Select Committee on Food Standards Minutes of Evidence

Examination of Witnesses (Questions 880 - 899)



  880.  Some people are saying at the moment that obviously setting further standards than are currently being set and will be set if the Food Standards Agency comes into being is a further encroachment in terms of the local authorities' function in food. Do you believe that that is the case? Will you be happy with that?
  (Mr Ashley)  We have already indicated, I think, that we do not have any problem at all about a national framework in which local government talks to central government and the Agency in order to come to an agreed position about the kind of standards which need to be aimed at. It is very difficult to see a strong argument for local autonomy in the emphasis that you give to food safety, particularly its more vital elements. The argument about local autonomy, which obviously we specialise in in many respects, is stronger in certain kinds of areas. In those areas which relate to vital matters to the individual in terms of health, life and death, then the more you move towards those the more we obviously accept ourselves that there have to be national standards. It cannot be the case that where you happen to live in this country should determine your chance of infant mortality, your likelihood of dying from E.coli or whatever.

Ms Keeble

  881.  I have a quick question which is really back on this attitude of will the relationships be all right. I accept that in most instances local authorities are extremely co-operative on this type of thing, but there have been some notable exceptions. If we take the beef on the bone ban, you might recall that environmental health officers in particular came out strongly against what the Government was doing and said it was impractical—it was all over the "Today" radio programme. Supposing the FSA is going to have a blitz on E.coli and it says, therefore, that every portion of fillet steak sold in every single supermarket has to have on the label "Must be cooked until the juices run clear "—ie, "No more rare fillet steaks for you". Do you really tell me that this is something which environmental health officers are going to embrace with open arms, look at enthusiastically and say, "We're going to go round and do the inspections for this"? In practical terms, do you really think the relationships are going to be that good ?
  (Mr Ashley)  I would regard those as good. I am not sure that I would particularly welcome that degree of very close prescription, and I think that is a slightly strange scenario. You have chosen a fairly extreme extension of what I accept was a genuinely difficult problem in the case of beef on the bone. I have to say that the LGA's view was not that of the Chartered Institute of Environmental Health in respect of beef on the bone.

  882.  It is over practical things like that where this is of relevance. If there is a real crisis and the Food Standards Agency said, "Right, this is it", that is when all the relationships would be put under strain. How is that going to be managed?
  (Mr Cull)  I hope we do not get to that position á propos of nothing, as it were. If there is going to be a partnership—and I genuinely think there will be one, because we are starting to talk much more earnestly at the moment—then the partnership will be a true one, and this will not happen. There was a leaflet produced by LACOTS and the Local Government Association in February 1997 in which we said that just because we are in local government and regulated, we do not believe that regulation is the answer to everything. There is a whole series of ways in which you can tackle a problem, but what is absolutely critical is that there is a good dialogue between legislators and regulators before laws are passed. If you are a regulator, one thing you do not like to do is to be criticised because you have poor tools with which to do a job. So I hope that that dialogue does take place in a meaningful way.

  883.  This is a practical question about labelling. My little girl caught E.coli from beef which I cooked which was rare. There was no indication on the labelling. This is a very practical thing. You say it is extreme and would be hard to enforce, yet it is a very practical example. I am going to push you again. Are environmental health officers and everybody else really going to accept the instructions which come out from the FSA?
  (Mr Sherwood)  I think the answer is that if it is feasible to do it, yes, but it comes down to that answer, if it is feasible. I think the problem with the beef on the bone was its feasibility of actually enforcing it.
  (Mr Cull)  If there has been an issue where despite everyone's best efforts with all the other things we talked about, a problem is growing and all those partners to that problem say, "Yes, we can see the graph going up, so we need to do something much different, more extreme, a particular focus", and that comes out of an understanding of the problem, then I do not think local government have any issues about that at all.

