-border public authority, without the amendment provided in clause 35(a), the Parliament would have no power to call witnesses from outside Scotland in relation to its activities.

The provision in relation to section 70(6) of the Scotland Act concerns the Agency's accounts. Section 70(6) prevents Scottish legislation imposing a requirement to prepare accounts on cross-border public authorities, where other legislation already requires them to prepare accounts to be examined either by the Auditor General for Scotland or the Comptroller and Auditor General. Clause 35(b) deems the Agency to be a cross-border public authority for the purposes of section 70(6), so the prohibition on Scottish legislation duplicating accounting requirements will apply in relation to the Agency. As a UK non-Ministerial department, the Agency will be subject to audit by the National Audit Office. Schedule 4 sets out the detailed accounts and audit arrangements for the Agency.

Clause 36: Interpretation.

This contains definitions of terms used in the Bill.

Powers of entry in the Bill are related to 'premises'. Subsection (4) provides that if the definition of 'premises' in the Food Safety Act 1990 is extended by an Order under section 1(3) of that Act to include ships and aircraft of a specified description, this extended definition may also be applied to functions under this Bill.

Clause 37: Subordinate legislation.

This clause groups together the general provisions relating to the manner in which the powers in the Bill to make subordinate legislation may be used. These are the powers:

  • to modify statutory bars on disclosure of information to the Agency;

  • to establish a notification system for food borne diseases;

  • to apply the Food Safety Act 1990 to feedingstuffs; and

  • to make Orders in Council relating to the constitution of the Agency and the consequences of the Scottish Parliament or NI Assembly removing functions from the Agency.

Clause 38: Application of Act to Crown.

This clause applies the requirements and powers contained in the Bill (including powers of entry) to activities and premises carried out or used by or on behalf of the Crown (but does not apply to the Queen in her private capacity). This reflects the provisions of the Food Safety Act 1990, which is applied to the Crown by section 54 of that Act.

Subsection (3) permits the Secretary of State to certify that powers of entry should not be exercised in relation to specified premises of national security importance, such as defence establishments.

Clause 39: Financial provisions.

This clause provides for the financing of the Agency. Because the Agency is a UK body operating in a devolved area, it is to be funded not only from money provided by Parliament, but also from the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly. In practice, as a general rule, it is envisaged that the costs of the Agency's main headquarters and staff, and its activities in England, will be met by money provided by Parliament, and the costs of its executive bodies in Scotland, Wales and Northern Ireland, and of activities carried out on the ground in those parts of the UK, will be funded by them. The clause ensures that the devolved legislatures, as well as Parliament, can make the contributions to the expenditure of the Agency, and deals with the treatment of the Agency's receipts (both from statutory charges - in practice this is likely to be mostly charges for the Meat Hygiene Service - and miscellaneous income such as charges for documents produced by the Agency).

Subsection (1) contains provisions authorising payment by Parliament of increases in Ministerial expenditure and spending under other Acts by virtue of the Bill.

Subsection (2) provides for Parliament to meet the expenditure of the Agency, other than that part which is provided by the devolved authorities. It should be noted that the Agency (as a Government Department), will be funded directly by Parliamentary 'Vote', rather than by means of a grant paid by a Minister.

Subsection (3) provides the legal authority to the devolved administrations to pay money to the Agency and removes any doubt as to whether this would be within their devolved competence.

Subsection (4) deals with the Agency's receipts, in particular receipts from the performance of statutory functions, such as charges for meat hygiene enforcement. Under existing legislation, such receipts are normally paid into the Consolidated Fund, though (subject to certain criteria being satisfied) the Treasury may direct that it can be 'appropriated in aid' to the Department or body concerned. This subsection clarifies that receipts are payable into the Consolidated Fund, unless they are

  • actually provided by Parliament (and sums appropriated in aid count as this);

  • received by the Agency from the Scottish, Welsh and Northern Ireland administrations;

  • payable to the National Assembly for Wales or into the Consolidated Funds for Scotland or Northern Ireland, as the case may be, by virtue of a provision in legislation; or

  • determined to be payable to Wales, Scotland or Northern Ireland under subsection (5), explained below.

The Agency is likely to have minor non-statutory receipts, such as income from charges for constancy or other services provided on request. Subsection (5) deals with this by providing a mechanism for the Treasury and the devolved administrations, acting jointly, to determine that receipts be payable to the Scottish or Northern Ireland Consolidated Fund, or the National Assembly for Wales, (rather than to the Consolidated Fund) as appropriate according to the nature of the receipt.

