Report on the Food Hygiene Rating Bill (NIA Bill 41/11-16)

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Executive Summary

The purpose of the Bill is to provide for the operation of a food hygiene scheme in Northern Ireland. The scheme will give consumers information about food hygiene standards in the establishments where they eat out or shop for food. The objective is to enable consumers to make informed choices, which in turn will provide a strong incentive for businesses to comply with existing food hygiene law. Ultimately, the aim is to reduce the incidence of foodborne illness caused by poor hygiene standards.

The evidence from stakeholders was overwhelmingly in favour of the Bill, although a few key issues did emerge.

The first key issue was the display of hygiene ratings on websites through which consumers make food orders. The Bill as drafted requires businesses to display a valid rating sticker, in a location and manner to be specified by the Department in regulations. The Department advised that its intention was that stickers would only be required to be displayed at the physical location of a business. The Committee believed that for transactions which are made online, and therefore customers do not visit the premises or talk to someone over the telephone before placing an order, they should be able to have sight of the business’s rating on the website or alternatively be provided with a link to the Food Standards Agency’s website (which contains ratings for all food business establishments in Northern Ireland). Given that one of the key stated aims of the Bill is to allow consumers to make an informed choice regarding where they choose to shop for food, the Committee strongly believed that the lack of information in relation to orders made through websites was a significant omission. The Department accepted the Committee’s rationale and drafted an amendment to provide for a regulation making power to require businesses supplying food by means of an online facility to ensure that the establishments’ food hygiene rating is provided online.

The second issue concerned timescales for the notification and publication of hygiene ratings. As drafted, the Bill did not contain timescales within which councils must inform the Food Standards Agency of a rating and within which the Food Standards Agency must publish the rating online. The Committee was concerned that without specified timescales, the ratings published on the Food Standards Agency website could potentially become significantly out of date. This would be detrimental to businesses which had improved on a previous rating, and also potentially mislead consumers where a rating had either improved or fallen. The Department accepted the Committee’s point and drafted a range of amendments to create timescales for notification and publication within the Bill.

The third issue related to the provision for a review of the operation of the legislation within three years of its commencement. The Bill as drafted permitted the Department to amend the Act by secondary legislation to implement recommendations produced by the Food Standards Agency as part of its review of the scheme. The Committee was of the view that this power was too wide-ranging, given that it ultimately provided for any aspect of the scheme to be altered by secondary legislation. As an alternative, the Committee suggested that the Bill be amended to provide for order-making powers to allow the Department to only be able to alter time limits in the legislation following review of the Act. The Department accepted these points and drafted the appropriate amendments.

Introduction

1. The Food Hygiene Rating Bill (NIA 41/11-16) was referred to the Committee in accordance with Standing Order 33 on completion of the Second Stage of the Bill on 11 November 2014.

2. The Minister for Health, Social Services and Public Safety made the following statement under section 9 of the Northern Ireland Act 1998:

“In my view the Food Hygiene Rating Bill would be within the legislative competence of the Northern Ireland Assembly.”

3. The stated purpose of the Bill is to reduce the incidence of food-borne illness by making it mandatory for food businesses to display information to consumers about hygiene standards, based on inspections by district council food safety officers. The mandatory display of food hygiene ratings is intended to provide an impetus for businesses to achieve and maintain compliance with food hygiene law, as well as allowing consumers to make an informed choice regarding where they choose to eat or shop for food.

4. During the period covered by this Report, the Committee considered the Bill and related issues at 12 meetings. The relevant extracts from the Minutes of Proceedings for these meetings are included at Appendix 1.

5. At its meeting on 26 November 2014 the Committee agreed a motion to extend the Committee Stage of the Bill to 8 May 2015. The motion to extend was supported by the Assembly on 8 December 2014.

6. The Committee had before it the Food Hygiene Rating Bill (NIA 41/11-16) and the Explanatory and Financial Memorandum that accompanied the Bill. On referral of the Bill the Committee wrote on 12 November 2014 to key stakeholders and inserted public notices in the Belfast Telegraph, Irish News, and News Letter seeking written evidence on the Bill by 12 December 2014.

7. A total of 15 organisations responded to the request for written evidence and a copy of the submissions received by the Committee is included at Appendix 3.

8. Prior to the introduction of the Bill the Committee took evidence from the Food Standards Agency on 23 January 2013 and 5 February 2014. Following the introduction of the Bill the Committee took evidence from:

a. The Food Standards Agency on 26 November 2014;

b. The Chief Environmental Health Officers Group on 14 January 2015; and

c. Pubs of Ulster on 21 January 2015.

