The Structure of the Agency and its Accountability
6.1 Professor James recommended that the Agency should be established as a non-departmental public body (NDPB) with executive powers. He suggested that its structure should be loosely based on the Health and Safety Commission/Health and Safety Executive (HSC/HSE) model, but noted that this would need to be adapted to suit the rather different circumstances of the food safety area. He recommended that the Commission of the Agency should have strengthened operational autonomy, as compared with HSC; that it should not have to seek Ministers' approval of its work plan and that it would have the right to publish its advice, for which it would be accountable. He envisaged that the Commission would consist of around ten members appointed after consultation with consumer and public interest groups, representatives of the food industry, the Leader of the Opposition and the Chair of the relevant Parliamentary Select Committee. Although the Commission should include people with a background in industry, public and consumer interests should be in the majority. The Commission should also include representatives of Scotland, Wales and Northern Ireland.
6.2 Professor James proposed that the Agency should report to Parliament through Health Ministers, with the Secretary of State for Health taking the lead. In order to recognise the substantial and legitimate interest of other Ministers, including the Minister of Agriculture, Fisheries and Food, in the policy area, he suggested that a Ministerial Council, including the Secretaries of State for Scotland, Wales and Northern Ireland, the Agriculture Minister and other interested Ministers, and chaired by the Secretary of State for Health, should be established to provide an appropriate reporting mechanism.
6.3 Responses to the consultation exercise were generally broadly in favour of basing the Agency on the HSC/HSE model. Many responses stressed the need to adapt the model to the complex area of food safety and standards.
6.4 The composition of the Commission attracted particular interest, with clear support from most respondents (other than industry interests) for the proposal that public and consumer interests should be in the majority. Respondents from particular sectors were anxious to see their own interests well represented on the Commission. However, a number of respondents stressed that it was important to appoint Commissioners on the basis of their skills and experience rather than as representatives of particular groups. Some respondents expressed concern that the arrangements for a Ministerial Council might be over-complex or lead to a lack of clarity over management arrangements.
Form and composition of the Agency
6.5 The Government agrees that the Agency should be a public body with advisory and executive powers and that its structure should be based on the HSC/HSE model, subject to two modifications set out below which reflect the different circumstances of the new Agency. The Government proposes that it will be known as the Food Standards Agency.
The composition and role of the Agency's Commission
6.6 Members of the Health and Safety Commission are appointed by the Secretary of State after consultation with representatives of employees, employers, local authorities and other relevant bodies. While this approach works well in the Health and Safety at Work area, the Government does not believe that it is appropriate for the Food Standards Agency. The range of interests affected by the Agency is extremely wide, and it would not be feasible for the membership of the Commission to cover all the relevant fields. The Government intends therefore that the Commission should consist of a body of individuals who have a proven track record in relevant fields who together provide a reasonable balance of relevant skills and experience, and a majority of whom come from a wider public interest background without any specific affiliation. The Commissioners will take expert advice from the well-established network of independent Advisory Committees (described in Annex 2, Appendix 2) and will consult widely in order to ensure that their decisions are based on the best possible scientific advice. Four new Advisory Committees are proposed, to provide advice on the implications for Scotland, Wales and Northern Ireland of the Agency's activities and to advise the Agency and Agriculture Ministers on all matters affecting the safety, quality and efficacy of animal feedingstuffs.
6.7 The Government intends that the Commission should comprise a Chairperson and no more than twelve members. They would be appointed by UK Health Ministers, acting jointly with the Secretary of State for Health taking the lead, and after consultation with Agriculture Ministers. Appointments would be made in accordance with the guidance issued by the Commissioner for Public Appointments (the Nolan principles and Peach rules). The Commission would work collectively to further the aims and objectives of the Agency, which in turn will reflect the Guiding Principles set out in Chapter 2. The Commission would reach its decisions collectively, but individual Commissioners would be expected to take a special interest in particular areas of the Agency's work as well as maintaining a broad overview. In particular, individual Commissioners would have special responsibility for Scottish, Welsh and Northern Ireland interests, in addition to providing skills or experience in an area which is relevant to the Agency's national role (see Chapter 7).
