Instruments drawn to the special attention of the House
Draft Heavy Commercial Vehicles in Kent (No.1) Order 2019
Date laid: 4 September 2019
Parliamentary procedure: affirmative
Heavy Commercial Vehicles in Kent (No.2) Order 2019
Date made: 4 September 2019
Parliamentary procedure: made affirmative
Heavy Commercial Vehicles in Kent (No.3) Order 2019 (SI 2019/1210)
Parliamentary procedure: negative
These three instruments form a package which allows for the movement of cross-Channel heavy goods vehicles in Kent to be regulated during periods of severe disruption to travel via the Channel Tunnel at Folkestone and the Port of Dover. In the accompanying Explanatory Memoranda, the Department for Transport states that it has worked closely with the Kent Resilience Forum on developing traffic management plans, known as Operation Brock, to be used as a contingency in the event of severe disruption to travel via the Channel Tunnel at Folkestone and the Port of Dover. These instruments support Operation Brock. The “Draft No.1 Order” confers new powers on traffic officers that will enable them to identify cross-Channel heavy goods vehicles and control their movements in Kent. It also makes ancillary provision relating to enforcement. The “No.2 Order” allows for the use of such vehicles to be restricted to the motorway network and other approved routes by prohibiting access to local roads in Kent. The “No.3 Order” allows for the use of such vehicles on the M20 motorway in Kent (the primary route to the Channel Tunnel and the Port of Dover) to be restricted and makes other provision to facilitate more effective enforcement. The Department notes that the measures would only be used during temporary activations of Operation Brock. The powers conferred on traffic officers by the Draft No.1 Order cannot be exercised after 31 December 2020 and the traffic restrictions in the No. 2 and No. 3 Orders cannot be imposed after the same date.
The three instruments are drawn to the special attention of the House on the ground that they give rise to issues of public policy likely to be of interest to the House.
Background
1.The Department for Transport (DfT) has laid three instruments each with an Explanatory Memorandum (EM):
(i)Draft Heavy Commercial Vehicles in Kent (No.1) Order 2019 (“Draft No.1 Order”). This is a draft affirmative instrument and confers new powers on traffic officers that will enable them to identify cross-Channel heavy goods vehicles and control their movements in Kent. It also makes ancillary provision relating to enforcement.
(ii)Heavy Commercial Vehicles in Kent (No.2) Order 2019 (“No.2 Order”). This is an ‘affirmative class ii’ instrument and allows for the use of such vehicles to be restricted to the motorway network and other approved routes by prohibiting access to local roads in Kent
(iii)Heavy Commercial Vehicles in Kent (No.3) Order 2019 – (“No.3 Order”) This instrument follows the negative procedure and allows for the use of such vehicles on the M20 motorway in Kent to be restricted and makes other provision to facilitate more effective enforcement.
2.These three instruments form a package which allows for the movement of cross-Channel heavy goods vehicles in Kent to be regulated during periods of severe disruption to travel via the Channel Tunnel at Folkestone and the Port of Dover. In the accompanying Explanatory Memoranda, DfT states that it has worked closely with the Kent Resilience Forum on developing traffic management plans, known as Operation Brock, to be used as a contingency in the event of severe disruption to travel via the Channel Tunnel at Folkestone and the Port of Dover. These instruments support Operation Brock.
Operation Brock
3.The Department explains that Operation Brock has been designed to ensure that the M20 motorway in Kent (the primary route to the Channel Tunnel and Port of Dover) will be kept open and traffic will continue to flow in both directions. It consists of three elements: a contraflow queuing system on the M20 motorway between Junction 8 (Maidstone) and Junction 9 (Ashford); heavy goods vehicles parking at Manston Airfield; and, if necessary, temporary holding areas on the M26 motorway. The M20 contraflow provides a queuing area for cross-Channel heavy goods vehicles on the coastbound carriageway and splits the London-bound carriageway so that it can be used by all London-bound traffic and all other coastbound traffic. DfT states that: “These measures are designed to mitigate the effects of disruption to journeys via the Channel Tunnel and Port of Dover, whatever the cause, be it severe weather, industrial action or any disruption that may occur during the United Kingdom leaving the European Union”.