It should be noted that in general, sums received by the Agency, whether under statutory charges or from miscellaneous fees, are likely to be of the type it will be allowed to retain as appropriations or negative public expenditure. Thus the payments into the various funds described above will be nominal payments, for accounting purposes only.

Clause 40: Minor and consequential amendments and repeals.

As in clause 18 (see note), amendments to existing Acts made by Schedule 5 are to be treated as pre-commencement enactments for the purposes of the Scotland Act 1998.

Clause 41: Transfer of property, rights and liabilities to the Agency

This clause provides a transitional power to enable the Secretary of State or devolved authorities to make arrangements to transfer property, rights and liabilities to the Agency. This power is expected to be used, for example, at the time of the Agency's establishment to transfer uncompleted research contracts or relevant intellectual property rights.

Clause 42: Power to make transitional provision etc.

This clause provides for the Secretary of State to make regulations to deal with any transitional or consequential changes to legislation needed as a result of this Bill.

Clause 43: Short title, commencement and extent.

Subsection (3) deems section 58 of the Food Safety Act 1990 to apply to the Bill. Section 58 has two effects.

First, in relation to territorial waters (i.e. inland waters and the sea, generally out to 12 miles), it deems the authority responsible for any food premises (for example on gas rigs or other fixed structures) to be the same as that on the adjoining land. This provision also determines whether a structure lies in England, Scotland or Wales.

Secondly, section 58 allows the Food Safety Act to be extended by Order to structures outside territorial waters, but within areas which are British for oil and gas exploration purposes. No such Order has yet been made, but were it to be made, then the Agency would, by virtue of this clause, obtain appropriate powers in relation to the carrying out of surveys and monitoring of the work of enforcement authorities at installations in the British sector.

Schedule 1: Constitution etc. of the Agency.

This Schedule sets out detailed provisions on the constitution, staffing and operation of the Agency. The term 'the Agency' means the Food Standards Agency appointed in accordance with clause 2.

Paragraph 2 provides that members of the Agency can be re-appointed to posts they already hold or have held in the past, including those of Chairman and deputy chairman.

Paragraph 4 describes the circumstances in which the appropriate authorities may dismiss a member of the Agency. They have to satisfy themselves that the person is failing to perform his duties, has been declared bankrupt, is unable to meet his debts or is otherwise unfit to carry out his functions.

Paragraph 6 covers the circumstances in which the appropriate authorities may pay compensation to a member of the Agency who ceases to hold office. It is up to the appropriate authorities to make such a decision and thereafter the Agency is under a duty to pay whatever sum of money is decided.

Paragraph 7 disqualifies members of the Agency from standing as Members of Parliament or the Northern Ireland Assembly. Disqualification from membership of the European Parliament also flows automatically from this provision. Whether members should be disqualified from the Scottish Parliament and the National Assembly for Wales is a question for those bodies.

Paragraph 8 gives the Agency a power to appoint other staff. The staff will be civil servants and many of the Agency's staff will transfer from the Agriculture and Health Departments and they will therefore be subject to the requirement that the Minister for the Civil Service approve their numbers and terms and conditions.

Paragraph 9 provides for the establishment of a register of members' interests and the publication of the entries recorded in it.

Paragraph 11 ensures that any document which appears to be signed or sealed by or on behalf of the Agency is valid until shown not to be.

Paragraph 12 sets out to whom the Agency may delegate. Sub-paragraph (2) preserves the rule whereby the staff of a Minister (or in this case a non-Ministerial department) may act on his/its behalf. This is the same as the power that other civil servants exercise on behalf of Ministers.

Schedule 2: Advisory Committees

This Schedule supplements the provisions in clause 5 on advisory committees. It provides for the appointment of members, terms of reference, remuneration and expenses of committees for Scotland, Wales, Northern Ireland and England, and for specialist committees.

Paragraph 7 concerns the transfer of existing non-statutory advisory committees. A number of non-statutory independent advisory committees currently exist which deal with food related matters. They include the Advisory Committee on the Microbiological Safety of Food (ACMSF), the Advisory Committee on Novel Foods and Processes (ACNFP), the Food Advisory Committee (FAC) and the Consumer Panel. Under this paragraph the Secretary of State and the Minister of Agriculture, Fisheries and Food may direct that these committees be treated as if they were established by the Agency in accordance with clause 5 after consulting the Agency and any other authorities to whom the committees in question report.

