Select Committee on Delegated Powers and Deregulation Twenty-Sixth Report


28 JULY 1999

By the Select Committee appointed to report whether the provisions of any bill inappropriately delegate legislative power, or whether they subject the exercise of legislative power to an inappropriate degree of parliamentary scrutiny; to report on documents laid before Parliament under section 3(3) of the Deregulation and Contracting Out Act 1994 and on draft orders laid under section 1(4) of that Act; and to perform, in respect of such documents and orders, the functions performed in respect of other instruments by the Joint Committee on Statutory Instruments.



1. This bill implements the proposals in the White Paper "The Food Standards Agency: A Force for Change". There was wide consultation on a draft of the bill which was also the subject of pre-legislative scrutiny by a Commons committee. The delegated powers in the bill are in clauses 17, 25, 27, 30, 31 (the equivalent of clause 30 for Northern Ireland), 32, 33, 40(4) (extension to Channel Islands), 42 and 43(2) (commencement), and are discussed in the Government's memorandum.


2. The Bill establishes the Food Standards Agency as a United Kingdom body. However, responsibility for food safety and standards matters has been devolved to Scotland and Wales, and will be devolved to Northern Ireland (where it is already a transferred matter). As the Government's explanatory memorandum explains, "the Bill therefore provides for the Agency to be accountable to the devolved authorities in Scotland, Wales and Northern Ireland and spells out various detailed arrangements by which the interests of the devolved administrations will be taken into account, including the appointment of members, the creation of directors for Scotland, Wales and Northern Ireland, and advisory committees for each part of the UK. The Government and the devolved authorities concluded that it is desirable for the Food Standards Agency to operate as a UK body because it ensures access to shared scientific resources, avoids the need for costly duplication of bureaucracy and will be conducive to consistency in advice on food safety and standards across the whole of the UK. However, the devolved authorities will remain responsible for enacting food safety legislation in their jurisdictions and will have the freedom to act differently, within their devolved competence, if they so wish. The Bill therefore includes provisions, in clauses 32 and 33,[1] to deal with the consequences of any change in the devolved arrangements."

3. There is as yet no formal mechanism for liasing between Committees of this House and those of the Scottish Parliament and the devolved Assemblies. In the absence of such a mechanism the House will wish to note that the Scottish Parliament and the Health Committee of the National Assembly for Wales have both debated the proposals for the Food Standards Agency and agreed that legislation to establish a UK body should proceed at Westminster.


4. Clause 17 provides for the delegation of two existing delegated powers from the Secretary of State or, where applicable, the devolved authorities, to the Agency. Section 1(1) of the Food and Environment Protection Act 1985 (FEPA) provides for a power to make emergency orders designating areas of land or sea and imposing prohibitions on agricultural, fishing or food processing activities as a consequence of any environmental contamination incident. Any emergency order under section 1 must be laid before Parliament and expires after 28 days unless it has been approved by resolution of each House of Parliament. Section 13 of the Food Safety Act 1990 provides for emergency control orders prohibiting the carrying out of commercial operations with respect to food, food sources or contact materials where there is an imminent risk of injury to health. The procedure followed is the negative resolution procedure. Existing Parliamentary procedures, including the 28-day rule for FEPA Orders, would continue to apply to any use of these powers delegated to the Agency.

5. The Government's memorandum makes clear that both of these emergency powers are designed to be used in a situation of extreme urgency. It cites as a likely example of their use the frequent need for FEPA orders in respect of certain shellfish beds in Scotland because of the risk of Paralytic Shellfish Poisoning. Other examples of past use of emergency orders include a number of such orders following the Chernobyl incident.

6. Furthermore, the memorandum states that "in practice, it is not envisaged that Ministers will want to make use of the powers of delegation in clause 17 immediately, at least until the Agency has demonstrated effectiveness in the use of the powers already available to it by virtue of the Bill. Nor is it expected that the Agency will routinely use the emergency powers without prior consultation with Ministers. The power of delegation does, however, ensure that there will be no procedural inhibition on the Agency's ability to respond quickly in an emergency."

