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Northern Ireland (Food Premises)

Volume 975: debated on Tuesday 11 December 1979

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12.20 am

I beg to move,

That the draft Control of Food Premises (Northern Ireland) Order 1979, which was laid before this House on 22 November, be approved.
The purpose of the order is to strengthen the control of hygiene in food premises. It will bring legislation in Northern Ireland into line with legislation already in force in the rest of the United Kingdom. Comparable provisions are contained in the Food and Drugs (Control of Food Premises) Act 1976 and the Control of Food Premises (Scotland) Act 1977.

Hygiene in food premises in Northern Ireland is controlled by regulations made under the Food and Drugs Act (Northern Ireland) 1958. Where a person has been convicted of an offence under the regulations, the Act empowers the court, on the application of a district council, to make an order disqualifying that person from using the premises for the purposes of a food business. A court order can, however, be circumvented by transferring the business to another person with the risk that premises may remain open until further proceedings are taken. The order will close this potential loophole. The order will also enable action to be taken quickly where there is an imminent risk of danger to health.

When a person has been convicted of an offence involving the carrying on of a food business at in sanitary premises where there is a risk of contamination, the order will empower the court, on the application of a district council, to prohibit by order the continued use of the premises as a food business if it is satisfied that there would be a danger to health. The closure order will specify the measures necessary to remedy the defects and will continue in force until the district council certifies that they have been carried out. The council will be required, not less than 14 days before the hearing of the application, to give written notice, both to the person accused of the offence and to the owner of the premises, of its intention to apply for a closure order. This must specify any measures that should be taken to remove the danger to health.

The court will also be empowered, again on the application of a district council, to make an emergency order for the closure of premises pending the outcome of a prosecution. Before it does this, it must be satisfied by evidence given by the council that the use of the premises as a food business involves a risk of danger to health; and it must also take into account any evidence given in defence. The council must, not less than three days before the hearing of the application, give written notice of its intention to apply for an emergency order both to the person accused of the offence and to the owner of the premises. Again this must specify the measures which should be taken to remove the risk of danger to health. The emergency order will continue in effect until the determination of proceedings relating to the offence or alternatively until the district council certifies that there is no longer any risk of danger to health, whichever is the sooner. The court will further be empowered to order a district council to pay compensation if, at the trial of the person accused of the offence, it is established to its satisfaction that at the date of the emergency order the use of the premises did not involve imminent risk of danger to health and that financial loss had resulted as a consequence.

Provision is made for appeals. An appeal may be made to the county court against the granting or refusal of either an application for a closure order or an application for compensation. In the case of premises subject to a closure order or an emergency order, an appeal may also be made to a magistrates' court against the refusal or failure of a district council to authorise the conduct of a food business.

12.24 am

As the Minister has said, the order reproduces substantially a 1976 Act for England and Wales. Therefore, I welcome it on behalf of the Opposition. However, there are three differences. The difference concerning courts is understandable, but there are two puzzling differences between the Northern Ireland legislation that we now seek to enact and the earlier Act. Under the 1976 Act an emergency order was to be granted when the use of premises involves an imminent risk of danger to health. The order had to be affixed in a conspicuous place on the premises as well as being served on the owner or controller of the premises. That is not reproduced in the Northern Ireland order, and I wonder why not.

Secondly, by section 7 of the 1976 Act, there was an ability for the Act to be extended to ships. Again, there is no comparable provision in the Northern Ireland order, and I wonder why not.

12.26 am

I welcome the order which is designed to close the loophole in the existing legislation—that is, the Food and Drugs Act (Northern Ireland) 1958–whereby a disqualification order had to be applied to a caterer and not to the premises where the business was carried out. Any court order could be circumvented by transferring the business to another person. Apart from the welcome news that the order brings us into line with other parts of the United Kingdom, can the Minister tell us whether there is any particular aspect in Northern Ireland at the present that has made this necessary?

From soundings on the ground, it appears that this is a particularly common practice among certain oriental gentlemen who are at present opening a number of restaurants throughout the Province. When the local council comes along to serve the disqualification order, it finds that the person who had previously owned the property has become the cook, dishwasher, waiter or perhaps even the fellow who operates the stomach pump. Anyway, the business has transferred to someone else and, therefore, the procedure takes probably six weeks before it can take effect.

