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Lord Clement-Jones: I thank the Minister for his reply. References to the Liberal Democrat manifesto have been rife this afternoon and we welcome any publicity for what was a fine document! Perhaps, however, the Minister and I should debate the principles of federalism on another occasion. The essence of the matter is, of course, that the principles by which a body is going to be run and established and take its decisions need to be set out in a clear manner. How those decisions are taken in practice is undoubtedly a matter for federal action as regards Scotland, Wales or Northern Ireland. We believe that the same principles should apply.

The Minister produced his best argument when he addressed the aspect of specialist consumer committees; namely, that in some cases it might not be appropriate to have that balance. They were specifically designed to be specialist consumer committees or specialist producer committees. Therefore it would be inappropriate to seek the balance that I have mentioned. As far as the general regional committees are concerned, there may well be other arguments. At this stage it would be best to consider carefully what the Minister has said and then debate the Liberal Democrat manifesto at a future date. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment Nos. 105 to 110 not moved.]

Schedule 2 agreed to.

Schedule 3 [The Agency's functions under other Acts]:

[Amendments Nos. 111 and 111A not moved.]

Baroness Byford moved Amendment No. 112:

Page 28, line 6, at end insert--
(“( ) When making an order under section 42, the Secretary of State must specify the period for which the Agency is empowered to exercise the default powers.")

14 Oct 1999 : Column CWH164

The noble Baroness said: The Bill amends Section 42 of the Food Safety Act 1990 and empowers the Secretary of State to direct the agency to carry out the enforcement functions of an enforcement authority that has failed to meet its obligations. We suggest that there should be some time limit, that it should not be open-ended and that, if it were so, it would give the agency increasing powers which could be used long term. The amendment would ensure the agency does not carry out these functions indefinitely but for a limited period as specified by the Secretary of State. I beg to move.

Baroness Hayman: Perhaps I may reassure the noble Baroness on the issue that lies behind this amendment while not accepting the amendment itself. The default provisions we are discussing, which will be available to the Secretary of State, are intended for use only in the last resort and where other channels of action have failed. I do not expect them to be exercised by the agency under the authority of the Secretary of State on anything but the rare occasions where there is a serious failure occurring over a period of time which it has not been possible to rectify through the agency's own powers of standard-setting, monitoring, audit and advice.

It may prove further reassuring if I point out that the power may only be exercised in cases where a local authority has failed to discharge a duty, rather than failed to do anything which in the agency's opinion it should have done. Therefore, it is not a matter of what is called in other circumstances “creeping competence". The fact that the Bill enables the Secretary of State to name the agency as the default authority under these provisions does not create any new powers. Rather, the Bill makes a technical change designed to ensure that the powers currently available to Ministers to take default action through their officials can continue to be exercised by the Secretary of State once the relevant officials transfer to the agency.

I would certainly expect the agency, in cases where it might be directed to take over the work of a failing local authority, to do so with discretion and for no longer than is absolutely necessary. It lies at the root of our approach to general food law enforcement that local authorities will retain primary operational responsibility and that their independence of action will, as far as possible, be respected.

Where I am not convinced is to the practicality of Amendment No. 112, which would require a time limit to be applied to any authorisation to exercise default powers. As I have already explained, these powers will be exercised in very exceptional circumstances where a serious lapse has occurred. In such circumstances, I suspect that the time required to resolve the problem is unpredictable by us in this Committee at this time. The consequences of a requirement to set a time limit could well be that it is over-estimated and that a new order might well have to be made to rectify the original limit. I hope I may have given the noble Baroness some reassurance that there are limitations already inherent in this power and that, on that basis and in light of

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what I believe would be practical difficulties of putting a specific time limit, the noble Baroness will feel able to withdraw this amendment.

Baroness Byford: I thank the Minister for her full response. When she said “only in the last resort" I began to think that if my noble friend Lord Mackay were standing here he might well be responding slightly differently following our discussions on the opening amendment this afternoon!

I appreciate that it applies only when a local authority has failed to discharge a duty. To a certain extent I obviously accept that it is difficult to put a time limit on because it might vary, depending on what sort of duty has not been discharged. It was a probing amendment and I am grateful to the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6 p.m.

Baroness Byford moved Amendment No. 113:

Page 28, line 6, at end insert--
(“( ) The Agency shall recover in full from the food authority the actual costs it has incurred when acting in default.")

The noble Baroness said: Amendment No. 113 would require the agency to recover its actual costs for acting in default from the enforcement authority which has failed to meet its obligations. During the past two days in Committee we have talked about the vast costs of running the agency. That is the reason behind the amendment. It would provide the local authority with an incentive to monitor the agency's charges and to exert pressure on it for them to be kept as low as possible. Again, in Committee earlier we talked about the fact that in some instances, particular the Meat Hygiene Service, charges are made and therefore anything that helps to keep the costs within reason is the purpose behind my amendment. I beg to move.

Baroness Hayman: I understand the motivation behind the amendment as explained by the noble Baroness. The amendment would, in effect, require the agency to recover from the failing authority all of the costs of carrying out default action and not give the authority control over the agency's expenditure.

Although I sympathise with the idea that an authority which has failed to discharge its duties to the consumer should be required to meet the costs of that failure, especially in the serious circumstances that I described when speaking to Amendment No. 112, as a general rule the taxpayer as a whole should not pay for the failings of the local authority. However, I do not believe that it would necessarily be appropriate in every case. There may, for example, be instances in which a problem of a very unusual nature had occurred outside the bounds of a local authority's normal enforcement responsibility. That problem might well have placed some increasingly unmanageable burden on the local authority in question, even though it might have been acting in good faith.

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In those circumstances, therefore, I believe that the agency might well wish to take a sympathetic view and waive some or all of the costs arising from a default action. I suggest that the power to recover costs--and that power does exist--lies with the agency and it can do it. The provision as it stands at the moment means that the agency does not have to recover the full costs in every case. That would be the general rule, but we believe that leaving some flexibility for what would be in any case very unusual circumstances and might be unusual in the sense of putting an overwhelming burden on the particular local authority, would be a sensible course of action. On that basis, I hope that the noble Baroness will feel able to withdraw the amendment.

Baroness Byford: I thank the Minister for her response. I felt that she understood the problem but did not wish to accept my amendment, which asks for full costs. I will certainly take it away and give it some thought and we may have an opportunity to discuss the implied desire behind it, even if the wording is perhaps too stringent for the Committee at this stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Byford moved Amendment No. 114:

Page 28, line 6, at end insert--

(“Section 45 (regulations as to charges)

. No regulations to which this section applies shall be made (whether alone or with other regulations) by or in connection with the Agency unless a draft of the statutory instrument containing the regulations has been laid before, and approved by a resolution of, each House of Parliament.")

The noble Baroness said: The effect of this amendment would be to increase the level of Parliamentary scrutiny of the agency's charges, by making the Secretary of State's regulations requiring or authorising charges subject to the affirmative procedure in both Houses of Parliament. I beg to move.

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