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Baroness Byford: I speak to my Amendment No. 71 which asks the Government to include the words,

As the Bill stands, the agency has no duty to attempt to control either its own costs or the costs caused to others by its requirements, unless I misread the Bill and perhaps the noble Earl, Lord Baldwin of Bewdley, will tell me I have.

We feel that is wrong from the point of view of the taxpayer who, particularly in Scotland, Wales and Northern Ireland, will be able to see an annual sum of money paid over to the agency for the support of those activities that cannot be funded by the levy. It is also wrong from the point of view that the levy payer needs to know that he will not be paying an ever-widening and deepening black hole. For instance, on 29th June this year, in a Written Answer to me, the noble Lord, Lord Donoughue, confirmed that it was some 36 months since any spinal cord was found attached to a bovine carcass during an abattoir inspection. That is indeed good news that we all welcome. However, I understand it to mean that the measures put in place to stop any BSE-infected meat leaving abattoirs have been successful. I hope that powers will be considered even now as to how that burden of measures can be reduced without risking the increase of infection.

We believe it is both possible and reasonable for the agency to have continuous regard to the control of costs without jeopardising the successful pursuit of food standards.

Perhaps I may pick up on a point that was raised earlier. I too would like to speak briefly on the effect that some of the requirements will have for businesses in long-term planning. It is not easy to switch and direction needs to be given so that they can plan ahead. It affects small businesses more than larger businesses. I should like to include those as well in my remarks.

8.15 pm

Lord Luke: As regards Amendment No. 73, the Government's Better Regulation Task Force stated in its report on the principles of good regulation that government should be satisfied that regulations are necessary, fair, effective, balanced and enjoy a broad degree of public confidence. It prescribed five principles against which regulations and their enforcement should be measured--transparency, accountability, targeting, consistency and proportionality.

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The Minister has already acknowledged the importance of transparency in a previous response. The noble Lord, Lord Clement-Jones, mentioned proportionality. It would be a good thing to see all those five on the face of the Bill.

Baroness Hayman: This is an interesting group of amendments. I have some sympathy with most of the points that have been made and the issues raised. I hope that I can reassure the Committee that it is not necessary to amend the Bill in order to ensure consideration of the broader points that have been brought forward.

I start with the issue of the long and short-term costs to public health. The noble Earl was right to point out to us that the long- term effects of nutrition and the effects on public health are something that all of us, throughout the debates on this Bill, recognised must be taken into account.

I have to say in my boring draftsman role, that since potential long-terms costs to public health are by their nature costs as well as being risks to public health, they are specified in subsection (2)(a) of the Bill as it stands. The agency will of course be required to consider all of those before exercising any power. It would be wrong to give greater emphasis to one type of cost rather than another. I hope that the Committee will be reassured that the agency, when assessing costs, is not only taking account of immediate costs to business, which is one side of the debate that we have had on this group of amendments. Also and equally it must take account of the costs to public health, both long and short term, if it fails to take action.

By virtue of its main objective of protecting public health, the agency will have a clear remit in relation to all risks connected to food consumption. It should ultimately be for it to determine its priorities within that framework and to do some balancing of the different risks. That is one of the problems which confronts decision-makers all the time. If one were dealing only with one set of risks on one plane, then one can see quite simple directions of decision-making. It is when one is trying to balance and deal with different types of risk over different time frames that come together in the same set of decision-making that the difficulties occur.

Amendments Nos. 71, 73 and 73A are all, in various ways, about the principles of good regulation. As the noble Lord, Lord Luke, suggested, principles of better regulation have been established. I hope that it will reassure him to know that the agency, as a government department, will be required to observe the principles of better regulation, including the need to take a balanced and proportionate action to draw up a full regulatory impact assessment in proposing new legislation to Ministers. The Bill goes significantly further than that, however, by expressly giving force to these principles. In particular, Clause 23(2)(b) requires the agency to take account of the likely costs and benefits of the exercise or non-exercise of any power. This, together with the duty in Clause 22(2)(a), to consult wherever possible before acting, should ensure that the agency is alert to the consequences of its

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proposed action, in particular the likely burdens on business. Indeed, in Clause 22, the requirement to take account of risks goes further still, since that would include risk to businesses as well as to health.

The better regulation principles to which the noble Lord, Lord Luke, referred will represent an important basis for assessing the effectiveness of the agency as a regulatory body. Where they are not already given explicit force in the Bill, we expect the agency to make use of its statement of objectives and practices to expand upon them as necessary. We made clear that this would be done when we consulted on the draft Bill at the beginning of the year. However, in some respects the Bill as drafted already goes further than the better regulation principles themselves.

Turning to the issue of small producers and the need to encourage small businesses, the Government certainly recognise both their importance and the particular difficulties that regulation can impose on them. There was a short reference to that when we were talking about the costs of photocopying, for example, falling on a small rather than a large business. Amendment No. 73A adds nothing, however, to the substance of the Bill. Clause 23 already requires the agency to take account of risks, costs and benefits, which would include the probable effect on small businesses. There is, thus, a mechanism for taking into account the risks to businesses as well as those to public health. The agency would be accountable for any failure to observe these requirements.

When speaking to these amendments, the noble Lord, Lord Clement-Jones, referred to the issue of Ducket's Cheese, as he did on Second Reading. He recognised that the appeal judges agreed with the judicial review judge that the cheese that was held in that case was reasonably regarded as unsafe and that an emergency control order was indeed a proportionate response. We have discussed that issue of proportionality. Of course, we recognise the effect that an emergency control order may have on a small business but the power is used very rarely. Ultimately, however, that power is needed to protect public health. I have to say to the noble Lord that he should consider his argument about the proportionality principle which may sometimes not be immediately at one with the issue of preventing burdens on small businesses.

This is the difficulty to which I was trying to refer earlier when suggesting that, if one were only dealing with one set of risks at any one time and there were only one set of factors to consider, decision-making would be greatly simplified. A precautionary approach to issues of food safety is, as the noble Lord suggested, absolutely the right approach to take. It is certainly the approach that the Government are taking now. It is the approach that we would expect the food standards agency to take.

However, I would suggest to the noble Lord that it is not sensible to insert the words “the precautionary principle" into the Bill. There are definition problems here. The “precautionary principle" describes the process by which we pursue the protection of public health, a process by which we approach decision-making, but it does not have a clear definition or

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ground rules for its application. This means that if we placed his amendment on the face of the Bill, there would be unconditional acceptance of the precautionary principle as such.

We would all be aided by some greater definitions other than the one relating to the environment from which we are working here. We are looking at this point and I believe it will be considered sometime next year by the codex alimentarius. Common understandings of terms like the “precautionary principle" would be very helpful. However, I hope it will be reassuring to the noble Lord, Lord Clement-Jones, if I make clear that we believe this clause already provides the necessary basis on which to follow the kind of precautionary approach that I have described. Subsection (2)(a) reads that the agency shall take into account:

    “the nature and magnitude of any risks to public health, or other risks, which are relevant to the decision (including any uncertainty as to the adequacy or reliability of the available information)".

That is one of the issues at the forefront of the precautionary principle. In simple language, if there is any doubt about the evidence or lack of it, the agency should proceed with caution. So while I very much accept and agree with the noble Lord's argument that this is the type of approach that we should adopt in the workings of the agency, it is envisaged in the legislation as drafted.

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