EMERGENCY PROHIBITION NOTICES AND ORDERS (Hansard, 7 June 1990)

§ Mr. Robert Hicks (Cornwall. South-East)
I beg to move amendment No. 15, in pagt 10. leave out lines 21 to 25.

§ Mr. Speaker
With, this we may discuss the following amendments: No. 16, in page 10, line 27, leave out 'such an officer' and insert `an authorised officer of an enforcement authority'. No. 17, in page 10, line 34, at end insert `and any person to whom such notice is given shall, if he attends before the court or sheriff upon the application, be entitled to be heard and to call witnesses'.

§ Mr. Hicks
The atilendment stands in the name of 25 right hon. and hon. Members and -Myself. I declare an interest, in that for the past 15 [...] have acted as the parliamentary adviser to the [...] Restaurants and Caterers Association. I also [...] a constituency in which the tourist [...] a significant contribution to the local [...].
891 The amendments relate to the proposed procedures outlined in clause 12 for dealing with food business premises if it is suggested that they present an imminent risk of danger to health.
We are all conscious of the need for a high level of food safety and high standards of hygiene. The public demand that and Parliament is right to respond. The small minority of dirty caterers must be eliminated. They endanger the health of the nation and they do their industry no good whatever.
However, I, along with a number of my hon. Friends, question the envisaged change in the procedures which is designed to secure the objectives that we all seek. Under existing legislation, local authority enforcement officers have to obtain a court order before a food business may be closed. That is completely consistent with long-established legal procedures.
However, clause 12 seeks to reverse those procedures. Under the proposals, an enforcement officer may serve an emergency prohibition notice on the proprietor of a food business if he is satisfied that it represents an imminent risk or a danger to health. Subsequently, that officer must apply to the magistrates court within three days for an emergency prohibition order and he must give the proprietor at least one day's notice of his intention to do so. The proprietor will then have the right to appear in court and to call witnesses to contest the application.
I accept that if the enforcement officer does not make the application to the court following the issuing of the initial notice, or if the court refuses to make an order confirming the prohibition notice, the local authority has to compensate the proprietor for any loss that he has sustained as a consequence of complying with the closure notice. But how is the level of that compensation to be determined? It would clearly be inadequate if the figure were simply to be on the basis of loss of earnings during the three days in question. In practice, there could be longer-term losses. If premises have to be closed, there will be adverse local publicity. For example, the enforced closure of, let us say, Stephen's bistro could have long-term effects on that business.
In a parliamentary answer dated 5 April 1990 the Department of Health provided figures which show that over the past decade the percentage of successful prosecutions for breaches of the food hygiene regulations in the hotel and catering industry varied from 94 per cent. in 1980 and 1987–88 to 75 per cent. in 1986–87. Put another way, the average annual rate of unsuccessful prosecutions over the past 10 years had been one in 10 and in 1986–87 it was one in four. I think that my hon. Friend the Minister will agree that that gives rise to genuine anxieties and emphasises the need for a second opinion from the magistrates before an establishment may be closed down.
10.30 pm
My hon. Friend the Minister stated that it is his intention to establish an implementation advisory committee on codes of practice designed to produce even standards of enforcement of the Bill's provisions. If he is not prepared this evening to reverse the proposed procedures—and in his letter to me of 3 May my hon. Friend's predecessor as Minister acknowledged that 892 environmental health officers will be given strong powers, which he described as a very powerful weapon—the role of the advisory committee will become even more critical.
It is essential that there is consistency of application and important that the circumstances in which the powers might be used are clearly and tightly drawn. I hope that my hon. Friend the Minister will be able to give me such a reassurance this evening.
My hon. Friend's predecessor also indicated that he would be happy to include the British Hotels, Restaurants and Caterers Association in the consultation process for determining the codes of conduct. The association welcomes that, but would feel far more confident if it was represented on the advisory committee itself—as the Institution of Environmental Health Officers will be. I trust that my hon. Friend the Minister will give that request sympathetic consideration.
All that the amendments would achieve is that the proprietor of a food business will be given an opportunity to present his case to a magistrates court before his business can be closed.

