HC Deb 07 April 1970 vol 799 cc443-9
Mr. E. Rowlands

I beg to move Amendment No. 36, in page 61, line 38, after 'manner', insert 'then, subject to subsection (2) of this section'.

Mr. Deputy Speaker (Mr. Harry Gourlay)

I understand that it might suit the convenience of the House to discuss with this Amendment the following Amendments: Nos. 37, 38, 39, 40.

Mr. Rowlands

These Amendments have been put down chiefly to deal with a point raised in Committee by the hon. Member for Edinburgh, West (Mr. Stodart), to whom I am indebted for bringing this matter to our attention.

His point was that under the provisions of Clause 78 proceedings may be taken against a person responsible for the commission of an offence, for example a manufacturer of goods sold-on by a merchant. As hon. Members are no doubt aware, Clause 74(1) provides that when a sample has been taken one part must be given to the seller who may, for example, arrange to have it checked by his own analyst. Clause 74(2) provides that in cases where the seller is not the manufacturer the latter shall be notified that sampling has taken place, and we had thought it reasonable to assume that in the event of proceedings being taken against a manufacturer he would be able to arrange to obtain from the seller either the reference portion of the sample or the results of its analysis.

However, on further reflections and having heard the hon. Gentleman's points in Committee, we have decided that it is preferable to make specific provision to ensure that manufacturers are placed on an equal footing with merchants. In reaching this decision we have taken two particular points into account. Firstly, we recognised that circumstances could arise in which manufacturers were unable to obtain the reference portion of the sample from the seller—perhaps simply because it had been mislaid or destroyed; it would clearly be unreasonable for manufacturers to be placed at a disadvantage in this way through no fault of their own. Secondly, cases may occur where dispute arises between manufacturer and seller as to which of them was in fact responsible for the offence; in these circumstances one party might well he reluctant to make his portion of the sample available to the other.

I am sure that hon. Members will recognise the force of these considerations and welcome the new arrangement. We have also taken the opportunity to deal with another point raised in Committee when the hon. Member for Westmorland (Mr. Jopling) pointed out that the requirement under subsection (2) to notify manufacturers, which, as I mentioned a few moments ago, will now be superseded, applied only when their name and address were known to the inspector. He suggested that it would not be unreasonable to require inspectors to endeavour to discover their identity and whereabouts. We have taken this point and have accordingly provided that the obligation to send the part of the sample to the manufacturer lapses only if his name and address cannot be discovered after making reasonable inquiries. This will, I think, not be unduly burdensome for enforcement officers, especially as we now propose to allow 14 days in which to do this.

We have also taken the opportunity to effect two other minor changes. The first is to require that the parts with which the sample is divided must be of approximately equal size. The second is to provide power to prescribe by regulations how samples shall be marked, sealed and fastened by the inspector; this will enable appropriate methods to be laid down as under Schedule 6 of the Fertilisers and Feeding Stuffs Regulations 1968.

I am sure that hon. Members opposite will welcome these Amendments.

Sir J. Foster

What happens if the manufacturer's name and address is not known until after 14 days? The manufacturer may be in the same quandary about getting a sample from the seller. Is a prosecution to take place within 14 days? The provision should be for a fourth part to be set apart for the manufacturer if he wants it later to defend himself.

1.45 a.m.

Mr. Stodart

I thank the Under-Secretary for his kindness. What my hon. and learned Friend the Member for Northwich (Sir J. Foster) has said is another point which perhaps needs further examination. We felt there was a flaw in the Clause originally, and that the manufacturer was entirely left out. I am grateful to the hon. Gentleman for going a certain length at any rate, but perhaps he would like to comment on what my hon. and learned Friend the Member for Northwich has said. This is not the final stage, and if there is substance in what he says, something could be done later.

Mr. Jopling

I am grateful that the Government have made these moves. I am sure in the right direction, but reading the Amendments and the Clause, one thing bothers me slightly: that subsection (2) of this Clause says: If the person who manufactured any material of which an inspector has taken a sample in the prescribed manner.… It may well be that there could be two manufacturers of a product. I should like the attention of the Minister because this is a somewhat complicated point. I am not sure whether I am on firm ground, but it may be that with some feeding stuffs two manufacturers are involved. I have reason to believe that some manufacturers of feeding stuffs will buy part of the components of the feeding stuffs already manufactured. For instance, many, I can imagine, would buy from another source, already prepared, the mineral and vitamin elements of their feeding stuff.

If the inspector takes a sample under this Clause in the prescribed manner and fails to send a sample perhaps to the manufacturer who manufactures one component before final manufacture, the prosecution could well fail. I would think this is a possible loophole. Part of subsection (2) says: If the person who manufactured any material of which an inspector has taken a sample.… The inspector takes a sample and any material means the whole finished product, but it could mean the vitamin, mineral or antibiotic element which is part of that feeding stuff. If the Under-Secretary does not know, I would be grateful, if he thinks there is a loophole, that he should deal with it in another place.

