Select Committee on Food Standards First Report


Submitted by the Local Authorities Co-ordinating Body on Food and Trading Standards (LACOTS) and the Local Government Association (LGA)

  Please find attached a joint LACOTS (Local Authorities Co-ordinating Body on Food and Trading Standards) LGA (Local Government Association) response to the Foods Standards Committee. We hope this interim response will help in their task of examining and commenting on the adequacy, effectiveness and practicability of proposals contained in the draft Food Standards Bill. LACOTS and the LGA are currently finalising a more detailed response which will be submitted to Government before the 24 March deadline.

  LACOTS' role is to encourage sensible and consistent enforcement of food and trading standards laws and promote good practice by local regulatory authorities. LACOTS was established in 1978 and has a nation-wide responsibility to all local authorities in England, Wales, Scotland and Northern Ireland. Enforcement co-ordination is the cornerstone of its activities.

  The LGA is the national voice for local communities and represents 500 local authorities who serve a total population of 50 million people throughout England and Wales spending £65 billion a year. The LGA promotes the case for democratic local communities which are prosperous, safe, healthy and environmentally sustainable and provide equality of opportunity for all citizens.


  LACOTS and the LGA welcomes the publication of the Food Standards Agency Bill and the possible earlier than expected introduction of the Bill before Parliament during 1999. We welcome the creation of an agency to bring together food policy responsibility in a way which is independent of dominance by any party, the Agency should be a major step forward in restoring public confidence in food. We also welcome the renewed commitment to the role of local authorities in food law enforcement.

  We were however disappointed that the proposals reject the licensing option and focus instead on the existing system of registration of food premises which is not ideally suited to help local authorities control food premises or ensure the levy is paid by all proprietors.

  Our interim submission for the purposes of the Food Standards Committee has been broken down into three Annexes, the details of which are summarised below.


  Annex 1 details the LGA's initial views on the Bill and levy proposals. The LGA and LACOTS have organised a consultation conference which takes place on Wednesday 10 March 1999 and other matters may arise which deserve further consideration. The key areas in Annex 1 are:

Funding and Licensing/Registration Issues

    —  We have some real concerns about the Government's proposed method of paying for the Agency as set out in its consultation paper.

    —  The proposed flat rate annual levy is perceived as inequitable. The levy is widely unpopular and this will reflect badly on both the Food Standards Agency and the local authorities charged with its collection.

    —  We believe that a three band system of levies based on the rateable value of premises will provide a fairer and more equitable system.

    —  Authorities costs of collecting the levy must be fully covered in all cases.

Powers of the Agency to take over the functions of Local Authorities

  We continue to believe that these powers should remain with the relevant Minister rather than being transferred to the Agency. Whilst the Agency should be able to make recommendations to Ministers regarding intervention, the decision to take over the functions of a local authority should be seen as a last resort and must be retained within the democratic framework. Giving the Agency direct powers in this area would undermine the open and trusting relationship that the Agency would need to establish with local government.

Appointment of members to the agency

  Whilst the balance of members nominated to serve on the Agency is not specified in the proposals we would urge the Government to consider the case for including at least two persons from a local government background, preferably serving local Councillors. Local authorities are democratically elected bodies, and elected members are in a unique position to represent consumers, local businesses and enforcers.


  In Annex 2 we have attached our previous submission to the White Paper "Food Standards Agency: A Force for Change". We are pleased to note that a number of the issues we raised have been addressed in the Bill. However, there are still various matters that have not in our view been adequately dealt with and we hope discussions might take place so that we can put forward the basis of our recommendations for change.


  We welcomed the White Paper's commitment to consider a wider review of food legislation and possible amendments that could accompany the legislative provisions to create the Agency. We submitted a separate list of recommendations for important amendments to primary legislation with our previous response, but have noted that none of these suggestions have been taken forward in the Bill. These suggestions are again reproduced in Annex 3. They are based on the practical experiences of authorities enforcing legislation. Whilst we recognise that Parliamentary time may be limited, we believe the attached proposals should be seriously considered because this is likely to be the only opportunity to amend primary legislation in the near future. Many of the issues would greatly assist the enforcement process and provide improved public protection.

  Because of the Committee's tight timetable it is not possible to provide the final LACOTS/LGA response to the Food Standards Bill and related proposals. However, we hope this letter and enclosures will assist the Committee in its important work. Both LACOTS and the LGA would be willing to provide oral evidence if the Committee felt that was appropriate.