§ Mr. Dorrell
My hon. Friend is understandably concerned about the draconian power included in clause 12 to close a business without reference to the courts. I acknowledge that it is an extremely severe power, and we must ensure, as my hon. Friend said, that it is used only in tightly controlled circumstances.
Under clause 12, an environmental health officer may serve an emergency prohibition notice on the owner of an insanitary food business if it presents an imminent—and that is the key word—risk to health. The prohibition notice takes effect immediately, but the EHO must apply to a magistrates court, or to a sheriff court in Scotland, within three days for an emergency prohibition order, and must give the proprietor one day's notice of his intention to do so.
My hon. Friend's amendment would insist that the environmental health officer applies to the court before the notice comes into effect. I shall seek to explain to the House why that is not the correct way, and why it is important that the power contained in clause 12 proceeds on to the statute book.
If any EHO does not apply to the court within three days the notice lapses, and then the right to compensation arises. If the EHO applies, the proprietor will have the right to appear in court and to call witnesses to contest the application. If the court refuses to make an order confirming the prohibition, the authority is required to pay compensation. If the notice does not for any reason convert itself into an order, the owner of the food business will be entitled to compensation.
My hon. Friend asked how the compensation will be calculated. Clause 12 provides for compensation for "any loss suffered." Any dispute will go to arbitration, and if the parties cannot agree on an arbitrator, it will fall to a High Court judge to appoint one under the conditions of the Arbitration Act 1894. The key point is that compensation will be payable if it later transpires that the power was used in circumstances that a court would not support.
The second point to emphasise is that the power is necessary because we are talking only about circumstances where there is an imminent risk to health. Also, in most circumstances, where an environmental health officer believes that there is an imminent risk to health, he will not need to use these powers because experience suggests that 893 he will be able to get voluntary agreement from the operator of the business. However, occasionally, when the operator of the business will not agree, the EHO must have the power to take the necessary action to close an insanitary business if there is an imminent risk to health.
My hon. Friend the Member for Cornwall, South-East (Mr. Hicks) also asked about the details of the implementation advisory committee, which I referred to in the previous debate. My hon. Friend the Member for Kettering (Mr. Freeman) announced on 23 November last year that we would be setting up that committee to advise on statutory codes of practice for enforcement officers, designed to ensure even standards of enforcement throughout the country. My hon. Friend the Member for Cornwall, South-East has recognised that that committee and the codes of practice that it will issue are very relevant to the proper concerns that owners of food businesses have about the implications of the clause.
The membership of the implementation advisory committee has now been decided, and consists of seven members nominated by local authority associations, two members nominated by the professional organisations most involved, and five representatives from the Government Departments most involved: the Ministry of Agriculture, Fisheries and Food, the Department of Agriculture and Fisheries for Scotland, and my Department.
My hon. Friend asked about the possibility of representation for people representing the hotel and catering industry, but I think that he will realise from the membership that I have announced that this is an internal committee, within the Government, which will clearly consult widely when exercising its powers. Indeed, it will produce draft codes which will be subject to consultation.
The committee will also consider some issues where input is needed from others who are not full members. In such instances the committee will be able to establish sub-groups to deal with particular issues, and they will be able to co-opt representatives of other organisations where that is appropriate.
My hon. Friend the Member for Cornwall, South-East also asked about the Committee's terms of reference. They will be to advise the Departments on draft codes of practice to be issued for consultation under section 41 of the Food Safety Bill—covering the execution and enforcement of the Act and regulations and orders made under it.
I hope that on the basis of the wide terms of reference given to the committee, the fact that it will issue codes of practice governing the exercise of powers under clause 12, and the other points that I have made, my hon. Friend will feel able to withdraw his amendment.

§ Mr. Hicks
I am grateful to my hon. Friend the Under-Secretary for his response and especially for his helpful remarks about the terms of reference and workings of the implementation advisory committee. In view of that, I beg to ask leave to withdraw the amendment.