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House of Lords Hansard
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Specific Food Hygiene (Regulation (EC) No. 853/2004) (Amendment) (EU Exit) Regulations 2019
16 October 2019
Volume 800

Considered in Grand Committee

Moved by

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That the Grand Committee do consider the Specific Food Hygiene (Regulation (EC) No. 853/2004) (Amendment) (EU Exit) Regulations 2019.

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My Lords, I thank noble Lords for their consideration of the regulations. I am confident that we have the shared intention to ensure that the high standards of food and feed safety and consumer protection we enjoy in this country are maintained when the UK leaves the European Union. This instrument, and the original instrument that it amends, seek only to protect and maintain these standards. Changes are limited to minor drafting amendments to ensure that the legislation is operable on exit day. No policy changes are made through these instruments and we have no intention of making any at this point. This amends a previous EU exit SI, the Specific Food Hygiene (Amendment etc.) (EU Exit) Regulations 2019. Further clarity was required in setting out the authorisation process for products that can be used to remove surface contamination from products of animal origin. The clarification will ensure that the process is robust and can be applied clearly in assessing the risk of new products.

This instrument was made on 9 September under the urgent, made-affirmative procedure, which was considered appropriate to meet the deadline for the European Commission’s third country listing vote on 11 October. It needed to be in place to support the UK’s application for third country listed status with the EU. Third country listed status guarantees that the UK can continue to export animals and animal products to the EU after exit. The application was voted on by the European Commission on 11 October, and I am pleased to report that the vote was indeed in favour of accepting the UK’s application for third country listed status for products of animal origin.

I shall now talk a little about the specific detail of the minor and technical changes made by the instrument. The new instrument makes clear that the responsibility to approve substances that may be used to remove surface contamination from products of animal origin rests with the Secretary of State for Health and Social Care and the appropriate Minister in each of the devolved Administrations. Lack of clarity may affect implementation and has the potential to undermine the responsibilities for authorisation; the instrument therefore rectifies this. The measure introduces no substantive policy changes to what was successfully passed and made in Parliament in March 2019. 

Food business operators are not permitted to use any substance other than potable water or, where permitted, clean water, to remove surface contamination from products of animal origin unless this has been approved. This relates to business establishments that handle products such as meat, eggs, fish, cheese and milk and do not supply to final consumers. Currently, approval for such substances is given by the European Commission, but after EU exit this responsibility will be carried out by Ministers. The amendment to Regulation (EC) 853/2004, made by the specific food hygiene SI, is being further amended to make it absolutely clear that Ministers will be responsible for prescribing the use of any other substances and the process of consulting the Food Safety Authority is retained. That decision will be made based on rigorous, evidence-based and independent food safety advice from the FSA and the FSS.

If, after EU exit, any additional substances are proposed to be approved for this purpose, they will be subject to risk analysis by the FSA, which has established a rigorous and transparent risk analysis process for assessment and approval of any such new substances. Any requests for substance approval would be subject to thorough scientific risk assessment and risk management before being put to Ministers for the final decision. The advice provided to Ministers, and the analysis and evidence on which that advice is based, will be publicly available. All decisions to approve the use of substances to remove surface contamination from products of animal origin will be implemented by means of legislation, thus also providing opportunity for parliamentary scrutiny.

Let me be clear that neither this instrument nor the instrument it amends introduce any changes for food businesses in how they are regulated or run, and nor does it introduce an extra burden. The overall changes to the food hygiene regulations will ensure robust systems of control that will underpin UK businesses’ ability to trade both domestically and internationally.

It is also important to note that we have engaged positively with the devolved Administrations throughout the development of this instrument, and this ongoing engagement has been warmly welcomed. The Welsh Government have provided their consent and the Northern Ireland Civil Service has given its acknowledgement of this instrument. FSA officials have also been in close contact with the Scottish Government regarding these regulations. They have not yet had the opportunity to give their agreement, due to the necessity of having these regulations in place by 11 October, but we expect that to continue in a positive direction. I stress that we are still committed to the intergovernmental agreement accompanying this Act not to normally make EU exit regulations without the agreement of the devolved Administrations where the policy area is devolved in competence. However, as I explained, this is a very minor drafting change to a regulation the Scottish Government have previously agreed.

