Official Report: Minutes of Evidence

The Chairperson (Ms Maeve McLaughlin): We have with us Michael Jackson, who is the head of local authority policy and delivery; and Kathryn Baker, who is the head of consumer protection. You are very welcome. Folks, this is the first conversation we are having around the clause-by-clause approach. I ask you to be as succinct as you can in answering questions. I have also asked members to be concise with their questions. I ask you to make opening comments.

Mr Michael Jackson (Food Standards Agency NI): Thank you very much for inviting us along today to talk to you about the Bill. You have just received a very helpful introduction around some of the key aspects of the Bill, so we will try to cut back on our discussion on those. We will point out a couple of key issues to help you to understand the basis on which the whole scheme has been developed. We will then go through the clauses and try to highlight why some of the particular aspects are there and what they mean in practical terms.

You are well aware of the position in the voluntary scheme: around 65% of our high-rated businesses are displaying, but only 23% of those with 1 and 2 ratings, and only 40% were putting their sticker in a place where it is visible from the outside. The basic reason for trying to move forward with the Bill is that we will have a system requiring businesses to display their sticker. I have brought a sticker so that you can see one in the flesh today. That is the size. The rating is on the front. This one is a 5 — very good. On the reverse there are details about the date of inspection, date of issue and so on, which are part of the validation and authenticity of the rating.

When developing the Bill, our approach was not to replicate requirements that sit elsewhere. Tim mentioned to you that the rating system is driven by the inspection regime. Basically, the inspection regime that is delivered by all district councils is already set out in European regulations. The detailed requirements for how inspections are conducted and when they have to be carried out, depending on risk and compliance, are all laid out in the Food Law Code of Practice (Northern Ireland). That is a statutory code that is signed off by the Minister each time it is reviewed. In practice, it is this code that drives the planned hygiene inspections, and the information gathered from the inspections is used to calculate the rating. You will get a good insight into how an inspection is carried out and how those findings are then used to produce the rating when we visit the kitchens in Parliament Buildings next week with the food safety officers from Belfast City Council.

In essence, the Food Hygiene Rating Bill is built on work that is already being done by councils to fulfil their statutory duties to comply with European legislation and to protect public health. All that this scheme does is to introduce the additional requirement to display the rating. In reality, the sum total of the burden is the sticker, which the Food Standards Agency (FSA) provides and the business displays. Our approach minimises the burdens that arise from introducing a requirement.

The detailed operation of the current voluntary scheme is laid down in guidance that was developed by the Food Standards Agency, local authorities and industry around the UK, and it sits in the 'Brand Standard' document. The framework lays out the mechanisms that run in the background to allow the ratings to be developed. Indeed, there was reference to the fact that this Bill has been developed along the lines of the scheme in Wales. The Bill has been developed along the lines of the voluntary scheme that operated originally in England, Wales and Northern Ireland. We have the same nought-to-five scheme operating in the three countries. That is where we started. Wales has now put the same scheme on a statutory footing, and that is what we are trying to take forward in Northern Ireland. The basis is the voluntary scheme already in place.

I now turn to the clauses, and I will try to cover them as quickly as possible. I have already explained how the information is gathered from routine inspections. You are aware that the ratings are currently awarded to those businesses that supply food directly to the consumer. The types of business that do not receive a rating are wholesalers, food processors and manufacturers, and places that are not open directly to the public. The reason for that is that the whole purpose of having the rating sticker displayed is so that consumers can make informed choices at the point at which they make the decision to purchase food or eat out. That is the logic on which the Food Hygiene Rating Scheme was originally built.

You may have noted from clause 1(2) that councils are not required to prepare a rating on every occasion, and you may wonder why that would be the case. That takes account of the fact that councils carry out inspections other than the planned inspection, which is set through the code of practice. For example, if a planned inspection takes place and the food safety officer finds that conditions are not good, they will arrange to conduct a further visit within a short time to make sure that the business is taking the necessary action. As there is a range of visits, it is not necessary or, indeed, appropriate to award a rating every time. The rating is primarily driven by the planned inspection or the rerating, if the business asks for one when it has carried out the necessary work.

At this stage, I will hand over to Kathryn, and she will take you through the next set of clauses.

Ms Kathryn Baker (Food Standards Agency NI): I will quickly take us up to clause 8. Clause 2 deals with notification and publication of the rating. Clause 2 requires the district councils to notify ratings to operators within 14 days of conducting the inspection. This has to be accompanied by certain other information. That includes the sticker, the reasons for the rating, details of any improvements that the business might need to make to comply and to improve their rating, and an explanation of the safeguards that are available to them. In addition to notifying the operator, the councils also have to let the Food Standards Agency know, so that the information can be published on the website.

Within the current voluntary scheme, there is a very small number of exceptions where this information — the rating — is not put up onto the website. This relates to Ministry of Defence establishments, where publishing addresses might have security implications. Clause 2(4) takes account of that, and we anticipate that the detailed guidance would sit within an equivalent guidance document to the 'Brand Standard'.

Clause 2(2) provides a regulation-making power to prescribe the form of the sticker, which Michael has shown you. It is intended that the format and look of the sticker will remain exactly the same in the statutory scheme.

Clause 3 covers appeals. This clause provides the first of the safeguards for businesses. It provides the operators with a right to appeal their rating. The intention is that they could make one appeal. This would be made in writing to the council that produced the rating, within 21 days of receiving the rating. There was some discussion about the difference between the grounds for appeal in the Welsh Act and the Northern Ireland Bill. In the Bill, an appeal can only be made on the ground that the rating does not reflect the hygiene standards at the time of inspection. The legislation is drafted to cover both circumstances included in the Welsh Act — what the officer has seen and how they have used the guidance to produce a rating. We think that our one ground encapsulates what was drafted into the Welsh legislation.

To provide for greater independence in the appeal system, the Bill sets out in clause 3(2) that anyone involved in producing the original rating cannot then be involved in determining the appeal. Once councils receive an appeal, they are obliged to determine and communicate the outcome within 21 days. There was some discussion earlier about the time periods, and they have indeed increased from those in the voluntary scheme. Businesses now have 21 instead of 14 days to make an appeal. That was in response to the consultation. The councils also have 21 days to determine the appeal. Again, that was in response to the consultation.

Finally, clause 3(10) provides a regulation-making power for an appeal to be determined by a person other than the district council that produced the rating. This was included in response to the consultation. A number of respondents queried whether there would be sufficient independent scrutiny in the process if the same council that produced the rating subsequently determined the appeal. So, following discussion with stakeholders around the time of the consultation, it was determined that the appeals process should continue as it did under the voluntary scheme. However, the FSA should be obliged to review that and determine, based on how the statutory scheme operates, whether any changes are needed. The Bill provides the flexibility in that clause. Members might wish to know that a similar provision also exists in the Welsh legislation, and similar discussions were had around this at the Committee Stage.