Operation Stack
4.The Department states that Operation Brock is intended as a replacement for Operation Stack during periods of severe and protracted disruption. Operation Stack involved closing junctions and carriageways on the M20 motorway to hold freight traffic in several locations. In 2015, Operation Stack was active for 31 days to address disruption at the border and parts of both carriageways of the M20 were used to store heavy goods vehicles. DfT notes that the unprecedented duration of this disruption and the closure of the carriageways led to considerable congestion on the roads in Kent.
5.The Department explains that this situation was exacerbated by high levels of non-compliance with the traffic management system:
“Almost a third of cross-Channel heavy goods vehicles avoided the queuing system on the M20 motorway and caused gridlock on local roads. This had consequential impacts on the local economy, tourism and the haulage industry. There were also costs associated with policing and managing the disruption.”1
6.The Department notes that:
“The Government’s priority is to avoid a repeat of this experience. As well as keeping the M20 motorway open in both directions, it is also crucial to ensure that heavy goods vehicles comply with the traffic management system to reduce the risk of significant traffic disruption on the Kent road network. Should new customs processes be introduced by the European Union when the United Kingdom leaves the European Union, ensuring that heavy goods vehicles arrive at the Channel Tunnel and Port of Dover with the correct border documentation would further reduce the risk of significant disruption at ports.”
Summary of the Draft No.1 Order
7.This Order enables the movement of cross-Channel heavy goods vehicles in Kent to be more effectively controlled during periods of severe traffic disruption by conferring new powers on traffic officers.2 The Department notes that: “At present, no public official could effectively identify and direct a cross-Channel heavy goods vehicle circumventing the traffic management scheme for cross-Channel disruption known as Operation Brock” and that: “The new powers will be used to tackle non-compliance with the scheme, which would cause or contribute to severe traffic congestion, and cannot be exercised outside Kent”. The new powers are conferred under section 8 of the Traffic Management Act 2004 (“the 2004 Act”). The Delegated Powers and Regulatory Reform Committee, when reporting on the Bill that became the 2004 Act, described the provision in section 8 as “significant” and drew it to the attention of the House because of the width of the power.3 The Draft No.1 Order is the first use of the section 8 power.
8.The Department notes that these powers will enable traffic officers to detect and direct vehicles that are not compliant with the traffic restrictions imposed by the No. 2 and No. 3 Orders. The accompanying EM notes that, in particular, traffic officers will be able to require the production of documents to establish a vehicle’s destination and to demonstrate readiness to export goods. Powers to direct the driver of a heavy goods vehicle in Kent to proceed to a specified motorway in Kent, or to direct such a driver not to proceed to the Channel Tunnel or Port of Dover except via a specified road or route, are also provided to traffic officers. DfT states that these powers will be used to remove vehicles from the local road network and require drivers to use an approved route to continue a cross-Channel journey. This Order creates an offence of failing to comply with a traffic officer exercising such powers (set out in Article 2(6) of the Order).
9.Traffic officers deployed to ensure compliance with Operation Brock will rely on their existing power to stop vehicles (conferred by section 6 of the 2004 Act) before carrying out document checks or issuing directions. The Department states that it would not be an offence for a driver to fail to produce documents if such documents were not carried, which would be a common occurrence as many vehicles leaving the UK on the ‘return leg’ of a journey do not carry goods. DfT notes that in circumstances where a driver denied carrying any documents but there was a reasonable basis for believing otherwise, roadside enforcement action for failing to comply could still take place (and the driver could contest this action through the magistrates’ court if desired).
10.The Department additionally notes that the amount of the financial penalty deposit for failing to comply with a traffic officer exercising the new powers conferred by this Order, or for breaching the traffic restrictions imposed by the No. 2 and No. 3 Orders (described below), is set at £300.
