Official Report (Hansard)
Date: Wednesday, 05 February 2014
Committee for Health, Social Services and Public Safety
Food Hygiene Rating Bill: Food Standards Agency Northern Ireland
The Chairperson: I welcome Kathryn Baker and Maria Jennings from the Food Standards Agency. The process, folks, is that you make a 10-minute presentation, after which I will open up the floor for comments from members.
Ms Maria Jennings (Food Standards Agency Northern Ireland): Thank you very much, Chair. Thank you all for giving us the opportunity to update the Committee this afternoon on the FSA's plans to introduce legislation to make it compulsory for food businesses to display their food hygiene ratings so that all consumers in Northern Ireland can make informed choices about where they eat.
As you all know, the FSA is a UK-wide Government agency. In Northern Ireland, it is accountable to the Assembly through the Minister of Health, Social Services and Public Safety. As food hygiene is a devolved matter, where the FSA has the policy lead, legislation is made through the DHSSPS.
You will recall that we appeared before the Committee in 2013 regarding the food hygiene rating scheme to inform members about the rationale behind the scheme and that we would be seeking to put legislation in place to put it on a statutory footing. At present, the scheme is operating on a voluntary basis. It is administered by district council environmental health officers. Food businesses are provided with information on the standards that they attain at each routine inspection. When they are given that information, it is in the form of a numerical rating from zero to five, with five being the highest rating, which means that the business, at the time of inspection, complies fully with the legal requirements.
The rating is provided as a sticker, which can be put on the window or door of the food business. However, there is currently no legal requirement for businesses to do that. Over the time that the scheme has been running, we have been gathering evidence on how many businesses currently display their ratings. We know that only around 50% actually choose to do so. That drops to only 13% when we talk about the businesses with the lowest ratings, from zero to two.
Since we last appeared before the Committee, we have completed a public consultation exercise on our proposals for a statutory scheme. In doing so, we sought to reinforce the framework on which the voluntary scheme was built, because that was developed collaboratively with the enforcement community, the food industry and consumers. We were very keen to build on that. We carried out a number of traditional stakeholder events around the consultation. We had lots of one-to-one meetings to discuss our proposals. We also gathered information directly from consumers. However, importantly for the Committee, we carried out face-to-face interviews with small businesses and microbusinesses because we know that those groups traditionally do not tend to get involved in formal consultation processes.
In addition, we received 29 responses to the consultation from a mix of the enforcement community, the industry and consumers. We published that report in July. Since then, we have been carrying out more consultation to ensure that we get the final policy position right. In December 2013, the Executive agreed on our final policy position and to the drafting of the food hygiene rating Bill, which you will get to see in due course.
This afternoon, we would like to take the opportunity for a couple of minutes to provide a brief overview of some issues that were raised in the consultation, because people have different views on the issue. I will ask my colleague Kathryn to outline some of the issues raised in the consultation.
Ms Kathryn Baker (Food Standards Agency Northern Ireland): Thank you for inviting us here today. As Maria outlined, in producing our consultation proposals for a statutory scheme here, we were endeavouring to stick as much as possible to the voluntary scheme. This has been developed in consultation with all parties, with a lot of compromise and agreement. Obviously, one of the main differences in moving from a voluntary to a statutory scheme is that food businesses would have to display their rating in a prominent location at their establishment.
In response to the consultation on the issue, consumers and district council stakeholders expressed very strong support for mandatory display. Views from the food industry were mixed. Maria mentioned the citizens' forum research that we did with small businesses. Those with a high rating and confidence in the scheme were in favour of mandatory display. On the other hand, perhaps unsurprisingly, those with lower ratings were critical of the proposals. We accept that there is some opposition from the food industry. However, we believe that mandatory display will maximise the potential of the scheme. It will allow consumers to make informed decisions. In turn, that will provide a strong incentive for businesses to comply with their existing legal requirements.
During the consultation, we also posed the question of whether councils should deliver a statutory scheme by being required to do so or to act voluntarily as they currently do. In response to that, a majority of respondents felt that councils should be compelled to operate a statutory scheme. They felt that the voluntary approach carried the risks that councils could choose to opt out over time. That could obviously result in a lot of inconsistency, both for the consumers, whereby they may or may not see information, but particularly for businesses whereby some businesses would be required to display their rating and others would not. That could be very pronounced at local authority boundaries, where businesses could be located very close together.
