Section 13: Power to request information relating to enforcement action

49.     This section and section 14 provide the specific powers necessary for the Agency or an authorised person to carry out the monitoring role provided for in section 12. Section 41 of the Food Safety Act 1990 makes provision for Ministers to require reports and returns, but does not allow for audit visits or the provision of detailed returns, statistics and supporting documentation, nor does it provide for Ministers to set performance targets in relation to enforcement. Part IV of the Agriculture Act 1970 contains no powers comparable to section 41 of the Food Safety Act 1990. The majority of the powers contained in these sections are therefore new.

50.     Subsection (1) empowers the Agency to require any information that may be relevant to its assessment of an enforcement authority's performance. As provided for in subsection (2), this requirement would apply to anyone representing, working for or acting on behalf of that authority.

Section 14: Power of entry for monitoring enforcement action

51.     Subsection (1) provides for the Agency to authorise the use of powers of entry in connection with its enforcement monitoring function. Under subsection (2) the decision to grant any authorisation must be given by the Agency itself, or a committee or subcommittee or individual member, and not by the Agency's staff.

52.     Subsection (3) provides that the authorisation may include limitations, including requiring any authorised person entering premises to follow any necessary food safety precautions. It is expected that in authorising powers of entry, the Agency will require that any reasonable food safety precautions required on the premises should be followed.

53.     Subsection (4) provides an authorised person with powers to enter and inspect individual premises in order to carry out monitoring work. This gives access to records and data held by the enforcement authority, anyone acting on its behalf, or where enforcement powers are exercisable and also provides for the taking of samples.

54.     Subsection (5) specifies the types of premises that may be entered under the previous subsection. Besides offices and other premises used by the enforcement authority, this would include any laboratories that provide it with services relevant to its enforcement activity (this would include both in-house and independent laboratories). The Agency would not be expected to publish the details of the performance of the laboratories themselves; nor would its monitoring powers impinge on any service provided by the laboratories to private customers. The third category of premises subject to these powers covers any in which food law enforcement may be carried out (i.e. food shops, food manufacturers, slaughterhouses etc.).

55.     Subsection (6) provides a power for an authorised person when entering premises to be accompanied by another person. This is needed, for example, to provide for an official of the European Commission engaged in a routine audit of member states' enforcement of the provisions of EC food law to accompany the Agency's authorised officer.

56.     Subsection (7) requires that the authorised person must provide a receipt on request for any sample taken or document copied.

57.     Subsection (8) provides for an offence for the same purpose as that described in section 11(7) above but also covering a person accompanying an authorised person under subsection (6).

58.     Subsection (9) adapts the provisions of this section to monitoring of enforcement activity of the Agency itself or of Ministers or the devolved authorities (for example the enforcement of meat hygiene legislation). The power of entry to premises occupied by the enforcement authority is excluded as it would be unnecessary to give a power to the Agency to authorise a person to enter its own premises.

Section 15: Meaning of 'enforcement authority' and related expressions

59.     Subsection (1) defines the legislation covered by the enforcement monitoring powers.

60.     Subsection (2) defines an enforcement authority for the purposes of the above provisions. The bodies responsible for enforcing or executing the provision of the Food Safety Act 1990 or legislation made under it are normally, unless otherwise specified, 'food authorities'. They are defined in the Act as normally being local authorities (metropolitan borough, district or county councils in England and Wales; island or district councils in Scotland) or, where appropriate, port health authorities. In some cases, by virtue of section 6(4) of the 1990 Act, Ministers themselves, or, following this Act, the Agency, may also be specified as enforcement authorities for particular regulations. Under the corresponding Northern Ireland legislation, the enforcement authorities are district councils or the Department of Agriculture. Under Part IV of the Agriculture Act 1970, "enforcement authorities" are county, metropolitan district and London borough councils, and the Port of London Health Authority in England; and county and county borough councils in Wales.

Section 16: Offences relating to sections 13 and 14

61.     This section makes it an offence for anyone to obstruct the Agency's authorised officer from exercising power of entry or knowingly to provide false or misleading information or to withhold information required under sections 13 and 14. The current (November 1999) maximum value of a level 5 fine is £5,000.