Clause 4 is on the request for rerating. This is the second of the safeguards for business, and it obviously provides them with a right to request a rerating. That can be made after the appeal period. The request has to be in writing; it must include an explanation of the steps that they have taken to improve; and it must be accompanied by a fee. Subsection 5(c) provides a regulation-making power to specify the fee. During the consultation, very clear views were expressed from all parties that this needed to be a level fee across Northern Ireland, not different fees depending on which council area you were located in. We propose to consult further with stakeholders on the level of the fee, following a cost-benefit analysis. For your information, the fee that has been set in Wales is £150.

The councils' obligations are that, within three months of receiving the request, they should conduct an inspection and review the rating. At this time, it is worth pointing out that this is a change from the current voluntary scheme. I am sure that you will hear from other stakeholders, particularly the district councils, when they come to speak to you around this issue. In the current voluntary scheme, businesses cannot receive that rerating inspection in the first three months after the original inspection, and it is commonly referred to in the current scheme as the standstill period. You will see in this clause that the standstill period does not feature. Again, this has been in response to the consultation. Industry expressed the view that waiting three months before you can even ask for the rerating inspection, which could be another three months, was really too long for it to wait. To encourage businesses to improve, this should be carried out quicker so that they could benefit from their investment earlier.

The clause provides that the council can decide not to complete a rerating. Again, you might be asking yourself why a council would decide not to do that, but it is only where the Bill is not being complied with. You will see that detailed in subsection 7. For example, a district council may decide not to do the rerating where an operator is not displaying the rating — it is choosing not to display it for consumers to see — or where they have not provided the information about any improvements that they have made.

I turn to the right of reply, which is in clause 5. As has been said, it allows the operators to make a written reply. You might be wondering what that actually means and what that will look like, so I thought that I would read you out two examples that are currently provided on the website. In these examples, businesses have made statements that they have asked to be put onto the website. These are both businesses that were rated 1 at the time when they made the comment. The first is:

The second one is:

Mr McCarthy: Have you got a new sign that says, "Top Marks"?

Ms Baker: Once they put their request in for a rerating and they have made all the changes, yes.

The Bill provides for the councils to amend or to edit any responses. The purpose of that is to take out information that is misleading or which is not true or is inaccurate and to take out any defamatory remarks that might be made against an officer or someone from the council. At that point, once it has been rectified, it will be published on the Food Standards Agency website.

Clauses 6 and 7 are quite difficult to read. I do understand that you might look at them and think that they are quite dense, but they are very closely interconnected, so I will take the two of them together. Clause 7 places a duty on the operators to display the valid sticker, and subsection 1 provides a regulation-making power, so the manner and location would be specified in regulations. During the consultation, we did seek the views of stakeholders as to where the ratings should be displayed. Some common principles were expressed, including that the display needed to be seen from outside before entering the premises; for example, on an entrance door or window at approximately eye-level height. However, a lot of people recognised that that will be difficult in some circumstances and will present some challenges. I will draw your attention to some examples: an outlet that does not have a traditional entrance, such as a very large retailer; outlets in food courts, where there are many outlets; market stalls; and mobile traders. We therefore consider that it would be prudent to detail more provisions in the regulations, to give very clear guidance to businesses and enforcement officers, and to consult further on the detailed provisions for that.

Clause 6 sets out when the rating and the sticker itself become valid and when they are not valid. The rating will become valid as soon as the operator receives it. However, it continues to be valid until they receive their new rating and the appeal period has expired. In practice, that means that once an operator gets a new rating, they can, in the 21-day appeal period, choose to display either the existing rating or the rating that they have just received. There is a good reason for that. You need to remember that they still have the right to appeal the new rating and that the appeal may be upheld that the rating should not change. Therefore, it would not be justified to impose on them to display a rating that might subsequently be changed on appeal. Clause 6(2) sets down that the rating ceases to be valid when the establishment closes. Another example is where enforcement action has been taken, such as an emergency prohibition notice because of food safety and hygiene issues found.

My last bit is just to mention the duty to provide information about the rating. That is oral information and it requires the operator or a relevant employee to orally inform persons where the rating is requested. As has been discussed, the purpose of that is to inform anybody who may be partially sighted or blind. However, it is also there for anybody making a telephone order; for example, to a takeaway. A relevant employee is a person who, in the opinion of the operator, is likely to be asked for the information. Considering very big businesses with hundreds of employees, that might be the customer services section. In a smaller business, it will be people taking telephone orders and serving customers. We anticipate providing more detail and guidance to help people understand and take that on.

Mr Jackson: I turn now to clauses 9 to 11, which are for enforcement of the Bill. Clause 9 is probably one of the more straightforward clauses that we have to deal with. It requires district councils to enforce the Bill and gives them powers of entry to establish whether businesses have complied with their duty to display and the requirement to provide information orally where that has been requested.

Clause 10 specifies a number of offences, covering failure to display a valid rating sticker or displaying a non-valid rating sticker; failure to orally inform a person of the rating when requested; intentionally altering, defacing or tampering a sticker, which would apply not just to the food business operator but to any person who would undertake such an activity; and, finally, obstructing an officer in exercising their functions. If you look at clause 10 in detail, you will see something that seems a little strange. It talks about a "reasonable excuse". A food business operator would not have committed an offence if they had a reasonable excuse for having done one of the aforementioned things. That is there because this is common where offences would otherwise be strict liability offences and potentially unfair to defendants. However, it would be for a court to decide whether or not someone had a reasonable excuse when charged with an offence of this nature. To illustrate what that could look like, let us take the example of a hot-food bar. The food business operator gets his new rating sticker and puts it up on the door as required. At that point, he fully complies. Late on a Friday night, a crowd of yahoos comes in, and somebody decides to do a bit of vandalism. They pull the sticker off, and it disappears.

Very shortly after that, the local food safety officers may do an inspection and discover that the sticker is not there, but, given the series of checks the business would normally have in place, it may not have realised that the sticker has been removed. In that situation, a business may be able to demonstrate a reasonable excuse, but it would be for the court to decide.

Clause 10(7) provides the level of fines for an offence. That is currently set at level 3, which has a maximum penalty of £1,000. From the debate at Second Stage, we are aware that members will probably wish to explore that matter in some detail.

Clause 11 allows for the issue of a fixed penalty notice when a business has failed to display a valid rating sticker or has displayed one that is not valid. The details of fixed penalties are contained in the schedule. As Kathryn highlighted, the amount of the fixed penalty is not in the Bill, and it is intended that penalties will be set by order in due course.

The figure of £150 that Kathryn mentioned is consistent with the figure that has been set in Wales. As yet, it has not been necessary to issue many fixed penalty notices in the operation of its scheme. To date, they have issued only a small number of penalties: it was fewer than 10 as of a couple of weeks ago.

