HOUSE OF LORDS

1

 
MINUTES OF EVIDENCE

taken before the

COMMITTEE

on the

LONDON LOCAL AUTHORITIES BILL [HL]

Monday 7 July 2008

DAY ONE

Before:

Lord Acton

Lord Bew

Lord Brougham and Vaux

Lord Burnett

Lord Geddes (Chairman)

 

MS NATHALIE LIEVEN QC and MR GWION LEWIS appeared on behalf of the promoters.

MR ALASTAIR LEWIS OF SHARPE PRITCHARD appeared as Agent.

The following petitions against the Bill were read:

The British Beer and Pub Association.

DR MARTIN JOHN RAWLINGS appeared as Agent.

The British Hospitality Association.

MR MARTIN COUCHMAN appeared as Agent.

The National Market Traders' Federation.

MESSRS WINCKWORTH SHERWOOD appeared as Agent.

The Association of Licensed Multiple Retailers.

MR NICK BISH appeared as Agent.

Ordered at 10.30 am: that Counsel and Parties be called in.

1. CHAIRMAN: Good morning, ladies and gentlemen, and welcome to this first session of the London Local Authorities Opposed Bill Committee. If I may, I will introduce members of the Committee, even though our names are in front of us. I am Lord Geddes and I am chairing this Committee. On my left a couple of seconds ago was Lord Brougham and Vaux but he does not appear to be here but he will return, I am sure, very shortly. Mr Richard McLean, the Clerk, Lord Bew is on his right and Lord Acton on the wing. There is Lord Brougham and Vaux. I think you have been advised that coincidentally all five members of the Committee have arrangements at lunchtime tomorrow and if it is acceptable to both the promoters and the petitioners we would like to break at 12.30 and resume at 2.30 and extend tomorrow's session until 4.30 rather than 4.00. In other words, make up at least half an hour of the hour we have stolen. Is that acceptable to all parties?

2. MS LIEVEN: Certainly, my Lord.

3. CHAIRMAN: Thank you. Other than that one member of the Committee certainly is not available on Thursday afternoon; it may be that a second is not available. I think we will just have to see how fast or slow we go to see whether there is necessity to sit on Thursday afternoon or not. I hope that is also acceptable and sorry to leave it slightly in the air, but I do not see we can do much else.

4. Declaration of interests, this is always slightly tricky because you are not quite sure to what minutiae to go. I am sure that all members of the Committee one way or another will know some way down the line some members of some councils within the London boroughs. I can declare that I know personally Mr Colin Barrow, who is - I think I am right in saying - the chief executive, the leader, of Westminster City Council. Until this morning he was totally unaware of my involvement in this Committee. I rang him simply to find out what his status was and I did advise him I would declare such interest. I hope that will not debar me from chairing. I can assure you that there has been no correspondence or discussion of any sort on this subject between the two of us. I think Lord Burnett has, again, a general declaration of interest to make.

5. LORD BURNETT: I might know some councillors in some of the London boroughs. I may well know one or two partners in law firms that are representing organisations here today. On the new list which will be published a declarations of interest I have put on my membership and patronage of a charity called The Special Boat Service Association.

6. CHAIRMAN: I trust there are no objections from anybody? Thank you. I understand that the promoters have not challenged the locus standi of any of the petitioners so we can pass by that one.

7. MS LIEVEN: That is right, my Lord.

8. CHAIRMAN: Thank you. Again, this is more for the record than anything else as everybody has agreed it already, that we will go marginally out of sequential order. There are five contested parts of the bill, I use the word "parts" in the rather general way. As I understand it, we will start with Clause 10, the so-called "Scores on Doors", and then move back sequentially to Clause 9, chairs and tables on the highway, and then we will move to houses in multiple occupation and then following that to entertainment involving nudity and then next week move to street markets and street trading. Is that agreed by all parties? Thank you very much. I do not think there is anything else that I need to report at this stage. I always look to my Clerk on these occasions to see whether I have missed anything out? No. Perhaps you would now be kind to introduce yourselves. I think is it regular for the promoters first and then the petitioners afterwards. Thank you very much.

9. MS LIEVEN: I believe so, my Lords, yes. I appear on behalf of the promoters in this matter. My name is Ms Natalie Lieven, Queen's Counsel together with my learned friend, Mr Gwion Lewis. Shall I stop there while the petitioners introduce themselves, my Lords?

10. CHAIRMAN: That might be a good idea, then we get all the introductions dealt with in one.

11. MR COUCHMAN: My Lord Chairman, I am Martin Couchman, Deputy Chief Executive of the British Hospitality Association, and we are petitioning against Clauses 9 and 10.

12. MR RAWLINGS: My Lord, Dr Martin Rawlings, Director, British Beer and Pub Association.

13. MR BISH: My Lord, I am Nick Bish, Chief Executive of the Association of Licensed Multiple Retailers, and we are petitioning against all four clauses that you mentioned earlier.

14. CHAIRMAN: Thank you. I think we can now proceed straight to the promoters. Just to repeat, we are restricting ourselves at the moment to Scores on Doors, Clause 10.

15. MS LIEVEN: That is right, my Lord. I was going to make a very short general opening to cover the formalities that have been gone through to get to this stage, if that is acceptable to the Committee. The Bill is promoted, as the Committee will be aware, by Westminster City Council acting on behalf of all the London local authorities. Each London local authority has passed a resolution supporting the promotion of the Bill either under section 239 of the Local Government Act 1972 or under section 87 of the Local Government Act 1985. I should say at this stage that there was a slight glitch because Hounslow did not pass their resolution by the time the Bill was deposited but that has now been overcome. They have passed a resolution and there is an additional provision to include the provisions of the Bill applying to Hounslow. The position is now all 33 London local authorities have signed up. The other formality I ought to cover is there is a requirement that promoters of private bills include a statement of compatibility with the European Convention on Human Rights. We have had councils' opinion on that subject and such a statement has been made.

16. Finally on the generalities, I should tell the Committee that this type of bill is by now a fairly standard procedure by which London local authorities bring forward private bills to deal with matters particularly germane to London. My instructions are that this is the tenth such bill since the demise of the Greater London Council. The matters which are covered are those particularly important in London, as the major conurbation in the UK, but certain issues will be of course of interest to authorities up and down the country and we are not suggesting the issues do not arise elsewhere. The Committee may be interested to know that it has quite often been the case that provisions that have been promoted first in London local authorities bills and have later been taken up by central Government and put in public bills to cover the entire country. There is nothing strange or unusual about the fact that we are dealing with what might be perceived to be national issues but on a particular London basis.

17. My Lords, so far as the contents of the Bill is concerned, my Lord Lord Geddes has already touched on the contested clauses which is all this Committee is concerned with. I suspect it would be a waste of my time to go through each of the contested clauses in opening. What I intend to do is open specifically on each one when we get to it rather than trying to press matters today. I should say to the Committee that I am dealing with the four contested clauses this week and another counsel, Mr Patrick Clarkson, Queen's Counsel, is dealing with one matter next week, the street trading issue, because of the timing of the Committee.

18. Unless there is anything else on the generalities of the Bill which I can help the Committee with at this stage, I shall move directly on to Clause 10 and Scores on Doors. Before I do that, just for the record I should tell the Committee that two papers of amendments have been handed in by my agent. I do not think anything particularly relevant to Scores on Doors arises from them but just so it is marked on the record. Clause 10, known colloquially as "Scores on Doors", what the clause does ---- I will let these be handed around but I do not think we need to look at them specifically at this stage.

19. CHAIRMAN: Would I be right in saying, Ms Lieven, that these amendments are of detail rather than substance?

20. MS LIEVEN: Absolutely, my Lord, yes. The reason there are two papers is that the thicker paper is the cumulative amendments so it includes the amendments in the filled bill and the additional amendments, and then the very thin paper is the additional amendments which are marked in red on the cumulative one.

21. CHAIRMAN: I think it would be fair to say that the Committee would get very confused if they looked at the thinner one because it is already included in the thicker one?

22. MS LIEVEN: It would be much better to look at the thicker one. I just said nothing of substance, the one point of substance which Mr Lewis, our agent, points out is the deletion of Clause 25 on street trading but the significance of that can be explained to the Committee next week when street trading is dealt with. Then I turn to Clause 10 and what is known as Scores on Doors. What this clause is doing, my Lords, is putting into statutory form a scheme which is currently operating voluntarily in London. Scores on Doors are certificates which are issued by local authorities through their environmental health officers to all premises which sell food to customers showing how well those premises have done in their food hygiene inspections. It covers not just restaurants but also takeaways, shops selling food, any premises where food is sold.

23. What the clause, the scheme, does is it allows the consumer immediately to see how well that establishment has done in terms of food hygiene, so it is a very easy way of informing the consumer or the customer of the food hygiene standard of that premises in its most recent inspection. A voluntary scheme has been running in London since October 2007 and the evidence from that scheme, as Mr Mason who is going to give evidence will explain to you, shows very clearly that there has been a material rise in hygiene standards in London food establishments to which it appears is a consequence of the Scores on Doors voluntary scheme. The evidence seems pretty unequivocal that the scheme works and is having an effect, but the question obviously arises, why does it need to be a statutory scheme if the voluntary scheme is doing so well? What is inevitably happening is those premises that are doing well in their inspections and are getting a good score ---- I would wave at the Committee the certificate but you can imagine it is a certificate with stars on it literally and five stars is the best and no stars is the worst. Yes, here we are. The certificates look like that, and the Bill and the voluntary scheme requires them to be stuck on the door in an obvious place where the customer or consumer can see them (Indicating).

24. CHAIRMAN: Could we just have that passed around?

25. MS LIEVEN: It will be in the bundle of exhibits but if we have it passed around now so the Committee can have a look while I am talking (Same handed). I hope the Committee have already got a bundle of exhibits, I think they are on your desks and the certificates, amongst other things, are in there. The one I have handed around is the real thing. It is divider three in the exhibits. Sorry, I should say these are the stickers, not the certificates but the contents are the same. What is inevitably happening is that the premises that are getting good scores are putting them up on their doors to tell the consumers how well they are doing. The premises which are not getting good scores, unsurprisingly, are a lot less keen to put them on the doors, generally not showing them to their customers and what that means is that the customers are unaware of the position in relation to those less well achieving establishments. A compulsory scheme which, of course, would need statutory force as in the Clause is far more likely to impact on those poor scoring premises and to persuade them that efforts should be put into achieving a higher score. Although the voluntary scheme is useful and doing a good job, we are clear that it really requires a mandatory scheme in order to improve overall standards and, in particular, to improve standards on the less well achieving establishments.

26. There is just a few points I should deal with in opening to rebut points that may be made against clause. First of all, I think it is critical that the Committee understands this scheme is not about increasing bureaucracy or having more inspections or putting more burdens on hard pressed small establishments. What it is about is the number of inspections stays the same, the regime stays the same, the only thing introduced by this clause is the requirement to put the result of the inspections in terms of the certificates showing scores on the doors, by which method the consumers and customers can immediately see how well the place they are thinking about going into has done. Apart from physically sticking the thing on the door, there is no increased burden on the small business or the big business at all. This is all about transparency and letting people know what they are buying into.

27. The second thing to emphasise is that the scheme provides a very strong incentive to businesses to improve their hygiene rating. One way of looking at it is that we hope it is a way of moving away from heavy-handed enforcement, from having to prosecute people. It is a way of improving standards effectively through persuading the operators of these establishments themselves to take action so next time round when they are next inspected they get an improved score. We see it as a wholly positive provision and the suggestion that it is unduly onerous is quite wrong.

28. The other aspect I should deal with in opening is that some people in the food industry, and I think probably the petitioners included, are unhappy that premises will not be inspected necessarily immediately after they get a low score because the concern is that you might get a low score, which is perhaps fairly unrepresentative of your general position, and then you might be stuck with it for 18 months or two years. In practice what happens with re-inspection is that the frequency of re-inspection very much depends on how well or badly the establishment does. If you have an establishment which gets no stars where there is a real and immediate risk to health, they will be formally re-inspected quickly. There will be a visit almost certainly within two months and then a re-inspection almost certainly within six months and Mr Mason can talk you through this in much more detail. At the other end of the scale the establishments that have done well, the three plus stars, probably will not be re-inspected for 18 months, two years, perhaps even longer, but one can see for them that is not a problem, they are doing well, a relatively low priority for re-inspection.

29. So far as the ones in the middle are concerned, one and two stars, Mr Mason will tell you in detail how quickly they can expect to be re-inspected, but one critical point to get across in opening is that we think it should not be too easy to be re-inspected because the pattern in environmental health is if an establishment gets a poor inspection at the moment, it makes an effort, it cleans up, the inspectors go back, it gets a better bill of health and then they go back to their old ways. If you leave the formal re-inspection, so an establishment knows that if it only gets one star, it might be stuck with that for six to 12 months. It actually provides a much greater incentive on them to get it right the first time and not to fall back into a habit of poor performance. Although we obviously understand there is a need for re-inspection and there needs to be a clear understanding of how frequently rein-inspection will take place, we positively do not think that there should be some auto re-inspection within a very short period of time. My Lords, I intend to call two witnesses, Mr Mason who is an Environmental Health Officer and Ms Kay Potier who comes from the Chartered Institute of Environmental Health and can tell Your Lordships a little bit more about how the scheme operates overseas and the evidence from other cities where it is operated extremely successfully.

30. LORD BURNETT: My Lord Chairman, if I may, will you be dealing with the difference between what you passed around and what is in our pack because what is in our pack, the copies of certificates, are rather more informative than these.

31. MS LIEVEN: Yes, I will. Those are the stickers and what is in the pack is the certificates. I think the stickers are on the following page in the pack, divider four, so Mr Mason can explain where the certificate goes and where the stickers go and why they are slightly different?

32. LORD ACTON: My Lord Chairman, the sticker says "supported by the Foods Standards Agency", you are not calling anybody from the Food Standards Agency?

33. MS LIEVEN: No. The position of the Food Standards Agency is that they have indicated they are content with the clause. They are not giving evidence in support but they have not reported against.

34. LORD ACTON: But there is no formal evidence?

35. MS LIEVEN: There is no formal evidence from them, my Lord, no.

36. CHAIRMAN: I find that very surprising and I did when reading it.

37. LORD ACTON: Yes, I find it astonishing. They are an important body.

38. CHAIRMAN: They are the driving force on this.

39. MS LIEVEN: My Lord, they have been a driving force behind the voluntary scheme and the schemes nationally. They have not been the driving force behind having a compulsory scheme in London, but, as I have said, they have not reported against the Bill, they are not opposed to it and there is a statement on their website dated March 2008 where they have said, "At its open meeting the FSA board agreed that a single nationwide Scores On The Doors Scheme should be put in place to make food business hygiene ratings available to consumers" and they have gone out on consultation on a national scheme, but they are not specifically backing the London Compulsory Scheme.

40. CHAIRMAN: Did you ask them whether they would give evidence?

41. MS LIEVEN:I understand not, my Lord, but I will just check. No, my Lord, we did not ask them, so they have not said no, but we have not.

42. CHAIRMAN: I heard you say that, I just wanted to know if they have declined to give evidence.

43. MS LIEVEN: No.

44. MR COUCHMAN: My Lord Chairman, can I interject, perhaps it may help the Committee at this point. We did ask the promoters' solicitors if the FSA would be appearing and they said they had been told the FSA had said they would not be appearing. My Chief Executive met the Chief Executive of the FSA and asked him if they would be appearing, he rather indicated he thought they should, but it was an informal approach, we heard no more. The FSA, as Counsel has said, have put out a consultation document and we will be referring to that during the course of our evidence.

45. LORD ACTON: Can I follow that up, I want to get this straight about the current voluntary scheme. I read in the papers that it has been described as a pilot scheme by the FSA, is that correct?

46. MS LIEVEN: That is how they describe it, my Lord, but its precise status I think it would probably be better to ask Mr Mason about than me. Yes, I have seen it described as a pilot scheme and they are consulting about a national scheme. Can I make clear to the Committee, my instructions are that it would be extremely unusual for a government agency to come and give evidence for a Private Bill. That is apparently not the way these things are normally done. It is rather the other way around. If a government agency or indeed a government department are opposed to a clause, then they report against the clause, but it is very unusual for them to come and give evidence.

47. LORD BURNETT: Is it possible, my Lord Chairman, that the FSA could write to the Committee setting out their reasons for why they do not come or why it is not their practice to come to inquiries such as this.

48. MS LIEVEN: Certainly, my Lord, from my experience that could be handled in one of two ways, either the promoter would write to the FSA and say that this request has been made or I assume there is no reason why the Chairman cannot write on behalf of the Committee and ask for the views of the FSA.

49. CHAIRMAN: I am sure my colleagues would agree, it is highly germane as to what the FSA's views are.

50. MS LIEVEN: Mr Mason and Ms Potier can give information about discussions which have taken place with the FSA, but there is no possible doubt that they are quite content with the scheme going ahead in clause 10 or they would have made a report against, but to the degree that they would positively support it, we would have to ask for a clear statement from them.

51. CHAIRMAN: Could I suggest to the Committee that, I think we all feel quite strongly on this, we shelve it just for the time being, hear the rest of the evidence on this particular matter and then come back to it as to whether we do or do not, who knows, it may prove unnecessary. Could I ask one more question and forgive me if I am premature on this, but who makes the inspections?

52. MS LIEVEN: Environmental health officers, my Lord, from the local authorities.

53. CHAIRMAN: Thank you, please carry on, we have interrupted you for rather a long time.

54. MS LIEVEN: Not at all, my Lord, it is useful to know the concerns of the Committee and then we can seek to deal with them. My Lord, that was all I was intending to say in opening. I was going to proceed directly to call Mr Mason, if that is acceptable to the Committee.

55. CHAIRMAN: I think it is.

 

MR RICKY JAMES MASON, Sworn

Examined by MS LIEVEN

56. MS LIEVEN: Mr Mason, can you tell the Committee you full name?

(Mr Mason) Mr Ricky James Mason.

57. Can you explain to the Committee what your position is relevant to this Bill?

(Mr Mason) I am a qualified environmental health practitioner. I qualified in 1981. I hold a Diploma in environmental health and I am employed as an Environmental Health Manager by the London Borough of Barnet. My position is I have been there since 2005. Prior to that I held the position of Food Safety Manager at the London Borough of Tower Hamlets, which is a position I had have for 9 years and altogether I have been involved in post-qualification experience in food safety for approximately 27 years.

58. What is your involvement with the scores On Doors Scheme?

(Mr Mason) My involvement is that as one of the senior group safety managers in London, I hold the position of the chair of the London Food Co-ordinating Group, which is a group whose aim is to ensure consistency of enforcement between the London boroughs. As chair of that group, I also hold the position of the chair of the London Scores On the Doors implementation group.

59. We probably all know, but can very briefly explain what environmental health practitioners do?

(Mr Mason) Environmental health covers a very wide range of different topics, from food safety, health and safety, pollution control, housing standards, health promotion and so on. Environmental practitioners are primarily employed by local authorities, although there are a number of practitioners who also work for the private sector. Their role is both as enforcers and educators in the wider public health agenda.

60. Take that down to the specifics then, what role do environmental health practitioners, EHPs, play in food safety?

(Mr Mason) Key issues for a environmental health officer or a practitioner in a local authority would be the investigation of food complaints, providing advice and training to businesses and also the enforcement of the food hygiene legislation. The main part of the activity would be carrying out inspections of all food businesses to ensure they are complying with the statutory requirements.

61. Just explain to me how it works at the moment? A premises is inspected by an EHP, a report is drawn up, how is the content of that inspection informed to the premises manager or whoever it should be?

(Mr Mason) A local authority in London will have between two and 5,000 food premises on its database and these will range right through from sweet shops through to cafes, restaurants, takeaways, food processors, wholesalers and manufacturers. The law requires under Section 6 of the Food Safety Act 1990 that local authorities carry out a programme of inspections to ensure the legislation is being enforced. This involves providing advice to a business and it would involve carrying out observations, a physical inspection of a food premises and carrying out discussions prior to carrying out discussions with food handlers and making an assessment of the level of compliance with the food hygiene legislation in order to determine the level of risk that particular business poses. The outcome of that would be that a report would be issues to the business and they would be advised of any matters they needed to attend to in order to comply with any legal requirements they were not complying with. The result could be that a written warning would be issued, but alternatively it is possible in worst cases that statutory notices could be served requiring them to carry out works within a specific time and potentially even a premises could be prosecuted if the hygiene standards were bad enough and also an emergency closure could even be carried out, which has to be confirmed by the courts.

62. I wanted to ask you about that. I think the general assumption is, well, if there is a problem with food hygiene, you just go in and close the premises down. Can you explain to what degree that is true.

(Mr Mason) It is frequently stated by consumers, well, if a premises is open then it must be safe, but unfortunately it is not quite as black and white as that. It is not as straightforward. A premises must pose what is called an imminent risk of danger to health in order for it to be closed. That means that a business must be in a situation where food is actually exposed to a risk of contamination. Examples of that would be where there is an uncontrolled infestation of pests, rats, mice, cockroaches or perhaps where a kitchen has been flooded with sewage, for example.

