MEMORANDUM 23
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.
SUMMARY
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
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.
ANNEX 2
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.
ANNEX 3
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
ANNEX 1
THE DRAFT
FOOD STANDARDS
BILL AND
LEVY PROPOSALS
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:
THE LEVY
SCHEME
— 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.
OTHER MATTERS
— 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.
ANNEX 2
THE FOOD STANDARDS AGENCY—A FORCE FOR
CHANGE
A Joint Response by The Local Government
Association and Lacots
PREAMBLE
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.
INTRODUCTION
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.
CHAPTER 2—THE
AGENCY'S
GUIDING PRINCIPLES
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.
CHAPTER 3—WHAT
THE AGENCY
SHOULD DO
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.
CHAPTER 4—
THE AGENCY'S
ROLE IN
FOOD SAFETY
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.
CHAPTER 5—THE
AGENCY'S
ROLE IN
FOOD STANDARDS
AND NUTRITION
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.
CHAPTER 6—THE
STRUCTURE OF
THE AGENCY
AND ITS
ACCOUNTABILITY
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.
CHAPTER 7—THE
AGENCY IN
SCOTLAND, WALES
AND NORTHERN
IRELAND
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.
CHAPTER 8—FINANCING
THE AGENCY
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.
CONCLUSIONS
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.
ANNEX 3
1. INTRODUCTION
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.
2. DETAILS
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.
3. POSSIBLE AMENDMENTS
WHICH COULD
ARISE IN
FURTHER DISCUSSIONS
IN SPECIFIC
TOPICS
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.
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