Food Additives, Flavourings, Enzymes and Extraction Solvents (Amendment etc.) (EU Exit) Regulations 2019

Baroness Blackwood of North Oxford Excerpts

Tuesday 9th April 2019 Lords Chamber

Moved by

[Baroness Blackwood of North Oxford]

That the draft Regulations laid before the House on 20 March be approved.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Blackwood of North Oxford) (Con)]

My Lords, I thank noble Lords for their consideration of these regulations. 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. This instrument forms part of our preparations for a functioning statute book on exit.

Food additives, flavourings, enzymes and extraction solvents are important substances referred to collectively as “food improvement agents” which are used in a wide variety of everyday foods. These substances perform technological functions in or on food during its production or storage. Examples include preservatives, which are highly effective in protecting consumers from dangerous pathogens and help to provide a decent shelf life of products for consumers. Other substances are used to improve the taste, texture, and appearance of food. Common examples are artificial sweeteners, emulsifiers and flavourings added to food where they are considered necessary.

This instrument is made under the powers in the European Union (Withdrawal) Act 2018 to make the minimum necessary amendments to retained legislation that governs the use of food improvement agents and corrects deficiencies in those regulations. I wish to make clear that no policy changes are being made through this instrument, and neither is there any intention to do so at the present time. The instrument was due to be debated on Tuesday 19 March alongside four other instruments on regulated products in food. Minor drafting errors were identified which have now been rectified.

Currently, the European Commission holds a range of powers and functions under the EU legislation to enable new substances to come on to the market, to amend current conditions of use and purity criteria and to remove substances from the permitted lists. This instrument transfers these powers from the Commission to Ministers in England, Scotland, Wales and the devolved authority in Northern Ireland. It also transfers responsibility for risk assessment from the European Food Safety Authority, EFSA, to the UK “food safety authority”. This will be the Food Standards Agency in England, Wales and Northern Ireland and Food Standards Scotland in Scotland, which have a close working relationship.

Risk assessment and the oversight of food safety controls will be essential to ensure that food remains safe, whether imported or produced in the UK. The Food Standards Agency and Food Standards Scotland are responsible for protecting public health in relation to food and will continue to be independent science and evidence-based government departments. These functions will be delivered through the increased risk assessment capacity that has already been put in place. This instrument will ensure that the controls contained in 11 retained regulations governing food improvement agents continue to function effectively after exit day. All existing food improvement agents permitted for use in the UK prior to exit day will continue to be permitted immediately after exit and all conditions and requirements attached to their use will be preserved. There will be no change in how food businesses are regulated or managed.

These regulations will ensure a robust system of controls that will also underpin UK businesses’ ability to trade both domestically and internationally. This will ensure continuity and clarity for UK food businesses and those exporting their food products to the UK, while maintaining existing levels of public health protection and food safety. There are no changes to the authorisation process for new substances, except that the roles of the European Commission and EFSA will be replaced by the relevant UK entities. To support industry with these changes, the Food Standards Agency intends to publish detailed guidance on the UK authorisation processes. Scientific data requirements in support of applications will remain the same, so the same package of data can be submitted to the UK and the EU, avoiding any unnecessary additional burden.

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 the continuation of effective food safety and public health controls. I beg to move.

[Baroness Wheeler (Lab)]

I thank the Minister for introducing these important regulations dealing with food improvement agents such as preservatives, anti-oxidants, flavourings, enzymes and extraction solvents. As the Minister explained, this is the second version of the regulations, which have been re-presented to comply with requirements in drafting, elucidation and compliance with proper legislative practice identified by the Joint Committee on Statutory Instruments, which led to their hasty withdrawal and subsequent reissue. The Ministers, both today and in the Commons, described the faults in the original draft as minor, but it is important to underline for the record that the committee made some important stipulations now contained in the draft which are welcome because they assist with the clarity needed to ensure compatibility with other related regulations.

We recognise that this and the related SIs considered so far are necessary to ensure we retain the high-level principles underpinning the day-to-day functioning of the UK’s food safety legal framework. Ensuring continuity for business and public health bodies is in the vital interests of the public. However, in discussions across the range of food safety-related SIs from either the Department of Health or Defra, we have repeatedly raised our concerns about the UK’s preparedness for additional responsibilities in terms of resources and staffing levels in the Food Standards Agency, Food Standards Scotland and the related bodies that are to assume wide-ranging responsibilities from the EU after Brexit.