9. The Committee discussed the evidence received with the Food Standards Agency on 11 February 2015, 4 March 2015 and 15 April 2015.

10. The Committee carried out its clause by clause scrutiny of the Bill on 22 April 2015. At its meeting on 29 April 2015 the Committee agreed its report on the Bill and that it should be printed.

Consideration of the Bill

Background

11. The Food Hygiene Rating Scheme has been operating in Northern Ireland on a voluntary basis for over two years, providing a simple numerical rating, displayed by way of a sticker placed in a prominent position in the premises of the food business. The scheme also operates in England and Wales, though the Welsh scheme is mandatory.

12. The relevant statistics give reasonable cause for concern, highlighting a surprisingly high number of instances of food-borne illness. On average, there are around 48,500 cases of food-borne illness in Northern Ireland each year, 450 of which result in hospitalisation, and there are up to 20 deaths. There is also an associated cost to the economy of £83 million.

13. Although the voluntary scheme has been deemed generally successful, only 50% of businesses are choosing to display their rating. This figure drops considerably among businesses with lower ratings (zero, one, or two). At the time of a Committee briefing in January 2013, it was 22% for those businesses, and this had further dropped to 13% by the time of a further Committee briefing in February 2014.

14. Therefore, the evidence is clearly showing that a significant number of businesses with lower ratings are not voluntarily choosing to display them. The aim of this Bill is to reduce the incidence of food-borne illness by making it mandatory for food businesses to display information to consumers about hygiene standards, based on inspections by district council food safety officers. The mandatory display of food hygiene ratings is intended to provide an impetus for businesses to achieve and maintain compliance with food hygiene law, as well as allowing consumers to make an informed choice regarding where they choose to eat or shop for food.

15. The Bill will introduce a mandatory display scheme for food business establishments. It also contains provisions for businesses to appeal a rating or to a request a re-rating. Provisions in the Bill will also allow for fixed penalty notices to be issued for a number of offences, including that of failing to display a valid hygiene rating sticker.

16. The Bill has 20 clauses and one Schedule.

Key issues

17. To inform itself of the key issues in relation to the Bill, the Committee took written and oral evidence from a range of stakeholders. It also held a number of oral evidence sessions with Food Standards Agency officials, who provided additional information and clarification on the points raised in the submissions. The negotiations on the major issues regarding the Bill, and their outcome, are detailed below.

Notification and publication – Clause 2

18. Clause 2 sets out the arrangements for councils to notify food business operators of their rating, for councils to notify the Food Standards Agency of ratings, and for the Food Standards Agency to publish ratings on its website.

19. The councils were concerned about the requirement for them to forward certain information to businesses as part of the notification of the rating. Councils made the point that they send some of the information specified in Clause 2(3) well in advance of the notification of the rating, and they wanted the Clause to recognise this. The Food Standards Agency accepted this point and proposed an amendment to Clause 2(3) to allow for some of the information to be provided at an earlier stage, and the remainder to be provided within the 14 days as part of the notification of the rating. The Committee was content with the Food Standard Agency’s rationale and this amendment to Clause 2(3).

20. Food businesses pointed out that the Bill did not contain a timescale within which councils must inform the Food Standards Agency of a rating. Businesses advised that from experience it could take up to two and half months between an inspection and the rating being published on the Food Standards Agency website. For that period, this means that the Food Standards Agency website could be displaying an out of date rating which is either detrimental to a business which has improved its rating, or on the other hand, which is giving a false impression to consumers where a rating has fallen.

21. The Food Standards Agency recognised that this was an issue and proposed an amendment to Clause 2(4) to require councils to inform the Food Standards Agency of a rating with 34 days. The Committee was content with the Food Standard Agency’s rationale and this amendment to Clause 2(4).

22. Food businesses also pointed out that the Bill did not contain a timescale within which the Food Standards Agency must publish a rating on its website. Again the Food Standards Agency recognised that this was an issue and proposed an amendment to Clause 2(5) to require it to publish a rating on its website within 7 days after the end of the appeal period. The Committee was content with the Food Standard Agency’s rationale and this amendment to Clause 2(5).