7. The Committee considers that the delegation of the emergency powers in Clause 17 is both necessary and appropriate.


8. Clause 25 is concerned with existing legislation or a rule of law (subsection (7)) which prevents the disclosure to the Agency of information that could facilitate the carrying out of its functions or prevents the publication by the Agency of information which it would otherwise publish under clause 19. The clause allows an order to remove or relax the prohibition which produces that result. Subsection (1) deals with England and Wales, subsection (2) with Scotland and subsection (4) with Northern Ireland. Orders under this clause are subject to affirmative procedure.

9. It is understandable that the bill should be prepared on the basis that only experience will reveal the obstacles. The Government's memorandum states that "in the process of preparing the Bill, existing statutory bars to the disclosure of information which may be relevant to the Agency's functions have been reviewed and, where necessary, specific provision made to remove the bar." It also notes that the power is similar to that provided for in clause 65 of the draft Freedom of Information Bill.[2]

10. The Committee considers that delegation is appropriate and that the Parliamentary control is also appropriate.

11. Clause 27 provides for regulations to require "the notification of information about tests on samples taken from individuals (whether living or dead) for the presence of" food-borne diseases. (There are powers in other legislation to take such samples: these are not affected by the bill.) Subsection (6) requires consultation with the Agency and representative organisations before regulations are made. Subsection (8) sets out who may make the regulations - the Secretary of State, the Welsh Assembly, Scottish Ministers or the Department of Health and Social Services for Northern Ireland. Where the regulations are made for England by the Secretary of State, normal negative procedure is applied and the equivalent procedure is applied where the regulations are made by Scottish Ministers or the Northern Ireland department (see clause 37(5)). The Committee considers that all this is appropriate.

12. Clause 30 provides for orders to regulate animal foodstuffs in Great Britain (clause 31 applies clause 30 to make provision for orders for Northern Ireland) Subsection (2) of clause 30 states that orders may apply or make provision corresponding to any provisions of the Food Safety Act 1990 "including any power to make subordinate legislation or to give directions" and subsection (4) states that an order may be made to protect animal or human health "or for any other purpose which appears to the Ministers to be appropriate". Subsections (5) and (6) deal with consultation and subsection (7) names the appropriate ministers. Clause 37(4) applies affirmative procedure (each House of Parliament, the Scottish Parliament or the Northern Ireland Assembly). The affirmative procedure allows the Committee to accept that in each case delegation and control are appropriate. Orders under the clause may apply to England and Wales but the clause says nothing about consulting the Welsh Assembly; presumably this is because there are standing arrangements for consultation in such circumstances.

13. Clause 32 allows an Order in Council to modify the provisions of the bill relating to (a) functions exercisable by the appropriate authorities (the Secretary of State, the Welsh Assembly, the Scottish Ministers or the Department of Health and Social Services for Northern Ireland); (b) the powers of either House, the Scottish Parliament or the Northern Ireland Assembly; or (c) the constitution of the Agency. This Henry VIII power includes the matters specified in subsection (3) and one of these is the conferring on the appropriate authorities powers to make subordinate legislation "in relation to the Agency or anything connected with the Agency". Subsection (2)(b) places a limitation on the power by excluding clauses 32 and 33 from its scope.

14. Subsection (4) of clause 32 requires the Agency to be consulted about the proposals to use this power and clause 37(6) applies an extended affirmative procedure. It requires approval of the draft Order not only by both Houses of Parliament, but also by the Welsh Assembly, the Scottish Parliament and the Northern Ireland Assembly.

15. As the Government's memorandum states: "The Bill is being considered at Westminster at a time when the Scottish Parliament and National Assembly for Wales have just taken their powers and devolution to Northern Ireland is not yet resolved. The Government has consulted extensively with the devolved authorities in Scotland and Wales and in Northern Ireland and the provisions of the Bill reflect an agreed approach. The Bill was also subject to debate in the Scottish Parliament and the Health Committee of the National Assembly for Wales, who endorsed the creation of a UK body. Nevertheless, it is recognised that in the light of experience of the use of the devolved powers, it might be necessary to make adjustments to the constitution of the Agency or its relationship with the devolved authorities. It is submitted therefore, that it is appropriate to provide a delegated power to make modifications to the Act to adjust the relationship with the devolved authorities. Similar provisions exist in respect of cross-border public authorities in section 89 of the Scotland Act 1998. It should be noted that the clause does not provide for modification of the Agency's functions."