11.The No. 2 and No. 3 Orders complement this Order by restricting the movement of cross-Channel heavy goods vehicles on the local road network in Kent and the M20 motorway and making other provision to facilitate more effective enforcement. In particular, the No. 2 Order prohibits heavy goods vehicles leaving the UK via the Channel Tunnel at Folkestone or the Port of Dover from using local roads other than those on approved Operation Brock routes. The No. 3 Order prohibits such vehicles from accessing the coastbound carriageway of the M20 motorway between Junction 9 and Junction 13—the primary route to the ports—unless the driver has complied with checks of border documents and is displaying a permit issued after using an approved route.
12.DfT states that the traffic restrictions imposed by the No. 2 and No. 3 Orders would be activated through the placing of signage (giving notice of the restrictions) on the coastbound M20 motorway between Junction 7 and Junction 8. This would be done following a decision by Gold Command, in consultation with the Kent Resilience Forum, to activate Operation Brock in response to congestion (or likelihood of congestion) involving cross-Channel heavy goods vehicles on the M20 motorway and/or the A20 approach to the Port of Dover.
13.The powers conferred on traffic officers by this Order cannot be exercised after 31 December 2020 and the traffic restrictions in the No. 2 and No. 3 Orders cannot be imposed after the same date.
Summary of the No.2 Order
14.DfT states that this Order supports Operation Brock by restricting access to the local road network. Specifically, heavy goods vehicles that are leaving the UK via the Channel Tunnel or the Port of Dover will not be permitted to use any road in Kent maintained by Highways England, Kent County Council or Medway Council other than:
- motorways, save for parts of the M20 motorway;
- the A2 and A20 between Kent’s boundary with Greater London and where those roads join the motorway network in Kent;
- the A249 between the M2 and M20 motorways; and
- the A299 route from the M2 motorway to Manston Airfield.
15.The Department notes that this restriction will be activated by displaying notices on the M20 motorway between Junction 7 and Junction 8. It will not apply to vehicles:
- already on a local road or nearby premises when the restriction is activated;
- being used on the route between Manston Airfield and the Port of Dover while displaying a permit (issued to demonstrate compliance with Operation Brock);
- if the driver is acting at the direction, or with the permission, of officials or in compliance with a traffic sign;
- making local collections or deliveries of goods, provided the driver can supply information sufficient to establish this;
- during incidental and necessary tasks, such as refuelling the vehicle; or
- operated by local hauliers, provided the driver can produce a local haulier permit issued by Kent County Council.
16.DfT notes that where the use of local roads is permitted, in order to facilitate the flow of traffic, such vehicles must remain in the nearside (left-hand) lane of specified dual carriageways so that the offside lane is reserved for other traffic.
17.The No.3 Order complements this Order by restricting the movement of cross-Channel heavy goods vehicles on the M20 motorway between Junction 8 and Junction 13 (the primary route to the ports) and making other provision to facilitate more effective enforcement.
Summary of No.3 Order
18.The Department states that this Order supports Operation Brock by regulating access to the M20 motorway between Junctions 8 and 13. Specifically, this Order prohibits cross-Channel heavy goods vehicles from accessing the coastbound carriageway of the M20 motorway between Junction 9 (Ashford) and Junction 13 (Folkestone) unless the driver has complied with any request to produce border documents and is displaying a permit issued after using the queuing area for cross-Channel heavy goods vehicles on the M20 motorway.
19.Border documents – those relating to goods that are being exported - will be inspected to ascertain readiness to bring goods into a foreign country. DfT states that unready vehicles would be held at foreign ports, which would cause or exacerbate congestion in Kent as the holding capacity at those ports is limited and they would quickly stop accepting additional vehicles.
20.This Order also prohibits cross-Channel heavy goods vehicles:
- using the contraflow on the London-bound carriageway between Junction 8 and Junction 9, which is reserved for other coastbound traffic when Operation Brock is deployed; or
- joining the queueing area on the M20 motorway without a permit when a ‘feeder queue’ on the M26 motorway is in use.