Let us remember that, between 2010 and 2017, the FSA saw its budget cut by 26%—nearly £30 million—leaving it resourced, in its own words,

“just to provide a basic statutory service”,

without contingency funds and with service delivery likely to be seriously compromised if any further cuts take place. Can the Minister explain how she envisages that an organisation that has been run down in this way so as to be able to carry out just its statutory obligations will, in the short or medium term after Brexit, be able to ratchet up to assume the key responsibilities currently undertaken by the European Food Safety Authority?

We have been told by the Government that both the FSA and the FSS will deliver the widened responsibility for protecting public health in relation to food through,

“an increased risk assessment capacity”,—[Official Report, Commons, Fifth Delegated Legislation Committee, 1/4/19; col. 5.]

and that additional staff are being recruited to deliver risk assessment and risk management functions from day one of Brexit. Can the Minister tell the House how many additional staff have been recruited, when they started work and what roles they are currently undertaking? What additional funds are being provided to the FSA and FSS to meet these costs, and what transitional management funding is being provided to support their taking on new and wider functions?

We are also concerned about the key issues raised by local authorities during the consultation with stakeholders on the SI, on how extra responsibilities they are taking on will be resourced—particularly if further responsibilities are identified in the course of ongoing negotiations. These so far remain unanswered by the Government. We know just how cash strapped local authorities are, so will the Minister confirm that the additional costs will be on a full cost recovery basis and that any additional financial burden that arises through ongoing negotiations will be funded, especially in the event of a no-deal Brexit?

The Explanatory Memorandum for the SI, in paragraph 2.7, expresses the Government’s confidence—which the Minister also expressed this afternoon—that,

“These changes will ensure that the retained legislation remains operable and enforceable within the UK regulatory framework without compromising existing levels of public health protection and food safety”.


Paragraph 2.9 reassures consumers that,

“existing levels of public health protection and food safety are being maintained”.

It is difficult to see how such supreme confidence can be justified in the light of the scale and extent of the changes that will take place in the food industry and related key industries. Can the Minister advise what steps have been taken on a cross-departmental basis to monitor implementation of the new structures, particularly in the transitional phase?

On the key EFSA re-evaluation programme of approved food additives, can the Minister please explain in more detail why the EU regulation is being revoked and it is not thought necessary to retain this important legislation for the UK? Why is a UK-wide re-evaluation programme not needed? While the EU regulation placing a duty on producers or users of a food additive to immediately notify the UK of any new scientific or technological information that may affect the safety assessment of a food additive is being retained, is the Minister confident that the UK will have sufficient safeguards and expertise in the FSA and FSS to ensure that food additives on the UK’s authorised list are kept under review on an ongoing basis? How will we ensure that we continue to keep up to date with and implement recommendations from international assessment bodies such as EFSA and the Joint FAO/World Health Organization Expert Committee on Food Additives?

The Explanatory Memorandum, at paragraph 12, states that the impact of the SI on business, charities or voluntary organisations is “minimal” and does not impact on the day-to-day workload of the small and micro-businesses that make up over 90% of the food industry sector. We are told that only one-off familiarisation costs resulting from the legislative changes are involved; and there is no impact assessment, because the SI has been assessed by the FSA as being below the de minimis threshold expenditure requiring an assessment to be produced. Again, the scale and extent of the proposed change makes these statements seem somewhat complacent. Can the Minister assure the House that the situation will be kept under close review so that swift action can be taken if the burden of introducing and maintaining the new arrangements leads to unsustainable costs for small businesses or voluntary organisations?

Finally, on the consultation exercise undertaken by the FSA on the EU law for food and feed and hygiene, the Minister in the Commons was quick to reassure my honourable friend Sharon Hodgson that the food industry had been fully consulted and understands the minimal impact the changes will have and “is satisfied”. Also, that of the 50 responses received,

“some 82% supported the Government’s approach”.—[Official Report, Commons, Fifth Delegated Legislation Committee, 1/4/19; col. 9.]

