Official Report: Minutes of Evidence

The Chairperson (Ms Maeve McLaughlin): I welcome from the Food Standards Agency (FSA) Michael Jackson and Kathryn Baker. The Committee has received a range of written and oral evidence that you are aware of. The purpose of today's evidence session is for us to make you aware of the issues and for you to provide us with a response. I advise you that the meeting will be in question-and-answer format, and we will take each clause of the Food Hygiene Rating Bill in turn. The Committee has received the FSA correspondence on the proposed amendments, and I thank you for that. We will deal with that as we come to the relevant clauses.

At this stage, I will invite questions from Committee members. I will open on clause 1. The Chief Environmental Health Officers Group (CEHOG) made the point that 'Food Law Code of Practice' encourages the removal of lower-risk premises from inspection programmes or the use of lighter-touch interventions rather than what is called a full inspection. However, lighter-touch interventions would not collect sufficient information to produce a rating. Therefore, CEHOG is concerned that, for some premises, there will be no mechanism to renew their rating, and, over time, it will become outdated. Similarly, Co-operative Food stated that councils are not required to inspect all food businesses, thus some would not have a rating. How do you respond to that?

Mr Michael Jackson (Food Standards Agency Northern Ireland): The substantive point in the views expressed by the chief officers is that there are some very low-risk businesses that, when subject to either light-touch interventions or alternative enforcement strategies, will not get an inspection as frequently as they currently do from councils in Northern Ireland. The requirement to conduct inspections is, in essence, the same at the moment through the food law codes of practice in England, Wales and Northern Ireland. Some councils in Northern Ireland have opted not to use the flexibilities. It is not a question of us looking to change and make things more flexible at this point but a question of us using the flexibilities that are there.

The chief officers are correct in saying that, for certain businesses, where there is the option to have a light-touch intervention, there may be a visit that will not result in a rating, but the majority of businesses will in due course — the next time around — get an inspection that would result in a rerating. The only businesses that drop out of the scheme altogether are those that are of a very low-risk nature; for example, a clothes retailer that happened to be selling chocolate confectionary for Valentine's Day, or something like that.

The Chairperson (Ms Maeve McLaughlin): Does that leave a gap, if some businesses will potentially not have a rating?

Mr Jackson: It does not leave a gap in how the scope of the scheme is defined. Businesses that are within the scope of the rating scheme as proposed will, at some point, receive an inspection that will allow a rating to take place. The councils may also decide that they do not wish to avail themselves of the flexibilities to conduct light-touch interventions, and some may continue with inspections that would generate new ratings.

The Chairperson (Ms Maeve McLaughlin): Is there any indication of the timescale for businesses not having a rating?

Mr Jackson: Consider a catering business that is being very well run, has good management systems in place, is keeping on top of maintenance and cleaning, and has good procedures. Through the application of the light touch, as allowed in the code of practice, a very good business of that nature could, if the flexibility were applied, get an inspection once every four years. It would be visited at two-year intervals, but, if the light-touch flexibility were being adopted, the intermediate visit would not necessarily gather information to allow a rerating. The light-touch visit may, if conditions have changed significantly, trigger an inspection to be carried out, thereby allowing the production of a new rating. Look at it in this context: a business is inspected today and gets a rating of 5, and, if the light-touch visit takes place in two years' time, it will determine whether that 5 is still right. The inspection will look at whether there has been significant change in the activities, the way in which the business is being run and the level of compliance. If all is well, there is logic in having that rating continue. If something has gone fundamentally wrong, the light touch, in effect, stops, an inspection will be carried out and a rerating conducted. There is a safeguard in the inspection system.

The Chairperson (Ms Maeve McLaughlin): One of the issues that the Co-operative Food raised was that the clause is not necessary. It comes on the back of what you are saying: that there are only two scenarios in which an inspection would be carried out a short time after the previous one. It talked about a rerating if there is evidence of a food hygiene risk but stated that, in both scenarios, the production of an up-to-date rating would presumably be required. I am wondering about your explanation for clause 1(2) being necessary.

Mr Jackson: The rationale for clause 1(2) is to recognise the fact that, when an inspection is carried out, if the business is found not to be complying, and there are significant issues, irrespective of the hygiene rating system, the council will automatically go back, within a short space of time, and conduct a further inspection to see that the business has done what is necessary. It is to cover that scenario, because, in that situation, quite often it is not appropriate to rerate when an inspection is effectively being conducted to determine whether corrective action has been taken.

Ms Kathryn Baker (Food Standards Agency Northern Ireland): I think that it is fair to say that, in circumstances in which an officer does what we would term a compliance revisit, such as in the situation that Michael described, where somebody is not complying to a level that the officer feels that he or she needs to come back quite quickly and is not prepared to wait very long to see that the issues have been rectified, the officer will go back but will probably concentrate only on the issues that need to be rectified. The officer is not going to make a full assessment of everything that needs to be looked at to generate a rating each time; rather, the officer is going in to address the specific non-compliances. It is to take account of the fact that we are not imposing a requirement on councils to have to undertake a large inspection each time to consider everything in order to generate the rating. It is for another purpose. It is to deal with non-compliances and get them sorted out quickly. It is of a technical nature, but it is just not to catch those particular visits.

The Chairperson (Ms Maeve McLaughlin): On clause 1(4), the consumer organisation Which? stated that the legislation should also cover business-to-business supply of food, given that, as it highlighted, that is the case in Wales. I am just looking for your explanation as to why you are not planning to cover business-to-business trade in the first instance.

Mr Jackson: There are a couple of aspects to that. The first is that our view was that the best approach to getting the scheme up and running on a statutory basis was to work it on the same basis as the voluntary scheme, which is about those businesses to which consumers go directly to purchase food. The primary reason for having the rating sticker displayed is so that people can make that decision. When you are looking at trade-to-trade business, where the consumer is not going directly, that information would not be as meaningful, because it would not be taken into consideration in the decision to purchase trade-to-trade.

The other aspect is that, for a business to make an informed decision to buy from another business, it needs a lot more information than just the basics of a food hygiene rating. For example, if you are making a decision to source from a given supplier, you will want to have information about its quality-control systems and testing methods. You would want to have a much more comprehensive picture to make that decision on the trade-to-trade aspect, particularly if you wanted to be able to establish a due-diligence defence in the event of something going wrong, having obtained food from that source.

Finally, one of the points that was raised by the chief officers' representation was that they are very mindful of the impending local government reform and the challenges that that is going to present. Again, our view was that the sensible approach would be to work on the same basis and not bring in any new businesses at the outset. What probably would not be apparent is that, when the scheme was launched in the first place — the voluntary scheme — an awful lot of work was done to get to the stage at which you launch the scheme. If we were going to bring in trade-to-trade from day one, another significant amount of work would need to be done with those businesses to get them organised and prepared. In clause 1 as drafted, the option is there. We are not saying that that is not something to be considered, but we will be able to do that in due course, should the timing be right and there is a good case for it.

Ms Baker: On the back of what Michael has said, I will draw your attention to clause 1(7), which states:

The amendment has been proposed for that very reason, because the current definition relates only to those establishments supplying food directly to consumers. There would be a possibility to amend that after a period, with the scheme operating as it currently does, which is on a voluntary basis, where it supplies information to consumers. Some evidence could be gathered, and work could be done with the types of businesses that would then need to be brought into scope. That could be done through an order or a subordinate power.

The Chairperson (Ms Maeve McLaughlin): You think that clause 1(7) covers that.

Ms Baker: Yes.

Mr Jackson: That is the exact reason for having it in clause 1(7).

Ms Baker: It allows trade-to-trade to be a possibility in the future. It is similar to the way in which it was done in Wales, which did not have it at the outset either but brought it in through subordinate legislation a bit further down the line.

Mr McKinney: I want to return to the point about the defence of not having business-to-business at this stage. At least your inspections touch on other businesses. Obviously, any business that you are inspecting has a back door through which product comes. From what we saw in the inspection, you are looking at a business's labelling. You are, in some ways, touching on a business, although you are not inspecting that business's own production.

Mr Jackson: If a caterer is running the operation in a responsible way and taking its responsibilities properly, checks will take place on the goods arriving, as you say. If there were anything wrong, it would be able to raise that with the supplier. That is a much bigger picture than just the rating of food through the supply chain.

Ms Baker: You also have to consider that the Bill simply requires businesses to display a sticker voluntarily. You have to ask yourself this: what benefit is there in asking a manufacturer to display a sticker? Manufacturers do not go to each other's doors to buy food. It is done in a different way. They will look at specifications and audit them. They will not go to a door to look for a sticker and make their decision based on that.

Mr McKinney: I suspect that, through your inspection, if a meat business were presenting at a number of businesses' doors without adhering to the proper standards, the focus from an inspection point of view would go on to that business.