March 1999



  It was recommended by the LGA's Food Policy Task Group of the Public Protection Committee and subsequently agreed by that Committee that the LGA should:


    —  oppose the proposal for a flat-rate levy on grounds of equity and press for a three-band levy based on the rateable value of premises (where any operator who does not pay a business rate—e.g., mobile traders—would automatically be placed in the lower band), with a system of prior approval operating in the case of new food premises, where registration would be a requirement of opening a food business (as at present) and that the fee must be paid before registration could take place;

    —  urge that the amount of the fee which an authority might be able to retain should be linked to a percentage of the charge levied and that this percentage retention should be based on the amounts which are actually collected, not on the amounts to be collected;

    —  propose that local authorities should be able to pass on to the Food Standards Agency, perhaps on a quarterly basis, the money collected or, at least, that any system of paying the levy to government should not lead to local authorities being in deficit;

    —  press the Government to accept the principle that no local authority should find themselves in deficit as a result of operating the levy scheme;

    —  agree that local authority premises should not be exempted, provided that the Government accepts the principle that authorities should be reimbursed for the additional costs through the SSA/RSG system.


    —  endorse initial comments in the LGA Briefing that the Association welcomes the bringing forward of the Bill earlier than had been anticipated;

    —  make strong representations for there to be two members of the Food Standards Agency to be appointed from local government;

    —  press for greater recognition of the special statutory role of local authorities as regulators in the whole process, rather than LAs being regarded as just one of a number of stakeholders;

    —  emphasise the need for thought to be given centrally as to how these proposals link into best value; especially for the new performance indicators to take into account the requirements of the best value regime;

    —  particularly within the best value framework, encourage/promote the development of partnership working between authorities; whether for example for: inter-authority auditing with the aim of achieving consistency; or for the carrying out of enforcement functions;

    —  urge that only the Minister (on the advice of the FSA), not the FSA itself, should have the right to determine whether intervention powers should be invoked in respect of an authority which might be considered to be "failing";

    —  draw to member authorities' attention the Government's indication that it is aware of the fact that some authorities have not met their responsibilities under the Food Safety Act 1990—that the additional funding included in the RSG at that time in some cases was not directed to the relevant service for the purpose for which it was intended by Government.



A Joint Response by The Local Government Association and Lacots


  The LGA is the national voice for local communities and represents 500 authorities who serve a total population of 50 million people throughout England and Wales, spending £65 billion a year.

  The LGA promotes the case for democratic local communities which are prosperous, safe, healthy and environmentally sustainable, and provide equality of opportunity for all citizens.

  The role of the Local Authorities Co-ordinating Body on Food and Trading Standards (LACOTS) is to encourage sensible and consistent enforcement of food and trading standards laws and promote best practice by local regulatory authorities. LACOTS was established in 1978 and has a nationwide responsibility to all local authorities in England, Wales, Scotland and Northern Ireland. Enforcement co-ordination is the cornerstone of its activities.


  The LGA and LACOTS welcome the opportunity to comment on the contents of the White Paper. We are pleased that the Government has acknowledged that the delivery of foodstuffs, from plough to plate, requires a coherent approach by central government, with the emphasis on the protection of public health and safety.

  The creation of a Food Standards Agency to bring together food policy responsibility in a way which is independent of dominance by food producers represents a major step forward in restoring the public's confidence in food. We are particularly pleased to note that the enforcement of food hygiene, safety and standards is to remain the responsibility of local government and it is the overwhelming consensus of local authority views that we look forward to working with the new Agency as equal partners.

  On some specific issues arising out of the White Paper, we have undertaken detailed and stand alone work. The results of this work accompany this general response as attachments on the areas of LACOTS and the FSA; Enforcement and the FSA; and the Home Authority Principle.


Specific Comments

  We welcome the guiding principles, especially their commitment to openness and consultation. However, in general terms, we believe that as well as encouraging consultation, the Agency should have an explicit mandate to work in partnership with other bodies, particularly local authorities as the primary food law regulators. On the specific detail of the Guiding Principles, we feel that a few minor amendments would strengthen even further the Agency's position:

  GP 1—as well as the protection of public health, we believe it is essential that the Agency also has a remit in the promotion of public health in relation to food.

