| Chapter 9
Enforcement Issues |
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| 9.1 With the
exception of licensed fresh meat premises such as
slaughter-houses and cutting premises, where enforcement
rests with the MHS, responsibility for food safety
enforcement lies with local authority Environmental
Health Officers (EHOs). There are approximately 600
qualified EHOs employed by the 32 unitary authorities in
Scotland. Their responsibilities cover a wider range of
statutory and non-statutory functions including, in
addition, health and safety, noise and air pollution
enforcement; unfit housing, communicable disease and
public health control; animal welfare and public health
licensing; and waste management delivery. |
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| 9.2 Since
1974, in order to practice, EHOs in Scotland have been
required to obtain honours graduate level academic
qualifications, undertake practical training and pass the
Diploma Examination of the Royal Environmental Health
Institute of Scotland (REHIS). Additional post-graduate
qualifications can be obtained, including in relation to
food safety, and REHIS has also implemented a programme
of continuing professional development for EHOs to
maintain professional knowledge and competence. |
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| 9.3 Food
safety is a major priority for EHOs and many are
acknowledged specialists. Not all, however, deal solely
with food safety. For example, out of 68 EHOs employed in
Glasgow, 15 full time equivalents are engaged solely in
food safety and related issues (with others doubtless
involved periodically). In Edinburgh, 7 out of 45 EHOs
and in Moray 2.5 out of 9 EHOs are so employed. |
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| 9.4 In
addition to EHOs, Food Inspectors are engaged in food
safety inspections and are required to meet the
qualification criteria laid down by the Food Safety
Officers' Registration Board. For high risk premises,
this is the Higher Certificate in Food Premises
Inspection and there are currently 20 inspectors in this
category in Scottish local authorities. |
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| 9.5 The Food
Safety Act 1990 places a duty on food authorities to
enforce and execute the provisions of the Act. Section 40
of the Act authorises Ministers to issue "Codes of
Recommended Practice" to food authorities to guide
them in the execution and enforcement of domestic
legislation. Food authorities are obliged to have regard
to such codes and to comply with directions from
Ministers specifying steps required to comply with them.
These directions can be enforced by court order. |
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| 9.6 Code of
Practice No 9 requires food authorities to determine the
relative extent of risk inherent in particular
premises/operations. Once that has been determined the
Code sets minimum frequencies for EHO inspections: high
risk premises (Categories A and B as defined in the
Code), for example, require inspection visits at least
every 6 months or 12 months respectively. Inspections
may, of course, give rise to the need for enforcement
action - ranging from informal action to improvement
notices or prohibition or emergency prohibition action. |
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| Issues |
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| 9.7 A number
of issues were raised with the Group in discussion of
enforcement matters. There has been some inevitable
disruption of local authorities' environmental health
activities as a result of local government
re-organisation in Scotland. Although since the mid 1970s
food safety has been the responsibility of district
councils, the move to unitary status has meant that, in
many authorities, environmental health has been
amalgamated into multi-functional departments, not
necessarily headed by a senior manager with training and
expertise in environmental health or food safety.
Environmental health departments also have to compete for
funding and resources, in a time of public expenditure
restraint, with other high profile/high spending local
authority functions. No resources are currently earmarked
by central government specifically for environmental
health or food safety purposes. |
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| 9.8 Since
1990 there have been significant changes to Government
policy on food safety enforcement as a result of
implementing EU single market measures and the
deregulation initiatives. This has created uncertainty
amongst EHOs about the overall policy approach to
enforcement. Much is clearly expected of industry in
terms of the adoption and implementation of HACCP
principles. On the other hand the apparent desire on the
part of the Government for a light touch to enforcement
has left EHOs uncertain about the policy imperatives and
their expected roles. This uncertainty has been
exacerbated by the impact of, for example, the Lanark
Blue cheese court cases10 and the problems,
discussed earlier in this report, about enforcing some of
the HACCP principles under current regulations and the
application of the health risk condition in the Food
Safety Act 1990. |
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| 9.9 We feel
that a number of these issues should be addressed. In
doing so, it seems sensible to differentiate between
issues relating to regulatory enforcement and the broader
issues of awareness and education related to the
implementation of HACCP. |
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| Enforcement |
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9.10 It
seems to us unacceptable, particularly in current
circumstances, that EHOs should be in any doubt about the
need for anything other than rigorous enforcement of food
safety standards, which should be clear and unabiguous. A
number of the recommendations set out in our interim
report and also earlier in this report, are designed to
tackle lacunae in existing regulations and strengthen the
position on enforcement, particularly in relation to high
risk premises. These include:-
- accelerated
implementation of HACCP for high risk premises;
- the proposed
selective licensing arrangements;
- the proposed
introduction, into Code of Practice 16, of a
special section on Risk Assessment;
- the recommendation
for amendment to Code of Practice No 9 so as to
ensure EHOs' efforts and resources are targeted
particularly at high risk premises; and
- a review of the
health risk condition set out in Section 11(2) of
the Food Safety Act 1990.