Mr Jackson: There is another point to note. Although it does not apply to all manufacturers who would ultimately be the source of material that is being sold trade-to-trade, because of the regimes that operate in, for example the meat industry, by which I mean audits and inspections that are carried out by district councils, there is already transparency around the audits' findings. We have a procedure in place whereby, for example, when slaughterhouses and fresh-meat-cutting establishments are audited, a full report is published by the Food Standards Agency. There is not a whole part of the food chain —

Mr McKinney: — that is not covered.

The Chairperson (Ms Maeve McLaughlin): Thanks, Fearghal. CEHOG and the Co-operative Food have both stated that clause 1(5) is not clear on what constitutes an inspection for rating purposes and on how it relates 'Food Law Code of Practice' and the brand standard document. Can you clarify the position for us?

Ms Baker: When you read the clause on its own, there is a lot of other information that is currently used, if you know what I mean, to determine what an inspection is. We are assuming that that information will all still be relied on. Officers will still be referring to 'Food Law Code of Practice'. What an inspection is will be detailed fully in the guidance that will support the Bill in the way that it is done now, which is through the brand standard document. There is no intention in how the Bill is drafted to be any different under a statutory scheme from what happens now.

When we say "inspection" — clause 1(5), as you have pointed out, relates it to being an official control under regulation EC 882/2004 — it refers to certain types of activities that happen that are detailed in 'Food Law Code of Practice'. We refer to those as inspections, partial inspections and audits. It is only those types of visits that councils do, where the full amount of information is gathered, where a rating can be generated. Councils do other visits, but those do not generate the full amount of information. They might go there to do surveillance or sampling visits, but they could not produce a rating in those circumstances. We fully intend to clarify that in the guidance that supports the Bill in exactly the same way as it is done in the brand standard document. There will be no difference from what currently happens.

The Chairperson (Ms Maeve McLaughlin): Will it be clarified in the guidance?

Ms Baker: Yes, very much so.

The Chairperson (Ms Maeve McLaughlin): I am sorry, folks. I will have to suspend the meeting; that is a vote.

The Chairperson (Ms Maeve McLaughlin): Apologies to our witnesses for the inconvenience and disruption.

I am looking at clause 1(6). The Hotels Federation said that hotels should be exempt from the mandatory displaying of a rating because consumers are not aware of what the various ratings mean and that, because hotels are already graded for service and structure, a food hygiene rating would confuse the customer. How do you respond to that?

Mr Jackson: There is already a scheme in place for the rating of overall quality standards for hotels. We do not believe that introducing a food hygiene rating, which operates on a different basis, is potentially confusing. The hotel grading scheme works on the basis of stars. When we were developing the voluntary scheme, which seems like many years ago, one of the main pilots was a star-based scheme. A lot of people still talk about 5 stars as opposed to the rating of 5. One of the reasons why we opted to go for a numerical rather than a star system was the potential for confusion.

The other thing to bear in mind is that the sticker clearly states that this is a food hygiene rating. We do not believe that the fact that it is a number rather than stars creates confusion. Indeed, we engaged with consumers on the development of the current sticker in the context of hotels, and it was not an issue that they raised with us. They find that the food hygiene rating sticker does what it says on the tin, and they understand it.

The Chairperson (Ms Maeve McLaughlin): So, it was not picked up through your process that confusion was an issue.

Mr Jackson: No.

The Chairperson (Ms Maeve McLaughlin): OK. On clause 2(1), the Chief Environmental Health Officers Group (CEHOG) was concerned about the requirement for councils to notify a business of its rating within 14 days. It would prefer that the 14 days was included in guidance rather than being part of the legislation. I am looking for your rationale for including that in the Bill.

Ms Baker: The 14 days is a carry-over from the voluntary scheme, and there is, I suppose, a knock-on effect from the timescales here in determining when a rating becomes valid. We totally take on board what CEHOG has said, which is that it currently does not have any problems responding within the 14 days but wants some flexibility so that when a council faces exceptional circumstances, such as a big food incident or a flood situation, that require it to divert officers to other work temporarily, meeting the 14 days is not an absolute requirement. We are confident that we could consider providing an amendment that would provide that flexibility to it when there are exceptional circumstances.

Mr Jackson: That would be consistent with the food law code of practice that drives the inspection system. In that, we acknowledge that there can be exceptional circumstances that may require you to do things other than plant inspections. There is already a process that we can agree to vary the inspection programme. Providing flexibility for exceptional circumstances seems a reasonable amendment to consider.

The Chairperson (Ms Maeve McLaughlin): So that I am clear, will you confirm that you are considering an amendment?

Mr Jackson: Most definitely.

The Chairperson (Ms Maeve McLaughlin): OK. Thank you for that clarity.

Dr Hyde, an academic who carried out some research on food-borne illnesses, suggested that clause 2(3)(g) should also require businesses to be informed by the councils of the penalties for not displaying the rating or not providing information verbally to customers. Do you have a view on that?

Ms Baker: Yes, we do. We agree that businesses should, at some stage, be informed of the penalties, but we do not think that the information needs to sit in the Bill. With all the legislation that the district councils enforce, it is not routine for them, when they first write out about a requirement, to outline the penalties that would apply. They will work through their hierarchy of enforcement, and, once it gets to the point at which they feel that they want to raise the issue and take more formal enforcement action, they will speak to the operator about penalties and what that means to them. We do not disagree that businesses should know the penalties; we just do not think it necessary for that to be specifically on the list. The information would be passed to businesses at the right stage of the process. Rather than bombarding them with lots of information up front, they would get it at the point at which it would be more relevant.

Mr Jackson: In conjunction with that, in advance of a statutory scheme going live, there would be significant promotion of the scheme. We will work with the district councils to ensure that the requirements of the scheme and the sanctions are effectively communicated to everybody before we go live so that they understand the consequences of failing to comply. That would be done as a broader package of explaining the statutory scheme and how it is intended to operate.

The Chairperson (Ms Maeve McLaughlin): You think that it does not need to be in the Bill; you think that there is enough clarification.

Mr Jackson: Yes. Introducing it in the Bill would be inconsistent with the approach throughout the requirements for food hygiene and safety. None of the other regulations that stipulate what food businesses must do contain that level of detail about communicating the sanctions for committing an offence.

Ms Baker: It would certainly sit in the guidance, which will flesh out further details.

The Chairperson (Ms Maeve McLaughlin): So, it will be in the guidance. OK.

On clause 2(4) and clause 2(5), Co-operative Food pointed out that no timescales were attached for the councils to inform you, the FSA, of a rating or for the FSA to publish the rating on its website. It found from experience that it often takes two and a half months between being inspected and the rating being uploaded to the FSA website. So there is the potential for the FSA website to display an out-of-date rating detrimental to a business that has improved its rating or to give a false impression to consumers when a rating has fallen. Have you considered putting a time frame in the Bill for councils to inform the FSA of a rating?

Mr Jackson: We have looked at that. How the voluntary scheme operates at the moment is that councils are required to update their data — in other words, to notify us — at a minimum frequency of once every 27 days. If they are adhering to the brand standard, that is how frequently they will notify us. Publication by us happens straightaway because of our IT approach: when the data is uploaded, it is released to the website.

We accept this point. Putting a requirement on the FSA to publish would have to go hand in hand with a requirement on the local authority to notify us of the rating so that the two could work together. At the moment, most councils do not find difficulty with being able to notify us in accordance with the brand standard. To ensure that the system functions and that the ratings are regularly notified to us and updated in a timely fashion, it would be possible to consider an amendment that would put both into the Bill: for the council to notify and for the FSA to publish.

The Chairperson (Ms Maeve McLaughlin): One of the issues that came up for us was this: given that many people will use the FSA website to check ratings before ordering food by telephone or even when picking a restaurant, is it not vital from your perspective that you lead by example by making sure that your website is as up to date as possible?

Mr Jackson: That happens at our end automatically once the information is communicated to us. We need to be mindful of introducing a higher frequency of notification to us that would present a significant burden to the councils. Usually, inspection work is planned on a monthly basis and is conducted, reported and entered into their system etc. There is a logic for allowing what is, effectively, a four-week period for them to notify. There would be significant resource implications in pulling that back to a shorter period. We also have to bear in mind that the latest research that we conducted shows that, in Northern Ireland, 91% of people using the scheme use the sticker rather than the website. The sticker is, by far, the most prevalent way of people informing themselves of the ratings.

The Chairperson (Ms Maeve McLaughlin): Is it the case that the Welsh legislation requires the FSA to publish ratings within seven days of receipt from the council?

Mr Jackson: Yes. The Welsh Act has a stipulation for the local authorities to notify within a certain period and for the FSA to publish within seven days of that time.

The Chairperson (Ms Maeve McLaughlin): That is in the legislation.