The legal structure of the Commission and Executive
6.8 The Health and Safety Commission and Health and Safety Executive are two separate legal entities. Only the HSC can provide advice to Ministers. However, the HSC is precluded by statute from intervening in specific enforcement decisions, though it sets the broad policy and resource framework for the enforcement activities of the Executive. This is because of the representative nature of the Commission, the need to avoid it being involved in enforcement decisions which could occasionally suggest a possible conflict of interest, and to ensure that it focuses on a strategic, policy role.
6.9 The Government does not consider that a formal separation between the Commission and the Executive is appropriate in the circumstances of the Food Standards Agency. The Commission is likely to become directly involved in significant operational matters dealt with by the Agency, and it will be important for the Commission itself to be seen to be accountable for the actions taken by the Agency on this sort of issue.
6.10 In order to ensure that the Commission is clearly responsible for the operations of the Agency the Government intends to establish it as a single legal entity, and to endow the Commission with all of the Agency's policy and executive powers. It would be for the Commission, acting collectively, to determine the extent to which it delegated responsibility for day to day operational matters to the Chief Executive and his/her staff. This arrangement would not give rise to the conflicts of interest which might occur with a model based on the HSC/HSE, because the Agency's Commissioners will not have a formal representative role which could be seen as colouring their approach to the business of the Agency. The Agency's internal structure will need to reflect the nature of its functions, including clear lines of responsibility for enforcement (including licensing) decisions, and clear separation between operational and audit roles. Overall these arrangements will ensure that the staff of the Agency are accountable to the Commission for the discharge of all their functions.
6.11 In particular the Meat Hygiene Service will continue to operate as a separate entity, managed on Next Steps principles, with its own Chief Executive who will report to the Commission. The MHS will continue to be audited by the Veterinary Public Health Unit within the Agency.
Accountability mechanisms
Relationship with Ministers
6.12 The Government agrees that the Agency should report to Health Ministers, with the Secretary of State for Health taking the lead. The Agency's role, its relationship with its sponsor Department and the financial arrangements which apply to it will be clearly set out in a Management Statement and Financial Memorandum which will be publicly available. The Agency will be required to produce an Annual Report, Corporate Plan and Business Plan and will be subject to an annual accountability review and a more fundamental quinquennial review. The Agency will be expected to consult with Health Departments over the production of its Annual Report and Business Plans, and to consider any comments which they wished to make on the draft Annual Report, but would not be bound to make any changes in response to such comments. In accordance with the normal arrangements for ensuring financial accountability, the Corporate and Business Plans would be subject to joint agreement by Health Ministers, who would consult other Ministers as appropriate. In addition the Agency would be required to meet specified performance targets relating to efficiency and quality.
6.13 It is important to ensure that the Agency's advice is taken fully into account in the formulation of policy across the complete range of food-related issues. To facilitate this, staff of the Agency will participate fully in the normal Whitehall-wide machinery for coordinating policy. This will ensure that the Agency has a significant input in policy issues in which it has an interest. It will also provide a mechanism whereby the Agency, if it wishes, can seek assistance in ensuring that its work is consistent with its guiding principles (for example that it complies with the United Kingdom's obligations under international law).
6.14 The Ministerial Group on Food Safety, chaired by the Chancellor of the Duchy of Lancaster, which has overseen the preparations for the Agency, has provided an effective means of ensuring that Departments work together in pursuance of a coherent policy. The Government does not consider it necessary to have a separate statutory mechanism for the coordination of policy issues. Similar arrangements to the existing Ministerial Committees will provide the forum for the discussion of any issues which need to be considered collectively by Ministers. These arrangements will be adapted as necessary to reflect the post-devolution cooperation arrangements foreshadowed in the Devolution White Papers.
6.15 The Agency will, as Professor James recommended, be free to make public its advice to Ministers who would then have to explain in public their reasons for any decision not to accept that advice. This freedom will provide a powerful guarantee of the Agency's independence and will enable it to exercise considerable influence. The Government attaches great importance to the Agency's freedom to offer whatever advice it thinks necessary in the public interest, without interference from political or business interests.