  GP 2—whilst we agree that the Agency's assessments of food standards and safety should be unbiased, we believe that where differing interests do have to be balanced, the Agency's assessments should always favour the protection and promotion of public health. The precautionary principle should be an integral part of the Agency's approach.

  GP 4—In addition to adequate and clearly presented information, we believe that material produced by the Agency for the public should be timely to further enable individual choices to be made.

  GP 6—The commitment to consult widely should not hinder the Agency's ability to take action where expedition is necessary and full consultation is not possible.

  Paragraph 2.13—We support the view that the Agency will comply with the letter and spirit of freedom of information. However, we feel that, although proper account must be taken of commercial confidentiality, there should be a presumption that all of the Agency's information should be placed in the public domain unless there is a clear reason why this should not be the case.

  With regard to consultation, more generally, we believe that information referred to, considered by and generated by the Agency and its expert committees should be widely available to all interested parties. Also we consider that consumer interests should be an integral part of the consultation process.


  The wide remit envisaged for the Agency is enthusiastically welcomed, especially its strategic focus on national food policy issues.

  It is our view that the Agency must work in partnership with other agencies involved in food issues in the broadest sense, e.g., health promotion, diet, food poverty and social initiatives.

Specific Comments

  Paragraph 3.2—With regard to the Agency's role in public information and education, we believe that the Agency should not become an organisation that simply promotes and educates through written documents such as leaflets. It should establish close working relationships with existing health education bodies and both support their work and where specific Agency input is required, or where there are gaps in the existing provision, play a significant and innovative role in food health education.

  Paragraph 3.4—We strongly support the Agency's proposed role in food standards, composition and labelling, etc. However, in recognition of the valuable work undertaken by local authority Trading Standards Services, we would wish to see the Agency establish very close liaison and a partnership approach with local authorities on this issue. Such a joint approach would benefit business and the consumer by ensuring consistency and transparency of action both within and between central and local government agencies.

  Paragraph 3.7—We are pleased to see the commitment in the White Paper to consider a wider review of food legislation that could accompany legislative provisions to create the Agency. We are working with LACOTS to compile a range of possible options for the Government to consider and this will form part of a later submission outside this consultation.

  Paragraph 3.35—With regard to general issues affecting food law enforcement, the LGA supports the views expressed in the separate response from LACOTS on the generalities of this issue.

  Paragraph 3.37—With regard to food law enforcement, we commend the Government for reflecting Professor James's view that food law enforcement should continue to be carried out by local authorities (LAs). We support his conclusion that the Agency should work to improve the effectiveness of LA actions rather than take them over. We agree that the Agency should set and monitor standards and audit LA activities, although it is to be stressed that this must be carried out with full consultation and involvement of local authorities, the LGA and LACOTS.

  Further, with regard to the Agency having reserve powers to take over the functions of a local authority where it [the LA] is deemed to be failing, we strongly oppose this suggestion. We believe that if such powers are deemed necessary, they should remain with the Minister rather than transfer to the Agency. Giving the Agency such powers would seriously undermine the relationship that the Agency needs to establish with local government. To be effective this relationship must be open, honest and trusting. A regime in which the Agency could determine, without recourse to a Minister or Parliament, that another statutory body was failing and, could transfer the powers and responsibilities of that democratically elected and accountable local authority to another local authority or to the Agency itself, would not be conducive to the establishment of an open relationship based on mutual trust.

  Paragraph 3.38—We accept that the Agency will need to have a mechanism with which to manage the interface between it and local authorities. There are a number of models for such a mechanism. The LGA believes most strongly, however, that the role of LACOTS should be strengthened and we consider that it would be wasteful if the Agency sought to duplicate the functions of LACOTS. The primary responsibility for food law enforcement will remain with local government: we therefore believe that the body with the substantive role in co-ordination of, and guidance to, LAs should be, and continue to be, within the local government domain.

  Paragraph 3.39—We welcome the commitment to review the provision of Public Analyst services, and would wish to participate in any review process.

