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2 the Regulatory Network 2 The Regulatory Network I. INTRODUCTION NVESTIGATION, CONTROL AND enforcement following incidents of food-borne illness are carried out by a network of actors. These actors I have different regulatory competences, and by combining them the network should be better able to manage the risks arising from food-borne illness. As biological risks emerge from a relational entanglement of persons, non-human actors (such as microbes) and environments, 1 they can only be managed through a similar engagement between actors with diverse but complementary competences. This chapter explores the regulatory network responsible for the management of food-borne illnesses, illuminating the regulatory competences of the network and considering the roles that each network participant plays in the response to such illness. The importance of networks in the governance of risk is a central theme of regulatory scholarship. 2 A monocentric model, where a single body is responsible for the management of risks of all types, is not feasible in a sys- tem as ‘ complex and dynamic ’ as that which ensures that consumers receive safe food. 3 Actors have different regulatory capacities, with different abili- ties to make rules, detect non-compliance with those rules and take action in order to change behaviour in the direction of compliance so that regulatory goals are achieved. Such capacities may fl ow from formal legal powers pos- sessed by such a body, or from the factual position of the actor compared to the incident of food-borne illness. Alongside the fragmented, polycentric governance network, centralised regulatory control through guidance and oversight by central regulatory actors is put in place in order to ensure that fast-spreading high-risk food- borne illnesses are managed appropriately. 4 1 Kezia Barker , Sarah L Taylor and Andrew Dobson , ‘ Introduction: Interrogating bio- insecurities ’ in Andrew Dobson , Kezia Barker and Sarah L Taylor (eds), Biosecurity: the socio- politics of invasive species and infectious diseases ( Routledge 2013 ) 8 . 2 Julia Black , ‘ The decentred regulatory state ? ’ in Peter Vass (ed), CRI Regulatory Review 2006/2007 ( Centre for the Study of Regulated Industries, University of Bath 2007 ), 253 . 3 Ibid, 259. 4 Julia Black , ‘ Tensions in the Regulatory State ’ [ 2007 ] Public Law 58 . 18 The Regulatory Network No one actor can have the expertise or information to manage the risk entirely. A polycentric network of actors with differentiated capacities is necessary to ensure that the risks of food-borne illness are managed. There- fore different actors must be enrolled into a regulatory network in order that the network can function to investigate food-borne illness and control its spread. Enrolment may be formal, with a particular role intentionally allo- cated to a particular actor in a particular network by another actor within that network, or may be informal, with ad hoc enrolment taking place in particular circumstance in order that the enrolling actor may achieve its regulatory aims. 5 In the management of risks resulting from food-borne illness, the govern- ance network involves a wide variety of participants, including: the EU; national and devolved governments, in both their legislative and execu- tive capacities; national regulatory bodies, such as the Food Standards Agency and Public Health England; local regulatory bodies, particularly local authorities and the Environmental Health Offi cers (EHOs) that they employ; medical professionals, particularly those who practise in the public health fi eld; law enforcement authorities, and particularly the police; non- governmental organisations, such as the Chartered Institute of Environmen- tal Health, which may have responsibility for setting standards for other actors within the network; advisers, such as lawyers advising other network actors about their powers; food-business operators and their employees; other market actors that provide services to food business operators, such as insurers who provide public liability and product liability insurance; con- sumers; and the courts. Where the incident has multi-national scope, regula- tory bodies in other countries will be enrolled in a multinational governance network.6 In the UK the central actors in the governance of food-borne illness risks are local authorities, which have powers governing both food and public health. It is therefore with local authorities that a response to food-borne illness often begins, with other actors enrolled in the network as necessary to address the risk. Whilst the network is often loose, there is a formal mechanism for coordi- nating it in circumstances where the incident rises to the level of an outbreak. An Outbreak Control Team (OCT) is formed to lead in the management of the spread of food-borne illness in such circumstances. Such OCTs involve 5 Eg, where an employee blows the whistle on non-compliance by his or her employer, that employee is enrolled in the regulatory network as an information-providing actor, and he or she also enrols the regulator to achieve the aim of addressing the non-compliance notifi ed (see Ashley Savage and Richard Hyde , ‘ The Response to Whistleblowing by Regulators: A Practical Perspective ’ ( 2014 ) Legal Studies (forthcoming), available at < http://www.dx.doi.org/10.1111/ lest.12066 > ). 