Consumer Rights Bill

Baroness Bakewell of Hardington Mandeville Excerpts

Wednesday 29th October 2014 Grand Committee

Moved by

[Baroness Bakewell of Hardington Mandeville]

60: Schedule 5, page 80, line 11, after “may” insert “on production, if required, of his credentials,”

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I will speak to Amendments 60, 61, 62, 63 and 63ZA. As noble Lords know, my noble friend Lord Clement-Jones is elsewhere so I am standing in for him.

The first group of amendments deals with powers of entry for enforcement officers. While there is some logic to giving advance notice of inspections by trading standards officers, I do not believe that will work in favour of consumers and businesses in all cases. There are a number of situations in which the exemptions for giving notice cannot be sustained and are likely to cause confusion and uncertainty about whether an officer has to serve notice before an inspection of a business they believe is in breach of legislation.

The horsemeat scandal has caused the European Commission and the consumer to voice support for more unannounced inspections. Reviews of food safety powers have left powers of entry for trading standards officers untouched after concluding that the use of unannounced inspections is proportionate to the risks involved. The assumption is that consumer protection against unsafe products, including dangerous electrical goods, involves less risk. I question that assumption.

Evidence from members of the consumer association Which? suggests that many authorities are already following an intelligence-only approach. They use powers of entry only where there is good evidence to suggest that a breach has occurred. Many businesses suggested that they value unannounced inspections, both for their own businesses and their competitors. The need to give notice is questionable if it will do little to change existing practices and add little to the system. Although Which? welcomes the new provisions to give consumers redress, help them make better choices or prevent businesses from creating further harm, it has concern about how many authorities will actually take up such provisions, due to the complex nature of the processes, costs and risk to the enforcer.

In the criminal courts, enforcers can be liable for the defendant’s costs only in limited circumstances; for example, in the event of the enforcer acting improperly, negligently or unreasonably. We all know that in the civil courts the loser generally pays the winner’s costs. That could act as a disincentive to enforcers who are acting in the public interest. Perhaps now is the time to have the same protections for enforcers in the civil courts as in the criminal courts. If the legislation puts the onus on the enforcer to prove that the cost of redress does not exceed the cost of the harm, it will add to an area of possible challenge and could encourage enforcers to use the criminal route instead. A more balanced approach is needed whereby the business proposes a package of measures to the enforcer or the court and that is negotiated as necessary.

Amendment 63ZA is a probing amendment. I was contacted by environmental health officers who are concerned that the need to give advance notice would not help protect the consumer when grading food preparation and catering premises for food hygiene certificates. During the summer, I spent a day out with an environmental health officer. We visited a care home for the elderly which was anxious to increase its score from four to five, which is the highest rating. The visit was unannounced, but the home had requested a rescore. The reason for the score of four was mainly to do with the preparation of paperwork and flow charts, not the cleanliness of the kitchen or the temperature at which the food was stored. I am sure that noble Lords will agree that food hygiene in a care home for the frail elderly is extremely important. I was able to see the food being prepared, stored and served to the residents. All of them had a choice of food and the menus ran for a month before being repeated. It was very reassuring that despite having to be in an institution, the residents were consulted about what they would like to eat and their special diets were catered for. Our unannounced visit was successful and the home was told when we left that it would now get its treasured five rating.

We then went on to visit premises where the officer had provided advice and support to two new small businesses starting out in the food industry. One comprised a man in his 20s entering the specialist beer brewing market and the other was made up of two ladies starting a lunch and sandwich business close to a railway station and an industrial site where previously there had been no catering outlet. Once the businesses were up and running, they would get unannounced inspections in order to be given a food hygiene grade. Both were aware of this and both welcomed it.

We also visited a public house which the council, together with the police, had prosecuted, having previously served several improvement notices without success. The photographs of this establishment were truly horrific and proved that what the consumer sees in the bar or dining room of a restaurant is not what goes on behind the scenes in the kitchen. Mercifully, such instances are rare.

A catering establishment which has been awarded a grade four or five will have the certificate displayed on the door as you enter. Those which have received a three or below will not have it displayed anywhere since there is no requirement for them to do so. The officer who took me out also had on his patch Yeo Valley yoghurts and a massive Dairy Crest processing plant on a farm. He said that of course he gave notice when he went to visit them because he wanted to meet the managers and those who could give him the answers he required. He accepted that they were very busy people and did not wish to waste either his or their time. However, if when he went on his planned visit he found something that he felt was unsatisfactory, he would then make an unannounced inspection at a later date. Noble Lords will be pleased to know that this did not happen in either of the two cases I have mentioned.

I am seeking an assurance from my noble friend the Minister that the businesses I have described are not included in the requirement to give advance notice of inspection. To do so would mean that the unscrupulous would have a clean-up prior to the inspection but a week later would revert to their normal practices. I do not believe that this would be in the best interests of or protect the consumer. I beg to move.

--- Later in debate ---

[Baroness Bakewell of Hardington Mandeville]

I thank my noble friend for her comments and I am slightly reassured. I am grateful for the reassurance that food hygiene certificates are not covered by this legislation but are covered elsewhere. I know that environmental health officers will be reassured because they were extremely concerned about how they were going to operate if they had to give notice.

With regard to competition versus the consumer’s rights and businesses generally, I thank my noble friend for her comments. I have to say that I am not totally convinced but I beg leave to withdraw the amendment.

Amendment 60 withdrawn.