New Clause.—(COMPLIANCE WITH REGULATIONS TO BE DEFENCE.) (Hansard, 5 May 1961)

Mr. J. Wells
I beg to move, That the Clause be read a Second time.
The Clause is simple and straightforward. Its object is to provide a better defence in cases where there may be some doubt. What concerned some of us on the Standing Committee was the difficulty in which a small shopkeeper in a remote area might find himself. By the Clause we hope to provide a reasonable defence where there has been compliance with the regulations or a belief that they have been complied with.
My hon. Friend the Member for Clapham (Dr. Alan Glyn), who I understand is a lawyer, said on the previous Clause that lawyers were brought up on snails and ginger beer, which is an extraordinary diet. My object in moving the Clause is much simpler than trying to bring about any long-winded education of lawyers. I am trying to assist in bringing the Bill more into line with the ordinary provision of the common law, as I understand it.
Clause 1 (1, a) provides that regulations are to be made in the interest of preventing or reducing the risk of death or personal injury". 1776 The manufacturer or seller of goods will be at a disadvantage. I have in mind particularly the small shopkeeper who may be short of staff and have many other difficulties. I do not want to weary the House by restating the grounds we went over in Committee. It is the smaller traders who must be protected. As I see it, as the Bill now stands, these people will be at a definite disadvantage if they have to comply with two completely different sets of standards for securing the same purpose, namely, the standards laid down in the regulations which the Minister may or may not bring in and the ordinary standards of the common law which are better known to hon. and learned Members than to myself.
12.30 p.m.
It has been said by the Minister and others that they hope that they will not have to bring in any regulations. The idea is that the negotiations referred to in Clause 1 (5) will obviate the need for having to introduce regulations. It seems, then, in view of what my hon. and learned Friend the Joint Under-Secretary of State has said, that the Bill is quite unnecessary. He hopes that his negotiations with the manufacturers and the wholesale and retail organisations will prevent his ever having to bring regulations in. But, of course, if he were to bring in regulations, it would be most unfortunate if they were to conflict with the ordinary common law duty of the vendor of goods.
We have heard about the case which arose out of a snail in a ginger beer bottle. The vendor of the ginger beer 1777 was proceeded against, and the basis of that action was the common law liability of the vendor. It did not arise out of the Food and Drugs Acts or any considerations which come into this Bill. There is already a safeguard for the consumer at common law, and it would be unfortunate if there were two completely separate sets of standards. The new Clause is simple, short and goes straight to the point. I commend it to the House.

§ Mr. Dudley Williams
I support the plea so eloquently made by my hon. Friend the Member for Maidstone (Mr. J. Wells). Without this new Clause, there will be very great confusion in the public mind in years to come about what are the responsibilities of, and the penalties to be imposed upon, the shopkeeper if regulations under the Bill are issued.
The shopkeeper is not really the man we are trying to get at by the Bill. We are all keen to ensure that rubbish which can cause death or injury is not sold to the public. I was surprised to hear my hon. and learned Friend at the Home Office say a little earlier that he was not quite clear whether I wanted to prevent dangerous goods being sold to the public. Of course I do, but what I want to ensure is that Bills which pass through the House of Commons impose penalties on the people who deserve to suffer them and not on people who really are not responsible at all. In my submission, under this Bill we may find actions being instituted against small shopkeepers for offences for which they bear no moral responsibility.
The new Clause defines the position more clearly. Without it, we shall have a conflict which it will be very difficult to resolve in the courts. Under Clause 1 (1, a) Regulations may be made to prevent or reduce the risk of death or injury to any person. That is what we want to achieve, but we ought to ensure also that people who are not really responsible for any damage done to the individual do not suffer as a result of the regulations.
I sometimes feel that the present state of the law is unsatisfactory. I am not at all sure that a shopkeeper should be liable under common law for injury caused by articles he sells, when he is not the man really responsible. He may well buy in good faith, for instance, one 1778 of the electric fires we have heard about which have done damage recently because they were unguarded. But he buys in good faith. He is subject to sales pressure. Sometimes, he has difficulty in finding out where a travelling salesman has come from. Salesmen travel about the country taking articles around and delivering them on the spot.
It would be quite monstrous if the present situation were interfered with and a shopkeeper who bought in good faith were to be subject to proceedings of the kind proposed. In my view, the most that the shopkeeper should be liable to is a claim at common law, which is entirely different from penalties imposed under a Bill like this which makes him subject to criminal prosecution, albeit of a minor nature. The new Clause should be accepted. If it is not, there will be endless trouble.
I dislike intensely the business of passing into law Bills which are not clear in their impact. Moreover, as hon. Members well know, I dislike intensely Bills which give power to Secretaries of State or Ministers of the Crown to issue regulations. We should try to protect people in the distributive trades who are likely to be attacked if this Bill becomes law.
The new Clause is a perfectly reasonable one. I am sorry that the new Clause I introduced a short time ago was not acceptable to the hon. Member for Bilston (Mr. R. Edwards), and I hope that on this occasion he will tell us what are his reasons for disliking the new Clause now before us. If he is prepared to accept it, of course, our discussions can be more brief. He ought to put us clearly in the picture and say why he thinks that a small shopkeeper providing a service to the public—there are 75,000 of them in the country—should have to suffer penalties when in fact he is not the person we are trying to get at by the Bill.
Much as I dislike legislation in general, I think that the Bill has some merit in it. We are trying to get at the manufacturer of shoddy goods, the man who makes rubbishy goods.