Paragraph 8 provides that the Agency may establish joint committees with another authority. Current examples of joint committees include the Spongiform Encephalopathy Advisory Committee (SEAC), the Committee on the Medical Aspects of Food and Nutrition Policy (COMA), the Committee on Toxicity of Chemicals in Food, Consumer Products and the Environment (COT) and the Advisory Committee on Animal Feedingstuffs.

Schedule 3: The functions of the Agency under other Acts

As explained in the note on clause 18, the amendments in Schedules 3 and 5 are to Acts in their pre-devolution state. Thus, although many powers in relation to food, the environment, and agriculture have been devolved to the Scottish Administration, the amendments still refer to the Secretary of State and Minister of Agriculture, Fisheries and Food alone and not to Scottish Ministers. However, where the relevant functions have in fact been devolved, the references to the Secretary of State are intended to take effect in relation to Scotland as if they were references to Scottish Ministers. In general this will be the automatic result of the Scotland Act, but the powers under that Act will be available to make any further changes as necessary.

Part I: Functions under the Food Safety Act 1990.

This Part describes the functions under the Food Safety Act 1990 which will be taken over by the Agency. The amendments to that Act which give effect to this are detailed in Schedule 5.

These functions allow the Agency to act as an enforcement authority in similar circumstances to those in which the Minister of Agriculture, Fisheries and Food, the Secretaries of State for Health, Scotland and Wales can act (the option of allowing any of the Ministers to be an enforcement authority is retained). These provisions do not therefore create new powers. In addition, the Agency may grant consents or give directions in relation to emergency control orders (see also clause 17); issue Codes of Practice and give directions for their enforcement (in both cases after consulting the Secretary of State); require returns of information from food authorities; exercise default powers; and undertake consultation on proposals for regulations and orders on behalf of the Secretary of State.

In general, the functions of the Minister of Agriculture, Fisheries and Food will be transferred to the Secretary of State for Health, although the Bill retains the option for the Minister to be an enforcement authority. The Minister's current enforcement functions (for example on dairy and meat hygiene) will be transferred to the Agency by amending relevant secondary legislation.

Part II: Other functions.

Paragraph 8: Section 4 of the Medicines Act 1968 provides for the establishment of committees to advise on various aspects of the licensing of medicines (including veterinary medicines). Sub-paragraph (2) amends this provision to provide for the Agency to nominate a member of any committee established under it dealing with veterinary medicinal products for appointment by the Secretary of State.

This provision will in practice apply to the Veterinary Products Committee, which considers applications for authorisation of new veterinary medicines and related products. (It should be noted that, as with the Advisory Committee on Pesticides, it is expected that the Agency will also provide an adviser to this committee and its sub-committee).

Section 129 of the Medicines Act 1968 provides the general procedure for the making of regulations and orders under that Act. Sub-paragraph (3) amends section 129 to specify that the Agency must be consulted on any new regulations concerning veterinary drugs or medicated feedingstuffs.

Paragraph 9, sub-paragraphs (1) and (2) set out the Agency's functions in relation to emergency control orders made under the Food and Environment Protection Act 1985 (FEPA 1985), conferred by amendments to sections 2 and 3 of that Act. Consequential amendments are set out in more detail in Schedule 5.

Sub-paragraphs (3) to (5) amend Parts II and III of FEPA 1985, which relate respectively to the licensing of deposits at sea and of pesticides. The amendments introduce a requirement for the Agency to be consulted on licensing matters under Part II (dumping at sea), and a more general requirement for consultation of the Agency on matters covered by Part III (pesticides).

Powers are available under Part II of the Food and Environment Protection Act 1985 for Ministers to license the deposit of substances and articles in the sea and the loading of vessels with materials destined for incineration at sea. For these purposes, "Ministers" means the Minister of Agriculture, Fisheries and Food and the Secretary of State (in practice the Secretary of State for the Environment, Transport and the Regions) acting jointly. They may also make orders which specify types of operation which do not need a licence or which specify the conditions under which they may be exempt.

The purpose of such powers is primarily to protect the marine environment and to prevent interference with legitimate uses of the sea, and it is proposed that the powers should remain with Ministers as defined. However, in view of the potential effects of dumping at sea on the safety of food obtained from it, sub-paragraph (3) amends the powers to grant exemption from the requirement for licences to require that the Agency be consulted before any exemptions are made or conditions for exemptions set down in law.