Clauses 12 to 15 provide for miscellaneous functions. One of the issues is that the power to allow the inspection and rating of mobile establishments can be transferred from one council to another. That purely reflects the fact that current legislation requires that a mobile establishment be registered in the area in which it is kept. If someone operates three hot food vans and keeps them in their driveway in Carrickfergus but do not trade in Carrickfergus, when the food safety officers go out to check the details of the business, they can look at the units to see whether they are clean and in good repair, but they cannot assess the hygiene procedures and practices that the operator applies when he or she is preparing food. Whereas, when the unit is taken out and goes into the council area where it trades — for example, Belfast — the food safety officers there will be able to see the fine detail of what was going on when they carried out their inspection. In that situation, they would be able to gather the full picture that would allow the rating to be calculated in a comprehensive manner. That is the rationale for allowing the duty to be transferred.

You have also been made aware that there is a requirement in clause 14 for the FSA to review the operation of the Bill within three years of commencement. That is to make sure that the scheme is operating as intended and that some of the things that stakeholders were concerned about during the consultation have not become a reality or do not need to be addressed. Those concerns include the appeals process and its independence, and the way in which fixed penalty notices are issued in practice. Councils were also concerned about the possibility of one re-rating inspection becoming a disproportionate burden on their ability to deliver the planned inspection programme, which is most important to ensure that consumers are protected.

Clauses 16 to 19 contain some supplementary provisions and the application of the Bill to the Crown. That is very important, because nowadays a lot of establishments operate on Crown property to which the public have access. It is right and proper, therefore, that they are also able to make informed choices about those businesses.

The Chairperson (Ms Maeve McLaughlin): Thank you both for that. A number of members have indicated that they want to ask questions about specific clauses. I make an appeal for questions and answers to be as succinct as possible. I appreciate your giving us that overview.

You touched on my question. Clause 1(1) suggests that councils must rate food businesses rather than the current process of specifying a rating of 0 to 5. Is there an explanation for that?

Mr Jackson: The reason why that detail is not included in the Bill is because it is laid out in the guidance document that the councils currently use, and we intend to replicate that in the statutory guidance for the Bill. There certainly is no intention on our part to change the basis on which ratings are awarded. It is very much about moving from the voluntary display of the 0 to 5 ratings to a statutory display.

The Chairperson (Ms Maeve McLaughlin): So it will be included in the statutory guidance for the Bill.

Kathryn, I am not sure whether it was you who touched on it, but clause 1(2) states:

You also talked about councils' other inspection duties. Will you explain that a bit further?

Mr Jackson: I tried to illustrate the fact that they would visit for other reasons. There could be the revisit that I talked about because conditions were really bad. Irrespective of any rating scheme and a right for rerating, if a business is seriously failing to comply with its obligations, the food safety officer will schedule a revisit to check that the business is complying. Getting that compliance is the important thing.

Similarly, a district council may receive a complaint from a consumer and go out to do an inspection to investigate that complaint. In such situations, officers would not necessarily be gathering the full picture of information that they would get at the planned inspection to calculate the rating.

Ms Baker: That is not to say that, if there is a complaint and the council goes out to a business outside its planned programme and finds that the conditions are so poor, they would not conduct a full and proper inspection and gather all the necessary information and provide a rerating at that stage. It would be right and proper to do that. If, for example, a business went from a 5 to a 1, that should be reflected in its rating.

The Chairperson (Ms Maeve McLaughlin): Clause 1 also deals with the definition of a food business establishment. What does that mean in practice? In essence, which businesses are covered and which are not?

Mr Jackson: In practice, all businesses that are clearly food businesses and are seen to be so in the eye of the consumer and that supply food directly to them are covered. That includes all restaurants, all takeaways and all catering establishments. The kind of business that can be exempt is one in which they may have a very small food activity, but food is not the primary purpose of the business. At this time of year, for example, Next, which is primarily a clothing shop, may have a couple of fancy goods that happen to be chocolate. The fact that they sell chocolate would make them a food business, and they would be required to register that activity with the district council. However, in that situation, because it is a very small part of the overall business and is not the primary reason why consumers are visiting that type of business, the current scheme allows for it to be exempted.

The Chairperson (Ms Maeve McLaughlin): Paula, I think that you want to come in on that.

Ms P Bradley: We were told earlier during our research briefing that there are certain exemptions. I am on my iPad looking at the food hygiene ratings for my area, which I know very well. There are some private addresses, maybe for people who make cakes, wedding cakes and things like that. Those are not in shops, and people are doing that from home. They still have ratings.

Ms Baker: They do.

Ms P Bradley: Other than looking up the Internet, people have no way of knowing what their rating might be as they do not have their goods in place. How do people check that out? Is it just by looking under their council area?

Ms Baker: To be completely clear from the outset, there are two issues. The first is that, in the Bill, food business establishments are defined as businesses that supply food "direct to consumers". If you are a business and supply food directly to consumers, you are within the scope of the Bill. That immediately puts people who do not supply directly to consumers out of scope. That is the kind of manufacturing end that supplies to other businesses, not directly to consumers.

Of those who are in scope, there is a regulation-making power to allow some to be exempt. It is that very small number of —

Ms P Bradley: Some of those are on the website.

Ms Baker: They are not exempt because they are on the website, and they would also have to display the rating, so they will have to find a way to display the rating when someone comes to their premises, even if it is their domestic premises, to purchase food. Bed and breakfasts, for example, operate on domestic premises, but it is right and proper that that rating is displayed visibly for people to see before they decide whether they will go in there.

Ms P Bradley: People also cook food in their home for their local church. My mother does that: she provides food at a drop-in centre. The council has already done all the checks in her home. What way does that work? That is providing directly to customers.

Ms Baker: Again, it is very specific to the individual circumstances. In some of the circumstances that you are talking about, it may not need to be registered as a food business. The councils will have to look at the scale of the operation and how frequently it happens. Is it a continuous, frequent or regular activity? If it is, it needs to be registered. If they are supplying food directly to the consumer, they come within the scope of the scheme. There are a very small number of those types of businesses. Practically, the overarching number of people who are involved are from regular businesses that you would recognise in the high street.

Ms P Bradley: The church does not have a full kitchen, so all the food is prepared in my mother's house. She can heat up the food in the small kitchen in the church, but she cannot prepare the food there. Is that supplying directly to consumers?

Ms Baker: Again, if she —

Ms P Bradley: I know that I am just creating problems here.

Ms Baker: They are not problems; they are practical, real-life scenarios. It depends on whether your mother is registered as a food business. She may have been visited by the council, but she may not be a registered food business as such. They may have given her advice.

The Chairperson (Ms Maeve McLaughlin): Clause 1(7) states:

If we are fairly clear that those who are exempt have very little food activity, as you said, why would the Department want to give itself the power to amend the definition of "food business establishment" in the future?

Ms Baker: It is to do with clause 1(4)(b) and whether you might want to increase the scope to bring in other businesses that do not supply directly to consumers — the business-to-business trade. As the research officer pointed out, that is the situation in Wales. We do not have that because we feel that it is primarily a consumer scheme. The information is very simple, and it is simple on purpose. It has been devised after a lot of research with consumers. That is why we devised the 0 to 5 rating in the way that we did. Whether it is relevant to business-to-business trade is another question, but it was simply to provide flexibility, should it be felt in the future that it should be widened.