§ Mr. Percy Holman (Bethnal Green)
What about the importer?

§ Mr. Dudley Williams
I agree that imports present even greater difficulties. It is even more difficult for the distributor, the shopkeeper, who buys goods in 1779 good faith from a traveller or a distributive organisation to safeguard his position in that case. If there were any question of shoddy imports, then, I think, the right thing to do would be to introduce a Bill giving powers to the Secretary of State to restrict such shoddy imports. That is the way to tackle that. I do not agree that the shopkeeper should have his present legal position made worse.

§ Mr. Holman
How would the hon. Member deal with the responsibility of the importer? Also, a retailer may purchase goods from an unknown traveller, and some of the goods may have been obtained in an illegal or disreputable way.

§ Mr. Dudley Williams
Does the hon. Member wish to stop a retailer purchasing goods from a traveller? There is no reason why he should not do his business in that way, if he buys in good faith. He may well know the traveller. The fact that the goods have been imported is not the responsibility of the shopkeeper. It may be improper conduct on the part of the importer if the importer has brought into the country shoddy goods, and in such a case there might well be an argument for the Government, or even a private Member on such a matter, introducing a Bill to give the Secretary of State powers to restrict undesirable imports. If that sort of Bill were introduced I would give it my support, but it is quite wrong to place the penalties on the shopkeeper. I think this Clause puts the shopkeeper back into the position where he was before. He is subject to common law. I am not at all sure that he should be subject to common law, but at least this Clause puts him back where he was before. Under this Bill the shopkeeper is going to be severely penalised for something for which he probably has no responsibility. It may be a widow running a small country shop—

§ Mr. Holman
The responsibility surely lies with the importer of the goods.

§ Mr. Dudley Williams
Because we cannot get at the importer it is not right that we should penalise anybody else. If the hon. Gentleman 1780 man wants to take his argument to its logical conclusion he should sue the purchaser and say, "Why did you purchase these articles and cause your children such serious injury?" Surely the hon. Gentleman is not in favour of taking that step.

§ Mr. Holman
People should purchase goods only from reputable firms.

§ Mr. Dudley Williams
A person may well purchase goods from somebody he knows—

Mr. J. Wells
I do not think the hon. Member for Bethnal Green (Mr. Holman) can have read the last few words of my Clause. He will see that …is shall be a good defence…that the requirements of such regulations have been complied with. That is quite simple. I am most anxious that we should get on, and I am sure the hon. Gentleman will realise that such a defence is provided only where the regulations have been complied with.

§ Mr. Holman
My intervention arose out of a remark made by the hon. Member for Exeter (Mr. Dudley Williams).

§ Mr. Dudley Williams
I find it difficult to know how to say anything further to the hon. Gentleman which will convince him of our case. I am all for getting at the person who is responsible, but I am not in favour of getting at people who purchase an article in good faith and who are informed that the regulations have been complied with.
I believe this Clause should be accepted. Its acceptance would improve the Bill and would lead to a considerable falling off in criticism by myself and some of my hon. Friends.