Finally, I draw noble Lords’ attention to the fact that, in line with informal communications that the FSA has had with the Joint Committee on Statutory Instruments, the agency will, in accordance with the terms of the free issue procedure, be making this instrument available free of charge to those who purchased the earlier exit SI. The Government accept that this instrument should have been made available under the free issue procedure when it was first made, but that did not happen due to an oversight. I apologise to noble Lords for that oversight and confirm that it will be corrected. The Food Standards Agency will be taking action, together with colleagues in the National Archives, to ensure that anyone entitled to a free copy of the instrument under that procedure will, where appropriate, be able to apply for a refund, or otherwise obtain a free copy of this instrument on request, in accordance with the usual terms of that procedure.  

This instrument constitutes a necessary measure to ensure that our food legislation relating to food safety continues to work effectively after exit day. I urge noble Lords to support the amendment proposed to ensure that we continue to have effective food safety and public health controls. I beg to move.

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I thank the Minister for introducing these regulations. I also thank my noble friends Lord Rooker, Lady Jones and Lady Wheeler for carrying the bulk of the food standards instruments that we dealt with before the summer, when we seemed to do a great many of them. As the Minister said, these are important regulations because they address the process for approval of substances that may be used to remove surface contamination from products of animal origin.

As the noble Baroness confirmed, this SI was discussed earlier this year, but a great deal has changed since then, as we all know. We have a completely new Government, though I am pleased to see that the noble Baroness has remained in her job. What has not changed is the uncertainty over whether the UK will leave the EU in the next 15 days or so, with or without a deal, and the impact that could have. For the record, once again, we find ourselves back debating necessary statutory instruments and having to spend time and money putting through legislation in case of a no-deal Brexit.

We all agree that the safety of our food is of the utmost importance to our health and well-being. We have been fortunate to lead the world in food safety, in some areas. We have also had to learn some very hard lessons from our own food scares. We know that food safety must be protected at all costs. Therefore, I share the Government’s commitment to ensuring that there is no change in the high-level principles underpinning the day-to-day functioning of the food safety legal framework. Ensuring continuity for business and public health bodies is of the utmost importance and in the interest of the public. This has been the protection that the EU regulatory framework has afforded us in the UK.

While the Minister assures us that there is no substantive policy change, I need further reassurance. Paragraph 2.7 of the Explanatory Memorandum states:

“Following further policy deliberations, a revised approach to describing the process for approval of substances which may be used to remove surface contamination from products of animal origin is felt to be desirable”.

What does that revised approach consist of if it is not a policy change?

Why was this SI not among those we took through in March? What would have happened if we had left in March and this SI had not been on the statute book? What would have happened to this regulatory framework?

I am not convinced that the SI does not give some leeway for Ministers to approve substances that can be added to our food. I shall be interested to hear how confident the Minister is that the high standard of food safety will be maintained. What additional substances could be approved by Ministers if needed? How will that impact food safety? The safety of our food is hugely important and we cannot get this wrong, so I have made these very brief comments. I do not want to delay the Committee, but I welcome interventions from other noble Lords. We will, of course, not oppose this statutory instrument and I look forward to the Minister’s response.

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My Lords, I shall add a few comments to my noble friend’s remarks on subjects that concern me considerably. I lived through the BSE food crisis. It was the result of what was described at the time as a minor change in the regulations. That minor change cost UK farmers something like £3.75 billion and led to the slaughter of very many cattle. Minor changes to regulations can make an enormous difference. Therefore, we should give this statutory instrument very careful scrutiny. It seems a little rushed, so I should like more explanation of why we have to rush it. It ought to be considered very carefully.

I notice in Hansard the words that the Minister repeated today: “for the moment”. That worries me slightly. What does it mean? Is there some intention to change things in the near future and is this SI just a means of getting something through fast, as it is necessary for the moment?