21.DfT states that these measures will reduce the risk of cross-Channel heavy goods vehicles attempting to circumvent Operation Brock or arriving at ports without the correct documentation for continuing their journey, mitigating potentially significant disruption at ports and on the Kent road network.
22.The Department also states that this instrument facilitates more effective enforcement action against non-compliant drivers and that:
- evidence from prescribed devices (such as Automatic Number Plate Recognition cameras) relating to breaches of traffic restrictions or directions imposed under this series of instruments is made more readily admissible in court;
- the offence created by the No. 1 Order of failing to comply with a direction or requirement imposed by a traffic officer is designated as a fixed penalty and financial penalty deposit offence; and
- the amount of the fixed penalty for the relevant offences is set at £300.
Consultation
23.DfT consulted the Kent Resilience Forum, the haulage industry and other key stakeholders over the past several months on Operation Brock and the proposed enforcement strategy, including on checks to establish a vehicle’s readiness to cross the border. A final two-week consultation on the package of measures contained within the three Orders was undertaken in the summer. DfT states that: “The consultation was targeted to affected stakeholders in Kent, such as Kent County Council, the Port of Dover and Eurotunnel, and freight associations”.
24.The Department states that: “A good level of response was received” and that responses were broadly supportive of the proposals to provide additional powers and traffic restrictions to ensure compliance with Operation Brock and to make it possible for access to the roads leading into the Channel Tunnel terminal at Folkestone and the Port of Dover to be made conditional on compliance with ‘border readiness’ checks.
25.However, the Department notes that concerns were expressed as to the need to provide clarity on what being ‘border ready’ involves so that hauliers are not unfairly penalised; and states that: “The Government will clarify this in the development of communications in preparation for the United Kingdom’s departure from the European Union on 31st October”.4
Communications
26.Paragraph 3.1 of the EM accompanying Draft No.1 Order notes that the Department will undertake extensive communications activity from September onwards to make persons who could be affected by this series of instruments aware of their impact before they come into force. The Department also notes that: “The vast majority of hauliers travelling via the Channel Tunnel and Port of Dover are foreign hauliers, although there are a small number of small and medium-sized businesses in the United Kingdom that undertake this activity”.5 We asked DfT how the Department will ensure that UK and non-UK hauliers, or persons affected by these instruments, will be made aware of their impact before they come into force. In response, DfT stated that:
“The Department will be producing guidance for hauliers setting out what the legislation entails and what happens if they fail to comply. The guidance will be made available in 11 languages and will be published on gov.uk as soon as possible before 31st October. Once the guidance is uploaded to gov.uk, we will email hauliers via the Driver and Vehicle Standards Agency, setting out the guidance and will direct them to gov.uk for more information. We will also work with other key stakeholders such as the Road Haulage Association and Freight Transport Association to help them disseminate the guidance to their members. When ready, the guidance will also be available at the relevant pop-up sites which will be based all over the UK, and will be equipped with trained multi-lingual staff to help hauliers prepare for Brexit.”6
Conclusion
27.These Orders form a package of measures supporting Operation Brock. The three instruments are drawn to the special attention of the House on the ground that they give rise to issues of public policy likely to be of interest to the House.