Section 17: Delegation of powers to make emergency orders

62.     Under sections 1 and 2 of the Food and Environment Protection Act 1985 and section 13 of the Food Safety Act 1990 the Secretary of State may make emergency orders in response to circumstances or incidents which pose a threat to public health in relation to food. The Secretary of State will retain these powers, and in addition the Agency may be empowered by him to make emergency orders itself on his behalf. This power does not give the Agency the ability to make legislation itself in other areas, and in practice it is envisaged that the Agency will only make orders in emergency situations where the Secretary of State is not available.

63.     Subsection (3) makes it clear that it is the Secretary of State who is ultimately answerable for emergency legislation made by the Agency on his behalf, and that anything done by the Agency is in law done by the Secretary of State.

64.     Responsibility for orders under the two Acts is devolved to the appropriate authorities in Scotland and Wales, and in Northern Ireland is exercised by departments under equivalent legislation. Subsection (5) provides these authorities with the power to delegate their powers to make emergency orders under the relevant legislation to the Agency within their own competence.

Section 18: Functions under other Acts

65.     This section introduces Schedule 3, concerning amendments to other enactments which confer functions on the Agency.

66.     Much of the legislation which is amended by Schedule 3 has been devolved to Scotland. This means that many functions of Ministers of the Crown (i.e. the Secretary of State and Minister of Agriculture, Fisheries and Food) under the legislation have transferred to Scottish Ministers, and Parliament's role in relation to secondary legislation to the Scottish Parliament.

67.     However, the provisions of the Scotland Act 1998, and orders made under it which give effect to the transfer, do not generally amend the text of Acts of Parliament to show what has been done. Thus when this Act amends Acts which have been subject to devolution, it does not attempt to alter the text of those Acts to reflect post-devolution responsibilities. Instead, the amendments are deemed to date from before the enactment of the Scotland Act, so that the provisions of that Act automatically transfer functions to the relevant parties in Scotland. This ensures that all the powers under the Scotland Act to make further provisions flowing from devolution are available.

Section 19: Publication etc. by the Agency of advice and information

68.     This section empowers the Agency to publish advice given by it in accordance with its general functions under sections 6 (development of food policy and provision of advice, etc. to public authorities) and 7 (provision of advice, information and assistance to other persons) or information obtained by it as a result of its observations or enforcement monitoring (sections 10 and 12). It also enables the Agency to publish any other information it holds.

69.     The Agency's express ability to publish any of its advice to Ministers will be an important factor in its influence and independence: although Ministers would not be obliged to accept the Agency's advice, they would normally be expected to explain their reasons for not doing so.

70.     It is envisaged that the Agency will normally wish to publish much of its advice and information. There are however certain limited circumstances in which publication would be inappropriate. For example, the provisions of the Data Protection Act 1998 will continue to apply in relation to personal information (subsection (2)). Subsection (3) also makes clear that the Agency's power to publish information does not automatically override prohibitions on publication in existing legislation or EU obligations that prohibit the publication of certain kinds of information. Section 25 nevertheless empowers the Secretary of State and the devolved authorities to make orders relaxing or lifting statutory prohibitions where these prevent the Agency from carrying out its functions effectively or from publishing information that is clearly in the public interest.

71.     Subsection (4) provides that in deciding to publish any advice or information, the Agency will first have to consider whether the public interest in disclosure (for example, in terms of promoting openness or in making people aware of health risks) is outweighed by confidentiality considerations (such as personal privacy or commercial confidence).

72.     Subsection (5) provides that the duty to take account of any consideration of confidentiality under subsection (4) does not apply to information relating to the performance of enforcement authorities or people acting on behalf of enforcement authorities. However, in respect of information on, for example, the activities of a business that was obtained by the Agency while monitoring a local authority's enforcement work, the test in subsection (4) would apply.

73.     Subsection (7) makes clear that the Agency's power to publish is limited only by those duties and considerations that are set down in subsections (2), (3) and (4).

74.     Subsection (9) provides for the Agency to disclose information to another public authority, subject to the same considerations as set out in this section. Therefore, for example, the Agency could pass on confidential information to enforcement authorities to assist them in carrying out their enforcement functions.