63. I think we have got some delightful photographs at appendix 1 of your exhibits which show quite how bad things have to be to close the premises down, is that right?

(Mr Mason) That is right.

64. Q. Can you tell us a little bit about what we are seeing?

(Mr Mason) In the first photograph it shows just general poor repair and condition and the little black dots that you can see on the floor of that photograph of rat droppings. The next photograph is a manhole which has been lifted in the middle of a kitchen in a food premises and that is raw sewage. The next photograph just shows general poor practice in terms of scraps of meat distributed, rolls of packaging and so on over the floor of a premises as with the following photograph and then also some rat droppings along the edge of this. You can see there is a lot of grime around the edges of the floor where cleaning does not take place properly. Number five shows a live mouse which was found in a kitchen.

65. We probably do not need to go through the rest, they rather tell their own story, but these are premises which are so bad that they were closed immediately?

(Mr Mason) That is correct, yes.

66. CHAIRMAN: Where were these premises?

(Mr Mason) There is a mixture, some of the premises are from the London Borough of Barnet and some are from Westminster.

67. When were they taken?

(Mr Mason)I cannot give an exact date on those. I think some of them have got a date in the corner.

68. I was looking for a date, but I could not see it.

(Mr Mason) Maybe these once do not. They are probably within the last 12 months or so.

69. CHAIRMAN: Thank you.

70. MS LIEVEN: Give us some kind of feel as to how much of a problem food hygiene is in premises in London.

(Mr Mason) It is my experience and that of my colleagues that a significant proportion of businesses tend to operate without having full regard for what the law requires them to do. What they tend to do is they will wait the environmental health practitioner to come around to carry out their inspection and give them a list of the things they need to do, only to then put those right or the majority of them right and then wait for the inspector to come back again in order to avoid any enforcement action for not haven taken any action in response, so a revisit will be carried out. Things will be better. The environmental health practitioner will then go away and come back to carry out their next routine inspection, at which time they will find that the business had generally slipped back to operating in the same way. They would then get another new list of works to do, probably quite often the same sort of things that were on the previous list. So we had a cyclic situation where the improvements in premises were not being sustained and maintained. The recent legislation requires businesses to actively manage food safety in their businesses themselves. Whilst that is a requirement of the law, as practitioners we were not actually seeing that businesses were doing so. They were making small improvements but they were not maintaining them. However, unfortunately, it is unrealistic for enforcement authorities to be able to carry out enforcement and prosecution against many but the very worst offenders, so what has happened is compliance with the law across the board has remained relatively static.

71. Let us move on then to Scores on Doors. First of all, just explain in general terms what it means?

(Mr Mason) Scores on Doors means that a premises display at their entrance a score which demonstrates the level of compliance with food hygiene law. The exact origin of when this term was first used in relation to this particular issue is not really clear, but there is evidence that "Scores on the Doors" was referred to as meaningless by the Food Standards Agency around about seven years ago, but it is now well-established within the profession as relating to food hygiene.

72. Just explain to us how the scheme came about? What were its origins?

(Mr Mason) The purpose of the scheme is to provide information to consumers about hygiene standards only. It is not about quality of the food or any other aspect of the business, it is solely about the hygiene of businesses. These schemes have become established in lots of other countries and it is expected that the culture will develop where people will look at the hygiene standards of a restaurant or other food premises before they look at the menu. What happened in terms of setting up the London Scheme was the London Food Co-ordinating Group, which is a group of food safety managers from the London boroughs representing their colleagues of all 33 London boroughs along with other professionals, such as the London Regional Policy Officer from the Chartered Institute of Environmental Health, a representative from LACORS, who are the Local Authority Co-ordinators for Regulatory Services, along with a number of other different professionals, met in January 2006 with the knowledge that some Scores on the Doors schemes were starting to appear around the country and our concern was different schemes were starting to appear. Some involved smiley face schemes, some involved stars and some involved traffic lights. In London we were particularly concerned that this was not going to inform the consumer because the consumer needed to be aware of one scheme otherwise it was not going to have the impact that we wanted. We felt that London being a particularly distinct area and also the capital city needed to have its own scheme which was consistent right across all the authorities. With the full support of the London Food Co-ordinating Group's parent group, which is the Association of London Environmental Health Managers, so there was support from the very top level within environmental health across the whole of London, a scheme was devised and proposed. It resulted in full support from the authorities.

73. I think it is right, is it not, that the support at that stage included support from the Food Standards Agency?

(Mr Mason) Yes, it did. What happened was we developed a steering group to take this programme forward and we broke up into very small sub-groups to look at issues such as the way the premises would be scored, the banding, whether we would use star ratings, traffic lights or so on, and we also looked at things like marketing and branding and consistency. We had a number of sub-groups working to try and make sure that this scheme was going to work and it was going to stand up to scrutiny. A proposal was then put forward to the Food Standards Agency seeking their support to actually implement the scheme once the outline had been drawn. As a result of that, the Food Standards Agency decided to choose the London scheme as one of the two pilot schemes that they intended to run in order to try and gather some information about what would be the best type of scheme because they wanted to try and draw a view as to whether they could recommend a national scheme for local authorities to adopt across the country. We attracted significant financial support and, as you will have noticed, my Lords, on the stickers it does say "Supported by the Food Standards Agency". They funded the IT of the website that we run, the development, design and marketing of all the stickers and the materials that you have seen.

74. LORD ACTON: I would just like to get a couple of points clear. Counsel said in opening that this was a voluntary scheme.

(Mr Mason) Yes.

75. What proportion of food outlets use it?

(Mr Mason) My Lord, I do have some information ---

76. Do you want to come to that later?

(Mr Mason) I will be coming on to that.

77. On the immediate question of the pilots, and I am not meaning to cut across the Food Standards Agency but I must get it as clear as I can, there are currently two pilot schemes, is that right?

(Mr Mason) There were two officially supported pilot schemes in England.

78. And there still are?

(Mr Mason) The pilots are coming to an end because the Food Standards Agency has now decided to consult on proposals for a national scheme. While the pilots are still operating, and no matter what the scheme is that the Food Standards Agency finally settle upon as their recommended scheme, it will be some considerable while before that fully gets off the ground.

79. Can I just try and understand that. They will consult on a national scheme. Does that mean they are not necessarily adopting your scheme?

(Mr Mason) Not necessarily adopting the exact detail of our scheme, no.

80. LORD ACTON: Thank you.

81. MS LIEVEN: Shall we just move on there, Mr Mason, to explain exactly how the current London scheme works. We might touch on my Lord, Lord Acton's point about how does that differ from other schemes. First of all, let us just explain how the London scheme works. It might be useful, my Lords, to have Exhibits 3, 4 and 5 to hand because that is the certificate, then the stickers and the inspection report notes that the operator will get. Just talk us through it, Mr Mason.

(Mr Mason) Yes, certainly. The scheme went live on 8 October 2007, so it was after around about 18 months of very hard work to fine-tune it and get it up to a situation where we felt confident that it was appropriate. Each local authority carries out its routine programme of food hygiene inspections in the normal way, there is no difference in the way they carry out their inspections. The frequency of the inspection is based upon a rating which is determined from the Food Safety Code of Practice. That is determined from the results of the previous inspection. Depending upon the findings of the previous inspection, that will depend how often the premises gets its next inspection. These inspections are designed to establish the level of compliance with Food Hygiene (England) Regulations and EC Regulations 852/2004 and 853/2004. The inspection rating is based on eight different criteria which are set out in that Code of Practice, but the Scores on the Door rating just uses three of those criteria. The Code of Practice takes account of a number of different things, such as the type of food, the size of the business and so on, which are not directly relevant to how hygienic it is. There are three elements of that scheme that are directly relevant to how hygienic it is. That is the compliance with food hygiene handling and practices, compliance with the structural requirements and the confidence in the management of the business to be able to manage food safely.

82. If I just stop you there for a moment, Mr Mason, and ask you to turn up Exhibit 5.

(Mr Mason) Yes.

83. That, I think, is the points scores out of the Code of Practice for those three criteria you have mentioned, is that right?

(Mr Mason) Yes. Because the Code of Practice can be quite confusing, what we have done is we have produced this form which clearly sets out to the business how we have determined the three scores which go together to be represented in the form of a star rating. It gives the business a graduated scale of compliance from the very worst standards, which would be a nought star, up to the highest standards of full compliance, which would be a five star premises.

84. On the second page of that exhibit, I think attached to this document, is guidance on the Scores on the Doors scheme scoring system.

(Mr Mason) Yes. That is normally printed on the reverse of that form which actually explains how the Code of Practice works. If a business really wants to see what they have scored in a particular area and what the determination was that resulted in them getting their two stars, five stars or whatever it may be, they can look at that in detail and, of course, the environmental practitioners are only too happy to explain to businesses and help them to understand. In fact, what we find is that the businesses are saying to us, "Tell me what I need to do now so I can actually move on and get a better rating next time".

85. The first page of that exhibit, page 36, sets out how the scores are transformed into the star system for the Scores on the Doors.

(Mr Mason) Yes.

86. Then, if we go back, we see at Exhibit 3 the certificate and at Exhibit 4 the sticker.

(Mr Mason) That is right.

87. Can I just ask you a couple of questions about that. The certificate has obviously got more information on it, including the very explicit statement about this being about hygiene rating and the food safety legislation. The sticker, unsurprisingly, gives less information. Is the form of the sticker set or can the sticker be changed in the future if it is considered appropriate to put other information on it?

(Mr Mason) This was established originally as a pilot scheme, so there are elements of it that we can learn from. It is perfectly reasonable to assume that we may learn from the scheme and revise the sticker if it is determined that people do not fully understand it and that by the time this clause became established we would have completed our evaluation and ensured that the sticker is quite clear in that respect.

88. Just picking up one question that has arisen from the Committee: if the Food Standards Agency national consultation comes out with a view that, for example, the sticker should say, "Not related to food quality" or some other point like that, is that something you would take on board in terms of the final form of the sticker?

(Mr Mason) Yes, we would be inclined to make sure we took on any relevant advice or comments that were received that made sure that it was as informative as possible and not confusing to both businesses and the public.

89. In terms of not confusing, can you just explain why you have gone for the star system? I think the Danes have smiley faces and somebody else, I cannot remember who, has traffic lights. Why have you gone for stars?

(Mr Mason) We have gone for five stars because it is in common use elsewhere so it is very easily recognised as a result of that. The examples I would use are the Euro NCAP vehicle safety tests, Which? magazine, TV magazine ratings, hotel ratings, the internet, people like GoCompare and Amazon and i-Tunes. Everybody uses a five star scheme, insurance, fund ratings and numerous others. It is something that is well-recognised by the public and, therefore, we feel it is appropriate we use something which is well-recognised. It is the most frequently used system and it would follow it would be the easiest for the public to understand.

90. Is there a bit of a danger that because it is a well-recognised system people are going to think it relates to food quality, they are going to see five stars and think, "That means this is a jolly good restaurant"?

(Mr Mason) We do not believe it will because, as you have seen, the sticker quite clearly says "Food hygiene rated". That was very much at the forefront of our minds to make sure that it did stand out, it is about hygiene, not about quality or anything like that. The clear brand and logo that we have had designed makes it stand out and be differentiated from other schemes, such as the hotel rating schemes. The fact that it is going to appear in retail shop windows, not just restaurants, means that people should not get it confused and think that it relates to the quality of food in a restaurant. We believe the public will learn the difference between this and other schemes as the scheme becomes more established and as more publicity and promotion campaigns to educate the public take place once the scheme is fully launched.

91. Can you then say a little bit about what the nought to five stars mean? I think one of the concerns that is raised is that this is what is colloquially called a "gold-plating" scheme, that we are requiring people to have standards which are higher than the statutory regulations require. Can you just explain what the nought to five stars mean?

(Mr Mason) I can certainly say it is definitely not requiring anybody to go beyond what the law requires. It is a graduated range from zero to five indicating the level of compliance with the law. For example, a five star premises is described as "Excellent. Very high standards of food safety management. Fully compliant with food safety legislation". These would be businesses that meet all the legal requirements and would not then attract any further follow-up action. A three stars premises, moving on down the scale a bit, is described as "Good. Good level of legal compliance. Some more effort might be required". These are businesses that are mostly complying with food safety law and they would be likely to receive some written advice advising them of any contraventions and things that they would need to do in order to fully comply. There is unlikely to be any serious food safety risks but the business would need to be careful to make sure that it did not allow slips because potentially then there could be some safety risks associated with it. Any business that is below a three star rating would be deemed not to be meeting the satisfactory legal requirements to an acceptable level and this would at least attract a written warning and the worst cases could potentially result in a prosecution or statutory notices or even a premises with no stars, which is described as "Very poor. A general failure to comply with legal requirements. Little or no appreciation of food safety. Major effort required", those sorts of businesses are significantly failing and may in some rare cases attract attention to be closed down with immediate effect. The photographs I have shown you are cases where closures actually took place.

92. Then under the current voluntary scheme, explain what happens after the inspection has taken place?

(Mr Mason) The proprietor of the business is encouraged to display the sticker and the certificate that we issue to them, but they are not compelled to do so. Then within 14 days of the inspection the star rating is uploaded on to our Central London website which is at www.yourlondon.gov/foodscores, and that contains the star ratings of all the businesses from the London authorities. At the same time the proprietor of the business is offered the opportunity to provide a written right of reply, so if they feel that have comments that they want to make with regard to the outcome of their inspection they are given a form which enables them to submit a right of reply and that can be entered on to our website. All the premises would be approached in exactly the same way. That would be that they would get an unannounced routine inspection and that would be carried out in accordance with the routine planned inspection programme for the particular authority. They would be given a rating, given a certificate, given a sticker, a right of reply form and the rating would be published on the website within 14 days of the inspection. That is the process regardless of the type of premises. What will happen is that the rating will be reassessed at the next routine inspection and the previous certificate and sticker will be retrieved by the officer and new ones will then be issued. Each sticker is signed and dated on the reverse and there is a unique number given to both the certificate and the sticker and the certificate is printed on special paper with a watermark for security purposes so that we try to avoid any risk of misrepresented copies being used.

93. Can we have a look at how many people are going along with this? If you could turn to Appendix 11, please, the first table, table 8, is from a survey in a main shopping street in eight different authorities showing the number of premises displaying out of those issued with certificates and stickers, and we see that it is 9.1 per cent in total. Is that right?

(Mr Mason) Yes, my Lords. We are currently carrying out an evaluation and this is some early data that has been returned from local authorities carrying out an assessment in busy areas within their authorities to identify just how many businesses are putting their ratings up. Across eight different authorities we found that 791 stickers and certificates had been issued in those particular areas surveyed and only 72 were displaying, which is a very low 9.1 per cent. Three of the authorities broke that down into the individual star ratings and so you can see that what is happening is that of the five and four stars we were getting round about 38, 40 per cent display rate, but, of course, it started to tail off with the one and zero star ratings because the businesses obviously do not favour voluntarily displaying the poor ratings.

94. I think we have touched on this but just explain what businesses were covered by the scheme.

(Mr Mason) It applies to all businesses, whether food is sold or not, where food is offered to the public. The only exceptions are those businesses operated from private residential addresses, people like child minders and so on, and those premises that are deemed to be such a low risk for food hygiene purposes that the authority chooses to use alternative methods to inspection to carry out their responsibilities, so things like a chemist selling a few health food packets would perhaps get a self-audit questionnaire rather than an environmental health practitioner visiting to carry out an inspection. Those premises are excluded from the scheme if the authority chooses to deal with them in that way.

95. Can you give us some insight into how successful the voluntary scheme has been so far in London?

(Mr Mason) The early indications from all our partner authorities and from the early stages of our evaluation are that the scheme has already made a material change and authorities are seeing a very rapid change in the profile of their premises' star ratings, and this is in a relatively short period of time.

96. Shall we have a look at Appendix 6 because that has got some statistical information on this? Talk us through what we are seeing here.

(Mr Mason) In table 1 this gives a breakdown of the star ratings for all the premises that have been rated going back to the date of January 2006 up to the date when we first launched, so we backdated ratings to when we first launched so that there was a body of data available. What you can see is that the premises that are inspected more frequently, so that would be the category A/B premises that are six months or 12 months, are the highest risk premises and what we are seeing is that those premises that are falling into those categories are the premises with the lowest star ratings, so there is a direct correlation so that that the more risk that the premises generally presents in terms of its inspection rating the fewer stars are being attracted, and by contrast the premises that are attracting the higher ratings, such as four and five stars, are the premises that are inspected less frequently because they present less risk. Table 2 shows the profile for again the same authority. These are fairly up to date figures, to June 2008. What you can see is that the spread is largely the same across the various different parts of the table but the significant thing, which is summarised in table 3, is that the change is that the zero, one, two and even three star premises are going down but the fours and fives are going up quite significantly in that very short space of time. What we are reading into this is that the businesses were notified of their star rating when we first went live and now they are getting a further inspection and they have significantly taken note of this. In many cases they have contacted the authority and said, "What do I need to do?". They have asked for a copy of their previous inspection report and they are responding by putting those things right and as a result of it they are improving their star rating.

97. So far as you are aware is there any other factor which could have led to this change in stars over the last nine months?

(Mr Mason) It is difficult to say categorically that this is entirely due to Scores on the Doors but it seems significant and certainly the feedback that myself and colleagues in other authorities are receiving from businesses is that they want to know, "What do I have to do to get another star?", or they want to know, "What star rating has the guy next door got because I want to make sure I am better than him?", so it is acting as an incentive. The Food Standards Agency have also introduced a scheme called Safer Food Better Business, which is a documented food safety management system, and we are finding that if businesses have implemented it it improves their star rating, but what we are finding is that people were not engaging with that particularly until we introduced Scores on the Doors, and now we have introduced Scores on the Doors they are engaging with Safer Food Better Business and that is helping them get a better score. We are quite confident that the improvement and the change in the profile are as a direct result of the scheme.

98. And I think at the next appendix, Appendix 7, we have got a survey from three different authorities.

(Mr Mason) Yes.

99. It is coincidentally still three but three completely different authorities, which shows a similar story; is that right?

(Mr Mason) It shows a similar story. I think it includes the figures from Barnet but two other entirely different authorities are included in that and it shows that the profile of the ratings across the three authorities is showing the same trend, that the higher star ratings are going up and the lower rated ones are going down. We are finding that the scheme is really having an impact in terms of helping us focus on our worst performing premises, the nought and one star premises, but also making sure that businesses that were under-performing are stepping up to the mark and making the effort.

100. LORD ACTON: Mr Mason, I do not know if you can answer this.

(Mr Mason) I will try.

101. I never understand if people have five stars why they cannot be bothered to put them up.

(Mr Mason) That is the stark contrast we are seeing.

102. But you have just said that they are quite stimulated at the thought of it.

(Mr Mason) They are.

103. But they do not want to put it up?

(Mr Mason) We do not understand why they do not want to put it up.

104. You do not know why?

(Mr Mason) No, we do not know why, and I think it is just because there is not a level playing field. They know that not everybody is going to put it up so they are probably not seeing necessarily that much purpose in doing. Our belief is that until everybody is compelled to do so people do not see the point in doing it.

105. They do see a point in getting the five stars but they do not see a point in telling anybody?

(Mr Mason) Yes, which is -----

106. Very mysterious!

(Mr Mason) Yes.

107. MS LIEVEN: At Appendix 8, Mr Mason, is a report from Wandsworth Council. We will not go through this but does it tell a similar story?

(Mr Mason) It tells exactly a similar story. This was a report that was put together by Wandsworth in a presentation to the Food Standards Agency a couple of months back. The points on the second page, page 41, describe all the things that I have explained to you in terms of the improvement seen and the profile on page 42. Their tables show exactly the same, and in fact they are seeing an even bigger increase in, for example, the three and four star premises.

108. Can we then turn to one of the criticisms of the scheme, which is the concern that if you have a restaurant which, say, is rated at two stars, then it is unfair that you have to wait months to be re-inspected and therefore potentially to improve your star rating?

(Mr Mason) If I can perhaps explain the difference between a re-inspection and a revisit, first, a reinspection is a repeat routine inspection of the whole premises at which a reassessment of the risk rating would be carried out, but a revisit is a return to the premises following a routine inspection to look specifically at whether any contraventions that were identified at the inspection have been put right. It is quite common that revisits will not involve a reassessment of the rating because the environmental health practitioner will not look at sufficient areas of the business to be able to make an overall assessment about its hygiene rating. They simply tend to go back to check whether they have done what they needed to do to put that right. What tends to happen is that premises in the zero to one star ranges are highly likely to be re-inspected within six to 12 months. They are the higher risk premises and they would be revisited rather than re-inspected much more quickly than that, possibly within a week in some cases, or certainly within one to two months after the first inspection, so they would not get away lightly with having unhygienic premises. However, by contrast two star premises would be re-inspected within six to 12 months and they would be highly likely to be revisited sooner, so within that six to 12 month period a revisit would take place, so again any unsatisfactory hygiene would be addressed by the environmental health practitioner. Three star premises would be re-inspected every 12 to 18 months depending upon the inherent risk of their operation and some of these would be routinely revisited but not necessarily. If I lump the four and five star premises together, they would be re-inspected probably between 18 and 36 months and they are unlikely to warrant a revisit in between. It is fair to say that in a very strong case, such as where there has been a local but uncontrollable incident beyond the control of the business that has affected their compliance on the day but it is quite obvious that it is not typical of the general regular proper management of the business, authorities would in all likelihood carry out an extra revisit to that premises in order to reassess it in the interests of fairness.

