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Chapter 1
Environmental Health Legal Structure and Process
Environmental Health Law: An Introduction
The procedures interpreted in this book are based on primary and secondary legislation as it applies in England. In some cases, they will also apply in the rest of the UK but this varies because of the separate legislative powers of the National Assemblies in Northern Ireland, Scotland and Wales. In Northern Ireland and Scotland, the primary legislation as well as the secondary legislation may be different, but the Welsh Assembly has powers only in respect of the making of secondary legislation (e.g. regulations).
In each procedure, the applicability of the procedure to the rest of the UK is indicated in the section headed ‘Extent’.
In the case of some procedures relating to food safety, the environmental health service will be directly enforcing EC Regulations without there being implementing regulations in the UK.
The Framework for Enforcement Policies
In undertaking the enforcement of environmental health legislation and forming their individual enforcement policies, local authorities need to take account of government policy, government agencies and initiatives taken at national level which seek to guide their enforcement policies. The most significant are outlined below and it will be seen that, in total, they form a very substantial influence over local authority enforcement activity.
The Hampton Review
A review was commissioned by the Chancellor in 2004 to review regulatory inspection and enforcement with a view to reducing the administrative cost of regulation consistent with maintaining effective regulatory outcomes. The final report was made in March 2005 and is the basis of much of enforcement policy today. The principal findings included:
- entrenching the system of risk assessment throughout the regulatory system;
- reducing the need for inspections by up to one third;
- reducing the number of forms regulators send out by up to 25 per cent;
- making more use of advice by applying the principle of risk assessment;
- substantially reducing the need for form filling;
- applying tougher and more consistent penalties where these are deserved;
- reducing the number of regulators that businesses have to deal with;
- entrenching reform by requiring all new policies and regulations to consider enforcement and to use existing structures wherever possible;
- creating a new business-led body at the heart of government to drive implementation of the recommendations and challenge departments on their regulatory performance.
This resulted in the creation of the Better Regulation Commission, Better Regulation Executive and Local Better Regulation Office, but the principles of better regulation have been embodied in a new body created to take better regulation forward (see below).
Better regulation
The Legislative and Regulatory Reform Act 2006 imposes a duty on any person exercising a specified regulatory function to have regard to the five principles of good regulation. The principles provide that regulatory activities should be carried out in a way which is:
- transparent;
- accountable;
- proportionate;
- consistent; and
- targeted only at cases in which action is needed (section 21).
Section 22 of the Act enables a Minister of the Crown to issue a Code of Practice relating to the exercise of regulatory functions (the ‘Regulators’ Compliance Code’). This section imposes a duty on any person exercising a specified regulatory function to have regard to the Regulators’ Compliance Code – April 2008, when determining general policies or principles and in setting standards or giving general guidance about the exercise of other regulatory functions.
The Legislative and Regulatory Reform (Regulatory Functions) Order 2007 specifies the regulatory functions to which these duties apply.
Regulator’s compliance code
The principles of the code are as follows:
Risk assessment – Regulators, and the regulatory system as a whole, should use comprehensive risk assessment to concentrate resources on the areas that need them most.
Inspection – No inspection should take place without a reason.
Data requirements – Businesses should not have to give unnecessary information, nor give the same piece of information twice.
Handling suspected breaches – The few businesses that persistently break regulations should be identified quickly, and face proportionate and meaningful sanctions.
Advice – Regulators should provide authoritative, accessible advice easily and cheaply.
Supporting economic progress – Regulators should recognise that a key element of their activity will be to allow, or even encourage, economic progress and only to intervene when there is a clear case for protection.
Accountability – Regulators should be accountable for the efficiency and effectiveness of their activities, while remaining independent in the decisions they take.
Better Regulation Delivery Office
The Better Regulation Delivery Office (BRDO) was created on 1 April 2012 as an independent unit within the Department for Business, Innovation and Skills. They are guided by the Representative Steering Group (RSG). They operate across the United Kingdom and support the Coalition Government’s Strategy for Better Regulation.
