CFG
20/06 rev. 1
Letter with Foodaware
response to Review Report dated 16 August 2006 from Foodaware to Professor
MacCrory, MacCrory Penalties Review, Cabinet Office Better Regulation
Executive:
Covering letter
Enforcement, Sanctions and the MacCrory Report[1]:
Foodaware and its approach to enforcement[2]:
Introduction
A consumer perspective
Dear Professor MacCrory
Please find [below] the response to the Review Report from Foodaware.
In view of the length and breadth of the report we have not found
it possible to respond in detail to the 58 questions asked in Chapter
7. Indeed, for future reference, it would be helpful if the Executive
could give consideration to producing a more consumer-focussed summary
of the key issues to encourage independent organisations to respond.
We have made general observations based on the existing policy of
our members. These are generally supportive of your vision for contemporary
sanctioning regimes within the context of a reformed and more standardised
approach to enforcement across government agencies and regulators.
Within that context we believe that Principle 5 should be expanded
to include payment of redress to consumers who suffer loss, damage
or harm as a result of a regulatory breach.
We also consider that the Principles should include openness and transparency
about the enforcement policy itself, any actions taken under the policy
and the companies or individuals who face sanction for having breached
the rules. Such openness is necessary to instil public confidence
in the regime and the actions of regulators in the light of their
published policy.
As you can see from our comments attached, we consider that the penalties
should be appropriate, and cover the range outlined in your report
including a range from monetary penalties to criminal sanctions and
restorative justice options where these are appropriate. We believe
that sentencing in the criminal courts should continue to be available
for the most serious offences and for repeat offenders who flagrantly
disregard regulatory warnings and lower penalties.
Yours sincerely
Barbara Saunders
pp Susan Knox, Chair, Foodaware
Enforcement, Sanctions and the McCrory
Report: Foodaware and its approach to enforcement
Foodaware has always recognised that one of the main reasons for government
involvement in regulating food businesses is to ensure that public
health and the economic interests of consumers are protected against
fraud, misrepresentation, malpractice and incompetence. As the scope
of regulation has increased, however, the public have become increasingly
concerned about the complexity of food law enforcement at national
and local level in the UK, variations in the level of enforcement
between different authorities and regulators, and in the sanctions
awarded by different courts and in different parts of the UK. We have
also expressed concern about the level of resources available to local
authority enforcement authorities, the lack of powers to deal effectively
with e.g. hygiene failures in small butchers, unlicensed food premises
and catering establishments, and the illegal trade in unfit meat.
As a result, we have supported a move to risk-based enforcement to
maximise the effectiveness with which available resources are deployed,
while continuing to press for adequate resourcing of enforcement activity.
We support the FSA in seeking to establish clear priorities for local
authority food law enforcement although we have reservations about
the lack of guidance on appropriate levels of activity and the resources
necessary to meet the public’s expectations. We believe that
priorities for enforcement should be risk-based and recognise that
such priorities should be re-evaluated from time to time to take account
of changing needs.
A Consumer Perspective
1. The Role of Government and
Regulators
Consumers rely on the government to determine the shape of Food Regulation
and on the FSA, Defra and local authorities to provide sound advice
to inform that policy and to implement the legislation and ensure
that it is adequately enforced. The FSA itself has commented to Professor
McCrory about the difficulties of achieving satisfactory enforcement
and the absence of effective deterrents to deal with certain kinds
of breaches. Misleading claims and labelling problems have proved
difficult to prosecute in the past, and there have been instances
where the courts have not been persuaded of the severity of a breach
of food hygiene regulations leading to contamination with bacteria
which could cause food poisoning. Given the level of concern about
the existing situation, we agree with the report that reform is necessary.
2. A fair deal for customers and suppliers
Consumers want an enforcement regime which protects their interests,
which is fair to customers and suppliers, which supports those who
comply with the law, which deals appropriately with those who breach
the requirements, and which enables competition to operate in the
market place. If regulatory requirements are not met, the public require
an appropriate level of sanction and expect redress should things
go wrong.
3. Openness and clarity
Within the proposed framework, it is intended that regulators should
publish an enforcement policy, measure the outcomes of their activities
and justify their choice of actions. We strongly support this approach
and would expect the level of openness of the policy to make clear
to suppliers what is expected of them so they are clear about their
responsibility to the public. We would also expect information on
infringements and enforcement actions to be publicised as a deterrent,
to demonstrate the role of enforcement officers and to demonstrate
clearly where improvements have been made and any redress paid.
4. Appropriate sanctions
With regard to the types of sanctions, we are generally supportive
of the approach taken by Professor McCrory and consider it unarguable
that the sanctions should be appropriate to the level of misdemeanour.
Criminal prosecution should be available for more serious breaches
but also for repetitive and deliberate failures, and for those who
ignore warnings. We are also concerned about those businesses which
seek to avoid retribution by closing and reopening under another name.
5. Redress
Where consumers have suffered loss or damage, including damage to
their health, as a result of a breach of regulatory rules they would
expect appropriate redress or compensation to form part of the enforcement
policy. Depending on the level of award, consumers may reasonably
expect some redress to be available without having to go to court.
August 2006
1 Regulatory Justice: Sanctioning
in a post-Hampton World, Consultation Document May 2006
2 This document complements
CFG 13/06 - Food Standards Agency Priorities for local authority food
law enforcement.
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