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| 9.11 The
case for selective licensing has been set out in Chapter
7. We are aware that work is under way on the proposed
amendments to Codes of Practice. The aim of the review of
Code of Practice No 9 is to encourage more frequent
inspections by EHOs of high risk premises, thereby
helping to ensure that potential hazards are identified
and tackled earlier and that operators conform to the
required standards. Two further points need to be made in
that context, however. First, there will be costs
(including opportunity costs) associated with that: the
inevitable implication is that, without additional
resources, EHO efforts will be diverted away from other,
albeit hopefully less risky, operations. Secondly, the
duration and quality of inspection visits is as important
as their frequency. Increasing the number of visits
should not mean simply that the length of visits should
be correspondingly decreased or that there is a need to
examine in any less depth premises or operations carried
out by businesses. |
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| 9.12 In
relation to the proposed amendment of the health risk
condition, we set out in our interim report concerns a)
that the courts may apply criminal standards of proof (ie
a need to prove "beyond reasonable doubt")
rather than civil standards ("balance of
probability") when determining cases; and b) that
the standard of proof required may not be available to
EHOs at the time of taking decisions on the need for
action - amongst other things because of inevitable
delays in microbiological testing of food samples or in
identifying the likely source of infection. Consultation
is underway, in Scotland, on the application of the
emergency powers available to EHOs and the health risk
conditions in the 1990 Act. |
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| 9.13 In that
context, there has been some debate about whether our
interpretation and articulation of the law in relation to
the health risk condition was correct. Further legal
advice suggests that the courts may apply civil
rather than criminal standards of proof (but the standard
of proof is for the court to determine) and that it is
the potential absence of hard (rather than
circumstantial) evidence rather than the standard of
proof which may be the determining factor. We acknowledge
that our interim views, which were produced to a very
tight timetable, could perhaps have been expressed more
appropriately. Nonetheless, we think the principle of our
concerns, relating to the uncertainties which enforcement
authorities apparently have about their ability to fulfil
the health risk condition, remain. We therefore welcome
the fact that a consultation exercise is underway and
that further consideration is to be given to reviewing
the health risk condition in the light of responses to
that. |
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| Implementation
of HACCP |
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| 9.14 We have
endorsed HACCP as the overarching policy and practical
approach to ensuring food safety and have recommended
incremental steps to advance its implementation. It would
be unreasonable to expect EHOs to be the sole, or indeed
the main, contributors towards taking forward education
and awareness of HACCP principles and their
implementation. Responsibility for that rests primarily
with business. Nonetheless, EHOs have an important role
to play. Not only have they substantial experience and
expertise to offer, but they will also be expected to
make judgements about the appropriateness or otherwise of
HACCPs which are prepared and implemented by individual
businesses within their area. This needs to be reflected
in the allocation of resources to environmental health
departments. |
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| 9.15 We
recommended in our interim report better targeting of EHO
resources to help tackle the challenges that E.coli O157
represents, perceived deficiencies in the regulatory
framework and the need to contribute towards the
implementation of HACCP. As the Codes of Practice make
clear, local authorities must ensure that they have in
place adequate staff with the skills and resources needed
to address these issues. Central Government will also
wish to ensure the adequacy of resources available to
local authorities in this area. |
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| Recommendations |
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| 9.16 In
relation to enforcement issues, we welcome the work that
is underway to review Codes of Practice and, in Scotland,
the consultation on the emergency powers available to
enforcement authorities and the health risk condition. We
re-iterate our recommendations to accelerate the
implementation of HACCP principles for high risk premises
and the need to target EHO effort and resources on them.
Our deliberations on enforcement issues have re-affirmed
our view on the need for selective licensing. We
recommend, in addition, that:- a. the Government should give a
clear policy lead on the need for the enforcement of food
safety measures and the accelerated implementation of
HACCP;
b. the Government and
local authorities should ensure that there are available
suitable and adequate EHO skills and resources to address
enforcement and education/awareness issues;
c. the Government
should consider earmarking local authority funds for
these purposes; and
d. local authorities
should designate an environmental health officer, with
appropriate training, experience and expertise, to head
food safety within the authority.
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