Health and Community Care Committee,

Meeting date: Wednesday, May 10, 2000

Official Report 308KB pdf

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Subordinate Legislation

Agenda item 2 is subordinate legislation. We have been approached by the Scottish Retail Consortium. It has some concerns about the Food Safety (General Food Hygiene) (Butchers' Shops) Amendment (Scotland) Regulations 2000 (SSI 2000/93), which have come about because of the findings of the Pennington inquiry in the aftermath of the E coli outbreak in Wishaw some years ago.

Committee members will feel that paramount in our minds is public health and food safety. Within that umbrella, and considering the need for consumer confidence about the food we eat, some areas give the Scottish Retail Consortium cause for concern. I thought that it would be a good idea to hear its concerns.

We will also hear from the Scottish Executive on this issue. This should, I hope, be a fairly brief part of the agenda this morning. We will not take a decision on it, but it will allow members to formulate an opinion and we will come back to it at a later meeting.

Good morning, gentlemen. You can give us an indication of your concerns about the regulations.

Thank you, convener. I will start by introducing my colleagues, Roger Hammons, who is the company standards executive with Somerfield Stores Ltd and Bob Jamie, who is consultant to the Scottish Grocers Federation. Both organisations are members of our trade association. I am the director of the Scottish Retail Consortium.

I thank you for giving us the opportunity to come along today to voice our concerns about the butcher licensing regulations. I know that your time is precious. The fact that you have agreed to see us is much appreciated.

In relation to butcher licensing, the consortium represents all the major multiple retail outlets in Scotland. All of them are in our membership. We estimate that in excess of 500 multiple retail outlets will be affected by the butcher licensing regulations, which the committee is considering.

The committee has already seen our briefing note, which sets out our detailed concerns on butcher licensing regulations as they are currently worded. I stress that the consortium's concern, and that of our members, is not to undermine the regulations but to ensure that they are workable for our members and enforceable for the licensing and enforcement bodies.

We have fundamental concerns about the wording and intention of aspects of the regulations. Our fundamental concern is that they have been drafted with the intention of applying to stand-alone butcher shops. We are not convinced that multiple retail outlets have been taken into account in the drafting, especially when it is considered that multiple retail outlets tend, in the main, to sell a range of goods—a much broader range of products than raw meat and pre-packaged food products.

In the context of a multiple retail outlet, the regulations apply to the whole floor space in the store, not just the butchery part of the business. If members examine how a butcher's shop is defined in the regulations, we believe that that is the impression given by the regulations—if not the intention—as they are currently drafted.

Our members have some difficulty understanding why butcher-licensing regulations should extend to the whole of their stores instead of being focused on the relevant butchery parts of their premises. The issue of stores operating a mixed retail business has been addressed in the English and Welsh regulations; we have suggested a possible amendment to the Scottish regulations, which is included in the briefing note.

Our second concern relates to the definition of a proprietor. The regulations refer only to a business run by a "person" and imply—if not state—an issue of ownership of the business. Given that our members include plcs and private limited companies, we suggest that the definition needs to be amended—for the sake of clarity, if nothing else. That is particularly important in relation to concessions operated by one company in a different company's stores.

The issues of a mixed retail business and proprietorship are particularly problematic in the case of Kwik Save stores. I ask Roger Hammons to speak briefly to the committee on that specific point.

Somerfield and Kwik Save are the same company. We operate more than 100 supermarkets in Scotland. Some fresh food operations in those stores are run by separate local businesses that rent space from us. That brings a local flavour to our stores, under a multiple banner. Under the regulations, the whole premises would be licensed. It seems, therefore, that Somerfield or Kwik Save would have the job of running concessions to ensure they complied with the licence. We think that concessions should be treated as separate businesses and that they should hold a licence for those things for which they are responsible. If we fell within the scope of the licence, we would also apply for one.

Another concern relates to the size of stores. The meat operation, to which the regulations apply, comprises a very small proportion of total store space. In some superstores, the meat operation amounts to less than 10 per cent of the total store. All current legislation covers the whole store and these regulations would create another layer of legislation that might get in the way of the others.

Bob Jamie would like to make a specific point about the status of proprietors in Scotland.

There is a third category of business ownership that is peculiar to Scotland and needs to be referred to specifically in the regulations. A Scottish partnership or firm is a legal entity quite separate from the individual partners. The regulations need to stipulate that the existence of such a firm should be referred to when a licence application is being made.