The order enables the court to exercise two important controls. First, the court may make a closure order where the person operating the business has been convicted of an offence under the Food-Hygiene (General) Regulations (Northern Ireland) 1964. In this instance, the local authority must have given a person at least 14 days written notice of its intention to apply. The second control is where there is imminent risk of danger to health. The court may grant an emergency closure order pending the outcome of the prosecu- tion under the regulations. Those will obviously strengthen the hands of local authorities, and that will be welcomed by Members from Northern Ireland, particularly those who are also members of local authorities in the Province.

I agree with the hon. Member for Pontypridd (Mr. John) that there are some differences in this legislation, which we are told is to bring us into line with legislation on the mainland. The equivalent legislation on the mainland requires that, where an emergency order has been imposed by the court, the local authority shall affix a copy of the order
"in a conspicuous position on the premises or, if practicable, on the stall",
which I notice is included in this order as well. No such requirement is proposed in the draft, and I suggest that, since that would provide a further public protection measure and a deterrent to the possible illegal operation of a business that is the subject of an emergency order, a similar clause should be inserted in the Northern Ireland order. Perhaps the Minister can also indicate why that is not so, particularly as the order is supposed to bring us into line with legislation on the mainland.

Exemptions are included in article 8 of the order in respect of premises in which
"there is a licence in force under—
  • (a) the Milk Acts (Northern Ireland) 1950 and 1963…or
  • (b) the Slaughter-houses Act (Northern Ireland) 1953."
  • It is fairly obvious that those two matters are dealt with in other legislation. But, as they are included in legislation on the mainland, can the Minister tell us why it was not thought approriate to include them in this order? Can he tell us which legislation takes care of those matters? What are the penalties? Are they felt to be better penalties than those outlined in the order?

    The order is to be supported, but I should like to have answers to my questions so that I can give it more enthusiastic support.

    12.30 am

    It would be wrong of me to detain the House by rehearsing some of the points that have already been made in the course of the debate and which have occurred to my colleagues and I. We welcome the order. Any order which effects parity with existing law in the rest of the United Kingdom is welcomed by us.

    However, I have one question to add to those that have been posed by the hon. Member for Belfast, East (Mr. Robinson). If food placed in a store is found to be contaminated and that store is separated from the premises on which the food is sold or cooked, does the closure relate to the store only, or will it relate to the store and the main premises where sales take place? That possible loophole may well be covered in the order but it has been known for food to be stored in the most deplorable conditions and for that food to be moved and sold, or cooked and sold.

    Apart from that query, I shall not add anything more at this early hour of the morning. We welcome the order.

    12.32 am

    I have two questions to address to the Minister. In relation to articles 4 and 5–4, the emergency order and 5, compensation in cases where an emergency order is made—when we read about the difficulty of making an emergency order, we find that the court must be satisfied:

    "that the use of the premises for the purposes of a food business involves an imminent risk of danger to health".
    Being so satisfied, the court makes the order. Article 5 states that compensation can be ordered if the court determines:
    "that at the date of any emergency order the use of the premises did not involve imminent risk of danger to health".
    The point of time is identical. Compensation can be ordered only when the court comes to the conclusion that it should not have been satisfied, as it was satisfied.

    It is not stated in article 4 that there is a prima facie case. Article 4 states that before an emergency order can be made the court must be satisfied that:
    "the use of the premises…involves an imminent risk of danger to health".
    It is difficult to suppose that the same court—in many instances the same court would be the appropriate one—can turn round and say that it was wrong and that the premises were perfectly safe on the day on which it was satisfied that it should make an order. There appears to be some difficulty on the face of the matter. There may be a choice of courts and it might be possible to play one court against another. There seems to be a contradiction or collision between the two provisions.

