COVID-19: Safeguarding Food Supply Chains in the UK

1 April 2020

The UK’s Coronavirus Act 2020 (the Act) was given the Royal Assent on 25th March following a parliamentary journey of only 4 sitting days. The statute was shepherded through urgently to provide an emergency statutory framework to govern a broad spectrum of activities in the United Kingdom during the Covid19 crisis. This ranges from the regulation of hospitals, health centres and medical professions to emergency provisions streamlining procedures to deal with the deceased; applicable arrangements for statutory sick pay (SSP); as well as emergency disclosure provisions to safeguard food supply chains, considered of vital importance to the nation's interests. We shall look at the latter provisions.

In particular, sections 25-29 of the Act grant powers to the national government’s authorities and the corresponding administrations in Scotland, Wales and Northern Ireland to demand "Relevant Information" from any business or other organisation that is active in - or closely connected with - food supply chains, in order to minimise possible disruption. The Relevant Information to be disclosed can include that which many businesses might consider as commercially sensitive or confidential. The provisions do not apply to individuals.

Such demands for information are however themselves subject to safeguards, as the authority is only entitled to make the demand when the following criteria are met:

Firstly (in section 25(4)), that the authority considers that the provision of the information is necessary (on its own or when put together with other information) for the purpose of establishing:

(a) whether the whole or part of a food supply chain is being disrupted or is at risk of disruption, or

(b) where a food supply chain is in the view of the appropriate authority being disrupted or at risk of disruption, the nature of the disruption.

And secondly (in section 25(5)), that the authority has previously requested the person to provide the information (before or after the passing of the Act) and the organisation:

(a) has not done so, or

(b) has provided information that is false or misleading.

Furthermore, there are additional safeguards set out in section 27 limiting the purposes for which the information provided can be used, to the following:

(a) the purposes referred to in section 25(4) above,

(b) the purpose of mitigating or eliminating the effects of disruption to a food supply chain, or

(c) the purpose of preventing or reducing the risk of future disruption to a food supply chain.

Likewise, if the information is passed by the authority to a non-governmental third party this can only be done subject to the same restrictions, along with any other terms that may have been imposed, and in addition, the information has been anonymised. As a statutory exception to common law, disclosure made in accordance with the Act does not breach any duty of confidentiality owed by the person making the disclosure, or indeed any other restriction on the disclosure of information, however imposed. Nevertheless, personal data may not be used or disclosed under this section if the use or disclosure would contravene UK data protection legislation, but in determining whether it would do so - for example when assessing whether the user of the information has legitimate interest or otherwise - the disclosure powers conferred by section 25 of the Act should be taken into account.

Enforcement provisions are set out in section 28, imposing fines of up to 1% of qualifying annual turnover on those organisations which either fail to provide the information requested, or those who provide false or misleading information.

The extent to which the UK government seeks to rely on the food supply chain disclosure procedure set out in the Act remains to be seen, and indeed whether it will need to resort to the enforcement provisions indicated. In any event however, companies and organisations in or closely connected with food supply chains that are operating in UK territory should certainly be aware of these new powers of the UK authorities to demand relevant information that affect this vital industry

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