Continuity and Change in British Food Law
| Author | Colin Scott |
| Published date | 01 November 1990 |
| DOI | http://doi.org/10.1111/j.1468-2230.1990.tb01841.x |
| Date | 01 November 1990 |
LEGISLATION
Continuity and Change in British
Colin
Scott”
Introduction
Food
Law
At last the Government has served up the
nouvelle cuisine
of
UK
food law. The Food
Safety Act 1990 is leaner and less generous in its proportions than its post war predecessors.
It is rather more easily digestible.
But,
while promising much, it delivers very little and
the gourmet, having digested the changes in the new Act, is left wondering whether she
has had a meal at all.
Modern food law has had as its two principal stated concerns the protection of public
health and the prevention of unfair trade practices harmful to the economic interests of
both consumers and fair traders.
I
The tendency towards complexity in food technology
has shaped the response to these concerns. Such complexity makes it more difficult for
the consumer to identify what it is she is eating and when it is unsafe. The limited expertise
of consumers has therefore been bolstered by protective legislation permitting consumers
to rely to a greater extent
on
the traders to produce safe, nutritious food, which is
informatively labelled.
The framework for modern food law was developed between 1860 and 1955 and, until
recently, has remained substantially unchanged since. The Food Act 1984 consolidated
the Food and Drugs Act 1955 with the amending measures passed in the interim period.
The 1984 Act, however, was regarded as distinctly creaky when it was passed and has
largely been overtaken by provisions
in
regulations made under the Act which have addressed
issues raised by new food technologies, new methods of analysis and control, and compliance
with the extensive obligations of membership of the European Community.
So
while the
ostensible focus of the 1984 Act is on a number of criminal offences connected with food
quality and safety, in fact the heart of the modem law is now contained in the more hidden
subordinate legislation.
The most conspicuous added ingredient to food law in the Food Safety Act 1990 is the
addition of ‘safety’ to the title. Much of the surface appearance of the new Act is directed
towards greater safety. Nevertheless, this change is not reflected in the underlying texture.
Like its predecessor, the Food Act 1984, the 1990 Act is concerned with many aspects
*School of Law, University of Warwick.
I
would like to thank Anne Barron, Andy Cartwright, John McEldowney, Imelda Maher, Roger Manley and
in particular
Joe
McCahery for help in writing this. Small grants were provided by the Legal Research Institute,
University of Warwick and by the University.
1
For a concise account of the development and rationales of
UK
food law see Grose, ‘Food Standards
Legislation as a Policy Instrument’ in Burns, McInerney and Swinbank (eds),
The Food
Indusrry (London:
Heinemann,
1983)
pp
214-229.
Historical accounts can be found in Paulus,
The Search for Pure Food
(Bristol: Barleyman Press,
1974);
Yellowlees, ‘Food Safety: A Century of Progress’ in
Food
Safery and
Quality:
A
Century
of
Progress
(London: Ministry of Agriculture, Fisheries and Food,
1976)
pp
62-81;
and for a social history see Burnett,
Plenry and Want;
A
Social History
of
Foodfrom
I815
to
the Present
Day
(London: Routledge, 3rd ed,
1989).
2
Though a little over half the size, the Food Safety Act
1990
replaces the Food Act
1984
virtually in
its entirety. The residual function of the Food Act
1984
is because the provisions in Part
111
regulating
the conduct
of
markets remain substantially intact. Other minor hangovers from the old Act can be
ascertained from Schedule
V
to
the new Act.
The Modern
Law
Review
53:6
November
1990 0026-7961
785
The Modem
Law Review
[Vol.
53
of food control of which safety is but one. The 1990 Act simply reasserts the old law
with some changes. Why then has it metamorphosised into the Food Safety Act? The most
obvious reason is that it provides an effortless way to convey the impression that the
Government is taking serious measures to address concerns about food safety. Concerns
in the media and elsewhere about the wholesomeness and safety of food ab~und.~ But
there is in fact very little in the new Act that would justify its redesignation as a safety
It is therefore worth highlighting the more important general changes which have
been introduced in furtherance of the Government’s desire to be seen to be addressing
public concerns about food safety.