As Maria said, the scheme has been operating for two years, and safeguards are built into it for businesses. These include the right to appeal the rating; so, if businesses get a rating and dispute it, they can appeal it to the district council. They also have a right to request a re-inspection so that their rating can be reassessed when they have made the necessary improvements. This ensures that businesses do not have to wait for the next routine planned inspection that councils carry out as part of their official control programme.
In our statutory proposals, we can propose that we continue these safeguards. However, in response to some comments that we received in the consultation, which I will take you through briefly so that you are aware of them, we have made a number of changes to the original proposals. The first relates to the appeals safeguard. As the scheme currently operates, food businesses have 14 days in which to appeal their rating. In the proposals for a statutory scheme, we are increasing that to 21 days. This is really to enable businesses, particularly bigger businesses that have central offices, perhaps even located in another country, enough time to determine whether they wish to appeal. Equally, the time for district councils to determine an appeal has also been increased from seven to 21 days.
The scheme in Wales is now statutory; its Act came into force in November in 2013. The appeal times we are proposing are in keeping with those in the Welsh scheme. We think that this is quite important because it gives consistency for businesses that operate across different countries. It means that in a statutory scheme, they are, at least, operating to the same time periods.
I have just one other thing to say about the appeals. A number of respondents to the consultation queried whether there is sufficient independence, because the appeal is made to the council that provided the rating, albeit it is not the same officer who determines the appeal. Following discussions with stakeholders, it has been agreed that the FSA should review how the appeals process is operating in a statutory scheme after a period to see whether any changes are needed, particularly around the aspect of independence. I will just flag up with you that that flexibility also exists in the Welsh scheme.
I will just briefly mention the re-rating inspection safeguard. A number of issues were raised in the consultation about that also. In the current voluntary scheme, a food business can request only one re-rating inspection when it receives its rating, and the council will do that free of charge. However, when businesses are required to display the rating, we estimate that the number of requests for re-rating inspections will increase.
When we consulted, we proposed that businesses would pay for the inspections when they requested them. Most stakeholders felt that this was reasonable. However, we then went further and asked this question — if businesses are paying for the re-rating inspections, should they be able to request more than one? — then more than half of the respondents thought that they should be able to do that. That was very much in keeping with the aim of the scheme, which is to encourage compliance and self-regulation in business. There has been concern, however, among enforcement stakeholders that this has the potential to direct resources away from the poorer-performing businesses. We accept that concern and the enforcement stakeholders' view that a limit might need to be placed on the number of re-rating inspections that a business can ask for. However, we do not have evidence at this time to determine what would be reasonable if we were to impose a limit. So, we have proposed that we review this aspect of the scheme when it becomes statutory and gather evidence, and, on the basis of that, make a determination on whether a limit needs to be imposed.
The last thing to say on the re-rating inspection issue is that, in the current scheme, there is a three-month standstill period after the initial inspection when a business cannot receive a re-rating inspection. However, they can then get the re-rating inspection within a further three months. We proposed that, as we put out our proposals for a statutory scheme, and the response from industry to the consultation was that the six-month period, which is what it could be, effectively, was too long for them to wait to get the rating reassessed. On review, we agree that, since food businesses will pay for the cost of the re-inspection and as they will now be required to display their rating where previously they could just choose not to put it up, re-rating inspections should be completed within three months. That has met severe opposition from enforcement stakeholders, who do not agree with the loss of the three-month standstill period. However, we feel that it is fair for businesses that have made improvements, and they will have to demonstrate that before they could get the re-inspection.
One issue was raised in the consultation by enforcement stakeholders. They highlighted the undesirability of them introducing a statutory scheme at the same time as they bring about the transitional arrangements in the local government reform programme. We understand that this will be a time of significant resource for them, and we have committed to liaise with all stakeholders when we come to agree a coming-into-operation date for a statutory scheme in Northern Ireland.
Finally, in reaching our final position, which is laid out in the paper, we have listened to stakeholders and have attempted to balance some very divergent views to reach what we think is a fair, reasonable and balanced position. Members will get a full opportunity during scrutiny to invite all those stakeholders before you to hear their views on our final proposals. We urge you to do that.
