§ 4.15 p.m.
§ The Paymaster General (Lord Belstead) rose to move, That the draft order laid before the House on 24th January 1991 be approved.
§ The noble Lord said: My Lords, the purpose of the order is to update food safety law in Northern Ireland to allow for greater consumer protection and to provide a sufficiently flexible system to cater for future developments in food technology. The order will do for Northern Ireland what the Food Safety Act 1990 will be doing for Great Britain.
§ The order will increase consumer protection by providing more effective powers of enforcement and by clarifying certain offences. It provides that it will be an offence to render food injurious to health. This largely re-enacts an existing offence under the Food (Northern Ireland) Order 1989 but it will now additionally apply to food which is in possession for sale.
§ The order creates a new offence of selling food which does not comply with food safety requirements —this is, food which has been rendered injurious to health, which is unfit for human consumption or which is so contaminated that it would not be reasonable to expect it to be used for human consumption. If enforcement authorities discover that part of a batch of food does not comply with food safety requirements, then the whole of the batch may be presumed not to comply unless the owner of the food proves otherwise. Again, this provision applies to food in possession for sale or in preparation for sale and under Article 8 enforcement authorities will have power to inspect, detain or seize food suspected of not complying with food safety requirements.
§ Article 9 of the order will introduce a system of legally enforceable improvement notices whereby, if an enforcement officer has reasonable grounds for believing that a food business fails to comply with food hygiene or food processing regulations, he may serve a notice on the proprietor requiring him to take measures to remedy the defects within a given period. Failure to comply with an improvement notice will be an offence.
§ Following conviction for an offence under food safety law, a court will be empowered to make a prohibition order (under Article 10) to close down 232 food premises which are not sanitary, to prohibit premises from being used for particular kinds of food businesses, to prevent the use of a piece of equipment or a particular process, or to prohibit a person from carrying on or managing any food business, on public health grounds. Where an enforcement officer is satisfied that the carrying on of a business involves a risk of injury to health, he may impose (under Article 11) an emergency prohibition notice stopping the operation of the business in its entirety or prohibiting a particular procedure or the use of a particular piece of equipment. Where an enforcement officer has imposed an emergency prohibition notice, he must apply to a court within three days for the issue of an emergency prohibition order.
§ Article 12 is a new provision permitting departments to make emergency control orders prohibiting commercial operations in respect of food, food sources or contact materials where it appears that such operations involve imminent risk of danger to health. Up to now, the Department of Health and Social Services in Northern Ireland has relied entirely on voluntary arrangements with manufacturers, wholesalers and retailers to have a hazardous food withdrawn from sale. One is talking about, for instance, a particular batch of food which because of the inspection procedure might suddenly be discovered to be a great hazard to health. The voluntary procedure involves media coverage to alert the public, and notification to district councils to ensure that the food is withdrawn from sale. I hope very much that those existing voluntary arrangements will continue. However, the power to order a food to be withheld or withdrawn from sale will now be available where co-operation is not forthcoming. There will be power for officials of the Department of Agriculture to issue emergency control orders in respect of foods which have been contaminated and have left an area designated under the Food and Environment Protection Act 1986.
§ The order re-enacts the offence of selling food not of the nature, quality or substance demanded by the consumer. The provision will apply to actual sales only where the sale is to the purchaser's prejudice. The type of offence covered can be foreign bodies in food, or food which is contaminated but perhaps not so contaminated as to make it unsafe for human consumption. In the case where it is unsafe for human consumption it will be dealt with under the earlier provisions on unsafe food.
§ Article 14 makes it an offence to label, advertise or present food in a false or misleading way. The existing offence under the current Food (Northern Ireland) Order is limited to the labelling or advertising of food.
§ The order also introduces wide-ranging and flexible regulation-making powers. These are necessary to provide the detailed controls needed on the composition, labelling and hygiene of food, residues in food, materials and articles in contact with food and to permit and control novel foods and processes.
§ Under Article 22 regulations will also require that food handlers should undergo compulsory hygiene training. In Article 18 powers will also be given to 233 require the registration or licensing of food businesses. Registration will apply generally and will ensure that district councils are aware of the existence and nature of any food business in their area. Licensing will be limited to businesses where novel foods are produced or novel processes carried out, and to milk producers and dairies. The regulation-making powers are supplemented by provisions to enable any European Community obligation to be implemented.