Mr Jackson: Yes.

The Chairperson (Ms Maeve McLaughlin): On clause 2(6), concerns were raised about the mandatory stickers, which you started to touch on there. The Hotels Federation believes that the current plastic sticker is not in keeping with the standards of a four- or five-star hotel. The Chief Environmental Health Officers Group believes that councils should be able to add their own branding to the sticker so that consumers would know who to contact with a complaint. Pubs of Ulster believes that there should be different colours of sticker for different types of food business. Do you have a response to those views?

Mr Jackson: I will take those in reverse order and start with the views expressed by Pubs of Ulster on different colours. The important thing to remember is that the information that is of value to the consumer is the rating: it is the number that is important. If you were to introduce different colours for different categories of premises, it would be meaningless and confusing. It would not add anything to informing the consumer. One view that comes across from industry is that the stickers should look different because not every business needs to do the same thing to get a 5 rating. That is true. For a small retail outlet not handling open, high-risk food, the requirements on it — the amount of work that it will have to do and the records that it will have to maintain to be able to comply with the law — are different from the requirements on a hotel, which will need to have much more complex systems in place.

At the end of the day, the rating shows that a business, taking into account the nature of it and its activities etc, is complying. If you have a single sticker, whichever colour it happens to be, with the number 5, the message to the consumer, whether it is a corner shop, a restaurant or hotel is this: the business complies fully and has very good standards. That is the message that consumers need to get. Consumers make this decision very quickly. We know from our research that the food hygiene rating is only one of a number of factors that we all take into consideration when deciding where to buy food or eat out. Having a different colour would, in our view, definitely lead to confusion and not add anything to a consumer's decision-making.

Ms Baker: Do consumers need to judge what type of establishment they are going into based on the colour of the sticker? They will know when they are in a retail establishment. We do not feel that having different coloured stickers would add anything to the decision-making process that the food hygiene rating is there to serve.

The Chairperson (Ms Maeve McLaughlin): What about knowing whom to contact when processing a complaint?

Mr Jackson: When consulting on the regulations that will detail the prescribed format of the stickers, we will look carefully at the point made by CEHOG about the ability to have branding on them. We fully acknowledge that the district councils are key partners in the delivery of the scheme and understand why they feel that they should have their logo there. A valid point was made about it showing the council involved so that, if you see something that you are not happy with, you know which council to go to.

We will have to think carefully about the consequences of that for the cost of maintaining the scheme. We have made some enquiries about costings and the process. The way it works at the moment is that, under the voluntary scheme, councils have the option of using the free stickers provided by the Food Standards Agency, which have the statement:

in which case they get the stickers free, or, if they want their logo on it, they pay for that. Our stickers are now used across England and Northern Ireland, so there are economies of scale, and the cost of providing them is minimised through not having logos. Our current arrangements for the printing of stickers cannot cope with logos, so we would have to look at a different approach. We completely understand the points made by the chief officers' representatives and will look at them when consulting on the regulations about the format of the sticker.

The Chairperson (Ms Maeve McLaughlin): You are saying that there is really no need to change the design or colour of the stickers and that doing so might confuse people. You feel that the real issue is the rating, but you will look at and consider CEHOG's view. Is that right?

Mr Jackson: Yes. When we get to the stage of putting forward our proposals for the prescribed sticker and consulting on the regulations, we will definitely look at the issue of the council logo. We do not believe that it would be appropriate to consider different colours for different categories of business.

The Chairperson (Ms Maeve McLaughlin): OK. Thank you for that.

Mr McCarthy: Thank you very much for your presentation. I want to ask about clause 3. Pubs of Ulster believes that there should be a period of grace after assessment to allow businesses to rectify any issues identified and that this should take the place of the appeal. It also believes that businesses are reluctant to use the appeals process for fear of being penalised at a later date. How do you respond to those concerns? Have you considered having a period of grace rather than an appeals process?

Mr Jackson: Again, I will start in reverse order. On the concerns raised by Pubs of Ulster about a lack of willingness to use the appeals process, we understand why some people may be reluctant to go down that route. They may have been less likely to use the appeal route in a voluntary scheme that did not require them to display a sticker. However, the fact that it will be a legal requirement to display the sticker would reasonably lead you to believe that, if people felt that an officer had awarded the wrong rating, they would be more likely to appeal. We understand that some businesses want to work with their environmental health departments and not fall out with the enforcer. When looking at the implementation of the scheme, we will certainly consider ways to encourage businesses to avail themselves of the appeal process.

The period of grace is a matter that, we believe, goes to the heart of the scheme, and we do not feel that it would be appropriate. I go back to what we are trying to achieve through the mandatory display. It not only provides consumer information but is a tool that is, in effect, deregulatory in nature rather than an additional regulatory burden, in that it lives on the back of the existing inspection system. In other words, the inspections are being done anyway because they are required, so the rating is produced. It encourages and drives self-compliance and self-regulation.

If a scheme allowed you to wait for an inspector to come out and tell you what was wrong so that you could you put it right, there would be absolutely no incentive to comply with the legislation. We have to remember that the food hygiene law requires compliance with the legislation at all times. You, as a responsible food business operator, should be doing your best to comply, and you should not be waiting to be told what is wrong. We must also remember that we will use this rating as a likely predictor of future compliance so that consumers can have confidence. If a scheme was operated on the basis of a period of grace, the rating given would be driven by officers telling businesses what to do. It would no longer be a prediction of future compliance and would, in our view, make the scheme meaningless.

Mr McCarthy: Right, so it is a no to that one.

I want to ask about clause 3(2) to clause 3(10). Fermanagh District Council queried whether clause 3(2) allows a line manager who did not conduct the inspection but signed off on the original rating to be involved in the appeal. Would that be the case? Are you satisfied that councils will have the resources to be able to find suitable people to conduct the appeals?

Mr Jackson: Yes. On a line manager being involved, clause 3(2) as worded refers to an officer:

That would mean that, if you signed off the rating, you were involved in its production, so the line manager would not be an appropriate person to deal with the appeal. The appeal is very much about considering matters of fact. Therefore, someone above the line manager, who may not be intimately familiar with the evidence of the scheme, should be able to challenge whether the proper process has been followed. We think, bearing in mind local government reform and the fact that councils will be significantly larger, that it is perfectly reasonable that someone not involved in the production of the rating would be in a position to consider the evidence and decide whether the right decision had been made. It might have been more challenging had we been staying with 26 councils, but this is where having 11 councils will work in our favour.

Mr McCarthy: Do you reckon that the councils will have sufficient resources to find suitable people to conduct appeals?

Mr Jackson: We do not envisage difficulties. The reason for coming to that view is that we have been liaising closely with our colleagues in Wales on their experience of operating the Act for a year. There is always a worry that there will be a deluge of appeals and requests for rerating visits, but the experience is that the number is not massive. Colleagues in Welsh local authorities have been able to cope with the appeals within the prescribed time limits, which are similar to what we propose. It has not placed a massive burden on the councils.

Mr McCarthy: I move on to clause 3(7). Fermanagh District Council suggests removing the text:

It makes the point that, if a business has requested an appeal, it should accept that a council needs to take all steps necessary to establish that the rating was correct. Why is this text included in the clause?

Ms Baker: We agree with Fermanagh that it is possible that a council may need to carry out an inspection to consider an appeal. We do not think, however, that we need a right or a power of entry as such in the Bill, which is the converse of the wording there. If an operator decides not to let somebody come in to make an assessment for the appeal, the appeal just does not go ahead, and the operator retains their current valid rating. There is no need to provide a power as such because, by virtue of the fact that the business has asked for the appeal, they need to let the officer make that decision.

Mr McCarthy: OK, right. I move on to clause 3(10). Fermanagh has raised concerns about the possible cost implications for another district council investigating an appeal and whether data protection issues could arise. In your opinion, would there be data protection issues?

Ms Baker: I think they are alluding to the provision for a review of the process. At consultation stage, some people asked whether the appeal would be sufficiently independent. In the Bill, we commit to looking at that when the scheme has been operating for a period. I think they are thinking ahead, and, yes, the consequences could be another local authority looking at the appeal.

We do not see that there would necessarily be issues with this. It currently operates in the voluntary scheme in England, where some local authorities will operate as a peer review where they do not have independent persons in their own council to do that. Again, however, we would look at the evidence at the point of review, consider the possibilities and options and consult on those with any subordinate regulations.

Mr Jackson: If, in future, through the review that we will be obliged to conduct, we established that there was an issue with appeals and their independence and who does it and how it is done, we would have to look at all aspects of changing the mechanism, which would include issues around data sharing and how that would happen. That would be very much at the point of considering options down the line. It is not an issue for the appeals mechanism as proposed in the Bill at the moment.