Our third concern relates to the training requirements that are set out in the regulations. I stress that the consortium is not questioning those requirements; indeed, many of our members already train their staff to these or higher levels. The complication is that training is often not accredited externally, as the regulations would require. We ask for the regulations to be amended to allow in-house training programmes, conducted to a level equivalent to the standard required by the regulations, to be accepted for licensing purposes. Given the number of staff involved, for reasons of business efficiency, many of our members conduct meat-handling training in-store and do not use external training bodies or send people on individual training courses.

Our last concern, as is set out in the briefing note, relates to the appeals process. We have consulted our members again on that point and they now accept that the appeals process as set out in the Food Safety Act 1990—which is the appeals process set out in the regulations—is adequate. They feel that, rather than introduce another appeals process, it would make sense to accept the process outlined in the regulations. Our members are prepared to withdraw their concerns on that score, but we hope that the committee will take into account our concerns about the other points that we have highlighted. We will do our best to answer any questions. Thank you for taking the time to listen to us.

Thank you for giving us such a broad outline of the consortium's position. I have some reservations. As someone who does not normally use a butcher's shop, but shops at a multiple retail outlet, I would like to know whether the current wording of these regulations would have an effect on jobs. How do you think the regulations could be changed to deal with the issues that you have raised this morning?

I will deal with the question about the possible impact on the operation of stores and, ultimately, on jobs. The regulatory impact assessment that accompanies the regulations indicates that their introduction will entail significant one-off costs. The schemes that are outlined in the document suggest initial costs of around 8.5 per cent of turnover in individual butchers' shops. We suspect that the cost will be higher in multiple retail outlets. I am sure that multiple retail outlets will absorb those costs and that they will not have implications for jobs. Stores would not want staff to suffer because of regulations that people have decided to introduce and that our members have accepted.

In the briefing note that we supplied to the committee, we made specific suggestions for amendments to the regulations. A particular concern relates to the definition of applicant; we think that it must include companies. It is crucial that we deal with the issue of a mixed retail business. We are concerned that the regulations as currently drafted will pull in parts of the store that are not meant to be covered. For example, catering premises are specifically exempted from the regulations but, as members will be aware, many multiple retail outlets and supermarkets contain coffee shops. If the regulations extend to the total floor space in a store, a coffee shop in a supermarket could end up being covered by them, despite the fact that there is a specific exclusion for catering premises.

We accept that improved regulations for butcher licensing are necessary, but we ask that the regulations be focused on the relevant parts of the store.

Your concerns relate not to the regulations as a whole, but to some of the practicalities.

You made a point about in-house training. How would the standard of that training be verified? In-house training can mean many things.

There is a syllabus for training in basic and intermediate food hygiene. We would have to show to the local authority's satisfaction that the company's in-house training covered all the elements of that syllabus. Although we might not follow exactly the format of courses with external accreditation, we would get to the same point by a different route.

Would you envisage outside accreditors coming into a store, as they do in the case of Scottish vocational qualifications, to verify that the required standards are being attained?

Many of the companies to which we are referring employ people in-house to check that the store managers and people in the store are carrying out the company's policies.

But that is all in-house.

Yes, but they have to produce a separate report. Under the legislation on pricing and date marking, we have to be able to demonstrate reasonable caution and due diligence to the satisfaction of the local authority.

Do you have any objection to external verifiers coming in to ensure that in-house training is meeting the required standard?

We would object to a third party coming in. The external invigilators should be the local authority enforcement officers.

Kay Ullrich has already asked my question, which was about who would decide what was equivalent training, how it would be monitored, and what the quality control on that would be.

Have the trainers in your organisation been validated as qualified to discharge that duty?

Yes, they have. There are basic, intermediate and advanced levels of hygiene training, and the regulations require certain people to have basic and intermediate training. The people who carry out the training must have been trained to an advanced level.

Is that external training?

Yes. It is carried out by environmental health bodies.

So the trainers are qualified.

Yes, they are.

I have a general question. I am not entirely clear about the practical effect of passing these regulations. There seem to be references in them to specific areas of shops, so it seems that your concerns are dealt with. If the regulations are passed, what will happen in practice in non-meat parts of the shop that you think is unnecessary or undesirable?