109. Can you just address the concern, "This is all potentially very unfair because I have been inspected, I have got a poor score, I know what I have got to do and I have put it right, so why should I not have the right to be reinspected rapidly and get a higher score?"?

(Mr Mason) There is a very strong belief amongst environmental health practitioners in London authorities that to allow a business to be re-scored on request or following a revisit will frustrate the aims of the scheme. A business will know that it can afford to operate below the law only to be re-rated following a revisit and after effectively carrying out a one-off clean-up in order to get themselves a better score. We think that that would give them a non-representative star rating and that the standards seen at that revisit would not be maintained. We think that that will undermine the intention of the scheme to drive up standards. The further reason for not doing it is a management issue in that businesses should be getting it right first time and we do not actually want to let them off too lightly and think that we can basically just keep coming back again and giving them a new star rating.

110. LORD BEW: Earlier in your evidence you talked about the fact that you have now got a return to in a sense these recidivism concerns which lapse back and you were talking about there being a significant number of them. You did not give a percentage. Looking at these documents, if we were to go into, say, one or two star that were in that percentage then on my figures it is something like 40 per cent or so. Is it as high as that or would that be an exaggeration? I just want your translation of this category of business which slips back which you feel might raise its game and then on revisiting then have fallen back again. The word you used was "significant" but you did not give a number.

(Mr Mason) No, I did not use a specific figure and I have not actually done any calculation but I think you are quite right to suggest that, certainly in the nought to two star band, you are probably talking about 40 per cent of the premises. It is not unreasonable.

111. So the word "significant" may mean as much as 40 per cent of the total which are in this category?

(Mr Mason) Yes.

112. MS LIEVEN: You have explained why you think rapid re-inspection would be inappropriate, and I think you carried out some consultation on that and we see at Appendix 9 the responses from EHPs across London on that question. Is that right?

(Mr Mason) That is right, yes.

113. You asked them, "Would you be prepared to accept a scheme where you were required to re-rate on a revisit?", and we will not read it through but the Committee can see a lot of comments saying no to that question and the kinds of issues that you have just raised. What happens if somebody is really unhappy with their one or two score? First of all, do they have any right of reply, and, secondly, is there any way they can appeal against it?

(Mr Mason) Yes. In recognition of the concerns that were expressed by larger business representatives at the outset of developing the scheme the right of reply facility was developed and this enables businesses to tell their customers on our website if they disagree with their rating or what action they might take to address any of the concerns that were found on the inspection. The website and certificate also contain some clear statements that explain the status of the rating that is given. For example, on the website it says, "Star ratings and scores apply to the time of the last inspection only, so they are simply a snapshot in time and may not represent current conditions. They are not a guide to food quality." The certificate, which you have seen, says, "This rating applies to the time of the last inspection only and is simply a snapshot in time and so may not represent current conditions at the business". Even if a re-rating were possible at the revisit, and that is a rare occasion, one key factor in the scoring is the confidence in the management of the business to manage food safety. This takes into account, amongst other things, whether the track record of the business and the state of affairs that existed at the original inspection would be such that it would be highly unlikely that we would be able to improve the confidence in management score upon a revisit when all they have done is respond to the fact that we found lots of things wrong that they have not managed themselves as they are required to do. We think until they have shown a demonstrable sustained improvement the confidence in management score is unlikely to be able to be improved and, therefore, they are not going to get a significantly better rating after a revisit after a short period of time in any case. It might have carried out some physical improvements.

114. LORD BURNETT: Is the inspection carried out by one officer?

(Mr Mason) Normally, the inspection is carried out by one officer and the revisit will normally be carried out by the same person.

115. What happens if the restaurant owner, or whoever, believes there has been a palpable misdiagnosis or mis-star rating?

(Mr Mason) We have a documented appeals procedure to deal with those issues which all the local authorities apply. The first step is that the business would take the matter up directly with the officer just to get some clarification and explain why they were unhappy. That matter could then be discussed with the food safety manager if the business was still not satisfied. Ultimately, every local authority has its own formal complaints procedure and that is the mechanism through which any escalation, if a business was still not happy with a rating it had been given. It is a procedure that is designed not just because people think, "Actually I would have quite liked a four star but I only got a two", it is where they believe a mistake has been made and the score they have been given is misrepresented.

116. LORD BURNETT: Is the final arbiter or are the final arbiters in that appeal process completely unconnected with the local authority?

(Mr Mason) No, they are not. They are senior management within the authority but they would not be involved in environmental health.

117. CHAIRMAN: On exactly that note, how long does this process take?

(Mr Mason) A complaints procedure? I think it is difficult to say. To be fair, it is extremely rare and, in fact, what we have found is our experience has been that the businesses that have complained have actually been a bit disappointed but when they have started speaking to us what they really have been saying is, "We would have liked to have got more". When we explained to them the reasons why they got the rating they did, they accept that and do not take it any further. I have got no evidence so far from any of the local authorities that have had to implement their formal complaints procedure. It normally gets resolved at the food safety manager level and, in fact, it is fair to say that on a few occasions food safety managers have looked at the case and adjusted the rating in a few cases where they felt it has been necessary to do so. The scheme does allow for that and does allow to make sure we are fair to businesses if a mistake were to be made.

118. CHAIRMAN: Thank you. We will probably come back to that point later.

119. MS LIEVEN: Could I ask a question on that, Mr Mason. If a premises operator really felt they were being unfairly treated by the local authority and - these situations do sometimes arise - felt that the local authority for whatever reason had a real downer on them and that an internal appeal was not sufficiently independent, would it be possible for them to complain to the local government ombudsman if they felt there was a real miscarriage of justice, to put it in colloquial terms here?

(Mr Mason) Yes, they could. That would be the next step effectively for them outside the local authority's own mechanisms.

120. MS LIEVEN: Is that a process which often arises in environmental health? Have you found this problem arising?

(Mr Mason) Ombudsman cases in food safety are extremely rare in my experience. Ombudsmen cases in environmental health normally tend to deal with things like noise complaints and so on but, in my experience, I have never had a food safety matter go to the ombudsman.

121. LORD BURNETT: Have you been judicially reviewed or has anyone taken steps judicially to review any of these decisions?

(Mr Mason) Not to my knowledge.

122. MS LIEVEN: Then just say you have the scenario where the restaurant has a really bad day for reasons that are largely outside its control or perhaps wholly outside its control, the electricity goes down because somebody drilled through a cable and freezers therefore are not operating on the day the EHP comes round, is that something you can take into account when you carry out your inspection?

(Mr Mason) Yes, it would be something we take into account. Some of the larger businesses have suggested where, for example, the local managers have allowed transitory lapses in the standards to occur which are unrepresentative of the company's usual standards, it would be unfair not to allow a low rating to be changed following a company's efforts. We have produced guidance and training for all London's Environmental Health Practitioners. Over 300 people have been through a consistency training process and the guidance is there which enables them to take a pragmatic view and not to significantly score down a premises because of something which was quite clearly an unforeseen event, which is quite clearly also not representative of the way that business normally carries on and so we do have measures to be able to take account of that. We would not expect that it would result in them getting a disproportionately low score and it would be fair to say that in such cases as described an officer would probably be prepared to go back outside of the normal inspection process in order to carry out a re-assessment in those sorts of extreme circumstances.

123. Let us then turn to the two key aims of the scheme, transparency for the consumer and an incentive to businesses to improve. First of all, transparency, can you explain why in your view this scheme is important for that purpose?

(Mr Mason) Yes. A survey was carried out by Denise Worsfold in 2006 from the University of Wales Institute Cardiff titled: "Consumer Information on Hygiene Inspections of Good Premises", and that research showed that 90 per cent of consumers sampled believe that the public have a right to know the result of food hygiene inspections. The survey further showed that consumers wanted easy access to the information either on a public website or on display at the business. Increasing transparency goes hand in hand with public education about the inspection process and Food Standards Agency focus groups and Which? surveys have also shown that there is high consumer support for these schemes.

124. I think at appendix 10 we produce some letters from various premises supporting the scheme, but at page 49/1 towards the end of appendix ten I think there is a letter from Which? "Which?" is the public name of the consumers association, is it not?

(Mr Mason) Yes.

125. Are they supportive of the scheme?

(Mr Mason) They are very supportive of the scheme and particularly supportive of compulsory display, and the fact that compulsory display is necessary in order that the public are properly informed as to the standards in food premises.

126. I think they say right at the end of the letter: "For a scheme to be most effective we therefore support mandatory display of hygiene scores and therefore support the inclusion of this within tenth London Local Authorities Bill"?

(Mr Mason) That is correct, yes.

127. They set out reasons in the letter which are very similar to the issues you have gone through.

(Mr Mason) That is correct.

128. At the moment how easy is it for the public, for a consumer, to find out what the food inspection of premises they want to visit has been?

(Mr Mason) Currently, or prior to the introduction of this scheme should I say, the only way they could do that is by making a Freedom of Information Act request. The Freedom of Information Act was brought about to establish more open government and accountability and there is also the Local Government Act 2000 which gives authorities general powers for improving well-being of communities and we believe this scheme fits very well with that provision. Consumers would make a Freedom of Information Act request to find out about the hygiene standards to get a copy of the report. What effectively happens is that such requests are very time-consuming for local authorities. One authority in London had a request that covered 7,000 different premises and, of course, that is time-consuming but it does not necessarily provide transparent and clear guidance and information for the person asking for the information. Consumers often do not understand the reports that are produced and it is often then exaggerated by the media and in newspaper reports and so on, and it can be unnecessarily damaging for both the business and the local authorities. This simple graded scheme which indicates the level of compliance with the law, from full compliance down to the very worst standards of hygiene, gives consumers at a glance an indication of the hygiene standards and it enables them to compare establishments. Should they require more detail, of course they can make a Freedom of Information Act request or they can look for further information on our website, but it does seem to me a strange situation that a member of the public can look up the hygiene conditions for a premises from the other side of the world on the internet but they cannot actually see the conditions on display at the premises as they walk past looking for somewhere to eat.

129. Then turn to the other key aim, incentive to comply with the food hygiene rules, how do you see a compulsory scheme providing such an incentive? Why is it so important?

(Mr Mason) I think I have explained that established approaches to enforcement frequently do not lead to a sustained improvement in food hygiene standards. The only real incentive was the taking of very costly enforcement action by local authorities in order to improve standards but the local authority resources are such that this did only happen in very rare cases. This scheme provides a very real incentive to businesses and a very real effective alternative to enforcement. Colleagues in many authorities are already describing the scheme as having the biggest impact in improvement of food safety that any of us has ever seen. The majority of food businesses in a typical local authority database are microbusinesses, quite often they are one-man bands, just a couple of people perhaps and a huge number of whom are not represented by the petitioners to this particular clause. The vast majority of businesses have actually welcomed the scheme. They are keen to know their score following an inspection, they want to know what they can to do to get another star; it is promoting competition in areas. People looking at similar businesses to their own and giving us comments such as, "They have got four stars, what do I need to get five?"

130. I think we have largely covered this, but to make the point blindingly clear, explain why does it need to be a compulsory scheme. Why is a voluntary scheme not sufficient?

(Mr Mason) The key reason is that otherwise only the best businesses will display the rating and that will not be transparent for consumers. At ---

131. We have done the exhibit so we probably do not need to go back to that.

(Mr Mason) Yes, so what we have seen is that there is high support. I think there is one other exhibit.

132. Exhibit 12, is it?

(Mr Mason) No, it is 14. We have carried out further evaluation and surveys of businesses' responses to what they think about the scheme and we asked three questions: do businesses believe it is correct for us to rate out of five stars; do they display or intend to display their sticker or certificate; and do they think that all businesses should be required to display their certificate or sticker? The response we got across a sample of around about 130 businesses across a range of different authorities was 93.1 per cent of businesses were in favour of five stars and they were offered the option to consider other possibilities such as three stars or pass and fail-type schemes. 82.3 per cent said they intend to display or do display but of course that is in direct contrast to our experience.

133. LORD ACTON: I thought it was 9.1 per cent?

(Mr Mason) 9.1 are actually doing so but over 80 per cent three say they intend to.

134. LORD ACTON: I am very impressed by you, Mr Mason, but not by your mathematics. Is a bit of gap between 9 per cent and 82 per cent.

(Mr Mason) There is and it goes to show that businesses are saying, "Yes, of course I'll display", but of course they are not.

135. LORD BURNETT: Have you any reason why this phenomenon happens?

(Mr Mason) I think because it is not compulsory businesses are not taking it seriously in terms of ----

136. Are they worried if they display it and then they slip from five star to two star?

(Mr Mason) That it would show that. There is a risk of that, but our experience is that the businesses that are achieving five stars are actually very proud of it and ---

137. LORD BURNETT: But not sufficiently to display it.

138. CHAIRMAN: Only 9.1 do not want to put it up.

(Mr Mason) Certainly half of them or just under half of the five stars are displaying and obviously some of them are very proud of it but quite why they are not choosing to obviously we are not entirely sure, but it seems to us it is due to the fact that they are ---

139. LORD BURNETT: Could I ask one more question on appendix 14. Who was surveyed and where were the surveys carried out and when?

(Mr Mason) The surveys were carried out over a two-week period last month. Every inspection carried out in individual authorities, a range of authorities throughout London, my own authority, Westminster, Camden, Islington, Kingston, Hillingdon, I am afraid I cannot recall them all. Also one or two authorities that are also using the London scheme outside of London, Belfast.

140. LORD BURNETT: This could include outside London figures as well?

(Mr Mason) It includes a couple authorities outside London, yes.

141. MS LIEVEN: The premises was that was surveyed for the purpose of appendix 14, did they range from small businesses to big multiples?

(Mr Mason) Yes, they did. The majority of the businesses, as we can see from the figures, are small independent businesses and there was a higher support for the scheme from the independent businesses but it was also interesting to note that, although the sample was relatively small with only 15 multinational businesses surveyed, there was 100 per cent support for the scheme, including compulsory display for multinational businesses and also from franchises, although it was a very small sample.

142. LORD BURNETT: It was a random selection?

(Mr Mason) It was every inspection that happened to fall due during that two-week period.

143. MS LIEVEN: You asked the people who happened to be inspected?

(Mr Mason) Yes.

144. The final topic, Mr Mason, which we already touched on to some degree, how does what is happening in London relate to what is happening nationally through the FSA?

(Mr Mason) The voluntary scheme in London has been supported by the Food Standards Agency as one of their pilot scheme and this scheme has been used in a number of other areas, including Brighton, Maidstone, North Devon, Belfast and Swansea. The Food Standards Agency is now consulting on a proposed national recommended scheme, it will not be compulsory for local authorities to use but it will be their one they recommend. That consultation has included two alternatives. One is a four-tier three-star scheme and the other is a three-tier scheme which has pass, improvement required and fail levels but they have chosen not to consult on the London five star scheme. Although due to the fact that well over 100 authorities up and down the country are using five star schemes and representations were made to the Agency, they have invited authorities also to make comments about the five-star schemes in the consultation as well. It is therefore possible that the London five star scheme will not be the Food Standard Agency's recommended national scheme but there are very early indications from all authorities both inside London and those authorities that have used it outside of London that it has been so effective in driving up standards and such a successful scheme already that the disadvantages of having to scrap a scheme, go and ask for all the stickers and certificates back and say, "Here, you have got something else now", those disadvantages are outweighed by the advantages of sticking with a scheme that is working. A lot of authorities are already saying they are strongly minded, regardless of the FSA scheme, to stick with the London scheme that is in operation.

145. CHAIRMAN: Do you know when that consultation is going to take place? Is it taking place now?

(Mr Mason) It is taking place now.

146. When is the result?

(Mr Mason) Mid August is the end of the consultation period.

147. Do you have any idea how long the FSA are going to take to cogitate?

(Mr Mason) I have had numerous meetings with the FSA and I think they recognise this is a very thorny issue and it is going to attract a huge amount of response, particularly from those authorities involved in five star schemes. As I say, there is well over 100 authorities. I think something like 85 per cent of the authorities running schemes at the moment are five star schemes. They are expecting a lot of responses to the consultation and feel that it may well potentially be some time for them to sort that whole situation out and come down on a recommendation.

148. What is your definition of some time?

(Mr Mason) Well, they are aiming towards the end of the year to be making a recommendation, but my meetings with the FSA have suggested that they recognise it may well go into next year before they are in a position to be able to recommend a national scheme.

149. CHAIRMAN: Thank you.

150. LORD ACTON: In the Which? letter that you drew our attention to, tab 10, it says in paragraph three, it was written on 4 July, the second part of the paragraph, "We are also very encouraged that the Food Standards Agency is currently consulting on the options for a national scheme as we believe that it will be most beneficial to consumers if the same scheme is used throughout the United Kingdom". I think you have just told us that you are not going to use the same scheme, but they are consulting on two schemes, as I understood you to say, which are not your schemes and you are going to go ahead with your scheme regardless.

(Mr Mason) I apologise if I gave the impression we are going to carry on regardless, what I am saying is that a lot of authorities have said they may well be minded to stay with the London scheme. The reason I want to make that point is I want to make it quite clear that this provision will relate to whatever scheme London opts to use.

151. I am sorry, I do not understand.

(Mr Mason) The provision for compulsory display will relate not necessarily to the London scheme as it stands at the moment, it will relate to whatever schemes London ultimately adopts.

152. Is what you are saying that London could adopt the national scheme of the FSA, albeit that it is against what you are doing now, albeit that it is against what you have just said about how inconvenient it is to withdraw the five star system and replace a three star system?

(Mr Mason) Yes, I just really wanted to make the point that it is currently unclear quite which way things will go and that there is some doubt as to what the ultimate scheme will be to which this provision would apply.

153. You are seeking to legislate now, although the FSA scheme may not crystallise until the end of the year and then you will adapt within the legislation to conform with the FSA, am I right?

(Mr Mason) Sorry, I am not sure what the point is.

154. MS LIEVEN: Can I go through the position as I understand it, Mr Mason, and see if this is right. The point of the provision in clause 10 is that it makes whatever scheme is adopted in London mandatory in London. Is that right?

(Mr Mason) That is right.

155. The FSA is at the moment consulting on a voluntary national scheme, is that right?

(Mr Mason) That is right, yes.

156. If it was going to be a compulsory national scheme, then Defra ultimately would have to be the sponsors of a public bill to make it national, is that right?

(Mr Mason) Yes, that is right.

157. In terms of the detail of the London scheme, whether it is five stars or three stars, whether it is smiley faces, whether it is stickers in their current form or stickers in some slightly different form, all of that can be revisited amongst other things in the light of whatever consultation responses the FSA get?

(Mr Mason) Yes, that is correct.

158. LORD ACTON: What I do not follow is if your intention within what your Counsel has said is to install the five star scheme and if you know, as I understand it, that whatever the FSA is going to recommend is not going to be the five star scheme, that means you are going to get everybody in London doing the five star scheme and then at the end of the year, presumably you are going to conform with the national scheme, presumably you are going to conform with what the FSA want and you are going to get all your food places to switch to a three, I could not understand what the other three thing was, is it a three star or three something else.

(Mr Mason) It is a pass improvement required or fail.

159. But to switch the scheme, so you are going to install it now as soon as this legislation goes through, if it goes through, and here we are in July and then come Christmas you have got a lovely present for all of the food places, they are going to have to switch schemes. You know they are not going to adopt your scheme, is that right.

(Mr Mason) My understanding is this legislation will take some time to go through and that what we are seeking for is for it to be in place once the final decision is made as to what London is doing. We are unable to say whether or not we will adopt the FSA scheme or stick with it, it is too early to say and it is difficult to say about the consultation. The FSA may find that the consultation response is so strong in favour of five star that they revisit and they have said that they potentially would have to do so.

160. Can I try and understand this then, are you now saying you will not impose the five star scheme and make it mandatory until the FSA reports?

(Mr Mason) Yes, it will be some considerable while after the FSA have made their ---

161. That is definitely so, is it?

(Mr Mason) I believe the time taken for this clause to go through is not going to happen within the timeframe of the consultation.

162. MS LIEVEN: I think, my lords, the answer to some of my Lord, Lord Acton's concerns may be in the parliamentary process, which my instructions are we are unlikely to get Royal Assent for this Bill before Easter 2009, so in practice the FSA consultation will have finished.

163. LORD ACTON: Before?

164. MS LIEVEN: Before and even on a fairly relaxed timetable, they will have produced their report before we even get Royal Assent. Of course, even after we get Royal Assent, there will then be a significant period of time to decide what to do next, what scheme to adopt, how to put the whole thing into a compulsory framework. In practice, whether a decision is to be made as to whether it is five stars or smiley faces or three tiers will be made in the light of FSA consultation and the report just because of the parliamentary timetable. There is no danger of us rushing ahead this Christmas before the FSA report..

165. LORD ACTON: Thank you.

166. CHAIRMAN: This draft legislation, this Bill, as I understand it, wants to enforce hygiene standards, stickers, certificates, but not necessarily on a five star system.