Mr McCarthy: I will move on to clause 4(2). The Chief Environmental Health Officers Group (CEHOG) has queried the way in which the term "inspection" is used in this clause and state that it has a different meaning from how the term "inspection" is used in clause 1(1). Can you clarify that position?

Ms Baker: Yes. Again, we anticipate providing further clarity on that in the guidance. This is around a rerating inspection, and it is different in the sense that it is not an inspection driven by the programme of inspections that they do under regulation EC 882/2004. It is not one of the routine and planned inspections that they do that falls out of their programme; it is in response to a request for a food business operator to come in and provide them with a rerating. In that sense it is not an EC 882/2004 official control inspection but a rerating inspection for the purposes of the Bill. We will provide that clarity and level of detail in the guidance.

Mr Jackson: It is a duty to inspect, rather than an inspection. Earlier in the Bill we talk about an inspection, and this is requiring them to inspect to be able to generate the rerating that is being requested.

Mr McCarthy: The Chief Environmental Health Officers Group is concerned that the right to a rerating within three months might encourage temporary improvements, which would defeat the purpose of the scheme. However, on the other hand, Co-operative Food believes that businesses should be entitled to a rerating within three months. What is your rationale for suggesting a time period of three months?

Ms Baker: You are quite right. This has always been one of the points that has resulted in very divergent views from stakeholders. The councils have always preferred the period by which they can do the rerating to be longer because they can plan it into their planning better, and it gives them a longer time to do that. They also think that it will mean that businesses really have to commit to maintaining those improvements and showing to the consumer that there will be long-term improvement and not a quick fix. The converse of that, as you say, is that businesses clearly want the rerating inspection to happen as quickly as possible, for obvious reasons.

This is an area that we discussed long and hard with all the stakeholders. It is currently in a voluntary scheme. The situation is that once an inspection has been carried out, a business cannot ask for a rerating inspection until three months has passed. Then they can they ask for it and it can be completed within three months, so you are really looking at a maximum period of six months. In response to the industry's views and looking at this in the round, the fact that businesses will now pay for the rating and the councils will get that resource back in, which will help with their planning, we agreed that that period should be reduced to three months. That is the reason that we have the three-month period in the Bill.

Mr McCarthy: Finally, the Chief Environmental Health Officers Group is concerned that there is currently no limit on the number of times a business can request a rerating, and believes that this should be limited to once every six months. What are your views on this suggestion?

Ms Baker: We think that this may end up being a possibility. As is the case with the appeal, we have proposed in the Bill that this area should be reviewed once the scheme has been operating. Again, in the consultation, councils expressed concerns that a business might make lots of rerating requests. We really think that they should put their houses in order after the first one. So we do accept this point, and we have committed to looking at what will actually happen when the scheme is statutory. At this point, we can look to Wales because their scheme has been operating for over a year now. We have asked them this particular question: are you finding issues where businesses are asking for multiple rerating inspections? That has not been borne out in the Wales example, so we do not think it may be as much of an issue as CEHOG thinks it will be. However, we will review it and look at it. If a limit needs to be imposed, we will obviously look at options for that, consult all the stakeholders and take a view on what that should be.

Mr McCarthy: OK. On clause 4(5)(c), Co-operative Food believes that there should be a set fee for a rerating which applies across all council areas. It would like this requirement to be specified in the Bill. What are your views on that suggestion?

Ms Baker: We entirely agree with the Co-op that it should be a single flat fee. That was a very strong preference that came out of the consultation. We do not think that it should be on the face of the Bill. We have provided in the Bill that a regulation can be made to specify a single fee, so we have already said that there will be a single fee in Northern Ireland, but once you put it in the Bill it is very difficult to change it, because it is primary legislation. Obviously, over time, we might want to go back and review what the fee is and look at what the actual costs are. That is why it is contained in regulations.

Mr McCarthy: Finally, with regard to clause 4(6), Co-operative Food believes that businesses should be allowed to apply for a rerating immediately, rather than wait for the 21 days in which an appeal could be made to expire. It states that some businesses will accept that the rating they received was fair and will not want to appeal it, but will want to make improvements as quickly as possible and seek a rerating. It suggests removing clause 4(6)(a). What are your views on that suggestion?

Ms Baker: Again, I go back to the point that this whole issue of the period in which a re-inspection actually happens after the first inspection is an area which has been greatly contended by everybody. We worked really hard with stakeholders to agree a compromise, which was that once a business receives its rating, it can appeal within 21 days, and only once the appeal is over can it then move into the next safeguard procedure, which is asking for the rerating. They get that within three months. Looking at the period as a whole, the councils felt that although they really would have preferred the maximum period to have stayed at six months plus the appeal period, we were reducing that by half by moving it to three months plus the appeal period, so taking the appeal period out as well as reducing that further again. I do not think that we would want a situation in which somebody may ask for a rerating and then appeal afterwards. We think this is consequential in the process and that really the appeal needs to be dealt with first off before moving into the next phase.

Mr Jackson: Sometimes businesses can get a little bit confused about appeal and rerating and what the two things are. If you have a situation where the rerating can actually happen within the appeal period, you are likely to introduce even more confusion. In addition, this balance that Kathryn has described about an overall period and the fact that it is sequential is also logical, so that people know at any given time that they are either in an appeal period or they are not, or they are in a period when they can get their rerating done. The key thing from an industry perspective is that this period has been significantly shortened from what we have in the voluntary scheme.

The Chairperson (Ms Maeve McLaughlin): I just want to remind members to check their phones, because there seems to be interference with the recording.

Mr McKinney: Moving on to clause 5, and particularly 5(2), in Dr Hyde's evidence, he made the point that a council's power to edit representations or to refuse to send them to the FSA is limited and would be subject potentially to judicial review, and that this should be made clear in the legislation. Have you views on that?

Ms Baker: That is a very technical one.

Mr McKinney: It is the right of reply.

Mr Jackson: On that very technical view of the issue of right to reply, we have considered that and we do not believe that it is actually necessary. There were concerns around why you would refuse to publish a right to reply and whether that was appropriate. The main reason why this clause is worded in the way it is to ensure that anything which is published by way of a right to reply is accurate and not slanderous or defamatory. That is the rationale for its being the way it is. On the detailed point that was made by Mr Hyde, we did not feel that that was necessary.

Mr McKinney: Even with refusing to send them on to you? Would that not invite judicial review?

Ms Baker: It would, and we think that is OK. That is what judicial review is there for. If somebody feels that due process has not been followed or they have a concern about how that is being applied, I suppose, a member of the public or another person can ask for a judicial review.

Mr McKinney: Would it not make the process more robust if you were to receive information on those who feel potentially that they have been wronged in any way? If councils do not bring that forward, are they potentially sealing their own processes, and you do not have sight of them? You have overall charge of this process.

Mr Jackson: The difficulty here with regard to a right to reply is that only the council can make the decision as to whether what the food business operator has put forward is an accurate and truthful representation, because only the council is in possession of the full facts. We do not have that information on the detail of every inspection. We would not want to introduce a requirement of that nature, because that would put an additional burden on both the councils and ourselves.

It is also worth reflecting on the fact that the right to reply, whilst there as an additional safeguard for businesses, is not something which is widely used in the voluntary scheme. We do not see that becoming particularly more prevalent in the statutory scheme. We do depend upon the professional judgement of councils to be able to decide whether a proposed right to reply from a food business operator is an accurate statement, just as we depend on their professional judgement to conduct the inspections.

Mr McKinney: Yes, but obviously I am thinking that, with regard to the right to reply, this is an assessment now not just of the food establishment, but of how the council is operating. Where an individual council is receiving potentially a disproportionate amount of questions over its process, you will not necessarily learn that if you do not receive that information and it refuses to send it to you.

Ms Baker: Would it help if we were able to consider this? We have discussed this with legal counsel. It is quite technical, and I am not sure whether I have entirely got my head round it. If we were to provide some further written information around this, just to clarify exactly the point that Richard Hyde is making —

Mr McKinney: It is about how you would learn about your own system if the information is not coming back to you. You could find that in one particular geographic area or one particular range of assessments or tests, there was in fact a constant issue coming back, and you might learn better.

Ms Baker: I think that the point that Richard Hyde is making is that councils do have a power to edit the replies that they get or to refuse to post them on the website at all. What he is saying is that it should be clear in the legislation that that must be a reasonable decision, and that the fact that the decision must be reasonable should be placed on statute to make it clear to councils that their power to edit or refuse is limited to its being reasonable. I think maybe —

Mr McKinney: Who decides? It is a bit like the police policing themselves. You just have to make sure that there is proper scrutiny and oversight.

Ms Baker: In all cases, the only person who could decide would be if it went to judicial review. It would be the courts.

Mr McKinney: But that is post fact. I am talking about how you learn about your own processes. A robust complaints process which allows flows of information is better than one where information is kept to one side. You would not necessarily know then.