§ Certain of the regulation-making powers will, when appropriate, apply to food sources such as live animals. That will permit effective enforcement of provisions on antibiotic residues in animals or pesticide residues in foodstuffs. There is a general provision in Article 15 which puts that into effect. Those are the main provisions on enforcement and consumer protection.
Article 19 of the order also provides for the enforcement authorities—which are the district councils—to bypass the immediate offender and to take action against the real offender. An example would be where defective food might be purchased in a supermarket and the retailer would be the apparent offender and the first point of inquiry. It might become apparent that the manufacturer of the food was the real offender and that it was clearly not the fault of the retailer. Action could then be taken directly against the manufacturer. This "bypass" provision should be read together with a new defence in Article 20 whereby a person charged with an offence may prove that he,
took all reasonable precautions and exercised all 'due diligence' to avoid committing the offence".
There are circumstances in which a person may satisfy that defence; for instance, where a retailer buys goods under the brand name of the supplier. The retailer can be deemed to comply with the defence if he can prove that the offence was the fault of someone else and that he could not have known that an offence was being committed.
§ The remaining provisions of the order deal with the analysis of food, the necessary powers of entry and arrangements for prosecutions. It will be an offence under the order to obstruct an enforcement officer.
§ Enforcement of the order generally will be by authorised officers of district councils. To ensure uniform enforcement, power will be provided for the Department of Health and Social Services to issue codes o practice on the execution and enforcement of the legislation and to issue directions on specific steps to be taken to give effect to codes of practice. District councils will also be required to submit returns to the department.
§ It is recognised that the additional duties imposed on district councils under the order and the regulations will require greater resources for enforcement. Accordingly arrangements have been made for additional money for the 1991–92 financial year and indeed for future financial years. Additionally, under regulations district councils will be empowered to charge for training of food handlers and for certain enforcement functions. I am convinced 234 that the order will make a very real contribution to the protection of the consumer by ensuring that food is safe to eat. I commend it to the House.
§ Moved, That the draft order laid before the House on 24th January 1991 be approved.—(Lord Belstead.)
§ Lord Prys-Davies
My Lords, I thank the noble Lord, Lord Belstead, for his explanation of the purpose of this important legislation and for piloting the House through its main provisions. I confess that I have had the benefit of advice from my noble friend Lord Gallacher to whom we on these Benches look for guidance on food safety and agricultural matters, since I have no expertise in this field.
The Minister implied that the order mirrors the provisions of the Food Safety Act 1990 which operates on the mainland. It is not apparent from the Explanatory Note on page 47 that that is so. It would have been helpful if that signpost had appeared somewhere in the Explanatory Note. However, that is not meant as a criticism.
Some of the issues now before us were on the distant horizon when the noble Lord, Lord Lyell, was in charge of agriculture in Northern Ireland. Many of the questions which I then addressed to the Minister are as relevant today as they were at that time. I have about eight questions for the Minister. They seek information; they are not awkward questions.
Will the Minister indicate the breadth of the consultations which have taken place with the trade bodies and the consumer organisations in Northern Ireland on the order? As the order replicates the Food Safety Act 1990 to a considerable extent, we shall be interested to learn what consultations there were in Northern Ireland when the 1990 Act was on the drawing board at the Ministry of Agriculture, Fisheries and Food in London. Will the Minister inform us of the position in the years preceding the 1990 Act? Was Northern Ireland adequately consulted?
We welcome Article 22 which authorises the district councils and the Department of Agriculture to provide training courses in food hygiene for food handlers. Are any new arrangements being made by the district councils or the department for the provision of training?
I turn to the timetable for the implementation of the provisions of the order. Is it intended that, broadly speaking, the timetable will follow that of the mainland or is there likely to be a time lag? Whatever the timetable, can the Minister assure the House that it will be given full publicity so that all the Northern Ireland firms which will be affected will know in good time of the impending changes?
The Minister has explained that the order will be supported by codes of practice. I had not appreciated the fact that there will be more than one code. Legislation makes increasingly more use of codes of practice. Will the Minister tell the House what are the principal matters that will be covered by the codes? The question may be more complex than I had originally anticipated because I had thought that there would be only one code of practice.