My concerns about this minor change in regulation are not simply about the food safety implications, although they are enormous, but about changes to the substance used to remove contamination from animals for human consumption. That can mean many different things and can have a huge impact not only on consumers’ health and safety but on animal welfare. I think particularly of what has become a bit of a euphemism for health and safety in food: chlorinated chicken. I am also concerned about the substances used to prepare farmed salmon for human consumption. I should like specific clarification of the Government’s intentions about future regulation in this area, to the extent that the Minister is able to give it.

One of the things that has always concerned me about these regulations—I have dealt with quite a few—is that there seems to be no sunset clause in the event that we do not leave without a deal. Is there a proposal for a sunset clause for these regulations? Can the Minister give us an assurance about the extent to which animal welfare has been taken into account? We all know that chlorinated chicken means treating at the last minute and that it does not matter what contamination the animal received beforehand; once you have washed it in the swimming pool, if you like, it will be okay for human consumption, which is not necessarily the case. It is important that such issues should be taken into account and considered in these regulations.

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My Lords, I do not intend to detain the Committee for very long. The Minister has outlined the instrument clearly and the noble Baroness, Lady Thornton, has raised some pertinent issues but I too would appreciate some clarification. The briefing that I received from the FSA says:

“The new instrument makes clear that the responsibility to approve any additional substances which may be used to remove surface contamination from products of animal origin rests with the Secretary of State for Health and Social Care, in England, and the appropriate Minister in each of the Devolved Administrations”.

This raises a few questions and I have some that I would be grateful if the Minister could answer, or at least get back to the Committee about.

I wonder whether we could have different outcomes in each country of the union. Would this impact on, for example, the sales of Welsh lamb into England? If we can operate slightly differently in Wales and make different decisions there from those in England, could there be an issue with that? I also wonder who the Secretary of State will take evidence from in making his or her decision in this matter. What public consultation will be carried out in advance of a decision? Finally, we have already heard chlorinated chicken being raised but could the Minister assure us that this is just an English measure? Can she assure us that there will be no English chlorinated chicken on English dinner plates?

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My Lords, I should like to raise a few points and I suppose I ought to declare an interest, as between 2009 and 2013 I chaired the Food Standards Agency. I will not go into any detail about the regulations but they are really about Ministers’ powers. It is a Minister I want to talk about because it seems that we now have another Secretary of State who does not like the FSA. The Minister here may shake her head but wait until I have finished, please.

The noble Lord, Lord Lansley, did not like the FSA and sought to abolish it in 2010 but was prevented. Labour Ministers did not like the FSA either; that is the point. That is why it was set up, but now we have a Minister openly attacking the FSA in the public prints. He talked about action on “best-before zealotry” after the Prime Minister said that mouldy jam was okay: “Just scrape the top off, it’s okay”. Sod the toxins that have got into the rest of the jar and can cause major food poisoning. The Prime Minister and the Secretary of State were obviously better qualified than the medics who give the advice. The Secretary of State also weighed in when he said back in February, “I want a new chief executive at the FSA”, and he got one—did he not?—when the previous one left in June or July. I do not criticise that. I am sure it was perfectly ordered and all fine. However, he is starting to speak out on matters related to food safety. He has piled in about the “government body’s line”—referring to the FSA, a non-ministerial department—on beef burgers. He is very unhappy about the FSA’s interventions on food safety and wants it to go back to its “original purpose”.

These regulations are quite good, in a way, because they are essentially about surface contamination. But I invite the Minister and the Secretary of State to go and read Hugh Pennington’s report about the south Wales outbreak of E. coli 0157 in September 2005. A butcher provided meat then to schools in four local authorities; 157 people fell ill and, regrettably, Mason Jones, aged five, died. The butcher went to jail. It was all about the contamination and cross-contamination, and Hugh Pennington did a major report for the whole of the country. It did not relate just to Wales or that incident, as he had of course done others as well. That was about surface contamination, so surface contamination is not unimportant.

