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Lord Rowallan: My Lords, I support my noble friend Lady Byford. As noble Lords recall, I have spoken at every stage of the draconian powers in the Bill. Each time the Minister has rebutted the argument with the perfectly sensible answer that the Bill provides for "reasonable" this or "reasonable" that, and therefore why should anyone be unreasonable.
"Reasonably" and "proportionately" are probably the two most important factors in an efficient enforcement system. I see no reason, therefore, why we should not support wholeheartedly my noble friend's proposal and have it written on the face of the Bill. I would go further. It should probably be part of the general responsibilities of the agency and it should be written in Clauses 22 and 23 as well as Clause 11.
I support the noble Earl, Lord Radnor. Many small processing plants have special rules. If someone from an enforcement agency walks in unaware of those rules, and the owner is not present to stop anything untoward happening, the whole production line can be ruined because someone has made a simple mistake. We all know that no one will do that intentionally, especially a representative from the agency, but it could happen. The Minister will probably respond
Viscount Thurso: My Lords, perhaps I may refer to what I hope will be the least contentious in this large group of amendments, Amendment No. 16, which I hope the Minister will move shortly. The noble Baroness has written assuring us that the amendment is purely technical. One always wants to go behind purely technical and consequential amendments! However, given the time, and the other amendments to be considered, we shall leave that for the time being.
Amendment No. 14, moved by the noble Baroness, Lady Byford, seeks to insert into the Bill the words "reasonably and proportionately". I was most taken with the remarks of the noble Countess, Lady Mar, and I am grateful to her for drawing to our attention the fact that from time to time the European Union has considerable value. The code which is set up and to which she drew our attention could well serve as an extremely good model for this country.
No one wants officials to be officious; we want them to do their job properly, reasonably and responsibly. The question is whether the amendment would achieve that and I am not entirely sure that it would. Perhaps the Minister could comment, but I should have thought that all officials were under a general duty to be reasonable in their behaviour.
I believe that there appear somewhere in the Bill, although on flicking through I cannot find them, the words "reasonably practicable". I have wondered from time to time how something that is practicable cannot be reasonable, or if it is reasonable it cannot be practicable. But perhaps that is entering into the difference between "may" and "shall" and so forth.
Amendments Nos. 15 and 17 seek to move subsection (6) from Clause 11 to Clause 14. The noble Baroness brings an interesting point before us. I believe that the subsection is in the right place if for no other reason than the fact that subsection (7) follows on. That subsection makes it a criminal offence for any information to be divulged. If subsection (6) were moved to Clause 14, perhaps subsection (7) would not apply.
The crucial issue is not so much how the information is gathered--it should be gathered reasonably and proportionately--but that having been gathered it should not be disseminated illegally and people should have reasonable protection.
Amendment No. 18 was introduced by the noble Earl, Lord Radnor, and he had considerable support around the House. It is an important amendment, but I hope that he will not press it to a Division tonight. Equally, I hope that the Minister will give considerable assurances. From my experience working in the catering industry and having environmental health officers no doubt doing a thorough and reasonably balanced job in inspecting my kitchen, I know how irritating it would be if they did not put on the gloves, hat and boots provided. It is important that whoever is coming to inspect is obliged to maintain the standards which the plant wants to impose on its employees. I should have thought that that would be the case, but if not I hope that the Government will take away the proposal, look at it and see whether they can satisfy the noble Earl's point.
Lord Hunt of Kings Heath: My Lords, this has been an interesting debate. Noble Lords have expressed concerns that officers of the agency will use their powers in an untoward way. I hope that I can convince noble Lords that there are sufficient provisions in the legislation and in the general conduct which one would expect from such a public agency and reassure them that their fears will not be realised.
I turn first to perhaps the least contentious amendment, Amendment No. 16, standing in the name of my noble friend Lady Hayman. This is a minor consequential amendment arising from one of the changes made in Committee. Having added the new Clause 11(4)(c) allowing authorised persons to take samples from any food source found on any premises, it follows that obstruction in carrying out these duties should be included as an offence under the provisions of Clause 11(8)(a). It is unfortunate that this was not picked up at the time and I apologise for the omission. However, it is a minor technical point.
I turn to Amendment No. 14 concerning a duty on the agency to act reasonably and proportionately in conducting what the Bill terms as "observations" under Clause 11. First, I confirm the point raised by the noble Viscount, Lord Thurso, that the agency's authorised officer will be bound by the general duty, under public law, to behave reasonably and exercise a duty of care.