Audrey Wise

  884.  Can I go back to something that Mr Stevens said about the result of the break-up of the teams with the coming of so many unitary authorities. You said, Mr Stevens, that perhaps the unitaries would have to be made bigger, but they are not going to be made bigger because it took years to get the degree of local government reorganisation that happened with a lot of us extremely dissatisfied with the results, so it is not going to be reopened in the near future. There has been a possible solution indicated in the form of team work and clustering and specialisation. Do you envisage the FSA actually instructing authorities to go down that path if they feel that it is justified in resource terms and efficiency terms and do you think they should?
  (Mr Stevens)  As was mentioned earlier, there are one or two pilots happening. In the Midlands there is a group called "Crossing the Boundaries", which involves Gloucestershire, Worcestershire, Oxfordshire and a couple of other counties that do not immediately come to mind. We act as public analysts for all of those and there is a fairly good degree developing now of sharing information, sharing expertise, sharing the results of analysis and that could well be taken as a model. Whether it is taken as a model that is insisted upon or whether it is taken as a model of good practice is perhaps not for me to say, but I think it is a way forward, the sharing of all that expertise within the group.
  (Mr Ashley)  Mr Cull, I think, earlier referred to one of the key principles of best value which is if a local authority is to look at the service that it is charged to provide and work out and challenge itself as to whether it is providing it in the best way possible, and if it is not, there may be other alternatives of bringing other people in, engaging in partnerships and so on. Ultimately, the local authority, whether it be very large or very small, there is a unitary in the case of Rutland of about 30,000 people clearly unable in and of itself to provide a full trading standards or environmental health service, but, nevertheless, it has got the responsibility to look as to how it will meet its need and then it takes whatever is necessary in terms of contracting with other people, other services, the private sector or whatever, to ensure that it discharges its statutory responsibility properly and, therefore, the LGA does not have a problem about large or small authorities in that sense, but the simple test is whether they have done what is necessary to provide the service.

  885.  Yes, but Mr Stevens pointed out that there have been practical consequences, like the break-up of teams with expertise and the loss of people in fact from the service. You have said what should happen in the best of worlds, but if they do not, short of a takeover by the FSA, should the FSA make it clear that it will give instructions for team work and efficient working if it is necessary? That is what I am trying to tease out.
  (Mr Ashley)  I do not think we would think that it is appropriate for there to be a requirement from a body like the FSA for particular units of local government to be forced to join together in any particular way. I do think at the end of the day that the ultimate sanction which will, I hope, make local authorities look at a situation like that and come up with their own efficient solution, at the end of the day the FSA/Ministers do have the power if continuing poor performance results from whatever it results, and it may be the fact that there are not sufficient economies of scale and they cannot provide an efficient service, and at the end of the day, that service can be taken away from those local authorities and that ought to be the thing that concentrates people's minds wonderfully.
  (Mr Butterworth)  Within local authorities and certainly within the local authorities where the two-tier structure still exists, I think the emphasis is on devolving responsibilities to a lower tier wherever practical and possible and that is usually done under the best value banner. I think it would be helpful if there was a reminder that in some areas, like regulation, best value also meant working across other authorities, to pool that expertise and to share that expertise, and it is not just on food, but in other regulatory areas too. There was a quote from Lord Bassam in the Local Government Chronicle on housing benefits administration and he mentioned, again under the best value regime, the number of district councils that had banded together in this area and which offered the opportunity nationally of saving millions in terms of benefit administration. But I think at this moment in time that unless best value is clearly and explicitly mentioned within the Bill or unless it is actually brought out in another way, then we will not necessarily see that sort of broader dimension of having to work across boundaries and across barriers to work together, to work and bring about the value for money which I think at this moment in time we would accept we are not delivering.

  886.  You mentioned something else which I was going to come on to as another possible cause of poor performance or difficulty. As I remember, you mentioned that just as there was a conflict of interest between MAFF, or seemed to be, with the producer interest and the consumer interests, so in certain places, not universally, but certain places, there could be similar conflict within local government. That is, where there were big employment consequences, and you instanced farms in your own situation in Devon, but it could also happen if there was a major employer with a food processing factory, this might make certain difficulties, I understood you to have been implying, because of a conflict between what is seen to be best for the area. How do you see that conflict, which I am afraid is all too clearly possible, being resolved and how do you think that should be tackled?
  (Mr Butterworth)  Well, it is not going to be resolved at this moment in time and sometimes it is not necessarily a case of not telling the public, but it is the way in which you do it and the language you choose to inform the public, whilst at the same time trying to reduce the risk of destroying a very valuable part of the local economy. At this moment in time I think there is a concern from certainly senior practitioners within local authorities that there are instances when perhaps they are being inclined to keep their heads below the parapet, and the current legislation or the draft legislation is not going to address that. Now, I am not necessarily saying that having some whistle-blowing powers is an appropriate mechanism, but there has got to be some way of either doing one of two things, I think; either protecting that individual within the authority who either feels strongly enough to voice those concerns within that community or wishes to share that information with the Food Standards Agency, the individual has got to be somehow protected from having to put their job on the line if that came about. Whether that is through some sort of support for that particular role within the authority or whether it is making perhaps the chief executives or someone else jointly and severally liable for what goes on within the authority I think is for others to discuss, but there is, nonetheless, the same sort of issue within local authorities that has not yet been addressed, but it is there, it brings in the same question whether MAFF was capable of serving those dual interests.

