In order for industry to operate effectively and on a level playing field it is essential that there is consistency of enforcement between Local Authorities.
The Regulator's Compliance Code and The Central and Local Government Enforcement Concordat lay out general principles to ensure fair and consistent enforcement by Local Authorities in the UK. This includes increasing the transparency of regulatory organisations by asking them to report on outcomes, costs and perceptions of their enforcement approach.
Additionally, the Food Standards Agency (FSA's) local authority audit scheme undertakes a qualitative assessment of local authority performance. Local authorities are selected to represent a cross-section of local authority types, geographical location and level of enforcement.
The Framework Agreement for this provides for:
- Publicly available local service plans to increase transparency of local enforcement services
- Agreed feed and food law enforcement standards for local authorities
- Enhanced monitoring data with greater focus on inspection outcomes and which provides more detailed information on local authority performance
- An audit scheme aimed at securing improvements and sharing good practice.
These audits are regularly published and are available to view on the FSA’s website.
For example, on 21 February 2011 the FSA published the first set of audit reports from its programme examining the imported food controls arrangements at local authorities of Harringey, Newham, Middlesborough, River Tees Port Health Authority, Slough and Tendring. These set of published audits indicate that there is a general lack of structured effective internal monitoring and record keeping in some authorities (Harringey, Newham, River Tees) and a much more robust system in others (Middlesborough, Slough and Tendring).
It would therefore seem that sometimes there is a risk of inconsistency among Local Authority officers themselves in a single Authority, in addition to the risk of inconsistency of enforcement between different Local Authorities.
Recommendations for Obtaining Consistency
- Have a good relationship with your Local or Home Authority – If applicable, obtain a Home Authority. The Home Authority Principle applies in food and health and safety work to ensure that multiple outlet businesses are treated consistently by local authorities. Businesses will generally build up a relationship with, and receive advice and information from, one particular local authority. This is usually the local authority where the business is based. If any enforcement issue arises Local Authorities should then liaise with the Home/Lead Authority before taking formal enforcement action, unless action has to be taken immediately to control an imminent risk.
- Be exemplary where certain ‘variables’ are under your control – Local Authority Officers are faced with many variables, including the degree of risk, the attitude and competence of management, any history of incidents or breaches involving the duty holder, previous enforcement action, and the seriousness of any breach, which includes any potential or actual harm to food safety and/or the public health arising from a breach of the law.
- Be prepared - Proper investigation and/or expert independent advice provided to the Local Authority will assist any decision making and reassure them of your position. Information on similar incidents and how they were dealt with will provide comparables.
- Know your Local Authority - In the event of any enforcement action it is recommended that food businesses look up or ask for the enforcement policy of their local or home authority and query any perceived deviation from this or any agreed principle as soon as it arises. If an Audit reveals a weakness in a certain area question whether a stated policy has actually been followed. If applicable, ask for details of how other enforcement actions were carried out in similar circumstances.