The Chairperson: Thank you both for that. I will begin with an observation. The ultimate objective is to reduce the amount of food-borne diseases. There are 48,500 cases annually. Your report indicates that there were 450 hospitalisations, at a cost of £83 million to the economy, and 20 deaths. Those statistics are stark and suggest the need for action. You noted that Wales now has a statutory process in place, but have you looked at any other examples or models to see the impact of the work? I have taken on board what you said about the appeals process, the role that you will have and the flexibility there is to review how that is working, specifically other models and impacts. When is this likely to come before the Assembly?
Ms Jennings: I will pick up your first point about the models. We have been working on this for what seems like years and years. For the final decision on the food hygiene rating scheme that we put in place in the UK, we looked across the world at all sorts of different models that worked, or partly worked, in different countries. The decision to go with the food hygiene rating scheme on a voluntary basis, as it is at the moment, was taken in a very considered way. We made sure that all countries in the UK were on board before we put it in place, and it works across the UK.
The problem we have with the voluntary scheme is that people do not have to display their rating. There is no appetite in Westminster to introduce a compulsory display of the rating in England. The FSA in Northern Ireland believes, and Wales obviously believes, that it is in the consumers' interests to make that display mandatory. Scotland is considering and watching what is happening in Wales and Northern Ireland, and will make its own decision.
The Chairperson: What about the Assembly's timeline?
Ms Baker: Do you mean for the Bill coming before the Assembly?
The Chairperson: Yes.
Ms Baker: The Bill is being drafted. We have received a first draft and are working closely with the Office of the Legislative Counsel (OLC) and are responding and commenting on it. I think that we could have a Bill introduced in the Assembly before the summer recess.
Mr Gardiner: I have about five questions for you. You touched on some of them, but you can elaborate more on them. Thank you for your presentation. Will the measure cover businesses that supply food and other materials to restaurants as well as the restaurants themselves?
Ms Baker: The scope of the scheme, as it currently stands and as we have put forward in proposals for a statutory scheme, is, at this point, to apply only to businesses that supply food directly to consumers. Therefore, where you get business-to-business trade, the scheme will not apply in those instances. At this stage, it is just information to help consumers make decisions.
Ms Jennings: The FSA is looking separately at bringing in a similar scheme that would expand it to provide information where you are a customer of a supplier. Therefore, catering suppliers would have to provide certain information to their customers, which would be the food businesses. That is a separate issue.
Mr Gardiner: That has to be welcomed.
What penalties are there for failure to display a food hygiene rating?
Ms Baker: As you say, it would be the failure to supply a valid rating, for example a rating that is not a true rating, or not displaying it at all. In the first instance, there would be fixed penalty notices with typical fees, which are around £150 to £200. For situations in which persons continue not to display, or continue to display misleading information, then, ultimately, there would be a level-3 conviction. They are not large.
Mr Gardiner: Do you process those through the courts?
Ms Baker: The fixed penalty notices will not go through the courts because the district council will serve them. It is only if it would go to court, and we do not imagine that there would be many instances of that.
Mr Gardiner: I hope not.
What right of appeal do restaurants have against their food hygiene rating?
Ms Baker: As I said, anybody who receives a rating has a right to appeal it where they dispute it, and we are proposing that they can do so within 21 days. They will request an appeal, and the appeal will be heard in the council. However, it must be heard by an officer who was not involved in determining the rating. Therefore, it will be a more senior officer, for example a principal officer or manager of the food service, who would determine the appeal.
Mr Gardiner: Are all takeaways and supermarkets covered by the Bill?
Ms Baker: Yes, where they supply food directly to consumers.
Mr Gardiner: Are there any eating places not covered by the Bill?
Ms Baker: The only places that will have some exemptions are where businesses might not typically see themselves as food businesses. For example, we do not imagine that places such as a National Trust shop, which sells craft goods and tins of biscuits, would come within the scope of the scheme, because we do not think that the consumer would see that as a typical food business. The other main exemption is for childminders. There are sensitivities around that for child protection reasons. As well as displaying the rating, there is the public website. We do not want to put the private addresses of childminders on that, so they are not covered.
Mr Gardiner: Lastly, to what extent are we simply copying the Welsh Act?
