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House of Lords Hansard
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General Food Law (Amendment etc.) (EU Exit) Regulations 2019
06 March 2019
Volume 796

Considered in Grand Committee

Moved by

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That the Grand Committee do consider the General Food Law (Amendment etc.) (EU Exit) Regulations 2019.

Relevant document: 17th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee B)

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My Lords, I thank noble Lords for their consideration of the draft regulations—the General Food Law (Amendment etc.) (EU Exit) Regulations 2019, the General Food Hygiene (Amendment) (EU Exit) Regulations 2019, the Specific Food Hygiene (Amendment etc.) (EU Exit) Regulations 2019 and the Contaminants in Food (Amendment) (EU Exit) Regulations 2019.

The Government’s priority is to ensure that the high standards of food safety and consumer protection we enjoy in this country are maintained when the UK leaves the European Union. These instruments are crucial to meeting our objective of a functioning statute book on exit. They are made under the powers in the European Union (Withdrawal) Act 2018 to make necessary amendments to the overarching food regulations so that we can continue to protect public health from risks that may arise in connection with the consumption of food. These instruments correct deficiencies in those regulations.

I wish to be clear that no policy changes are made through these instruments, nor is there any intention to make any at present. These instruments propose a transfer of responsibilities to UK entities to support a UK-centric regulatory regime. Responsibilities incumbent on the European Commission are designated to Ministers in England, Wales and Scotland, and to the devolved authority in Northern Ireland.

The European Food Safety Authority, EFSA, is the EU body that provides scientific advice on food safety. These regulations designate EFSA responsibilities to the food safety authority. This will be the Food Standards Agency, the FSA, in England, Wales and Northern Ireland, and Food Standards Scotland, which has a close working relationship with the FSA. The draft instruments being considered today will ensure that the following key EU regulations on food and feed safety and hygiene will function effectively on exit day.

Regulation 178/2002 lays down the fundamental principles that underpin food law and the essential requirements that food and feed businesses must comply with, as well as describing certain functions to be carried out by EU institutions. A key principle set out in the legislation is that food placed on the market must be safe to eat. It also provides for other fundamental safety and hygiene requirements, including rules and expectations on traceability. It establishes a requirement for open and transparent public consultation if food law is revised.

Regulation 852/2004 contains the basic food hygiene requirements for all food businesses. It sets out the general requirements for the hygienic production of foodstuffs through the provision of effective and proportionate controls throughout the food chain to the final consumer.

Regulation 853/2004 relates to the specific hygiene rules for products of animal origin, and Regulation 854/2004 relates to the organisation of official controls for products of animal origin. These specific hygiene rules set out the requirements and specific health standards for establishments on land or at sea for slaughtering, processing, storing or transporting products of animal origin.

The regulations on chemical contaminants protect consumers by ensuring that they are protected from the adverse effects of exposure to contaminants that may be present in food. Chemical contaminants may be present in food from the environment or as a result of growing conditions. The legislation sets out maximum limits for certain contaminants in food and provides a clear legal basis on which enforcement action may be taken, where necessary, to protect consumers by facilitating the removal of unsafe food from the food chain.

These instruments do not introduce any changes in how food businesses are regulated or managed. They do not introduce extra burdens and therefore provide continuity and clarity for businesses and continued protection of consumers’ interests. It also means that non-compliances can continue to be addressed in the same way. These will ensure a robust system of controls that will also underpin UK businesses’ ability to trade both domestically and internationally.

It is also important to note that the devolved Administrations have provided their consent for these instruments. Furthermore, we have engaged positively with the devolved Administrations throughout the development of these instruments. This ongoing engagement has been warmly welcomed. A full public consultation indicated support for the proposed approach to retained EU law for food and feed safety and hygiene. These instruments therefore constitute a necessary measure to ensure that the important food safety regulations will continue to work effectively after exit day. On that basis, I beg to move.