Appeal – Clause 3

23. This Clause sets out the arrangements for food business establishments to appeal against the rating. Pubs of Ulster argued that businesses are reluctant to use an appeals process, because of an unwillingness to challenge council officers. They stated:

‘However, to appeal it is a hard thing to do for many in our industry, so they will just take what they are given. They do not want to be seen to be challenging someone who — as one of the terms you hear goes — could get you in the long grass. They do not want to call such a person into question. So, that leaves people settling for whatever score they get because, if they appeal it, they will be getting into a whole confrontational situation’ (Oral evidence, 21 January 2015, Appendix 2).

24. Pubs of Ulster were in favour of a ‘grace period’ being introduced to allow businesses to rectify any issues identified during the inspection. They explained:

‘What we would like to see, and where we would like to come from on this, is working together. We believe that the inspection process should come with an incentive to improve, along the lines of a visiting environmental health officer (EHO) coming along and saying: “You are a 3 rating and, if you do A, B and C, you could be a 4 rating. You have got a period of grace of six weeks: go for the 4 rating”. This would encourage businesses to improve; this is working together. There is no confrontation; it would be more a case that, “if I want to keep in, I will do those things”. There would be an incentive to drive on while, in the meantime, keeping your current score’ (Oral evidence, 21 January 2015, Appendix 2).

25. The Food Standards Agency’s response to the view put forward by Pubs of Ulster was that it was opposed to the idea of a ‘grace period’, because they argued that it goes against the very purpose of the scheme which is to encourage self-compliance by businesses. If businesses were allowed a grace period to fix issues, there would be no incentive for them to continually maintain high hygiene standards. The Food Standards Agency also made the point that once the scheme becomes mandatory, it is more likely that businesses will make use of the appeals process if they feel their initial rating was not correct.

26. The Committee believed there was merit in the arguments put forward by both Pubs of Ulster and the Food Standards Agency. However, the Committee recognised that the Bill does contain a right to a re-rating, and that the period in which a business can request a re-rating has been reduced from 6 months (under the voluntary scheme) to 3 months under the proposed mandatory scheme. This will allow businesses to make fairly swift improvements in order to achieve a higher rating. Given that the Bill does contain a provision for re-rating, and the fact that one of the key aims of the legislation is to encourage self-compliance, the Committee came to the view that the introduction of a ‘grace period’ would not be appropriate.

Right of reply – Clause 5

27. This Clause sets out the arrangements for a food business establishment to make a written reply in relation to its rating, for publication on the Food Standard Agency’s website. The purpose of the reply is to allow establishments to explain to customers any actions they have taken to improve hygiene standards, or any particular circumstances at the time of inspection that might have affected the rating.

28. Questions were raised in relation to Clause 5(2)(b) and (c) which give councils the power to edit representations before forwarding them to the Food Standards Agency or to refuse to send them to the Food Standards Agency in any form. The Committee was concerned that these arrangements would mean that the Food Standards Agency, as the ultimate owners of the scheme, would not be aware when representations had been edited, or when councils had decided not to send them on. As a result, the Food Standards Agency would not be aware of any patterns emerging in relation to particular councils.

29. The Food Standards Agency explained that councils would only edit a representation or refuse to send it on if it contained material that was inaccurate or defamatory. The grounds on which a council could take one of these two courses of action will be set out in guidance accompanying the Bill. Furthermore, the Food Standards Agency advised that it has the power to audit councils in terms of how they are operating the food hygiene rating scheme. Given those reasons and safeguards, the Committee agreed that it was content with the Food Standards Agency’s approach to right of reply.

Duty to display rating and to provide information about a rating – Clause 7 & Clause 8

30. Clause 7(1) of the Bill sets out the duty for food business operators to display a valid rating sticker, in a location and manner to be specified by the Department in regulations. The Food Standards Agency advised the Committee that its intention is that businesses will only be required to display a physical sticker (made of plastic) at the physical location of their premises. Clause 8(1) sets out the duty for food business operators to verbally inform customers of their rating on request. This provides for people with visual impairments who are at the premises, and for people making a telephone order or enquiry.

31. The Committee was concerned that the Food Standards Agency does not intend that the rating should be displayed on businesses’ websites in certain circumstances. The Committee was of the view that given customers can place orders for food through websites, those websites should display the business’s rating. It drew a distinction between websites which simply advertise a business’s existence (e.g. display a picture of the restaurant, provide details of the menu, provide a telephone number for bookings or phone orders) and those websites which allow for the direct ordering of food online, either for collection or delivery.