6.16 However, as indicated in Chapter 2 above, the Government sees a need to introduce a mechanism to prevent the Agency from acting, or proposing to act, in a way which was inconsistent with its Guiding Principles and which would therefore not be in the wider public interest. The Government proposes that Health Ministers should be given powers of direction over the Agency which could be exercised only if the Agency appears to act outside the terms of its specific legal framework.
Parliamentary Accountability
6.17 The Agency's Annual Report would be laid before Parliament, and before the Scottish Parliament, the Welsh Assembly and any devolved assembly in Northern Ireland. The Agency will advise Health Ministers to enable them to respond to Parliamentary Questions about the Agency's work, as and when it is appropriate for them to reply substantively. Health Ministers will present legislation proposed by the Agency to Parliament. The Chairperson of the Commission might be invited to give evidence to Parliamentary Select Committees. The Chief Executive would be the Agency's Accounting Officer. It would be for Parliament itself to consider Professor James's suggestion that a Select Committee on Food should be established to monitor the Agency's activities. The Scottish Parliament and the Welsh Assembly will have powers to hold the Agency to account in the same way as the Westminster Parliament, as would any devolved assembly in Northern Ireland.
Location of the Agency
6.18 Professor James recommended that the headquarters of the Agency should be located in London, in the expectation that it will need to maintain close contact with Ministers and officials around Whitehall. He identified a risk of the Agency becoming marginalised if its headquarters were outside London.
6.19 The Government agrees that the Agency will need to maintain close contact with Whitehall and intends therefore to locate its headquarters in London. The Executives in Scotland, Wales and Northern Ireland will be located in these countries, and the Agency will also have, through the Meat Hygiene Service, a presence in York and a number of regional offices in England, Scotland and Wales.
The Agency's Staff
6.20 Professor James emphasised that the Agency's staff should be responsible to the Commission, not to Ministers; that while staff could be transferred from Government Departments to the Agency it would be important to effect a culture change by including an appropriate mix of existing expertise and new appointments; and that the Chief Executive should be appointed by the Commission and should be a Crown Office Holder not in a civil service career path.
6.21 The Government agrees that the staff of the Agency should be accountable to the Commission rather than to Ministers. It believes that the changes in policy which have been introduced since the Government took office in May 1997, some of which are described in Chapter 9, are already contributing to the change in culture which Professor James calls for. It agrees however that it will be important for the Agency to continue the process of developing a fully open and transparent culture in which protection of public health is, and is seen as, the essential aim. The Agency will therefore need to supplement the expertise which transfers from Departments by making some new appointments.
6.22 The Government intends that the staff of the Agency should be civil servants. The nature of much of the Agency's work - in particular provision of advice to Ministers, preparation of legislation and representation of the UK in EC and international negotiations - is identical to that of many Government Departments and requires the policy and administrative skills in which civil servants are trained. It will be important for some interchange of staff to take place with Departments, for example of public health doctors and veterinarians, in order to ensure that the Agency's culture and policies percolate into related parts of Government. Such interchange will be easier to achieve if the Agency is staffed by civil servants.
6.23 The Government considers that the Commission will be the key element in securing the Agency's culture of openness and independence. However, the Chief Executive will also have a major part to play. He/she will be appointed on a fixed-term contract by open competition and like the other staff of the Agency will be accountable to the Commission, not to Ministers.
6.24 The Government has considered Professor James's recommendation that the Chief Executive should be a Crown Office Holder. However, it believes that Crown Office Holder status could confuse the Chief Executive's line of accountability to the Commission, which will be responsible for all the activities of the Agency and will determine the extent to which responsibility will be delegated to the Chief Executive. It is the Commission, not the Chief Executive, which will be accountable to Parliament for the Agency's activities, as described in paragraph 6.17. The Government does not therefore intend to designate the Chief Executive as a Crown Office Holder.
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