Enterprise and Regulatory Reform Bill

Memorandum submitted by Chartered Institute of Environmental Health (ERR 09)

Relating to Clauses 52 and 53

Primary Authority Scheme

1. Summary

The CIEH supports the operation of the Primary Authority Scheme and will support efforts to extend its operation. This paper asks some questions about how far the Bill actually goes in extending the scheme and seeks some commitment to consultation with professional bodies such as the CIEH and the Trading Standards Institute before the Minister issues additional guidance. The CIEH also suggests a specific policy area for additional inclusion within the scheme, namely scrap metal dealers. The CIEH is broadly content with the proposals in respect of inspection plans but warns against overly-prescriptive application of them – citing the outbreak of Legionnaire’s Disease in Edinburgh as a timely reminder of the importance of inspection and the crucial role of competent professionals in protecting the public in ways that are proportionate to the risk identified.

2. About the CIEH

As a Chartered professional body, we set standards and accredit courses and qualifications for the education of our professional members and other environmental health practitioners.

As a knowledge centre, we provide information, evidence and policy advice to local and national government, environmental and public health practitioners, industry and other stakeholders. We publish books and magazines, run educational events and commission research.

As an awarding body, we provide qualifications, events, and trainer and candidate support materials on topics relevant to health, wellbeing and safety to develop workplace skills and best practice in volunteers, employees, business managers and business owners.

As a campaigning organisation, we work to push environmental health further up the public agenda and to promote improvements in environmental and public health policy.

We are a registered charity with over 10,500 members across England, Wales and Northern Ireland.

3. Clause 52 – Primary Authority

As the Explanatory Notes to the Bill explain, the intention is to broaden eligibility to enable more organisations to participate in the Primary Authority Scheme. In its publication Government Response to the Consultation Transforming Regulatory Enforcement [1] the Department proposed to take three specific actions:

(1) Allow more organisations to participate in the Primary Authority Scheme

(2) Include specific policy areas which are currently out of scope

(3) Strengthen inspection plans.

Inspection plans are dealt with in Clause 53 and we shall come to those next.

As to (1) above, three examples were given by the Department, namely franchisees, company groups and members of trade associations. The Explanatory Notes illustrate the effect of this Clause solely by reference to the last of these three examples, namely members of trade associations. None of the three classes is referred to specifically in the wording of the Clause but presumably the wording is sufficient to allow participation from businesses within all three classes. It would be helpful for the Minister to confirm this.

Clause 52(5) adds a power for the Minister to issue guidance. Perhaps it is intended that guidance will specify which organisations may additionally participate. There is no apparent restriction on the manner of the Minister producing guidance nor its content. Apart from the question as to whether Parliament should have some involvement, the CIEH would urge that the Bill ought to require some consultation with interested parties, including professional bodies like the CIEH and the Trading Standards Institute before guidance is issued.

As to (2) above, the Department’s original consultation document discussed additional policy areas, namely Part 1 Housing Act 2004, the Criminal Justice Act 1988, Offensive Weapons Act 1996, Licensing Act 2003 and Gambling Act 2005 in respect of under-age sales and Regulatory Reform (Fire Safety) Order 2005. Responding to the responses received [2] the Department postponed a decision regarding the Licensing Act and proposed pilots regarding the Fire Safety proposal. The Clause does not mention any of the other policy areas and it would be useful to know if these have been dropped or it is intended that the Primary Authority Scheme will be extended to all or any of them.

The CIEH would like to suggest an additional policy area for consideration for inclusion within the Primary Authority Scheme namely scrap metal dealers. Metal theft has assumed major significance economically, environmentally, socially and politically in recent years. The Government has recently legislated to prohibit cash payments for scrap metal [3] and a Private Member’s Bill which seeks to replace the Scrap Metal Dealers Act 1964 with a new law imposing a licensing system on the trade has its Second Reading debate on 13th July. [4] It would certainly be a good example of "joined up government" if Parliament were to legislate to allow scrap metal dealers to participate in the Primary Authority Scheme.

4. Clause 53 – inspection plans

The Primary Authority Scheme has been operational for three years. The original legislation setting up the scheme permits primary authorities and their partner businesses to agree inspection plans and requires other local authorities, in their role as enforcing authorities, to have regard to their contents. Fewer than 10 inspection plans have been published so far.

For multi-site organisations which have to deal with several local authorities, it is helpful to have assured and tailored advice from a primary authority and not then have to adjust their safety systems at each site to satisfy a range of local interpretations. The inspection plan builds on this approach by setting out the matters to be targeted (and frequency of inspection).

This is a sensible approach provided that the inspection plan process does not become overly prescriptive, thus denying other regulators the freedom to exercise their professional judgement in matters that are relevant at a particular time or in a particular geographic location. For example, right now, it would not be at all appropriate for regulators to omit inspection of water systems and cooling towers for legionella simply because the risk of Legionnaire’s Disease is not identified in an inspection plan.

June 2012

[1] December 2011 http://tinyurl.com/74dkcft

[2] ibid

[3] Section 147 Legal Aid, Sentencing and Punishment Act 2012

[4] Scrap Metal Dealers Bill, Richard Ottoway MP

Prepared 26th June 2012