  Paragraph 3.41—We appreciate the Government's desire to ensure consistency of enforcement across the UK; however, we do not accept the assumptions which underlie this desire, i.e., that local authority enforcement remains, to this day, inconsistent. Over the past few years many detrimental claims have been made about local authority enforcement services and the great majority have been shown to be entirely without foundation. We must therefore challenge the view that even firmer co-ordination and oversight is required of LAs by the Agency. The local authority Associations and LACOTS have worked continuously for many years to ensure consistency and co-ordination. Even a cursory review of the measures already taken testify to the extent of this work; for example, the Home Authority Principle, Peer Review, Inter-Authority Auditing, Guidance and Codes of Practice, etc. We believe, therefore, that local government does own the responsibility for its performance and whilst we acknowledge that there is more that could be done, we feel that for this to be effective it must continue to be undertaken by a local government orientated organisation, outside of the Agency. Once again, to place this responsibility within the Agency would undermine the trust required to ensure the partnership relationship works in the most effective way.

  Paragraph 3.44—With regard to the formalisation into legislation of the Home Authority Principle (HAP), we acknowledge that there is much to commend such a move. However, there are also significant policy, practical and logistical issues to be resolved before such a development. In this respect we have provided a separate paper on HAP (attached) and will support the LACOTS nominees on the HAP Working Group.

  Paragraph 3.45—Again, with reference to the suggestion that the Agency should have powers to take over enforcement activity from a local authority, we believe that such a move would be unacceptable and that these powers should remain with the relevant Minister. The role of the Agency is such exceptions circumstances would be to advise the Minister, and to carry through any decision.


  Paragraph 4.17—We support the recommendation that an independent advisory committee on animal feedstuffs be established. Local authority membership of any such committee is essential.

  NB—There appears to be little reference to fertilisers in the White paper beyond those relating to the use of mammalian by-products. We would urge the Government to consider this subject more widely given the take up of fertilisers by crops used for human consumption.

  Paragraph 4.45—We strongly support the view that responsibility for the management of outbreaks of food borne illness should remain with local authorities. Once again, with regard to any reserve powers of the Agency to take over the management of an outbreak, we consider it essential that further, detailed consultation is undertaken on exactly how, and in what circumstances, this is proposed to occur. Prior to the outcome of any discussion, our view is that the Agency should play a support role only in the management of large outbreaks, working with local authority partners and not taking the investigation over, unless the circumstances are wholly exceptional.

  Paragraph 4.52-See comments on default powers and their use above.


  Paragraph 5.3—We support the suggested role for the Agency in food standards, as this clearly places the interests of the consumer at the centre of the Agency's work.

  Paragraph 5.5—In supporting the role of the Agency in food standards, we must urge, given that the enforcement role in this area will remain with local authorities, that the Agency must commit to very close working with the LGA and LACOTS, as well as other government departments such as the Department of Trade and Industry, when dealing with food standards and labelling, etc.

  Paragraph 5.11—We support the Government's proposals for the Agency's role in nutrition.

  Paragraph 5.15—We support the view that, with regard to issues such as food poverty, the Agency should collaborate with the Department of Health and other relevant bodies, both inside and outside of government.


  Paragraph 6.5—We agree with the Government's view that a suitable basis for the structure of the Agency is one based on the Health and Safety Commission (HSC)Health and Safety Executive (HSE). However, there are a number of improvements we would wish to see in such a model before it was adopted by the FSA, as detailed in subsequent comments:

  Paragraph 6.6—We support the view that Commissioners should come from a wide background although it is difficult to see how an individual could have gained such wide sectoral experience without having at least some specific affiliation.

  We strongly urge the Government to consider the case for having at least two of the Commissioners from a local authority background, preferably serving local councillors. Local authorities are democratically elected bodies, and elected members are in a unique position to represent consumers, local businesses and enforcers. In this way they truly match the Government's aspirations that Commissioners should come from a wide public interest background.

  Paragraph 6.9—We can see that the definitive legal division between the HSC and the HSE may not be appropriate for the FSA. However, we feel that there is a need for transparent lines of delineation between the two. There is, without doubt, a need for the Commission to be seen to be truly impartial in its consideration of food safety/standards issues and we are concerned that using Agency staff to service the Commission may not yield the cultural transformation necessary to guarantee the re-establishment of consumer confidence in food. We would therefore suggest that the Commission should have an independent secretariat, and that these employees should not be employed on Civil Service terms and conditions.

  Paragraph 6.15—We feel that the presumption should be that any advice the Agency gives to the Minister should be published unless there are clear and justifiable reasons why this should not be the case.