32. In relation to those types of transactions (where customers do not visit the physical location of the premises or talk to someone over the telephone before placing an order), the Committee believed that customers should be able to have sight of the business’s rating on the website through which the transaction is made, or alternatively be provided with a link to the Food Standards Agency’s website (the Food Standards Agency’s website contains ratings for all food business establishments in Northern Ireland). In relation to websites which allow online ordering from a range of businesses, the Committee believed that the website should provide a link to the Food Standards Agency’s website.

33. The Food Standards Agency advised the Committee that it had given consideration to this issue, but had come to the view that it would not be viable for a range of reasons. The Food Standards Agency’s aim is for the mandatory scheme to be as resource-neutral as possible, and they argued that to introduce a requirement in relation to businesses’ websites would introduce additional costs for businesses, and also for councils in terms of policing compliance. It also stated that the Bill was designed to fill a gap in the current voluntary scheme by requiring display of a rating at the business’s premises and pointed out that ratings were already available online on its own website. The Food Standards Agency advised that this issue had been explored in Wales but due to the complexities involved, it has not been progressed there.

34. The Food Standards Agency initially attempted to address the Committee’s concerns by proposing an amendment to require the Food Standards Agency to promote the scheme. While the Committee had no issue with this proposed amendment, it did not believe that it addressed Members’ concerns in relation to access to ratings on websites used for ordering food.

35. The Committee asked the Food Standards Agency to provide more detail on the challenges associated with the Committee’s proposal, in terms of the experience in Wales. The Food Standards Agency stated that there were a range of difficulties including the arrangements which would be required for multinational companies who operate across a number of jurisdictions, and the location within a website of the rating. Officials stated:

‘During the consultation in Wales, they put forward comments that the Welsh Government could be exceeding their powers by introducing a requirement that would apply to companies with websites that related to food premises outside Wales as well as companies or businesses in Wales. The same question would need to be answered for Northern Ireland. When ordering food online, the transaction may not take place in the jurisdiction of Northern Ireland. Would the requirements of the Act in Northern Ireland extend in those circumstances? On what page would the rating appear for it to be useful? Some websites are very large and have many, many pages, and it would not be proportionate to expect them to put their rating on every page. So, where exactly, even on a food business’s own website, are we talking about?’ (Oral evidence, 4 March 2015, Appendix 2).

36. However, in the Committee’s view, many of these challenges relate to having a blanket requirement for all websites linked in some way to food businesses having to display a rating. The Committee’s proposal was much more limited in nature, in that it believed that only those websites which allow for the direct ordering of food online, either for collection or delivery should be required to display a rating or provide access to the ratings on the Food Standards Agency’s website.

37. Furthermore, the Committee was not convinced by the Food Standards Agency’s argument that this requirement would require additional resources from councils in terms of policing compliance. The Food Standards Agency had stated:

‘The other really big challenge that we see for online publication is enforcement. It would be resource-intensive for district council officers to police. In the first instance, they would need to determine whether a business had an online presence. As I said, an official website could have multiple pages, and it would require some resource to check through all the pages to ascertain whether the requirement was being complied with. We know that district councils would not have the resources to carry out those additional checks. In fact, we would not want that to divert from their planned programmes and the work that they do in dealing with poorly complying businesses. Unless significant resources are put into policing the requirement, there is the potential for many online ratings to be out of date, which could, ultimately, undermine the scheme’ (Oral evidence, 4 March 2015, Appendix 2).

38. However, Committee members made the point that businesses could be required to provide a link to the Food Standards Agency’s website, rather than having to display their own rating directly. This would deal with the issue of ratings becoming out of date. Furthermore, in terms of the duty under Clause 8 for businesses to verbally inform customers of their rating on request, the councils advised the Committee that they would not be actively policing compliance:

‘If we got a complaint, we would probably look at our options for enforcing. The fact that it is there and we are dealing with businesses and telling them, “This is a requirement, and you need to address it” is a massive plus for people who are impaired. The fact that it is an offence gives us the option that, if we get a complaint or we think that somebody is not compliant, we can look at the best strategy to enforce that clause. That would give consideration to the option of a test purchase-type exercise’ (Oral evidence, 14 January 2015, Appendix 2).

39. Therefore, the Committee would expect that councils could take a similar approach to the enforcement of the display of or access to ratings on websites which allow for the ordering of food.

40. The Food Standards Agency had also argued that the Bill was designed to fill the gap in the current voluntary scheme by making it mandatory for businesses to display their rating at their establishment. However, the Committee noted that Clause 8 goes further than this, and is providing an additional avenue for consumers to access the rating of an establishment, namely through a telephone enquiry.