The issue is to ensure that the regulations apply to the parts of a store to which they should apply. As I said, our fundamental concern is that the regulations have been drafted to apply to stand-alone butchers' shops and not to—

What are the practical effects on other parts of the shop, given that most of the regulations are specific to those parts of the shop?

The practical effect is the one that I addressed earlier in relation to catering premises in a store. If a coffee shop is part of a retail floor space and is classed as that by the local authority, it will come under the terms of the butcher licensing regulations, despite the fact that the regulations as drafted seek to exclude catering premises.

What would have to be done in the coffee shop that would be undesirable?

The second issue is the point Roger Hammons made about concessions operating within stores. In trying to resolve that point, one has to deal with the mixed retail business argument. There is also the question of the status of proprietors.

I am still not clear about this. If the regulations were passed without the amendments that you propose, can you give specific examples of the changes that would have to be made in a catering establishment within a mixed-use area? What staff changes would be required? How would that unit be affected?

There would be problems with creating recipes in the rooms and kitchens in which food is prepared and cooked. A lot of separation would be needed. We have not studied that issue in great detail because it occurred to us belatedly as we scrutinised the regulations. However, we think that there will be an impact. In catering establishments, people handle food that has to be cooked on the premises. For example, to achieve the proper separation, we may find that double-sided ovens are required so that food can be put in the oven from one side and taken out the other. Potentially, there are many problems, but we need to study this issue further.

You said that the regulations would affect mixed shops. In what other ways would they be affected?

All ready-to-eat food in the supermarket is caught by the legislation.

You are saying that food that is sealed and packaged should be exempt, because it will not be handled and there is no possibility of contamination, whereas under the regulations as they stand, you will have to train staff in food handling?

Yes.

Correct me if I am wrong, but I think your submissions are made against a background of feeling in the trade that some hygiene regulations are over the top and harmful to business. For example, seven or eight years ago, new bakery regulations put many small bakers out of business; they were forced to spend £30,000 or £40,000 on chill counters, which were unnecessary in the fresh bakery trade. Do you feel that it is in the public interest for all possible hygiene precautions to be concentrated in the raw and cooked meat selling area because you fear that in practice people might get slacker if there is a general rule? Would you rather that hygiene regulations were concentrated on the butcher's counter?

That is a valid point. The butcher licensing regulations are aimed at the parts of premises in which raw meat and pre-packed foods are dealt with at the same time. Our argument—I am not trying to turn this around or avoid your questions—relates to why the regulations should apply to parts of a store in which there is no butchery business. That is a more fundamental question. Our concern is that by extending precautions to the whole of a 30,000 sq ft store rather than restricting them to the butchery part of the business, people become less conscious of standards. The English and Welsh regulations have addressed the point that we make.

Are you saying that we are gold-plating these regulations? I want to pick up on what Dorothy-Grace Elder said. There may be stand-alone butchers' shops with very low turnovers. I am thinking about equipment that costs £10,500 and significant increases in staff costs. Are you concerned that the regulations—necessary though they are—will increase the cost of the product and that some butchers' shops, perhaps in rural areas, may be threatened?

When we responded initially to the consultation, we expressed concerns about the additional costs the regulations would impose on businesses, and on small businesses in particular. I guess that we still have those concerns, but the argument has moved on and the regulations have been drafted and are before Parliament. We now seek to ensure that the regulations are workable and enforceable.

The one-off costs are significant and complying with the regulations will certainly impose a burden on small businesses, but we have to comply with the law and meet any additional costs. We will do our best to ensure that the impact is minimised.

I will pick up on a point Richard Simpson made about mixed stores. Would many more employees of mixed stores, such as those working with pre-packed food, have to receive training, perhaps unnecessarily?

Employees already receive a significant amount of training and would have to have more.

There would be a cost.

Yes, there would be a cost. It might not be necessary for them to receive that training.

On the cost of licences, do you have a view on whether it is fair that bigger stores such as Somerfield should pay a similar price for a licence as a single proprietor of a local shop?

You are stuck in the middle.

That is a difficult one. The regulations have been drafted so that there is a flat rate for everybody. I accept that superstores tend to operate larger butchery premises than other shops, but there are individual butchers' shops that have larger butchery businesses than those in superstores.

I will phrase the question differently. Do you think that more could have been done to reflect the volume of sales in the cost of the licence?

I will duck that question. It is one for the Scottish Executive.

I know—the Scottish Executive is next.

Our concern is about additional costs on business. This requirement is being introduced by the Government, although we accept that it has invested money in local enforcement and training initiatives for local councils. I will have to duck the question.