Mr Jackson: I am not entirely clear on what it is you think would not flow, because if a food business decides that it wants to make a reply and sends a council information, the only circumstances in which the council would edit or refuse would be if it were inappropriate for that information to be put on the FSA's website. They would not be failing to do it. They would not do it just because they did not want to, if you understand me.

Mr McKinney: But it gives them the power to refuse to send them to the Food Standards Agency in any form.

Mr Jackson: Yes, so if you —

Mr McKinney: Can you point out to me where it says upon what basis they are refusing to send it?

Mr Jackson: You are correct that clause 5(2)(b) does not state the basis on which they should submit it.

Mr McKinney: We are saying it is a reasonable basis, but it is not in the Bill. Whether it appears in guidance or here, I take it you will look at that.

Ms Baker: Yes, we will look at it and see if the wording can have some reference to the reasonableness of them refusing.

Mr McKinney: OK, thank you. Similarly, Co-operative Food objects to councils having the power to edit representations. It does not exist in the Welsh legislation. Is that the case?

Ms Baker: Sorry, can you ask me that again?

Mr McKinney: Yes, they are making the same point but arguing that it does not exist in the Welsh legislation.

Mr Jackson: We would need to check on the exact wording. There are differences in wording.

Ms Baker: Yes, there will be drafting differences because different people have drafted them. The Bills are also structured slightly differently, which will affect the fact that they will look a bit different.

Mr Jackson: I imagine that before the Co-operative, as a multinational and responsible company, sent in a reply, the chances are it would be its legal department, so it would not see a need to edit that. That is a reasonable way of thinking for a business of that nature. However, there is a rationale for editing being necessary when it comes to a small, independent operation that is trying to mislead, deceive and pretend that things are not right. We also have to make sure that nothing defamatory is published. It is very different depending on the type of business.

Mr McKinney: The outcomes have to be satisfactory to all. While that might be satisfactory for your purposes, we have to consider the business itself.

Ms Baker: I do not want to labour this, but the brand standard provides guidance on when a district council can or cannot refuse to edit a reply. We want to continue that in the guidance that is produced for the statutory scheme. It is not going to be any different.

Mr McKinney: An associated point at clause 5(3), which was a point that Ballymena Borough Council made, is that there is no deadline set for the FSA to publish representations on its website. Why are you not setting a time frame?

Mr Jackson: We did not include a time frame because, as I mentioned, a local authority notifies us by way of an electronic file, which goes onto an IT platform. Once businesses are outside their appeal periods and the ratings are therefore valid, those files are automatically released onto the website. It is not as if you have someone sitting in the Food Standards Agency going, "Hmm, I think I need to upload some data onto the website." The system does it automatically. In considering the point about introducing a requirement on the local authorities to notify us within a time period to ensure that that disjoint between the rating on the door and on the website is minimised, it would be possible to include a time scale for us, albeit that the technology that we use means that it would never be an issue.

Mr McKinney: Yes, and of course we must all welcome new technology and all the rest of it, but in the absence of that new technology — say there was some issue that meant that the new technology was not available, or there was a surge and you found yourself in a long-term situation where you did not have the technology and no timeline — you would then be saying, "Now we do not have the new technology but something should be in there of a timely nature."

Ms Baker: The timing probably relates more to when a council gets the reply from the business and the time by which it has to let us know of that. As Michael said, it is a bit of a moot point about how long it takes us, because it just happens immediately. It just happens automatically. That is the upload done. The council has done the upload, not really the Food Standards Agency, although it is published on our website. The question then is more about the timeliness of dealing with the reply once you receive it.

Mr McKinney: Is there a red flag on the computer system that would indicate that something is being assessed elsewhere? That is outside of this, of course.

Ms Baker: No. Once a council receives its reply, it will go through the process of considering that. It may need to visit the premises to consider that. Somebody may claim that they have completely rebuilt their whole business and done all these wonderful things. Obviously the council will need to validate that those claims are true and do not mislead people. They will go about the business of that and, as soon as they have made their determination, it will be published immediately, as Michael said, through the 27-day uploads. The information just appears with the uploads, and it will automatically go on to the website. There will be no pause in time for that part of the process.

Mr McKinney: I know that it might be a bit of a technical question about the software, but is there nothing about "under appeal"? Would that go on your website?

Ms Baker: It does for an appeal, but not for the right to reply.

Mr McKinney: OK. I am happy with that.

Can I go on to clause 6? CEHOG believes that businesses that are awaiting an appeal should be forced to display the rating being appealed or a sticker advising the business is awaiting a new rating, rather than their previous rating. That is a variation of the Pubs of Ulster view, but there is the potential that that could mislead the customer.

Ms Baker: Yes. Let us say that, for example, a five-rated business gets a new inspection. If the inspector feel that the conditions are poorer than before and wants to give them a reduced rating, CEHOG is concerned that, the way the Bill is drafted, a business cannot chose which rating to display — their existing rating or the new rating — in that 21-day appeal period only. CEHOG is concerned that, if the rating has gone down, the business will obviously chose to display the better rating. That works conversely, too. A business may have an improved rating and will want to display that.

The 21-day appeal period is a safeguard for businesses, and they have that 21-day right to query their rating. They may feel that the new rating does not reflect the standards and may not agree that it should go down. From the business's perspective, we see that it would be detrimental if they had an appeal and the appeal went in their favour, but they had to display a rating that was not valid in that period. We propose that, during the appeal period, the business can chose which rating to display. That is only for a 21-day period, at which point the appeal will be determined, and then they will display the valid rating.

Mr Jackson: In the context of how long a business is going to have a rating, that 21-day period is a very short period.

Ms Baker: Another thing that CEHOG said was that a business could instead display an "awaiting rating" sticker. We need to think carefully about that. If you send out a rating, you do not know whether a business will appeal or might want to put that sticker over the new rating sticker that you provided. That would mean that, in effect, every time you wrote out to a business, you would have to provide two stickers, one of which might never be used in many instances. The other thing that you could do was that, once the business has appealed, you could send them an awaiting inspection sticker, but there would only be a 21-day period anyway, so what benefit would there be in doing that over such a short period?

It works both ways. You can argue that the consumer is being misled because the council's rating of the business has gone down . Conversely, the business may feel that they do not get to show their good rating when it has gone up.

Mr McKinney: OK. An issue of ownership was raised about clause 6(2). Dr Hyde, who was referred to earlier, expressed concern that there is a lack of clarity in that subsection about whether the rating would be valid — this is technical — if the corporate owner of the premises remained the same but the ownership of the shares of the corporate owner changed hands. Have you considered those legal technicalities?

Ms Baker: Yes. We have asked our legal drafter to consider Richard Hyde's comments, and he is of the view that this is a moot point. We are considering food business establishments and, in European legislation, the establishment is a unit of a business. You are dealing with the conditions in the establishment, irrespective of whether there are shareowners or other people. So, we feel that it does not impact on the Bill.

Mr McKinney: You may have answered my next question in making your last point. Co-operative Food is concerned that a business with a poor rating could transfer ownership to avoid displaying a sticker. It therefore recommended that the Bill should require councils to conduct initial inspections of any new food business establishments within 14 days of their registration.

Mr Jackson: I will pick up that point and take it back to clause 1. There was maybe some concern amongst members about businesses not being inspected. I want to make it clear that, when a new business comes along — it could be a completely new build or simply a change of food business operator, which in the eyes of the law is the person with responsibility — under the 'Food Law Code of Practice', councils are obliged to conduct an inspection within 28 days. Every new business that comes along, either a completely new build or one with a change of owner, will get an inspection that will give them a rating, so there will always be a rating. If the food business operator changes, there will be a new inspection and a new rating.

Mr McKinney: OK. You may have answered my next question. What are the arrangements for time periods for providing a rating for new businesses or when a business has changed ownership? Will that happen within —

Mr Jackson: In that situation, again, it would be back to the system of inspection that is driven by the 'Food Law Code of Practice'. Basically, when a council has been notified of a registration or becomes aware of a new business, it is obliged to conduct an inspection within 28 days. Irrespective of what type of business it is, it must always have an inspection. That first inspection sets the system in place for subsequent inspections, interventions and how often they happen.

Mr McKinney: OK. Hopefully, I have picked up on that point OK, but Co-operative Food recommended a period of 14 days.

Ms Baker: As Michael said, there are existing arrangements outside of the food hygiene rating scheme that deal with how a council will react when a new business comes along. We have detailed the arrangements for councils when they receive a registration for a new business or become aware of a change of ownership. In the case of a change of ownership, the rating cannot be transferred. It will be treated as a new business and will be reassessed from scratch. The period stipulated in the 'Food Law Code of Practice' is 28 days. We think that is fair and reasonable, and it gives councils time to plan their work around receiving registrations. We do not consider that reducing it to 14 days would assist.