First, the Government have promised to provide f30m of additional funding for local
enforcement of safety provisions. The notes to the 1990 Act stated that this amount would
be taken into account in the Government standard spending grant for 1991192 and the
Secretary of State has indicated that this will all be new m~ney.~ Nevertheless, the overall
turbulence in local government finance resulting from changes introduced in, and under,
the Local Government Finance Act 1988 make the Government’s financial commitment
seem a little
A
second example of the Government’s response to overt concern with food safety is
provided by the restructuring of responsibilities in the Ministry of Agriculture, Fisheries
and Food (MAFF) with the arrival of Mr Gummer as Secretary of State in June 1989.’
Mr Gummer announced in November of that year the creation within MAFF of a Food
Safety Directorate under the Minister for Food, David Maclean8 Although this reorgani-
sation now means that the promotion of the food industry and the promotion of food safety
are formally separated, this is in fact essentially the old arrangement with safety added
in the name. The Directorate remains a division of MAFF staffed by civil servants.
Consumer groups and the Institute of Environmental Health Officers have both been
dismissive of the inno~ation.~
A further indication of the Government’s desire
to
be seen to be doing something about
food safety is provided by the form and content of the White Paper which preceded the
Act.l0 The form is clearly concerned with the promotion of safe eating and with taking
swift action
to
address concerns as they arise. Nevertheless, the content promises little
that seeks to reverse the apparent tendency towards taking greater risks in food production.
In a
68
page document only five pages are devoted to setting out changes in food control
3
For evidence of the increase in food borne diseases in the
UK
see
Report
of
the Committee on the Micro-
biological Safety
of
Food
Pan
I
(London: HMSO, 1990) (Chairman Sir Mark Richmond, hereafter
Richmond
Committee Report Part
I)
chapter 2.
In
a case study of food additives Grant suggests the relationship
between
underlying public concern, media pressure and the creation of new pressure groups in the emergence
of new issues. As Grant points out, existing interest groups, such as the food industry, may be well placed
to prevent adverse policy shifts, and secondly securing a place for the issue
on
the agenda is only the
first step toward achieving a policy shift. Grant,
Pressure Groups, Politics and Democracy in Britain
(Hemel Hempstead: Philip Allan, 1989) pp 51-54.
4 Edelman suggests that ‘symbolic politics’ can be exposed by noting the inverse correlation of the degree
of publicity for a measure and its effects. Situations of uncertainty and emotion are particularly prone
toward symbolic political remedies. See Edelman,
The Symbolic Uses
of
Politics
(Urbana: University
of Illinois Press, 1964) pp 25-30. See also Barratt and Hill, ‘Policy Bargaining and Structure
in
Implementation Theory’ (1984) 12
Policy and Politics
219-240.
5
HC Deb vol 168, cols 1023-4,
8
March, 1990. Mr Gummer pointed out that although the grant would
be increased the Government had
no
power to direct that the extra money be devoted to food law
enforcement. See also HC Standing Committee B, cols 49-51, 20 March, 1990.
6 See HC Deb vol 168, col 1038,
8
March, 1990 (Dr David Clark MP).
7 See generally Hennessey,
Whitehall
(London: Fontana, 1989) pp 442-445.
8
MAFF News Releases 424189, 423189
2
November, 1989.
9 ‘Gummer Team not Tough Enough,’
The Observer,
5
November, 1989. See also criticism of MAFF
over the failure to act
on
findings that microwave ovens are potentially dangerous: ‘Cooked to Chill,’
The Guardian,
6 December, 1989.
10
Food
Safety: Protecting the Consumer,
Cm 732 (1989).
786
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