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UK Food Law enforcement - At crisis point or entering a period of transformational change?

The UK is facing a period of unprecedented change in the level and manner in which Local Authority Services are delivered.

Trading Standards and Environmental Health functions are low budget items for Local Authorities, representing on average only one percent of Council spending.

It became clear as far back as the Cabinet Office Rogers Review of the National Enforcement Priorities for Local Authority Regulatory Services in 2007 that there is no consistency of national or local priorities surrounding the statutory regulatory functions of Local Authorities.

These services struggle to compete with Social Services, Education and Fire services for political attention within Local Authorities. Cabinet governance structures in Local Authorities have increased apparent marginalisation of what have been referred to as ‘Cinderella services’.

With few fighting their corner at a local level, no clear sense of priorities, a business community not convinced of their worth, lack of leadership from Whitehall and a weak consumer voice, it is not surprising that these regulatory services have fared badly in Local Government cutbacks.

Some Services have fared better than others, but the overall picture is bleak with on average in excess of 30% cuts to services since 2009.

It is unclear what the minimum level of activity required of Local Authorities is in delivering these services. Central government has always shied away from exerting much in the way of control nor intervening in what might be regarded as failing Authorities. A legal ‘Duty to enforce’ appears to have been no guarantee of viable services.

The structure of Trading Standards as 230 individual authorities and 340 Environmental Health departments each with their own management structure, priorities, enforcement policy, sampling budget etc. appears to be a hangover from a bye gone age, where the nature of trade was far more local than it is today. The ability of these services to ‘police’ the market place in the traditional manner of inspection and following up with consequences is a distant memory.

How are Trading Standards and Environmental Health services responding to the pressures they face?

Inevitably there has been a reduction in activity levels, less inspections, less sampling, less enforcement, less specialisation, less training. Consumer and Business advice not being statutorily required have been badly affected.

Services have failed to share resources across Local Authority boundaries to realise efficiencies and many services still appear to be hoping that the public facing nature of their activities will protect them until a recovery in fortunes takes hold.

There remain serious questions as to whether even the current level of resource could be deployed better. For example, has the Food Hygiene Rating scheme resulted in disproportionate attention being paid to the inspection and rating of food premises of broadly acceptable standard, and reduced the focus on premises that should either be subject to rapid improvement or closure.

It’s not all doom and gloom: the potential for transformation is real.

Proposals have emerged from the devolved administrations in Scotland and Wales to drive consolidation in the delivery landscape.

There are signs of movement towards ‘Outsourced’ service delivery by specialist commercial providers as in North Tyneside and the London Borough of Barnet. This may well be the start of a trend where Local Authorities remain accountable for the outcome, but contract out management of day to day delivery. It is possible, in time, to envisage a small number of commercial services covering the UK, realising efficiencies of scale and specialisation.

Awareness has grown by Trading Standards and Environmental Health professionals of the need to provide advice and support to businesses, particularly small businesses under the ‘growth’ banner - as is evident by the growing support for Local Enterprise Partnership ‘Better Business for all’ activities.

The Better Regulation Delivery Office ‘Primary Authority’ scheme (now covering 1,500 businesses), has fostered a more collaborative approach to working with the grain of business to find acceptable compliance solutions. Extension of the scheme to groups of businesses adopting a shared approach to compliance has opened it to many small businesses, who through their specialist trade associations, are increasingly taking on a supervisory role for ‘professional diligence’ in their sectors.

The proposed ‘Duty to have regard to growth’ contained in the Deregulation Bill and the Regulators Code which are now in force, requires regulators to better understand business needs and to provide advice. This should further drive regulatory culture towards a business support role.

If the compliance efforts of business can be shaped and taken into account by enforcers, then the role becomes to work closely with businesses to understand the challenges faced and help ensure that the necessary checks and balances are in place. With Horsemeat contamination, the failure becomes not one of not finding contamination early enough, but of enforcers not working with the business sector closely enough to spot the risk and ensure controls were in place to prevent it.

Trust and partnership are fast becoming the new currency but this proposition only works if the enforcers have the necessary competence, attitude and professionalism to really add value for the business community.

The EU Commission has also realised that resources devoted by member states to regulatory delivery is far from consistent across Europe. Their response has been a proposal for full cost recovery for ‘Official food Controls’, but with an acceptance that Earned recognition should increasingly exempt businesses from state inspection and charges.

In summary, transformational change to a slimmer but sustainable ‘business support’ focused compliance system is on the cards – the current drivers are cost saving and cost recovery rather than direction from the centre but the end result may well be a whole lot better!

If you have any questions or would like more information please contact Hilary Ross, Head of Retail, Food & Hospitality.

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

Hilary Ross

Executive Partner (London) - Head of Retail, Food & Hospitality

Recognised by The Lawyer as one of the UK’s Top 100 lawyers, I advise clients on compliance and challenges across the EU in relation to products, systems and safety.