  887.  It is certainly an important point that you have raised because of course keeping your head down and the sort of general soothing syrup approach has caused far more damage to the commercial interests of the industry than a more open, honest approach in the beginning would have done, so I think that you may well be on to a good point that either whistle blowing or some other way of tackling this should be included in the Bill. How would other witnesses think about such an idea?
  (Mr Cull)  I suppose I would give the answer that in all walks of live there are such potential conflicts of interest and tensions and local authorities these days increasingly are adopting policies around enforcement to make sure that there is transparency within the authority for tackling, for example, social services where mechanisms are introduced for looking at homes and so forth, but the Local Government Association has produced an enforcement concordat to show a reasonable approach to enforcement. That increasingly is being accepted and endorsed, as it were, by local authorities at the member level, politician level, and I think that those arguments are being taken forward. I would not probably share quite the concern that Stephen Butterworth was putting forward. I do not dismiss it, but I am just saying that I suspect they are not quite as prevalent as we might have heard. So I am not sure whether there is a need to have whistle-blowing in the Act or not.
  (Mr Ashley)  I would largely agree with that. I also felt that I would not necessarily agree with Mr Butterworth in so far as he went. Central and local government both have a constant problem of alternative pulls. There are tensions and pulls which they face in their work all the time. Very often the hard edge of that is where somebody will argue that employment loss will result. Central government is just as affected by that as local government, and we are very used to having to balance and hold the ring within some very difficult competing demands.

  888.  What this is about really is elevating the professional integrity of the staff so that it becomes the prime determinant for the actions of a member of staff. After all, if there is nothing to blow the whistle about, nobody will blow the whistle, so it will just remain a dead thing on the face of the Act, but it is not doing any harm, is it? Whereas might it not do harm if it were needed, even if only in one or two places, but it was not there, and people were afraid?
  (Mr Reynolds)  Surely this question of blowing the whistle is going to be determined by whether or not the staff have the skills and the technical expertise which is called for. To a very large extent that is going to be determined by whether or not funds are within the system to make sure that within departments you have staff who are adequately qualified, adequately experienced and in a position to make proper judgements as to whether or not the whistle needs to be blown. It all comes back to the question fundamentally of the funding. We have looked at the question earlier of what happens if an authority fails. An authority would fail if it did not blow whistles when it should, but if the Agency is going to look at an authority and decide that it is in danger of failing, it is not simply going to impose the duty upon somebody else—and I think that it would be naive to think that is the way it would happen—I am sure the outcome would be that the failing authority would be charged for somebody else providing the service which they should provide. At the end of the day, though, there are an awful lot of professionals out there who simply want one thing above all, which is simply to get on with the job for which they are qualified, to be able to look after and protect the consumers and to make sure that the food manufacturers and producers are also given a fair crack of the whip. If the resources are not in place, if local authorities are not able to spend the money which they need to, then for heaven's sake, when it comes to best value, you have to be in a position to spend as much money as you can wisely, not as little as elected members are prepared to let you spend. It is really making sure that the resources you put in through standard spending assessments are actually getting through to the sharp end and being properly used.


  889.  Mr Cull, you mentioned the enforcement concordat which you have. Could you send a copy of that to the Committee, please, so that we may have it before we make our deliberations?
  (Mr Cull)  Yes. I have one quick comment to make in response, in order to put my comments in context. I am not against whistle-blowing. As I say, that is a good principle to have, and we all work in organisations where it exists. However, the Audit Commission should be asking all sorts of questions to make sure that there is a transparency, to make sure that if a business or a consumer has a complaint, is that complaint heard properly, does it go to the right level, is there accountability through to the politicians before the decisions are taken, who makes the decisions about prosecutions? There are a whole series of questions which follow down that pyramid, that audit trail, which I hope should tease out the answer to whether or not there is an equitable approach, an objective approach, a rigorous approach and so forth.

