Environmental Health and Consumer Protection

© James Morrison 2007

Background

One of the earliest areas of responsibility assumed by local authorities was public health. From the mid-19^th century onwards, long before councils existed in anything like the structured forms they do today, there was an emerging recognition that maintaining basic standards of hygiene and sanitation was essential to the collective well-being of society.

            The modern system under which shire borough/district councils and, ultimately, unitary authorities have assumed responsibility for what has come to be known as environmental health has its origins in the following statutory changes:

• The Public Health Acts 1872 and 1875 – local boards of health and sanitary authorities first set up
• The Public Health Act 1936 – responsibilities transferred to newly created local authorities
• 1948 and 1974 – the establishment and subsequent reorganisation of the NHS saw most health responsibilities taken away from local authorities, save those covering environmental health
• Environmental Protection Act 1990 – consolidated earlier Acts outlining councils’ responsibilities, and led to the creation of many environmental services departments

The day-to-day work of environmental health/environmental services departments are undertaken by field operatives known as environmental health officers. Their principal duties are as follows:

• Waste collection – The collection of household waste is organised by collection authorities – i.e. all types of council except counties in two-tier areas. It normally involves weekly door-to-door collection – funded by the council tax – and, increasingly, pilot initiatives have been introduced to distinguish between recyclable waste and that which is dumped at landfill sites. Industrial or commercial waste may also be collected (subject to extra fees)
• Waste disposal – disposal authorities (usually county councils in two-tier areas) have, since the 1990 Act, been forced to form arm’s length local authority waste disposal companies (LAWDCs) to carry out their disposal function, hiring waste disposal contractors (whether the LAWDC itself or a separate private company) to provide waste transfer sites where householders can take large items of waste (e.g. electrical goods); dispose of items collected from local people’s homes; and to recycle waste or sell it for scrap. Contractors running waste disposal sites must obtain waste management licences from the local waste regulation authority
• Waste regulation – the Environment Agency or the Scottish Environmental Protection Agency, depending on country
• Pollution control – in response to growing pressure on the UK to conform to EU environmental protection policies, the EPA 1990 placed a greater emphasis than ever before on the need for local authorities to avoid pollution where at all possible. The term previously used to specify how a duty involving potentially environmentally damaging emissions should be carried out – “best practical means” – was substituted by two new phrases, “best available techniques not entailing excess cost” (BATNEEC) and “best practicable environmental option” (BPEO). It is intended that this Act will soon be replaced by an even more rigorous system, under the Pollution Prevention and Control Act 1999. There are two lists of industrial processes that release substances into the environment: list A (covers centrally regulated ones such as oil refineries, steel works and large chemical plants) and list B (small power plants, glass works, municipal and hospital incinerators). Control is exercised in the following way:

(a)   Applications for a process to be carried out must be made to the relevant authority (if refused, appeals can be lodged to the Secretary of State)

(b)   If an enforcing authority believes an operator has breached an authorisation, it can serve an enforcement notice specifying the nature of the breach; the steps that need to be taken to rectify it; and a deadline for that work to be completed

(c)   If the authority feels external factors are creating an imminent risk of serious pollution, even where the process itself is being carried out satisfactorily, it can serve a prohibition notice

• Contaminated land – district/borough councils must, under the 1990 Act, identify and register any contaminated land in their areas – if a serious problem is noted, the authority must designate a special site and notify the EA/SEPA (who will then take over responsibility for enforcing any action to be taken). The enforcing authority serves a remediation notice on the person or business responsible, specifying the action needed to remedy the problem
• Statutory nuisances – The 1990 Act empowers local authorities to serve abatement notices on those responsible for statutory nuisances deemed prejudicial to health, such as certain premises; smoke, gas or fumes emitted from those premises; dust, steam smell or effluvia; accumulations of rubbish; animals; and noise from a premises, vehicle, machinery or equipment in a street (in the latter circumstances, authorities can seize offending equipment). Since the passage of the Noise Act 1996, councils have also been able to send an officer to investigate a source of excessive noise at night and, if measured noise pollution exceeds a statutory limits, immediately serve a warning notice on whoever is responsible. Failure to comply is a criminal offence, and officers may subsequently enter a property without a warrant to seize equipment
• Air quality – the following types of emissions are prohibited under the Clean Air Act 1993 (which built on the provisions of the Clean Air Act 1956, introduced to eliminate winter smog):

(a)   “Dark smoke” issuing from chimneys

(b)   Excessive smoke, grit, dust and fumes from chimneys

(c)   Excessively high chimneys

(d)   Excessive exhaust emissions

(e)   Smoke emissions in designated smoke control areas

In addition, The Environment Act 1995 put the onus on councils to review present and likely future air quality in their areas. Where air was not meeting the right standard, councils were given powers to designate air quality management areas covered by air quality action plans

• Food safety – since The Food Standards Act 1999, in the aftermath of the controversy surrounding the Ministry of Agriculture, Fisheries and Food’s mishandling of the BSE crisis, the task of monitoring food safety has fallen to a new Food Standards Agency. In local areas, however, food safety is the responsibility of shire borough/district councils. Its focus is on ensuring that hygiene is observed in all the following activities surrounding food: its sale, importation, preparation, transportation, storing, packing, wrapping, displaying, serving and delivery. In keeping with EU legislation, rendering food “injurious to health” and selling food “unfit for human consumption” were both made criminal offences. Authorities’ environmental health inspectors enforce the statutory requirements in the following way:

(a)   They inspect and seize suspicious food

(b)   Issue improvement notices to owners of food businesses

(c)   Serve emergency prohibition notices to close down businesses if they perceive there to be a risk to health

(d)   Liaise with the NHS whenever they feel it necessary to take action in relation to potentially communicable disease risks

(e)   Issue additional enforcement notices dictated by central government in instances of sudden crisis (e.g. the ban on the sale of beef on the bone as a consequence of the BSE crisis)

Food safety authorities also oversee the regulation of slaughterhouses in accordance with EU rules, and inspect the quality of the meat bought from them. They also have the power to provide their own public slaughterhouses, cold stores and refrigerators.