However, the Explanatory Memorandum, at paragraph 10.2, says that of the respondents,

“82% supported or did not agree with the proposed approach being outlined by the Food Standards Agency”.

Can the Minister clarify this? What actions are being taken to ensure that stakeholders’ concerns expressed in the consultation that changes will be clearly communicated with urgency and sufficient lead-in times are addressed?

--- Later in debate ---

[Lord Deben (Con)]

My Lords, are we not very lucky that they managed to put off the date as long as this, otherwise this SI would not have come before us? I just wonder how many SIs are hidden behind this one that would not have been passed in time. It seems pretty remarkable that we are talking today—after the date that the Prime Minister promised that on any basis whatever we were going to leave—and are dealing with this very important matter. It just draws attention to the absolute barminess of the whole process. To be doing this after what we did earlier in the week seems remarkable.

I do not envy my noble friend who has to defend this. When she says there are no changes, there is, of course, a fundamental change in that every small business in Britain that is exporting to the rest of Europe has to get itself passed by both the British and the rest of Europe. Although my noble friend rightly said that she did not believe this will stop people importing things, it could easily stop people exporting things. Indeed, the whole Brexit operation is designed to shoot the exporter in the foot and to enable the importer to have unrestricted access.

My first question is whether my noble friend can conceive of any circumstance in which the British would have different rules from the rest of the European Union on, for example, cocktail cherries. I hope the House has seen that there is a specific reference to cocktail cherries in this SI. I do not know why cocktail cherries should have this applied to them; it would be difficult to eat enough of them to be severely damaged in any way other than what always happens if you eat too much fruit. The issue is this: can we imagine circumstances in which we had a different regime from the rest of Europe?

What we are proceeding to do today is decide that the UK will test and check everything and do it again—or perhaps not. Perhaps what we are really going to do is say, “We accept everything that the rest of Europe says but we’re not going to have any part in it at all”. Is this not the fundamental issue about the whole Brexit concept—that the only way Brexit would work would be on the basis that we did everything that we do today but we did not have a say in it? I know this is very unfair on my noble friend but it seems important to me that we do not let any of these SIs go past without reminding your Lordships and the public of the fundamental lunacy of this whole policy.

That brings me to the cost and resources. The FSA has been starved of resources; the cuts have been significant. Yet the public are increasingly interested in food safety, and there is a good reason for that. We have lived through a whole lifetime in which food has fallen in price but we are now in a world in which food will be rising in price, by the very nature of the emerging middle classes throughout the world and the fact that resources right across the board are less and less available. In these circumstances, because there is more money to be made by fraud, we are likely to have more of it. The FSA is going to have a great deal more to do even without this additional work being placed upon its shoulders.

It is important for my noble friend to reassure the House that the full costs, both to local authorities and to the FSA, will in fact be provided by the Government. This is another example of the mathematics of Brexit never having been properly explained, because none of this came into the arguments about how much we were going to save by leaving the EU. We still need to have that fundamental reassurance. It is not unreasonable to ask the Minister to give us examples of when our independent FSA is going to make different decisions from the rest of Europe and, if so, how that would deal with the import/export problem to which I have adverted.

No doubt we will have to pass this—and are we not lucky that we have an opportunity to do so?—but, frankly, it is yet another example of the sheer waste of time that we are all involved in due to this Alice in Wonderland position in which we seriously think that a nation 22 miles off the coast of the rest of Europe is actually going to have a different safety arrangement for food products that are, and have to be, freely traded within the EU.

[Baroness Blackwood of North Oxford]

I thank noble Lords for this fascinating debate. I want to be the first to wish the noble Baroness, Lady Walmsley, a happy birthday, and I thank the noble Lord, Lord Deben, for disclosing to the House his passion for cocktail cherries.

Our approach to EU exit when it comes to the FSA is underpinned by three principles. The FSA has been working hard to ensure that UK food remains safe and is what it says it is; that the high standard of food and feed safety and consumer protection we enjoy in this country is maintained when the UK leaves the EU; and that from day one a robust and effective regulatory regime will be in place, meaning that business can continue as normal.