  Paragraph 6.20—We feel that in order for the Agency to achieve, and be seen to achieve, the cultural change required to deliver the Government's aspirations concerning an improvement in consumer confidence in food and a raising of standards in food production and retailing, it would be preferable for the Chief Executive not to be a civil servant, but rather a Crown Office Holder. Further, we have some sympathy with Professor James' more general view that a significant proportion of Agency staff should come from sources outside the existing government departments in order to ensure cultural change.


  Paragraph 7.5—We agree with the Government's view that the Agency should be established as a UK body. However, we support the proposal to develop appropriate legislative and organisational arrangements to meet the specific needs of Scotland, Northern Ireland and Wales.


  This, the "greenest" part of the White Paper is, of critical interest of local government.

  In summary, the LGA:

    —  supports the establishment of a full licensing system, with a licence fee, managed and collected respectively by local authorities;

    —  does not support the proposal for local authorities to collect the licence fee, and then, having retained a proportion of the fee to cover administrative costs (and, possibly, an enhanced food standards enforcement regime) to hand the remainder over to central government;

    —  wishes to explore, instead, the idea of local authorities retaining the locally collected licence fees to cover the cost of administering the licensing system, and either all or part of the cost of local foods standards enforcement; depending on the exact balance of costs and income received, it might be that central government would be able to reduce the amount paid to local authorities through the Revenue Support Grant to meet food standards enforcement work, thereby releasing funds to offset the costs of the FSA, always provided that local authorities receive a net increase in funds to spend on food standards enforcement work.

Licensing or Registration

  Chapter 8 of the White Paper states clearly that the Government wishes to shift the cost of food standards work away from the taxpayer and towards the industry, and that the appropriate mechanism for achieving this would be:

    "to introduce a comprehensive system of registration or licensing with fees" (Paragraph 8.17. Page 45).

  Such a scheme would allow:

    —  the consolidation of existing registration, approval and licensing arrangements;

    —  the provision of additional resources to meet the new costs associated with the FSA and an enhanced local authority enforcement regime.

  The Government appears to regard the main purpose of the proposed licensing/registration scheme to be creating fee income, rather than raising standards. The LGA would put the matter the other way round: a local authority operated licensing scheme (but not a registration scheme) is strongly to be welcomed as a means by which standards can be improved and enforced, and by which fee income can also be generated. The LGA has no difficulty, in principle, with the Government's commitment to shift some of the costs of food standards work from the taxpayer to the industry.

  The LGA strongly supports a licensing system, and does not believe that a registration system provides sufficient control over food standards. The current registration system merely draws the attention of the local authority to the existence and location of food premises in its area. What is needed is a licence to operate based on certain conditions being met, including prior approval (i.e., a food business would need to apply for and be granted a licence before it could start trading).

  The LGA believes that the licence should separately cover the premises and the proprietor or manager (the latter involving the "fit and proper person" concept). There is a clear precedent for this in the licensing of the Hackney Carriage trade.

Funding Issues

  The LGA believes that the cost of the FSA should be met from general taxation.

  Ideally, we would prefer all, or the great majority of, costs of national and local government work to protect food standards to be met from national taxation and council tax, because fees levied on the industry will work their way through to increases in food prices to the detriment of less well-off people, who spend a higher proportion of their income on food than better-off people.

  However, given the Government's clear intention to shift the burden of cost away from the taxpayer to the industry on the "polluter pays" principle, the LGA acknowledges that a funding solution needs to be found which:

    —  raises more money in aggregate for food standards protection work at central government/FSA and at local level;

    —  increases the proportion of income to be raised by fees and charges.

  The LGA does not support the proposal in Chapter 8 for local authorities to collect licensing/registration fees and then, having retained a proportion of the fee to cover administrative costs and, possibly, the additional costs associated with an enhanced enforcement regime, to hand the remainder over to central government to defray the costs of the FSA.

  Rather, we believe that the better solution—from both a principled and practical point of view—would be for the local authority to collect and keep the licensing fees, and use them to cover:

    —  the administrative costs of managing the licensing regime;

    —  the additional costs of an enhanced food standards enforcement regime;

    —  all or—more probably—some of the current costs of food standards protection.

  Depending on the level of fees imposed, and on the proportion of the local authorities' costs of food standards work covered by the fees, it may be possible for the Government to reduce the amount of Revenue Support Grant channelled to local authorities to help pay for this type of work while ensuring that local government benefited from a net increase in funds. The money saved by central government in this way could then be used to offset the costs of the FSA.