41. The Food Standards Agency then proposed to deal with this issue as part of the review of the Act. Clause 14 requires the Food Standards Agency to review the Act within three years of it coming into operation. They suggested that Clause 14 could be amended to require, as part of the review of the Act, consideration of whether it would be feasible to impose on a food business the requirement to publish online ratings relating to the establishment. If the Food Standards Agency decided that this was feasible, it would bring in regulations to impose this requirement. However, the Committee’s view was that this proposal would simply mean that consideration of the issue was deferred for three years. Furthermore, it offers no guarantees that following review of the Act, businesses which allow for ordering of food online would be required to display or provide access to the rating.

42. The Food Standards Agency then proposed an alternative amendment to provide regulation making powers for the Department to require food businesses supplying food by means of an online facility to ensure that the establishment’s food hygiene rating was provided online. The manner of display would be specified in the regulations and could include providing a link to the Food Standards Agency’s website. The amendment also set out that failure to comply with the duty would be an offence under Clause 10 with the possibility of a fixed penalty notice being served under Clause 11. The Food Standards agency advised that this power will be exercised in the first set of regulations drafted under the Act.

43. The Committee welcomed the Food Standards Agency’s change in position on this matter. However, the Committee was concerned that the proposed amendment did not contain a timescale in which this regulation making power would have to be exercised. It was concerned that other priorities could mean that there was a delay in bringing the regulations forward. Therefore, the Committee requested a written Ministerial assurance that the power would be exercised as part of the first set of regulations made after the Act comes into operation. The Minister subsequently provided that assurance to the Committee, and the Committee agreed that it was content with the proposed amendment.

Review of operation of the Act – Clause 14

44. This Clause requires the Food Standards Agency to review the operation of the legislation within three years of its commencement. The Bill as drafted allows the Department to amend the legislation to implement recommendations produced by the Food Standards Agency as part of its review of the scheme.

45. The Committee was concerned that these powers which are contained in Clause 14(8), were too wide-ranging. It took the view that this would be an inappropriate delegation of powers and would set a dangerous precedent. As an alternative, the Committee suggested that the Clause be amended to provide for order-making powers to allow the Department to only be able to alter time limits in the Bill following review of the Act. The Committee believed that these powers should be subject to draft affirmative procedure – rather than negative resolution as envisaged in Clause 18(6).

46. The Food Standards Agency accepted the Committee’s position and proposed an amendment to omit Clause 14(8), and consequentially Clause 18(4)(c) and Clause 18(6).

47. The Food Standards Agency also proposed a new Clause (“Adjustment of time periods”) which will allow the Department to amend the time periods specified in the Act by substituting a different time period. In addition, an amendment was also proposed to Clause 4 to potentially limit the number of occasions a business can request a re-rating. All of these order-making powers would be by means of draft affirmative procedure.

48. The Food Standards Agency also proposed an amendment to Clause 14 to require the Department to indicate after having conducted a review, whether it intends to exercise any of those draft affirmative order-making powers, and if so, to explain why, and if not, why not. The Committee was content with the Food Standard Agency’s response to these issues and the amendments to the relevant clauses.

Summary of Evidence

49. In considering the Bill, the Committee took account of the written and oral evidence received from the range of stakeholders who responded to its call for evidence. Below is a summary of that evidence.

Clause 1: Food hygiene rating

50. There was general support for the mandatory rating of food business establishments. However, concerns were raised by the Chief Environmental Health Officers Group and the Co-operative Food as to what constitutes an inspection for rating purposes. These organisations made the point that the Food Law Code of Practice encourages the removal of lower risk premises from inspection programmes or the use of lighter touch interventions which would not collect sufficient information to produce a rating. Therefore, they were concerned that for some premises there will be no mechanism to renew their rating and over time it will become outdated.

51. In terms of the definition of a food business establishment, the consumer organization, Which, was of the view that the legislation should be more wide-ranging, and also cover the business to business supply of food.

Clause 2: Notification and publication

52. The Chief Environmental Health Officers Group expressed concerns regarding the requirement for councils to notify a business of its rating within 14 days. Their view was that this timescale should be specified in statutory guidance, rather than in the Bill to allow for occasions when councils would not be able to meet the deadline because of another emergency issue arising.

53. In terms of the information which councils must provide to businesses, the Chief Environmental Health Officers Group stated that it may not be possible or appropriate to provide all the information stipulated within the timescale. Dr Richard Hyde suggested that councils should also be required to send businesses information on their obligations to display their rating and to provide information verbally to customers, and the penalties for not meeting these obligations.