§ Dr. Alan Glyn
In supporting my hon. Friend the Member for Exeter (Mr. Dudley Williams), I would say that most of the points have already been covered, but I should like to add that there is a genuine interest on this side of the House in defending the small shopkeeper against the great difficulties with which he will be faced under this Bill. This new Clause to some extent tends to mitigate those difficulties. I do not wish to go into the disadvantages and the hardships which the small shopkeeper will suffer from this Bill if it is unamended. I shall reserve those remarks for the Third Reading.
1781 Mention has been made of imports by the hon. Member for Bethnal Green (Mr. Holman). The proper way to deal with this aspect of the matter would be to introduce import restriction and control, but I cannot see that that raises any objection to this Clause. In fact, if anything, it strengthens the argument in favour of this Clause.
The hon. Member said something about the necessity for dealing with reputable travellers. But all this is highly theoretical, and I am sure the House will appreciate that a retailer who has to deal with a variety of goods has a real difficulty in being aware of all the regulations and the goods to which they apply. I submit that there could be a conflict not only between the common law and this Bill but also between the standards laid down in the regulations and those provided by the British Standards Institution, which already has a large number of rules, regulations and standards for almost every kind of article.
12.45 p.m.
One of my hon. Friends tells me that a large manufacturing company is at pains not only to be aware of the existing regulations but to ensure that those regulations are observed. This is a company with great resources in wealth, laboratories and staff, and if this firm finds it difficult to interpret the British standards I submit that it would be much harder for the small manufacturer and, indeed, almost impossible for the retailer to understand the interpretation of those rules.
I am not one of those who feel that the public should not be protected. They should be protected.

§ Mr. Dudley Williams
Hear, hear.

§ Dr. Alan Glyn
One knows from one's own constituents that often when they buy articles they are completely unaware of the dangers connected with them. In Committee reference was made to things like nylon stockings, nightdresses and a whole variety of goods which could be a potential danger to the consumer. None of us on this side of the House wishes to weaken the law in respect of the measure of protection which is given to the consumer, but I feel that this is a very reasonable Clause and I may say that many of us in Standing Committee, including myself, put down much stronger 1782 Amendments which would have changed the character of the Bill and, in my submission, would have made it much fairer. This is a very moderate and reasonable Clause and I hope the House will accept it.
Mention has been made of travellers and people who buy goods from unauthorised sources. Of course, it is not the intention of this Clause to protect people who sell shoddy goods. The intention of the Clause is to protect retailers and people who sell goods in a bona fide way. The House would do well to include this Clause in the Bill.

§ Mr. R. Edwards
I must resist this Clause. I do not see the need for it. We debated at great length a similar Amendment in Committee. Nobody in the House, and certainly none of the sponsors of the Bill, wants to harass the small shopkeeper, but the purpose of the Bill is to protect the consumer from the hazards which frequently arise from the sale of faulty and dangerous goods.
If the Clause were accepted, the main concentration of the Bill would be directed against the manufacturer and not at the shopkeeper. Only the manufacturer would be expected to conform to safety regulations and to new designs and be receptive to suggestions for protecting the consumer against a whole range of products which can be positively dangerous. However, it is not enough to place all of the responsibility on the manufacturer. It should be no defence for a small shopkeeper to say that he did not know what this was all about.
In any case, there is nothing revolutionary in the proposals in this Bill. The penalties in Clause 3 are quite modest and conform to an Act which is already on the Statute Book.

§ Dr. Alan Glyn
Does the hon. Member consider £100 a very small fine?

§ Mr. Dudley Williams
Or three months imprisonment?

§ Mr. Edwards
The penalty for the first offence is exactly the same as in the Oil Burners (Standards) Act. The Act was warmly applauded by the hon. Member for Exeter (Mr. Dudley Williams). He spoke very eloquently about this very positive contribution to the safety of the consumer. I cannot see the point of his suggesting that what is good about the 1783 Oil Burners (Standards) Act is evil as it relates to this Bill.