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My Lords, I thank the Minister for introducing these SIs, which replace references to the EU in regulations with references to the UK, and as such are relatively innocuous. The first question I want to ask was raised in Grand Committee last Wednesday by the noble Lord, Lord Rooker, who is in his place. Is the Minister satisfied that all relevant regulations on these important food safety matters have been copied over into the SIs we are discussing today? The noble Lord found some SIs where some important matters had not been copied over. Perhaps he has spotted something which I have not in these regulations, and we will hear from him in due course.

Secondly, the general food law SI, the general food hygiene SI and the contaminants in food SI allow only one hour for a single officer in a local authority to familiarise himself or herself with the new regulations and disseminate the information to staff and stakeholders. I wonder whether it is a coincidence that they will have to do it on April Fools’ Day, the first working day after Brexit. The problem is that cuts to local authority funding have meant that some authorities no longer have any full-time food and feed officers to take charge on this issue, so who is going to do it, and who is going to pay for it? How can they do it in only one hour? Is this not just a covert way of ensuring that an impact assessment does not need to be produced? All those who responded to the consultation claimed that this cannot be done in so short a time and will certainly cost more than the Government estimate, and the Government have not offered to cover these costs. How did the Government reach the conclusion that the implementation time for businesses would be so staggeringly short?

The food hygiene SI allows a 21-month implementation period for food labelling changes from EU to GB or UK, but even here, the industry has concerns that some small businesses may struggle to comply. Other respondents to the consultation raised concerns that a common framework across the whole of the UK has not been properly addressed. The NFU pointed out that some farm holdings cross borders and animal feed moves across the Welsh and Scottish borders frequently. Is the Minister satisfied that devolution issues have been settled to the satisfaction of the Welsh and Scottish Governments?

Thirdly, can the FSA and its Scottish equivalent, the FSS, fulfil their additional responsibilities? Do they have enough staff and resources? Can the Minister respond to these concerns? Other respondents are concerned about how the Government intend to provide a suitable replacement for the risk-management function for food safety currently undertaken by the European Food Safety Authority. Can the Minister say what is being done about this? The whole of the food safety regime is based on risk management, and it is far from clear who will be responsible for this after Brexit and whether they have adequate resources. The National Pig Association is keen to retain a close working relationship with the EFSA to ensure that we in the UK receive food problem alerts in good time to take effective protective action against livestock diseases coming to us from the continent. This will also be a concern for other livestock producers. Can the Minister say what arrangements for this have been put in place?

I hope I will be forgiven for straying slightly beyond these SIs to some relevant matters, and I hope the Minister will find my comments useful for the future. If we are to leave the EU, the Government have always said that there is no danger of reducing our food standards and that, on the contrary, it gives us an opportunity to improve them. That is why I am surprised we have heard nothing yet of the Government’s plans to do that. One thing I would have wanted to improve in the common agricultural policy is to link food production and trade policies to the better dietary health of the European population. So here is a challenge for the British Government. They can start with two things, which I put down as markers for the future. First, they should ban the use of nitrites in processed meats, such as bacon and ham, in favour of other processes which have not been designated as carcinogenic by the World Health Organization, as nitrites have been, but which preserve meat just as well and protect it from botulism just as effectively.

Secondly, they should introduce supply-side regulations to reduce the UK population’s intake of free sugars by two-thirds to comply with the Scientific Advisory Committee on Nutrition’s recommendations, which make clear that overconsumption of sugar is responsible for the crisis of obesity, diabetes and all their associated preventable diseases, and for tooth decay in children, which is responsible for most of their hospital stays. Agricultural and trade policy are central to the supply of sugar, and amendments could be effective in changing the market for sugar before it even reaches the consumer. Reformulation programmes, sugary drinks tax and nudges towards behaviour change have their place, but we could make a greater and faster change if we addressed the supply side.

Once they have got all the relevant SIs about retained EU law through Parliament, will the Government look at these two opportunities as a matter of urgency? Has the Minister had any discussions or made any representations from her department to the rest of Government about such measures, as we move into the years after Brexit?

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My Lords, this is my first opportunity to welcome the Minister and congratulate her on her government appointment. I sincerely wish her well for the future.