Does Somerfield have a view on that?

Our earlier private view was that there should be a scale according to the size of stores. I do not like ducking questions.

You are very public minded.

Ben Wallace asked about the requirement for extra staff and extra training for people who do not have to handle raw meat. Have you quantified the cost of that in your stores in Scotland?

We did not cost it out fully, and I could not say with any degree of accuracy what the costs are. Our figures would be a deal different to those of some of the other retailers.

Would it be quite difficult for us to get a quantifiable figure, because of the differences in staff turnover, size of store and so on?

I would be very willing to investigate that and to respond at a later date. If that is acceptable to you, and if you give me a few days in which to do so, I will be happy enough to consider that.

Training costs are mentioned at paragraphs 31 and 32.

Which paragraph? I remember seeing some reference to a cost in the order of 8 to 10 per cent.

It says that basic level training will cost £25 to £50 and that intermediate training will cost £100 to £250.

I am trying to put those figures into a quantifiable percentage of extra costs falling on companies for training of staff who are not directly covered by the regulations. I do not think that anyone is arguing against having that level of training, whether in-house or otherwise, for people who handle raw and pre-cooked meat directly.

However, as I understand the position, the argument is now about the licence covering a whole store. People who stack shelves and who are not in direct contact with two different types of meat will also have to be trained. I am interested in those extra training costs, over and above those for people who handle the meat. There does not seem to be much to be gained from heaping extra costs on to businesses unless there is an impact on public health and food safety.

I am concerned about the small, rural mix shops, such as the Spar or the Co-op, which do a bit of everything. Somerfield is vast and, in any event, it probably has a great big training scheme for nearly all its employees, while there will be a knock-on effect on some of the small village shops where the meat counter is a tiny wee thing in the corner.

Ben Wallace's concerns highlight the fact that it is quite difficult to introduce regulations that cover those two greatly different situations.

Yes, but we have stores in relatively rural areas. I had a nice holiday in Scotland last year, when I visited some of our stores that I had not been to before. They are more rural than our other stores, although they are not as rural as some of those mentioned by Ben Wallace, on which the regulations will impact.

As there are no more questions, I thank the witnesses for answering our questions and giving us some food for thought on these regulations.

I now ask the representatives from the Scottish Executive to come forward.

I am always carping on about Scottish statutory instruments coming before us without any notice. This example shows us how important it is for us to be given enough time to take action. We see so many SSIs and, without the debate that was initiated by the Scottish Retail Consortium, we may well have just watched the regulations go through. We may not even have seen them in enough time.

I believe that the regulations have also gone through a European procedure. However, it may be that we are looking at them from a peculiarly Scottish angle, given the comments made by the Scottish Retail Consortium about Scottish partnerships and so on. Perhaps some of the rural dimension to the issue is more obviously Scottish.

I would also like to ask the clerk if we could acquire a copy of the English regulations. As the consortium's submission says that those regulations deal with the issue of mixed business premises, we could see how the wording—

Yes. Can we have some clarification on the situation in England and Wales?

I ask the witnesses to give us an indication of the Executive's position on butcher licensing. We will then ask you questions based on what you said and on what we heard from the Scottish Retail Consortium witnesses.

I should say that we are here from the Food Standards Agency rather than the Scottish Executive—this is the first time that we have represented the agency at one of the Parliament's committees. I have with me Steve Lindsay, who was involved in developing the regulations as a lawyer in the Executive, and Jennifer Howie, who is one of my policy colleagues and who has been involved with many of the organisations and consultations that have taken place over the past few months.

As members recognise, the butcher's licensing scheme is designed to improve hygiene practices in butchers' shops. It has arisen specifically because of the tragic deaths from the E coli outbreak in central Scotland. The regulations bring into effect the last of the Pennington report's key recommendations. The Scottish scheme brings into effect all the recommendations from that expert group. The proposals in Scotland were subject to three separate, wide consultation exercises over a period of three years. The exercises covered 300 to 400 different organisations representing the industry, enforcers and consumer interests. Ministers from at least two Administrations supported the SSI because its emphasis is very much on improving consumer safety and confidence.