6 A similar list of network participants appears, in the context of the governance of fi nancial services, in Julia Black , ‘ Enrolling Actors in Regulatory Systems: Examples from UK Financial Services Regulation [ 2003 ] Public Law 63, 70 . The EU and the UK Government 19 participants from many of the various network actors, and meet and make decisions about the management of the outbreak; decide what information needs to be collected (although the manner of collection is left to EHOs); assess such information; and take decisions on necessary control measures, although measures are formally imposed by the local authority. 7 The OCT is also responsible for analysing the incident following successful control and making recommendations to be implemented by network actors to reduce the future risk of food-borne illness. 8 Outbreak Control Teams play no for- mal role in enforcement, although the discussions and reports of an OCT may form the basis of a decision to take enforcement action. 9 The regula- tory capacity of the OCT is enhanced by the presence of each actor enrolled in the team. Where the incident is international in scope, an international ‘ Crisis Unit ’ will be brought together by the EU Commission, to ensure that the complementary capacities of actors within the multinational regulatory network are harnessed to investigate and control the incident. 10 This chapter examines the central actors enrolled in the network, and considers the roles they play in achieving the network ’ s goals of investiga- tion, control and enforcement. The next chapter takes a closer look at the powers that these actors have to respond to incidents of food-borne illness, considering the regulatory capacity of the actors in respect of investigation, control and enforcement. II. THE EU AND THE UK GOVERNMENT The European Union (EU) and the UK Government primarily function leg- islatively as standard-setting actors within the regulatory network. National and supra-national standard-setting bodies have a responsibility to design regulatory frameworks to manage the risk resulting from food-borne ill- ness. The standards apply to the food itself and to the conditions in which it is produced. They are considered in the next chapter, but have the goal of ensuring that food is free from agents that cause food-borne illness. Given the complexity of food fl ows within the EU (and more broadly throughout 7 The terms of reference of an OCT can be found in Food Standards Agency , Manage- ment of outbreaks of food-borne illness in England and Wales ( Food Standards Agency 2008 ) 15 – 16 . Separate guidance applies in Scotland (Food Standards Agency and Scottish Health Department, Guidance on the Investigation and Control of Outbreaks of Foodborne Disease in Scotland (Food Standards Agency 2006)). 8 Food Standards Agency, Management of outbreaks of food-borne illness in England and Wales , above n 7, 16, terms of reference 9 and 10. 9 As in the South-West Water case, discussed in ch 6 .V.A.ii. 10 Regulation 178/2002, arts 56 – 57. Art 57 gives the Crisis Unit the power to ‘ request the assistance of any public or private person whose expertise it deems necessary to manage the crisis effectively ’ , providing a formal basis for enrolling actors in the network. 20 The Regulatory Network the world), 11 these standards function to manage the risk of all food circulating within the EU. As legislators, these actors also seek to ensure legal preparedness, providing the networks actors, who are limited in their competences, with the capacity to investigate, control and enforce.12 When functioning in an executive fashion, the UK and EU have impor- tant, although rarely used, regulatory capacities that can be used to address incidents of food-borne illness with national or international scope. The powers possessed by the UK and EU have broad geographical reach, and enable the network to control unsafe products across the UK, or across the whole of the EU. Within the UK, the Food Safety Act 1990, section 13 gives the Secretary of State power, through an order in council (known as an Emergency Con- trol Order), to control products of a particular type or description where there is an ‘ imminent risk to health ’ . This power has been used six times since 1990, including for controlling beef at risk of infection with BSE. Most relevantly, the Executive chose to use an Emergency Control Order to con- trol cheese produced by a particular food business, which was found to be contaminated with E. coli O157. 13 The UK Executive also has broad capacity to take action in an emergency under the Civil Contingencies Act 2004. 14 Emergencies include threats to human welfare from ‘ human illness or injury ’ , giving a extensive capacity to set standards and enforce them in emergency situations.
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