Mr Jackson: If you were to reduce the requirement to do that initial inspection from 28 days to 14 days, it would have to be changed through the 'Food Law Code of Practice'. That would be of serious concern to the councils because of the impact that it would have on their ability to do their planned work.

The four-week period has been part of the regime for many a year, including since I was inspecting many moons ago. It is still quite a challenge for some councils to meet that 28-day requirement at times depending on the level of business churn. In some areas, a lot of businesses change hands, and meeting the 28 days can be challenging enough for local authorities. If that were to be moved to 14 days, it would be a serious concern and would have the potential to distract them from delivering their risk-based inspection programme.

Mr McKinney: Finally, Co-operative Food proposed that in the context of somebody with a poor rating transferring ownership to avoid displaying a sticker.

Ms Baker: That is incorrect, because the rating would not transfer. A new owner would get a new rating. I think that was just a misunderstanding.

Mrs Cameron: The duty to display rating is covered in clause 7. Co-operative Food raised the issue of whether businesses will receive new stickers before the legislation comes into force in case they have lost their old sticker. Is that the intention of the Food Standards Agency?

Ms Baker: Absolutely. That would have to happen in any case because of the very point that it makes. The scheme is currently voluntary, so there is nothing to say that a business will actually have its sticker. We anticipate that, in the implementation period coming up to the scheme, all the businesses will receive their new statutory sticker, if you like.

Mrs Cameron: On clause 7(2), Dr Hyde has raised a technical point, which is that the clause does not seem to prevent a business displaying two stickers at the same time, which may confuse the consumer. Have you considered this?

Ms Baker: Yes, we have sought clarity again from counsel drafting the Bill. The Bill is drafted so that, in the appeal period, where they can display either sticker, they can only choose to display one of them. They cannot display both, so only one will be a valid sticker in that period of time. By that very nature, they are failing to comply with the requirement to display a valid sticker. Our legal view is that that is not an issue and is covered by the way that the Bill is currently drafted.

Mrs Cameron: Members of this Committee, including me, are concerned that the Bill does not require businesses to display their rating on their website, if they have one. Can you explain your rationale for taking this position?

Mr Jackson: Yes, we touched on this previously. The basis on which we know the scheme is currently used is that, despite the technological era that we live in, 91% of people who use the hygiene rating scheme to make a decision do so through the use of the sticker. The first point of the sticker is the way that the scheme is being used.

Mrs Cameron: Could that be because the sticker is there and the rating is not always displayed on the website? I have seen that some websites do already display it.

Mr Jackson: I am not suggesting that some people do not use it. I personally use it online as well as on the door, but you would expect me to say that. I go back to the principle that we have tried to put forward a scheme that is as resource-neutral as possible. If you were to introduce a requirement to display a rating on a website, that would have financial consequences for the food businesses and also for the councils. If you had that as a requirement, you would have to be able to police it. That would be extremely difficult and time-consuming for councils. Given the nature of food courts and one thing and another, it is challenging enough to decide where a sticker should be displayed in a conspicuous place so that it is easily visible from outside the business. There would be all kinds of issues around where physically you would display this on a website and on what page it would appear. It would be very time-consuming to try to figure out the flexibility around that. Policing it would distract councils from getting on with doing inspections, which is the important thing for them to do in protecting public health.

There is also the fact that, with the drive within government more widely, we look to the private sector to make use of information that is gathered by government. For example, on the food hygiene rating website, we have an open data source, which means that any commercial business can lift the current data immediately, and it can start to use it to publish ratings. Increasingly, as the profile of the food hygiene rating scheme increases, we are seeing that more and more other companies are taking the information about the rating and are packaging it with other information that consumers want to make a decision. The market makes that rating available to people who are making fundamental decisions about buying online.

We recently became aware of a website that is operated by a company that is promoting the pub industry. It lifts our open data, and, on its website, you can select a pub anywhere in the UK; you can find out whether it has a restaurant, what facilities it has, whether it is child-friendly, and you get the food hygiene rating. The market is taking that forward for the businesses where it is something more meaningful.

We also touched on the aspect of the complexity around multinational companies, such as the major supermarkets, which is about where that transaction takes place. When you are using the Internet, does that happen for Northern Ireland when you go online? It is about which store the food happens to be coming from on a particular day. I go back to the point that we made: in those situations, people who are purchasing online from supermarkets are comfortable with that particular technology. If those consumers are concerned about what the Tesco, the Sainsbury's or whatever in the geographical region happens to look like, they can quite easily go to the website to see what the ratings are.

Ms Baker: A point to make more generally is that the Bill is trying to fill a gap where there is one currently: when you physically go to an establishment, you have no information on the rating because it is not displayed. If you are purchasing food online, the information is available; it is all on our website. It is not as though there is a gap; it is just not right at the page where you currently are, but the information is potentially a few clicks or a google search away. The purpose of the Bill is to fill a void where there is a gap. For the reasons that Michael has given, a lot of cost is involved. It is about weighing up whether it is proportionate to what you get out of it. You could require everybody to have the ratings on their website, but that would pull in a lot of cost and resource from the businesses and the councils to enforce. The information is collated, and it is easily searchable through our website.

I entirely take your point. We can do more to publicise the fact that we have the website so that, when consumers are online, they know that they can click onto it. It is very easy to search with just the name of the business. There is more that we can do. Perhaps there could be a requirement in the Bill for us to publicise the scheme. We could try to build on what Michael said is already happening: some businesses that you phone up or order a takeaway from online have sites that have a link directly to our website. We are working with those providers to get them to understand how to use our open data so that they can click on a link that takes them to our website. There are lots more things that we can do that, from a proportionality and cost point of view, are probably better uses of people's time. We could maybe try to push them a lot more with the commercial providers. They are taking the data and using it quite widely. There are quite a lot of apps on the market now, so people can get the information through their phones and tablets. You might want to consider whether there should be a requirement on us to do more work around publicity so that people online know that the ratings are there to look at; they are not absent.

Mrs Cameron: That is useful. It is a massive hole in the legislation if the rating is not immediately accessible, as it would be if you turned up physically to any food establishment. You would expect to be able to see that. It would be interesting to see statistics — I do not know whether you have any — of how much of it is done online. One particular pizza outlet has said that over half its sales are online; people never go near the shops. It is a gap that needs to be filled, whatever way you do it. I understand the complications behind that, but, as I said, some establishments are already volunteering to put their information up. They probably feel, especially as it becomes statutory, that it is a good thing for them to show their good rating. I think it will come to that. What is the position for that under the Welsh legislation?

Ms Baker: The online aspect? The Welsh Act had a provision to pick that up and consider it in regulations, and they have done a lot of consultation around it. In terms of requiring the rating to be in places other than where the statutory sticker is, they have got to a point where they are requiring it to be, if I am right, on menus.

Mr Jackson: Promotional information.

Ms Baker: It does not deal with the website issue. It is dealing more with promotional hard copy material such as menus and promotional flyers. It does not require that the rating needs to appear on the material but a statement that says that you can find out the rating of the business by going to www.food.gov.uk. They have, I think, unearthed a lot of complications with the website issue, and that is why it has not been progressed at this time. I do not think that they have any immediate plans to do so.

Mr Jackson: It was certainly given detailed consideration because it is understandable that people will wonder why it is not put on the website. For some of the reasons that I referred to, when they went into that in detail and had discussions, there was a real appreciation of the complexity of this, most importantly about whether it would be good legislation to have something that is very difficult to prescribe how it would happen and be policed and the resources that it would take. As Kathryn said, for those reasons, colleagues in the Welsh Government are looking at routes other than the website.

Mrs Cameron: I will move to the duty to provide information about rating, which is at clause 8(2)(b). Dr Hyde suggested that, in terms of determining who the relevant employee is, the test should be more objective rather than it being left to the opinion of the operator of the business. Fermanagh District Council suggested that there needs to be more guidance on what constitutes a "relevant employee". What are your views on that?

Ms Baker: I will pick up on Fermanagh District Council's point first. We agree that further guidance will be needed, and obviously that level of detail would not appear in the Bill. We anticipate providing additional guidance, like Wales has done, around what "relevant employee" means. I suppose that we are thinking of somebody who it would be reasonable to expect may be asked the question. We put "relevant employee" in specifically rather than just "anybody" because, in a very large business like a supermarket that employs 300 people on any day, it would not really be reasonable for the business to have everybody trained and ready to answer that question. It would be applicable to people on the customer services desk, for example, or to people serving at the deli counters because somebody may want to know because they are watching the food being handled. We agree that that needs to appear in guidance.

The other question was about Richard Hyde's point.