Rev Smyth

  890.  There is a different emphasis in different parts. For example, in Northern Ireland during the BSE crisis they had a traceability system which allowed them to tackle it before other areas. Now the Republic of Ireland are setting up a national Codex—a system of standards which local enforcement bodies would then be charged with delivering and enforcing. Should the Food Standards Agency emulate that system?
  (Mr Sherwood)  There is much merit in the work which has been done by the Irish Food Standards Agency. I have heard Patrick Wall speak on more than one occasion now. In fact they seem to have jumped ourselves in this respect, even though the planning of their agency started after the planning of the UK agency, and they are actually in being. Yes, I would like to see Codex standards brought about, I think there is much merit in them, there is no question of that.


  891.  I now have a question on inspection. I think you may have touched on this. Food production technologies are very complex procedures in food processing, whether it be the thermal treatment processes for canned products or pasteurisation regimes. Are you currently convinced that there are enough skills, knowledge and technical ability out there within local authorities for the inspection and auditing of premises?
  (Mr Sherwood)  Yes.

  892.  You are. It was not a catch question, Mr Sherwood, I assure you. If the answer to that is "Yes", then that is fine. That would be so for all of you, would it?
  (Mr Reynolds)  There are many disciplinary skills which are available within local authorities. The important thing is that all of them are used at the right time. The point which I would make is that where there are skills within the laboratory, then the science must not be restricted and kept in the laboratory, it must get out into the production place as well if by doing so it is going to facilitate the quality of inspections and make sure that the information which is obtained is better used.

  893.  Are you also happy with clause 15 of the Bill, which provides the FSA with inspection powers? Obviously this is something whereby they can inspect the local authority and what happens there as well. How do you see the FSA carrying them out in practice? Do you think it is something you will not know about, and somebody is just going to descend on a local authority environmental health unit?
  (Mr Sherwood)  I think it would be unreal to do that. At the end of the day they need access, and should rightfully have access, to all of the facilities, all of the records, computer systems, etcetera. They can be quite complex now. Just like a food business, our systems are quite complex, and I think it is necessary to agree a timescale for this monitoring activity to take place. I do not see that authorities have anything to hide.
  (Mr Ashley)  I think the power to enter premises obviously is not something which Parliament gives easily, and we would expect it to be used with discretion and the usual test of reasonableness. We accept that there may be circumstances under which any kind of premise—and that could even involve a local authority premise—on the basis of evidence which is received, or again indications of failure or quite possibly criminal concealment, may require the ultimate use of those powers, but we would expect those obviously to be used very cautiously.
  (Mr Stevens)  The laboratory quality system external auditing is a good model. These visits happen at regular intervals, usually twice a year, but there is the fallback that if there is believed to be a problem then there can be an unannounced visit, and I think that is a sensible route.

Chairman:  We are now going to move on to our old friend the levy which in theory this Committee is not looking at the detail of, as it is out for separate consultation.

Mrs Organ

  894.  You make clear in your memorandum your view of the levy as proposed. You make clear that what you are really looking for is a licensing scheme in order to raise standards. However, Tesco said very recently that they would find a licensing scheme "a very administratively burdensome and inefficient" method, and the British Retail Consortium challenged the view that having a licence would "raise food safety standards per se". Can you give us some thoughts as to why you consider a registration scheme not robust enough, why you want a licensing scheme? How is it going to operate? Is it going to be costly, as Tesco suggest, and burdensome? Will we not need a change in legislation to put a licensing scheme into place?
  (Mr Ashley)  Perhaps I could start off. The LGA's view and LACOTS' view was that a licensing scheme was a sensible way forward mainly because of the prior approval power that it provides. Registration is not without value, but the difficulty is that in terms of businesses starting up, and a very large number of food businesses turn over every year, in terms of starting up, it does seem to me that with again such a vital issue as food safety, there really ought to be some degree of greater control over both the premises and the fit and proper person concept coming in to run something as important as food and, therefore, a prior approval licensing system gives you or gives a local authority exactly that degree of control with somebody coming into the industry. Now, again that has to be used properly. It must not be used oppressively. You are talking about people's livelihoods or would-be livelihoods and, therefore, all the usual tests of reasonableness would have to apply, but we do believe that evidence from other countries, such as Canada, for example, shows that a licensing system can be a very effective tool of ensuring high quality food standards.

