Today’s Guardian reported that, as part of the white paper on the NHS in England published today by the Department of Health, the Food Standards Agency would be abolished and its remaining functions transferred to DEFRA. The Independent carried the story too. This commitment doesn’t actually appear in the white paper or Andrew Lansley’s Commons statement, so its status isn’t that clear, but the white paper confirms that there is to be a general review of quangos in the health field. As the FSA reports to UK health ministers, this suggests it will be caught up in the general review.
But it’s worth pointing out that it’s not simply for the UK Secretary of State to decide this. In Scotland, Wales and Northern Ireland, the FSA’s functions relate to devolved matters. The legislation creating it – the Food Standards Act 1999 – was one of the first pieces of Westminster legislation to be subject to a Sewel (now legislative consent) motion at Holyrood. Its board includes 2 members appointed by the Scottish Government, and 1 each by the Northern Ireland Executive and the Welsh Assembly Government. It also has advisory committees for England, Scotland, Wales and Northern Ireland. Abolishing it, or substantially changing its functions or how those are discharged, would need consent from Holyrood and Stormont, and probably Cardiff Bay. (The relevant functions aren’t presently devolved in Wales for legislative purposes, but might be – especially if a bill is introduced after the referendum on Part 4 is held, presumptively in March 2011. In any case, a bill changing the FSA’s structure would affect the executive powers of the Assembly Government so should trigger the need for consent by the Assembly.)
From a devolved point of view, the arrangements that establish the FSA have two attractions: they create a UK-wide framework for food standards, but one which can also be varied according to the specific needs of particular parts of the UK. It’s a very rare, perhaps unique, case of an agency that works to all four governments, and discharges a range of devolved functions across the UK. That means that both UK Government and the devolved administrations get the best of both worlds. For the UK, there is still a UK-wide framework for making and implementing policy, and common standards applied across the UK. For devolved governments, there is flexibility to develop their own policies on the one hand, but on the other the benefits of a wider range of expertise and lower administrative costs than if they were to set up their own regulatory agency for food. But to deliver this it is imperative that the FSA is accountable to all four governments, and does NOT report directly just to UK ministers. This arrangement also means there is no question of unilateral UK interference with devolved functions – which there would be if DEFRA were to take on some or all of its functions. In such circumstances, the temptation for the devolved governments to opt out would be very strong, and the UK-wide framework would be gone as a result. That in turn would not help the interests of the food industry.
Did those advising Lansley point any of this out to him? Did he think about the territorial implications of what it was rumoured he was going to do? It wouldn’t be the first time in its short life that Coalition ministers have mis-read the sensitivity of devolution matters (examples here and here). DH’s track record in this area isn’t particularly good, either, as Scott Greer and I argued a couple of years ago in a report for the Nuffield Trust available HERE. The role of such cross-UK agencies raises constitutional as well as policy issues, and the UK Government needs to think carefully before acting, or leaking to the press.
UPDATE: Tuesday’s Scotsman reports (here) a DH spokesman saying that the FSA is outwith the Department’s review of quangos. The Western Mail, on the other hand, reports (here) a WAG official saying it is within the review, and that the Welsh government is being consulted about the impact of possible changes. Make of that what you will.