Food Law News - UK - 2002
FSA Consultation Letter, 15 March 2002
ENFORCEMENT - Food Safety Act 1990: Review of powers to entry to ships and aircraft
The Food Standards Agency is consulting on a proposal to make an Order under section 1(3) of the Food Safety Act 1990 which specifies ships and aircraft and purposes for which they are 'premises' in and under the 1990 Act. A draft Order is available on the FSA web site.
Subject to exceptions, it is proposed that the definition of 'premises' be extended for two main purposes. The first of these is for the application of section 32 (powers of entry) and other key sections of the Act. The second purpose is for the application of those Hygiene and Temperature Control Regulations which implement the EC Food Hygiene Directive 93/43/EEC. Further detail is given below. It will not only permit entry to ships and aircraft for hygiene purposes, but will also replace but not change the power, currently in the 1990 Act, Schedule 4, paragraph 1(b), to enter ships and aircraft for the purpose of ascertaining whether they contain any non-compliant food imported as part of the cargo. Specific provision is also proposed to replace but not change the 1990 Act, Schedule 4, paragraph 1(a) whereby home-going ships are already regarded as premises for the purposes of the Act.
Similar consultation will take place in Scotland, Wales and Northern Ireland.
The Food Safety (General Food Hygiene) Regulations 1995 implement Directive 93/43/EEC which applies to food businesses on ships and aircraft. However, unlike any other food business, local authority officers can only gain access to ships and aircraft for the purpose of carrying out certain food hygiene inspections through voluntary arrangements with ship and aircraft operators. This arises because the enforcement authorities have no general power of entry to ships and aircraft under Section 32 of the Act as they are not currently included in the definition 'premises' at Section 1(3) of the Act.
Local authority enforcement bodies have long held the view that it is inappropriate to have to rely on such voluntary arrangements and that there should be consistent statutory powers of entry to all food businesses for the purposes of food hygiene inspections.
The Food Standards Agency's Board considered this issue at its open Board meeting on 9 May 2001 and concluded that, subject to public consultation and Ministerial agreement, an Order should be introduced to extend the current powers. The paper which was discussed by the Board is available on the Agency's website at:
It is proposed that the purposes for which the change in definition of 'premises' would apply (and as a consequence a power of entry would be created), would be:
- the Food Safety (General Food Hygiene) Regulations 1995 (SI 1995 No. 1763) but excluding the Food Safety (General Food Hygiene) (Butchers' Shops) Amendment Regulations 2000;
- the Food Safety (Temperature Control) Regulations 1995 (SI 1995 No 2200) but excluding the specific chill and hot holding temperature requirements as identified in the Order;
- sections 11 and 12 of the Food Safety Act 1990; and
- sections 2, 3, 29, 32 and 50 of the Food Safety Act 1990 for the above purposes and in relation to sections 8, 9 and 10 of the Act.
The food authorities that would enforce the above legislation are those specified in the Food Safety (General Food Hygiene) Regulations1995 and detailed at Sections 5 and 6 of the Act. Currently this may be, for example, port health authorities in respect of ships or the local food authority in respect of either ships or aircraft. These authorities would already authorise officers to enter ships and aircraft for other legislative purposes such as Public Health Regulations. The exercise of a power of entry under the Food Safety Act 1990, as for other legislation, would need to take account of the security implications for the ships and aircraft subject to inspection.
The Order necessarily excludes ships exercising the international right of innocent passage through territorial waters recognised by Part II Section 3A of the United Nations Convention on the Law of the Sea. The right of innocent passage does not apply to ships using port facilities and other internal waters and will not in practice inhibit exercise of the extended power of entry.
Comments are invited all interested parties on:
- the fundamental question of whether statutory powers of entry should be extended to apply to ships and aircraft, in respect of the legislation as detailed in the draft Order;
- the types of ships and aircraft which should be covered by the proposed extended powers;
- the purposes for which the extended definition of 'premises' should apply; and
- any costs or burdens which may arise as a result of the extended powers of entry.
Is there a need to extend statutory powers of entry to ships and aircraft?