Town and Country Planning (North Weald Airfield) (EU Exit) Special Development Order 2019 (SI 2019/1228)
Town and Country Planning (Waterbrook Ashford) (EU Exit) Special Development Order 2019 (SI 2019/1230)
Town and Country Planning (Car Park D Ebbsfleet International Station) (EU Exit) Special Development Order 2019 (SI 2019/1231)
Date laid: 5 September 2019
Parliamentary procedure: negative
The Ministry of Housing, Communities and Local Government (MHCLG) has laid three Special Development Orders and states that the measures are “part of the Government’s preparations to mitigate the effects of cross-Channel travel disruption on the Kent and wider road network in the event of a ‘no deal’ departure from the EU on 31 October 2019”. These Orders grant temporary planning permissions, until 31 December 2020, for: North Weald Airfield Lorry Facility at the North Weald Airfield, Essex; use of land at Waterbrook, Sevington, Kent; and use of land at Car Park D, Ebbsfleet International Station, Kent. The instruments allow the sites to be used for stationing and processing of vehicles and the installation and siting of temporary facilities, services, structures and infrastructure that are ancillary to this use. MHCLG states that if the UK leaves the EU without a deal, there will be immediate changes to the procedures that apply to businesses trading with the EU. Hauliers who arrive at the border without the required paperwork risk not being able to proceed across the Channel and may create disruption to the transport network in Kent. The Ministry states that “The planning permission allows regulatory checks to be carried out away from areas that have a high existing demand and are close to capacity in the event of EU Exit …”.
The three instruments are drawn to the special attention of the House on the ground that they give rise to issues of public policy likely to be of interest to the House.
Background
28.The Ministry of Housing, Communities and Local Government (MHCLG) has laid three Special Development Orders (SDOs) each with an Explanatory Memorandum (EM). The EMs state that the measures are “part of the Government’s preparations to mitigate the effects of cross-Channel travel disruption on the Kent and wider road network in the event of a ‘no deal’ departure from the EU on 31 October 2019”. Paragraph 7.2 of all three EMs notes that: “The Dover strait ports (Dover and Eurotunnel) have the majority of EU goods entering and leaving the UK …” and that “… the ports are designed to have limited customs and lorry space as lorries roll on and off the ferries/shuttle …”.
29.In the event of a ‘no deal’ departure from the EU, the Ministry notes that there will be immediate changes to the procedures that apply to businesses trading with the EU. Hauliers who arrive at the border without the required paperwork risk not being able to proceed across the Channel and may create disruption to the transport network in Kent. MHCLG states that: “Therefore, in preparation for the UK leaving the EU on 31 October, Her Majesty’s Government are working closely with local agencies to expand capacity with the creation of temporary holding and facilities for government services, particularly customs”.
Summary of the three instruments
30.The instruments grant temporary planning permissions for two sites in Kent and one site in Essex to be used for stationing and processing of vehicles and the installation and siting of temporary facilities, services, structures and infrastructure that are ancillary to this use. These are temporary permissions which expire on 31 December 2020. The EMs note that with the exception of any structures, works, plants or machinery which the Secretary of state gives approval to remaining, the land must be restored to its original condition by 31 March 2021.
31.The Ministry states that: “The planning permission allows regulatory checks to be carried out away from areas that have a high existing demand and are close to capacity in the event of EU Exit …”7 Paragraph 7.6 of all three EMs states that by providing this additional capacity the sites will help facilitate the flow of trade and support strategic traffic management in the Dover Straits area.
32.The Town and Country Planning (North Weald Airfield) (EU Exit) Special Development Order 2019 grants planning permission for North Weald Airfield Lorry Facility at the North Weald Airfield, North Weald Bassett in Epping Forest, Essex. The Town and Country Planning (Waterbrook Ashford) (EU Exit) Special Development Order 2019 (“Waterbrook Ashford SDO”) grants planning permission for the use of land at Waterbrook, Sevington, Kent. The Town and Country Planning (Car Park D Ebbsfleet International Station) (EU Exit) Special Development Order 2019 (“Car Park D Ebbsfleet International Station SDO”) grants planning permission for the use of land at Car Park D, Ebbsfleet International Station at International Way, Ebbsfleet, Kent.
33.All three EMs note that the sites will act as an office for starting and ending transit movements of goods to and from the UK, allowing goods to be presented under the operational arrangements of the Common Transit Convention (CTC). They will also accommodate the ‘wet stamping’ on Admission Temporaire/Temporary Admission (ATA) Carnet documentation.