167. MS LIEVEN: Absolutely, my Lord. A critical point to understand is that clause 10 - I have not troubled the Committee with reading the minutiae of the Bill because in my experience they are utterly impenetrable - if the Committee glance through it at some stage, is simply a scheme for making it compulsory that whatever food hygiene documents are produced by the local authority be displayed. It is no part of the statute to set out what those documents will be in terms of stars or whatever, that is entirely a matter for the local authorities through their consultation and the process as Mr Mason has described. All this clause is trying to do is make whatever scheme is ultimately adopted compulsory. At the moment we have one scheme, and that is what Mr Mason has been describing, one voluntary scheme, and it seems sensible to explain to the Committee how that works, but it is not by any means necessarily the case that precisely the same scheme will become the compulsory scheme. Obviously a highly relevant consideration will be what the FSA is doing nationally and what they say about the London scheme.

168. LORD BURNETT: What about the possible unlikely event that the FSA say they do not want a scheme at all?

169. MS LIEVEN: My Lord, the power would then exist within London for a compulsory scheme to be adopted. Of course, as with any bill, it is for the promoters to decide when and if it comes into force. In my submission this is an extremely unlikely position, but say the FSA come up with some absolutely knockout reason why there should be no scheme, then obviously the promoters and every local authority will have to think carefully as to why that knockout issue should not apply in London as well.

170. LORD BURNETT: My final question on this particular point is, you are not wedded to five stars and you will consider the FSA report, you might change the system but you might diverge from the FSA and stick with your own?

(Mr Mason) That is correct, my Lord, yes.

171. MS LIEVEN: Obviously, if I could interject there, from a public law perspective, if the London local authorities did not take into account what the national agency was doing, it does not mean they have to do the same but they would be obliged to take it into account and consider very carefully the reasoning for the natural body having taken whatever course it did. If London just said, "We don't care what the FSA are doing, we're going to do our own scheme willy nilly", they would have to explain why that was and why London was different. The FSA will obviously be a very important factor in whatever ultimate scheme in detail comes forward.

172. CHAIRMAN: Have you finished?

173. MS LIEVEN: I have finished the evidence in chief, my Lords.

 

Examined by THE COMMITTEE

 

174. CHAIRMAN: I wonder if I can ask Mr Mason two or three questions before he steps down. The ability of environmental health departments to reprimand and the ultimate sanction being to close down an establishment, that really has nothing to do with the subject we are talking about at all, you have that ability now?

(Mr Mason) We have that ability now, yes.

175. Be it under the Health and Safety Act or whatever act there may be?

(Mr Mason) Yes, my Lord. The point I tried to make in my evidence was that those are really rare occasions and it is not something that local authorities take lightly in terms of the sorts of conditions you saw in the photographs. They are the sorts of things that lead businesses to have to be closed. A typical London authority maybe closes, some authorities may not close any premises during the course of a year, another authority may close five or six.

176. The point of my question is that this Bill in no way would affect whether this clause was or was not agreed to, it will not affect your ability to reprimand and the ultimate sanction to close down.

(Mr Mason) Not in any way.

177. We can forget about that one. The second point, I think she was a good lady from Cardiff who did this public survey. Is that the only such survey there has been? How many people were surveyed and what percentage said they would love to see stickers for food hygiene? Do we have that in the documents?

178. MS LIEVEN:I do not think, my Lord, you have it in the documents, but I do have the survey.

179. CHAIRMAN: Lucky you!

180. MS LIEVEN: It may be that Ms Potier is better equipped to speak to the detail of this. If I can at least answer one of the questions factually from the material. "Method: Three small seven to ten groups of consumers were invited to talk about their views of on-line hygiene reports and the groups represented members of the local Women's Institute, mothers helping with a play group and a local history group at the local adult education centre". Then I think there were some questionnaires sent out as well. That is the immediate answer.

181. CHAIRMAN: I think the Committee would like to see that document so we know how representative it is.

182. MS LIEVEN: We can have it copied over the short adjournment.

183. CHAIRMAN: My third question is going back to a point that you raised and I am not sure I really got a full answer to it. That is the public perception of these stickers as to what they are going to see or what they think they are seeing is to do with hygiene or whether it is to do with quality. I do not mean hygienic quality, I meant quality of the establishment, ie Egon Ronay, Michelin. I was not convinced by your answer as to why the public were not going to get confused.

(Mr Mason) The design of our sticker and the logo is quite clear in terms of it describes it as food hygiene rated. In our view, that says it all, it does not say anything about quality, it says it is about food hygiene. The logo is quite distinctive and different from any of the other stickers and logos and so on that are used. Also, the fact that there will be education and publicity, there already was when the London authorities went live with this. If this provision becomes law, then there will be a much bigger and more sustained campaign of education and publicity of the public to understand and know what it is about. The fact that it appears in every food premises, whether it be a corner shop, a supermarket or a restaurant, will help people to recognise it is not just something that relates to restaurants, it is not about food quality, it is about something else. We believe it will be over a period that the public will become more educated and they will grow to understand it and they will know this is the rating, this the logo, this is the certificate that tells me about how clean that place is.

184. CHAIRMAN: Thank you. Any further question?

185. LORD BROUGHAM AND VAUX: What reaction have you had from the big supermarkets, for example Sainsbury's and Tesco?

(Mr Mason) We had a representative of Sainsbury's on our steering group in order to help us develop the scheme. His view was if we had our way, this would just go away, we would not have a scheme at all, they do not like it. However, having said that, they recognise that it is not going to go away, that it has become too big an issue nationally, and therefore it is better to try and engage and have some influence. We benefited all the way through the development process from having someone from within that sort of industry challenging us and coming up with issues that we have tried to address during the development of our scheme. It is interesting that whilst they have indicated that they are not keen, in some of the photographs you will see that there is a picture of a Tesco's with their five star on display and a picture from Waitrose with their four star on display. It does appear that whilst they say they are not keen, when they are getting good ratings they are actually putting them up.

186. LORD ACTON: Why do they not like it?

(Mr Mason) I am not sure I have the answer for that.

187. You are not responsible, you are not Sainsbury's keeper, they just do not. Perhaps we will hear similar noises from others later.

(Mr Mason) My understanding is they believe they have their own management systems in place and they feel they do not necessarily need local authorities to come and tell them what to do because they have got their own structures, if you like, for management of food safety. I also think they feel that if you go and shop in Sainsbury's every week because it is just round the corner that people are not necessarily going to take any notice of what the rating is anyway because people shop at Sainsbury's because it is convenient and are not going to take particularly much notice of the rating. That is one of the arguments I have heard.

188. They see it as bureaucratic interference without any benefit to anybody?

(Mr Mason) Yes, that is probably fair to say.

189. CHAIRMAN: Ms Lieven, is that as far as you want to go with Mr Mason?

190. MS LIEVEN: Yes, my Lord. I do not know whether Mr Couchman has any questions.

191. MR COUCHMAN: Thank you, my Lord Chairman. Before I start, I wonder if I might just ask your advice. There are some flaws we have spotted in the drafting of clause 10 and I do not know whether I should raise those now or at a subsequent point. I apologise in advance if our understanding is faulty on that point but we think there are flaws at three points in the drafting.

192. CHAIRMAN: Are they what I would call of substance or of detail?

193. MR COUCHMAN: Well, at one point it says it is a defence for a person charged with an offence under a certain subsection, and the key has been changed so the subsection under which it would be an offence is not one with an offence within it, so I would say it does make rather a difference. This is in the Filled Bill that we were sent last week.

194. CHAIRMAN: I am not certain that this applies to Mr Mason as the witness.

195. MR COUCHMAN: No, it does not, I just wanted to know when I should raise the matter.

196. CHAIRMAN: I think we should come to that point anon.

197. MS LIEVEN: I was going to suggest, my Lord, that possibly the best way to deal with those kinds of points is for Mr Couchman to give my Agent a note of the points and if they are good ones we will take them on board and if, in fact, they are dealt with in some of the subsequent amendments then we will tell Mr Couchman that.

198. CHAIRMAN: That seems to be eminently sensible, thank you. I think the straight answer to your first question is no.

 

Cross-examined by MR COUCHMAN

199. MR COUCHMAN: Thank you very much. I do not want to go into any great detail on the package which we only received late on Friday afternoon. Perhaps I can start by asking Mr Mason, and we have met before because we had a meeting at the promoters' solicitor's offices, we talk about London as 33 boroughs, including the City, but are all 33 boroughs currently using the five star scheme?

(Mr Mason) They are not all currently using it. We have 30 of the 33 boroughs that are either using it or committed to using the London scheme with three remaining authorities not having ruled out joining the London scheme at a later time.

200. I just want to pick up the point about the Borough of Greenwich. This is taken from the Chartered Institute of Environmental Health newsletter of 30 November, and we have a witness later, the headline, which relates to the comment to be made, says, "Scores on Doors stars are misleading". If I may quote, and I will happily hand this in: "The London-wide Scores on the Doors scheme could mislead the public and confuse food businesses, Greenwich London Borough Council is warning. Alan French, the Council's Environmental Health Group Leader told EHN", that is the newssheet, "the star rating system favoured by the London scheme could be mistaken for the star rating system for hotels. If a hotel has got one star it does not mean there are deficiencies, it just means it has not got the same facilities. I am not sure the public really understands that". Then he went on to say: "The London scheme uses the Food Standards Agency risk assessment which was never designed for Scores on the Doors. It talks about things like 'broadly compliant, minor contravention and major contravention', that does not mean a thing to food proprietors, you have got to tell them exactly what they have got to do with the award he said. Greenwich, which was the first council to publish hygiene reports online three years ago", that would have been in 2004, "intends to maintain its own scheme in which food businesses are ranked compliant or non-compliant". Do we have a situation there in which whatever the FSA consultation leads to you are going to end up with different schemes in London anyway possibly, not one single scheme?

(Mr Mason) There is a possibility that those authorities would choose not to join our scheme. This particular provision would apply only to those authorities that adopt the scheme. With regards to Greenwich, it is interesting because I met with Mr French probably only a matter of about six weeks ago and he did mention to me that he might be reconsidering because his staff have recently come to him and said that with the scheme they are currently operating they are not seeing the incentive for businesses to improve, so he might consider joining the London scheme at some stage.

201. In other words, you believe that you can corral everybody into whatever final scheme you end up with and every scheme in London would be the same, every one of the 33 boroughs would be the same?

(Mr Mason) I would like to believe so. That is the aim of the London Food Co-ordinating Group and that is the purpose of the London Food Co-operating Group, to develop and ensure consistency to food safety enforcement in London.

202. If that does not happen you could end up with a situation in which in adjoining streets, perhaps even in the same street but on different sides of the road, you could have an establishment with five stars because that borough has maintained that system and one with three stars because the Food Standards Agency has recommended that system and they have moved to that, and under clause 10 both of them would be required to display that on the door. Is that correct?

(Mr Mason) The first part is correct. There is a risk that not every authority will be using the scheme. In terms of the adoption of the clause, the requirement to display would only apply to those authorities using the joined up London scheme.

203. Thank you. I want to go back to the genesis of this clause. You say the scheme was introduced in October 2007, the Bill was introduced to this House in November 2007 and yet you say that you had already proved, presumably by November 2007, that the scheme was working and improving standards, or is it only now that you have got some statistical evidence which you say proves that and you are now able to bring that forward, because you did not have that when the Bill went in.

(Mr Mason) We did not have the statistical evidence I have presented today when the Bill went in.

204. MR COUCHMAN: I want to turn now to the Food Standards Agency. As you say, they are not here. To some extent it may not matter because it emerged at the end of the questioning by counsel that they have already issued their consultation, it came out on 20 May, if I remember rightly, and closes on 15 August. I just wanted to quote from that on the three points that we regard as quite critical on this. Just taking them in the order in which the consultation deals with them, one is the order of the star rating system and what is to be used, secondly whether it should be voluntary or not and, third, aspects about rescoring which were asked, rescoring at the inspection. I just want to put those to you, Mr Mason. First of all, at paragraph 19 of the FSA consultation it does say, "Two options are being considered".

205. MS LIEVEN: My Lords, I am sorry, but if a document is going to be put to a witness then in my submission the witness should have the document in front of them. This has not been shared with us in advance.

206. MR COUCHMAN: With great respect, it is a publicly issued document and obviously the witness is aware of it because he knows what it is.

207. MS LIEVEN: Well, obviously I appreciate that, my Lords, but the witness does not have full knowledge of it in his head at this moment and I have not got it in front of me. Perhaps it could be copied before it is put to the witness. It is only fair procedure, in my submission.

208. CHAIRMAN: How public is this document that you have, Mr Couchman?

209. MR COUCHMAN: It has been published by the Food Standards Agency and it is on their website. It was known from a date in March when they held their board meeting that they were going to issue it. We know that Which? wrote in to say they are fully in support of the principle behind, it, which is a national scheme. I am sure Mr Mason has read it and if he has not I am very sorry about that. You are familiar with it?

(Mr Mason) I have read it. I am not familiar with every paragraph.

210. CHAIRMAN: It does seem to me that the Food Standards Agency is so germane to this issue, if this is a public document I would have thought it was in order.

211. MS LIEVEN: I am not in the least bit objecting to the document.

212. LORD ACTON: Not only that it is in order, I would have thought we all ought to have it.

213. MS LIEVEN: Absolutely, my Lord. I am sorry, perhaps my interjection was misunderstood. I am not objecting to it being put to the witness in the slightest, it is a highly relevant document. All I want is that there should be copies of it before the witness, as is the normal procedure that if you are going to ask somebody about a document you give them the document. For one thing, I have not got a copy of it in front of me so I cannot see whether the questions are fair or not, whether they are reflecting the contents of the document. It is just normal standard procedure in any tribunal that if you ask somebody a question about a document you give it to them.

214. CHAIRMAN: I do take your point. It does seem a little difficult to comment on the document when you have not got a copy of it.

215. MR COUCHMAN: It is rather a lengthy document, as you can see, my Lord Chairman. Can I perhaps ask Mr Mason if he has read it and is aware of the three main points?

216. LORD BURNETT: My Lord Chairman, the object of these proceedings is for everyone to understand what is being spoken about and certainly, to take Lord Acton's point, we would want to see it as well. Perhaps this discussion can follow after lunch when everyone has had a chance to have the document.

217. CHAIRMAN: That seems very practical. Mr Couchman, would that be in order as far as you are concerned?

218. MR COUCHMAN: Yes.

219. CHAIRMAN: Perhaps we can arrange to get the document copied and then everybody will be happy because they will see it in front of them. Are there any other documents, Mr Couchman, to which you are going to refer where we might find ourselves caught in the same trap?

220. MR COUCHMAN: Only about four lines, my Lord Chairman, just picking up the point about whether all boroughs are on side. The Tower Hamlets in their Food Law Enforcement Service Plan, which went to their councillors and was dated 2008-09 and presumably went to them at the start of the financial year, simply said: "A national Scores on the Doors scheme is likely to be announced by the FSA at the end of the year. This scheme will allow local authorities to publish a food premises risk rating in line with national criteria. We will report back with recommendations when the national scheme is announced". So there is at least one council that is not taking any action prior to the FSA reaching its conclusions.

221. CHAIRMAN: I think we ought to have a copy of that as well in case we run into trouble. Has this rather spiked your guns, Mr Couchman?

222. MR COUCHMAN: No, not at all. We will show later on that actually the Food Standards Agency consultation is absolutely critical to this area and they are taking a different view, and we will produce that in evidence, from the view that is being taken by those London boroughs which support the five star scheme and make it compulsory. The only point I wanted to ask about, and we do not want to get too much into the realm of statistics, is, Mr Mason, you have said the five star scheme has improved standards. That is a very short period in which to make that conclusion. Have any of the zero or one star premises, and I am taking those as the worse but maybe we should include two as well, in your borough made any complaint against their star rating?

(Mr Mason) I am afraid I cannot say specifically which ratings of businesses have contacted us, but it is fair to say that a few businesses have contacted us to discuss or initially perhaps complained to say they were unhappy with their rating and all of those have been resolved as a matter of discussion. There has been one instance where the food safety manager revised the rating following review, but in all the other cases once it had been explained to the business the reason why their rating was achieved and what they needed to do to put it right, it was accepted, so no cases have gone to the furthest formal complaint process in my authority.

223. MR COUCHMAN: Thank you.

224. CHAIRMAN: Any other questions in cross-examination?

 

Cross-examined by DR RAWLINGS

225. DR RAWLINGS: My Lord, if I can just pursue a couple of quick points before we break for lunch. I wanted to return to the question of cohesion with the London scheme, if we can call it that. Would you agree that clause 10 would allow 33 different systems in London as it stands?

(Mr Mason) It is not intended that be the case, no, there would be one scheme to which this clause would apply.

226. CHAIRMAN: That did not quite answer the question. Would you like to repeat your question?

227. DR RAWLINGS: My question is, would clause 10 allow 33 different schemes?

(Mr Mason) Would it allow it?

228. CHAIRMAN: Would it allow 33 different schemes, that was the question.

(Mr Mason) My understanding of the intention of it is that it does not allow but without the specific wording in front of me I would not be able to say if that is definitively the case. Certainly the intention of the clause is there would be one scheme.

229. DR RAWLINGS: If it does not say so, do you think that clause 10 should include such a clause? In other words, should the London boroughs all subscribe to at least the same system?

(Mr Mason) My belief is that all London authorities should subscribe to the same system, yes.

230. Just to pursue that one more time, if the London scheme is so persuaded by the five star system, why is it not prescribed in the Bill as such?

(Mr Mason) This clause is specifically about compulsory display of information and a rating; it is not specifically about the detail of any particular scheme.

231. Do you not think then that it would have been helpful at least to have a description of the certificate and the sticker that is to be prescribed, and, if not, whatever scheme is adopted how will there be consistency across London?

(Mr Mason) The certificate and sticker final wording and appearance will be determined and settled prior to the implementation of this scheme so any authority adopting the provision would be required to use the final approved version.

232. Required by whom? By you?

(Mr Mason) Would be required by the provisions of the London scheme.

233. But that would not of itself be mandatory, would it?

(Mr Mason) It would not be a mandatory scheme for local authorities to participate in.

234. That is what I was trying to get to. You have managed to discuss food hygiene for the best part of this morning without mentioning the acronym HACCP. Perhaps you could explain what that is to their Lordships.

(Mr Mason) HACCP is a food safety management system which originated in the NASA space programme. It is designed to ensure that food is safe at all stages of production. The reason it was developed in the NASA space programme was because the implications of an astronaut suffering from food poisoning in space were unthinkable and that is basically where the concept of HACCP as analysis and critical control points first came up. Over the years what has happened is that that has become more mainstream in terms of the approach to food safety management, so much so that it is now prescribed in EU regulation as being the requirement that a business has the HACCP, and a HACCP is a documented food safety management system.

235. CHAIRMAN: How do you spell this interesting word?

(Mr Mason) H-A-C-C-P, Hazard Analysis and Critical Control Points.

236. DR RAWLINGS: Would you therefore understand that the food hygiene regulations have changed in that respect from an inspection based system to a management system under the principles of HACCP?

(Mr Mason) Yes. I think I said in my evidence that the regulations require businesses to actively manage food safety within their own operation, and this is the point I was making, that local authorities have in the past continued to go to a business, tell them what they need to do, give them a list of works and go back only for them to put those right but then slip back afterwards. HACCP was the point I was trying to make, that businesses are expected to actively manage that in their own right.

237. DR RAWLINGS: And do you know when this was introduced?

(Mr Mason) In the 2006 regulations.

238. DR RAWLINGS: Is it not at least conceivable that some of the improvement you have seen in food hygiene is down to that, because surely that is what the regulators intended?

(Mr Mason) I believe that that goes back to the point I mentioned about the Food Standards Agency's Safer Food Better Business pack which they have issued to enable businesses to easily implement a food safety management system or a HACCP. They have introduced this particular document but what local authorities found was that businesses were not particularly engaging with it, they were not necessarily taking it on board, but as a result of Scores on the Doors what we have found is that we have been able to get businesses to take Safer Food Better Business and attend training courses on the basis that if you want to improve your star rating then you need to put this into place and this will help you do it, so I think the two have gone hand in hand.

239. I just want to go back to the point on appeal and re-inspections. You have had some questions on that and you obviously understand there is some concern about it. Could you explain again why you do not think clause 10 ought to provide an appeal for businesses against an inspection rating?

(Mr Mason) Simply because clause 10 is purely about the compulsory display; it is not about the detail of the actual scheme which might be used to produce a food hygiene document.

240. Is it right then to ask their Lordships to approve something where we do not have the details of a scheme and where such an appeal may be a very important part of it?

(Mr Mason) The London scheme does have an appeals process. I hope I explained that we do have a documented procedure, which I have a copy of and which I can distribute if necessary, and there are mechanisms in place for businesses to appeal.

241. LORD BURNET: My Lord Chairman, I would like to see that please.

242. CHAIRMAN: I think that is germane.

(Mr Mason) For copying later is that?