235 Is the Minister satisfied that when the order and the codes of practice are in place they will be properly enforced in an even-handed way? He referred to the officers who will be required to ensure that enforcement is executed. Are enough trained officers and public analysts available to execute enforcement? Are there shortages of such skills in Northern Ireland?
I was glad to hear the Minister confirm that extra money will be made available to Northern Ireland to enable it to meet the costs of the additional burden of enforcing the order. I understand that when the mainland legislation was passed in 1990 about £30 million of extra money was made available. Can the Minister tell the House how much extra funding will be made available to help Northern Ireland meet the costs of enforcement and the additional training required under Article 22?
Finally, I understand that a major area of controversy under the Food and Safety Act 1990 included enabling powers since used to permit the sale of irradiated food suitably labelled at the point of sale and the licensing of plants permitted to undertake irradiation. Are similar provisions being made for Northern Ireland? From my reading of the order that point is not clear. Given the controversy that arose in this country, we shall be interested to know the response of the consumer organisations in Northern Ireland.
I have no more questions to ask the Minister but I shall listen to his replies with great interest.
§ 4.30 p.m.
§ Lord Holme of Cheltenham
My Lords, I thank the Minister for the clarity of his exposition of the order. We on these Benches support the laudable aims of consumer protection and the Government's wish to improve food safety. That is a matter of great and legitimate public concern in Northern Ireland as it is on the mainland. We on these Benches do not intend to impede the passage of the order.
I have only one issue that I wish to raise and I hope that it is not awkward. It is close to the interests of Northern Ireland and, I suspect, to your Lordships' House. It is the sale by mail order of smoked salmon. Smoked salmon and other smoked fish is an important and growing industry in Northern Ireland. By reasons of geography a great many of such sales are conducted by mail order, although not all. As a result of the snow last Friday evening I was stuck in Belfast Airport. I spent a happy time purchasing smoked salmon, consuming some of it and repatriating the rest to London. Therefore, the subject is indeed fresh in my mind.
Noble Lords who have read The Times today will have seen a most moving article by Mr. Bernard Levin headed, "Nanny puts her hooks in". It deals with the problem of the sale of smoked fish by mail order. As a result of the wide powers given to the Government under this order, I am uncertain whether it is intended that the prohibition on the sale of smoked salmon by mail order should apply to Northern Ireland. Noble Lords may know that as yet Scotland has been 236 exempted from the provision. There is a good reason for that; smoked salmon is an important industry in Scotland. However, smoked fish in an important and growing industry in Northern Ireland and one which I hope the Government will encourage.
§ Lord Lyell
My Lords, I apologise to your Lordships and to my noble friend for being a few seconds late in entering the Chamber to hear his lucid explanation of the order. The noble Lord, Lord Prys-Davies, was kind enough to mention that the last time that such an order came before this House I was in the position now held by my noble friend. He has explained the order with commendable brevity. I wish to ask for only one reassurance. Am I correct in believing that all the measures outlined in the order have been cleared with the food technology department of the Department of Agriculture, including the marvellous scientists at New Ford Road? I am sure that everything they put forward about food technology and production has been included in the order. However, I hope that my noble friend can give me that reassurance.
I am sure that all noble Lords will agree that, as regards consumer protection, the Ulster housewife wastes no opportunity in making herself and her views known. However, I wonder whether the noble Lord, Lord Holme, believes that everyone in Northern Ireland, let alone Ministers and my noble friend, spends a lifetime eating smoked salmon. That may appear to be the case but I hasten to assure your Lordships that I spent my time promoting the whole spectrum of food in Northern Ireland. Indeed, I gave the food industry the motto which I understand belongs to the Coldstream Guards: nulli secundus. It does not mean "no second helpings"; it means "second to none". I was keen to promote the industry. Everything that has been said by my noble friend today will assure everyone around the world that Ulster's food and its food industry are leading in the world. I hope that my noble friend can reassure me that other government departments have had input into the order.