  895.  And is it costly?
  (Mr Ashley)  Well, it is certainly potentially more costly than the registration scheme of the sort we have had so far which many people have not felt very strongly about. There does not appear to have been a great incentive in a sense to maintain the absolute accuracy of that because in many ways there are not many teeth that go with it. I think if you have a licensing scheme, that would be part of and it would be a signal for a rather enhanced level of food control which would require more resources generally and the licensing scheme would be a method of raising money not on the public purse fully, in which, if you wish, the equivalent of the "polluter pays", those people who potentially place the public at risk in terms of the handling of food then contribute to the costs of the necessary monitoring and enforcement regime and we think that is perfectly reasonable.

  896.  What about the problem that you would have about raising standards for all the sort of local village fetes that are selling food or the charities that put on a buffet supper or whatever? All you are doing is raising the standards of those that are going for the licence, but the people that are not trained are not going to be picked up at all.
  (Mr Ashley)  Well, that would depend on the exact scope of the licence. A balance would have to be struck. I can hear the Women's Institute kind of response coming in very quickly and we have seen it before in terms of trying to avoid an unnecessarily bureaucratic and oppressive regime that is simply disproportionate to the risk involved, but one of the problems in this area is that some of the most severe risks in terms of food poisoning are small caterers, people who provide wedding cake catering and they are relatively small companies and the idea that they should be excluded on a de minimis basis because they only deal with a relatively small number of staff should be seriously resisted. Nevertheless, there is a balance to be struck and I would not necessarily assume that a licence system would not apply to a fair range of end-of-the-chain caterers and retailers.
  (Mr Butterworth)  I wanted to make two very succinct points to your original question. We have got to be clear as to the purpose of the registration scheme: is it to raise revenue or is it to raise standards? It is coming across pretty clearly that it is about raising revenue for the Agency. To put that into perspective, at this moment in time if a café was to continually breach food hygiene legislation, there are not the sanctions there to deregister it and it would still continue to be registered so long as it pays that £90, so from where I sit, it is not going to actually raise standards, but it will raise revenue. I think the other thing is that if we do move on to licensing, then we cannot focus entirely at the retail end and we have got to take a broader perspective of the whole food chain, in which case should we not be licensing farms as well?


  897.  Could I add one thing in relation to that. The argument has been put that not all local authorities know exactly where food retail outlets are and it is not part of applying for a planning application, so the circumstances of using the levy as a form of collecting that revenue, the registration of premises, would mean that you would be able to inspect premises that you perhaps do not know are there now. Would that be a benefit to local government or would it be a benefit in taking the risk out of the food chain?
  (Mr Butterworth)  I can only speak as I find and I would imagine that local authorities would say that they know where the vast majority of their food premises already are.

  898.  That is fine, but now and again they will get a complaint in to the local office about somebody who was selling food that one of the customers felt was a bit dodgy and was a bit unhappy about it. They will then go and investigate it and find out that this food outlet has not been registered. Is that a good or a bad thing?
  (Mr Sherwood)  It is a bad thing.

  899.  Do you not think that this is a way of overcoming that bad thing?
  (Mr Sherwood)  No, I do not think it would help. The ones that are not going to register will not register and in fact probably the opposite in that there will actually be a disincentive to register because it costs them money. The fact of life is that in all our towns there are back-street operations that grow up continually and disappear again once they are put under pressure by the enforcement authorities. At the end of the day, I have to say one other thing as well, courts understand licences. It is a fact of life. You have to have a licence to drive a car, you have to have a licence to have a petshop, you have to have a licence to have a television, but you are not doing much danger to somebody with a television, but you can have a food shop, you can have a food business catering for 500 at a village wedding or a village fete and you do not have to have a licence to do it, do you?
  (Mr Ashley)  I think just for clarification, although we have argued for a licence, we still believe that there are definite advantages in a register and in a properly maintained register that ensures that there is a full record of all the premises that need, according to risk analysis, inspection over a period of time and we need to say that registration is compulsory and obviously action can be taken against a food premises that is not registered, so in that sense there is no significant difference as compared to licensing. The great advantage of licensing over registration is this issue I think I pointed to of prior approval at the beginning of the process.
  (Mr Reynolds)  I think one of the matters that is important is that if you do have a licence, then you would expect a certificate to be displayed at the premises and it would not take a very long time for consumers to begin to recognise that when they go into a premises. They would look for and see that a licence to identify the skills that are necessary and on which they can rely to be buying safe and properly prepared food is actually there.

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