Section 20: Power to issue guidance on control of food-borne diseases

75.     This section expands on the Agency's general function to give advice, information and assistance to provide it with the specific function of providing guidance to local authorities and other public authorities, including health authorities, on the management and control of outbreaks of food-borne illness (for example, salmonella, E.coli 0157, or campylobacter). Such guidance might, for example, include guidance on tracing the food-related source of any outbreak, or on the speed with which action needs to be taken to limit the spread of food poisoning.

Section 21: Supplementary powers

76.     This section gives the Agency power to take action which will help it to discharge its functions (subject to other provisions in the Act which constrain the manner in which the Agency may act). This section, although very general, does not give the Agency any power to act outside the area of its functions.

77.     Subsection (2) makes clear that the Agency's powers include the ability to provide education or training. Specific reference is also made to the provision of financial support, the acquisition or disposal of property and the institution of criminal proceedings (in England, Wales and Northern Ireland - prosecutions in Scotland are the sole responsibility of the Procurator Fiscal). Other relevant action might include entering into contracts.

78.     Subsection (3) allows the Agency to charge for any facilities or services it provides at the request of any person. Such charges would be made in accordance with the usual Government guidance on fees and charges.

Section 22: Statement of general objectives and practices

79.     This section requires the Agency to prepare and publish a statement of its general objectives and practices. The statement must be approved by the appropriate authorities. The statement will be formulated within the general framework of the Agency's main objective, in section 1(2).

80.     Subsection (2) specifies that, among any other general objectives it wishes to include in the statement, the Agency must address three in particular. These relate to

• consulting with interested parties on the Agency's activities,

• facilitating proper consultation between the Agency and other Departments of Government, local authorities and other public authorities on matters of mutual interest, and

• ensuring that the Agency's activities and decisions are open and transparent to the public.

It also provides for the appropriate authorities acting jointly to ask for the inclusion of particular objectives in the Statement. Subsections (4), (5) and (6) require that the statement should be approved by the Secretary of State and the devolved authorities, acting jointly, and published. The Secretary of State and the other appropriate authorities may amend the draft proposed by the Agency, but must consult the Agency before doing so. The final version of the approved statement must be laid before Parliament, the National Assembly for Wales and the Northern Ireland Assembly.

Section 23: Consideration of objectives, risks, costs and benefits, etc

81.     This section requires the Agency, in carrying out its functions, to have due regard to its statement of general objectives and practices (section 22) and take account of relevant advice from advisory committees and certain other considerations, as follows.

82.     Subsection (2) requires the Agency to take account in its decision-making process of:

a)     the nature and magnitude of risks which the action under consideration is designed to address. Risk to health is highlighted as of particular importance but other risks in relation to consumer protection (for example where labelling may mislead consumers) may also be relevant. The Agency is also required to take account of any uncertainty in the evidence. For example, where it is taking decisions in relation to a risk which is potentially very serious, but about which there is very little evidence, the Agency is likely to want to take a precautionary approach; and

b)      the likely costs and benefits associated with the course of action under consideration. This would mean that the Agency must balance obvious compliance costs, as well as matters such as restriction of consumer choice, against the benefits of reduced risk to health etc. arising from any action.

83.     Subsection (3) provides that the duty under the section does not apply where it is unreasonable or impracticable. For example, some of the Agency's actions may raise no concerns about risk, or an analysis of costs and benefits may not be appropriate. Decisions on appointments would be examples of this kind.

Section 24: Directions relating to breach of duty or international obligations

84.     This section permits the Secretary of State (subsection (1)) to give the Agency directions in cases where it appears to him that the Agency has failed to fulfil the duty to comply with its statement of objectives and practices, take account of the advice of advisory committees, or consider risks, costs and benefits; or where it has failed in any other duty that he considers it should have performed. The power of direction relates only to serious failures by the Agency.

85.     Subsection (2) gives similar powers of direction to the devolved authorities to the extent that it is within their devolved competence and to the Northern Ireland Department. This means that they will generally be able to direct in relation to the Agency's activities in Scotland, Wales and Northern Ireland, as appropriate.

86.     Subsection (3) provides that any direction given in accordance with subsection (1) must contain a statement summarising the reasons for giving the direction.