BRDO promotes a regulatory environment in association with business in the delivery of regulation and developing practical tools for regulators.
This means:
- providing a centre of expertise for primary authorities and extending the scheme to enable more businesses to participate;
- simplifying delivery of regulation for business, regulators and government;
- providing a forum for business engagement to shape regulatory policy and delivery;
- supporting Local Enterprise Partnerships to tackle regulatory delivery issues at the local level;
- providing policy advice to UK and Welsh ministers on regulatory delivery.
The Enforcement Concordat
This agreement between the local authority associations and the government was reached in March 1998 and is supported by the British Retail Consortium. The Concordat is not mandatory but the vast majority of all organisations within the scope have adopted it. It deals with:
- standards of level of service and performance;
- openness in the provision of information and the use of plain language;
- helpfulness in working with those affected by environmental health laws;
- well-publicised procedures for dealing with complaints about enforcement;
- proportionality to ensure that enforcement action is related to risk levels;
- consistency by enforcing in a fair, equitable and consistent manner;
- procedures to guide the enforcement action of individual officers.
Most local authorities have embraced the Enforcement Concordat into their enforcement policies. The principles are embedded in operational procedures in local authorities and guidance has been produced to help them – ‘Applying the Regulators’ Compliance Code and Enforcement Concordat: Local Better Regulation Office briefing for local authority regulatory services’ (March 2008).
Best value
This concept involves continually improving how all functions, including those involving enforcement, are undertaken by an authority. The scheme is given statutory force in Part I of the Local Government Act 1999 and involves processes that ensure functional reviews include challenge, comparison, consultation and competition. Benchmarking, which is the continuous process of measuring services against leaders in the field, allowing the identification of best practices, is central to all aspects of this review process. The principles of best value have, to a large extent, been embodied in local government culture and the framework of performance management.
Comprehensive Performance Assessment (CPA) and Comprehensive Area Assessment (CAA)
These schemes looked at how well services, including environmental health, were delivered and how they impacted on the delivery of services. The scheme is based on audit, and categorised local authorities into excellent, good, fair, weak and poor. The judgements were based on three separate elements:
- annual use of resources assessment;
- annual service assessment;
- a periodic corporate assessment.
Performance management was supported by the use of performance information based around the use of Best Value Performance Indicators (BVPIs), which were rationalised to a suite of indicators, many of which are retained by local authorities to measure their performance internally. CPA and CAA are no longer a priority for the government or local authorities.
Performance management and competence
The Local Better Regulation Office (LBRO) (now the Better Regulation Delivery Office, an independent unit within the Department for Business, Innovation and Skills) produced the Local Authority Regulatory Services Excellence Framework. Local authorities can measure service delivery quality based on the achievement of set targets, identified through consultation with their customers. Many have adopted quality management systems, some obtaining certificated systems through British Standards and ISO.
‘An Introductory Guide to Performance Management in Local Authority Trading Standards and Environmental Health Enforcement Services’ is a best-practice guide published in 1999. It aims to assist local authorities with best value targeted performance management and includes matters relating to enforcement. The guide identifies the following themes as being central to good performance:
- Protection of the wider agenda (i.e. councils leading and energising local communities)
- Transparency and consistency
- Quality and value
- Delivery and review.
The LBRO also published the ‘Common Approach to Competence for Regulators’ in 2011, which incorporates the Regulators’ Development Needs Analysis (RDNA) and Guide for Regulators Information Point (GRIP) tools, which are available to ensure professional competency in regulatory activities.
The Food Standards Agency
The Agency sets and monitors standards of performance for food authorities in enforcing food safety laws. They may make reports on that performance, including guidance on improving standards, and direct that the food authority should publish, within a specified time, details of actions they will take to comply. They may also require each food authority to provide information and to make its records available for inspection.
In 2000, the Agency published a Framework Agreement on Local Authority Food Law Enforcement, which applies to the whole of the UK. It has been amended several times, the last in April 2010. This has four main elements:
