My Lords, it is always a pleasure to follow my noble friend Lord Holmes. He has made an eloquent case against the bureaucracy of new paper-based controls on wine. This is very timely, because Covid makes digital much more appropriate in many areas, and I look forward to hearing what can be done.
I rise to move Amendment 91 in my name and those of my noble friend Lord Lindsay—who, unfortunately, cannot be here today—and the noble Lord, Lord Curry of Kirkharle. As we are talking about marketing standards, I again declare an interest as the chair of Red Tractor. This is much the biggest of a number of important agriculture assurance schemes; ours covers £14 billion-worth of food and drink, and benefits from regular
inspections by ACAS-accredited bodies to enhance food safety, traceability, animal welfare and environmental protection. As I said in Committee, we carry out regular inspections for the FSA—which has been much mentioned today—and the Environment Agency and help to promote export success based on certified standards. We support government endeavour and try to be the flagship of British food and farming at a very difficult time.
Amendment 91 is important because it strikes at the heart of the debate about the use or abuse of powers repatriated from Brussels and Luxembourg now that we have left the EU. We have seen a taster of what can go wrong in the overuse of such delegated powers in domestic legislation in the Public Health Act 1984, which we will be debating prior to the renewal of Covid restrictions next Monday, ahead of the Commons vote on Wednesday.
I should start, however, by congratulating my noble friend the Minister. This is an extremely difficult Bill to steer through our House. Agriculture, food and the environment are issues that excite us all disproportionately. I have therefore appreciated his readiness to listen and to try to get impact assessments back on the right path—which was the subject of an earlier amendment. I know that he also believes in consultation with the farming industry and other stakeholders in developing ELMS and, no doubt, in setting marketing standards, which are the subject of this clause.
My noble friend helpfully confirmed in Committee that there will be consultation on regulations made under this section—although, rather curiously, this is because marketing standards are covered by EU food law, which is being carried over into UK law. The duty to consult is contained in Article 9 of Regulation 178/2002, as the Minister told the noble Baroness, Lady Wilcox of Newport, in Committee. However, the provision is rather too limited for my taste. It says:
“There shall be open and transparent public consultation”—
which is good—
“directly or through representative bodies, during the preparation, evaluation and revision of food law, except where the urgency of the matter does not allow it.”
The bad news here is that consultation with the public can be direct, which is fine, or through representative bodies, which is not, as they have their own interests and axes to grind. Worse is the very wide exemption
“where the urgency of the matter does not allow it.”
This is exactly the sort of provision used in the Covid crisis, in some cases—such as on mask wearing—needlessly, as the debate about that went on for weeks and would have accommodated as well as benefited from public consultation.
In order to withdraw our amendment, my first request is for an assurance that there will be a bias in favour of consultation—open consultation, including engagement with parliamentarians, not just representative bodies, who can take too narrow a view. During foot and mouth, which was not even fatal, I remember that the NFU—which has actually done a lot today—and the food chain of which I was then part dominated consultation. However, they failed to help the Government to spot the disastrous impact on the tourist industry of closing down the countryside.
Our amendment is narrow. That is my fault, but, since I have given notice of this, perhaps the Minister could also comment on the availability and progress of consultation and/or the applicability of Article 9 to Clauses 36 to 39 and Clauses 40 to 42, which I think might fall outside food law.
The second area where I would like an assurance is, I acknowledge, more difficult. The regulation the Government are relying on—as the House of Lords Library has kindly explained to me—is contained in retained direct principal EU legislation. Such a measure can theoretically be amended not only by an Act of Parliament or by a devolved legislature, but by certain delegated powers. So in principle the EU (Withdrawal) Act 2018—or, I suspect, the EU (Withdrawal Agreement) Act 2020—can be used to modify the provisions of the regulation on which we are relying for consultation. The former has already been used on minor BSE, plant-protection and horse-testing regulations. I should add that all of this has emerged since my very helpful meeting with the two Ministers. Will there be public consultation if these two Acts are used to amend the powers deriving from Regulation 178/2002, on which so much weight is being put? If not, the Government should come forward with a short reassuring clause on consultation, as I have been arguing throughout the Bill.
We must ensure that the Executive are not given powers that are too sweeping, or we will get into an unholy mess. To save the agriculture and food area from this fate, I make a plea to the Minister for the reassurance I have asked for and, if need be, for the Government to rethink on consultation and to follow through soon on the very welcome promise last week on impact assessments.