• Animal health – authorities also have powers to safeguard the health of livestock for their own benefit and that of the public. Where a landowner suspects an outbreak of a specified disease among his animals, he or she must inform the police, and the local authority and the Department of the Environment, Food and Rural Affairs (DEFRA). This was the procedure followed during the recent foot and mouth epidemic. Once an outbreak has been confirmed, the movement of animals from the land or within and beyond the local area is prohibited, except by a licence granted by a local authority inspector. Contraventions are criminal offences
• Litter – local authorities themselves, statutory undertakers (i.e. companies contracted by councils to fulfil their obligations on their behalf) and other owners of public land are legally bound to keep their land free of litter. If an enforcing authority (again, all those save county councils) designates a specific litter control area it becomes an offence for anyone to throw down, drop or otherwise dispose of litter on land owned by a public body in that area
• General health risks – if measures for preserving public health fail and diseases like dysentery, smallpox or typhoid break out, the authority must inform the NHS and the local Community Physician or Director of Public Health (formerly Medical Officer of Health)
• Other activities – these range from maintaining cemeteries and crematoria in good order through providing clean public lavatories to controlling dangerous dogs, vermin and insect infestations

Local Authorities and the Consumer

Council trading standards departments and central government have a variety of roles in respect of overseeing trading and consumer rights. Their duties are carried out by field operatives called trading standards officers, who role is to police the following:

• Sunday Trading – Since the passage of the Deregulation and Contracting Out Act 1994, the bulk of decisions on shop opening hours, goods permitted for sale and employment practices in retail have been left to individual traders to decide for themselves. However, Sunday trading has long remained a bone for contention. A Bill introduced by the Tories which would have removed all restrictions on it collapsed on its Second Reading in the Nineties, but change was finally introduced by the Sunday Trading Act 1994, which stipulated:

(a)   “Large shops” – i.e. ones with internal sales areas of 280 square metres or more, can open for up to six hours between 10am and 6pm, but must remain closed on Easter Sunday and Christmas Day (if the latter falls on a Sunday)

(b)   Small shops could open as and when they chose to

(c)   Some measures introduced to protect the rights of shop workers who did not wish to have to work on a Sunday

• Consumer protection - trading standards departments set up to monitor the accurate description of goods; fair trading practices; the use of credit; and the safety of goods sold. Some authorities have even established consumer advice departments to work in conjunction with Citizens Advice Bureaux and the Consumers Association. Trading standards officers are employed by county councils and, in areas where there are unitary authorities and/or metropolitan councils, joint arrangements are normally introduced. They are responsible for overseeing composition and labelling of food under the food and drugs legislation – but not food hygiene, which is enforced by environmental health officers
• Food in the context of consumer protection (rather than safety) – there are two main criminal offences covering this, which are: (a) selling food that is not of the nature or substance or quality demanded by the purchaser; and (b) falsely describing or presenting food – usually without advertisement or labelling
• Weights and measures – each authority must appoint a Chief Inspector of Weights and Measures to ensure all traders in their area are complying with authorised weights and measures systems. Inspectors regularly check market stalls and shops and, with magistrates’ permission, can demand entry to premises to test weighing equipment – and sale of food or other goods by “short weight” is treated as a criminal offence. Weights of manufactured goods are checked at factories, while those of loose food, fuel and beer are checked at the point of sale. Recent years have also seen systematic steps taken to ensure that retailers in Britain are complying with EU weights and measures legislation – i.e. by labelling goods metrically, rather than by the old imperial system
• Trade descriptions – it is a criminal offence under the Trade Descriptions Acts of 1968 and 1972 for “false descriptions” to be given to goods, or “false indications” given of their sale price
• Licensing – Since the passage of the Licensing Act 2003, and the introduction of so-called “24-hour drinking”, local authorities (in cooperation with the police) have taken over responsibility for approving extended opening hours for pubs and clubs from magistrates’ courts, and for granting new licenses based on existing hours. This falls under the Department for Culture, Media and Sport – not, as in the past, the Home Office
• Fair trading and consumer credit – the Fair Trading Act 1973 introduced a Director General of Fair Trading, who has the authority to ask anyone in the course of business “acting in a way detrimental to the interests of consumers” to give assurances as to their future conduct. If they fail to do so, the DG can take them to a county court or the Restrictive Practices Court, which in turn has the power to accept an assurance or, failing that, make an order. Civil claims under the Sale of Goods Act have to be brought by individuals through the county courts. However, the DG also works closely with local authorities in the following ways:

(a)   Implementing the 1974 Consumer Credit Act, 1976 Resale Prices Act, 1978 Consumer Safety Act and 1979 Sale of Goods Act

(b)   Prosecuting under the Trade Descriptions Acts and Credit Acts when “general policy” or “issues of national character” are at stake

© James Morrison 2007