As has been debated, this instrument was subject to parliamentary scrutiny through the affirmative procedure and requires affirmative approval. It needed redrafting and I would like to go into some detail on that, given that the issue was raised by the noble Baroness, Lady Wheeler. Some drafting errors were identified. I have been advised that they were minor. They mainly related to drafting style, rather than content. That is why the instrument was withdrawn. The errors have been rectified and the amended draft was brought back today. They related to an error in Regulation 16(b), where an obligation to inform the authority—the FSA or the FSS—of the receipt of an application for a product to be included in the list of products authorised for smoke flavourings was not included. That has been addressed. The FSA felt that the changes were minor, including a correction to remove a quotation mark at the end of a definition, which had been overlooked.

It was also said that the draft required elucidation relating to the requirement for definitions of appropriate authority and the authority prescribed for certain regulations. The FSA felt that this was not necessary as definitions are inserted by other draft EU exit regulations, but this has been actioned to make sure that it is absolutely as it should be. A final comment was about the failure to comply with proper legislative practice. This related to whether some text should be presented as a footnote instead. Again, the FSA considered that this was not required when originally drafting the instrument, as it replicated how the text was presented in the European Union (Withdrawal) Act 2018. However, the comment was taken on board and the amendment has now been made. I hope that clarifies what the amendments were.

I turn to the questions raised by the noble Baronesses, Lady Walmsley and Lady Wheeler, about the FSA’s preparedness and about funding, which was also raised by my noble friend Lord Deben. Extra funding—£14 million last year and £16 million this year—has been allocated to the FSA to help it prepare for the additional requirements it will have to take on board. This has enabled it to put in place some additional risk assessment tools and risk management experts and to replace some EFSA procedures on which it previously relied. It is important to understand that the FSA has always had a robust risk assessment system in place and has always undertaken evidence-based risk management decisions for the future of food and feed safety issues. It has now built into its capacity the ability to provide robust risk assessment and management advice post exit, using the additional funding provided. That is why we have been able to provide reassurance as these SIs have gone forward, and this has been taken into account as we have prepared for negotiations going into the implementation period, whether in a deal or no-deal scenario.

Obviously, we are considering what kind of relationship we will have with EFSA and what the situation will be regarding the RASFF. At this point, no decision has been made about our future relationship with EFSA, because it will be subject to forthcoming UK-EU negotiations. However, departments have undertaken an analysis to understand the impact that withdrawal from the EU will have on our relationship with EFSA and the EU agencies. This is why the FSA has ensured it has robust risk assessments in place, no matter what the scenario may be. However, it is our preference to have a close relationship with EFSA and access to the RASFF. That is the ideal scenario, which we will be working towards.

The noble Baroness and my noble friend Lord Deben raised the consultation with industry. It is important to point out that this was a thorough six-week consultation, undertaken by the FSA, which took place in September and October last year. Late responses were also taken into account. There was significant support for the approach the FSA has now taken with the SIs. That is why we are confident that the industry and stakeholders will be able to take on board the approach taken in this and other SIs, which have been fully debated in the House. That approach has also involved the devolved Administrations, and the FSA will continue to have close working relationships with the Administrations in Scotland, Wales and Northern Ireland as we go forward. That is why we are confident that, in practice, it will be possible to make arrangements and operate a framework for food and feed safety regulations across the UK, whatever exit scenario we have.

The noble Baroness, Lady Walmsley, asked about contingency arrangements should there be changes in regulation within the EU. If noble Lords support these regulations they will be on course to come into force this week. But if there is a short delay to food law they will not be fully operable, amendments to authorised products could not be made and urgent action might be required on unsafe food. The Food Safety Act and already corrected retained EU law would then continue to provide food safety protection for consumers, and enforcement action could be taken against the placing of unsafe food on the market. I hope that reassures the noble Baroness on that point.

I thank noble Lords for their consideration of these regulations, and I hope I have answered their questions. As I said, 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. This instrument performs an important part of our preparations for a functioning statute book on exit. Food additives, flavourings, enzymes and extraction solvents are important parts of substances referred to as “food improvement agents”. We must ensure we have the correct protections in place to protect public health after exit. This instrument makes no change to public policy—pace my noble friend Lord Deben—and I hope noble Lords will therefore accept it as it stands.

Motion agreed.