Foodlaw-Reading
Dr David Jukes, The University of Reading, UK
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FSA Consultation, 26 May 2022
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Government consultation: Enhanced Investigatory Powers for the Food Standards Agency (FSA) A copy of the consultation document is available on this site (click on image). Provided under the Open Government Licence. The original document was accessed from: |
For more details on the consultation, including details on how to respond, see the main FSA consultation page at: Consultation - Enhanced Investigatory Powers for the FSA.
Consultation on the Food Standards Agency’s (FSA) plans to seek enhanced investigatory powers for the National Food Crime Unit (NFCU) by way of regulations.
This consultation will be of most interest to:
Consultation subject
This consultation is to gather stakeholders’ views on plans to seek enhanced investigatory powers for the National Food Crime Unit (NFCU) by way of regulations.
The Police, Crime, Sentencing and Courts Act 2022 received Royal Assent on 28 April 2022. It provides a power for the Secretary of State to confer on officers of the NFCU, by the laying of regulations, relevant powers from the Police and Criminal Evidence Act 1984 (PACE), the Criminal Justice and Police Act 2001 and the Criminal Justice and Public Order Act 1994 (CJPO).
It is proposed that enhanced investigatory powers would enable the NFCU to more effectively detect and investigate food crime.
Purpose of the consultation
The consultation seeks views on whether certain additional statutory powers should be extended to the NFCU. It also seeks views on additional safeguards that might be put in place alongside such an extension. By consulting on this issue, the FSA is seeking views from stakeholders on whether the powers and safeguards proposed are a justified and proportionate set of measures to enable the NFCU to tackle food crime effectively.
Secondary legislation would be required to provide such powers to the FSA, and in turn NFCU. We believe further investigatory powers are necessary for the NFCU to be able to execute independently its remit and mandate to lead criminal investigations into complex food crimes, for prosecution by the Crown Prosecution Service (CPS).
The proposed powers include the ability to apply for search warrants, seize evidence and interview suspects who are under arrest.
The following is the Introduction from the consultation document. The full document is available - see details above:
Introduction
The threat posed by food crime is serious, complex, dispersed throughout the UK and – owing to the global supply chains for many higher risk products – across international borders, requiring a coordinated and sophisticated response. Examples of food crime include the diversion of unsafe food meant for disposal back into the supply chain, the illegal processing of food, or the adulteration of food with other substances.
The National Food Crime Unit (NFCU) was established in 2015 within the Food Standards Agency to provide a singular focus on countering fraud and related criminal offences, such as conspiracy to defraud, in food supply chains across England, Wales and Northern Ireland, working in conjunction with its sister Unit in Food Standards Scotland.
The NFCU was set up on the recommendation of the Elliott Review into the integrity and assurance of food supply networks, conducted following the widespread discovery of horsemeat in beef products in 2013.
The review determined that a two-phase approach was sensible to create a new Food Crime Unit:
Initially, as part of phase one, the NFCU’s primary role was to build the intelligence picture of the risks and nature of food crime in the UK. In 2016, phase one was subject to the Kenworthy Review [see Note below] which recommended the Unit’s mandate be expanded beyond its intelligence function and be provided the resources and powers required to perform a full preventative and investigatory role. Following a cross government consultation, the business case to expand the role of the NFCU was approved in June 2018 and phase two commenced.
The NFCU now comprises over 80 specialist staff led by a former Deputy Chief Constable. Its investigations (particularly those related to fraud) are often complex and challenging, and it does not currently have the full range of powers needed to gather the evidence necessary to secure prosecutions in such cases. Although it has access to some powers and investigatory tools, it remains reliant on external partners, primarily the police, or potentially local authorities to carry out certain basic investigatory functions such as applying for search warrants, seizing evidence and supervising interviews with suspects under arrest.
In its report Ensuring Food Safety and Standards, June 2019, the National Audit Office identified that “the regulatory system lacks the full range of enforcement powers to ensure businesses supply safe food”. The NAO also said:
The NAO recommended that “the FSA should address gaps in the enforcement powers, including those available to the National Food Crime Unit. Given the additional funding that has been directed towards the NFCU, the FSA should make firm plans to provide the powers the NFCU needs to work independently.”
The Police, Crime, Sentencing and Courts Act 2022, which received Royal Assent in April this year, contains a power for the Secretary of State to make regulations extending certain additional statutory powers to the NFCU.
This consultation seeks views on whether certain additional statutory powers should be extended to the NFCU. It also seeks views on additional safeguards that might be put in place alongside such an extension. By consulting on this issue, the FSA is seeking views from stakeholders on whether the powers and safeguards proposed are a justified and proportionate set of measures to enable the NFCU to tackle food crime effectively.
In pages 10 to 11 we set out which powers the FSA proposes should be extended to the NFCU, and the evidence received in this consultation will inform the recommendations made by the FSA to the Secretary of State for Health and Social Care. It will be for the Secretary of State to decide on the content and timing of any legislation to make such changes.
Note
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