54. The Co-operative Food drew attention to the fact that this clause does not contain any timescales within which a council should inform the Food Standards Agency of a business’s rating or within which the Food Standards Agency should publish the rating on its website. It suggested those timescales should be 14 days and seven days respectively. The Co-operative Food stated that currently it can take two and a half months between an inspection and publication of the rating on the Food Standards Agency’s website. This means that the Food Standard Agency website could be displaying an out of date rating which is either detrimental to a business which has improved its rating, or on the other hand, giving a false impression to consumers where a rating has fallen.

55. The rating sticker itself was the subject of a number of comments, in terms of its the design and the information provided on it. The appropriateness of a plastic sticker was questioned by the Northern Ireland Hotels Federation, particularly in relation to high end establishments. Pubs of Ulster proposed that the stickers should be colour-coded to differentiate between different types of establishments. The Chief Environmental Health Officers Group suggested that individual council branding should be applied to the sticker, to recognize the role councils play in the scheme and to alert consumers as to the appropriate council they should contact with any complaints or concerns.

Clause 3: Appeal

56. There was broad support for the right to appeal a rating and that this process should be clear and transparent. However, Pubs of Ulster suggested that instead of an appeal process, there should be a ‘grace period’ to allow businesses to rectify any issues identified during the inspection. Their view was that businesses are reluctant to use the appeals process as they do not want to be seen to be challenging the Environmental Health Officer, and fear it may count against them in the future.

57. There were some concerns raised by the councils around the potential cost implications in terms of ensuring the independence of the appeal, but the Chief Environmental Health Officers Group concluded that this could be managed within the new council structures.

Clause 4: Request for re-rating

58. There was general support for the right of businesses to request a re-rating. However, the Chief Environmental Health Officers Group did express some concerns that the right to a re-rating within 3 months may encourage merely temporary improvements. Furthermore, they were concerned that the lack of a limit in terms of how many times a business can request a re-rating may lead to resource implications for councils. Their suggestion was that businesses should be limited to one re-rating every six months.

59. A contrary submission from The Co-operative Food suggested that the 3 month time frame should be reduced to 2 months, although it was accepted this may not be feasible, due to constraints on council resources.

60. The Chief Environmental Health Officers Group were of the view that the requirement to notify a business of its rating within 14 days should be contained in statutory guidance, rather than in the Bill.

61. They also expressed concern over how the term ‘inspection’ is used in this clause, and stated that it has a different meaning than how the term ‘inspection’ is used in clause 1.

62. The Co-operative Food was supportive of a common fee to be set for re-rating which would apply across all councils. They also made the point that experience in Wales indicates it is very rare for businesses to appeal a rating. They are more likely to want to make good any failings and receive a re-rating as soon as possible. Therefore, requiring businesses to wait until the appeal period is over (21 days), before being able to request a re-rating is actually a disincentive to making improvements promptly.

Clause 5: Right of reply

63. There was general support of the right of businesses to reply. However, the Co-operative Food queried the provision to allow councils to edit or refuse to send representations to the Food Standards Agency. Dr Richard Hyde queried whether decisions to edit replies or refusals to send them to the Food Standards Agency might be challenged through judicial review.

64. Ballymoney Borough Council objected to the lack of a publication deadline for the Food Standards Agency to publish any representations.

Clause 6: Validity of rating

65. The Chief Environmental Health Officers Group objected to the fact that this clause as drafted gives businesses the choice of whether to display its old or new rating during the period of an appeal. They were of the opinion that a business awaiting the outcome of an appeal should be forced to display the rating being appealed or a sticker advising a new rating is pending. Their view was that where business standards have dropped significantly, being permitted to display the previous rating would mislead consumers.

66. Both Dr Richard Hyde and The Co-operative Food expressed technical concerns regarding the definition of ‘change of ownership’ contained in Clause 6(2)(a). The Co-operative Food was concerned that businesses could use this as a loophole to avoid displaying a poor rating.

Clause 7: Duty to display rating

67. There was general support for the requirement to display the rating sticker in a prominent place, to allow customers to make a decision before entering the premises. Practical issues were raised, such as where a sticker would be displayed in a hotel which could have multiple food areas, and the need to ensure that all businesses were supplied with a valid sticker before the legislation comes into force.

68. The Consumer Council stated that it would support a requirement for the rating to be displayed on a company website where applicable.