Mrs Dobson: In relation to clause 2(3)(b), in what circumstances would a council consider it not appropriate to publish a food business's rating? I know, Michael, that you touched on the Ministry of Defence being exempt. Will you outline that in a bit more detail for us?

Ms Baker: Will you say that again? Clause 2 —

Mr Jackson: Will you give us the reference, please?

Mrs Dobson: In relation to clause 2(3)(b), in what circumstances would a council consider it not appropriate to publish a food business's rating?

Mr McKinney: It is clause 2(4)(b)

Ms Baker: It is only in the circumstance that we described.

Mrs Dobson: Is it only for security reasons and no others?

Ms Baker: You have to provide the get-out to allow them not to provide. We will detail clearly in the guidance that this is the circumstance to which this clause refers.

Mr Jackson: The voluntary scheme that will be brought in as statutory operates on a basic premise: everybody is in unless there is a very sound reason — security or something like that — why it would not be right to include them. So the default position is that we get everybody in rather than have people taken out.

Ms Baker: It is not that those establishments will not get a rating. They will get a rating and a physical sticker to display on the premises, but, for security purposes, the details will not be on the website.

Mrs Dobson: In clause 2(6), why does the form of sticker need to be set down in regulations? You mentioned that. When I visit my local Chinese restaurant, for example, I am almost obsessed with looking for the sticker to see what the rating is, so it works very well. However, I am alarmed that you said that 65% of those premises with a high rating display it, but I think that you said that only 23% of those with a low rating do so because it is a voluntary scheme at the minute. Can you take us through that? Why the sticker?

Mr Jackson: Why do we prescribe the form of sticker?

Mrs Dobson: Yes.

Mr Jackson: It is very much about what it will look like. Although there is now a statutory scheme in Wales, with the exception of the logo of the Welsh Government, the sticker looks, to all intents and purposes, exactly as it did before.

Mrs Dobson: So what we have currently will not alter?

Mr Jackson: The intention is that we will prescribe the sticker to be exactly as it will appear. Although the scheme might become mandatory in Northern Ireland and Wales but be voluntary in England, the message to the consumer is exactly the same in each country. The consumer can build an identity with this, know to look for it, become familiar with it, and, fundamentally, it means the same thing. The detail will be laid down in regulations, but the purpose is to ensure that we are all clear what the sticker is and that it is the only one to be displayed.

Mrs Dobson: It is fairly clear. Kathryn, you said that the reason for 0 is that there could otherwise have been a misinterpretation that a rating of 1 is good, but with 0 shown, that clarifies it.

Clause 2(4) and clause 2(5) are about the timescale by which a council must notify the FSA of a business's rating and any timescales for the FSA to publish the ratings on its website. There might be concern that, if a business had improved its rating — you touched on that — say, from 2 to 4, the business would want to publish that on the FSA website as soon as possible to avoid losing trade. Do you have timescales for that?

Ms Baker: There are timescales with the voluntary scheme, which is that district councils need to upload information at least every 28 days. That takes account of the appeal period as well, because, in the appeal period —

Mrs Dobson: Is the appeal period 21 or 28 days?

Ms Baker: The appeal period is 21 days, but the period within which councils are asked to upload information is 28 days. Councils will upload a brand-new set of information for everybody each time. That is to make sure that the information is published regularly. That is detailed in the guidance document that Michael showed you — the brand standard. We anticipate putting that on the website. It means that we can perhaps reduce that period if we feel that councils should be uploading more frequently.

Mrs Dobson: I asked earlier about facilities for customers who are visually impaired. Is there any practical way of letting visually impaired people know about the standard, other than doing so orally?

Mr Jackson: Do you mean letting them know about the rating for a business?

Mrs Dobson: Yes.

Mr Jackson: No. This has been constructed so that it is very much about providing the requirement that, if asked, businesses must be in a position to give that information to anyone who asks, whether or not they are visually impaired. We envisage that that would be a typical way in which people would try to find out that information. Say, for example, a visually impaired person walks in and wants to order food, and they need to find out certain information. We could reasonably expect them to ask about the hygiene rating and be provided with it.

Mr McCarthy: Clause 3 deals with the appeals process. Is there anything in that clause that limits businesses to making one appeal?

Ms Baker: It does not specifically state that a business can make only one appeal following receipt of its rating, but it is tied in to making an appeal or appeals within 21 days. Quite typically, appeals are laid out in this fashion. It is anticipated that, if a business wants to exercise that appeal on the grounds that are there, it would compile all the information collectively and put it in to the district council. Two days later, the business could decide to add some more information to that, but, within the 21 days, the district council needs to look at everything that it has received and make the determination.

Mrs Cameron: Thank you very much for your presentation. It was very interesting. In relation to clause 4, in what circumstances would a council refuse to do a rerating inspection?

Ms Baker: It is very much tied in to details in clause 4(7). A district council can decide to act under that clause only when the establishment is not complying with the provisions of the Bill. One example that I gave was when a business may decide that it has a poor rating, so it just does not wish to display it. It will take its chances and not display the rating but ask for a rerating, will hopefully get a better rating at that point, and, if it is happy with it, it will then display. The point is to deter people from not displaying in the period that the business has to wait for rerating.

District councils also need to see what the businesses have done to comply. The Bill states that businesses have to provide information about the improvements that they have made. If a district council does not get any information about that and just gets a rerating request, it will need to see what is being done by the business in order to make a decision and to know what it will look at when it subsequently does the inspection.

Mr Jackson: If the business wants a rerating, the burden is on the business to provide the evidence that it has made the necessary improvements. It is quite reasonable that, if it has not provided that information to the council, the council should not be obliged to proceed with a rerating.

Mrs Cameron: Does clause 4 specify the number of times that a business will be able to apply for a rerating within a certain period?

Ms Baker: No. There is no limit placed on it currently. The reason for that is — this came out quite strongly in the consultation — that we asked whether a business should be allowed to have more than one rerating request. The business community said that, if, for example, there was a year to wait between planned inspections, if a business put in a rerating request, did some work, and its rating improved from a 1 to a 3, that means that it is capped: it would have to wait until it had its next planned inspection, but it might be quite prepared to do extra work to push its rating up to a 5. It is all about giving businesses opportunities, because that is what the scheme is about: improving compliance. It is allowing the businesses to do that.

However, the councils were very concerned that the businesses might ask for a limitless number of reratings. Although the rating is being paid for, it is still very difficult for them to resource that by way of having sufficient physical people doing the work. They were very concerned and said that, although they may not get many requests, they just do not know, because they are not in the statutory scheme. They asked that we look at it during operation and, if it is very burdensome, come back to this point. Wales has found that the burden has not been as extreme as might have been thought.

Mr Jackson: There have been only about 200 requests in Wales since the scheme became statutory a year ago. The number of scenarios in which businesses are looking for the rerating inspection is, pro rata, very low.

Mrs Cameron: Although that may change when it becomes statutory, because people who are not displaying will not be too worried about a rerating if they do not have to display it in the first place.