I will turn to the main points made by the Scottish Retail Consortium. It is useful to have that dialogue, because we want to move in partnership with the industry. The consortium suggested that the definition of "butcher's shop" affected only stand-alone shops—that is not the case. We carefully considered how to define the premises in Scotland. Because this is a licensing matter, the model that we followed was that of Scottish liquor licensing laws, where the whole premises are defined. It also provides an example of businesses, particularly those with a mix of business interests, that are used to dealing with a licence. While the conditions that relate to the butcher area cover the whole shop, it is important to note that they are directed towards the areas of risk that are identified in the SSI—the risk is that of cross-contamination between a raw meat product and a ready-to-eat food.

While I will not go through all the conditions, because they are detailed, almost all the important conditions mention raw meat and unwrapped or wrapped ready-to-eat food specifically. Therefore, the conditions do not apply to the sale of a bucket and spade, because they can only apply to those areas where cross-contamination could occur. A different approach is taken by our colleagues down south, but our approach was taken in partnership with enforcers and with the main trade body of the butchers organisations.

A possible problem with catering premises in large retail stores that have a butchery counter was mentioned. The regulations specifically exclude catering premises, the definition of which is

"premises, or parts of premises".

My legal adviser might like to come in on that point, but we do not believe that that definition creates a problem in stores, because the catering side of that business is excluded from the regulations.

The definition provisions, which are contained in paragraph 1 of the regulations, describe first what we mean by a "butcher's shop". Immediately after that, they define what we mean by "catering premises". From my reading of the blending of those two definitions, it looks to me as though catering premises are intended to be excluded from the butcher's shop and that catering premises can form a canteen or restaurant on other premises. That means if they provide food for consumption by the public or staff and are not used as an intermediate processing stage to send prepared food on to other premises, they are classed as catering premises and are exempt from the requirements.

Is that paragraph 1 of schedule 1A?

That is right.

The consortium was also concerned that, where there was a concession, there could be a problem for the host premises. The SSI has been designed so that the secondary business or the host premise can apply. Naturally, a concessionary business would also involve a contract and conditions would be dependent on that situation.

That links in with the use of the term "proprietor", which, under Scots law, does not have to be a single person. In other words, Safeway Stores plc is as much a proprietor as Joe Smith the local butcher. As the term "proprietor" is used in the Food Safety (General Food Hygiene) Regulations 1995, the SSI also keeps a continuity with earlier legislation. If the committee needs more information on the legalities of that, Steve Lindsay will happy to supply them.

On concerns that in-house training would not be allowed, we have specifically amended an earlier version of the regulations to ensure that the phrase reads "training equivalent to". I should make it clear that enforcement officers will decide whether training is equivalent to statutory levels, as they decide whether a premise can be licensed. Although in-house training will be acceptable, it does not have to be specific exam-led training. We are currently producing guidance notes that will go into more detail on the training elements.

There was a further concern about handlers, which was very much related to mixed premises or businesses. In response to comments from the consultation—in fact, I think that the consortium itself raised them—we amended the terms to meat handlers who have to be trained. That means anyone who handles wrapped or unwrapped meat, because that is where the risk lies. Someone who stacks shelves, for example, and does not handle either raw meat or ready-to-eat foods would not need that level of training.

Will someone stacking fridges with packaged, ready-to-eat meat require training?

If they were not separate staff. In other words, they would require training if they were also going to touch unwrapped, raw meat. That is a reasonable safety measure as far as training is concerned.

Finally, I am glad that the Scottish Retail Consortium is now happy with our response to its concerns about the revocation of licences. I think that that is as much as I can say, and I am very happy to field any questions.

You talked about the legal definition, which is a term that concerns me, as it leads me to believe that the SSI is not as clear as it is intended to be. Furthermore, I think that Mr Lindsay said "It appears to me", which makes me think that if there is a court case, the final decision will be down to the determination of a particular sheriff. That is not the way we should pursue legislation of this nature. In order to ensure that everyone is aware of the exact definitions, perhaps the definitions should be drawn from people who are not legally qualified. It never ceases to amaze me how six lawyers can come up with six different viewpoints on one piece of legislation, with each of them raking in large amounts of cash.

Like politicians.

Maybe.

I suppose that six lawyers give six different answers because they all have families to feed.

I am sorry if I sounded too much like a lawyer when I was explaining the legislation. If I said "It appears to me", I meant that that is what I tried to do. I am pretty clear about the instructions that we wanted to exclude. Although you are right to say that it will always be up to the court to decide these matters, we strive to make the legislation say what it means. I think that these regulations say what they mean, and I would be happy to stand up in a court and say so.