Ms Baker: I could say that we are copying it quite a lot, because the scheme has operated before —
Mr Gardiner: You could say what?
Ms Baker: It is very similar, and we want it to be similar. We think that it is better to have consistency for businesses and consumers, so that one rating means the same in Cardiff as it does in Belfast and the same system backs it up, so a business has the same time to appeal. If you operate as a multi-chain, you understand how a statutory scheme would work. That is not to say that they have to be identical: they do not. However, they are based on a voluntary scheme that has been running for three years, and all the framework to establish a fair scheme has been worked out with stakeholders, prior to the Bill, which requires the mandatory display. So, there will be a lot of similarities.
Ms Jennings: One of the biggest criticisms that the Food Standards Agency gets across the board is about consistency and consistency of enforcement. What we are trying to do here is to reinforce that consistency of enforcement.
Mr Gardiner: Good. I welcome that.
Mr Wells: It is quite shocking to see that there are 48,500 cases a year, involving 450 hospitalisations. We are talking about something here that may sound like an academic exercise but is actually a very serious issue. Maybe you can see from my waistline that I am a very frequent user of takeaways and restaurants, particularly if their vegetarian food is a bit good. I have to say that, in all my time, and since I last heard from you, I have always instinctively looked for the label. I have never seen a nought or a one in a window in my life, so I am even surprised that you got the 13%. Where are those people? Do they actually exist? Is that what they are saying, or is that according to your check?
Ms Jennings: We know.
Ms Baker: We have mystery shoppers who carry out audits.
Mr Wells: And you are saying to me that there are people who will put a nought or a one in the front window or on the door of their establishment.
Ms Baker: They possibly do not understand —
Mr Wells: What they are doing.
Ms Baker: Yes.
Mr Wells: That is quite shocking.
You say that it is going to be a fixed penalty. My concern about that is that it is done behind closed doors and in secret. It is obviously going to be those with ratings of nought and one who will refuse, because I have to say that I suspect that every rating of five in Northern Ireland is prominently displayed. By the way, we have a rating of five here in Stormont, I am glad to say.
Ms Baker: Yes, I saw that.
Mr Wells: Surely, the reality is that all the fives will be displayed in glowing colours, and even the fours. However, if the noughts and the ones, for very obvious reasons, refuse to display, all that will happen to them is that, privately, they will be fined a small amount by the district council. How will the public be any more reassured by that process?
Ms Jennings: The noughts and ones still have to display. They have to pay the penalty, but they still have to display, and they cannot display misleading information. If it is persistent, it will generate a prosecution through a Magistrates' Court and that will be publicised. This is about sorting out the people who are chancing their arm, in a way; the first-time offenders from the persistent offenders.
Mr Wells: Yes, but if I were the owner of Jim's Chippy in Kilkeel and I get a rating of nought or one, surely this process incentivises me to demand appeals and re-registration and to get a fixed penalty and continue, maybe for over a year, serving substandard chips?
Ms Jennings: No. You will not be able to do that.
Ms Baker: You raise an interesting point there, though, about the business continuing not to comply. The food hygiene rating is there to let the consumer know how the business did at the time of an inspection. However, if a business is rated at zero, for example, there will be issues that need to be addressed quite urgently, and the district council will be using other enforcement methods to put that right. That could include it serving hygiene improvement notices, which give a set period of time to put the issues right. In the worst-case scenario, it could serve a hygiene emergency prohibition notice and actually close down the business, which would obviously get a lot of publicity.
Mr Wells: You have to ask why someone who is getting a rating of nought or one is serving food in the first place. You would think that that would automatically trigger further investigation by the council.
Ms Baker: It will.
Mr Wells: You say that it is a tier-3 fine. Surely, if it is a large food establishment, it would almost pay it to continue to ignore the sanctions. The reality is that having such a low rating prominently displayed on the front door is probably the kiss of death to the establishment. Therefore, does a one-off fine of even £1,000 stop that lack of transparency continuing?
Ms Baker: With a statutory scheme, where a business is not displaying a rating, I imagine that the public would contact the council and say, "Why is this business not displaying a rating?". They will maybe be told that it is a zero and the council is taking enforcement action against the business for not displaying. The fact that they were not displaying would also have a detrimental effect because people would question why there was no display when a business is required to have one.
