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 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:

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:

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

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.

To go to main Food Law Index page, click here.