Sub-paragraph (4) requires the licensing authority (which is the Minister responsible for fisheries in the place where dumping is proposed) to consult on specific applications and on the general way in which food safety should be addressed when considering licence applications. The licensing authority is obliged to take the Agency's advice into account.

Part III of FEPA 1985 concerns the licensing of pesticides and related products for the purposes of protecting human, animal and plant health, safeguarding the environment and securing safe, efficient and humane methods of controlling pests. Primary responsibility for such licensing lies with Agriculture, Health and Environment Ministers. Section 16 of the Act relates to the requirement on Ministers to consult the Advisory Committee on Pesticides (ACP) on proposals:

  • for regulations;

  • for giving, revoking or suspending approvals of pesticide products;

  • for conditions to which they are considering making approvals subject.

Sub-paragraph (5) amends this provision to require Ministers to consult the Agency as well as the ACP on proposals for regulations, and from time to time on the general policy towards pesticides approvals. These are similar to the provisions concerning veterinary products outlined in the notes to clause 29 and Schedule 3, paragraph 8 above.

In practice, the amendment means that the Agency will be formally consulted by officials from the Pesticides Safety Directorate on policy advice that they intend to submit to Ministers on any of the above three matters where there are implications for food safety. It will also be achieved through the provision by the Agency of an assessor to the ACP and its sub-committee (the assessor's duty is to contribute to the assessment and authorisation of pesticides). This supplements the provision in sub-paragraph (6) below.

Sub-paragraph (6) amends the FEPA 1985 to provide for the Agency to nominate a member of the Advisory Committee on Pesticides.

Paragraphs 10 and 11 amend Part VI of the Environmental Protection Act 1990 (EPA 1990), which is concerned with preventing or minimising any damage to the environment which may result from the escape or release of genetically modified organisms (GMOs). Lead responsibility for this area of policy lies with the Secretary of State for the Environment, Transport and the Regions. However, the Secretary of State for Health could (through normal machinery of government arrangements) take part in the decision-making process where appropriate.

The amendments are designed to give the Agency a role in relation to regulations controlling the import, acquisition, release or marketing of any GMO and related matters. Paragraph 10 provides a new option allowing such regulations to specify that the Agency act jointly with the Secretary of State rather than for the Secretary of State to act alone in considering any exemptions from the risk assessment or notification requirements for the matters mentioned above (section 108(7)) and exempting from the consent requirements relating to the same actions (section 111(7)).

Paragraph 11 modifies section 126 of the EPA 1990, which provides more generally for regulations under Part VI to be made jointly by the Secretary of State and the Minister of Agriculture, Fisheries and Food, where the regulations concern any matter with which the latter is concerned. The amendment made by this clause does not alter this requirement, since MAFF will retain an interest in the economic and environmental implications of GMOs for the farming and food industries after the Agency comes into being.

It does however introduce mechanisms to ensure that the Agency can exercise the same degree of influence as MAFF does now. In particular, the Agency must be consulted before any regulations on the deliberate release of GMOs are made where these relate to matters with which the Agency is concerned.

The amendment to section 126 would have the following effect.

Subsection (1) of this new section continues the Minister of Agriculture, Fisheries and Food's role in relation to regulations under Part VI of the EPA 1990. It does however exclude him from the power to make regulations relating to fees and charges under section 113 of that Act (but see subsection (6) below).

Subsection (2) preserves the Minister of Agriculture, Fisheries and Food's role in all the functions under Part VI (other than the power to make regulations, which is dealt with under subsection (1) above).

Subsection (3) applies in relation to the powers (other than powers to make regulations):

  • under section 108(8), to require certain persons to apply for authorisation to release, market, import or acquire GMOs;

  • under section 110, to prohibit certain persons from releasing, marketing, importing or acquiring GMOs if it is believed they risk damaging the environment.

The effect of the amendment is that these powers must now be exercised jointly by the Secretary of State and the Agency, in relation to matters connected with food safety and other interests of consumers in relation to food, and the Minister of Agriculture, Fisheries and Food where he is also concerned with the matter in question.

Subsection (5) introduces a new requirement for the Agency to be consulted:

  • before any regulations under Part VI of EPA 1990 are made, other than regulations relating to fees and charges under section 113;

  • before any consent relating to deliberate releases is issued (under section 111) or the conditions and limitations on the granting of a consent are varied (under section 112).