Mr. E. Rowlands

If the reference sample is to be available in time to be of use, particularly in determining whether to invoke the Government Chemist check analysis procedure under Clause 75, can the part be held back until the identity of a defendant in a by-passing case is known? There are a number of other people who could be involved and who do no more than pass on the goods and are unlikely to be responsible for the commission of offences. On the whole those at risk will be the final manufacturer or the seller. We have covered the points the hon. and learned Gentleman the Member for Northwich (Sir J. Foster) has raised, in general.

Sir J. Foster

Is there provision for that in the Bill?

Mr. Rowlands

Yes—in Clause 75.

Amendment agreed to.

Further Amendments made: No. 37, in page 61, line 38, at end insert: 'of as near as may be equal size'.

No. 38, in line 39, at end insert: 'in the prescribed manner'.

No. 39, in page 62, line 15, leave out from 'section' to end of line 19 and insert: 'that subsection shall have effect as if for the reference to three parts there were substituted a reference to four parts, and the inspector shall send the fourth part to the manufacturer unless he does not know the manufacturer's name and address and is unable after making reasonable inquiries to ascertain them before the expiration of fourteen days from the date when the sample was taken'.

No. 40, in line 42, leave out 'notice' and insert 'part of the sample'.—[Mr. E. Rowlands.]

Mr. Jopling

I beg to move Amendment No. 41, in page 63, line 9, at end insert: (6) No agricultural analyst shall analyse more than one portion of a sample. This is the most important remaining matter which we have not succeeded in getting closed in this part of the Bill. We tabled a good number of Amendments, almost all of which have been met by the Government, most of them in full. If this one had been met, we would have achieved a grand slam. I hope that the Government will either accept the Amendment or explain in detail why they are not able to accept it, in view of the undertaking they gave that they would consider the matter again.

When the sample has been split into four parts, they go off to be analysed. Under the existing arrangements, it would be possible for one agricultural analyst to analyse more than one portion of a sample. We submit that this is wrong. In saying that we think it is wrong, we cast absolutely no reflection on the integrity or professional status of agricultural analysts, for whom we all have the greatest admiration. We think that it is wrong to put the onus of conflicting evidence and conflicting paymasters on these people. I have not been in contact with any agricultural analyst, but I should be surprised if agricultural analysts would not prefer to avoid a situation in which they could be analysing more than one portion of a sample.

Mr. Hoy

We discussed a similar Amendment in Committee. I am sorry that hon. Members opposite have felt it necessary to table this Amendment, be- cause I should have thought that the explanation given in Committee would have set their minds at rest. It is appreciated that the intention is that, by preventing any possibility of one analyst providing evidence for both sides in the same case, justice can clearly be seen to be done. Whilst sympathising with this purpose, I can assure the House that the Amendment is both unnecessary and undesirable.

It is unnecessary because we know from discussions with the analyists' associations—I am glad that the hon. Member for Westmorland (Mr. Jopling) paid tribute to the integrity of these analysts—that they are opposed to their members analyising more than one part of the same sample, not only because of the possibility of bias, but also because they prefer on ethical grounds that the enforcement and the seller's parts should be checked by different analysts. Should two parts of the same sample be received, one from an inspector and one from the seller, the practice is to ask the seller's consent to the transfer of his part to a different analyst. Thus there is no need to give legislative force to what is already the general practice, although I should have no objection to making doubly sure by asking the Associations concerned to circularise their members asking them to adhere to the general practice.

It would also be positively undesirable to accept the Amendment, because it could be used to frustrate enforcement of Part IV. The identity of agricultural analysts for the various local authorities is readily ascertainable, and it would be quite possible for a person whose material had been sampled, and who suspected that unfavourable results would emerge, to send the reference part of the sample to the agricultural analyst concerned without disclosing that it formed part of an enforcement sample. Once it had been analysed by the agricultural analyst the requirements of the Clause, as amended, would have been contravened and the results from the part sent by the inspector could not be used as the basis of proceedings.

I am not suggesting that there would be any general attempt to frustrate the Bill in this way, but it seems unwise to lay ourselves open to this possibility. I think that the hon. Gentleman will concur, and I do not think that anyone can take any objection to this. That is why, after giving the matter a great deal of consideration since the Committee stage, as I promised, much as we would like to accept the Amendment, as we accepted others, we have found that it would not prove to be workable.

Mr. Jopling

If that is the case, probably we should not press the matter. I am glad that the analysts themselves regard it as unethical and wrong for this sort of thing to happen. At the same time, it is wrong for us in this House necessarily to be bound by the rules of one association.

If the Amendment might be restrictive and might stop prosecutions being carried out where they are necessary, it is only proper that I should beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

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