243. Please.

(Mr Mason) The detail of the scheme is not relevant to the requirement to display the rating. We are saying that we expect businesses to make visible to consumers the level of hygiene which they are achieving at their routine inspections, so I do not believe that the actual detail about whether or not there is an appeal or whether or not it is stars or any other element or re-inspections is relevant to the purpose of this particular clause.

244. DR RAWLINGS: Yet you referred to the reasons against not allowing such a re-inspection, and I think I am right in quoting you, "for those operating below the law". I think you were referring at that time to businesses that had two stars, which I think you would argue were compliant since the star system is not gold-plated.

(Mr Mason) Two star businesses are not compliant, no.

245. Then why are they operating?

(Mr Mason) Why are they operating? I explained that only the premises that actually poses an imminent risk of danger to health can be closed and those are really the worst premises, where there is actual risk of contamination. That is part of the whole reason why we are introducing this scheme, that food hygiene compliance is not black and white. It is not either compliant or not. There is a whole range of things which a business needs to do and a business at five star level will be compliant with everything it is required to do but there are various levels below that and we believe it is not a case of black and white, it has passed or it has not. That is why the five star scheme has been introduced.

246. CHAIRMAN: Can I just query this one? I want to get it clear in my mind. I think you are saying that an establishment that achieves a two star rating is by definition operating below the legal limit.

(Mr Mason) Yes.

247. Outwith the law.

(Mr Mason) Yes. A two star premises would be likely to attract at least a written warning.

248. But you wish to have no authority to close that premises down, even though it would be operating outside the law?

(Mr Mason) It would be highly unlikely that there would be an imminent risk of danger to health, which is the requirement to be able to close a premises. When we close a premises we can certainly issue an immediate hygiene prohibition notice but we must then go to the court and satisfy the court that that decision was correct. We must satisfy the court for it to uphold that notice. If we do not then a local authority would be liable to pay compensation to a business if it had any loss of earnings through that action if the court decided that there was not an imminent risk of danger to health. It is not something that local authorities would go into lightly, but there are lots of businesses that are way below standard that are not bad enough for us to close them. We believe that the public should know and understand that and realise that it is not a case of pass and fail and it is not a case of everything is okay because they are open. Unfortunately, that is not the reality of the situation.

249. DR RAWLINGS: Going back to the original consultation on the Bill itself and clause 10 in particular, you will be aware of the time frames that were allowed for that, and we will come back to that in our statements, but did you not think it might have been a good idea to talk to the representative bodies once the idea had been put forward even before the Bill was published?

(Mr Mason) I am afraid I cannot comment because I was not involved in the process of the original laying of the Bill.

250. If I put it another way, you have mentioned that you spoke to Sainsbury's. Is there any other business or representative body that you have spoken to?

(Mr Mason) Specifically about the Bill?

251. About the Bill.

(Mr Mason) I have not personally spoken specifically to any business representatives about the Bill.

 

Cross-examined by MR BISH

252. You mentioned earlier about the approval of small businesses for the whole process of Scores on the Doors as you saw it. Are you conscious of having asked pubs or was there a particular area where you have been asked those questions?

(Mr Mason) The tables that are produced in evidence were based upon a random range of different businesses based upon those that were due for inspection. I cannot specifically say whether any involved pubs or not, I am afraid.

253. Small businesses tend to be concerned about bureaucracy and we looked at that earlier in the evidence. I note that in the actual proposal here you talk about stickers quite a lot but the certificates are also required to be displayed. As far as you know is it going to be a criminal offence not to display the sticker or the certificate under the proposal?

(Mr Mason) The proposal is that "food hygiene documents" means a sticker and a certificate.

254. The point here, of course, is that failure to display becomes a criminal offence and it impacts upon lots of other areas of their business. Is there any view on where the certificate is expected to be displayed? You talk about on the door for the sticker.

(Mr Mason) Yes, the sticker would be expected to go on the door where the customer can quite clearly see it from outside, and we would like to encourage businesses where possible also to put their certificate in the window, and many businesses have. I think you will have seen one of the photographs of one of the businesses that clearly displays its certificate in the window. The provision I believe is that we would expect that it is on display within the premises where the public and customers can see it.

255. So there are two items for display?

(Mr Mason) Two items, yes.

256. Staying with the certificate, I know this applies to the London scheme. We have touched on the caveat, talking about a snapshot in time as relating to that exact inspection, and the certificate relates to that.

(Mr Mason) Yes.

257. On page 32 we see that Top Kebab gets five stars and the caveat is shown in small print at the bottom. I do not see a caveat on the next page, page 33, for Sam and Ella's Café, which did not quite do so well.

(Mr Mason) These are mock-ups that I had someone make.

258. So there was not a particular reason for that?

(Mr Mason) That is a printing error.

259. MR BISH: That settles that. I have no further questions.

260. CHAIRMAN: I think that, rather than embarking on your re-examination, Ms Lieven, it might be a good time to break. Perhaps you can give us a steer how long or short your re-examination might be.

261. MS LIEVEN: My Lord, I am conscious that Mr Couchman's document is to be copied and then I think he has some questions upon it, so it might be that the sensible thing would be to break now and come back with the copies of the documents and then Mr Couchman can finish his questions. I will have a very short re-examination, I am sure, but I would rather not do it when Mr Couchman has got further questions. It is best to finish it all off.

262. CHAIRMAN: It seems eminently sensible to me. Let us break for lunch. We will resume at two o'clock.

 

The Committee adjourned from 1.00pm until 2.00pm

263. CHAIRMAN: I think we reached the stage, Mr Couchman, that we have the bits of papers to which you were referring. Unless anybody wants to correct me, I think you have the floor and are cross-examining Mr Mason.

264. MR COUCHMAN: I think that is right, my Lord Chairman. First of all, to clarify the point I made earlier about the filled bill, Mr Lewis from the promoters' solicitors has assured me that the version we had was the wrong one; apparently your Lordships have the correct version. I think we will receive a correct version in due course. That problem for the moment is resolved. Mr Mason, you were talking about the position in London and I wanted to clarify absolutely because I want to get the numbers absolutely right here. There are 33 London boroughs, including the City?

(Mr Mason) That is right.

265. Thirty-three that could be participating in the current Scores on Doors five star scheme which you are talking about?

(Mr Mason) Yes.

266. If you look at the FSA website - unfortunately it is not possible to produce that here - there seem to be 17 down on that and there are also some other councils that are not on that site but on a national commercial website. I believe Hackney and Southwark are on that, but can you assure us precisely how many are in the scheme now and when you said earlier some committed to the scheme can you say what "committed" means? What we are trying to get at is how widespread is the use now and how widespread will the use be before the FSA reaches conclusions which, as was indicated earlier, is probably going to be around the end of the year very roughly.

(Mr Mason) In terms of publishing data on to our website, which is one element of the scheme, 27 of the London authorities have currently got their on data onto the website. There are three others that are working on it or have committed they intend to work on it. One of those includes Tower Hamlets, which was referred to earlier, they have undertaken they will join the scheme but not just at the moment, and that leaves three remaining authorities which have currently have not committed to the scheme but have not ruled out the possibility of joining at a later stage.

267. LORD BURNETT: Which are they, please?

(Mr Mason) Greenwich, Bexley and Havering.

268. MR COUCHMAN: Perhaps we could move on then to the dog that did not bark, Food Standards Agency. Before I mention that in detail, you mentioned LACORS, which is the local authority co-ordinating body for regulation, which have not been involved. Have they been involved in discussion of the Bill or in support of the Bill at all, because they are not here either?

(Mr Mason) I am not aware of whether or not they submitted a response to the consultation.

269. The consultation has not closed yet but it is too early to say.

(Mr Mason) Consultation on the Bill.

270. MR COUCHMAN: I see, yes. I am sorry. Let us turn to the Food Standards Agency then. We have noted they are not here but they have put out a consultation paper, which is available for all to see. It is a public document. As you have said, you have read it, but if I could draw your attention to three points which we regard as crucial points in this and if I could ask for your comments. First of all, on page 5 at paragraph 19 ----

271. CHAIRMAN: Mr Couchman, to be absolutely clear we are looking at a document dated in handwritten form 15/08/08?

272. MR COUCHMAN: That is the closure date that I wrote on my copy.

273. CHAIRMAN: Its front page is an email dated 21 May 2008.

274. MR COUCHMAN: Then covering a more detailed document, dated 20 May, which is the document from the Food Standards Agency. The cover sheet is simply the email.

275. CHAIRMAN: As long as we are all looking at the same document. Carry on.

276. MR COUCHMAN: If we look at page 5 of that document, my Lord, on paragraph 19 it confirms there that the FSA is putting forward two options, one is three star, pass/fail, the other is pass/improvement required as currently being piloted in Scotland. Scotland has not been mentioned yet but will be mentioned in our evidence but not, you will note, the five star scheme to which Mr Mason has been referring. That is the first point. The Food Standards Agency, which is the national body, is not putting forward a five star scheme. Mr Mason, could I ask you, assuming we end up with one of these two schemes in operation, you gave an answer and I would like to be absolutely clear about the position, what would be your position as co-ordinating the London boroughs on this if one of those other options is chosen given that you are pushing very strongly for a five-star scheme?

(Mr Mason) The decision on what London's position will be cannot be decided until we know the outcome of the consultation. If we are faced with a situation whereby the FSA's recommended scheme is one of these two alternatives, although they have now invited comments on five star schemes as well because of the representations they received, then London will have to get together and agree what the way forward will be.

277. MR COUCHMAN: With one standard scheme in London?

(Mr Mason) The aim certainly for London is to have one scheme.

278. LORD ACTON: I am sorry, I did not follow that. The aim for London is to have one scheme, the national scheme or one scheme for London?

(Mr Mason) The aim ultimately is to have one scheme for London. My personal belief is it would be better if we had one national scheme. My personal belief is that the London scheme, the five star scheme, is seen by the vast majority of authorities that have already introduced schemes as being the best format and so my belief is that national scheme should be five stars. If the Food Standards Agency choose not to go with that and choose one of the other options, then London will have to make a decision as a group do they want to follow the national recommendation or stick with a scheme which currently appears to be proven.

279. LORD ACTON: There is absolutely no decision in principle taken if the Food Standards Agency does introduce one of the two others?

(Mr Mason) There is no decision in principle. People have been asked how they would be minded to act and a lot of authorities have indicated currently they have not been convinced by Food Standards Agency of the arguments and they may well be minded to stay with the London scheme.

280. MR COUCHMAN: There is a Financial Services Authority, my Lord, and the "A" for "authority" seems to suggest they tell everyone what to do. FSA, Food Standards Agency, suggests they are an agency of government and, therefore, do not have quite the authority. I want to be absolutely clear that Mr Mason is not saying London boroughs, if he was having anything to do with it, would defy the Food Standards Agency's final decision.

(Mr Mason) No, we are not saying we would defy it, because they have said they do not intend to legislate for a compulsory scheme for local authorities to operate, it will be entirely voluntary for local authorities. It would just be the one they are suggesting if you are starting a scheme you might want to use.

281. May I move on then to the second element that we regard as important in the Food Standards Agency consultation. My Lord Chairman, that is on page 15. There is a short paragraph once you get past the bold question about web-based platform but then it goes on. If I may read the relevant text in the paragraph: "We also propose that for both options certificates and/or stickers specifying a business's score should be provided so the information may be displayed in the premises in a prominent place that is easily visible to consumers. We propose this display be voluntary"; there is a footnote to say this is consistent with the pass/fail scheme in effect being operated in Scotland. They then go on to say, "We believe that through the planned national promotional campaigns we will increase consumer awareness such they will make their own judgments about a business failing to display its score. We believe that this will encourage businesses to display scores. We do, however, propose to keep this voluntary approach under review". Nevertheless the proposal the Food Standards Agency's board, as in its consultation, is not to have compulsion at national level". That is one of the reasons why we oppose local compulsion for which there is no justification. Finally, turning to page 16 which is about re-inspection for revisits in order to be rescored, the second paragraph on that page says: "On balance we believe that a key feature of the UK-wide scheme, whichever option is adopted, will be a mechanism for rescoring", it then goes on to refer to the Scottish scheme. "We are conscious that this mechanism must be flexible to allow re-scoring following a re-visit where appropriate and following re-inspection where necessary and that it should be sustainable in terms of local authority resources ...". It is very clear the Food Standards Agency, Mr Mason, wants to see a rescoring system. You argued very strongly against that. If the FSA comes up with a national scheme which includes a right to be re-scored, for example, because you are dissatisfied or, as happens in the Scottish scheme, after a week or so you put right what was wrong and you invite the environmental health officer to go back, you are saying you do not want that, you want people to be burdened, if that is the right word, with a poor score for 18 months, two years. Is that a punishment for not getting it right the first time?

(Mr Mason) I think the first response is they would not be burdened with a score for 18 months to two years because the businesses that receive a low score, as I gave in my evidence, will normally attract a re-inspection within six to 12 months. In terms of making sure that the premises is actually responding, revisits are taking place in between. In terms of revisits, I outlined that there are certain circumstances where the London scheme would enable us to carry out re-inspections in circumstances that were extreme and where it was possible under a revisit to determine that sufficient information could be gathered in order to make that assessment to be able to change the score. There are measures within our scheme that would enable re-scoring, but the principal objection is having to return upon request from any business who has had an unsatisfactory score at a frequency which would have a serious impact on local authority resources, as well as undermining the status of the scheme, which is to drive up standards and seek improvements which are sustained by the businesses. We believe that just being called back to carry out an inspection in order that the business gets a better score, because they got it wrong the last time, is not going to inform consumers properly to the true standards that business maintains and it is also going to severely impact upon the local authority's resources to be able to carry out its targeted action at the worst offenders who are the ones who have got the zero and one star.

282. You indicated that you had very few complaints.

(Mr Mason) This is very true. In fact, one of the thing that bears that out is the fact that whilst it appears to be being argued that we should have a scheme that enables businesses to be revisited and re-scored after an unsatisfactory inspection, the reality is we are not getting any requests for that and, in fact, other schemes which operate elsewhere in the country that have included revisits and re-scoring upon revisits into their schemes, Devon and Leicester for example, the actual demand for those rescores and revisits is extremely low. We do not feel, one, it is necessary and, two, that businesses really want it. What they want to do is find out what do we need to do to make sure we get it right next time and we maintain our score.

283. If you got a zero score and you have not been closed down, which you have indicated is quite a possibility, surely it is in your interest to go and revisit and check whether the people are still out of court or whether they are conforming?

(Mr Mason) Indeed, I think I made the point that the important thing is we must make sure we return to those worst businesses and ensure that the public health is protected. We do follow up and carry out revisits to make sure things have been addressed. One of the points I made is our revisits will normally concentrate on the problems which existed at the time. That does not necessarily enable us to gather sufficient information that a full inspection would do to carry out a full re-rating and assessment. All we are doing is looking at the things that were wrong last time and seeing if they have done something about them.

284. CHAIRMAN: Mr Mason, if you have so few who come back to you and say, "We want a reassessment", why is it that you are so anti, and I will use the Scottish example of the seven days right of appeal, if I could call it that, that is hardly going to be a burden on you if you have got so few.

(Mr Mason) The way the current scheme works is that we have made it quite clear we do not allow for revisits and, therefore, we are not getting the requests. However, if we said, "We will come back and re-inspect and give you a new score every time you get a bad inspection", the number of such requests would go up and it would be businesses perhaps in the three star rating that perhaps just want a revisit because they would quite like to get four or five that are going to be asking for that. That would be at the expense of visits to higher risk premises in the zero to one star categories.

285. I am sorry to pursue this, but you said this morning that when your officers had had a chance to explain why an establishment had got a two rating, we will use that as an example, nearly all of them - I am paraphrasing your words now - acknowledged why, and I will not say they were satisfied but they understood why they got a two star rating. I do not follow your argument now. I think you are saying that they are not coming back at you because you are saying you are not going to go and visit them every couple of days, I am exaggerating but just to make the point, but the two sides of that argument to me do not seem to go together. If you were to say "Yes, you have a right of appeal", I am looking at the footnote here, "The FHIS includes a right to all businesses that do not meet the 'pass' standard to request a re-inspection within seven days". If your two star person is convinced by your argument, then they are not going to be appealing, it is only the ones who are not convinced by your argument and think that something is grossly unfair, so why do you object to the Scottish system?

(Mr Mason) If we make it clear that our scheme will allow for those re-inspections, whereas at the moment we have made it quite clear that it does not, then that will encourage businesses to come back to us because they will think that is part of the scheme and they can get a two star rating today and think that they can give us a call next week and get a three or four star, whereas that is not what we believe is appropriate in terms of being transparent. We need to see sustained improvement, not effectively a stage-managed prearranged visit where they know we are coming and they have done everything to try and make sure everything looks fine. We want to be able to reassess after a reasonable period of time has expired and we want to carry out that reassessment without any pre-warning that we are coming, just as happens with any other routine inspection.

286. CHAIRMAN: I note what you are saying.

287. LORD BURNETT: Can I take that a little further, my Lord Chairman. I have had a quick look at the London Scores on the Doors appeals procedure, is it now an opportune moment for me to ask you one or two questions about that?

288. MS LIEVEN: Certainly, my Lord.

289. LORD BURNETT: Thank you. Is the appeal procedure triggered by the decision of the food team manager in the local authority? Is his decision final?

(Mr Mason) If he determines that he is satisfied with the rating which has been given to the business and the business is unhappy with that, then his decision is final unless the business then wants to take it further and take it through the formal complaints procedure.

290. The appellant, call him whatever you like, can then go through another routine?

(Mr Mason) Yes.

291. Would you give us a quick description of that?

(Mr Mason)Most local authorities have what we call a three stage form of complaints procedure. Initially they will make a formal complaint which will then be investigated by a senior manager within the authority. Once that matter is investigated and the outcome is reported to the complainant, they have the ability to then move on to a second stage where the matter will then be referred to an independent manager from another service who would then investigate. Ultimately, there is a final arbitration which would be held normally by very senior management within the authority.

292. If it goes to the second stage before it goes to the final decision, who are the final arbiters?

(Mr Mason) The final arbiters are senior management of the authority, who would be people who are not necessarily directed related to the management.

293. Not necessarily but could be?

(Mr Mason)I beg your pardon, they would not tend to be involved in the individual service to which that complaint comes.

294. At each hoop, can the appellant say they are not happy with that decision, "I want it to go to the final man"?

(Mr Mason) If they are not happy with the decision at each of those stages, then it can go to the final third stage and then if they are still unsatisfied with the outcome, they have the opportunity to go to the Local Government Ombudsman.

295. CHAIRMAN: How long would that take if it went right the way through?

(Mr Mason) Something as fairly simple and straightforward as this where it is a matter of fact as to how someone interpreted the scoring system properly, I would say that it could be over in a matter of a few weeks, it is just a matter of convening the appropriate panels. Obviously the Ombudsman would take longer, I am not sure what the timescales are for that.

296. LORD BURNETT: Are the appellants told of these rights? Are they explained to them, are they given to them in writing? Is it made quite clear to them that this is what they can do if they are aggrieved?

(Mr Mason) If a business complains, makes a formal complaint or suggests they wish to make a formal complaint, the normal practice in local authorities is they will be given a document that explains the council's formal complaints procedure and explains to them how they can go about using that to make their complaint.

297. CHAIRMAN: Who pays the costs of such an appeal?

(Mr Mason) The local authority.

298. Are you sure?

(Mr Mason) The local authority will bear the costs of its own complaint.

299. What about the appellant's, the people who are complaining, who pays their cost?

(Mr Mason) There would not normally, to my knowledge, be any costs involved in such a complaints procedure.

300. They would simply go themselves, would they?

(Mr Mason) Yes.

301. MS LIEVEN: My Lords, I think what is being described is the standard local authority complaints procedure and Mr Lewis and I are struggling to remember which act it is under, but all local authorities are under an obligation to have a complaints procedure and to go through the tiers of complaint that Mr Mason has been describing. It is a no-cost jurisdiction in my experience, which I have to say is not related to food standards but it often comes up in social services as an area where there are often complaints. It is almost always done by written representations and there is no provision for costs. If the complaints procedure is not ultimately satisfactory to the complainant or the appellant in these cases then one can complain to the Local Government Ombudsman and, of course, the Local Government Ombudsman can suggest that an award of compensation be made, which may well include the costs incurred in having had to go that far. So far as I can recall, there is no statutory provision for costs within the internal complaints procedure. I have certainly never come across a case where the local authority has awarded costs, as it were, although sometimes they do say a payment should be paid. I am sorry to rise, but because it is a matter of general economic law I thought I might bring it up.

302. LORD BURNETT: In my limited knowledge of these things, which relates to town and country planning, that is my understanding of it too. The witness has told us, and I want to understand this, that at stage one, all these rights, including the ability to go to the Local Government Ombudsman and how to do it, is going to be made available to the appellant?

303. MS LIEVEN: Yes. My clear recollection, my Lords, and I can check this overnight, is that statutory provisions require the local authority to inform the complainant about their rights as is now standard in many of these type of provisions. Certainly in all the social services cases I have ever seen, you get a letter saying, "If you are not satisfied, you can go to X", who is usually a senior officer in the same department. "If you are not satisfied with their decision, you can go to Y", who is normally a director level in another department. That has to be set out in a letter and there has to be a reference to the published complaints procedure which is usually quite a long document which is published on the Web, but is also available at libraries and so on.