The Secretary of State said that if beef patties—beefburgers—were served rare, that was perfectly all right. I have some news for him: that is the whole point. I know that there is dispute between some scientists on this, but if you chop up meat, part of it will have been the outer part of the meat, the bit that can get contaminated. If you then mix it all together and do not cook it properly, it is highly likely that somewhere in the middle of the product will be meat that could be contaminated but has not been cooked. That is the great thing: cooking gets rid of most of the problems, whether E. coli or salmonella.

We have had cases in recent years where people have been seriously ill. It is not just a UK issue; there was the death of a young boy in France, who died 5 years after eating rare burgers from a Lidl supermarket. It is not unimportant.

My noble friend mentioned CJD. When I led a debate on the ban on beef on the bone—the most controversial debate I have ever led—it was at 10 pm in the House of Commons, everyone had had a good dinner and I came along as Grandpa Nanny Rooker saying that we need to ban beef on the bone. It was pretty acrimonious. What silenced the House was that during the day—this was in 1998 and I am not a doctor —I had asked: what happens to people who get CJD? What are the symptoms? During my conversation with three or four medics, it transpired that when those identified as having CJD—there is no final figure, but there are well over 100—were operated on to check the situation in the brain, the medical instruments had to be destroyed. They could not be sterilised. That really put the House of Commons to bed. It suddenly dawned on us that this was serious.

We may not have some of those issues now—heaven forbid that we do—but we must learn lessons from the past. It is so easy to say, “We haven’t had any problems; we will relax the rules because we have too much regulation”.

Just before I left the FSA—I am not sure of the date because I have not checked, but it was either 2012 or 2013—we were lobbied intensively by industry to allow animal protein to be fed to animals. We had a long board discussion about it, which is all on the record. One beauty of the FSA is that it is open and transparent. We came down 100% against allowing animal protein.

This Secretary of State is obviously amenable to industry, given how he has been bellyaching that the FSA is doing too much and should stick to its original purpose. There are attempts to restore that procedure, because it is a cheaper way to do it. I understand the pressure from industry. I and others were lobbied—submissions were made—to go back to it, saying, “We will follow the rules; we will not mix it up with anything else”, but everybody spoke on the record and the FSA board unanimously said that we were not going down that road, because we were still worried about what had happened.

We understand that this Secretary of State does not like what is happening at the FSA. I have not spoken to anybody on the board, by the way, but I assume that it is bold enough and has enough backbone to follow the rules and the law that set it up in the first place. I warn the Secretary of State that if he ever comes to this House trying to change Section 1 of the FSA Act, it will not go through. I am certain of that, because there is no excuse for watering down.

Ministers do not like it when things go wrong. They love to pull the levers when things are okay, because they are Ministers and they want to do this and announce the other. That is the thing they do not like about the FSA. My caveat—not a warning—to them is that they need to have officials and scientists front up the media when things go wrong. If Ministers start interfering when things are not going wrong, it might be that one day they will end up in the spotlight themselves. They will be the Minister who has taken health and food risk decisions. They will carry the can. There is no need for that. That is what the FSA has been set up for—not to carry the can, but to be the public guardian. That is its main function.

I have looked at various of the Secretary of State’s musings. It is probably unfair of me; I have probably not seen all the good things that he has said about the FSA. In fact, I have not found anything good that he has said about it, but I have found a few things that are negative. I thought that this would be an opportunity to put on record that we are watching him, because when things go wrong people will start opening the books and saying, “Who’s responsible for this?” It was the same when the horsemeat issue broke. I was in Northern Ireland at the time and so was the chief executive. It broke overnight.

When things go wrong, you start to say, “Hang on, who’s responsible for which bit here?” You can test these things out, but when things go wrong that is when people open the book. When things are going okay and we do not have major outbreaks, you can always say, “We can relax. We’re being too tough on industry. We want less regulation and to free up the market”. On food safety, however, the FSA’s staff have spent the best part of 20 years rebuilding British people’s confidence in their food supply. It is very important that we do not put that at risk. I fully accept that the regulations and the statutory instruments that the Government have provided for Brexit fully conform to all that. I have no problems with any of them. I have absolute confidence in what Ministers are planning.