However, it will be a proprietor who will have to answer that question in court, not you, and the local environmental health will put its own spin on it. That is not helpful to anyone. Is there any possibility of reconsidering that part of the legislation to ensure that there is no dubiety about its intentions?

I have a great deal of sympathy with the vagaries of Scots law and I do not think that we can totally turn the system on its head over this issue. However, we are currently finalising detailed enforcement guidance to provide consistency across Scotland for enforcers. Furthermore, we are involved in and facilitating the development of industry guidance, which will be in much plainer language. Although the enforcement guidance is only guidance, the courts will take it very much into account if a case comes up.

Could such guidance be included in the legislation to ensure that there are no arguments and that legal minds are not trying to make some money by finding ways to challenge it?

The point is well taken. We increasingly strive to make legislation say what it means. In this case, we think that we have made it say what it means.

It is not enough just to think.

I do not think that committee members are satisfied with that answer.

I want to turn to paragraph 9 of schedule 1A, which deals with the suspension of revocation of licence and appeals procedures. If I understand the Scottish Retail Consortium correctly, that provision is already contained in the Food Safety Act 1990 and there is no need for further legislation. How would you respond to that comment?

Is that the point about appeals?

Yes. Paragraph 9 of schedule 1A.

The SRC's initial representations indicated that we had failed to make provision for appeals. The answer to that is that there is no need to make provision for appeals in these regulations because the Food Safety Act 1990, under which these regulations are made, automatically engages an appeal process. However, the appeal for any challenge to the regulations will be to a sheriff court, not a specialist tribunal.

This procedure is very much in line with all other subordinate legislation. As the appeals procedure is contained in the primary legislation, any subordinate legislation pertaining to the act does not have to refer to a specific process.

My point has been very largely covered by Margaret Jamieson. However, schedule 1A states that

"‘butcher's shop' means the premises of a food business".

Will such a wide definition cause any problems? Surely the phrase "food business" could relate to the very concerns that have been raised.

Mr Hamilton again refers to the schedule. We have defined butcher's shop to mean premises of a food business because that is the typical expression used to describe places that sell food. It could be said that that stretches the scope away from the narrow, wee bit of a big store that could be regarded as the butcher's shop to the whole premises but, as Lydia Wilkie said, the detailed conditions imposed by paragraph 5—in what I would imagine are expensive and staff-focused ways—focus on the handling of raw or other meat.

Paragraph 5(1)(b), for example, refers simply to the fact that people who handle raw meat require training. Paragraph 5(2)(a) says that raw meat should be kept separate from other things. We are talking about the quality of the conditions, which focus on the handling of raw meat, those who handle it and their level of skill. A certain amount of record keeping is associated with that.

I am not clear what the specific arguments against the conditions or their application are. It occurs to me that some of the provisions may have been expressed in a way that makes it look as though they apply to a whole store, but unless raw meat is being kept everywhere in the store, the conditions will not bite.

I want to come back to the point about guidance. You said that the guidance has no legal status. Does that answer Margaret Jamieson's point? What exactly is the status?

The guidance has a status in that the enforcement authorities have to consider it when taking action, but it is the statute itself that has the basic legal status. Any authoritative guidance issued by the Government will naturally be considered closely and taken into account when court cases arise.

The guidance could not be relied upon on in court though, could it? If there were a court case involving a dispute about the definition, what status would the guidance have?

It would be one argument. As Mr Hamilton probably knows, guidance is usually fairly elaborate on points such as this, so if there is more than one argument it will pose them all, but it will attempt to explain what the purpose of the legislation is. That is all that can be done. We cannot tell the sheriff that he must accept the guidance and deliver convictions or penalties based on it.

On a separate point, courts can sometimes rely on guidance from Parliament as being binding in some way. What is the position with guidance from a devolved administration, on the grounds of the different issue of sovereignty?

Many things might conceivably be considered in the new devolved era. The courts may concern themselves greatly with proceedings such as these, for example—there is some history in England of courts choosing to do just that sort of thing. It is difficult to say how far they will run.

I do not think that the courts will necessarily say in every case that they accept Government guidance—which is a Government's expression of what it intends to be the case—as full and final if someone can demonstrate a cogent argument that shows why it would be ridiculous for that view to be taken. I do not think that the new regime in Scotland will necessarily affect the evidential values—as lawyers call them—of such things, but the courts usually treat guidance as persuasive. When courts have dealt with other forms of food regulation, they have been very interested to see what guidance there has been.