Mr Jackson: Again, we referred that point to our legal counsel who have been involved in the drafting of the Bill. The view was that, because we have put in "relevant employee", the element of reasonableness is already implied by the clause as drafted. Fundamentally, the food business operator has a wider responsibility for ensuring compliance with food law. There are many statutory requirements imposed on him, and it seems perfectly logical and reasonable to add this one in a similar way. It should not be any more prescriptively prescribed in a Bill.

Ms McCorley: Go raibh maith agat, a Chathaoirligh. Thanks for the presentation. In relation to clause 10(5), Dr Hyde made the point that the Welsh legislation made it clear that it is not an offence to deface a sticker in the process of removing it and that consideration should be given to including that in the Bill. How do you view that?

Ms Baker: When somebody removes a sticker, it would be because they received a new one. We did not think that it was necessary to specify when that is an offence or not because, again, the councils being reasonable will not take action against somebody for removing their old sticker and putting a new one on. We do not feel that it would add anything above and beyond —

Mr Jackson: If the sticker is no longer valid, what happens to it in the process of removing it is not relevant because you just want a sticker that is no longer valid to be removed and disposed of.

Ms McCorley: Why, then, did the Welsh put that into their legislation?

Ms Baker: It just comes down to a drafting point and the drafter's view. I suppose that they wanted to have as watertight a case as possible that did not suggest that you cannot remove a sticker. In the Welsh legislation, it is an offence to alter or deface the sticker, but that will naturally happen when you take it down. You do not want to create an offence for somebody who is doing something that they are required to do, which is to take a non-valid sticker down. We do not feel that anybody is going to be taking any action on this point. Although, technically, it may be correct, it is unnecessary, and that would be the view of legal counsel as well.

Ms McCorley: Are there no circumstances where somebody might try to remove a sticker and then put it back, for example, if they wanted to clean windows or something?

Ms Baker: If they remove it and deface it or damage it accidentally, they can simply phone the council and get a replacement sticker. We do not see anybody wanting to take action against them for that.

Mr Jackson: Clause 10(5) is very much about intentionally altering, defacing or otherwise tampering with a valid sticker. Clearly, as Kathryn said, if something went wrong and happened because of cleaning or refurbishment or whatever and the sticker was damaged, the new sticker would be made available by the council. The key thing is that, when there is a valid sticker, there is an offence to alter, deface or otherwise tamper with it. That is the important thing: what happens to a sticker that is no longer valid. Fundamentally, that cannot be legally displayed, so what happens to it when removing it is a moot point.

Ms McCorley: I want to ask about clause 10(7). The maximum fine for the various offences under clause 10 is a level 3, which is £1,000. Some organisations, such as the NI Hotels Federation, are not supportive of fines, whereas 'Which?' supports strict fines to act as a deterrent. What is your rationale for picking a level 3 fine and do you think that it is a sufficient deterrent?

Mr Jackson: In considering the level 3 fine, one of the first things that we took into consideration was the level of fine that has been introduced through the legislation in Wales, and we were looking at proportionality and consistency. The fine has been set at level 3 in Wales. We have also been in discussions with colleagues in the Department of Justice, and they have indicated that the level of fine that we have proposed is consistent with similar offences in Northern Ireland statutes. That said, there are a couple of points to flag up. The first one, which I previously referred to in the Committee, is that the fines associated with the different levels in England and Wales will, in the very near future, be changed, and a level 1 fine in Wales will become £4,000. When we put forward our proposals for the Bill, that was not known, so we did not know that the levels were going to change only in England and Wales. Again, we have consulted the Department of Justice in Northern Ireland on that, and there is no proposal at the moment to review the levels of penalty associated with each of the fine levels in Northern Ireland, so that is not happening here.

You may also wish to reflect on the fact that we have had discussions with our colleagues in the Trading Standards Service about consumers potentially being misled by the use of incorrect ratings other than through an invalid sticker. The Bill deals with offences of displaying the wrong sticker. We were exploring a situation in which, for example, people voluntarily put a rating of 3 on their website when it is 5. That type of offence falls under the remit of the Trading Standards Service and legislation for which it is responsible: the Consumer Protection from Unfair Trading Regulations 2008. In the event that someone was found to have breached that legal requirement, the maximum penalty under those regulations is £5,000. That is the maximum for wilfully and intentionally misleading consumers other than through a sticker. Our rationale, however, at the outset was consistency with the level of penalty in Wales and proportionality with similar offences of failing to display something so that this will be consistent with other statutes in Northern Ireland.

Ms McCorley: My final question is on clause 12(2). The Chief Environmental Health Officers Group believes that the requirement for councils to provide new businesses with information within 14 days should not be specified in the Bill but be in guidance. Why have you decided that the time frame should be specified in the Bill?

Mr Jackson: The timing is specified in the Bill to make sure that the system works fairly and equitably for all food business operators and that those people who start up and register a new business will get that information. The key point that the Chief Environmental Health Officers Group was making is that the duty to provide information within 14 days of making a registration or receiving an application is absolute in its nature. Quite often, however, a council will become aware of a business through a planning application or building control application and will be engaging with the business long before it gets round to registering. The group is looking for the flexibility to be able to provide that information at any time after they have started to engage. We propose that an amendment be considered to introduce the flexibility for the information to be given at any stage before registration and, at the outside, within 14 days of the registration form being received. We see an opportunity here to provide additional flexibility to reflect the key point that the Chief Environmental Health Officers Group is making. It is important, however, to retain the 14 days to ensure that the Bill provides for a fair and equitable scheme that will operate in a sound way for all food businesses.

Mr McKinney: I have one point about clause 10(5). Might it be in order to add in just three simple words, such as "save for its replacement"? That would allow for a defence whereby a replacement was on its way or available, but not if there was no replacement process in place, of course. It would make it clear to employees that they were to do it when instructed if an employer said, "Look, there is a new one on its way, or it is here. So you take that one off".

Mr Jackson: That is for a valid sticker under clause 10(5).

Mr McKinney: Yes. The clause prohibits tampering with a valid sticker, and I propose adding in "save for its replacement". It might be petty point.

Mr Jackson: Clause 10(5) states:

Those words very much convey the intent. If you were taking down a valid sticker because it was a bit dog-eared, and the council had given you a new one, you would not be intentionally altering, defacing or tampering. Your motive — to replace the sticker with a new one that is not dog-eared — would be sound.

Mr McKinney: I take that point.

The Chairperson (Ms Maeve McLaughlin): On clause 14, Fermanagh District Council stated that more clarification was required for how councils are expected to keep the operation of the Act under review. It asks about the information that it is expected to collect. In your view, does that place a greater administrative burden on local councils?

Ms Baker: No. We do not expect that it will be any different to what a council currently does. With the voluntary scheme, the brand standard has guidance about what a council needs to do — for example, to ensure that it operates the scheme in a consistent manner. Councils are to assess that and other things such as determining the number of appeals and so on. We already collect that from councils. We do not anticipate councils doing anything in the statutory scheme that they do not do in the voluntary scheme. The accompanying guidance will cover that issue. We do not anticipate that level of detail to be in the Bill, but we will put it in guidance.

The Chairperson (Ms Maeve McLaughlin): So the requirements for councils will be in the guidance.

Ms Baker: Yes.

Mr Jackson: That is consistent with the approach in other food law. We will stipulate a general requirement, but, when details are needed about what is involved, we will provide guidance. Through review, we will look to minimise the burden on councils. Our stakeholder group will run for the foreseeable future as the scheme is rolled out, and we will discuss with it the way in which the guidance should be framed and the type of information that is needed and useful for councils to ensure that the scheme is operating fairly and equitably in their area.

The Chairperson (Ms Maeve McLaughlin): The Committee had particular concerns about the wide-ranging powers in clause 14(8). That feeling was shared by the Examiner of Statutory Rules, who recommended that that clause be removed, as it effectively allows the Department to make amendments to the Bill by subordinate legislation, following the FSA's review of the Act. The Examiner indicated that that is an inappropriate delegation and sets a dangerous precedent. As an alternative, the Examiner suggested that clause 14(8) could instead include an order-making power to allow the Department to alter time limits in the Bill. However, that should be subject to draft affirmative procedure rather than negative resolution as envisaged in clause 18(6). The Committee understands that the FSA has taken on those comments and proposes an amendment. Maybe you could talk us through that amendment?

Ms Baker: As you say, it is proposed to omit clause 14(8), which would include the omission of clause 18(4)(c) and clause 18(6), because they are consequential and based on clause 14(8). In place of clause 14(8), much more limited powers would be inserted, one of which, as you mentioned and the Examiner of Statutory Rules touched on, is to provide a power to limit the number of occasions. It is about the time period. There will be a new clause, which will allow the Department to amend the time periods specified by substituting a different time period — as you mentioned, that would be by draft affirmative procedure — and also to input the power to limit the number of occasions for a right to request a rerating to be specifically put into clause 4, because it had been covered in clause 14(8), which is now being removed. It had been anticipated that that more general power would be used to do that. An amendment will link the reviews detailed in clause 14. That now links the review to the FSA, stating that, having conducted a review, whether it intends to exercise any of those draft affirmative order-making powers, and if so, to explain why, and if not, why not. They are tied into making a declaration at the point at which we carry out a review whether we intend to exercise those powers.