It follows that I agree entirely with the spirit behind the amendments. In the limited cases--and I stress "limited cases"--where the agency sees the clear need to resort to the powers of entry, it would most certainly be expected to exercise them with clear regard to the potential impact on the food business.
The issue was debated at some length in another place, after which the Government brought forward a number of amendments specifically to address concerns expressed about the way in which those powers might be used. I believe that the changes did a great deal to guarantee that appropriate safeguards are attached to the specific powers in this clause.
At a more general level, the agency will be required by virtue of Clause 23 to take account of risks, costs and benefits in the exercise of its powers. I have no doubt that the agency will wish to elaborate, perhaps in its own statement of objectives, on how the principles will be applied in the specific area of surveillance. And we have already made it clear that the agency will prepare guidance to its authorised officers on the proper use of these powers.
I hope that I have managed to reassure noble Lords on the way in which these powers will be exercised by the agency. I now turn to the amendment spoken to by the noble Earl, Lord Radnor. I do not believe that he has raised a small matter; it is an important matter. I have sympathy with his aims in the amendment. I agree that it would be wholly invidious for an officer of the agency to put business at risk by behaving unreasonably or carelessly. Like enforcement officers themselves, the agency's officials undertaking enforcement monitoring should have proper regard for the needs of the business.
The agency's duty under Clause 23 to act in a reasonable and proportionate manner would, I suggest, include observing hygiene requirements in conducting monitoring visits. And it is self-evident that its authorised officers would have to comply with the law on hygiene matters. Furthermore, it would be in breach of its main objective of protecting public health if it failed to do so.
As any person accompanying an authorised officer of the agency would have a direct interest in the public health purpose of the visit and would be present at the agency's request, the same considerations would apply to that person as well. The noble Earl asked who the accompanying person might be. It is likely he could be a technical expert or an official of the European Union who might be auditing the member state's enforcement under EU provision.
I now turn to the specific wording of the noble Earl's amendment. We do not have a provision of this kind in food law generally and I believe that it would be inconsistent and unnecessary to do so here. It might be that the amendment as worded would leave it open to misuse, with some businesses imposing elaborate rules to prevent entry. However, I hope that I can reassure the noble Earl.
Enforcement officers from food authorities are required to have regard to code of practice 9 made under Section 40 of the Food Safety Act 1990 on food hygiene inspections when carrying out their duties. This code requires officers to observe,
Where certification of fitness to work is required by product-specific regulations, this takes the form of a certificate signed by a medical practitioner or occupational health nurse. Those are the kind of records to which Clause 11 would permit access. I remind noble Lords that people employed by food businesses who carry serious infections transmissible through food pose a potential danger to public health. There are, therefore, good public health reasons for holding relevant information about the health of employees.
I must emphasise to the noble Baroness that we do not envisage that the agency will, as a matter of regular routine, be examining records of this kind. It will mainly be interested in looking at food itself. The need to use that power will be very rare, but our approach is a precautionary one. It is possible that in the light of a particular food safety incident or emergency the agency will need to look at statutory health records. I do not believe that that is unreasonable.
Amendment No. 17 in the noble Baroness's name refers to the agency's enforcement monitoring role. While the agency may need to visit local authorities to look at how they carry out their enforcement responsibilities, it will not routinely involve visits to food premises to examine their records. However, it may be that in some cases, as part of the monitoring activity, the agency will wish to follow up checks on local authority performance by visiting food businesses where enforcement is being carried out.
The nature of the visits for enforcement monitoring purposes is, therefore, likely to be much more limited. They are there to check that the local authority is doing the job properly. Powers to inspect and copy health records do not therefore appear in this clause. We recognise that health records are a potentially sensitive matter and we do not believe them to be strictly necessary to monitor the performance of an enforcement authority. I should therefore be reluctant to accept the second amendment which makes the powers too broad in that respect.
I return to the initial point that the noble Baroness made about the respective clauses. I make it clear that Clause 14 relates to the powers to carry out enforcement in relation to the responsibility of those authorities and monitoring their actual performance. Clause 14 is therefore at one remove from the enforcement powers themselves. It seeks to monitor whether the authority concerned is carrying out those responsibilities effectively.
I refer also to the interesting matter raised by the noble Countess, Lady Mar, in respect of the code of good administrative behaviour in relation to EU law. I understand that all the powers she mentioned are general principles of EU law which the agency will have to take into account. The UK's better regulation principles are designed also to apply the same kind of principles as the EU code. As my noble friend Lady Hayman stated earlier, we have already referred to the fact that the agency will follow those principles. I hope that noble Lords will have found that explanation helpful and that they will agree to withdraw these amendments.
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