As I read it—although I have perhaps not had the time to give it the attention it deserves—schedule 1A seems to define a lot of things in terms of the premises, but one subparagraph talks about persons handling meat without defining meat. Does it mean both wrapped and unwrapped meat?

From the point of view of safety, the issue is to separate these two things. Somebody who handles only wrapped meat—meat that is wrapped in such a way as to prevent the passage of micro-organisms and so on—would not be covered by these regulations, as they do not handle raw meat that might contaminate wrapped meat.

They would not be covered if there was an area of separation between staff.

Would it not have been better to include, as a definition of a person who handles meat, someone who handles unwrapped meat?

We have included a definition, but one sometimes has to use a magnifying glass to follow these regulations. Persons who are handling meat are the ones whom that provision covers, regarding training to a certain level. Meat is defined in the first paragraph of the schedule as fresh meat, by which raw meat is intended. However, I regret to say that a bunch of other regulations must be read to determine the precise definition.

The provision is intended to cover both raw meat—the bleeding meat on the palm of the store assistant—and vacuum-packed or wrapped raw meat. It does not cover cooked meat.

I am not sure that that clarifies the definition. As long as you are saying that in stores in which both raw and cooked meat is sold, staff who do not handle raw meat—which could pass on contamination—will not be subject either to the enforcement orders or to these regulations, that is okay. That is now on the record. If not, the matter needs to be clarified.

I have a legal point to make to Steve Lyndsay. You say that there should be equivalence, in terms of training, "to at least the standard of", which, in law, would be interpreted as meaning equivalence. Therefore, that paragraph does not need to be amended to say "at least the equivalent of standards".

Yes.

My last point follows an earlier answer from Lydia Wilkie. Will the term "the proprietor" include the Scottish concept of partnership?

It will include a Scottish partnership.

Thank you. That concludes my three questions.

I would like to follow on from the points that Richard Simpson and Duncan Hamilton raised. You said at the beginning that you followed the model of the liquor licensing laws in the definition of premises and their licensing. However, there is a difference. There are many different types of meat, such as raw meat, raw meat products, meat products and pre-cooked meat. In liquor laws and the licensing of the selling of such alcohol, there are no ambiguities or different levels of product that might confuse the handlers of those products or the premises on which they are handled.

Meat is defined as "fresh meat" in schedule 1A, but regulation 5(1)(b) talks about persons handling and preparing raw meat or meat products. Do we therefore understand that the meat in the meat products is raw meat? Or should we talk about persons handling raw meat or raw meat products? Or just meat products, which could be pre-packed, pre-made or frozen? The lack of clarity in such definitions is the kind of problem that will create confusion on mixed premises.

Lydia Wilkie talked about buckets and spades. Somebody who handles buckets and spades would obviously be in a different area of the store and would therefore not require to be covered by the regulations. Who defines those areas? Are they defined by proximity—the bucket and spade counter might happen to be next to the raw meat counter—or by product? In a small mixed store, those sorts of things could create all sorts of problems.

I return to the point that "butcher's shop" means the premises. If you had inserted "the premises of part of a food business", you could have helped to narrow the definition; a butcher's shop would be the whole of the food premises. That helps to narrow it down for a large store, but there is such a lack of clarity and so much confusion of definition, I would be minded to reject these regulations. Other members would have to come to their decisions.

Finally, why did you differ from your English colleagues? On what particular point?

I will return to that point as well.

Our regulations are based on trying to improve hygiene in relation to the risk of cross-contamination. That means recognising that a risk of cross-contamination exists in many types of shop. As has been said, they range from the big supermarkets, through single butchers, to small mixed premises. We agreed with that and instructed our lawyers to define things that way. That is more flexible and allows us to get our conditions to take the risk into account. We can ensure that where there is no risk of cross-contamination between ready-to-eat food and raw meat, the conditions need not apply. Where there is a risk—there may be a risk in a small shop if there is just one handler—it would, in safety terms, be logical for such handlers to be trained to ensure that they are aware of cross-contamination.

It is the risk assessment that will bring people into conflict and confusion and which will give rise to a lack of consistency across the country. Who does the risk assessment? The local authority?

Yes. They—

And the authority will have different interpretations of what the risk is?

Yes.

And the authority will service many different shops with many different needs.