    My second query relates to the exemptions, or, as they are more attractively called, "savings", in article 8. It was originally intended to exempt not only premises licensed under the Milk Acts and the Slaughter-houses Act, but also premises registered by district councils. That was the provision in the proposal for this draft order and was so set out in the explanatory note that accompanied it. Could we be told a little more about this? For what purposes are the premises registered under section 17 of the Food and Drugs Act (Northern Ireland) 1958, and why do the Government on second thoughts think that premises so registered ought not to be exempt from the scope of that Act? We would welcome some indication of how it could come about that a district council had licensed premises but that the premises nevertheless ought to be open to the procedures of the order.

    12.35 am

    At this late hour I want to make two brief points. It has been my experience that the pattern of inspection and enforcement varies greatly between one district council and another. I know of one example where the inspector recommended—"demanded"might be a better term—certain changes and alterations. He indicated that he would be back within a period of, say, 28 days to inspect the modifications, and when he returned he suggested an entirely different set of modifications and alterations. On one occasion he criticised modifications made on his specific instructions. Such action is not likely to help someone operating a fairly small business and certainly reflects no credit on any of us who are responsible for government.

    Secondly, I wish to deal with the position of mobile and catering units and stalls, which was referred to by the hon. Member for Belfast, East (Mr. Robinson). I have in mind, for example, mass catering at such markets as the one that we have on the approaches to Aldergrove airport. Some dubious activities are car- ried on there, despite frequent closure and enforcement orders on the entire site, to which the proprietors and traders simply turn a blind eye.

    We would support a tightening up of the regulations in the interests of public health, but I impress on the Minister of State that there is great scope for improvement in regard to these mobile units.

    12.37 am

    I shall try to reply to most, if not all, of the specific and searching queries and comments, and perhaps I can continue in the order in which the topics were raised, although two or three hon. Members may have dealt with the same topic.

    The hon. Members for Pontypridd (Mr. John) and for Belfast, East (Mr. Robinson) raised the question of the non-recurrence in this order of the notice to be affixed to premises, which was a feature of the England and Wales regulations. The 1977 Scottish regulations, likewise, do not have an affixing provision. It was not found in the case of the England and Wales regulations, which were laid first, that it was a particularly useful feature. It necessitated recurrent inspection to see that the notice continued to be affixed. It sometimes came unstuck. It meant an extra-bureaucratic involvement of personnel to keep on checking that the notice was still there. In the Scottish regulations it was felt that it was not worth continuing that provision, and, the Scots having shown that they can get by quite well without it, we felt that the omission was proper in the case of Northern Ireland.

    During the time when the Minister asked for recommendations from various interested groups, did he have any representation pressing for the section to be included?

    None that I know of that was of such compelling argumentative validity as to lead us to decide to depart once again from the pattern that was found to be suitable for Scotland.

    I cannot accept the Minister's reason for the weakness. There may have been no real need for it to be in the legislation—that is different—but there is no requirement in the Act that the inspector should see that the notice continues to remain affixed. He just has to affix it on one occasion. There is no need for it to continue to be displayed as, for example, a town and country planning notice has to be seen to be displayed for a certain length of time.

    I think that the purpose, significance and necessity of the fixing is to advertise the fact to members of the public. But where a notice has proved not to be very durable—as has apparently been the experience in England and Wales—it has been felt to be not very useful to extend the practice when the later versions of the regulations, as it were, came to he passed in different parts of the United Kingdom, including Scotland.

    I understand that the only powers enabling authorised officers or district councils to enter ships is that contained in the Imported Food Regulations (Northern Ireland) made under the Food and Drugs Act 1955. These regulations only enable the authorised officer to get a magistrate to have the unsound food destroyed. The extension relating to ships is not felt to be part of the kind of regulation and protection that we are seeking to make in the narrow point about premises. The visitation to ships, in other words, is simply designed to get the food destroyed. Here we are concerned primarily with the protection of the public from premises which may be contaminated. There is, therefore, no real sense in which it would be useful to extend the regulation to ships in the pattern precedented under the regulations that I have quoted in this context.