34.In addition, the EM for the Waterbrook Ashford SDO notes that areas of this site will be used as holding facilities, known as turnaround locations, for HGVs with incomplete customs documents, allowing them a period of time to obtain the correct documentation. This EM goes on to note that a small number of spaces will be used by the Driver and Vehicle Standards Agency to impound unroadworthy vehicles that are unable to continue their journeys safely.
35.In the EM for the Waterbrook Ashford SDO and the EM for the Car Park D Ebbsfleet International Station SDO, the Ministry additionally notes that a low volume of checks on specimens of species included in the Annex to Council Regulation (EC) No 338/978 will be handled at these locations.
36.The House may wish to press the Minister on what capacity these sites have and to what extent the government anticipates that they would be used.
Conditions and limitations
37.The Ministry notes that sections 59 and 60 of the Town and Country Planning Act 1990 give the Secretary of State the power to grant planning permission in relation to specific sites under an SDO. Such planning permission may be made unconditionally or subject to conditions or limitations.
38.The instruments grant planning permission subject to a number of conditions and limitations. The SDOs limit the number of vehicles that can be stationed on the land at any one time and only vehicles that are directed by site officials to be stationed on the site may do so. The SDOs do not allow certain activity to take place on the land, including not permitting goods vehicles to be stationed anywhere other than areas of hard standing. The SDOs also apply several conditions including regular monitoring and reporting of the effects of the use on neighbouring roads. Details about the conditions and limitations relating to each instrument are set out in section 7 of each EM.
39.The House may wish to ask the Minister about any inspection regime relating to the conditions and limitations that the planning permissions are subject to.
Consultation
40.Section 10 of all three EMs provides details of the consultation carried out by the Ministry and the outcomes. In the summary of consultation at paragraph 10.2 of the EM accompanying the Car Park D Ebbsfleet International Station SDO the Ministry notes that the relationship between the operational site and proposed works to the A2 at both the Bean and Ebbsfleet Junctions were raised by stakeholders and that Dartford Borough Council objected on the ground of the potential impact on these Junctions and on residents relating to noise, air quality and traffic congestion. The Ministry states that “These concerns have been assessed and potential impacts addressed by suitable limitations and conditions such as requiring regular monitoring and reporting of the effects of the use on neighbouring roads”. This EM goes on to note that South Eastern Railways objected to the proposal on the grounds that the scheme would limit passenger access to Ebbsfleet International. The Ministry states that “While station users may be inconvenienced by reduced access to the station from the south, this will not materially impede the continuation of the use of Ebbsfleet International Station during the temporary operation of the lorry park.”
Coming into force dates
41.The instruments were laid on 5 September 2019 and came into force on 9 September 2019. The Ministry expressed regret that it was unable to observe the 21-day rule for negative statutory instruments; this was also expressed in a letter received from the Minister of State for Housing (see Appendix 1). All three EMs note that:
“This reflects, however, the rapidly moving work on the ‘no deal’ EU Exit preparations. Moreover, prior to making the SDO, a range of environmental and other analysis needed to be undertaken before the Ministry could consider the potential impact of the proposed development and undertake targeted engagement with relevant stakeholders. The urgent need to ensure the site has planning permission to provide the new use in time for preparatory works to be completed prior to the UK’s exit from the EU, taken with the detailed work needed before the SDO could be made, we consider the breach of the 21-day rule for this SDO is justified.”
Conclusion
42.MHCLG states that the measures in these SDOs are “part of the Government’s preparations to mitigate the effect of cross-Channel travel disruption on the Kent and wider road network in the event of a ‘no deal’ departure from the EU on 31 October 2019”. The three instruments are drawn to the special attention of the House on the ground that they give rise to issues of public policy likely to be of interest to the House.