§ Lord Belstead
My Lords, I am grateful for your Lordships' reception of the order. I shall first reply to the noble Lord, Lord Prys-Davies, who was kind enough to indicate the questions that he had in mind. First, there were no consultations in Northern Ireland on the Food Safety Act 1990 because it does not extend to Northern Ireland. However, it is right to bear in mind that the explanatory memorandum was being drafted when the Great Britain legislation was going through Parliament. When the proposals were being published, some 250 consultees were contacted in Northern Ireland and, therefore, there was full consultation with local authorities and various organisations.
As regards further consultation, I hope that it will be to the satisfaction of the noble Lord that under Article 47(3) of the order regulations must be subject to full consultation. With the exception of regulations relating to emergency control orders—by definition we should not be able to consult on those—the enforcement of European Community legislation and 237 orders requiring information or samples to be made available, the regulations under Article 47 must be subject to full consultation.
The noble Lord asked me about training arrangements. A consultation document has been issued by the Department of Health and Social Services in Northern Ireland and the main aim of the training arrangements will be to build on existing good practice. Therefore, training already provided by firms will almost certainly continue but it will be buttressed by training provided by district councils and further education colleges.
The noble Lord asked me whether there are examples of training which are up and running. I understand that further education colleges either have or have in mind courses which will cost about £30 per person As the consultation document makes clear, we hope to enable businesses to choose from a wide variety of training arrangements at a range of costs and so try to minimise costs for smaller businesses.
The noble Lord asked me about the timetable for the order. It is likely that the main provisions will be brought in two months after the date on which the order is made. The main regulations on registration and hygiene training will be made at the same time as those for Great Britain. The Great Britain legislation first began to come into effect on 1st January of this year but I believe that it is phased according to various provisions. That is why, coincidentally, the provisions will be coming into effect at the same time as those for Great Britain. We very much hope that the regulations under this order will be made towards the end of May.
The noble Lord then asked me about the codes of practice. He is absolutely right that there will be various codes; for example, on inspection procedures in general, including the seizing and detention of unfit food, the sampling and analysis of food and improvement notices. I emphasise that they will be statutory and subject to the proper laying procedures. Of course, they will be subject to Article 47 and, therefore, to proper consultation. We intend that they will march the codes being made in Great Britain in the same way as the order is supposed to match, broadly speaking, the Great Britain legislation. I hope that the codes will be issued by about the end of May.
Finally, the noble Lord asked me about irradiation. The powers for bringing into effect irradiation are Article 15 providing for regulating the process, Schedule 1 providing for licensing the process and Article 18 providing for licensing the premises concerned. The noble Lord had every right to ask me what the opinion on this process was in Northern Ireland. I say quite openly that that is mixed as far as we know from consultations. There are those in favour and those against. Even though this may be familiar ground to the House, perhaps I may make two observations. The two most important points about irradiation are the inspection of premises provided for in the order, which is enormously important; and, secondly, there are the requirements for labelling so that people will be able to choose by consulting the label whether they wish to buy irradiated food.
238 The noble Lord, Lord Holme, asked me an important question about mail order for smoked fish and salmon. I am sorry that, although he enjoyed the smoked salmon which he was eating, it was on occasion when he was delayed for a long time. The noble Lord's question is important. At present that matter is being considered by the Department of Health and Social Security in Northern Ireland in conjunction with the Ministry of Agriculture in London. The issue being looked at is whether the food hygiene regulations in present law apply to smoked salmon. What is not being looked at is the relevance of smoked salmon to this order. Therefore, I hope that the noble Lord will not believe that there is a sinister move to try to draw smoked salmon into the order. At present the existing corpus of law as it relates to mail order smoked salmon is being considered.
Finally, I thank my noble friend Lord Lyell for intervening in this debate. He worked tirelessly for the Department of Agriculture in Northern Ireland and is well remembered for that. He asked whether all the measures have been cleared with the Department of Agriculture. Under this order certain functions will be for the Department of Agriculture in Northern Ireland alone; for example, the licensing of milk producers and dairies is to be carried out by DANI. Certain of the regulation making powers relating to residues will be for the Department of Agriculture and not for the Department of Health and Social Security.
I hope that I have answered all the questions put to me. Perhaps I may return to the point at which I started. The intention of this order is to put the law in Northern Ireland on the same footing as that for Great Britain because of the food safety legislation which was enacted in the last Session.
On Question, Motion agreed to.