16. The Committee always examines Henry VIII powers with particular care. In this instance the scope of the clause, whilst appearing somewhat wide, is concerned with issues of food standards and designed to permit the effective functioning of the bill in the context of devolution. This fact, together with the demanding special affirmative procedure provided in the bill, makes it acceptable to the Committee. We consider that both the delegation and the control are appropriate.

17. Clause 33 deals with the consequences which would follow if the Scottish Parliament (or the Northern Ireland Assembly) were to pass an Act providing for any functions of the Agency to be no longer exercisable in or as regards Scotland (or Northern Ireland). Subsection (2) allows an Order in Council to make consequential provision including modifying the bill or any other Act. The Government's memorandum explains that "the clause provides for any necessary adjustment to the Act (for example the arrangements for appointment of members, or the financial provisions), and for the transfer of any property, rights, interest and liabilities as a result of the changes in structure. The clause is closely modelled on section 90 of the Scotland Act 1998, which deals with changes to cross-border public authorities within the meaning of that Act in similar circumstances." Again there is a requirement to consult the Agency (subsection (6)) and the requirement that the draft must be approved by five resolutions.

18. The Committee considers that delegation of this Henry VIII power is appropriate (indeed unavoidable) and the control appropriate.

19. Clause 37 contains supplementary provisions about subordinate legislation under the bill. Subsection (1) applies to all the powers in the bill and extends them to allow the making of "supplementary, incidental, consequential, transitional or saving provision" and this is further extended by subsection (2) which allows an order under clause 25, 30 or 31, to include "provision amending or repealing any enactment or subordinate legislation". As clauses 32 and 33 allow the modification of enactments, the only power extended by subsection (1) which does not allow the amending or repealing of enactments is that in clause 27 (notification of tests for food-borne disease) where the extension is clearly not needed. The powers in clauses 25, 30 and 31 are all subject to affirmative procedure - the draft must be approved by each House, if it is made by a U.K. minister; by the Scottish Parliament, if made by the Scottish Ministers; or the Northern Ireland Assembly, if made by the First Minister and Deputy First Minister or by a Northern Ireland Department. The Committee considers that this extension of the powers in clauses 25, 30 and 31 is appropriate and that the Parliamentary control is appropriate as the primary powers are subject to affirmative procedure.

20. Clause 36(4) extends an existing power (section 1(3) of the Food Safety Act 1999) to enable account to be taken of the need to extend the meaning of "premises" in that Act to provide for purposes relating to the bill.

21. Clause 40(4) allows an Order in Council to extend to the Channel Islands an amendment or repeal of the 1990 Act made by the bill. As is customary with extensions to the Channel Islands or the Isle of Man, there is no provision for Parliamentary control.

22. Clause 42 contains a power to make by regulations transitional and consequential provisions and savings. The regulations are to be made by the Secretary of State, the Scottish Ministers or the First Minister and Deputy First Minister as appropriate. Subsection (2) provides that the regulations "may make modifications of any enactment (including an enactment contained in this Act)". Clause 37(5) applies negative procedure (at Westminster, Edinburgh or Stormont as appropriate). While a power to make "modifications" is close to being a Henry VIII power, the power is conferred for transitional purposes only and the Committee accepts that it is an appropriate delegation and that the Parliamentary control is appropriate.

23. The only other power in the bill is a simple commencement power in clause 43(2).


24. There is nothing in the bill which the Committee wishes to draw to the attention of the House.


25. This Bill contains no delegated legislative powers.[3]

1  Which we discuss in detail below. Back
2  We were satisfied with the delegation of that power; see our 21st report, session 1998-99, HL Paper 79. Back
3  This report is also published on the Internet at the House of Lords Select Committee Home Page (, where further information about the work of the Committee is also available. Back

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 1999