87.     Subsection (4) allows the Secretary of State to give the Agency directions to do anything the UK is obliged to do under EU or international law. These are reserve powers, for use if the Agency has not already taken steps to fulfil the UK's obligations.

88.     This power to issue directions is also vested in the devolved authorities or Northern Ireland department (see subsection (5)) where the directions relate to the implementation of EU or other international obligations which is the responsibility of that authority (in general, this will be the case for matters within devolved competence).

89.     Subsection (6) requires that an authority proposing to give directions must consult the Agency and the other appropriate authorities before doing so.

90.     If the Agency fails to follow directions given under subsection (1), the Secretary of State or the other appropriate authority may give effect to them, or the Secretary of State may take the steps outlined in subsection (8) with the agreement of the other appropriate authorities. Such powers, however, would only be used in the last resort and where normal processes of dialogue had failed to secure the necessary changes.

Section 25: Power to modify enactments about disclosure of information

91.     This section enables the Secretary of State to make orders for the purpose of relaxing or overriding any prohibitions on disclosure of information contained in other legislation that would otherwise prevent the Agency from obtaining or publishing information in carrying out its functions under the Act. While section 19 requires the Agency to observe statutory bars on disclosure in exercising its power to publish, this section provides a means for dealing with those that would unnecessarily limit the Agency's ability to carry out its functions effectively. Some specific bars to disclosure are already dealt with directly in this Act (for example, by over-riding the limitation on disclosure of information about veterinary medicines in the Medicines Act 1968). This section provides the power to respond to any further barriers to disclosure identified in the light of experience.

92.     Subsection (1) provides the basic order-making power.

93.     A parallel enabling power exercisable by Scottish Ministers is provided in subsection (2). Subsection (3) prevents Scottish Ministers from exercising their parallel powers in relation to legislation that lies outside their devolved competence. Subsection (4) makes similar provision for Northern Ireland.

94.     Subsection (5) specifies the circumstances in which the enabling powers may be used to modify legislation i.e. where the legislation prevents the disclosure of information relevant to the Agency's functions, or prevent the Agency from publishing some information which would otherwise be published in accordance with section 19.

95.     Subsection (7) applies this section (with appropriate modifications) to allow the removal or modification of common law rules.

Section 26: Statutory functions ceasing to be exercisable by the Minister of Agriculture, Fisheries and Food

96.     Under this Act, the Minister of Agriculture, Fisheries and Food will cease to have any statutory functions in relation to most matters within the Agency's remit.

97.     This section removes that Minister's statutory responsibilities in relation to emergencies which are likely to create a hazard to human health through the contamination of food stuffs (under Part I of the Food and Environment Protection Act 1985); food safety and standards (under the Food Safety Act 1990); and radioactive substances and waste (under the Radioactive Substances Act 1993). Similar provision is made for Northern Ireland in relation to certain functions of the Department of Agriculture.

98.     The detailed transfer of responsibilities to the Secretary of State for Health and devolved authorities and/or the Agency is dealt with in Schedules 3 and 5.

Section 27: Notification of tests for food-borne disease

99.     This section enables the Secretary of State for Health and his equivalents in the devolved administrations to make regulations to set up a notification scheme for the results of laboratory tests for food borne organisms. This means that if a laboratory finds evidence that indicates a person may have been exposed to certain pathogens (which will be specified in any regulations) that are capable of causing illness and are commonly transmitted through food, they will be required to report it to the central authorities ('commonly' here means that when the disease occurs it is often food-borne; it does not mean the disease itself has to be common). This information will improve data collection on types of food-borne disease. It will enable the Agency better to understand patterns of the incidence and prevalence of food borne disease. The pathogens initially expected to be covered by a notification scheme are salmonella, E.coli O157 and campylobacter.

100.     Subsection (3) allows the scheme to be set up to assist the work both of the Agency and of other bodies with public health responsibilities, such as the Department of Health and the Public Health Laboratory Service.

101.     Subsection (4) describes provisions which must be included in any regulations, which include the type and form of notification required for each organism specified, and to whom it is to be notified. Subsection (5) sets out further detail which may be included in regulations. The regulations may create an offence of failure to notify. The regulations may set the maximum fine for this offence at any level up to 5 on the standard scale (currently £5,000).