Clause 8: Duty to provide information about rating

69. While there was support for this clause, concerns were raised as to how councils would enforce it. The Chief Environmental Health Officers Group stated that the existence of the offence of not providing verbal information to customers was a useful tool, and that if they received complaints that businesses were not complying, they would look to ways of tackling that, including the possibility of test purchasing.

70. Fermanagh District Council and Dr Richard Hyde suggested that further clarification is required on the definition of a ‘relevant employee’.

Clause 9: Enforcement and powers of entry

71. The Committee did not receive any comments in relation to Clause 9.

Clause 10: Offences

72. Different opinions were received on the matter of fines. The Northern Ireland Hotels Federation stated that fines are not in the interest of consumers, whereas Which suggested that there should be strict penalties to act as a deterrent.

73. Dr Richard Hyde suggested extending the Clause to cover employees who intentionally provides false information, and to amending the clause to make it explicit that it is not an offence to deface a rating sticker in the process of removing it.

Clause 11: Fixed penalty

74. There was a single response received from Which on the issue of fixed penalties, repeating the assertion that they should be strict enough to act as a deterrent.

Clause 12: Provision of information for new business

75. The Chief Environmental Health Officers Group and Fermanagh District Council both stated that it would not be appropriate to require councils to provide new businesses with information within 14 days. They made the point that different councils communicate with businesses in different ways, and some flexibility should be permitted. They suggested that if required, the 14 day time limit should be covered in statutory guidance.

76. The Co-operative Food suggested that councils should be required to conduct an initial inspection of any new food business within a certain period of them commencing trading.

Clause 13: Mobile establishments

77. The only response received in relation to this Clause was from the Chief Environmental Health Officers Group in support of the requirement to carry out inspections of mobile businesses during operating hours.

Clause 14: Review of operation of Act

78. The Chief Environmental Health Officers Group believe that this Clause should be widened to specify that the review consider whether businesses are complying with the scheme, whether food-borne illness has decreased, and what the resource burden of the legislation has been on councils. Dr Richard Hyde suggested that the Clause should also specify that the operation of sections 10 and 11 of the Act should be part of the review, particularly whether fixed penalty notices are working.

79. Fermanagh District Council stated that more clarification is required in terms of how councils are expected to keep the operation of the Act under review and what information they are expected to collect.

Clause 15: Guidance

80. The only response received on Clause 15 was from the Chief Environmental Health Officers Group who suggested the guidance should be ‘definitive, clear and timely’.

Clause 16: Interpretation

81. The Chief Environmental Health Officers Group believed the Clause should include definitions for ‘inspection’ for both rating and re-rating purposes.

Clause 17: Transitional Provision

82. The Chief Environmental Health Officers Group stated that historical data should be used to produce ratings for premises, and were supportive of transitional provisions to facilitate this.

Clause 18: Regulations and Orders

83. The Chief Environmental Health Officers Group welcomed the option of making regulations and orders to make improvements or changes to the scheme as required.

Clause 19: Crown Application

84. The Chief Environmental Health Officers Group was supportive of the Clause.

Clause 20: Short Title and Commencement

85. The Chief Environmental Health Officers Group made the point that the timing of commencement will be crucial, given the current local government reform.

Schedule

86. Two responses were received on Section 4 of the Schedule. The Chief Environmental Health Officers Group and Fermanagh District Council both agreed that £200 is an appropriate level for a fixed penalty.

Additional Comments

87. The Committee received several comments which were not directly related to any of the Clauses of the Bill.

88. The Northern Ireland Hotels Federation suggested that food hygiene ratings are not particularly relevant to consumers, who use social media sites in terms of making choices about eating out.

89. The Northern Ireland Hotels Federation, Pubs of Ulster and Which all made the point that a public information campaign will be required to make consumers aware of the mandatory scheme.

90. The Northern Ireland Hotels Federation and Pubs of Ulster expressed concern that a mandatory scheme will place increased costs and bureaucracy on businesses.

91. The issue of consistency was raised by a number of respondents with Which, Pubs of Ulster and the Chartered Institute of Environmental Health all expressing a concern that it was important to ensure a level playing field across all council areas.

92. The Co-operative Food suggested that the Bill should contain sanctions for councils who do not meet the timeframes set out in the Bill.

93. The Chartered Institute of Environmental Health made the point that other areas are of higher priority areas than food hygiene, such as food standards, food fraud and food sustainability and security.