 

304. CHAIRMAN: Are we now able to release Mr Mason? Are there any further questions?

 

Re-examined by MS LIEVEN

305. MS LIEVEN: I have three questions in re-examination. Just a few moments ago you were asked questions about re-inspection and what if the FSA voluntary scheme, assuming they come forward with one, allows, and I am going to give an example, one re-inspection within 12 months? So you cannot have a premises asking for a re-inspection every two weeks but perhaps you are allowing one second go. Is that something which could be incorporated in the London scheme if that was considered appropriate? Is there anything in the clause which stops that happening?

(Mr Mason) There is nothing in the clause, no. If it was considered appropriate then we would adopt any measures which were considered appropriate into the actual operation of the scheme.

306. You were asked this morning about the position of Greenwich, and do you remember you were taken to a press release quoting Greenwich about various concerns they had. Is Greenwich in favour of a compulsory scheme?

(Mr Mason) Yes, they are. In fact, I think they wrote in favour of it in response to the consultation for this particular Bill.

307. Finally, it was put to you, I think by Dr Rawlings, that when the Bill was deposited it was so soon after the voluntary scheme had been adopted that at that stage we had no statistical evidence as to how successful it had been, do you remember?

(Mr Mason) Yes.

308. Was there evidence from elsewhere, both from the UK and abroad, as to the effectiveness of Scores on Doors schemes?

(Mr Mason) There was. Some schemes have been running for a while in this country, for two or three years, and they were already reporting the impact of the scheme as having quite a significant impact on driving up standards within their own local authorities. One of our member authorities, Camden, was already running a scheme which was scored in a different way but within the space of 12 months they were noting significant improvements in both hygiene and structural compliance of all the businesses as they were getting their subsequent inspection in response to the fact that their rating was being published. In North America there is evidence of improved hygiene standards where the scheme is already compulsory.

309. MS LIEVEN: Thank you very much. Those are all of my questions.

310. CHAIRMAN: Thank you very much. Can I just ask the Committee whether they have any questions for Mr Mason. I just have one, Mr Mason. I am sorry to flog this Greenwich issue. I think I recall what you said this morning but I want to be quite clear. I am looking at 30 November 2007, presumably it is a press release or statement. Do you have that in front of you?

(Mr Mason) Yes, I do.

311. Chartered Institute of Environmental Health?

(Mr Mason) Yes, my Lord.

312. At that stage, the end of November last year, Mr French of Greenwich said very clearly that they wanted a nationwide system, they were going to maintain their own system ranked "compliant" or "non-compliant", "Greenwich thinks the Government should introduce a mandatory rating scheme for food businesses across the country. Ideally we need a system like Denmark..." et cetera. I think you said this morning you were getting indications that Greenwich is now moving towards the five star system, is that correct?

(Mr Mason) Yes. I met with Mr French at an Association of London Environmental Health Managers' meeting around about two months ago and, as I always do when I see him, I asked him if he had any movement in terms of his position. Greenwich had already started their scheme prior to the beginning of the London scheme and I think they decided they would like to stick with what they were already doing rather than introduce something new. What he said to me when I met with him was, "Actually, my staff are starting to come to me and suggest we ought to start thinking about the London five star scheme because our current scheme is not acting as an incentive to businesses to improve and they are not seeing any gradual improvement which is being reported as happening with the five star scheme". Whereas he did not actually say, "I am going to come and join you now", he is indicated there is possibly some movement in that direction.

313. In reply to Lord Burnett this afternoon you instanced to us there were 27 boroughs on-side, so speak, three working on it and three uncommitted. Is Greenwich one of the uncommitted?

(Mr Mason) Greenwich is one of the uncommitted, yes.

314. CHAIRMAN: Thank you. Any further questions to this witness? Thank you very much, Mr Mason.

 

The witness withdrew

315. MS LIEVEN: Thank you, Mr Mason. I am going to call Ms Potier.

 

MS TAY POTIER, Sworn

Examined by MS LIEVEN

316. MS LIEVEN: Can I please start by introducing you. Your name is Tay Potier. You are a chartered environmental health practitioner with a BSc in Environmental Health. I think you have specialised in food law for over ten years both at an operational and management level in London. You are currently employed as the London Regional Policy Officer at the Chartered Institute of Environmental Health.

(Ms Potier) Yes, I am.

317. I think you are here to give a slightly broader overview of the Scores on Doors scheme and a little bit of background on international experience of the scheme. First of all, can you just tell us briefly what the Chartered Institute of Environmental Health does?

(Ms Potier) The Chartered Institute of Environmental Health was formed in 1883. It is a professional and educational body dedicated to promoting environmental health and the promotion of standards of environmental health in environmental health professionals. We accredit degrees in environmental health, both on an undergraduate and postgraduate level. That academic study is reinforced through work-based learning and professional exams. Our charitable aim is to promote Environmental Health for the benefit of the public and to this end we support and represent the interests of those who work in environmental health. We are also a campaigning organisation with offices in London, Wales and Northern Ireland. We have a trading arm as well, The Chadwick House Group Limited, which is charged with promoting our mission through trading activities, so we run food hygiene certification training programmes and other training programmes as well. We have nearly 10,000 members.

318. Can you explain why the Institute is giving evidence today?

(Ms Potier) We are giving evidence here today in our capacity as a professional organisation. I am employed as the London Regional Policy Officer at the CIEH and my role is to help support and promote environmental health within London. I provide a focus for engagement and strategic partnerships within London, so my post has been involved in the Scores on Doors scheme as an example of the type of work we do in London in bringing London authorities together.

319. Explain to the Committee why are you supporting the scheme?

(Ms Potier) We are supporting the scheme because, as we have heard, the information is currently only displayed voluntarily and we believe to get the maximum benefits for the consumers it needs to be mandatory to display the information. We believe that consumers have the right to make informed choices about where they eat and they should be able to make that choice there and then as they approach the premises. We want to recognise and support those businesses which do well. We want to give them the opportunity to tell everybody about how well they have done and to highlight those which do not. We also want to help raise standards within hygiene in food businesses for the benefit of consumers.

320. Tell us a bit about what happens elsewhere in the world and how the scheme works?

(Ms Potier) There are a number of similar schemes to that which we are talking about here today operating across the world, notably in the United States, Canada and Denmark. In the United States all jurisdictions will provide information about restaurants' inspections on request and a number post information on websites, as we have talked about here in London.

321. LORD BURNETT: Can I just interrupt for one question? When you talk about the United States we all know that the USA is a federal system and there is considerable autonomy in each state. Is this a federal system in the United States by the federal government, or is it the states together organising it?

(Ms Potier) It is my understand that all jurisdictions have to provide information on request but that some states ---

322. All jurisdictions, each state jurisdiction?

(Ms Potier) Yes, but some states have gone further than that and require information to be published, such as in Los Angeles, for example, and San Francisco.

323. CHAIRMAN: When you say "published", do you mean by that displayed?

(Ms Potier) Yes. In New York, Los Angeles and San Francisco they have mandatory display.

324. LORD BURNETT: So that is one tier below state, that is the city?

(Ms Potier) Yes. My understanding, and I may be wrong on this, on food hygiene generally in the United States is the state government will set the way that the system works in the states but local cities, what we call counties here, have the power to amend that in their own discretion and this is what they have chosen to do. Some cities have chosen to go over and above that and require information to be posted.

325. But as a generality there are disparate systems in different states and in different counties and different cities?

(Ms Potier) Yes. My understanding of it is that everybody has to provide information on request but in some states ---

326. Is that a federal law?

(Ms Potier) It is my understanding so.

327. MS LIEVEN: My understanding, my Lords, on the legal side is that there is a federal law that information must be provided on request and then at the local level, and it appears from the evidence that it is not state-wide but city-wide, and I do not know enough about American local politics as to understand why that is, city-by-city they have different schemes, so San Francisco and Los Angeles do not have exactly the same scheme but they do both have publication schemes. New York has a different publication scheme. Certain cities have adopted schemes a bit like ours that require publication of information. Is that right, Ms Potier?

(Ms Potier) Yes, that is my understanding of it.

328. Just tell us a little bit about the schemes that they do have in New York, Los Angeles and San Francisco?

(Ms Potier) They use schemes which use letter grades of A to C and then anything that falls below a C is given a numeric value to indicate its number. Those three use systems of A to C and those are posted on the doors or windows of premises.

329. CHAIRMAN: So there would be A, B, C1, C2, C3?

(Ms Potier) No, there would be A, B, C and if it scores less than 70, 65 or something, they would publish. The system in America works differently from how it works here. In the United States they start at 100 and deduct points for what is found to be wrong, whereas in this country we start from zero and total up effectively, so theirs is the total reverse from ours.

330. MS LIEVEN: It sounds confusing, but doubtless it makes sense to them.

(Ms Potier) Yes. They would deduct, say, I do not know, three points for seeing a cockroach or something like that. It is going down whereas ours is totalling upwards.

331. CHAIRMAN: Jolly cheap cockroach!

(Ms Potier) Yes.

332. MS LIEVEN: Another example we have is Canada, Toronto. Do you want to explain how it works there?

(Ms Potier) Yes. Toronto have what they call a Dine Safe scheme which is a traffic light scheme, so they would use red, amber and green; green being a pass, yellow being a conditional pass and red being the premises is closed. That information is available online and the coloured inspection reports have to be posted in the premises.

333. CHAIRMAN: That was very interesting. You said red means closed?

(Ms Potier) Yes.

334. When we were discussing with Mr Mason earlier, and you doubtless heard the discussion, you could get down to zero and still the premises is not closed.

(Ms Potier) Yes. In the UK if you did close a premises, by law you have to display the notice in the window that states why it is closed. In this country if the premises were closed the public would still know that. In fact, we would say it is more than a red coloured thing, you would have a description as to why it has been closed.

335. Yes, but you are talking now in Toronto of a hygiene grading scheme.

(Ms Potier) Yes.

336. They are saying if it gets to red that is it, closed.

(Ms Potier) Yes.

337. CHAIRMAN: I think I have made my point.

338. LORD BURNETT: Obviously in New York it is city-wide, in San Francisco it is city-wide and you do not have a different regime for different parts of the city, or do you?

(Ms Potier) No, they use the same regime across the whole city.

339. For the entire city?

(Ms Potier) Yes.

340. MS LIEVEN: I think there is one European example, is that Denmark?

(Ms Potier) Yes. In Denmark they use smiley faces from a very happy face to a sad face.

341. LORD ACTON: I just want to get it straight. I have lived in Iowa so I know America. California, Los Angeles, San Francisco, but going to California, do other Californian cities have a system?

(Ms Potier) When I was researching it, they do but it may be in a slightly different way. In Napa apparently they have to post a sign saying the information is available.

342. That is as far as they go?

(Ms Potier) That is as far as they go.

343. Only those two cities in all of California?

(Ms Potier) It is the cities, yes, that have taken it that step further.

344. That is very interesting, thank you.

(Ms Potier) Yes, in Denmark they have smiley faces from a happy face to a sad face.

345. CHAIRMAN: To go back to my previous point, if in Denmark the face is turned down does that mean the establishment is closed?

(Ms Potier) No. In Denmark it means that - can I just check on that? I think it means it is about to go for prosecution.

346. CHAIRMAN: It is pretty close to the same thing, is it not?

347. MS LIEVEN: If I can answer that, my Lord, because I have the note, a frowning face means that the enterprise has received an administrative fine, has been reported to the police or approval has been withdrawn, so it has not necessarily been closed although it might be well on the way.

348. CHAIRMAN: It is getting quite close to it. Thank you.

349. MS LIEVEN: Let us give one other example, Ms Potier, because Lord Acton is interested in America. Do you remember what the position is in Tennessee? Perhaps you have not got the notes. That may have a scheme with points; is that right?

(Ms Potier) Possibly, yes.

350. We will leave Tennessee then. It was just to show my great knowledge on the subject. Taking that international experience and range of schemes, what evidence is there as to whether they work or not, whether they are useful?

(Ms Potier) There has been research conducted of the scheme in Los Angeles, a couple of different pieces of research done by in fact the same people from Stamford University, and they show that compulsory display of hygiene grade cards caused hygiene standards to improve by about five per cent. They showed that the cards caused an increase in hygiene scores and that consumers made better and more informed choices. The research also found that grade cards caused a decrease in hospital admissions of food-related illness which was further supported by some research that they did in 2005. Those pieces were 2003 and 2005.

351. And that was specifically about LA, I think.

(Ms Potier) That was specifically about LA, yes. There has been research into the scheme in Toronto as well. The scheme in Toronto has been running since 2001 and they evaluated it in 2002 and found that 98 per cent of the public supported the scheme and 71 per cent of the food businesses reported that inspectors were either fair or impartial. The scheme in Toronto concluded that there had been increased compliance and continuous improvements in food safety as a result of the programme. There has also been some research done into the Danish scheme which was repeated in 2007, which showed that 99.8 per cent of consumers were aware of the scheme and that 88 per cent of them thought that it was a good idea; it helped consumers make more informed choices, and that 19 per cent of businesses did or would carry out improvements to avoid getting a poor score. Overall the Danish food authorities said that it had been an outstanding success and Mr Mason actually went to Denmark a couple of weeks ago to have a look at the scheme and see how it was operating there, and all the people, and he met some businesses as well, spoke very favourably of it.

352. Can I move on to the question of why London and why now? An obvious question that might arise is why not wait for the FSA and see what their voluntary scheme is, assuming they have one, and let it come through that process?

(Ms Potier) The FSA obviously is still in the process of doing its consultation and that is not concluded. The time frame for that is uncertain, it would be fair to say, and for the FSA to bring forward compulsory display would require a Bill before Parliament and the time on that would be quite lengthy, and this gives us the opportunity to move ahead with this now. We feel that the benefits for consumers to be gained mean that we need to press ahead as soon as possible with this to ensure that consumers get the maximum from it. London is our capital city, we have millions of visitors to London and we are an Olympic host city as well and we want to make sure that our standards of compliance in London are as good as they can be.

353. LORD ACTON: Even if the price is putting a great hole in the middle of the FSA scheme?

(Ms Potier) I personally think it is difficult to say because at the moment the FSA consultation has only just started and it has proved to be quite complex for them. The process has become quite complex. It has become quite involved and as yet the timetabling on that is uncertain.

354. That is not my question. If London, or a large part of London, or what Mr Mason called many of the local authorities are minded to go ahead with the five star scheme, I think he used the word "regardless" but I paraphrase, and obviously if the FSA sticks to the way it has set out this thing although it has incorporated the five star scheme, I appreciate that, but it still seems to be keen on the two other schemes from the way I read the document, my question is, if you go ahead with your mandatory legislation intertwined with your five star scheme will that not put a great hole - and it is only what we know and we may be wrong - in the FSA scheme?

(Ms Potier) I do not know that it will. The compulsory display element that we have before us here today, as Mr Mason said, would apply to whatever scheme London finally decided it wished to use, and at the moment as yet nothing is certain on that. I do not personally see that if we have compulsory display in London it would ruin any chances of an FSA scheme.

355. I did not say that. I said intertwined with the five star scheme. You do not think that puts a hole in having a national scheme as the Which? document I read out this morning said and as they say in this document we have just been given? What were their words - "proposals for establishing a UK-wide Scores on the Doors scheme"? You do not think it puts a hole in that?

(Ms Potier) No. The Chartered Institute of Environmental Health, whom I represent, also support the introduction of a single national scheme but we also happen to believe that mandatory display of information is best for consumers.

356. You do not think it puts a hole in it?

(Ms Potier) Personally I do not, no.

357. MS LIEVEN: Can I just follow that up for a moment, Ms Potier? Say the FSA end up adopting a three star scheme rather than our five star scheme but it is a voluntary scheme across the UK, and London decides to follow the FSA's lead and have the same scheme but have it mandatory in London. Do you see anything incompatible in that position or anything that would disadvantage the FSA's position?

(Ms Potier) No, not at all.

358. Let us take it stage by stage.

(Ms Potier) No.

359. But even then, assuming, Ms Potier, that you have got a five star scheme in London and, say, a three star scheme elsewhere, and the London scheme again is mandatory, do you see that as being a problematic situation?

(Ms Potier) No. As we spoke about earlier, London is our capital city and often has historically set the way with pieces of legislation which then have been rolled out nationally. It has been the case with schemes in other types of areas.

360. CHAIRMAN: To come back, if I may, to the possible confusion between this and I think the example was given of hotels with the starred system, am I right in thinking that the starred hotel system is nationwide? That is not unique to London, is it?

(Ms Potier) No, those are national.

361. You know, a five star hotel or a two star hotel.

(Ms Potier) Yes, AA rosettes and whatever.

362. So that is a national scheme?

(Ms Potier) Yes.

363. But you said just now that you cannot see any problem if there was a hygiene five star scheme and another scheme in another part of the country of, say, three somethings, whatever they might be?

(Ms Potier) What I said was that I did not see that having mandatory display of stars in London would put a hole in any national scheme the FSA was going to have.

364. LORD BURNETT: Am I right in saying on the Lord Chairman's point that you could have the AA star scheme in any event and you could have some other organisation that has its own star scheme as well? Is that correct or do you not know?

(Ms Potier) Sorry?

365. You could have the AA scheme of stars that hotels have, and then you could have another scheme by another organisation which might award a different star system or you might have the Michelin arrangement where, from memory, you look at the Michelin book and you see a diagram of the hotel, depending on whether it is red or it is in black and white. There are all sorts of different ways of measuring hotel excellence.

(Ms Potier) Yes, and there are lots of different schemes in operation and from personal experience I think some hotels use a number of different schemes and will advertise their rating under different schemes.

366. MS LIEVEN: Can we turn, Ms Potier, briefly to the position of the FSA? I will deal in closing with whether it would be appropriate or possible for the FSA to give evidence here, but in your discussions with them do you understand from them that they see this Bill as potentially putting a hole into their future scheme?

(Ms Potier) They have never mentioned so, no.

367. In terms of discussions with them, have they ever said to you that they are adamantly opposed to a mandatory scheme?

(Ms Potier) They have knowledge that this is what London is doing but they have never mentioned that they have a problem with it, no.

368. And have you had discussions with officers of the FSA?

(Ms Potier) I have certainly mentioned it to them and I have certainly mentioned that this is what is going through and that this is what would be required and they have never indicated, formally or informally, that it is a problem.

369. CHAIRMAN: They have not said they do not like it. Have they said they like it?

(Ms Potier) No.

370. LORD BEW: Do you have some sense of what their underlying philosophy for still going for voluntary control is? That seems to be something which would have some sense. Why are they in the pro-voluntary position?

(Ms Potier) I think it is very difficult for me to say because I clearly do not work there and I do not know much about it, but I think it would be fair to say that the Scores on the Doors issue for them has become more complex in recent months. They have had to bring forward their evaluative research. It was meant to run for two years. They then ran it only for six months. They had a board decision and have had to start the consultation earlier than they originally wanted to. I think it has become a complex issue for them.

371. CHAIRMAN: Is that because there is quite a swell of antagonism to it? Is that why it has got complicated?

(Ms Potier) No. It has become complicated because in the time frame of people starting to talk about it it gathered momentum a lot quicker than they thought it was going to, with the end result that well over half of the authorities in the UK currently run a scheme of some form or other and the FSA became concerned that the momentum was gathering pace too quickly and that they needed to move more quickly to try and identify a national scheme.

372. LORD BURNETT: I should have picked this up earlier and I do apologise. You do work for the National Association of Environmental Health?

(Ms Potier) Yes, I do. I work for the Chartered Institute of Environmental Health.

373. And are you asserting the views of your Chartered Institute now?

(Ms Potier) Yes, except, as I say, in areas like the FSA and that sort of stuff, obviously I do not work for them. Yes, we do support compulsory display.

374. If you are a barrister the Bar Council has a view on matters. The views you are asserting are on behalf of your Chartered Institute?

(Ms Potier) Yes.

375. CHAIRMAN: And you have no offices in Scotland; is that right?

(Ms Potier) No, we do not.

376. MS LIEVEN: Finally, Ms Potier, to sum up, what do you see the benefits of the scheme being and what is the evidential support for that?

(Ms Potier) As we said earlier, consumers want to receive this information and the Chartered Institute of Environment Health wants consumers to be able to receive information in a form which they can easily understand so that they can make informed choices. We want to support and recognise businesses which do well and to encourage the highest levels of legal compliance possible.

377. MS LIEVEN: Thank you. Those are all my questions.

 

Cross-examined by MR COUCHMAN

378. For the benefit of the Committee, since my Association is very much involved with hotels and hotel grading, I just want to explain that for several years now we have had a harmonised system across Great Britain, not Northern Ireland, and Guernsey and one or two others as well which is a standard scheme. Whether they were in the AA scheme or the National Tourist Board scheme they will give the same stars to a property and they have in effect harmonised their schemes around that basis. It took many years to get there. Occasionally hotels or sometimes tour operators will devise their own schemes. We are not very happy about that because we think there ought to be one scheme but, sadly, there is no copyright in stars schemes and there is nothing to stop anybody introducing a star scheme for anything, such as one might see on television for buying insurance, for example, but it is correct that there is one scheme, AA and National Tourist Boards, across Great Britain, just to clarify that point, and that indeed is based on quality and facilities of the property. Ms Potier, you said that it is important to note that people have done well. It is interesting that the schemes you have mentioned abroad, Toronto, red, amber green, and the smileys in Denmark which I have got a little bit of knowledge of, are all - I am right in saying, am I not - three-point schemes? You have a pass, you have a fail and a sort of intermediate "improvement required"?