Ms Baker: Yes, but that is in the statutory scheme in Wales.

Mr Jackson: In the last year since the statutory scheme was introduced, there have been only 200 requests for rerating. An important point about where we are starting from in allowing more than one rerating is that it recognises that not all businesses are the same and not everybody can make the improvements and the investment at the same pace.

For the likes of a major supermarket, it is no big deal to have to put things right quite quickly, and they are likely to be able to apply for a rerating and get to a 5 in one fell swoop. A smaller business may need to invest the money over a period of time to be able to get there, particularly when it comes to the practices and procedures that are involved, because it sometimes takes them longer to get those running very effectively. That is why there is provision for more than one rerating as the starting point. But, as we pointed out, we will review that very closely after the three years to make sure that it is working for business and for the councils and that it is not placing a significant burden on them.

Mrs Cameron: You partially answered my next question, but I will ask it anyway, because it is about ensuring the balance between the rights of food businesses that have made improvements and want a rerating, which you went over, and the demands that that will place on council resources. You mentioned both those. Where will you find the balance, especially in councils and resources?

Mr Jackson: It is quite difficult to forecast exactly what the likely demand will be, but the impact assessments that were carried out as part of our consultation and, indeed, in Wales show that the level of rerating inspection being demanded is significantly lower than was anticipated. There is also likely to be significant activity by the councils in the period immediately before launching the statutory scheme when they will work with businesses that have poor ratings to try to get them to a better place by the time the scheme goes lives. We will work closely with the councils on that and will look to support them as best we can to help them to do that extra bit of work to get people in a good position from day one.

Mrs Cameron: Finally, what sort of fee are you thinking of? Do you have any ballpark figures?

Mr Jackson: The intention is that the rerating fee will be set to reflect the work that is involved. It will not be about generating revenue; it will be about cost recovery. The figure in Wales has been set at £150. We will have to look at the actual costs to councils in a Northern Ireland context, and we discussed that closely with them in trying to come up with an appropriate figure.

Mrs Cameron: Obviously, that will go to councils.

Mr Jackson: The Bill says that the councils will be able to keep that money for the purposes of implementing the Act. So, it would help their funding for services that are provided.

Mr G Robinson: My question is on clause 5. What is the purpose of allowing businesses a right of reply? Is there a danger that that could undermine the authority of the council that has given the rating?

Ms Baker: It is really about letting businesses explain to their customers what they may have done to rectify the situation. Generally, that is how the right of reply is used. The businesses go on and may accept that, yes, when the officer was in, there were areas that needed to be improved. It gives them an opportunity to explain directly to their customers what they have done. I do not think that it undermines the council, because it goes to the council, which very much has to be sure that it is true before it publishes it. If the business is making a claim about having done things, the council will look to see that it has actually done them, and it will publish that information only if it is content that they have been done. So, the council is very much involved with the business in agreeing that the right to reply is true and fair.

Mr McCarthy: On clause 6, can you explain the issues that are involved in a sticker being valid if a business wants to appeal a new rating that it has received?

Ms Baker: These clauses are very dense to read, I have to say. To illustrate, I may be a business owner who has a coffee shop that, today, has a rating of 5. The officer could come in, do an inspection and, in a week's time, I get my new rating, which is a 3. I have a right to appeal that. I may not agree that that is a true reflection of what the officer saw at the time. During the appeal period, both ratings are valid, so I could choose to continue to display my rating of 5 until my appeal is heard. If it is upheld, I can then continue to display my rating of 5. Equally, somebody who received a higher rating would probably not appeal and would display their new rating straight away.

Mr McCarthy: Human nature being what it is, that means that they will keep the sticker for the higher rating for as long as they possibly can. I understand that.

Mr McKinney: I will deal with clauses 7 and 9. Clause 7 states that the Department will make regulations on how and where the sticker must be displayed. What is the general thinking on that? I know that we heard a bit about it, but what is the thinking?

Mr Jackson: The basic principle is based on what consumers have told us. For a lot of people, the decision to buy food from somewhere is instantaneous. They do not spend hours thinking about it, so this is about displaying a sticker somewhere where it really catches your eye as you approach.

The idea is that the requirement will be for the sticker to be displayed in a prominent place where it is clearly visible from outside the premises. The reason for having to develop this is that we have to bear in mind that we have a variety of types of business. Not all have a front door or a window. We have food courts and food malls where there are multisite operators, so we need to work out the detail of where that will work in practice so that the consumer can get the information and this will be enforceable by the local authority.

Mr McKinney: Earlier questions touched on the online aspect of it. Let me touch on an area that I raised earlier. I know that you probably heard, but what about the business of ringing in to a carry-out? Obviously, there is an oral potential there, but what about displaying the sticker on the packaging or on a leaflet or badge that accompanies the delivery?

Mr Jackson: A couple of issues come to mind. I will go with those first, and Kathryn might have others. I mentioned at the outset that the scheme has been designed with a view to minimising the burden on everyone, be it the food business operator or the local authority. The Food Standards Agency will fund the stickers, which we will provide to councils. The food business operator will not have to pay each time it gets a rating.

If you were to require the business to put the sticker on the produce, that would introduce a cost to it. You also have to consider ratings changing with time. If a business had stocks of the wrong rating, you can see how it would become quite complex. Ultimately, there would be potential for the consumer to be misled, as mistakes could be made and so on.

Mr McKinney: Turning to clause 9, if a council officer has evidence that the correct sticker is not being displayed, they can enforce its display. How would they go about that?

Mr Jackson: In terms of what?

Mr McKinney: Enforcement. How would they enforce that?

Mr Jackson: Do you mean when they are likely to pick it up and when we are likely to discover it?

Mr McKinney: I mean when they discover it. How is it enforced, and what do they do?

Mr Jackson: You could have different scenarios. The way the clause is worded means that it is not just the food safety officer who can be authorised; a council could decide to authorise a range of officers who work in the council on regulatory functions and who might be checking other regulatory requirements. When they are carrying out their visits, it may be detected.

As I mentioned, the food safety officer will conduct other visits. Other activities include sampling and surveillance, as well as planned inspections. At that time, because this has to be so prominent, if the rating was not being displayed, they would be able to pick up on it then. Indeed, they may get consumer complaints.

Mr McKinney: That is the detection, but what about the enforcement?

Mr Jackson: The enforcement is laid down in the options on dealing with some offences by fixed penalty. For other offences, there is the option of legal proceedings. It would be for councils to decide what enforcement action they wished to take in the context of the general enforcement policy that they will have for food safety matters.

Mr McKinney: OK, thank you very much. On clause 9(3), the issue of a business operating in a private residence was raised earlier, but will the 24 hours' notice not allow the owner to get everything cleaned up specifically for that inspection?

Mr Jackson: You have to remember that this provision is about the display of the sticker, and the power of entry is to find out what the situation is with the display of the sticker; what is happening in the business is not the issue addressed by this power. It is, however, standard practice for domestic dwellings across food safety and other legislation that a 24-hour notice period is the norm. This is not something unusual brought into the Bill; it is the normal way that domestic premises are dealt with.