The Chairperson (Ms Maeve McLaughlin): Dr Hyde suggested that clause 14 should also specify that the operation of clauses 10 and 11 be part of the review, particularly as to whether the fixed penalty notices were working. Do you have views on that suggestion?

Ms Baker: There is currently no specific requirement in clause 14, but clause 14(3) details when specific things will be conducted on review. They are there because issues were raised at consultation, and people felt that it was necessary to look at those, so we have specified them in the Bill: appeals, limiting reratings and time periods. However, the requirement to carry out a review is wide-ranging. It just states that the Food Standards Agency must review the operation of the Act, so there is nothing to stop us from reviewing anything in the operation of the Act and making proposals about whether any changes are needed.

The Chairperson (Ms Maeve McLaughlin): What about clauses 10 and 11? I hear what you are saying that there is nothing to stop you, but does it need to be more specific?

Ms Baker: We can certainly consider looking at that and whether order-making powers specifically need to provide for any changes that would need to be made to clauses 10 and 11. We certainly do not see an issue with that. We expect that we will look at them on review, so we can consider that a bit further.

The Chairperson (Ms Maeve McLaughlin): On a similar line, the Chief Environmental Health Officers Group believes that clause 14 should specify that the review look at whether businesses were complying with the scheme, whether food-borne illnesses had decreased and what had been the resource burden of the legislation on councils. Do you have views on that?

Ms Baker: We anticipate that the review will do all sorts of things. We will look at compliance levels. We do that now, and Wales is doing it as part of its review. As part of the voluntary scheme, we have already been looking at the impact of food-borne illness. We do not anticipate that we would not do any of those things and will probably want to do a lot more.

We will want to look at how the appeals process is being used, how many appeals were received, what businesses felt about the appeals process and whether they found it easy to understand. We do not feel it necessary to have to stipulate every circumstance that the review would cover because, as the scheme opens up and things come to light, it may not address everything that a review should consider. It is to keep it open enough to consider every possibility.

Mr Jackson: In essence, because of the way in which clause 14 is framed, the requirement on us under clause 14(2) is to review the operation of the Act throughout Northern Ireland. That does not preclude anything that needs to be considered in the review from being considered, but, in clause 14(3), there are issues that we know, from experience and concerns that were raised, that will definitely need to be looked at to make sure that they are functioning correctly, and there will then be associated powers to amend those.

The Chairperson (Ms Maeve McLaughlin): The Chief Environmental Health Officers Group believes that clause 16 should include a definition of "inspection" for the purposes of rating and rerating. Are there views on that?

Ms Baker: We touched on that. CEHOG brought that theme through in other clauses in which it is mentioned. We entirely agree that further clarity is needed in the guidance.

Mrs Dobson: Obviously, public awareness is essential. Some stakeholders have stated that a public awareness campaign is needed to promote consumer awareness before the legislation is brought in. Can you outline your intention in this regard?

Mr Jackson: I will pick up on a point that Kathryn raised earlier, and Pubs of Ulster also brought up the issue. At the moment, there is no requirement in the Bill for the FSA to promote the scheme. That is a requirement in the Welsh legislation. Certainly, with that wider requirement on us to take the scheme forward, promote it and ensure that it does what we intend it to do, we are happy to consider an amendment.

The consumer campaign would not necessarily happen before the scheme goes live, because we would have to see how councils want to roll out the statutory scheme. If all the councils decided that they were prepared to put the resources in to go with what we call a "big bang approach", the consumer campaign would happen close to that. The timing of the consumer campaign needs to be appropriate to when voluntary stickers will be displayed. As we have done throughout the life of the voluntary scheme and as recently as this week when we ran a campaign through social media on Valentine's Day and checking ratings, we intend to ensure that consumers are made aware of when the new statutory scheme is going live.

Mrs Dobson: It is imperative that consumers are aware that it is changing, which is why I want a time frame to be outlined. You said that you will do an amendment, but it is important that we have a time frame for consumers being made aware. You obviously have previous experience of promotion and public awareness. I was not aware of the Valentine's Day campaign, but maybe that says more about me than you.

Michael, you spoke about responsibility for promoting the change in the law, and you said that you will work with district councils before it goes live. The onus will then be on district councils. How will we get to that point before it goes live, as you say?

Mr Jackson: Clause 17 allows for current ratings in the voluntary scheme to be notified and reissued as the ratings under the statutory scheme. There is flexibility. We need to sit down with councils to talk through the implications of how we go about the move from the voluntary to the statutory scheme, the reason being that, once you start to issue the statutory ratings, all your safeguards kick in, so you have to be able to deal with that.

What we do not want to do is to go out with a consumer campaign at a point when bringing the statutory scheme in has not had an effect with regard to stickers being displayed. Once we are at a stage when we know that the statutory scheme is at the point of being operated widely — live from the point of view that the new statutory rating stickers have been issued to businesses and are available for them to display — that is when we will put the effort into saying to everybody, "You need to know that this is now a requirement, and, if you do not see a sticker, this is what you should do about it".

We intend to do it — 100%. We have to get the timing right relative to the implementation of the scheme. Before the scheme goes live, the big thing is to promote it with businesses and for councils to work with businesses to help those that do not have a top rating at present to get to a better position. A lot of the effort before go-live day will go into making businesses aware of their obligations, what they have to do and what they cannot do, stickers, the obligation to notify verbally and so on. We will do all that in advance of going live. Once we have made it happen out there in businesses, we will get the message out to consumers.

Mrs Dobson: The timing is crucial.

Mr Jackson: The timing is crucial.

Ms Baker: With timing, I will use Wales as an example. As Michael said, a transitional period will be needed to allow councils and businesses to migrate from the voluntary scheme to the statutory scheme, because those ratings need to be reissued for 15,000 businesses in Northern Ireland. In Wales, through the consultation that dealt with the duration of the transitional period, it was agreed that that should be set at 18 months. That was agreed with stakeholders, businesses and councils. We want to do something similar here. We get a sense from the councils that they might want to try to bring in a statutory scheme as quickly as possible, provided their resources allow them to do that. It may be that the transitional period in Northern Ireland will be shorter; it could be 12 months, but we really do not know until we speak to them about what they can actually achieve.

As Michael said, it will be critical that, once the transitional period is over, there will be the consumer campaign, because, at that stage, every business within the scope of the scheme will have been given a new statutory rating.

Mrs Dobson: It will need to happen very quickly after that.

Ms Baker: Yes.

Mrs Dobson: I note that Co-operative Food believes that the Bill should contain sanctions for councils that do not meet the time frames laid out in the Bill. What are you views on that suggestion?

Mr Jackson: We have sought legal advice on that. It is not established, normal or good practice for legislation from one Department to have sanctions against another arm of government. If at any stage people feel aggrieved that any arm of government — the Food Standards Agency, district councils or whatever — has failed in its obligation, there is the remedy of judicial review, by which they can seek to be recompensed for the damage that they believe that they have suffered in relation to a body not fulfilling its obligation. The fact that this is not contained in the Food Hygiene Rating Bill is totally consistent with other legislation, and it is not the practice to put that in for an offence to be committed by another Department.

Mrs Dobson: Is it in the Welsh Bill?

Mr Jackson: No.

Mr McCarthy: Michael, in your earlier answers, you said that, if something goes wrong, there will be a notice that states that you should report it to your local authority. I said to myself, "Should that not be reported to your local council?". Not everybody knows what their local authority is; that could be the health authority rather than the local council. Is that written down somewhere?

Mr Jackson: At the moment, our sticker states, "in partnership with local authority". We tend to use that terminology across the UK. I accept the point that, in Northern Ireland, local authorities are, de facto, district councils. In external communications about what should happen and where people should go, we are careful to refer to "district councils" rather than "local authorities", because we know that the average consumer or member of the public in Northern Ireland thinks about district councils rather than local authorities, so we are aware of that. Given that we work as a UK organisation, I have a tendency to talk about local authorities in the wider sense, so I apologise for that.

Mr McCarthy: I am only saying that, if people want to report something being wrong, they might think that the local authority is their local health authority, and they will be all round the houses before they get to where they should be.

Mr Jackson: We will say "district councils".

Mr McCarthy: That is grand. That is fine.

The Chairperson (Ms Maeve McLaughlin): Thank you both. That has been a useful session and has given us clarity, and we will reflect on today's evidence.