(Ms Potier) Not in Denmark actually. They have four tiers in Denmark from the big smile to the sad face and they also have an elite smiley as well which is where you have four big smiles in a row.

379. Certainly the Toronto scheme is not very different from the Scottish scheme and the Danish scheme is not very different from a three star plus scheme, which is one of the FSA options. What I am saying is that there are a number of options. You are not giving the impression that everywhere in the world has a five star scheme?

(Ms Potier) No, none of the schemes I have cited have five star schemes.

380. You talked about whichever scheme London decides to use because, of course, the way the Bill is worded it is going to be up to each local authority to decide when to introduce a scheme and which scheme to introduce, that is your understanding?

(Ms Potier) No, it was my understanding that the Bill was for the one scheme for London.

381. I do not think it is worded that way because, as originally worded, it is to be introduced on an appointed day which might suggest one scheme. There is nothing now which would suggest it would be necessarily one scheme for London. Each authority of the 33 has the right to decide which it will introduce and presumably a scheme based on whatever it happens to be operating at that time. I am trying to get to the point that we have been asked to accept that there is one London scheme and there will be one London scheme, there is absolutely no guarantee of that in the legislation or in the way the local authorities operate. Is that correct?

(Ms Potier) It was my understanding that the way the legislation was written the Bill would apply to one London scheme.

382. MS LIEVEN: As a matter of law, my Lords, there could be - it is an extremely unlikely possibility - different schemes in each local authority. There is still an appointed day but it is open to each authority to open a different scheme on the appointed day. I will deal with the likelihood of that happening in closing but it is a possibility.

383. LORD ACTON: Forgive me, but why are you saying it is unlikely? There are three local authorities which are very against it.

384. MS LIEVEN: My Lord, it is unlikely. The nightmare scenario that is being put is 33 different schemes. That is extremely unlikely. We certainly cannot say hand on heart all 33 will necessarily go with the one London view, Greenwich might stick with its own scheme, Havering might continue to say it does not want any scheme at all but in terms of probabilities rather than theoretical possibilities we are looking at the vast majority of London local authorities going with the London scheme. That is the submission I will make in closing.

385. LORD ACTON: I am sorry, my Lord Chairman, reverting to our old friend, the FSA's potential scheme, Mr Mason evidence gave evidence that he thought at the moment most local authorities were minded to stay with the five star scheme regardless. That implies there is a minority that would not, so I do not see why you say "in the highly unlikely circumstances". I would have thought it was highly likely some would go with the FSA.

386. MS LIEVEN: My Lord, we are in a very speculative position here where we do not know what the FSA consultation will come out with, we do not know whether they will in fact in the end come to the London scheme because it has been so successful, as Mr Mason suggested, they may be moving towards or whether they will go with a different scheme.

387. LORD ACTON: I am so sorry, did he suggest that?

388. MS LIEVEN: Yes, he did.

389. LORD ACTON: I thought what he said was they have now, after representations, incorporated it into their document, which I see, but in both places they mentioned it very much as an afterthought. They give an option one and two and then they say, "Oh, and there is a five star possibility". With respect, that is not what I heard him say.

390. MS LIEVEN: My understanding of the evidence, my Lord, is that the consultation was on the basis of the two alternatives, but the FSA have now said, "If you want to make representations about is this third possibility, the London scheme, you may", and that is in the light of the fact that the London scheme is perceived to have been very successful and I think he did make reference to that, although I will check in the morning.

391. LORD ACTON: That is not what Mr Mason said, he said there was so many representations. I am sorry, those are not his words.

392. MS LIEVEN: I will check my Lord. I may have taken my notes and assumed he said it, but anyway leave that to one side. The fact is we are in a very speculative world because, first of all, we do not know what the FSA consultation will come out with; secondly, we do not know what the FSA will decide in the light of this consultation; and, thirdly, we do not know what the London local authorities will do in the light of those first two stages. It is possible everyone will go their separate ways and there will be a division within London. I cannot say it is impossible but in my submission, given that within a relatively short period of time we have got to the position where 27 local authorities are signed up to the London scheme, three are on the way to signing up and there are three which are at the moment standing to one side, although we have heard, and I think I do remember Mr Mason clearly saying this, the senior officers at Greenwich are thinking further about it, I use my words. In my submission the evidence shows a movement towards unanimity in London. I cannot say that will continue but the critical point which I will come back to in closing is this has not got anything to do with the clause in this Bill. The clause in this Bill is just about whatever scheme is adopted by each local authority should be mandatory or have the ability to be mandatory.

393. LORD ACTON: I appreciate that. I am sorry to interrupt, but we have been talking about this scheme all day, we have not been talking mandatory, we have been talking five stars. I repeat my point, with respect, or I ask you again is it not, shall we say, at least on the cards that if the FSA produces a scheme different out of the then London existing scheme at least some boroughs may go with the FSA? You said they would not, you said it was virtually impossible. I do not accept that.

394. MS LIEVEN: I think, my Lord, what I said was virtually impossible was that you would have 33 different schemes. I would say that is a theoretical possibility.

395. LORD ACTON: No, that was not what you said. I think we absolutely agree that would be catastrophic and it will not happen.

396. MS LIEVEN: What I can undoubtedly say is that I can give no guarantee that the other extreme will happen, all 33 will sign up to one scheme. I cannot possibly guarantee that. Where we fall in the spectrum between those two poles is very speculative and I am not sure there is a huge amount of benefit in me speculating where I think it will fall as opposed to where your Lordship thinks it might fall, it is difficult to tell. What I do press, and I am sorry if I have not made this sufficiently clear so far today, is that all those issues are not really what this clause is about. This clause is about mandatory or not mandatory. We have explained to the Committee what the present London scheme is and what the FSA is consulting on but at the end of the day all the Committee is concerned about is whether the councils of London have the power to require premises operators to put the stickers and certificates on the door or in the premises, that is the only issue before the Committee. What they put in terms of stars or smiley faces, whatever, is not a matter for the Bill and I am sorry if I had not made that sufficiently clear earlier. I hope that is sufficient at this stage. Sorry I interrupted.

397. CHAIRMAN: I am a bit lost as to where we are too.

398. MS LIEVEN: I think Mr Couchman is cross-examining Ms Potier.

399. MR COUCHMAN: I think we are all slightly lost on it, my Lord. Perhaps one final point. Britain attracts a lot of tourists from overseas; a lot of people from this country go and visit London and other cities. You would agree that it is desirable there should be one national scheme?

(Ms Potier) Yes, it is my institute's position that we believe one national scheme would be preferable.

400. If that scheme ended up as one that was very unsatisfactory because people did not understand it for some reason because it was too complicated, that would also be bad news?

(Ms Potier) Yes, again, it is our position that we believe any scheme that is in place should be easily understood by consumers.

401. I do not want to get too involved with schemes. Do you think it is a possibility that it might not be a good idea to have a law that made it compulsory to display stars or numbers related to a system that people did not understand?

(Ms Potier) No, yes. Sorry. We support compulsory display and we believe the information that is made available should be clear and easy to understand by consumers, yes.

402. There may be a contradiction between that and the scheme that is introduced?

(Ms Potier) Only if the scheme that is introduced is not clear and easy to understand.

403. You are satisfied that, for example, a five star scheme is easy to understand in the same way a pass and fail would be easy to understand, because everyone knows what that means, you either have conformed or you have not? Whereas one to five you have to read the rubric and a lot of detail.

(Ms Potier) Yes, but in much the same way as you mentioned the hotel grading scheme, there is information that is provided behind it which indicates what different standards mean.

404. MR COUCHMAN: The sad fact, of course, is that the hotel rating has been going on for 100 years and people around the world broadly understand what it means whereas this is a new scheme and perhaps has not found its feet yet. I have finished, my Lord.

Cross-examined by DR RAWLINGS

405. DR RAWLINGS: Would you accept that the Food Standards Agency is an expert agency in its own right?

(Ms Potier) The Food Standards Agency is a government agency, yes, appointed to deal with these matters.

406. You would expect that it has some expertise in food matters, including food hygiene, I take it?

(Ms Potier) I would expect to it, yes.

407. You would regard yourself as an expert in food hygiene?

(Ms Potier) Yes.

408. I am accepting it. Would you accept that business has its own experts in food hygiene or has access to them?

(Ms Potier) Yes.

409. Would you also then accept that it is the role of Food Standards Agency to bring all those expert opinions together?

(Ms Potier) Yes.

410. Which is why it is carrying out a consultation now, is it not?

(Ms Potier) Yes.

411. Perhaps you could give me an opinion why you think the London authorities and the Chartered Institute believe you have a monopoly on right here?

(Ms Potier) In respect of what do we have a monopoly?

412. In respect of what - and I put it we just had the question - the Foods Standards Agency has a preferred option for a mandatory scheme at this point and it is what it is consulting on.

(Ms Potier) I am not aware it does have a preferred option for a non-mandatory scheme.

413. Sorry, non-mandatory scheme.

(Ms Potier) I am not aware it does have a preferred option for a non-mandatory scheme because it currently has at least two options listed in its consultation document and mentions a third.

414. It talks of two options, it now allows discussion of the third and it is quite clear it is not its option but it does say there that it prefers a more voluntary scheme and will examine a review later as to whether there should be a mandatory part to the scheme, does it not?

(Ms Potier) I do not have the document in front of me, I do not think.

415. DR RAWLINGS: We have had that circulated. Perhaps my colleague can find it. Page 15.

416. MS LIEVEN: I think it is probably on your disk under the email.

417. LORD BROUGHAM AND VAUX: What page?

418. DR RAWLINGS: Second paragraph then, after the question. This is the Food Standards, it says: "we propose the display at premises be voluntary".

(Ms Potier) Yes, that is what it says.

419. That is what it is consulting on.

(Ms Potier) Yes, and that is what it says.

420. Do you not think the consultation should therefore be completed?

(Ms Potier) That is one of the questions they are asking, it says, "Do you agree that it should be by means of a sticker or certificate, should it be voluntary?"

421. Do you not agree that the London Bill then jumps that consultation in trying to introduce a mandatory scheme?

(Ms Potier) This is a consultation for a mandatory scheme and, as we have spoken about earlier, "London wishes to press ahead with compulsory display earlier than the FSA would be able to do so even if it wished to".

422. DR RAWLINGS: I will not pursue the point.

423. CHAIRMAN: I am a bit confused now. This is surely a consultation for a voluntary scheme, is it not? It is not a mandatory scheme. The consultation is for a voluntary scheme?

(Ms Potier) Yes, it is and then one of the questions it asks is, do you agree it should be voluntary?

424. CHAIRMAN: I suppose it depends which end of the string you start from.

425. DR RAWLINGS: I will leave it then. Would you accept or do you see a problem for a business operating different schemes throughout the country?

(Ms Potier) I imagine there must have been some problems for businesses which are currently operating out of a number of different schemes in the country, yes.

426. Would you then perhaps agree with me that business would have a quite legitimate in looking for a scheme that covered the whole country?

(Ms Potier) Yes, as I said, the Chartered Institute would support a national scheme yes.

427. But only if it is the scheme that you would like, is that right?

(Ms Potier) No at the moment the chartered institute has formulated no opinion on which scheme we prefer. We have not written our response to the consultation yet and that has not been posted.

428. One final one and on the same line, would you also agree that consumers have a legitimate interest in something that is equally transparent and the same?

(Ms Potier) Yes.

429. How is the consumer going to handle it when he works in London and eats out for lunch and is faced with one scheme and goes home to Hemel Hempstead or whatever and then he has a different scheme? How is that helpful to the consumer?

(Ms Potier) That is the problem we currently have in that, yes, currently there are multitude of different schemes operating. At least in London we have, as we heard, a majority of people use just one scheme but there are currently a number of different schemes operating across the country and, as we have heard, an entirely different system in Scotland.

430. MR RAWLINGS: Thank you.

431. CHAIRMAN: Ms Lieven, do you wish to re-examine?

432. MS LIEVEN: My Lord, I have got no further questions.

433. CHAIRMAN: Are there any questions from any members of the Committee of this witness?

The Witness Withdrew

434. CHAIRMAN: You may embark on the petitioner's case.

435. DR RAWLINGS: Thank you. Due to a difficulty with my witness, I wonder whether we could change witnesses. We had intended Martin Couchman to start here, but Mr Thompson, who is behind me, has had to step in for somebody else who cannot be here today.

436. CHAIRMAN: I certainly have no objections to that. That is fine. Thank you.

437. DR RAWLINGS: I will try and get through this quickly. It is slightly longer than I intended, but the pub sector contains around 57,000 pubs throughout the country which are either managed, tenanted or leased and we estimate around 5,000 of those are in the Greater London area and of that around 4,000 of those are our members. I only say that to say that a lot of those businesses are small businesses, they are not all chains. They are small businesses either owned or very often tenanted houses which are run independently. The vast majority of those pubs serve food, an area which is very important. All of these premises are subject to food hygiene regulations and inspections.

438. As a representative organisation, we are closely involved in the development and are supportive of the move away from the old food hygiene regulations to the management system which we have now which was referred to earlier. We also welcome the establishment of the Hampton Principles of enforcement that are now adopted by all local authorities which emphasise the need for risk-based enforcement and they also enshrine a principle, a support in this context as to recognise that regulators should recognise that a key element of their activity will be to allow or even encourage economic progress and only intervene when there is a clear case for protection.

439. We are also supportive of the principles of better regulation which seek to apply proper and rigorous tests to the application of all new legislation. We equally support the petitions of our friends and colleagues in the BHA and AMR who represent the interests of pub chains and hotels and so forth. It would be helpful at this point to briefly outline the concerns we have about Scores on the Doors as a concept, which was expressed in a letter to the FSA in October of last year, where we said, "There is particular concern about the rating systems, particularly the five star system being used by some boroughs are far too broad, taking into account good management practice at a higher end, as opposed to what is actually required in law. We are receiving reports that scores are not reflecting the inspections, with discrepancies emerging between the inspection report and the follow-up letter for that inspection. The process by which an inspection is turned into a score is opaque and seemingly arbitrary".

440. We also expressed a concern that, "... with regard to scoring consistency within local authority areas and the need to ensure that quality control measures are robust enough so that the schemes are fit for purpose".

441. We believe it is misleading for customers, who may consider the ratings given as an indication of quality as opposed to legal compliance. Food safety requirements are either met or they are not. I only say, my Lords, that is the basis of the consultation that is proceeding now which we are happy to be engaged in.

442. We also, I say, share the concern with the Committee of the non-appearance of the FSA. We are deeply disappointed they are not here to present what they have to say at the moment. Our first concern arises from the failure of the promoters of the Bill to consult properly with those who most directly are affected, namely our members and those at BHA and ALMR. We first received notice of these proposals on 15 October 2007 and were asked to respond within 18 calendar days. Good practice dictates that with a proposal of this nature a minimum of three months should be allowed. This allows representative bodies, such as ourselves, sufficient time to study the proposals, consult with our members and arrive at a considered view. This point was raised in our response, to which we added 'the pub industry is a highly regulated industry, which is continually exhorted by the Government and councils to follow good practice', so it is particularly irritating to find Westminster and other London councils ignoring good practice in this area.

443. "There is nothing in the Bill that justifies such undue speed and disregard of the good practice that should be expected of councils such as Westminster and others". The Association did not receive an acknowledgement to our response, still less an offer to meet and explain proposals, which given the very short consultation process is the least we would have expected.

444. Subsequent to the publication of the Bill, we were invited to discuss the proposals and were happy to attend such a meeting. At that meeting, however, we were not persuaded that there was a special case for London or that there were any concerns that justified a departure from the national voluntary scheme being developed by the FSA.

445. The consultation defines the problem as being the inability to impose an obligation to impose notices. This is an artificial problem since the consultation recognises there is no such obligation either in the overriding European Directive or the national legislation. There was no need identified at the time of that legislation and the explanatory notes to clause 10 do not make the case for such a requirement.

446. We accept there is a debate about the value of making food hygiene evaluations accessible and that has been conducted by the FSA and we are engaged in that debate. For any new piece of legislation we will expect a justification of the need, the harm that it is supposed to address and the estimates of the burdens on business it would impose. None of these have been forthcoming.

447. London councils do not make out a case that the circumstances in London require separate legislation and we therefore assume they have none. The BBPA objects to the inclusion of clause 10 in that it is unnecessary in itself and imposes burdens on business, which are not justified. I think, my Lords, I am probably going to leave the rest of my statement because I am conscious that I need to get my witness on the stand. Perhaps I could get the chance to put those back in. Thank you.

448. My Lord, I would like to introduce Darryl Thomson of Mitchells and Butlers, who has stepped in at short notice for Mr Simon Ward, who is a former member of the Better Regulations Taskforce, but who unfortunately has taken ill and cannot attend today.

 

MR DARRYL THOMSON, Sworn

Examined by DR MARTIN RAWLINGS

449. DR RAWLINGS: Thank you, Darryl. Perhaps you could explain to your Lordships your position within Mitchells and Butlers, your job title and qualifications for that job.

(Mr Thomson) I am the company's risk manager. I qualified with a Degree in Hotel and Catering and then entered the licensed trade first as a licensee, then as a district manager and area manager. For the last eight years I have been responsible for the risk management, including food safety.

450. Can I ask you to give an overview of Mitchells and Butlers, particularly within London.

(Mr Thomson) Mitchells and Butlers basically run the remnants of the Bass Charringtons empire, 2050 pubs and restaurants, 334 of which are in London, a turnover of £1.9 billion a year and 19 per cent of our turnover is in London of £359 million and we employ 6,430 people in London as of last Friday.

451. Would you perhaps explain your experience with Scores on the Doors pilots across the country and, again, with particular reference to London?

(Mr Thomson) As we are a national company, we run national brands and the position as we see it is one of confusion and inconsistency. There are a large variety of schemes running across the UK. You have heard of five star schemes, five stars with zeros, six tiers, three stars, smiley faces, traffic light schemes, tulip schemes, we find there is an awful lot of confusion out there and a lot of inconsistency. Even five star scheme in between local authorities are scored in different ways. We can have two stars for a similar standard in one authority and three stars in a different authority. It is our company policy not to display our certificates. We do not display our five star certifications because we believe it is causing an awful lot of confusion. Our customers move around from local authority district to local authority district. We like to think they travel to our businesses and it can only add to the confusion to have three stars, two stars, tulips and all the variety of schemes. Overall, we think it is a bit of a mess.

452. You will have seen, as I know you did, the consultations from the local authorities on this, perhaps you would like to give your view firstly on the timetable to respond and whether Mitchells and Butlers actually did respond.

(Mr Thomson) We are responding.

453. Sorry, I am referring to the London Bill now.

(Mr Thomson) We have not been consulted under any local scheme. Under the Food Standard Authority guidance, the local authorities should consult local businesses. As I said, we have 334 pubs and restaurants in London but nobody came to us. They are not alone, we have 103 businesses in Birmingham and nobody came to us there either and nobody has been to us in terms of consultation on this particular Bill.

454. Perhaps you could explain to the Committee again what steps your company takes to ensure its compliance with food safety and what steps you take on that?

(Mr Thomson) As a company we have fully documented policies and procedures for safety, all of which are HSAP based, which you heard about this morning. The risk of those is that they sit on the shelf covering dust, so to make sure that does not happen, we take the relevant information out of those policies and we put it into the cook books that the chefs use, we put it on to stickers on pieces of equipment. We train over 5,000 people a year in basic food and food hygiene. We train over 1,000 people a year in intermediate food hygiene. We also carry out our own internal inspection scheme using a third party auditor. Every site is visited at least twice a year and those sites where we would consider the risk to be higher, it would be considerably more than that. Those reports then go back to the line management. We set out policies at the industry standard level, so we pitch our policies above legal compliance, and any house that fails to reach that standard is revisited again within four to six weeks. We find that revisits is a particularly good tool to drive up standards. If they are still not satisfactory, they are revisited a second time. Again, these are all unannounced visits. The second revisit would be four to six weeks later and then at that point either the manager or the chef would go into a disciplinary investigation. We have very clear procedures in terms of ensuring our standards are complied with. We also like to recognise good practice. We score out of a percentage and if any site scores 100 per cent, then they are given an award and a certificate to put on the wall.

455. You said earlier that Mitchells and Butlers do not display any scores, could you elaborate as to why you do not do that. I think the obvious question is somebody gave them a five stars, whatever they meant, you might be very pleased to stick them on the door.

(Mr Thomson)We are supportive of the FSA approach. We would like to see a national scheme. We would like to see a voluntary scheme and we believe that the Food Standard Agency consultancy procedure should be allowed to go through to its end position. They had said that they want to come up with a position by the end of 2008. In the scheme of things that is not a long time to wait, therefore we will display our certificate when we believe there is a national voluntary consistent and fair scheme in operation. It seems to me that if you are going to put compulsion on to the business operators, then maybe you should put compulsion on to the local authorities as well so that they are operating a consistent national scheme.

