Examination of Witnesses (Questions 880
MONDAY 15 MARCH 1999
STEVENS and MR
E BRAXTON REYNOLDS
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
(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.
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 impracticalit
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 partnershipand I genuinely think there will be one, because
we are starting to talk much more earnestly at the momentthen
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
(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.
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
(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
elseand I think that it would be naive to think that is
the way it would happenI 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.
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 Codexa 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 premiseand that could even involve a
local authority premiseon 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
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.