However, the vulnerability is in the meat plants in particular. It is a closed industry. I think there is only one plc in the meat industry, which might be Morrisons, because it has a vertically integrated system—at least it used to; I am not up-to-date these days. Generally, it does not advertise on its factories, “By the way, we kill animals here so you can have your meat”. It is a very closed industry, but when you go to abattoirs for pigs, sheep and cattle you see the care and attention that has to take place for live cattle, some of which might be dirty cattle—the vets are there to stop that; a clean cattle policy is supposed to operate—from live animals at the beginning to the end product for the table. It is vital that that process is looked after. There are people in that industry who will seek to cut corners. I will not give examples; it would be unfair because they are out of date. But the fact is that it is a closed industry and it does not expose itself. I understand why. A few documentaries so that people understand where meat comes from might be helpful, but nobody has ever had the courage to do it.

It is in the industry’s interest that it resists any ministerial temptation to cut corners, because industry would be the loser. The beef ban lasted until 2006. It was the last thing that I did as a Northern Ireland Minister. I did not go to Brussels; I am one of those who has hardly ever been there. I went there to serve Northern Ireland beef on the day that the beef ban was lifted. Traders were over there doing deals to restore their past links. The last few years of the beef ban were purely political. There was nothing scientific or health-based about it whatever. We in this country know far more about CJD and BSE than anybody else simply because we have gone through it. We had reports galore. The fact is that industry suffers economically, and then the country suffers as well.

I wanted to put those few pointers on record so that someone could say to the Secretary of State, “By the way, it’s probably not a good idea to keep rubbishing the FSA, because people are watching what you are saying”.

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I thank noble Lords for what has been, as ever on the issue of food safety and the FSA, an informed and very expert debate. While I would never dare to call the noble Lord “Grandpa Nanny Rooker”, I assure him that the value and expertise of the FSA are under no question from the Department of Health and Social Care and the Government. Experts are very much in vogue in our department, and the importance of the FSA on exit day is very much understood. That is why we have taken such care in bringing forward the statutory instruments that, as he recognised, have been crafted to ensure the highest standards of food safety on exit day, no matter what the nature of the deal. I entirely agree with him that we should ensure that we continue to value the FSA and to communicate that value publicly and privately. I should expect no less than to be held to account by him on this issue every time I come into the Chamber. His expertise shone out during his speech.

I thank the noble Baronesses, Lady Thornton, Lady Jolly and Lady Kingsmill, for their support for the statutory instrument. I shall answer some of their questions, and I welcome their commitment to join the Government’s commitment to the very highest standards for food and food safety, represented in the statutory instrument.

I reassure the noble Baroness, Lady Kingsmill, that this instrument will not have a sunset clause for the specific reason that it amends retained EU law, so any future changes, as with the other statutory instruments, will be subject to parliamentary scrutiny and control in the normal way. It is in the event of no deal, so, should the Government reach a deal with the EU, as we very much hope they will, we will repeal or amend it in accordance with that outcome. It is being put forward to reassure rather than to create any concerns, so that we can ensure that we have in our legislative framework very clear processes for the cleaning of products of animal origin.

In response to the question put forward by the noble Baroness, Lady Thornton, this issue was not missed in the original statutory instrument. It was dealt with, but it was felt that the drafting needed to be clearer. It was brought forward in a swift and made-affirmative way because we wanted to make sure that, when we went forward to the vote on the third country listing, this was part of our statutory instrument programme at that point. That is why it went through quicker than it would otherwise have done. There was no intent to be underhand or sneak it through; we just wanted to make sure that it was part of the package at that stage. That is why we are having this debate now, after the fact. With this statutory instrument, we wanted to ensure that we clarified further the process for making decisions on the approval of substances to remove surface contamination from products of animal origin, and to move beyond doubt that the decision on approvals was for Ministers and a statutory instrument, so that there would be a double question of scrutiny on the basis of clear scientific and risk advice from the FSA.