As for interests to declare, I recently chaired an egg summit for the largest retailer in the country, which is in the register, and of course at one time, along with the noble Lord, Lord Krebs, who is in his place, I was chair of the Food Standards Agency. Before that, I was one of the last food safety Ministers, so I go back a little bit. This is my guest appearance only, at the personal invitation of my noble friends Lady Jones and Lady Smith; if the party leadership find out about it I will be in real trouble, although I can say that I am speaking for myself today since there is nobody else here from the Labour Party. I serve on Sub-Committee B of the Lords process for Brexit. We deal with all the FSA SIs as they come through. That was agreed simply because the chair is my noble friend Lord Cunningham, who was the Minister at the MAFF when we started work on setting up the FSA. I also sit on the Lords environment sub-committee. This morning we had the pleasure of having the chair of the Food Standards Agency and the Minister’s colleague, the Minister for Public Health and Primary Care, with us for an hour to discuss risk assessment and risk management post Brexit.

We are at one with these regulations. I am not going to waste the time of the Minister or of officials with details on the regulations. They provide continuity for people in terms of public health, the legal framework stays the same and there should be no problem with businesses. We were given quite good commitments in public this morning in terms of resources both for the Scottish end and the FSA, dealing with the rest of Great Britain and Northern Ireland, and therefore I do not want to duplicate everything.

There is one area which the Minister and officials might want to take away for the future. There is a lot of concern about local authority performance, and in terms of inspections there is no question about that. Environmental health officers are the unsung heroes of food safety. They do the takeaways and all the bits that people do not normally think about, but that is not politically sexy for councillors, to be honest, and therefore it is one of the first things they will go for chopping. Of course, without them, in terms of managing the situation, the FSA is powerless, because of lack of information.

I am going to deal with only one issue, which I gave notice of this morning. It is an area that we might have a problem with, although I hope we do not, and I doubt that the Minister will be able to give us satisfaction on this but it will then be on the record when I am looking for the audit trail afterwards. It is RASFF, the Rapid Alert System for Food and Feed in the EU. This came about in 1979 so it was not there when we joined the Common Market, as the EU then was. Its membership is 32 countries—that is, the EU and the EEA. The system is not perfect, as the chair of the FSA mentioned this morning, and no one is saying that it is. However, the fact is that it has kept us safe in terms of food safety and has made a massive contribution in the years that it has operated.

Some 46% of RASFF notifications come from the external borders of the EU—that is, border posts and entry points—relating to food. Some 3,800 alerts are issued each year, which means 10 a day are whizzing around Europe. In 2017—I want to put this bit on the record—the top 10 countries of origin that triggered notifications were: Brazil; Turkey; China; amazingly, Spain; the USA; Italy; Iran and Poland. Actually a couple of those countries were in there twice, but they are basically the top 10 from where products were discovered that needed to have the rapid alert system operated. This is detailed in RASFF’s annual report, which is easily available. I do not propose to list all the details but the issues were with poultry meat, fruit and vegetables, and fish. Lots of these incidents related to nut products; there are real issues there sometimes. This is a worldwide issue in the sense of imports to the EU from those countries that are in the top 10.

The top 10 countries in the EU that spot the issues and notify include the Netherlands, Italy, Germany, the UK—the UK is mentioned twice in the top 10 in relation to poultry meat, poultry products, nuts and so on—Spain and Italy. Those are the countries in the EU that issue the alerts. Of the 32 member countries, the UK is the fourth highest for issuing notifications. If one counts follow-up notifications, which are separately listed in the annual report, the UK is the fifth most active member of the alert system. The idea that we are just a minor functionary in this is not on. RASFF’s report shows how vital the system is to the UK and the UK’s contribution to the rest of Europe in sending these reports around to alert people. The alerts are from border inspection posts. Some are for information only, and of course some relate to fraud.

The fact is that this matter will be pretty fundamental once we are out on 29 March, whether with a deal or not. Even with a deal we will go into a transition period, but we will no longer be a member of the EU. The only countries that can be members of the RASFF system, due to its legal structure, are members of the EU or the European Economic Area, and the UK will not be in either of those.