  This solution would also have the advantage of solving the "ring-fencing" problem. Neither the Government (see Paragraph 8.11. Page 44) nor the LGA favours the ring-fencing of RSG monies for local authority expenditure on enforcement and surveillance. However, income raised locally from the licensing of food businesses would, as a fee for a specific service, be expected to be spent on food standards work and this would be less likely to raise the same level of concern about ring-fencing.

  To state the obvious, much detailed work will need to be done on these proposals for licensing and for getting the balance right between central and local financing. The devil will be in the detail. Some of the issues which will cause considerable difficulty include:

    —  whether the fee should be a flat-rate fee, or a differential fee and, if the latter (which would be supported by the LGA), differentiated according to what criteria;

    —  whether the fee should be collected annually (to ensure continuity and predictability of income for the local authority), even if many food premises would not—on the basis of risk assessment criteria—need to be visited every year;

    —  whether the fee should be used to pay for all local authority food standards work, or only food hygiene enforcement; if the latter, this would reduce the difficulties which would otherwise occur in non-metropolitan areas with district council environmental health departments dealing with food hygiene matters, and country council trading standards departments dealing with food composition and labelling matters; if the district council were to collect the licence fee and the fee was expected to cover all food standards work, then there would need to be a formula by which the income would be distributed between the district and county; the alternative would be for (district) food hygiene enforcement to be paid for out of the licence fee, and the (county) food composition and labelling enforcement to continue to be funded wholly through RSG.

  The LGA believes that the Government needs to develop some detailed options concerning funding mechanisms, which could then be carefully evaluated. We support the decision to establish a Working Group to look at financial issues, and to include representatives from LGA and individual local authorities.


  The LGA and LACOTS welcome enthusiastically the creation of a new national Food Standards Agency. We believe that the Agency will be able to bring a coherence to national food policy previously unattainable with matters spread disparately across a number of Government Departments. We welcome unreservedly the acknowledgement that enforcement is most effectively delivered locally and we look forward to working with the Agency, as equal partners, in improving the regime still further.

  We acknowledge the Government's desire to ensure that the costs of safe food production and retailing do not unjustly burden the taxpayer. However, whilst we support the concept of a licensing system for food businesses and proprietors, we view this as primarily a means to raise standards.



  1.1 The White Paper on the establishment and operation of the Food Standards Agency for the UK requested comments on any areas where the existing primary legislation is demonstrably deficient (paragraph 3.7). the LACOTS/LGA submission on the White Paper indicated that comments were being prepared. Accordingly, this paper identifies a number of areas which LACOTS and the LGA believe necessitate changes to the Food Safety Act 1990.


Application of the Food Safety Act and Subsidiary Legislation to Aircraft and Ships (S1 (3))

  2.1 The definition of "premises" in S1 (3) of the Act provides that any ship or aircraft may be specified as "premises" in an order made by ministers under the Act. To our knowledge no such order has been made. LACOTS has ascertained that S92 of the Civil Aviation Act 1982 applies criminal law to all aircraft on or over the UK and to British controlled aircraft in flight but not over UK airspace, insofar as that law contains provisions about any act or omission. We are not aware of any exemptions from this. It would therefore appear that the requirements of the Act do apply by virtue of the Civil Aviation Act.

  2.2 Since Parliament in the Civil Aviation Act appears to have adopted the principle that activities on aircraft should be subject to UK criminal law, we would argue that this should be formally recognised through an amendment to the Food Safety Act or at least in an order made under it.

  2.3 It is difficult to provide examples of food safety breaches on aircraft for two reasons: first, it is debatable whether the Civil Aviation Act applies S32 (Powers of Entry) of the Food Safety Act to aircraft, and airport authorities follow the line that enforcement officers cannot inspect aircraft. The only definite powers of entry available are in respect of infectious disease investigations (e.g., food poisoning), under the Public Health (Aircraft) Regulations 1979. Second, it is difficult to trace causes of food poisoning if it occurs on an aircraft. This is because passengers disburse widely and cannot be traced for the collection of epidemiological evidence.

  2.4 We are not aware of a similar general criminal liability for activities on ships, but would argue that the same principle should apply and that an amendment to the Act should include ships and indeed any marine craft. S58(1) of the Act does not appear to automatically apply food safety legislation to ships, since ships are specifically mentioned in S1(3) as being excluded from the provisions of the Act except by order.