Ms Jennings: We have had an awful lot of interest from the media in the food hygiene rating scheme, so local papers are well tuned in to this and are picking up on poor performance by takeaways. It is all incentivising, really. We are trying to move the norm and shift the compliance. Most businesses are very good. In Northern Ireland, most businesses are rated three to five. It is not the norm to have a zero or a one.
Mr Wells: If I was running Jim's chip shop in Kilkeel, it would certainly get a nought or a one. I have no skill or knowledge in this field at all. Say that I decide to bag up to Nutts Corner and get myself a counterfeit sticker showing a five and I stick it up, what is the likelihood of me being caught, and is that also a fixed penalty?
Ms Baker: The fixed penalty notice is discretionary. A council may decide that that was significantly serious and that you were wilfully misleading the consumer. In the consultation, people said that they saw that as much more significant. I could see the situation that you described going straight to court.
Mr Wells: That is good because, in a small rural community, the greatest deterrent is for a story to appear in the local press that Jim is useless at running a chip shop and his hygiene standards are very low. I am glad that there is that option rather than having a series of fixed penalties, which really do not count as a deterrent because the public do not know.
Ms Jennings: We should not underestimate the work that district councils do. Their environmental health officers are on the ground and out in Kilkeel every day of the week checking businesses, even just walking up and down past. They know an awful lot and have a lot of intelligence. I sure that you are well aware of the work that they do. So, it would not go unnoticed in your cafe, Jim, and I think that you would be hauled over the coals quite quickly.
Mr Wells: It is good to hear it. Thank you.
Mr Brady: Thanks for your presentation. It is all about consumer protection. In one of our streets in Newry, there are probably 20 food outlets, some large and some small. Some open and close fairly regularly. I would have thought that it is such a competitive business that everybody would be striving to get the highest rating. Some are side by side, so if one has a five and one a three, presumably people can make a choice. It seems such a simplistic thing in a sense, because you would assume that, if you opened a business that deals with food, you would be going for the best standards possible. I am not sure whether there is special dispensation for vegetarian outlets. I presume that there is not —
Mr Wells: They have no hygiene problems because they are so healthy.
Mr Brady: — in Kilkeel or otherwise. There are so many food outlets now, and it is such a competitive business; this is one way of gauging how good or bad they are. You would assume that people would strive for the best possible mark.
Ms Jennings: I live in a small town myself, and there are four takeaways —
Mr Brady: I am not suggesting that Newry is a small town. It is a city now.
Ms Jennings: Yes, that is right. We have four takeaways; three have a rating of five and the other is not displaying. As a customer, I cannot make a decision about that at this time, and that is why we feel that this legislation is vital.
Mr Beggs: Thank you for your presentation. It has been a good scheme to date. There is a positive incentive for those who wish to display it, but, as of yet, the stick has not been there. To determine whether that stick is needed, will you delve a little more into the numbers for us? You indicated that there are 48,500 cases of food-borne illnesses annually, 450 hospitalisations and 20 deaths in Northern Ireland, costing the economy £83 million a year. What percentage of all that comes from the home as opposed to commercial businesses? This will be another burden on business, and I would like to satisfy myself that it needs to be compulsory.
Ms Jennings: Part of our difficulty with food poisoning statistics is that there is a massive amount of under-reporting. We think that we pick up on only about 10% of the true number of people who suffer food poisoning. That is for a variety of reasons: some people do not go to their doctor; and some who go to their doctor do not get the proper samples taken to prove that they had food poisoning. So, it is actually very difficult for us to answer your question, Roy. We know that a lot of food poisoning still occurs in the home; there is no doubt about that. We try to reach consumers in other ways to explain and give those messages to them on an ongoing basis. This time last year, I came to talk to you about the second largest E. coli outbreak in the UK, which started in one of our restaurants. Those statistics alone really bump up the figures. Even one is one too many.
Mr Beggs: Are you concerned about the current voluntary system in that those who do not get good results can just hide? They may not be improving as fast they should be and are continuing to offer a service that has a degree of risk for the public.
Ms Jennings: We are satisfied that councils have put in place a coordinated effort to increase the scores of businesses that are rated from zero to two. We are more than satisfied with the councils' work. However, that is not visible to consumers, and that is the problem. So, consumers are still quite happily purchasing from those businesses. We just want to give people the choice. If you are going to eat from your favourite takeaway, you are going to eat from your favourite takeaway. This may or may not influence you. However, give people the information that they need to make informed choices.