Food Information (Amendment) (England) Regulations 2019 (SI 2019/1218)
Date laid: 5 September 2019
Parliamentary procedure: negative
These Regulations introduce a new duty on businesses to label food that is Prepacked for Direct Sale (PPDS) to improve the information that is provided to consumers about food allergens. The instrument draws on the findings of a government review and the conclusion of an inquest into the death of a 15-year old who died after eating a PPDS sandwich. Having decided in favour of the most comprehensive information requirement consulted on, the Department for Environment, Food and Rural Affairs expects costs for business between £140 million and £450 million over a 10-year period as a result of the new requirements. There are plans for guidance and engagement to support the sector, including small and micro businesses, in understanding and implementing the new duty.
The Regulations are drawn to the special attention of the House on the ground that they give rise to issues of public policy likely to be of interest to the House.
43.The Department for Environment, Food and Rural Affairs (Defra) has laid these Regulations with an Explanatory Memorandum (EM) and an Impact Assessment (IA). The instrument places a new duty on businesses to label any food that has been packed on the same premises from which it will be sold (Prepacked for Direct Sale - PPDS) with the name of the food and full list of ingredients, with allergens emphasised. According to Defra, this brings the provision of allergen information for PPDS foods in line with the labelling requirements that already exist for prepacked food.9
Background
44.The EM states that approximately two million people in the UK have a food allergy, not including those with food intolerances and an estimated 1% of the population who have coeliac disease, an auto-immune condition which causes damage to the gut lining when gluten is consumed. Around 10 people die from allergic reactions to food in the UK every year.
45.Defra explains that the EU’s Food Information to Consumers Regulation 1169/201110 (FIC) provides the legislative framework around the provision of food allergen information (See Appendix 2). The Food Information Regulations 2014 and equivalent regulations in Wales, Scotland and Northern Ireland are the domestic regulations that establish the enforcement measures for FIC in the UK. While under the current provisions prepacked foods must be labelled with full ingredients and with any of 14 specific food allergens in the ingredients emphasised,11 businesses can provide allergen information for PPDS foods “by any means that they choose”. This includes staff telling customers about any allergens. According to Defra, anecdotal evidence suggests that consumers often find it difficult to distinguish between prepacked and PPDS foods and assume that the absence of allergen information on PPDS foods means that food allergens are not contained in the product, when this is not necessarily the case.
46.The Government carried out a review of allergen information provision for PPDS food, following an inquest into the death of a 15-year old who died in July 2016 from a severe allergic reaction after eating a PPDS sandwich. The coroner’s report noted that PPDS products were not labelled adequately or clearly.
What is changing
47.According to Defra, the objective of the instrument is to improve the information that is provided to consumers about food allergens present in PPDS foods. The instrument therefore places a new duty on businesses to label PPDS foods on the packaging with the name of the food and a full list of ingredients, with allergens emphasised. This is the most comprehensive of the information requirements that Defra consulted on (see paragraph 50). The new duty will come into force on 1 October 2021 to give businesses enough time to prepare. Defra says that the length of the implementation period has been informed by feedback obtained during consultation and is in line with advice by the Food Standards Agency (FSA).
48.Defra also explains that, while the instrument brings the allergen provisions for PPDS foods in line with those for prepacked foods, provisions regarding allergen information for non-prepacked food, such as loose food and food which is packed at the consumer’s request, remain unchanged.
49.Defra says that the Devolved Administrations in Northern Ireland, Scotland and Wales have committed to introducing equivalent provisions and bringing these into effect by Autumn 2021.
Consultation
50.Defra, the FSA and Food Standards Scotland carried out a nine-week consultation on the proposals between January and March 2019. Four policy options were consulted on: promoting best practice; “ask the staff” labelling on packaging; naming of food and allergen labelling; and full ingredient labelling. Defra says that a total of 1,887 responses were received, with 73% of individuals but only 13% of businesses supporting the full ingredient labelling option that is being taken forward by this instrument. While individual respondents considered this option the safest for consumers, businesses raised concerns about the cost, the risk of mislabelling12 and difficulties of implementing the option, such as the complexities involved in updating frequently and communicating clearly accurate ingredient information throughout the supply chain.