A very clear process has been set out. Currently an applicant makes a request to the European Commission following agreement from representations with member states, which will refer the application to EFSA. EFSA will carry out a scientific evaluation of both the safety of the substance and the efficacy of its use. Following the issue of EFSA’s opinion, the member states will then vote on whether the substance will be approved by the European Commission Standing Committee meeting. After EU exit, we will have a similar process, with just the Ministers, or the devolved Administration representatives, replacing the European Commission, but we will have just as strong an emphasis on scientific advice and transparency.

I have a helpful diagram, provided for me by the Food Standards Agency, which I hope it is acceptable for me to display and which I am happy to put in the Library. It demonstrates the process the FSA will go through in ensuring that there is a transparent process for gathering scientific evidence. There are several points of publication of the evidence, which would then be presented to the Minister and then be available as part of the scrutiny process for statutory instruments. I hope that this is reassuring and that there would be no question of undermining the expert advice provided to Ministers. I will place this in the Library of both Houses for assessment by your Lordships.

In answer to the question from the noble Baroness, Lady Kingsmill, regarding farmed salmon—I did not know this, so it is a helpful, educational moment for me—there will be no policy change in this area, as in any other. The treatment of farmed salmon will follow the rules as now: either clean water or seawater could be used to surface-wash salmon. I hope that is reassuring for the noble Baroness.

On chlorinated chicken, the current situation will remain. No substances other than potable water are approved to remove surface contamination from chicken carcasses, and there is no intention to change this when we leave the EU. Any change to this would have to go through the application process, which I have outlined, and would be clearly transparent to Members of this House and members of the public. It would be open to scrutiny, so I hope that is reassuring.

The noble Baroness, Lady Kingsmill, rightly raised the important issue of animal welfare in the context of chlorinated chicken. That would be considered with an application, as it is an important concern. Scrutiny would be available not only through scientific consideration and the FSA’s consideration, but also through public and parliamentary consideration. The retention of current law helps us promote the good welfare standards we already have, so I hope that is a reassuring answer.

Finally, I turn to the important question from the noble Baroness, Lady Jolly, regarding the potential for different food and feed safety standards to emerge across the UK after exit. The FSA has considered this and discussed it closely with the devolved Administrations as we have prepared very carefully with the Administrations in Scotland, Wales and Northern Ireland for the—albeit unlikely—potential no deal. There is a commitment from all the devolved Administrations to a common approach across the UK, albeit with the potential for evidence-based divergence. We are confident that, in practice, it will be possible to make arrangements to operate a framework for food and feed safety regulation across the UK. It is one of the policy areas set out in the UK Government’s published provisional policy analysis, which is subject to detailed discussions between the UK Government and the DAs to explore what common framework arrangements are needed after we have exited the EU. Officials across the different devolved Administrations have already been working over recent months and years to make sure that this is implemented effectively, so there is confidence in the FSA and FSS that this can continue effectively. I hope I have answered all the questions asked.

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The Minister has not answered one question; it may be that she does not have the answer at the moment. I have not seen her diagram with blobs on, but can she indicate whether there would be any element of public consultation if the Secretary of State were to consider a change?

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The noble Baroness asks an important question. There is the opportunity for formal consultation as necessary, depending on the nature of the change. This is point 10 in the diagram and, yes, I have just been told that it is there in the SI, depending on the nature of the change that comes forward. Given that any formal advice would be available for public scrutiny, it would be evident and open should there be any need for public consultation. Given that there are implications for industry, this would be carefully managed. It is notable, and important to take into account, how carefully the FSA has managed its statutory instrument programme. It carried out a six-week consultation to prepare for its 16 SIs and managed its engagement very carefully. The impact assessment was very carefully managed, and I think this is an indication of its intention going forward. I beg to move.

Motion agreed.