Mr. J. Wells
The Oil Burners (Standards) Act, which we all admire and appreciate as a useful piece of legislation, deals with one small, specific, individual type of commodity that had been causing widespread alarm. In the last few days we have read and heard about an unfortunate fire. Every hon. Member, I am sure, welcomes the Oil Burners (Standards) Act; but this Bill concerns a very much wider matter. The goods concerned will be handled by an enormous number of shopkeepers in a much wider way, and I think that they should be given some additional, reasonable protection. My new Clause is very reasonable.

§ Mr. Edwards
Last year there were two million accidents in the homes of this country. Last year there were 7,000 deaths in the homes of this country—over 1,000 more deaths in the homes through fatal accidents than on the roads. There were thousands more fatal accidents in the homes than fatal accidents in industry. We really must have a Bill that has teeth in it to prevent this appalling massacre.

§ Mr. Edwards
Must we continue to have these interruptions? I am ready to accept legitimate interventions.
I know perfectly well that all I say will not convince the three hon. Members opposite who, if I may say so with all due respect, have indicated that it is their intention to kill the Bill—at least the hon. Member for Exeter said that he intended to kill the Bill. He thinks it is a Socialist Bill. I do not see anything Socialist in it, and that is why I am not prepared to accept the constant provocations and interventions, the purpose of which is to try to talk the Bill out. I am asking the House to reject the new Clause. I do not think that it serves any useful purpose.
No one, I repeat, wants to harass the shopkeepers. The only shopkeepers who need to fear the penalty regulations in the Bill are those shopkeepers who are abusing their position, exploiting the consumer and not prepared in harmony with most shopkeepers in this country to give 1784 the consumer satisfaction. It should be the purpose both of the manufacturer and of the shopkeeper to satisfy the consumer. If they are unwilling to submit to the penalties—the very modest penalties, in the light of the problem we are trying to deal with—embodied in Clause 3, I do not feel that they need further protection.
I admit that the new Clause necessitates some legal advice. I am not a lawyer; I am a trade union general secretary. During the proceedings in Committee I was very happy that we had the very active co-operation of the Home Office and of the Secretary of State. I hope that the Joint Under-Secretary of State will intervene to assure the hon. Member for Maidstone (Mr. J. Wells) about the important legal point he made, which I do not feel competent to deal with because I am not a lawyer.

§ Mr. Renton
The new Clause would make it a defence in any action—and I stress "any action"—for the defendant to prove that the requirements of any regulations made in relation to the goods have been complied with. There are three possible kinds of action which might be brought: an action for breach of statutory duty, an action for negligence, or an action for breach of contract.
On the first of these, an action for breach of statutory duty, a defence of this kind would be available anyway and therefore we do not need to legislate for it. On an action for negligence or for breach of contract, a defence of this kind might be irrelevant. That is the short position. Perhaps I may elaborate it a little by way of explanation.
Before I do so, may I say how very sorry I am that my hon. and gallant Friend the Member for Cheltenham (Major Hicks Beach) is not with us today, partly because he so often has illuminating things to say on Fridays and partly because he is not well. I am sure that we all wish him a very quick recovery. If he were here, I am sure that he would agree that Clause 3 (1) is perfectly clear as it stands. It makes it clear that the obligation to comply with the regulations made under the Bill is such that if there is non-compliance it would be a breach of duty which is actionable. There 1785 would be an action for breach of statutory duty. But subsection (3) includes, in brackets, some very important words: …(subject to the defences and other incidents applying to actions for breach of statutory duty). If the action were derived from Clause 3 (1) and there had been no contravention—that is either if the complainant failed to prove that there was a contravention or if the defendant succeeded in proving that there was not a contravention—that would be the end of the matter. Therefore, my hon. Friend's fears are unfounded to that extent.
I quite agree with both of my hon. Friends, the hon. Members for Maidstone (Mr. J. Wells) and Exeter (Mr. Dudley Williams), who said that we should be zealous to protect the interests of the small shopkeeper. I think particularly of the small village shopkeepers in my constituency who perform valuable service to the public. They do not become very rich by it, but they perform a valuable service, and by making complicated and difficult laws we do not want to lead them into an impossible position at any time. They will not be led into an impossible position by the requirements of Clause 3. It is clear that if they were to be sued for a breach of duty in relation to goods covered by regulations made under the Bill, and they proved that they had complied with those regulations, that would be the end of it.
1.0 p.m.
But let us take a different circumstance, which the Bill does not cover—an action for negligence or for breach of contract. Then, as I say, the question of the safety requirements imposed under the Bill might be irrelevant to the question of liability. They could conceivably be relevant; in some cases they might well be. But if there were an action for a breach of contract and one of the parties was relying upon Section 14 of the Sale of Goods Act—which is the Section dealing with implied conditions as to quality or fitness—the buyer could bring an action against the seller for breach of an implied warranty that the goods were reasonably fit for the purpose for which, to the seller's knowledge, they were required. Even if the goods in such a case did comply with the safety requirements under the regulations made under the Bill, the seller would surely be liable, in an appropriate case—if the 1786 buyer were injured owing to the goods being unfit for the purpose for which they were sold, which might have nothing whatever to do with the matter covered by the regulations.
I hesitate to give examples, but let us suppose that an electric razor was sold and that regulations had been made covering the question of the electrical safety of electric razors, so that people did not get electrocuted by them. Let us further suppose that the razor complied with the safety requirements but failed to take the stubble off the chin. Clearly the buyer would have a good case, if he based it on Section 14 of the Sale of Goods Act, because he would be able to say, "This electric razor is not fit for the purpose for which it was required, and I relied upon the seller's skill and knowledge as to whether or not it was fit for that purpose." It would then be quite immaterial merely to say, as a defence, that it complied with the safety regulations.
I hope that that fairly clear illustration will show my hon. Friends that this Clause is misconceived if it is sought to make it a defence to every kind of action which can be brought in respect of the sale of goods.