    The hon. Member for Belfast, East also asked whether we had evidence of any special incidence in Northern Ireland of the circumventing of the existing regulations by the switching of ownership, responsibility, and so on. He referred delicately to some of the newcomers to the Province who might be particularly adept at this habit. There have been newcomers to other parts of the United Kingdom and the circumventing of the regulations is quite a generalised United Kingdom phenomenon. I am not aware of any special incidence in Northern Ireland. Nevertheless, the possibility exists. That is why it is desirable to make certain that we block up that loophole.

    The hon. Member also asked about slaughterhouses. I believe that the reason why we have not extended it to slaughterhouses, and have the article 8saving, is that the provisions for slaughterhouses, which are made by regulations under separate Acts, are adapted to the special conditions and circumstances of the specialised food preparation premises. They are felt to be fully and perfectly adequate for those circumstances and for those particular premises. It is better to legislate for two quite different sets of circumstances in different ways.

    The hygiene standards for slaughterhouses are contained in regulations made under the Food and Drugs Act (Northern Ireland) 1958, as the hon. Gentleman probably knows, and the hygiene standards prescribed in the Slaughter-house Hygiene Regulations (Northern Ireland) 1963, made under the Act, are generally in line with corresponding regulations in Great Britain and are felt to be perfectly adequate and perfectly effective in the task that they are trying to perform.

    The hon. Member for Belfast, South (Mr. Bradford) wondered whether there was a loophole, probably in article 3 and in the interpretation clause, article 2, concerning a food store which might be located close to, but not necessarily physically part of, the premises in which the food was retailed or prepared. I am not a lawyer and I shall have to write to the hon. Gentleman about this if I am wrong, but the interpretation clause says that:
    "'premises' includes any stall, vehicle or place to which food hygiene regulations apply".
    There is no reason, in principle, why the regulations should not extend to storage facilities adjacent to if not actually contiguous to, or part of, wider premises. The order which a local authority can seek from the court can be applied to any locality to which the food regulations apply. I shall consider the point the hon. Gentleman has made and let him know whether he has highlighted a loophole with which we should have to deal.

    The right hon. Member for Down, South (Mr. Powell) raised two points. I would prefer to look at the first in cold print and write to him. I think I am right in saying that the anomaly might arise in circumstances when a person has suffered financial loss as a result of an emergency closure order. If such a person can satisfy the court that the order should not have been made, he may be awarded compensation against the district council. This circumstance could possibly occur because of the urgent manner in which an article 4 order would be dealt with, on the grounds that the continued use of the premises involved an imminent danger to health. There would then arise the question of the short time given to the accused person and the owner of the premises to provide rebutting evidence. This should prove a rare occurrence and the compensation provisions will place a constraint on district councils. It may be that the operation of the pressure of time in an emergency will result in something being done which should not have been done.

    I quite see that the court could have less evidence at the time when it decided to make the order than when the application is received from the interested person under article 5. My main anxiety is that article 4 is so drawn, not as to be a satisfaction on the information then available to it, or prima facie, but a satisfaction—full stop. If so, the court is invited to contradict or criticise itself to pay compensation to a person genuinely injured.

    I would like to consider that point and write to the right hon. Gentleman when I have pondered the implication of it.

    The second point made by the right hon. Gentleman is answered by the fact that article 8(a) of the proposal for a draft order excluded from the provisions of the order any premises licensed under the Milk Acts (Northern Ireland) 1950 and 1963. This meant that any retail food businesses which, in addition to selling other foodstuffs, were licensed for the sale of milk would have been excluded. These premises are not now excluded from the provisions of the order except in so far as their use for the licensed sale of milk is concerned.

    The hon. Member for Antrim, South (Mr. Molyneaux) made a serious allegation about the way in which the officers of the district council can, on occasions, revise the requirements they make. I should like to weigh carefully what he told the House about that. It is obviously unsatisfactory. I am not sure that we can deal with it, strictly speaking, under the terms of the regulations here provided. We shall look into the matter. If I find anything that I can usefully add in the context of what he said about the protection that we can give to interested parties, I shall drop him a line.

    On that basis, I hope that the House will allow the order to proceed.

    Question put and agreed to.

    Resolved,

    That the draft Control of Food Premises (Northern Ireland) Order 1979, which was laid before this House on 22 November, be approved.