The main reasons for proposing the extension of the statutory powers of entry are that it would:
- provide food law enforcement officers with the same powers of entry to ships and aircraft as exist for other food businesses for food hygiene purposes,
- offset potential legal enforcement problems in that, whilst the current voluntary arrangements provide opportunities for giving informal advice, they do not provide a satisfactory legal basis for taking statutory enforcement action should this prove necessary,
- meet consumers' expectations that food hygiene standards can be monitored and enforced consistently in all food businesses.
Representatives of the shipping and aircraft industries have explained in informal consultation with the Agency that they take their food hygiene responsibilities seriously, that access to ships and aircraft is always afforded under the current voluntary arrangements, and that the industry is keen to respond positively to recommendations from local authority food law officers on ways to improve food hygiene standards. These points are accepted. However, the Agency is of the view that it is important that enforcement powers should apply consistently to all food businesses and that enforcement officers should be in no doubt that they are able to apply legal sanctions where necessary to address food problems.
Comments are invited on whether it is appropriate to extend the existing, limited statutory powers of entry to ships and aircraft, in respect of the legislation as detailed in the draft Order, and to offer reasons for your view.
Categories of ships and aircraft to be specified
Views are also sought on the categories of ships and aircraft which should be covered by the proposed extended powers of entry. Our proposed starting point is that, unless there is good reason to exempt specific categories of ships and aircraft, the proposed power should apply to all ships and aircraft operating into and out of UK ports or airports. Possible exemptions include:
Foreign sovereign immune ships and aircraft, such as foreign military ships and aircraft
- National military ships and aircraft carrying armed forces personnel (other than the flight crew): Section 54 of the Food Safety Act 1990 provides that all Crown premises should be covered by the Act unless the Secretary of State certifies that the interests of national security preclude inspection of specified premises. In view of Parliament's wishes to include Crown premises within the Act it can be argued that it would be inappropriate to exclude national military ships and aircraft from the proposed powers of entry to ships and aircraft. Existing Codes of Practice made under Section 40 of the Food Safety Act 1990 provide guidance on the inspection of Crown premises. The same approach could be adopted for national military ships and aircraft to ensure a consistent and proportionate approach to inspecting such craft. Views are invited on whether national military ships and aircraft carrying armed service personnel (other than flight crew) should be included in the extended power of entry?
- Internationally registered ships and aircraft carrying passengers: This group of ships and aircraft includes those registered in another Member State of the European Union (EU) and in countries which are not members of the EU. By extending the power of entry to cover this group it would provide consistent enforcement powers for home and foreign vessels operating into and out of UK ports and airports which may carry UK citizens. Of course a ship or aircraft registered in another country may be subject to food hygiene inspections in that country. We would therefore expect UK food authorities to take account of this in determining the need to inspect such craft when operating into and out of an UK port or airport. We are aware that consideration is being given to amendments to the International Health Regulations and that they may impact on the requirement for the hygiene of food for passengers and crew. This would not remove a need for the enforcement officials to have a suitable power of entry to these ships and aircraft. Do you agree that foreign registered ships and aircraft operating into and out of UK ports and airports which may carry UK citizens should be included in the power of entry?
- National and foreign registered ships carrying cargo, not passengers: Whilst not carrying fare paying passengers, the crew working these vessels will have galley facilities for the preparation of their meals. As such it is necessary to consider whether the power of entry should apply to these vessels. There is an international framework of maritime law that applies to ships. As part of this framework, the Maritime and Coastguard Agency (MCA) is responsible in the UK for checking a wide range of issues, including food hygiene arrangements in crew galleys. A Memorandum of Understanding exists between the Association of Port Health Authorities and the MCA to ensure a joined-up approach to inspecting vessels. We propose that the power of entry should extend to this group of vessels but that food authorities should continue to have due regard to the role of the MCA in determining the need to inspect food hygiene arrangements in general and specifically on these vessels. Do you agree that the power of entry should apply to nationally and foreign registered ships carrying cargo?
The UK is obliged under international law to exempt foreign military ships and aircraft being used for non-commercial purposes from such inspections. For this reason the statutory powers of entry will not apply to these craft.
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