The risk is so much of a grey area that, in my view, these regulations are not defined clearly enough.

It is the job of the environmental health officers who go round food premises to assess risk. They have had training on hazard analysis and critical control points—or HACCP. They have been advising us at the Scottish food co-ordinating committee level on how the proposals should be developed. They have been strongly involved—as were all councils—as we developed the regulations. They are largely in support of the regulations and of the way in which they have been developed.

You asked me about the difference between the situation here and how things have proceeded down south. It is not for me to second-guess what my colleagues in England have done. We look to the circumstances in Scotland and consider the heightened concerns here, particularly among butchers. That is why butchers have been very supportive over the years as we have developed these proposals and are largely supportive of this approach.

Local authorities will have to do a new type of risk assessment to come into line with the guidelines. Before local authorities issue their licence, they will have to examine whether the areas and definitions are appropriate.

Are you aware of how many council environmental health departments are underfunded or in a satisfactory position? Do you know what the cost implications are? In the north-east region, butchers are spread out for miles—hundreds of miles. The cost implication of local authorities having to reassess is not mentioned in the regulations—I should think that that is more of an implication for the Executive.

Can I ask—

Can I make a point here, convener?

I will ask Margaret Jamieson to come in. We will then have to wind up the questioning to get some clarification on the way forward.

Initially, we sought clarification about meaning and so on. Every question has resulted in a legal interpretation. My understanding was that legislation presented to this Parliament was to be clear and concise and that there was to be no doubt about what was meant by it. I ask you to re-examine the regulations, because we should not be considering legislation that will evolve through every court action. Public safety is paramount, but should not be left to lawyers and courts to determine.

We need guidance from the clerks about how we deal with the matter. I am not sure whether the committee can ask for the regulations to be reconsidered or whether we must record the amendments that we think necessary.

Okay. Before we do that, I have one straightforward question. Why is the consortium's proposed amendment to schedule 1A unacceptable? Having heard the discussion this morning, I can see no reason why it should be unacceptable.

We took a different approach from that taken in the English regulations. The amendment replicates the English regulations, which have an almost formulaic approach. We had detailed discussions with environmental health professionals from across Scotland and they were content with our approach.

Thank you. I will now ask the clerk to tell us where we have got to in the process. As members will know, in the past we have made decisions on regulations on the basis that no member of Parliament has lodged an objection. This may be different; we require clarification on what actions are open to the committee and the timetable that such actions should follow.

The committee would be considering a motion for annulment under rule 10.4 of standing orders. Any member of the Parliament can lodge a motion that the lead committee recommends that nothing further be done under the instrument. That would lead to a debate on the instrument, which would take place at the next meeting of the committee. At that time, the committee can decide whether to recommend to the Parliament that nothing further be done under the instrument. If that were to happen, there would be a parliamentary debate on the instrument. The committee does not have powers to amend the instrument, although it can annul it.

Is the first step that a member lodges a motion to annul the instrument, which would take us into a debate with the minister?

Yes.

If I am not mistaken, if the minister does not concede any amendments in the debate, we have the choice to agree to or reject the instrument, but we cannot amend it. I hope that the minister will be open to the committee's view during a debate.

Can I clarify whether a member must lodge the motion, rather than the committee? That seems anomalous, given that we are discussing the instrument as a committee.

I can lodge the motion as the convener of the committee. Would that be a problem?

We will support the motion.

The committee will support such a motion.

I would be happy to support that because not only are the proposals vague and ambiguous, so were the answers we heard this morning. The answers that we were given are open to a multitude of interpretations. We need proper clarification.

Does the committee agree that I should lodge a motion asking for an annulment of the instrument? That will be debated and we will have the opportunity to question the minister at our next meeting. Is that agreed?

Members indicated agreement.

Convener, could you write to the minister on our behalf to let the Executive know our fears? That would allow the Executive to bring an amendment to the debate if it so wished.

The minister will be able to read the Official Report of the committee.

The problem is that we often receive the Official Report of the previous week on the day of our next meeting. In the circumstances, we could maybe ask to make sure that the Official Report is available to the Executive and to the minister before that.

I would like to thank the witnesses from the Food Standards Agency. I would also like to thank the representatives of the Scottish Retail Consortium for their time.

Does the committee agree to consider the draft report on the budget on 23 May in private?

Members indicated agreement.

Meeting continued in private until 13:08.