Mr Beggs: What additional costs, if any, do you see falling to ratepayers in moving to the compulsory status?
Ms Baker: In respect of cost, the scheme really sits on the back of the official control programme that all councils are obliged to carry out anyway under EU requirements. They have a system of official controls inspections that they carry out routinely in their areas. They have to do those. It is only once they do those that they use the evidence that they gather to generate the rating. So, it is just a final bit onto what is already done. We do not really see there being a big cost, because all that we are asking businesses to do is to display their rating. We accept that some businesses will not get a good rating; that means that they are not complying with the basic legal requirements and are not doing what they should be doing, which is already established. All member states are being asked to do the same thing. As we said, it is really about passing the information on. We do not see large costs for that reason.
Mr Beggs: There was discussion earlier about whether businesses should be allowed to make improvements and get a retest quicker than normal. I certainly support that. It should be about bringing about improvement rather than closing businesses. If businesses want to bring about significant improvement, sure that is great. We, therefore, should not stand in the way of them bringing about improvement and being able to show a better performance.
Ms Jennings: If you bring in the councils to speak to you about this issue, you will find that they are very nervous about the extra resources that would be required to put in the effort for re-inspection visits and reassessing businesses. You will hear that. We have to put that in front of you because that is what we have heard from the councils.
Mr Beggs: Would that not be paid for by the businesses that wish to speed up the assessment, thereby giving councils the additional resources?
Ms Jennings: That is why we built this scheme in the way that we have.
Mr Dunne: Thanks very much. Apologies; I was out talking to some students. That is why I had to go out.
The last time you were here, I remember that we talked about the horse meat issue, and we were made aware of the limited resources that council environmental health departments have. I know that we, as local MLAs, give them quite a bit of work as well. There are a lot of issues out there with noise, damp in properties and so on, so a terrific workload is placed on environmental health officers. Under RPA, will they have the necessary resources allocated to them for them to be able to carry out the business? The demand is increasing more and more, and I can understand that. As a former councillor just a few months ago, I know that the officers are really under a heavy workload.
In relation to the assessments and the audits that they carry out, I take it that it is a risk-based assessment. They carry out surveillance, as was mentioned earlier, and surveillance is all about awareness and knowing what is going on out in the street, basically. How are they going to manage under RPA? Will there be adequate resources in place, or do you feel that a greater effort has to be made, and perhaps there should be more emphasis on public health within councils?
Ms Jennings: Kathryn and I both come from a district council background, as you know, Gordon. We have worked in the councils for years, so we understand the pressures that they are under, and we, as the Food Standards Agency, are very worried about that. We have attempted to discuss it with the chief environmental health officer's group and other groups of council leaders. They are in a bit of a hiatus at the moment, because they are not really making any decisions before the new chief executives are put in post, which is correct and right. There will be a period of very intense discussions with the councils in the lead-up to the transition and beyond, just to make sure that they retain the resources that they currently have to do the job that they need to do. We want to make the service very strong and help to put the resources into the service; we provide them with some money as well. We want to make sure that the food service is strong and robust for the future.
Mr Dunne: So, there is work to be done, you reckon.
Ms Jennings: There is, definitely.
Mr Dunne: I always remember the issue with the frozen horse meat that came in. No one had really taken samples of the meat, because obviously resources were limited. It is quite a complex operation. I understand that a lot of the meat came in in frozen bulk. It was a commodity that was moved around and no one really saw it. It takes resources to manage all of that.
Ms Jennings: It does. That is a whole other Committee discussion, I think. We would love to come back to the Committee and talk to you about the work that we have been doing over the past year in the legacy of the horse meat and with all of the reviews of the horse meat incident. We will come and present to you on that soon.
Mr Dunne: Great, thanks very much.
The Chairperson: Thank you, Gordon, for reminding me that, given councils' role in all of this, it is probably appropriate for current councillors to declare an interest. I am not sure who is or who is not.
Mr Dunne: We are all out.
The Chairperson: Good. We have progress. Thank you very much for that presentation and the useful information. It has been very detailed.