 

456. LORD ACTON: I am clear on what you said about the national scheme in general, but I am not clear why you are against a mandatory national scheme.

(Mr Thomson) We believe the voluntary scheme should always be the first option.

457. Why?

(Mr Thomson) It takes less of a burden, it is simpler to operate, otherwise it is yet another burden on our businesses and I have to check that they are displaying their certificates. I think that the consumers will soon learn that good businesses display their certificates and poor business do not, and that is the most effective way of running the scheme.

458. CHAIRMAN: You did say, if I can follow up Lord Acton's point, that if there was a voluntary scheme from the Food Standards Agency you would adhere to it.

(Mr Thomson) Yes, we would.

459. Does that mean within your own organisation you would make it mandatory that the voluntary scheme was adhered to?

(Mr Thomson) Yes. I am sorry, I misunderstood.

460. LORD ACTON: Thank you.

461. DR RAWLINGS: This is probably an appropriate point to move on to your perception, and it can only be that if you have done your own research, as to what your customers think about this .

462. LORD BURNETT: Just before you do that, if I may just pursue Lord Acton's point. You do not want a mandatory scheme because you think it is too bureaucratic, is that what you said?

(Mr Thomson) Yes. It means it is yet another poster we have to display, yet another thing that I have to audit and check and make sure that they are complying with the law.

463. But if you are going to comply with the voluntary scheme you are going to do that anyway.

(Mr Thomson) We would, yes.

464. So what is the difference?

(Mr Thomson) The difference is if we fail in a particular site, and we would do our best to make sure that all 2,000 sites do pass, but from time to time things do go wrong and if they do we will not face a criminal prosecution.

465. DR RAWLINGS: I will return to that as well in a minute. Perhaps I can go back to where we were on consumers. What is your perception of what consumers think about this?

(Mr Thomson) In our experience, consumers see food safety as a prerequisite to their visit. They want to assume that the businesses are safe, "otherwise they would've been closed down and dealt with, wouldn't they?" What they want is some assurance that the business is safe. A few years ago I commissioned the Henley Centre for Forecasting to carry out some research into our consumers' attitude to food safety. There was a mistrust of those traditional institutions. What they wanted was a brand that could give them an assurance, and what they did not want was a complex assurance. Having five stars and six tiers did not actually work for our consumers. What they wanted was a very quick assurance that the place was safe to eat and then they would choose where to eat on different criteria. If you look at the research that the Food Standards Agency did on the six tiers within London, the consumers found a natural threshold, a natural breakpoint above which they would be prepared to visit and below which they would not. That very much fits in with the research we have done and with our understanding of consumer behaviour. They do not want to choose from six different tiers. They want to know whether the premises are safe to eat in or not and then choose where to eat on different criteria.

466. Perhaps you could explain to the Committee again the difference between doing something voluntarily and something that is a legal requirement. For your company what do you do, and I put the question because we have a number of mandatory notices that have to go up in pubs, and they grow all the time, to ensure compliance with that? Have you any idea of the cost, time and personnel that takes you?

(Mr Thomson) The auditing and inspection regime that I manage costs the company well over one million pounds a year. We have had to pile onto that an increasing amount of legislative burden, particularly within licensing regulations, such that the time on site is being spread very thinly. We will continue to increase the amount of auditing that we do, but at the moment that burden, that cost to my company, is increasing by about five to ten per cent a year.

467. LORD ACTON: Have you done costings on London?

(Mr Thomson) Oh, I have not specifically but it would be ---

468. Because that is what we are talking about.

(Mr Thomson) It is about 20 per cent of our estate, so you are looking at about £200,000 a year.

469. That is for ---

(Mr Thomson) For the inspections that I manage.

470. If this becomes law, you think it will be more?

(Mr Thomson) It will increase, yes.

471. Have you got any figure?

(Mr Thomson) By about five per cent on that figure.

472. The £200,000 will go up by five per cent?

(Mr Thomson) Yes.

473. Which is £10,000?

(Mr Thomson) Yes.

474. LORD BURNETT: On that administration point, could I just ask this question: if this Bill becomes mandatory someone from the environmental health will visit one of your establishments, he will then leave, he will then give you a certificate and a sticker with a letter to the manager of the pub to take the appropriate action and put the things where they should be. That is going to cause you a considerable amount of difficulty, is it?

(Mr Thomson) We will need to go round and continually check and inspect that our managers are displaying those certificates.

475. DR RAWLINGS: Just to pursue that point, you said earlier that the London authorities have a right to reply on the website. Could you tell us what that would involve Mitchells and Butlers in?

(Mr Thomson) Yes. We have an example where we had a poor rating. We did go to the appeals procedure and we have used the national appeals procedure, but it is not an appeals procedure, it is a complaints procedure. There is no independent arbitrator involved in that procedure. In our experience it is a review of the paperwork only. I think we have appealed two or three times and we were not successful in any of those appeals, so we tried using the right of reply on the website. Obviously if we were to use that, because quite often we will put things right, the site may well have been refurbished, there may well have been a change of manager, the circumstances at the site may well not reflect the Scores on the Doors currently on display on the website, we could go on to the website and give our right of reply, but to do that for 2,000 businesses, or 334 businesses in London, would involve a certain amount of resource.

476. Just to follow up something that was said earlier, is it your experience with Mitchells and Butlers that when food inspections do take place the managers in your outlets are advised of their rights and procedures for complaints in the cases where they are inspected?

(Mr Thomson) No.

477. You would not care to elaborate on that, would you?

(Mr Thomson) At the moment they are given a letter which says that they should display the certificate and the tone of the certificate is such that it almost looks like they are legally obliged to do it, although they are not, of course. It says that they can write if they are unhappy with it, but there is no mention of the actual procedure or the Ombudsman in terms of the full process that is available to them. We are only aware of it because our advisers advised us of that.

478. CHAIRMAN: The previous point was a very important one. You implied that there is a very strong indicator that the voluntary side is mandatory. Those are my words, not yours.

(Mr Thomson) Having read the letter, that is the impression I got.

479. Are you alone in getting that impression?

(Mr Thomson) No.,

480. LORD BURNETT: Just to make it absolutely clear, the appeal rights were not drawn to your managers' attention in the letter they got with the sticker and the certificate?

(Mr Thomson) No.

481. Definitely not?

(Mr Thomson) Definitely not.

482. DR RAWLINGS: How concerned would you be, albeit the promoters of this Bill try and maintain it will not happen, that there could be either different schemes across London or at least different processes by which they run those schemes?

(Mr Thomson) We have a concern of inconsistency even within the Greater London scheme. We have a national brand with about 55 sites in London and if you look at the scores for that brand they occupy a range of normally around about three stars, some with four, some unfortunately with two. However, that brand in Westminster, all of them were given one star, and yet they had the same menu, the same kitchens, the same training procedures and policies as all the other sites that we operate and yet every single one had one star in Westminster. When we delved into that ---

483. CHAIRMAN: How many were they?

(Mr Thomson) 18. When we delved into that it was under the premises section, the fabric section of the scoring mechanism, that we were being scored quite different from other local authorities within London. Clearly that particular authority had a particular emphasis that it placed in terms of raising maintenance and the building stock fabric, if you like, within that particular authority. It was very clear that they were interpreting the guidelines very differently from other local authorities in London.

484. CHAIRMAN: Let us just be quite clear on this. This was 18 outlets in Westminster?

(Mr Thomson) Correct.

485. You presumably, with your 300 and however many you said you had in London - I will pick another borough - have x number of outlets in Lambeth, I think you said they are effectively the same menu, the same training, as close as you can get to being identical throughout. I may have picked a bad borough with Lambeth, but can you give us an example of another borough and what sort of scores those outlets got relative to the ones in Westminster?

(Mr Thomson) Three and four stars.

486. CHAIRMAN: Thank you.

487. DR RAWLINGS: Do you have any evidence or otherwise of whether people are choosing to go to venues based on the scores or not at the moment?

(Mr Thomson) There appears to be no evidence that customers are using these schemes. There appears to be no consumer currency, as I put it, within these schemes at the moment. I think that is due to the confusion and inconsistency that is surrounding them.

488. CHAIRMAN: Could I just come to my previous point? You have 18 outlets in Westminster that all scored one only. Are you lacking customers in those outlets?

489. DR RAWLINGS: We talked earlier about the difficulty, I suppose, with stars and a quality rating system. Do you see that as a problem for you as a business?

(Mr Thomson) I think there is confusion between the hotel schemes. We do run some hotels, but not many, so it is not a big issue for us. I can see that there would be confusion with other star rating schemes. Going back to my earlier point about our consumer research, what the consumer is looking for is simple assurance of safe places to eat. They do not want to sit down and choose between a broadly compliant or a good compliant meal, they want assurances the place is safe to eat and if they are not they should be closed down.

490. You explained earlier to the Committee how you do your own food hygiene inspection and I think you described it as a straightforward linear scoring scheme as opposed to the range system. Could you just explain your difficulty with that?

(Mr Thomson) Yes. The Code of Practice that is used by environmental health officers is basically a risk-rating mechanism and it is based on range statements, so they give a description of the food safety practices and the EHO has to fit that particular premises into that range statement into that description. As a risk manager I use range statements, but I would never use them for something like this. I use range statements for a primary cut, for a prioritisation exercise, but in terms of our audits, our unit inspections, we actually go round and mark every single element of the business against legal compliance, a little bit like filling in an exam score sheet, and that way you get a more accurate and precise determination of compliance with our company policy. The scheme that is being used and the range statements were designed to determine the frequency of visits and risk-rating not as an inspection and community mechanism. It is not capable, I believe, of graduating to six different tiers, hence you get this inconsistency between one tier and another tier in-between local authorities.

491. I think you have expressed, to me at least, your problem with the term "broadly compliant" which is applied to the two star score which again we were talking about earlier. Can you tell us about that?

(Mr Thomson) We have two issues with that. One is that if you look at the Food Standard Agency research, as I said earlier, the customer sets a threshold above which they will visit and below which they will not, so in effect the consumer turns six tiers into two. The problem with that is that two stars, which is defined on the London website as "broadly compliant" is actually in the bottom tier in terms of consumers, so consumers will choose not to visit there even though that site is broadly compliant with the law. The second issue is that we have had two star sites and on some we have had fairly lengthy requirements from the EHO and on other two star sites we have had very little requirement, so again that tends to lead me to believe there is a degree of inconsistency.

 

Cross-examined by MS LIEVEN

492. Good afternoon, Mr Thomson. Can I start by asking some general questions? As I understand it, you are not opposed in principle to a Scores on Doors scheme. You have got two problems, one: you want it to be a national scheme, and two: you want it to be a voluntary scheme. Is that right?

(Mr Thomson) That is correct.

493. So far as the national scheme is concerned, presumably the greater the uniformity of the schemes the better, so a cross-London scheme would be better than a complete free-for-all in London but a cross-national scheme is what you would like the most. Is that fair?

(Mr Thomson) We want a national scheme.

494. So far as the regulatory burden here is concerned, as I understand it what you are saying is that if it was a voluntary scheme you would adopt it and accept it, so effectively you would make it mandatory for your premises?

(Mr Thomson) Yes.

495. And in order to do that you would have to check whether your individual premises were putting up the stickers or not?

(Mr Thomson) Yes.

496. And in terms of the burden of doing that checking I think you have already said you send people round to check your premises on a very regular basis as it is?

(Mr Thomson) Yes.

497. Presumably they do things like check the toilets and the staff rotas and those kinds of things, and you would simply add another category on the bottom a list, "Check that the sticker is on the door and the certificate is on the wall"?

(Mr Thomson) Yes.

498. So that in itself would not be in the least burdensome, would it?

(Mr Thomson) No. I do not think I got my message across particularly well earlier and I apologise for that. The biggest burden to us is not necessarily the administrative burden. The biggest burden to us would be the reputational damage caused by inconsistent scoring that would occur to our businesses as and when the consumers are educated and start to use these in order to determine their place of visit. The fact is that my company has a lot of resource. We believe on balance that we are going to be winners in any scheme. We do not fear any scheme. If we were to have the sort of scheme that we like, like the Scotland scheme, we would make sure that none of our houses failed. The burden that we face is on a scheme with too many tiers and too much inconsistency the damage to the reputation of our brands because, as I said earlier, our consumers are looking for an assurance of places to eat that are safe, and they trust our brands and they rely on those brands and we cannot afford to have inconsistent schemes damaging the reputation of our brands. I am sorry if I did not make that clear earlier. The administrative burden is not the big issue. The big issue and burden for us is the inconsistency and damage to our reputation.

499. That is very helpful, Mr Thomson. It is not really the administrative burden and it is not really the very small possibility of some criminal prosecution. It is really this inconsistency point? That is the core issue for you?

(Mr Thomson) The criminal prosecution would do damage to our brand reputation, so in that respect, yes, the criminal reputation is a burden to us. If we were to have a prosecution because one of our houses failed to put up a certificate, and that had a national brand name, then that would result in reputational damage.

500. Can we look then at the likelihood of difference of inconsistent scoring? Could you turn to exhibit 5 please? This is the standard form which is given to premises that are inspected under the London scheme. Have you seen one of these before?

(Mr Thomson) I have, yes.

501. First of all, can I ask you about the specific example you gave? You said you had a problem because in Westminster you were getting all your premises scored on one and comparable premises in other parts of London were being scored, I think, on three and four. If you turn to the first page of this document you can see in bold type at the bottom, "If you disagree with this report or any other matter relating to this visit please contact the Food Safety Manager on ...", and then there is a number, and obviously the number is filled in depending which borough it is. On the second page right at the bottom it says, "The rating given will remain until the premises are next inspected. However, if you think a mistake has been made you should contact the Food Safety Manager at the Council". Did you write to or email the Food Safety Manager at Westminster?

(Mr Thomson) I met with Westminster city Council and went through this issue with them and they explained to me that we were losing scores because of the maintenance issues on those premises and yet that did not match the scores we were getting elsewhere, so I have already met with Westminster City Council. I went to their offices and went through this issue with them.

502. And did you launch any complaint within Westminster that would have triggered what we call the appeal system that Lord Burnett has been asking about? Did you lodge any complaint that Westminster was scoring inconsistently with other boroughs?

(Mr Thomson) Not yet, no.

503. So far as this letter is concerned, first of all you suggested that the standard letter that was being sent out implied that the scheme was mandatory and Lord Geddes, quite understandably, asked you about that. I have to say I can see nothing on this that suggests it is mandatory. Can you point us to what sentence in here you were concerned about?

(Mr Thomson) (Pause for checking) I can only say that our managers in London have put these certificates up contrary to company policy and when we have asked them why they have all been under the impression that they had had to because that was the impression they were given when left by the EHO.

504. Obviously, I cannot get into anecdotal evidence of what happened in individual visits, but can we agree that there is nothing in this standard letter that suggests the scheme is mandatory or people are under any obligation to put up the stickers or certificates?

(Mr Thomson) I would agree with that.

505. So far as inconsistent scoring is concerned, we can see on the first page where the score is set out, and obviously this is a blank one, and then underneath what the different scores mean and they relate to a points system, do they not, if you look at page 1?

(Mr Thomson) Yes.

506. If we turn over, this is guidance on how the scores are drawn up, and above the first table it says, "The following are extracts from the Food Law Code of Practice. Current compliance for both food hygiene, safety and structure, etc, use the same scoring guidance below", and then there is a separate scoring guidance for confidence in management control systems, yes? So the first table, if we flip back, relates to the first two boxes, and the second table relates to the confidence in management control systems, yes?

(Mr Thomson) Yes.

507. The Food Law Code of Practice is drawn up by the FSA, is it not?

(Mr Thomson) Yes.

508. And these boxes are directly taken from that FSA code of practice, are they not?

(Mr Thomson) Yes.

509. So the scores that are given within these boxes and are then attached to the individual premises on the first page are directly following from the national FSA Code of Practice, yes?

(Mr Thomson) Yes. Can I just clarify that that is part of an overall document that is used for risk rating premises to determine the frequency of inspection. It is a risk rating tool and here you can see the range statements that the EHO has to fit each premises into. This is the point I was making earlier, that as a risk manager I would never use that approach for a method like this. I would only ever use this as a first cut or as a prioritisation or as a risk rating exercise, which is what the FSA designed it for. What we carry out is a full structured scoring audit where we look at each part of the premises, and it is like an exam sheet that we fill in which more accurately determines the level of compliance.

510. Doubtless you can always do these things slightly differently or in a slightly more refined way, but what these scores on that second page are doing is setting out the level of compliance with statutory obligations, are they not? If you look at the first box, the food hygiene and safety and structure box, 25 is almost total non-compliance, yes?

(Mr Thomson) Yes.

511. Nought is a high standard of compliance, and we have a range between the two?

(Mr Thomson) Yes.

512. So the FSA's own code clearly envisages six tiers of compliance, does it not?

(Mr Thomson) There are six tiers there, yes.

513. And it is quite clear, from reading through that box, that, far from it being a pass or fail system, if, for example, you take a score of five, that is a high standard of compliance with statutory obligations but it still involves some minor contraventions, yes?

(Mr Thomson) Yes.

514. So the way the FSA code works is that you can have non-full compliance, if I put it like that, but nobody would dream of closing the premises that have a score of five, yes?

(Mr Thomson) Yes.

515. MS LIEVEN: That is the way the FSA do it. Thank you.

516. CHAIRMAN: Dr Rawlings, do you want to come back to your witness?

 

Re-examined by DR RAWLINGS

517. Would you agree that the five star system confuses risk assessment with compliance?

(Mr Thomson) I do.

 

Examined by THE COMMITTEE

518. LORD BEW: This Committee has been puzzled by the lack of people with high scores, five stars and so on, who seem to be advertising the fact. Are we to take it that your evidence gives as part of the answer that in a large concern like yours it is only when individual managers have misunderstood the letter or your instructions that they are actually put up and that if your company does it perhaps others do it as well, and that we are not actually dealing with the mystery of human nature, a sudden attack of modesty; we are actually dealing with something which is at least partly a function of a policy decision that you have made, and also that you have made it because of the fact that, for example, in Westminster you are dissatisfied with the results there and you do not want to legitimise one star ratings in Westminster? In other words, your calculation is, "We have a four star somewhere else and actually our customers think we are good anyway. There is no point in putting it up, we will gain nothing, but on the other hand if we start sticking these things up and we stick up a one star we can only lose with this marking system"? Would I be right in translating you in that way?

(Mr Thomson) Yes, you would. I think there is a tacit agreement and subscription to the scheme, if you like, if you start to display the certificates and posters. That is not our view and that is not because we are concerned about the results of the certificates. As I say, on balance I believe my organisation is going to be a winner out of these schemes because of our own control procedures and because of the resources that we have available to us. It is purely because of the amount of inconsistency and utter confusion and we believe that to go with a mandatory scheme now will only compound that problem even more and that we should let the Food Standard Agency carry on and do its consultation. They are the lead body, they are the lead authority. I think they are trying to jump the gun here.

519. CHAIRMAN: Ms Lieven was, rightly because that is her job, pursuing this comment that you made about the impression that the present system was mandatory as opposed to voluntary, and she asked you just now to show her where it said that it was mandatory and indeed you could not see anything in there that said it was mandatory.

(Mr Thomson) Having looked at it now, there was a covering letter from the local authority with these documents that gave that impression.

520. That unfortunately we do not have sight of so we cannot really comment on that, but I hope I am not out of order in saying that, in fairness, both sides of the argument should be seen and whilst you were giving that evidence I had a good look through and I could see absolutely nothing in either of those two pages that said it was voluntary or not mandatory. My reading of it as a layman is that it is 50/50.

(Mr Thomson) Yes.

521. It neither says it is nor does it say it is not, and the only thing that I thought was an interesting comment, and what interpretation you put on that I do not know, was that it said, "The certificate and the window sticker will remain the property of the local authority and must be returned upon request". That gave me a little nudge to think that perhaps I might think one way rather than the other. I will not go any further than that but I thought it only fair to make the point.

522. LORD BURNETT: Could we see the letter?

(Mr Thomson) I do not have the letter with me no, my Lord. I am sorry.

523. CHAIRMAN: Is it available?

(Mr Thomson) I would need to go back to my office and see if I could get it to you. [Document handed in next day)

524. CHAIRMAN: If you could, I think that would be helpful, even though we know that you are personally unable to appear. You have mentioned the letter; it would be useful to have a look at it. We are not going to have the benefit of this witness' presence hereinafter so speak now or forever hold your peace, members of the Committee? Thank you very much. Would that be a convenient moment, at one minute past, to draw stumps for today? Thank you very much, Mr Thomson. We will kick off then tomorrow, I think, Mr Couchman, with your witness, Mr John Dyson?

525. MR COUCHMAN: That is correct.

526. CHAIRMAN: There are no witnesses, as I understand it, Mr Bish, on your side?

527. MR BISH: No.

528. CHAIRMAN: Thank you very much. 10.30 tomorrow morning. Thank you.

 

The Witness Withdrew

 

The Committee adjourned at 4.02pm until 10.30am the following day