Subsection (6) requires the Secretary of State to take account of costs incurred by the Minister of Agriculture, Fisheries and Food and the Agency in drawing up charging scheme under section 113 of the EPA 1990.

Subsection (7) qualifies the subsections of this clause that deal with joint action and consultation. Essentially, it provides that any regulatory power or function exercised under this subsection is not rendered invalid if there is subsequently any question as to whether it should have been done (or not done) jointly with the Minister of Agriculture, Fisheries and Food or the Agency (or both), rather than by the Secretary of State acting alone.

Paragraph 12 sets out the Agency's right to be consulted on authorisations to dispose of radioactive waste. The detailed amendments to the Radioactive Substances Act 1993 are made in Schedule 5.

Schedule 4: Accounts and audit.

This Schedule sets out the arrangements for the Agency's accounts and audit.

As a UK Government department, the Agency will automatically be subject to the requirements of the Exchequer and Audit Departments Acts, under which it is required to produce appropriation accounts for Parliament in respect of monies voted to it by Parliament, which are audited by the Comptroller and Auditor General. However, clause 39 of the Bill provides for the Agency to receive money not only from Parliament but also from the Scottish Parliament, National Assembly for Wales, and Northern Ireland Assembly. The Agency must be able to account to those bodies for the expenditure of the money provided by them, and as this is not covered by existing legislation, specific provision is made here. In addition, clause 35 states that the Agency is to be treated as a cross border public authority for the purposes of section 70(6) of the Scotland Act 1998. This means that the arrangements for accounting to the Scottish Parliament may not be made in Scottish legislation, and therefore provisions are included here for accounts to be made to the Scottish Parliament.

Paragraph 1 defines the relevant authorities and bodies with an interest in the Agency's accounts (i.e. the devolved administrations and the Treasury, and the devolved legislatures and the House of Commons).

Paragraph 2 states that copies of the appropriation accounts, which the Agency is already required to produce for Parliament by virtue of the Exchequer and Audit Departments Act 1866, must be sent to the relevant authorities for Wales, Scotland and Northern Ireland, who will present them to the Scottish Parliament and the Northern Ireland Assembly as the case may be. This is so that they are informed of the overall financial position of the Agency - final scrutiny of the appropriation accounts remains the task of the House of Commons, through the Public Accounts Committee.

Paragraph 3 deals with the Agency's accounts for the expenditure of the sums provided by the devolved authorities in accordance with clause 39 of the Bill (this includes income from statutory charges imposed in their areas). The relevant authority for each of the parts of the UK may direct the form of the accounts for their part of the UK but must first consult the Agency and the other relevant authorities. The purpose of this is to achieve consistency between the form of accounts provided to each body, thereby assisting in the preparation of the consolidated accounts (see below). The accounts will be audited on behalf of each of the devolved legislatures by the Comptroller and Auditor General. Audited accounts must be sent to the relevant authority whose money they concern, which will present them to its legislature for scrutiny. Copies of the accounts are sent to the other devolved authorities and the Treasury, and these bodies must present them to the other legislatures and the House of Commons, essentially for information.

Paragraph 4 provides for consolidated accounts to be prepared in a form directed by the Treasury after consulting the Agency and other relevant authorities, and send them to the Comptroller and Auditor General to be audited and laid before the House of Commons. The consolidated accounts will bring together into a single document all the parts of the UK Agency's accounts in order to given Parliament a view of its overall financial position. Again, copies of the accounts are sent to the devolved authorities for presentation to the devolved legislatures for information.

Paragraph 5 deals with trading accounts produced under section 5 of the Exchequer and Audit Departments Act 1921. So far as the Agency is concerned, it is envisaged that this provision will be the basis for the separate Meat Hygiene Service accounts. Since the Meat Hygiene Service will operate across Great Britain, the Treasury is required to seek the consent of the other relevant authorities and consult the Agency before directing the form of these accounts. However, it is not necessary to seek the consent of any relevant authority not affected by the operations in question (i.e. Northern Ireland is not involved since the MHS does not operate in Northern Ireland).

Paragraph 6 ensures that the Comptroller and Auditor General has the power to make reports to the devolved bodies for the purposes of value for money audit under the National Audit Act 1983.

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Prepared: 26 July 1999