Mr McKinney: Does that throw up the issue of entering a private residence for the purpose of inspection? I am not aware of that.

Ms Baker: The same exists in all food safety legislation. If you are going to a private residence to make an inspection, you are expected to give 24 hours' notice. Clause 9 is to do with the European Convention on Human Rights, which is all about the right to privacy and a home life, and council officers need to have regard to that in exercising any enforcement powers, whether that provision is detailed in the Bill or not. They need to comply with that convention.

Mr McKinney: What does it mean for the consumer, who may have been receiving dodgy goods up to that point, when suddenly an inspector finds the kitchen delightfully clean?

Ms Baker: A person can go and see that it is not there and tell the inspector. It is only when the inspector goes to check that they have to give 24 hours' notice. However, if people complain that, "When we have gone to buy food at this private residence, they do not display any information; we cannot see it", that information can also be taken to create —

Mr McKinney: We are dancing over the two issues of the sticker and inspection.

Mr Jackson: I think that the question that you are asking is this: does the fact that the general food safety law requires 24 hours' notice for domestic premises cause problems for how the person running the business behaves? I think that it would be fair to say, in practice, no. You could have a situation whereby, within 24 hours, certain bits of cleaning might be attended to if there was an issue. However, they cannot fundamentally change the structure of the business; they cannot change the facilities; they cannot change their practice records and how they do things. There is so much in a hygiene inspection that you cannot change just like that. You cannot really change the picture significantly.

Ms P Bradley: I know that my mother has to keep a record of temperatures; she has a book of dates, times and temperatures, when and how it was used. That is kept for anybody to come in and see.

Mr Jackson: The council will be examining that in detail during the inspection. Your next question might be this: what if they are making up the records?

Mr McKinney: You read my mind.

Mr Jackson: The way that inspections are carried out means that there is a lot of interrogation and checking of the validity of records to make sure that you are not being presented with made-up data. For example, if there are cooking records, you can ask, "Can you show me your cooking probe? Can you show me exactly how you take the temperatures? When do you take them? For what type of foods?"

Ms Baker: Or, "Oh, look. There are no batteries in your probe; it does not work."

Mr Jackson: If you are trying to cook the books, you can be easily caught out by a good food safety officer.

Mrs Cameron: Fearghal mentioned online, but I am not sure that we actually covered the online aspect. The Bill talks about the link to the website. At the weekend, I was looking at a restaurant website that was already displaying the sticker, which I thought was very good. However, that will not be a requirement in the Bill. It is very important, given the amount of business done online and via telephone order, that it should be just as visible on the website as if you were there in person. It should be displayed. When you are hungry and want a takeout I do not think that you are going to divert to the other website to check the hygiene rating. That is not realistic. If some businesses are already displaying it — I think that it is easily updated — would it not be good practice to make it mandatory to display it on websites?

Mr Jackson: There are a couple of key issues around that. The first is that, for some businesses, it is quite easy to control and change the content of their website; they can do it themselves if they are IT literate. For many businesses, however, that would introduce a cost because they pay people to maintain websites. It could also create a burden on district councils to check it. Resources for everyone in government and local authority will reduce and come under increasing pressure in the near future. It is important that councils can focus their resource on doing the work that really matters: getting inspections done and addressing the businesses that are failing to comply and potentially putting consumers at risk. To bring in that aspect, you would have to have the enforcement of it as well.

The added complexity is that not all the internet operations of the food businesses you might be ordering from are based in Northern Ireland. If you order from a supermarket, you have no way of knowing where the food could be coming from, and that could vary, depending on logistical issues and peaks and troughs. On the face of it, having the rating on the internet sounds dead easy, but it is actually rather complex for many businesses.

Mrs Cameron: The restaurant that I looked at had a five-star rating; that it why it had it on. What if it keeps the five stars after the Bill passes? What if it has another inspection and it goes down to a four, a three or a two but it does not change it on the website? Will there be anything in the Bill to deal with that? Say, as Paula suggested, somebody decides to print on the menus or, as Fearghal suggested, on packaging. What if it gets a five at some stage, has it printed, uses that and then does not change its rating down?

Ms Baker: You are quite right; there is nothing in the Bill. However, there is a reason: the Trade Descriptions Act already covers that. Trading Standards would be involved in businesses trading with false or misleading information; there is already legal provision to allow that to be followed.

Mrs Cameron: Does it check up on that?

Ms Baker: We have come up against some instances, even in the voluntary scheme. There was a lovely example of somebody in Fermanagh who had a big sign made with a big flashing light; however, their rating changed. At least, in that instance, the council spoke to the business. It was not very happy about taking it down, but the council said, "You're contravening the legislation. We're gonna report you to Trading Standards. Trading Standards know about it; they're quite prepared to take action because this is misdescribing your operation". The lovely light then came down.

Ms McCorley: I will be brief. My question is in relation to clause 10. Someone could be committing an offence if they fail to display a sign. You said that it would be for the courts to decide what a reasonable excuse was. Is it only for the courts, or can someone make that decision in other circumstances?

Mr Jackson: The provision on reasonable excuses is something that the food business operator would try to demonstrate if it was charged with an offence. That would be for the courts to decide. However, if a district council finds that a business is not complying with any aspect, it will always gather the full facts and evidence; it will not make assumptions or jump straight in. It will gather the full picture, and, from there, it will decide the appropriate action. It would be for a court to decide whether there was a reasonable excuse.

Ms Baker: I think that what you are saying is right. A district council may decide not to serve a fixed-penalty notice if it feels that the reasonable excuse is fair; so, yes, councils would do that.

Ms McCorley: So there is scope to do that rather than go through a process.

Ms Baker: Yes, it does not have to go to a court to make a decision if it is quite obvious.

Ms McCorley: Could a council make that decision?

Mr Jackson: Yes. A council has the flexibility to decide whether it feels that a fixed-penalty notice is the appropriate way to go.

Ms McCorley: OK. If, for example, someone was displaying a sign that was telling lies, say, or was not an honest indication, how would the council monitor that? Would it send people in to check or to act as clients?

Ms Baker: As Michael said, the Bill does not just mean that an environmental health officer is the authorised officer; it can be any officer of the council that it decides to authorise. For example, you might have people who are there on other council business, and they could be tasked, when they are down the street and doing their business, to make a note if they see any food businesses not displaying and then let us know at the end of the day so that we can follow it up. They will be out and about in their districts for all sorts of reasons: street cleaning; doing food hygiene inspections; following up complaints; health and safety visits; or doing consumer protection work around goods and services that are not what they say they are. Councils, particularly the environmental health departments that Michael and I have both worked in and are very familiar with, will be in commercial businesses regularly for a range of reasons.

Ms McCorley: Can a member of the public make a complaint?

