§ Lords Amendment: In page 27, line 19, after "26(2)" insect "and (2A)".
§ The Parliamentary Secretary for Science (Mr. Denzil Freeth)
I beg to move, That this House doth agree with the Lords in the said Amendment.
It may be convenient also to consider with this the Amendment in page 31, line 32. The first Amendment is consequential on the second.
The first part of the Amendment to line 42 is designed to meet a point raised by hon. Members opposite in Committee and on Report about the problem of loss of weight by unavoidable drainage or evaporation between sale and delivery of certain foods, for example, wet fish. The Amendment makes it clear that traders have a defence in the case of retail sales of food, apart from pre-packed food, where a deficiency is wholly due to unavoidable evaporation or drainage between sale and delivery, provided—and this is important—that due care and precaution were taken to minimise such evaporation or drainage.
The second part of the Amendment in line 42 is intended to make clearer by redrafting, which hon. Members asked us to try to do, the circumstances in which the defences in subsections (1) and (2) of Clause 26 apply. Subsection (1) refers to an offence due to "some cause beyond his control", and subsection (2) provides a defence for traders who make reasonable allowance, in packing their goods, for factors such as evaporation. The Amendment spells out the matter so that the defence in subsection (1) shall not apply if the cause of the deficiency was one which could have been reasonably foreseen and for which allowance could reasonably have been made in making up or marking the goods.
662 I trust that the House will agree that we have managed to redraft in this Amendment, introduced in another place, a much clearer form of defence for traders without in any way weakening the provisions of the Bill as it left this House.
§ Mr. A. J. Irvine (Liverpool, Edge Hill)
Unfortunately, I think that the Amendment raises a rather tangled and difficult point with which I should like to deal as shortly and clearly as I can and with which, with respect, if left where it is very few of us would feel content.
I should be grateful to have guidance from the Government Front Bench if I am wrong in my interpretation, but I understand that the original effect of the Clause was that in proceedings under subsection (4) it was a defence for a retailer if he could prove that the act which he had performed was due to a mistake or to an accident or to some other cause beyond his control. That was a very wide defence, particularly by virtue of the last expression," some cause beyond his control" and I am glad that in another place it was decided to narrow it down.
This is achieved, as I readily acknowledge, by subsection (2,b) in the Lords Amendment now being considered. The new subsection (2,b) provides, in effect, that the words "some cause beyond his control" are not to include a cause which could reasonably have been foreseen and for which allowance could reasonably have been made in stating the quantity of the goods. So far, so good. Up to that point there is, as a result of this Lords Amendment, an improvement in the provisions of the Bill.
The effect of subsection (2,a), as I read it, is to give back to a certain class of retailer a line of defence which subsection (2,b) has taken away. The class of retailer to receive this advantage is a retailer of food not being food prepacked. Without further explanation of the point I cannot see why it should come about that this class of retailer should be selected for preferential treatment.
The House will observe the wording of the concluding lines in the proposed subsection (2a), that…it shall be a defence for the person charged to prove that the deficiency was due wholly to unavoidable evaporation or drainage 663 since the sale and that due care and precaution was taken to minimise any such evaporation or drainage.If the deficiency was due wholly, as covered by the words that I have just read, by "unavoidable evaporation or drainage", then by definition it would seem that the offence was due to a cause which could "reasonably have been foreseen". If the evaporation is inevitable, it seems to me to follow necessarily that it must have been foreseen. I think that that is fair. It is certainly a very likely combination of circumstances that if the loss of weight by evaporation is inevitable it is something which could have been foreseen.
That circumstance which would not have been a defence by virtue of the proposed subsection (2,b) in any other sale may be, as I understand it—this is the result of the Amendment—a defence in the exceptional case of a retail sale of food not prepacked. It strikes me as an odd provision, and I think that it is one which calls for further explanation. I ask why this preferential treatment is granted to this exceptional case of retail sales of food not prepacked, and I would be grateful if the matter could be further explained.
§ Mr. Denzil Freeth
If, by leave of the House, I may reply to the hon. and learned Gentleman, we are dealing in subsection (2,a) solely with the passage of unprepacked goods between the point of sale and the place to which they are being delivered. This is the extent of the coverage of this subsection.
The hon. and learned Gentleman said that if the evaporation was inevitable it was also foreseeable. But I think that there is a slight difference between evaporation or drainage which is unavoidable and that which is foreseeable. The word "unavoidable" introduces, I think, the possibility of an unknown factor entering into the matter. What we are here trying to do is to make clear, for the sake of the trader and the customer, the defence that the trader may make on account of evaporation which occurs between the point of sale of goods, like wet fish, and the customer's house to which those goods are delivered.
It was suggested to us during the earlier passage of the Bill through this 664 House that the wording of subsections (1) and (2) of Clause 26 were not sufficiently clear, and it was also suggested to us by some people that they were less clear and less reasonable than, for example, subsections (2) and (3) of Section 12 of the Sale of Food (Weights and Measures) Act, 1926. I expect hon. Members have seen that in another place Lord Merrivale quoted two examples in 1960—in one case where a conviction was obtained and in another case where a conviction very rightly was not obtained.
The point here is quite simply that if the loss of weight is due to circumstances which are unavoidable, in the sense of being wholly outside the control of the seller, and is due to events which he could not reasonably foresee, then there is a defence—
§ It being Ten o'clock, the debate stood adjourned.