Food - what is devolved?
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Senedd Cymru generally has legislative competence to pass laws (Acts) in relation to all aspects of food and drink.
This is subject to the reservations in Schedule 7A to the Government of Wales Act 2006, such as ‘welfare foods’ (schemes for improving the nutrition of pregnant women, mothers and children made by regulations under section 13 of the Social Security Act 1988).
Domestic law on food and food safety is set out in, or derived from, primary legislation (statutes) made by the UK Parliament or Senedd Cymru.
Prior to the United Kingdom's departure from the European Union, food safety was primarily regulated on an EU-wide basis. The European Union considered that the importance of ensuring the safety of food requires a comprehensive and integrated approach to food safety and that this demands that all aspects of food safety are addressed at EU level. Member States, however, retained the main responsibility for enforcing the relevant EU provisions, which may be done on a national, regional or local level.
A number of the key food safety laws currently in force in Wales therefore derive from European Union law. Those key provisions may have come into force automatically (known as being ‘directly applicable’ or as having ‘direct applicability’), or may be enforceable by virtue of implementing UK legislation. Often, such UK legislation will be in the form of secondary legislation made by the Welsh Ministers. The key EU laws in force in Wales, and the United Kingdom implementing legislation are detailed further below.
In order to implement a European law into UK law, the Welsh Ministers may rely on the powers conferred by them by ‘designation orders’. These are a form of legislation, which are made by His Majesty in the Privy Council. A list of the key designation orders in relation to food and food safety is set out further below.
There is a large amount of subordinate legislation on food and food safety in Wales. The subordinate legislation in question often implements EU law on food safety though this is not always the case.
Before the devolution of power to the (then) National Assembly for Wales in 1999, subordinate legislation made by the UK Government in relation to food and food safety was made by the Secretary of State. The legislation would extend and apply to the whole of England and Wales. Where the subject matter of the secondary legislation only affected food safety in Wales, the subordinate legislation would be made by the Secretary of State for Wales acting alone. Some of these pre-devolution instruments remain in force.
Most of the Secretary of State’s functions in relation to food and food safety in Wales were transferred to the National Assembly for Wales in 1999 (by means of the National Assembly for Wales (Transfer of Functions) Order 1999. A substantial number of the Secretary of State’s powers to make subordinate legislation under pre-1999 primary legislation were therefore transferred to the (then) National Assembly, although the Secretary of State continued to exercise some food and food safety functions.
The National Assembly exercised those food and food safety executive powers from 1 July 1999 until 25 May 2007 when its powers to make subordinate legislation were further transferred to the Welsh Ministers on the coming into force of the Government of Wales Act 2006.
Care should be taken when reading and applying food-related legislation passed prior to May 2007 in relation to Wales.
Generally, references to functions of the ‘Secretary of State’ in pre-1 July 1999 statutes relating to food and food safety in Wales are to be read as references to the Welsh Ministers. This is because of the transfer of functions set out above.
Similarly, references in statutes enacted between July 1999 and May 2007 to functions of the National Assembly for Wales should be read as references to the Welsh Ministers.
Key domestic law provisions
Food and Environment Protection Act 1985
Part 1 of the Food and Environment Protection Act 1985 (the 1985 Act) makes provision about emergency orders in relation to the contamination of food. Section 1 enables a designating authority to make an emergency order if there exist or may exist circumstances which are likely to create a hazard to human health from food which is, may be or may become unsuitable for human consumption. The order may contain emergency prohibitions. Any person who contravenes an emergency prohibition, or causes or permits any other person to do so, is guilty of an offence.
The Welsh Ministers are the designating authority in relation to Wales. Their functions under section 1(1) of the 1985 Act in relation to the making of the emergency orders are to be exercised concurrently with the Secretary of State.
Food Safety Act 1990
The Food and Safety Act 1990 (the 1990 Act) makes provision relevant to food and food safety in Wales. Part 2 makes provision about food safety generally and about consumer protection.
Sections 7 and 8 provide for the offences of rendering any food injurious to health with the intention of selling that food for human consumption, and of selling food not complying with food safety requirements. Sections 9 and 10 provide for the inspection of suspect food and the service of improvement notices on the proprietor of a business where there is non-compliance with regulations. Sections 11 and 12 make provision about prohibition orders, which effectively prohibit the proprietor from continuing business.
The Welsh Ministers have power to make secondary legislation under sections 16, 17, 26 and 48 of FSA 1990. They are powers to make legislation in relation to the enforcement of EU provisions and in relation to food safety and consumer protection:
- requiring, prohibiting or regulating the presence in food or food sources of any specified substance, or any substance of any specified class, and generally for regulating the composition of food,
- securing that food is fit for human consumption and meets such microbiological standards as may be specified,
- requiring, prohibiting or regulating the use of any process or treatment in the preparation of food,
- securing the observance of hygienic conditions and practices in connection with the carrying out of commercial operations with respect to food or food sources,
- imposing requirements or prohibitions as to, or otherwise regulating, the labelling, marking, presenting or advertising of food, and
- such other provision with respect to food as appears to them to be necessary or expedient for the purpose of securing that food complies with food safety requirements or in the interests of public health, or for the purpose of protecting or promoting the interests of consumers.
The Welsh Ministers have made numerous regulations under the 1990 Act covering a variety of matters, including requirements for the labelling of fish and provisions about contaminants in food. They have also used their powers under the 1990 Act, jointly with powers under section 2(2) of the European Communities Act 1972, to implement EU law provisions in relation to food and food safety (see, for example, the Food Hygiene (Wales) Regulations 2006).