Definition of "Food Business" (S1(3))

  2.5 In recent years LACOTS has received a number of queries from local authorities on whether certain food handling and preparation activities carried out on an informal, voluntary, leisure or charitable basis come under the definition of "food business" in the Food Safety (General Food Hygiene) Regulations 1995 (and their equivalent in Northern Ireland), which of course come under the Act (and the Northern Ireland Order). The queries have related to activities such as home economics classes in schools and colleges, cricket clubs teas (and, by implication, a wide range of similar activities); catering carried out by caravan club members at function; Round Table fund-raising activities in which a member provides a meal for friends who in return give the member money for the Round Table or for a particular good cause (and, by implication, catering for charitable events in general); and private clubs, where food may not be purchased or sold, at least not directly. To these could be added catering carried out by friends and relatives at events such as wedding receptions. The provision of food in fire brigade mess rooms has also been raised in several queries.

  2.6 Whilst in many of these cases whether or not the Act applies will depend upon the particular circumstances of the activity, it may be that the Act could usefully be amended to specify a little more clearly the definition of a food business with respect to non-registered premises where there is catering for functions for groups of people. This would assist local authorities attempting to implement recommendation 19 of the Pennington Group Report which said: "steps should be taken by local authorities to encourage the adoption of HACCP principles in non-registered premises where there is catering for functions for groups of people involving the serving of more than just tea, coffee and confectionary goods. That could include ensuring the display within the premises of appropriate guidance, encouraging organisers to seek advice from local environmental health departments prior to events and ensuring appropriate periodic checks of, for example, cooking and refrigeration equipment are carried out in premises known to be used for such events." A significant proportion of food poisoning occurs at such functions at venues such as church, community and village halls, and it would be useful for local authorities to have a clearer indication that they have powers to inspect such premises under the Act.

Prohibitions of Food Business Proprietors (S11)

  2.7 S11 provides order powers to prevent persons for carrying on a food business. Wording of the Section makes it difficult to enforce, particularly where a food authority suspects an order has been or is being breached. The problem is the wording of S11(4), which provides that a court may by order impose a prohibition on the proprietor participating in the "management of any food business . . . ". The meaning of "management" is open to interpretation, and in a recent court case taken by a London authority the proprietor who the authority was applying to prohibit claims that someone else was responsible for decisions which could be construed as "management", he claimed he was merely a worker. Fortunately the authority was able to obtain documentation which helped it to win the case, but there might have been less risk of the case failing had the Act contained wording to determine more specifically what activities a proprietor (or manager) can be prohibited from carrying out. Whilst it could be argued that specifying more closely what is meant by "management" could assist some proprietors in contravening the Act and prohibition orders, we believe the issue is worth considering.

  2.8 The lack of clarity about what is meant by "management" also led to another defence in the above court case, with the proprietor claiming that he didn't know at what point in his involvement in the business he would be contravening the prohibition order on him, and that therefore in relation to S11(5) he did not "knowingly" contravene the order, and accordingly was not guilty of the offence specified in S11(5).

  2.9 It has also been suggested that incorporating provisions along the lines of Part 3 of the Fair Trading Act 1973 would provide better safeguards with respect to the observance of prohibition orders and make the enforcement process more efficient. Part 3 requires written undertakings that traders will stop a particular activity, and a breach of such an undertaking can lead to an injunction and a possible custodial sentence.

Emergency Prohibition Notices and Orders (S12)

  2.10 The interim report of the Pennington Group in January 1997 contained what was later accepted to be an incorrect interpretation of S12(4) of the Act, namely that a food authority had to prove beyond reasonable doubt that operations present an imminent risk of injury to health. The concern of the Group was that this had dissuaded some authorities from closing some premises which should have been closed. In fact the Department of Health later clarified that the standard of proof was to a civil standard, what a reasonable person would require. This should be made clear in the Act, as, being criminal law, the natural assumption is that a criminal standard of proof is needed for all its provisions.

Food Labelling

  2.11 The provisions of Article 2 of the Food Labelling Directive (79/112/EEC) are not fully reflected in S15 of the Act. MAFF has argued in the past that Article 2 is implemented by S15, by the Food Labelling Regulations 1996 and by S1 of the Trade Descriptions Act 1968 in combination, although has preferred prosecutions to be taken under the Food Safety Act or the Food Labelling Regulations where possible. However, it is not clear whether all of Article 2 is reflected in these statutes. This area of law requires clarification, and it would make for easier and more efficient enforcement procedures if Article 2 was fully placed into S15. There are other provisions in the Trade Descriptions Act applying to food which do not cause a problem because they are only contained in that Act, and they therefore should be retained.

  2.12 Two examples of labelling which enforcers have argued contravenes Article 2 are: the labelling of bread as "fresh" which has previously been part-baked and frozen elsewhere (misleading as to the "method of manufacture or production" (Article 2,1(a)(i))—there could be difficulties in prosecuting under S15 of the Food Safety Act; the quite recent labelling of cornflakes as "low fat" which appears to be contrary to Article 2,1(a)(iii), in that it could mislead the purchaser by "suggesting that the foodstuff possess special characteristics when in fact all similar foodstuffs possesses such characteristics." This probably could not be taken under S15.

Evidence from Witnesses (S33)

  2.13 In investigating possible breaches of food hygiene law or gathering evidence for legal action, particularly with respect to food poisoning outbreaks, important information can be made more difficult to obtain through witnesses refusing to answer questions or respond to requests for information. This happens from time to time, quite recently when a London Borough was urgently attempting to obtain contact details for guests at a dinner where there had been a food poisoning outbreak. Another example relating to the provision of records is that described in the attached Times Law Report on Walkers Snack Foods Ltd v Coventry City Council.

  2.14 The Health and Safety at Work Act 1974 at S20(2)(j) gives power to an inspector to require anyone whom he reasonably believes can provide information to answer questions and to sign a declaration that the answers are true. We consider this to be stronger than the equivalent provision in the Food Safety Act (S33(1)) for two reasons: first in the Food Safety Act, a person can refuse to give information with "reasonable cause"; in a practical situation where someone has a reason not to give information, this provision could well be seen by the person as a defence which they would stand a good chance of using successfully. The HSW Act does not allow this defence, only going as far as requiring the inspector to be reasonable in whom and what he asks. Second, in a practical situation, an inspector able to say that the law gives him the power to require someone to answer questions is likely to carry more weight than an inspector only able to point out that the person will be committing an office if they refuse to give assistance or information; the consequences of refusal seem less immediate.

  2.15 The last two paragraphs of the report on Walkers v Coventry refer to an attempt by the company to use the "reasonable cause" provisions of S33 as a defence. This submission could not have been made if a similar provision to S20 of the HSW Act had been available to the Coventry officers, and the position would have been clearer to all concerned during the visit to the factory.

  2.16 We therefore consider that the HSW Act S20(2)(j) provision should also be contained in the Food Safety Act.

Time Limit for Prosecutions (S34)

  2.17 There is currently a difference in time limit for prosecutions between some regulations made under the Act and those in S34. The Food Labelling Regulations 1996 have a limit of six months from discovery of the offence, whilst the Act has one year. An amendment to S34 could stipulate that its provisions apply to all statutory instruments made under the Act, unless there is reasonable cause to apply different limits.

"Minded to Notices"

  2.18 We understand that the Government intends to repeal the Improvement of Enforcement Procedures (Food Safety Act 1990) Order 1996, which requires food authorities to serve "minded to" notices before serving improvement notices under Section 10 of the Food Safety Act, but that it has been difficult to identify a suitable slot in the Parliamentary timetable. We suggest the Food Agency Bill would be an appropriate vehicle to include this provision if Government does not intend to introduce an amending Order under the Deregulation and Contracting Out Act 1996 before then.


Home Authority Principle (HAP)

  3.1 One of the suggestions for consideration in the White Paper was the formalisation of the Home Authority Principle, by implication making it mandatory to operate it. If introduced, this would have significant implications for the powers of home and originating authorities. For example, if enforcing authorities were required to observe and enforce a home authority's advice to a business on food labelling or hazard analysis, it may be desirable for the home authority to have available if necessary the power to require a business centrally to implement changes to its labelling or hazard analysis policies and procedures. These possible new elements of primary food safety legislation need to be discussed at the working group on the HAP being set up by government.

Appointment of Public Analysts (S27)

  3.2 There may be issues in relation to this Section with implications for amendments to the Act. These would need to be discussed during the review of public analyst and scientific services referred to in the White Paper.

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries

© Parliamentary copyright 1999
Prepared 12 April 1999