Mr Jackson: We are in a good position in Northern Ireland in that our research shows that there is already a high awareness of the food hygiene rating scheme. When we have the statutory scheme, we anticipate that people will come to expect it to be there fairly quickly; they will know that it is something that a business should be doing. In Northern Ireland, when people find things wrong of that nature, they are quite willing to tell people about it. We expect that consumers, if they approach a business and there is absolutely no sign of the rating, would lift the phone and ring the council and tell them. The council would then investigate in accordance with its complaints procedure. It would go out and follow it up very quickly.

Ms Baker: Even now, we regularly get consumers phoning us to say that a business is not displaying. We have to tell them that it is not mandatory, so there is good knowledge.

The Deputy Chairperson (Ms P Bradley): Just on fixed penalty notices, clause 11 states that if an operator is not displaying a notice or is displaying the wrong notice, as referred to in clause 10, it is up to a council to issue the fixed-penalty notice.

Mr Jackson: That is correct.

The Deputy Chairperson (Ms P Bradley): Do we know how much a fixed penalty will be?

Mr Jackson: The fixed penalty has been set in Wales at £200, and if you pay within 14 days you get a 25% reduction to £150.

Ms Baker: Really, there is no reason why the fixed penalty notice cost could not appear in the Bill. We looked at other schedules in similar legislation in order to have a consistent approach, and there is no reason why the fixed penalty notice fee cannot be in the Bill.

The Deputy Chairperson (Ms P Bradley): Sorry, how many days did you say they had to pay the fee? I am just writing notes.

Ms Baker: They have to pay it within 28 days, but if they pay it within 14 days, the amount is reduced by 25%. That is an incentive for them to pay it quickly.

The Deputy Chairperson (Ms P Bradley): Is there an onus on a council to notify the public in any way that someone has received a fixed penalty notice?

Ms Baker: No, not currently.

The Deputy Chairperson (Ms P Bradley): In the Tobacco Retailers Act, it was decided that we needed to let the public know when people were breaking the law. However, there is nothing in the Bill at the minute.

Ms Baker: No, there is nothing currently in the Bill about that.

Mr McCarthy: I have three quick questions about clause 14, which states that a review will be instigated after three years. How did you determine a period of three years?

Ms Baker: There is provision in the Bill for a transitional period. Obviously, when you move from one scheme to another, there needs to be a period to allow for the schemes to transfer over. Across in Wales, the transitional period is 18 months. There are good reasons for that. It is tied in with the frequent period when officers do planned inspections of 18 months. Businesses were quite concerned — as were district councils, for some aspects of the scheme — that those bits should be reviewed when the scheme was live as a statutory scheme to see whether the burdens were greater than had been anticipated. We talked about the limit on revisits and the independence of appeals. The period of three years came about because it was considered that, once the scheme had formally transitioned over, which could take 18 months, you would need to allow at least a year with everybody being in the scheme to give them a fair opportunity to notice any issues that were affecting them. It was just to capture any issues within that time period.

Mr McCarthy: Are you confident that you will have the resources to carry out the review every three years? If, for example, priorities changed or budgets were cut, where would you stand?

Mr Jackson: The requirement in the Bill is to carry out a review within three years: it is not every three years. The idea is that any significant issues will have emerged within that period — within 18 months of the transition being completed.

With regard to having the ability to conduct that review, the Food Standards Agency takes the food hygiene rating scheme extremely seriously. It has been one of our flagship policies over the last few years. Clearly, if this provision is enacted, we will take that as a serious responsibility and ensure that we carry out that work. It will be important for the long-term sustainability of the scheme to make sure that it is working for both businesses and the district councils.

Mr McCarthy: Clause 14(8) gives the Department the power to amend the legislation by statutory rule to implement any recommendation made in the review. Does that leave open substantial aspects of the legislation to be changed at a later date through statutory rules? In theory, does that allow the Department to attempt to amend the legislation at a later date to say that there should be no appeals allowed and no rerating allowed? Shall I stop, or shall I go on?

Mr Jackson: The intent here is very much about refining the safeguards that we currently have. Having appeals processes and having the right to rerating are fundamental to the fair and equitable operation of the scheme, and there certainly is no intention on our part to remove those. The background to the whole scheme is that, in coming up with the voluntary scheme that this is now based on, we sat down with industry around the UK and with all interested parties. An awful lot of time and effort went in to building the voluntary scheme the way it is. Those safeguards really are fundamental, and we will only be looking to refine those. It will not — in any shape or form — be possible to remove those, because they go to the heart of the sustainability and credibility of the scheme.

Mr McCarthy: Or to amend the legislation to say that a council has six months to respond to an appeal if, the FSA does not have a firm understanding of how the legislation will operate in practice and hence thinks that it needs to be able to have a mechanism to substantially change it at a later date? Is this really the right time to be bringing forward the Bill in the first place?

Mr Jackson: With regard to extending an appeals period, the norm is that appeal periods against a decision are always short, and they have to be set at an interval that is practicable and reasonable. To move that way out just would not work. It would not make the appeal rational and fit for purpose, so there is not an intention to do that.

With regard to whether this is the right time to do it, we are very mindful of the current climate and the change that district councils are faced with over local government reform. As regards when we will get through this process, bring the Act into place and have the regulations enacted, we will take that very much into consideration. At the heart of this is the fact that the proposals in the Bill are very much about moving us from the voluntary to the statutory, but minimising the burden. Every council in Northern Ireland is currently operating the food hygiene rating scheme on a voluntary basis. It is important that we try and maintain the scheme as common as possible. Therefore, provided that significant burdens are not introduced over and above what is currently required, it should be relatively straightforward for councils to be able to take the scheme forward, because the burden on them is pretty much the same with the exception of enforcement.

Again, we expect that the vast majority of businesses will comply. We have also got to remember that we have a very small number of businesses with poor ratings in Northern Ireland. They will be the people who will be the focus of attention.

Ms Baker: I would just like to say very briefly that amending anything as a result of review is really very limited to only those aspects in subsection 14(3), so it is only very particular things that were raised as issues that needed to be reviewed in the consultation. I will also point out that they can only be made by orders that are dealt with by affirmative resolution, so they have to be voted on in the Assembly. They have the highest level of scrutiny. If Members do not agree with anything that comes forward in those regulations, they will not be voted through.

Mr McCarthy: OK. That is grand. Thank you.

Mr McKinney: I just want to revisit something here. What is the rationale for choosing a level three fine?

The Deputy Chairperson (Ms P Bradley): Under clause 10?

Ms Baker: Yes.

Mr Jackson: The primary reason for choosing a fine at this level is that it is consistent with other legislation on the nature of this particular offence. That was the rationale for it. If you look at failing to display a notice compared with, say, the substantive offences of not complying with food hygiene legislation, which is set at a higher level, you see that differentiation between the things which really, if they are not done in accordance with the law, can negatively impact on consumer protection versus providing information. That is the rationale for where we have placed this in the Bill.

Mr McKinney: Will it be a sufficient deterrent?

Mr Jackson: Ultimately, whether it is a sufficient deterrent will depend on the action that is taken by the court. Whether you have the maximum sitting at £1,000 or £5,000 may or may not have a significant impact on how a court decides to set a penalty. It is quite difficult, because it is within the gift of the court to decide what is appropriate.