§ Dr. Alan Glyn
Surely in the case postulated by my hon. and learned Friend everything would depend upon the definition of "stubble".

§ Mr. Renton
It has been said today that lawyers are brought up on snails and ginger beer. I think that if any lawyer were asked that he would say that there was a certain standard of reasonableness which everyone had to observe in his daily affairs. This has sometimes been referred to as the standard of reasonableness of the man on the Clapham omnibus. On this occasion my hon. Friend the Member for Clapham (Dr. Alan Glyn) must use some common sense. I hope that I will not be considered too frivolous if I suggest that if snails and ginger beer are to be consumed by lawyers, like reasonable men they should consume them on the Clapham omnibus.
There is one other important point which I should make. We cannot be certain that regulations which are made in order to protect the public against one hazard which might cause death or injury will necessarily provide against 1787 every conceivale hazard. There may be hazards which are simply not foreseen when the regulations are made. I mention that point largely in order to complete the picture, and to show that it would be going much too far to legislate in the way envisaged in the new Clause. The hon. Member for Bilston (Mr. R. Edwards) is right to say that he, as promoter of the Bill, is not prepared to accept the new Clause, and my advice to the House is that it should not be accepted.

§ Mr. Dudley Williams
Would my hon. and learned Friend say that the Clause would be more acceptable if, in another place, it were amended to exclude any actions brought under the Sale of Goods Act?

§ Mr. Renton
No. With respect to my hon. Friend it would not, because the Sale of Goods Act, although an important part of the law of contract relating to the sale of goods, is not absolutely comprehensive, and also because we must consider the possibility of actions for negligence, and any Clause which purported to provide a defence in an action for negligence of a categorical kind like this might well be misconceived. I offer one crumb of comfort to my hon. Friend: in an action for negligence it is open to the defence to put forward evidence showing that the defendant was not negligent, and such evidence might well be to the effect that the regulations made under the Bill had been complied with, and that might get the defendant some of the way home. I am sure that that will be a comfort to all concerned. But to say that we should go as far as the Clause goes, or anything like it, would be quite wrong.

Mr. J. Wells
In view of the very helpful explanation of my hon. and learned Friend and the very reasonable attitude of the hon. Member for Bilston (Mr. R. Edwards), it is my intention to ask leave to withdraw the Motion, but perhaps I may say something before so doing, by leave of the House. My hon. and learned Friend was kind enough and wise enough to pay tribute to the small shopkeepers. I would remind the House of some of the remarks made in Committee about the service rendered by small shopkeepers. I am sure that the eyes of the retail trade will be on the 1788 extremely sensible and good explanation of my hon. and learned Friend, and in those circumstances I beg to ask leave to withdraw the Motion.