102.     Under subsection (6), the Health Departments must consult representatives of interested parties before making any regulations.

Section 28: Arrangements for sharing information about food-borne zoonoses

103.     This section makes it a duty of the Minister of Agriculture, Fisheries and Food (or any other Minister of the Crown whose responsibilities include matters related to foodborne zoonoses) and the devolved authorities or Northern Ireland Department on the one hand and the Agency on the other to make administrative arrangements for sharing relevant information on food-borne zoonoses (as defined in subsection (5): this would include, for example, salmonella, campylobacter and E.coli).

Section 29: Consultation on veterinary products

104.     Subsection (1) requires that Ministers who have responsibility for regulating veterinary products (principally, the Minister of Agriculture, Fisheries and Food acting through the Veterinary Medicines Directorate, an executive agency of MAFF) must consult the Agency on general policy matters relating to this work.

105.     Subsection (3) allows the Secretary of State and the Minister to disclose to the Agency any information they have on matters connected with veterinary products, even if it was obtained by them pursuant to any enactment. In particular, this means that they can override the general restriction in the Medicines Act 1968 and secondary legislation based on it on disclosures of information relating to veterinary products (provided, for example, by businesses in connection with a licence application).

106.     The further disclosure or publication of the information provided to the Agency under this sub-section is not prohibited by any statutory provision, and thus, subject to section 19(3) of the Act, the Agency may publish it or disclose it to other public authorities.

107.     Subsection (4) applies this section to Northern Ireland.

Section 30: Animal feedingstuffs: Great Britain

108.     The Agency has a general function of providing advice and information to Ministers in relation to animal feed. This is provided by sections 6 and 7 (by virtue of the effect feedingstuffs can have on food safety), and by section 9 in relation to the general safety of animal feed and the interests of users of feed.

109.     At present, feedingstuffs are regulated under Part IV of the Agriculture Act 1970, and by regulations and Orders made under that Act, the European Communities Act 1972 and the Animal Health Act 1981.

110.     This section allows Ministers to establish by order new provisions for the regulation of feed, based on the Food Safety Act 1990. Such an order, which would have the effect of updating the primary powers available for the regulation of feedingstuffs, could cover areas such as the composition, processing, treatment, manufacturing conditions and labelling of feedingstuffs.

111.     The order would probably establish a general requirement for the safety of feedingstuffs (similar to the "food safety requirements" set out in section 8 of the Food Safety Act 1990), and allow further subordinate legislation to deal with more detailed requirements.

112.     An order under this section can make incidental amendments and repeals to existing legislation - in practice, it would probably repeal Part IV of the Agriculture Act as it applies to feed. The application of Part IV to fertilisers would be unaffected.

113.     The control of feedingstuffs is fully devolved to Scotland, and thus the order-making power is conferred on Scottish Ministers in relation to Scotland.

114.     Subsection (1) enables the Ministers to regulate feedingstuffs along the lines described above.

115.     Subsection (2) provides that an order made under these powers can be used to apply to animal feedingstuffs provisions which match those contained in the Food Safety Act 1990, so that food and feed may be dealt with in a similar manner. It will also allow EC requirements to be readily transposed into UK provisions under a single set of powers. This will give a more coherent body of legislation than at present where provisions are implemented under both the Agriculture Act 1970 and the European Communities Act 1972.

116.     Subsection (3) provides that the power can also be used in relation to provisions of the Food Safety Act 1990, as amended by the Food Standards Act.

117.     Subsection (4)(a) provides for orders made under this section to address the needs of animal health or human health and is necessary because the scope of the powers in this Act would not otherwise extend to animal health.

118.     Subsection (8) provides for the order to be made jointly by the Secretary of State and the Minister of Agriculture, Fisheries and Food for England and Wales, and by the Scottish Ministers for Scotland. Orders made under this section must be subject to the affirmative resolution procedure - i.e. approved in draft by each House of Parliament or by the Scottish Parliament as appropriate before being made (as required by section 37).

119.     A general definition of 'animal feedingstuffs' is given in section 37, although this may be refined in any orders to cover specific areas. Section 37 also provides that the order can repeal or amend existing legislation as necessary.