Mr McKinney: What is the extent of any research that has been done on the impact that it will have on those businesses, particularly smaller businesses, in terms of loss of trade? Have you done any research into that?

Mr Jackson: We have not done any research into that. One of the key things that you have got to remember here is that a business that is able to get the top rating of five is doing no more than the law currently requires it to do. In this scheme, the requirements for a five rating are very clearly set out, so there is no gold-plating. You do not require good practice or bells and whistles. If you have got them, fantastic; you will have no difficulty getting your five rating and holding onto it. This is only about getting businesses to a place where they are doing what the law on food safety currently requires them to do.

Mr McKinney: Let us imagine a bigger business that can afford to potentially absorb the fine and carry on. Without that research, is there not a danger that you may not hit on the right level of fine?

Mr Jackson: Again, I think that you have to look at it from the angle of how the regulatory framework currently operates. If you look at the penalties that exist for significant food safety offences, you see that the level is set for different types of offence but that it does not take into account the size or nature of the business. When it comes to the setting of the level of fine, it effectively works on a one-size-fits-all basis. It does not differentiate between sizes of business, and that is the norm for how levels of fines are set. You are right to say that, for some businesses, it might be easier to take the hit, but another way of looking at it is that the bigger businesses, which have more of a reputation to protect, are probably less likely to want to take that chance. It would not make sense for them to be failing to do something of this nature, because it just would not be worth the negative publicity.

Mr McKinney: The words that leap out at me from this are "deterrent value". Ultimately, if there is a ceiling of £1,000, a court may come in at £500, so you cannot be assured. Would the proviso of, or at the least provision for, a higher fine not be something to have in your armoury for deterrent value?

Ms Baker: I think that it is fair to say that Michael is right. We have looked broadly at other types of offences and penalties, and that is where we have come to the level three. However, we are certainly prepared to take the Committee's views on that. If you think that that is not appropriate, we can look at that.

Mr McKinney: It is down to the deterrent. Ultimately, we do not want anybody going into court. We want good food served well that is cooked and prepared and safe in clean surroundings. That is the ideal world. For some businesses, £1,000 may not count, whereas merely having the provision might. Of course, it is up to a court in any event to impose those fines.

Mr Jackson: One other thing that the Committee may wish to bear in mind is that, in England and Wales, the levels of fines are currently under review. A set of regulations have been made pursuant to an Act that will apply to England and Wales. If those regulations go through in the relatively near future, which we envisage is quite a strong possibility, the level of penalty associated at level three, the maximum, would move from £1,000 to £4,000. So, automatically, through the review of the level of fine in England and Wales, you could, relatively soon, have a situation in Wales where the maximum fine would actually be £4,000 because the top of level three had moved.

Mr McKinney: All right, it moves.

Ms Baker: It will move up.

Mr Jackson: Members may wish to consider that.

Mr McKinney: I am conscious of time, but it is important to go through them all. Thank you for your time. Who is the clause on defacing the sticker aimed at?

Ms Baker: Anybody who defaces it.

Mr McKinney: How do you know?

Ms Baker: There would need to be clear evidence of that to go to court and present that and be able to prove it beyond all reasonable doubt.

Mr McKinney: It covers anybody.

Ms Baker: Yes.

Mr McKinney: Can a shop owner or food outlet owner claim that somebody else defaced it? Is there a clause in there that says you are not allowed to display a defaced sticker?

Ms Baker: You cannot display a non-valid sticker, and there is an offence in the Bill for that. If you are displaying a sticker that is not the valid sticker, that is an offence.

Mr McKinney: Would that give them a defence if they did not display a sticker?

Ms Baker: No, it would still be an offence not to display the rating sticker if you have been provided with a rating.

Mr McKinney: Let me get this clear. In other words, if somebody defaces it and the owner takes it off because they are not allowed to display a defaced sticker, surely that gives them a defence for not displaying the sticker.

Ms Baker: I think that the council officers will listen to what they are being told and look at that and collect information and consider it on the face of it. If they do not believe it, that is —

Mr McKinney: Yes, but is there any provision to be made there? Is there a gap in the provision?

Ms Baker: No, I do not think so. If somebody defaces a sticker, the premises can rightly phone their council and ask for a replacement.

Mr McKinney: That will be readily available.

Ms Baker: Absolutely.

Mr McKinney: OK. At no extra cost.

Ms Baker: At no extra cost.

Mr Jackson: If something happens and someone defaces, tampers or removes the sticker, and you a need a new sticker, they will be absolutely no difficulty in the local authority providing one very quickly to enable you to comply once you have realised that something has happened to your sticker.

The Deputy Chairperson (Ms P Bradley): If you notify the local authority as soon as you realise, that will be on their records anyway.

Mr Jackson: Yes.

Ms Baker: Yes.

The Deputy Chairperson (Ms P Bradley): You will be very glad to hear that we have nearly finished, as will the members. I have a few final questions about the schedule at the end of the Bill. I am going back to the fixed penalty notices. Paragraph 10 states that the money accrued from fixed penalty notices must be spent for the purposes of the legislation. Paragraph 14 goes on to give the Department the power to change how money from fixed penalties can be used. Why does one seem to contradict the other?

Ms Baker: It does not contradict it in the first instance. If fixed penalty notices are served and those monies come in, the council retains them, but must use them for purposes under the Act. Paragraph 14 allows the Department to make regulations for that money to be used for something else. We do not anticipate that we will use this power, to be honest. We do not even anticipate that there is going to be huge money generated. We have looked across to the likes of the display of the non-smoking sticker at the time of the smoking ban. Very tiny fixed penalty notices were served. Obviously, this is different, and we expect that there will be more in this, because it has more of a business impact, but we do not expect there to be huge sums of money generated.

Mr Jackson: Wales have only had nine fixed penalty notices since they introduced their scheme.

The Deputy Chairperson (Ms P Bradley): If it was to change, we would have our local councillors on to us demanding why. Most of us have come from local councils, and we would want to know why the money was being taken away. There would be issues with that anyway.

Ms Baker: We certainly would not want to take it away from the councils in the regulations. It might just be to use it for a purpose that was not just under the Act. We could maybe use it for other food safety reasons.

The Deputy Chairperson (Ms P Bradley): You could understand that that might actually be acceptable in some cases, because it is all one department in the council.

My final question is in relation to paragraph 14 of the schedule. In what circumstances, briefly, will fixed penalty notices not be given?

Ms Baker: If the circumstances were seen to be serious, you might just want to go straight to court. Someone who wilfully tells lies and puts up a misleading, non-valid sticker is different from someone whose sticker has fallen off and has not realised for a week. It is a more serious offence: you are going out of your way to misrepresent your business to consumers.

The Deputy Chairperson (Ms P Bradley): OK, I think that is us. Kathryn and Michael, thank you very much for your time. You are free to go now at last. You will maybe just catch the lighting of the Christmas tree and the carols.