Clause by Clause Consideration of the Bill

94. The Committee undertook its clause by clause scrutiny of the Bill on 22 April 2015 – see Minutes of Evidence in Appendix 2.

Clause 1: Food hygiene rating

95. The Committee indicated it was content with the Clause as drafted.

Clause 2: Notification and publication

96. The Committee indicated it was content with the Clause as drafted subject to the proposed amendments agreed with the Department to allow councils to provide some information to operators of establishments at an earlier date than the notification of the rating; to require councils to inform the Food Standards Agency of a rating with 34 days, to require the Food Standards Agency to publish a rating online within 7 days after the end of the appeal period; to define the end of the appeal period; and to allow for the potential of different types of stickers, such as those with council branding applied.

Clause 3: Appeal

97. The Committee indicated it was content with the Clause as drafted subject to the proposed amendments agreed with the Department to require councils to inform the Food Standards Agency of the outcome of an appeal; and to require the Food Standards Agency to publish online any new rating as a result of the appeal within 7 days.

Clause 4: Request for re-rating

98. The Committee indicated it was content with the Clause as drafted subject to the proposed amendments agreed with the Department to require councils to inform the Food Standards Agency of the outcome of a re-rating; to require the Food Standards Agency to publish online any new rating as a result of the re-rating within 7 days after the end of the appeal period; and to allow the Department by order to limit the number of occasions a business can request a re-rating.

Clause 5: Right of reply

99. The Committee indicated it was content with the Clause as drafted subject to the proposed amendments agreed with the Department to require the Food Standards Agency to publish representations online within 7 days; and to link the publication of representations to the publication of the rating to which it refers.

Clause 6: Validity of rating

100. The Committee indicated it was content with the Clause as drafted subject to the proposed amendment agreed with the Department given that the “end of the appeal period” is now covered in the amendments to Clause 2.

Clause 7: Duty to display rating

101. The Committee indicated it was content with the Clause as drafted subject to the proposed amendment agreed with the Department to provide for a regulation making power to require businesses supplying food by means of an online facility to ensure that the establishment’s food hygiene rating is provided online.

Clause 8: Duty to provide information about rating

102. The Committee indicated it was content with the Clause as drafted.

Clause 9: Enforcement and powers of entry

103. The Committee indicated it was content with the Clause as drafted.

Clause 10: Offences

104. The Committee indicated it was content with the Clause as drafted subject to the proposed amendment agreed with the Department given the amendment to Clause 7, which will mean that a failure to comply with the duty under Clause 7 would be an offence.

Clause 11: Fixed penalty

105. The Committee indicated it was content with the Clause as drafted.

Clause 12: Provision of information for new businesses

106. The Committee indicated it was content with the Clause as drafted subject to the proposed amendment agreed with the Department to allow councils the flexibility to provide information to businesses at different stages of the registration process.

Clause 13: Mobile establishments

107. The Committee indicated it was content with the Clause as drafted.

Clause 14: Review of operation of Act

108. The Committee indicated it was content with the Clause as drafted subject to the proposed amendments agreed with the Department to limit and to specify more precisely the Food Standards Agency’s powers to make changes to the Act following review; and to require the Food Standards Agency to promote the food hygiene rating scheme.

Clause 15: Guidance

109. The Committee indicated it was content with the Clause as drafted.

New clause: Adjustment of time periods

110. The Committee indicated it was content with the new Clause as drafted by the Department to allow the Department to amend time periods specified in the Act by substituting a different time period; and to allow councils and the Food Standards Agency flexibility around meeting various timescales in the Act because of Christmas closure of premises and because of “exceptional circumstances”.

Clause 16: Interpretation

111. The Committee indicated it was content with the Clause as drafted subject to the proposed amendment agreed with the Department in relation to the definition of the “end of the appeal period”.

Clause 17: Transitional provision

112. The Committee indicated it was content with the Clause as drafted.

Clause 18: Regulations and orders

113. The Committee indicated it was content with the Clause as drafted subject to the proposed amendments agreed with Food Standards Agency as a consequence of the amendments made to Clause 7 and Clause 14, and to specify how subordinate legislation will operate in relation to the new clause on Adjustment of time periods.

Clause 19: Crown application

114. The Committee indicated it was content with the Clause as drafted.

Clause 20: Short title and commencement

115. The Committee indicated it was content with the Clause as drafted.

Schedule: Fixed Penalties

116. The Committee indicated it was content with the Schedule.

Long Title

117. The Committee indicated it was content with the Long Title of the Bill.

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