34.This section and section 11 set out specific powers that will help the Agency to fulfil its general function of obtaining and keeping under review any information relevant to its work. “Observations” describes the gathering of information on food safety and related matters through undertaking surveillance programmes or by other appropriate means for this purpose. The Agency will, if necessary, be able to conduct such work at any point in the food production and supply chain and anywhere else where there might be implications for food safety and related matters. For example, the Agency will be able to undertake observations on farms.
35.The two sections give the Agency specific powers necessary to obtain information, either directly or through an authorised person acting on its behalf. These powers replace previous more limited powers contained in section 25 of the Food Safety Act 1990 and corresponding Northern Ireland legislation, which allow Ministers to make orders concerning the provision of information and the taking of samples of food, substances used in the preparation of food and contact materials. These new provisions expand the previous powers to allow the Agency to carry out its proposed role in monitoring activities at earlier stages of food production and without the need for further secondary legislation; to allow authorised persons to make observations; and to require disclosure of certain relevant records relating to employees.
36.Examples of the types of observations that the Agency might carry out are surveillance programmes to investigate the presence of pathogens that could carry risks for human health levels; or of a particular contaminant, such as lead, in certain types of foodstuffs; or surveys of hygiene practices in a certain type of food business.
37.It should be noted that the powers in these sections relate to the gathering of information of a general and representative nature and not to the investigation of individual complaints or failures for which the enforcement powers in the Food Safety Act 1990 and corresponding Northern Ireland legislation and other powers will continue to be used by enforcement authorities. Since the observations made under this section are not intended for enforcement purposes there is no requirement that these powers be used to gather evidence in accordance with the kind of safeguards contained in the Police and Criminal Evidence Act 1984, and thus any information obtained could not in general be used directly for the purposes of food law enforcement. Where apparent problems were identified in the course of a surveillance exercise, the information gathered would normally be passed to the relevant enforcement authorities who would then take a decision on the need for further investigation.
Commentary on Sections Section 10: Power to carry out observations