Guidance
51.The FSA has developed an interpretation of the types of food to which the new requirements apply to support businesses and local authorities which will be responsible for enforcing the new duty. The IA recognises that while large businesses dominate the supermarket and institutional catering sectors, small and micro businesses (that is businesses with between 10 and 50 employees and with fewer than 10 employees respectively) account for almost two thirds of specialised food retailers and quick service restaurant. Defra says that the FSA will support the sharing of best practice and update online training tools and training material to support these businesses.
52.Given the practical difficulty in distinguishing between prepacked foods and PPDS foods, we asked the Department about its engagement with small and micro businesses to help them understand the new duty. Defra told the Committee that:
“In addition to publishing an information note on the new allergen labelling rules to support food businesses with implementation, the Food Standards Agency (FSA) will update the Safer Food Better Business packs to help small businesses. A revised working interpretation on prepacked for direct sale food will also be published on 1st October 2019. Additionally, e-learning modules on allergens legislative requirements will be refreshed.
The FSA is continuing to work with businesses and representative organisations and this will remain the case during the implementation period in order to support the sharing of best practice.”
Impact
53.Defra says that the main impact on business will be familiarisation costs, the initial transitional cost of introducing new labelling and the ongoing cost of labelling. Defra estimates the total cost to be between £140 million and £450 million over a 10-year period. Defra also expects one-off familiarisation costs of around £1.58 million for the FSA and local authorities and additional annual enforcement costs of around £1.65 million for local authorities from 2021.
54.Defra explains that businesses may seek to pass any increase in costs on to consumers or may remove certain foods from their menu to avoid the costs of extra labelling, potentially reducing consumer choice, but that these impacts have not been quantified, given the uncertainty about future factors of supply and demand in relation to PPDS foods.
Conclusion
55.These Regulations introduce a new duty on businesses to label PPDS foods to improve the information that is provided to consumers about food allergens. Having decided in favour of the most comprehensive information requirement consulted on, the Department expects considerable costs to industry and has committed to engage with the sector to support understanding and implementation of the new duty. The Committee notes that businesses may pass on the additional costs to consumers or may remove foods from their menu to avoid the costs of extra labelling.
56.As food allergies are widespread in the UK population and the instrument draws on the findings of an inquest into a fatal case of food allergy, the House may welcome an opportunity to debate the approach the Government have taken with this instrument. We draw the Regulations to the special attention of the House on the ground that they give rise to issues of public policy likely to be of interest to the House.
1 Para 7.4 of the EM for the Draft No.1 Order.
2 Para 7.6 of the EM for Draft No.1 Order states that traffic officers in England are individuals designated as such by Highways England or the Secretary of State and tasked with maintaining the flow of traffic on the strategic road network. In Kent, this has included working with the police to regulate cross-Channel traffic during periods of disruption.
3 Delegated Powers and Regulatory Reform Committee, 13th Report, Session 2003-04 (HL Paper 70), para 6.
4 Para 10.3 of the EM accompanying the Draft No.1 Order.
5 Noted in all three EMs at para 13.2.
6 Response provided by DfT on 26 September 2019.
7 Para 7.4 of all three EMs.
8 The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is implemented in the EU through a set of regulations knows as the EU Wildlife Trade Regulations. Regulation (EC) No 338/97 is the principle regulation.
9 The Food Standards Agency says that while there is no legal definition of PPDS foods, its current interpretation is that it applies to foods that have been packed on the same premises from which they are being sold. Food that falls into this category may include, for example, sandwiches which are prepared by staff and sold on the same premises and which are prepacked before the customer chooses them. It is expected that customers are able to speak with the person who made or packed the product to ask about ingredients. In contrast, prepacked foods are foods put into packaging before being offered for sale, such as a ready meal sold in a supermarket.
11 The 14 allergens are listed in Annex II of FIC.
12 Mislabelling may occur, for example, in busy kitchen environments where products containing different allergens are made simultaneously.