Food Standards Act 1999
The Food Standards Act 1999 (the 1999 Act) makes provision for the establishment of the Food Standards Agency (‘FSA’) for the purpose of carrying out the functions conferred on it by or under the Act. The FSA’s main objective is to protect the public from health risks which may arise in connection with the consumption of food (including risks caused by the way in which it is produced or supplied) and otherwise to protect the interests of consumers in relation to food.
The FSA is a non-ministerial government department.
Section 6 of the 1999 Act provides that the FSA has the function of developing policies (or assisting other public authorities to develop policies) and providing advice relating to matters connected with food safety or other interests of consumers in relation to food. Section 6(2) provides that the Welsh Ministers may request the FSA to exercise its powers under section 6 in relation to any matter.
In relation to Wales, the FSA has the function of developing policies and advising the Welsh Ministers in relation to food composition and food labelling policies. More generally, key areas of the FSA’s work in Wales are:
- consumer protection through active enforcement and monitoring, working with local authorities in Wales,
- reducing food-borne illness by working with industry and enforcement authorities to minimise contamination,
- ensuring food safety,
- supporting consumer choice by advising on accurate and meaningful labelling and by making information available on food safety issues, survey results and enforcement activity.
Sections 2 and 3 of the 1999 Act provide that the FSA shall consist of a chairman and deputy chairman and between eight and twelve other members, of whom one member shall be appointed by the Welsh Ministers. The chairman and deputy chairman are appointed by the Welsh Ministers acting jointly with the Secretary of State, the Scottish Ministers and the Northern Ireland executive. These members constitute the Board, which is responsible for the overall strategic direction of the FSA, ensuring that it fulfils its legal obligations so that its decisions or actions take proper account of scientific advice, the interests of consumers and other relevant factors.
Section 3 provides that a chief executive is to be appointed for the FSA, responsible for securing that the activities of the FSA are carried out efficiently and effectively. There is also to be a director appointed for Wales (and a director appointed for each of Scotland and Northern Ireland), responsible for securing that the activities of the FSA in Wales are carried out efficiently and effectively.
Food Hygiene Rating (Wales) Act 2013
The Food Hygiene Rating (Wales) Act 2013 (the 2013 Act) and the associated Food Hygiene Rating (Wales) Regulations 2013 came into force on 28 November 2013. Together, they establish a statutory food hygiene rating scheme in Wales, largely based on a FSA voluntary scheme which was already operating in Wales. The Food Hygiene Rating (Promotion of Food Hygiene Rating) (Wales) Regulations 2016 came into force on 28 November 2016 and makes further provision in relation to the promotion of hygiene ratings under the 2013 Act.
The 2013 Act requires local authorities and local port authorities to inspect and produce food hygiene ratings for food business establishments in their area, using criteria published by the FSA. The operator of the food establishment is provided with a sticker showing the food hygiene rating. The operator is required to display the sticker in one or more designated positions at their establishment and to ensure that anyone who asks for verbal confirmation of the rating is given that information. The FSA is also required to publish the rating on its website.
Local authorities and port authorities are required to enforce the requirements.
The 2013 Act gives the operator of a food establishment the right to appeal against the establishment’s food hygiene rating and the right to comment upon it. Any comments they make will be displayed on the FSA website. Upon providing evidence about the completion of necessary works, the operator may also request a further inspection and assessment of the food hygiene standards of the establishment for the purpose of considering whether the food hygiene rating should be changed. Local authorities and port authorities are required to charge the operator for the requested re-inspection.
Key European Union law provisions
Food safety is heavily regulated at an EU-wide level. The EU has also established the European Food Safety Authority for the purpose of providing independent scientific advice and clear communication to the EU and to Member States on existing and emerging food safety risks.
The relevant provisions of EU law include:
- Regulation (EC) No 178/2002 on the general principles and requirements of food law and the procedures to be followed in matters of food safety,
- Regulation (EC) No 853/2004 laying down specific hygiene rules for the hygiene of foodstuffs, and
- Regulation (EU) No 1169/2011 on the provision of food information to consumers.
Some of the provisions of the above regulations are ‘directly applicable’ in that they apply in Wales without the need for United Kingdom legislation. Other provisions are required to be brought into force with implementing legislation at UK level.
In this context, section 2(2) of the European Communities Act 1972 provides that the Welsh Ministers have the power, in relation to the subjects for which they have been ‘designated’, to make subordinate legislation to implement European Union law. The Welsh Ministers may be designated by the making of an Order in Council, known as a ‘designation order’. Any designation order made prior to May 2007 which designated the National Assembly is now to be read as an order designating the Welsh Ministers. This is by virtue of paragraphs 28 and 30 of Schedule 11 to the Government of Wales Act 2006.
The designation orders relevant to food and food safety include:
- European Communities (Designation) (No. 7) Order 2004 in relation to the quality of water intended for domestic purposes or for use in a food production undertaking,
- European Communities (Designation) (No. 2) Order 2005 in relation to food (including drink) including the primary production of food and measures relating to feed produced for or fed to food-producing animals, except feed containing medicinal products, and
- European Communities (Designation) (No. 2) Order 2008 in relation to the veterinary and phytosanitary fields for the protection of public health.
The Welsh Ministers (and, pre-May 2007, the (then) National Assembly) have exercised their powers under section 2(2) of the European Communities Act 1972 to make numerous statutory instruments to implement EU law in relation to food and food safety. They include:
- Food Hygiene (Wales) Regulations 2006 to implement various EU law requirements, including those provided for by Regulation 178/2002, and
- Food Information (Wales) Regulations 2014, to implement the requirements of EU Regulation No 1169/2011.
Following the coming into force of the Wales Act 2017, the Welsh Ministers have a general designation under section 58B of the Government of Wales Act 2006. The effect of this is that the Welsh Ministers are generally treated as being designated for the purposes of section 2(2) of the European Communities Act 1972, for areas within the legislative competence of the Senedd Cymru.