One question has to be dealt with, although I fully accept that the Minister cannot give us an answer. The sifting committee and the EU sub-committee have repeatedly been told: “We will negotiate”, or “We are negotiating so that we can still have access to the system”. It is too late to say, “Well, we can use it later”. The clue is in the title: “rapid alert”. It is an amazing operation which has protected us over the years and one that we will no longer be in. We asked this morning about the state of the negotiations and we keep being told that Defra is negotiating. It was very unfair to ask the chief vet for Defra, who was there, but it would be really useful if we knew that genuine negotiations were going on because this is pretty vital.

If we leave with a deal, we are in the transition period. If we leave without a deal, we are out. Either way, we are out of the EU and out of this system. This is not the only alert system that operates within the European Union. There are others relating to other products, particularly on the animal side, but this is something that is incredibly serious because we import and process a huge amount of food that then gets sent around Europe for more processing. We discovered during the horsemeat situation some years ago the number of times that borders are crossed by products while they are being processed. It is my only concern and one that I think is shared by the European Union sub-committee and the sifting committee. The Minister will be aware that we produced a short note on this. It is the Achilles heel and it really ought to be dealt with before we leave, otherwise we could be high and dry with a lack of information.

My final point is that without information and openness, there are rumours. The whole point about the FSA when it was set up was to rebuild confidence in British food and to be open and transparent. If it is not, it allows rumours to start, with the risk that we will get rumours about alerts we might not be receiving. The media are not stupid; they are looking for headlines all the while. This sort of thing has to be nipped in the bud so that we do not have problems. I do not know what the answer is because once we are out, we are out. We have got something the EU want in terms of information and technology, but being out of the Rapid Alert System for Food and Feed is highly risky. In some ways it is a reason not to leave the EU, but that is for debate on another day. Whatever the Minister is able to say, it needs to be put on the record that this is incredibly serious for food safety, not just for the United Kingdom but for the rest of the EU if we are out of the system.

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I add my congratulations to the noble Baroness on her appointment as the Minister in the Lords for health and social care. I would like to pick up on a point mentioned by the noble Baroness, Lady Walmsley, and to reiterate the point made by the noble Lord, Lord Rooker. I am also a member of the EU Sub-Committee on Energy and the Environment, chaired by the noble Lord, Lord Teverson. We heard evidence this morning from the Minister for Public Health and Primary Care and from Heather Hancock, the chair of the FSA. The point that I want to pin down here is the one concerning risk management because we have heard contradictory statements over the past six to nine months about who is going to be in charge of risk management after Brexit day. What we learned is that at the moment, the arrangement is that EFSA produces the risk assessment, the risk management decisions are taken by the standing committee, on which the UK is represented by the Food Standards Agency—and on only rare occasions are decisions on risk management escalated to the Council of Ministers.

Heather Hancock has proposed, and indeed has set up an equivalent arrangement for post Brexit, so there will be an equivalent of the standing committee in which the FSA on behalf of England, Wales and Northern Ireland, and Food Standards Scotland will make the risk management decisions. That is her proposal. On the other hand, we have been told on numerous occasions that Ministers intend to take risk management decisions in relation to food safety and standards, which of course would take us right back to the old days before the FSA was set up when Ministers got themselves in a tangle when confronted with having to make difficult decisions about risk management and they sometimes got them wrong. I will not go into detail, but we are all aware of the mistakes that were made in the 1990s. I would like to get confirmation from the Minister of what Steve Brine told us this morning; namely, that it is his intention—I do not believe I am putting words into his mouth—that risk management decisions on most issues will be delegated to the Food Standards Agency. I would like confirmation that that is indeed the Government’s position because we have heard contradictory points of view.

That was my main point. My only other point is that I picked up this morning some difficulty over who is in charge in ministerial terms between Defra and the Department of Health and Social Care. I would like confirmation that it is indeed health Ministers who are accountable to Parliament, even if they are not making decisions. The current situation is that the FSA through the standing committee makes the decisions, but health Ministers account for them in Parliament if necessary. They are a kind of conduit from the Food Standards Agency to Parliament. I would like to hear confirmation that that will remain the case after Brexit and that responsibility will not somehow be split between Defra and the Department for Health and Social Care.

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My Lords, I will make some brief comments. I too welcome the Minister to her position. I also particularly welcome the noble Lord, Lord Rooker, coming back to the Opposition Front Bench. I remember great times when he was a Defra Minister and the work he did when the climate change Bill went through.

I will raise two points that relate in many ways to what has been said by the noble Lord, Lord Krebs. Although these SIs make technical replacements to make sure that the regulations work, which I accept and understand, subject to my noble friend Lady Walmsley’s question about what has been left out, the whole crux of this comes back to how the structures that enforce and flow from these SIs will work. Is the Minister satisfied that the Food Standards Agency will be sufficiently independent of political influence when it comes to important decisions about consumer safety, food safety and agriculture? At a time of major incidents, decisions taken by Ministers can be very difficult in their effect, in particular on the food processing industry and indeed the agriculture industry.

The other area concerns our meeting with the Minister this morning at the sub-committee. I was very impressed by the chair of the FSA, Heather Hancock, and what she has achieved over time to put all the systems and people in place, but I was not convinced by the liaison between Defra and the Department for health over these negotiations. It seemed that on the question of systems the Minister was not entirely in touch—I do not mean this over-critically—with the negotiations in this area that Defra has undertaken. It is that liaison on which I would like some assurance.

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I thank all noble Lords for their contribution to this debate on my first SI. I think it is quite unusual for your first SI to involve two former chairs of the independent body that you are in part debating. I shall do my best to tread appropriately carefully.

I shall respond to some of the questions asked by the noble Baroness, Lady Walmsley, about why the instruments deal specifically with these questions and do not think beyond Brexit. I am sure she will know, having experience with previous statutory instruments, that the instruments are responding to the fixing power of the European Union (Withdrawal) Act, which is limited to making appropriate changes to prevent, remedy or mitigate failures of retained EU law to operate effectively, so these instruments aim specifically to ensure that food safety and hygiene legislation functions in a no-deal scenario. I state at the outset that we think it is unlikely that the UK will leave without a deal—indeed, it would be very undesirable—but we must be prepared in all scenarios. I wanted to put on record at the beginning why these SIs were drafted in this specific way, although I know she knows that.

To respond to the noble Baroness’s question about whether we are confident that they have all the necessary read-across from EU law into UK law, we have been very careful to review the EU law in FSA policy areas to check that. We believe we have identified all the EU law that needs to have those connections across.

The noble Baroness asked about the consultation, and this was echoed by the noble Lord, Lord Rooker, regarding the responses about the impact on local government. The SIs were very effective, in as much as the FSA did a full public consultation that lasted six weeks. It should be praised for following that route and for engaging with local authorities and industry. It is reasonable to point out that local authorities are under pressure at the moment, but I think the reason why we have come to the view that it will take a relatively brief amount of time to get familiar with the new legislation is that there are no changes to the vast majority of requirements in the read-across. We are therefore confident that the time that has been predicted in the impact statement is sufficient, so we believe that that impact assessment is robust.

In addition, we wanted to discuss the devolved Administrations and consultation there. We are very pleased that Scotland, Wales and Northern Ireland have provided their consent for these instruments. We have worked very closely in developing them. The principles and rules set out in retained legislation in these SIs are intended to ensure that we have the same level of food safety protection throughout the UK, so that we can have a free flow of trade through it to address exactly the concerns that the noble Baroness raised. However, the FSA is not going to leave it there: it will continue that close working relationship with the Administrations of Scotland, Wales and Northern Ireland so we can be confident that in practice it will be possible to make arrangements to operate a framework of food safety regulation across the UK in whatever exit scenario we may face.

I turn to the important series of questions about RASFF risk assessment and management in a potential no-deal scenario, asked by noble Lords with great experience. I know there has already been something of a debate about this in Select Committee with my colleague the Minister, Steve Brine, so I suspect I will repeat some things that he has said—perhaps not so eloquently, but I will do my best.

As the noble Lord, Lord Rooker, rightly said, securing continued access to and participation in the RASFF system after leaving the EU is one of the UK Government’s top food safety priorities. We recognise its importance for UK food safety, but we also recognise the important role that the UK has played in establishing that system. We are proud of that, and would like to continue to play a role. We are pressing for full access to that system in our negotiations with the EU, and I am sure that is what my colleague the Minister said earlier. As he would have said, though, the exact arrangements for participation in RASFF are still a matter for the next phase of negotiations. It is therefore hard to provide any further detail on that, as I know noble Lords will recognise. We recognise the importance of it and of a continued strong relationship with the EU.

In communications back to us, the EU has recognised the important role the UK played in the establishment not only of RASFF but of equivalent food standards bodies in the European Commission, so I think the close relationships we have there will bear fruit. They are not just close relationships at a European Commission level but scientific relationships, which tend to weather political storms a little better than political relationships, if I may say so, so I have a sense of optimism about this. We must be clear that negotiators recognise that there is no precedent at this point for third-country membership of RASFF, but we will continue to make the point that we have an unusually strong contribution to make to it and therefore there is value in us engaging with it.

The mutual benefits are an important element of maintaining food safety for both parties, and we think it is important for the EU, as well as for the UK, that this close trading relationship can continue without compromising confidence in food safety. As the noble Lord, Lord Teverson, pointed out, FSA officials have been working closely on this point with Defra officials to ensure that there is a seamless approach to dealing with the challenge of exit, and that contact is maintained at not only a policy and legal level, but, most crucially, an operational level. That will need to continue as we go through this next period.

I now turn to what will happen in the undesired scenario of no deal, where we may well have to cope without access to RASFF, even if it is in the short term. Noble Lords will have heard earlier today from Heather Hancock, the chair of the FSA, on the plans she has put in place to ensure we have robust protections and operational measures in place to ensure that food safety standards are in no way compromised, no matter what the outcome of EU exit may be. In the first instance, we have ensured that the FSA is increasing the level of engagement with the International Network of Food Safety Authorities, INFOSAN—which, noble Lords will know, is managed jointly by the FAO and the WHO—to provide the UK with an extensive reach for communicating food safety issues to INFOSAN. Indeed, we believe that, with our extensive experience, we have done work to improve the effectiveness of that organisation.

We have to bear in mind that we have effectively been managing food risk from imports from and exports to non-EU countries through some of those bilateral and non-EU routes, so we can have confidence in the effectiveness of the FSA as a world-leading regulator—up until this point, in any case. Nevertheless, there has been no complacency in this. The FSA has put in place a number of measures to strengthen the domestic risk assessment and risk management measures. To do this, it has recruited additional staff involved in risk assessment and risk management, implemented an expanded role for the independent scientific advisory committees, which are now being strengthened by recruiting new experts and establishing three new expert groups, and expanded access to scientific experts who can provide scientific advice and other scientific services to inform our work on a contract basis, including by expanding our register of specialists. It has ensured that it will put in place a slightly new system that is based on current practice but includes: a structured separation of risk assessment and risk management; a new executive advisory committee that draws together officials from government; an expanded role for the independent scientific advisory committees, which, as I have said, have been strengthened by recruiting new experts; and a new process for authorising regulated products, such as food and feed additives, enzymes, flavourings, GM food and feed, and other novel foods.

The noble Lord, Lord Krebs, raised an important question about the independence of the FSA and the role of Ministers. It is right to assure him that the response he received from my honourable friend Steve Brine in Select Committee is right. While food safety decisions will be made by Health Ministers, the FSA and FSS will continue to lead and make risk management decisions during food safety incidents, providing risk management advice to the enforcement authorities, which take action. Of course, this independence is set out by statute. No proposal is in place to change that. All food safety and risk management decisions will be proportionate and evidence-based. They will be based on a package of supporting analysis in line with the fine tradition the FSA has of openness and transparency. We can be proud of the FSA’s tradition of doing that.

I hope I have answered the questions raised. On that basis, I beg to move.

Motion agreed.