§ Motion made, and Question proposed, That this House do now adjourn.—[Mr. Ashton.]
§ 8.14 p.m.
§ Mr. Paul Hawkins (Norfolk, South-West)
The case I bring to the notice of the House tonight not only concerns my constituent Mr. Marcus and his business in Swaffham in my constituency but goes far wider and illustrates the difficulties with which business men must struggle in these days. It also shows the great influence that civil servants have in great Government Departments. They provide an endless stream of orders, regulations and Bills to Ministers, who have far too little time to consider at leisure whether they are necessary.
I believe also that the civil servants are determined that whatever the level of unemployment is, their numbers will increase. Joe Haine's book, which I am half-way through, makes these points time and time again, and it is a great pity that the Press, instead of settling on certain other points, did not give these points more emphasis.
When I was a Lord Commissioner—a breed of Whip—I came up against the will of the Treasury officials when they wanted blank forms signed which would later be used for authorising anything from judges' expenses to millions of pounds for nationalised industries. The pressures were enormous and, if it had not been for a very strong minded Chief Whip, I might have succumbed.
I believe that all of us in Parliament have been too weak in allowing this flow of orders and regulations to go unchecked and for far too long we have meekly accepted this burden as a part of modern life.
Fortunately, my constituent, a man of remarkable energy, does not suffer foolish regulations gladly. He is a manufacturer and importer of toys. To understand this case it is necessary to appreciate the timetable that he carries out in the normal course of his business. Briefly, he will go to toy fairs in the Far East, in Milan, 319 and in Nuremburg in, say, October. He will receive samples in November. Then—this is a vital point in my argument—in December, or perhaps a little later, he will send off an irrevocable letter of credit. The following June or July he will receive the goods, and then he will pack them and distribute them to retailers. In times of inflation he would put in a much larger order than normal and part of that order would go direct into the warehouse for repeat orders for retailers.
It can be seen that very often the whole purchase may not be sold until up to 24 months after the ordering process started. This is a normal business pattern in this business, but it seems to have been completely ignored by the civil servants and Government Departments when they drafted these regulations which were published in August 1974 and came into effect on 1st October 1974 with two months' notice only. What chance had Mr. Marcus, my constituent, to dispose of the goods, which had been seen a year beforehand and ordered in the previous December, previous to the regulations coming into force?
This is my constituent's major complaint and mine. He tells me that he has about £30,000 worth of goods in store or withdrawn from retailers which he cannot sell because of these regulations which were brought in after he had ordered the goods.
In correspondence with me the Minister of State, whom I am glad to see here this evening to answer the debate, has consistently evaded this point. He has said in correspondence that he relies on the fact that trade associations were in negotiations with his officials from January 1974 until the regulations were produced in August 1974 and therefore the trade associations should have kept their members informed. My constituent denies that this was done in detail, and in any case surely the Minister would not expect him to stop ordering and to run down his business just because there might be new regulations in four to five months' time which might affect his business.
In any case my constituent understands that the main cause of the trouble is the thickness of metal which was finally fixed at the last minute at a minimum of 0.5 320 mms. Up to that time it was understood to be 0.3 mms. Nothing could have altered the fact that goods had been irrecoverably ordered before the regulations took effect. I must keep hammering that point because of the enormous loss that my constituent faces. All the goods that he has in his warehouse are those that he had to take back from retailers and that he cannot sell. The goods were bought when they were legal but they are not now legal because of the regulations.
When the regulations came into effect the Minister adopted a strange double standard by notifying local councils—whose newly created safety inspectors are responsible for implementing the regulations—of the full details but not notifying the companies that were importing the toys. The Minister left it to a hand-out to the Press instead of an advertisement that was paid for, and to the trade associations, to inform the 20 or 30 firms engaged in that type of business. That is a form of discrimination against the firms that are producing and importing this type of toy.
In a letter to me the Minister refers to the impracticability of informing all the firms himself. He says that there are several hundreds, but his figures included all the retailers, who are not held responsible if they possess goods that contravene the regulations. That is correct and fair. They should not be held responsible. If the Minister and his officials or the safety inspectors had taken the trouble to consult my constituent and the managements of other similar firms before the regulations were introduced, more time would have been given to them to dispose of the goods.
Although it does not alter my case one jot or tittle, my constituent did not know that he was transgressing the regulations until late in 1975 when he was prosecuted. As a result Mr. Marcus, who so far as I know has never in 14 years received a complaint about any of his toys and who has a good reputation, was justifiably annoyel. That puts it mildly.
He corresponded with a Mr. Stacey of the Department of Prices and Consumer Protection, which had taken over from the Home Office. He asked why the regulations were necessary. He was told in letters that there had been a constant flow of complaints and, when pressed for details about toys with sharp edges 321 Mr. Stacey in a letter dated 23rd June 1976 told him:As I explained in my letter of 8th June the six accidents recorded as being due to sharp edges on toys were included in statistics which were collected in 1973–74 from six hospital areas.The letter continues—and I hope that the Minister will note this:Projected on a national basis the figure is equivalent to at least 150 accidents a year throughout England and Wales.I always knew that Government statistics were suspect but this method beats the band. It involves six accidents in six hospital board areas, not one of which was investigated in detail to discover whether it was a matter of swallowing a button or of a cut hand or lip caused by handling a toy with a sharp metal edge. That is an extraordinary way in which to pass a regulation to which importers and manufacturers have to conform.
I shall tell the House of an incident that makes a nonsense of the regulations on the thickness of metal and a nonsense of the spate of prosecutions, which my constituent prefers to call persecutions. When he was coming home from work after attending a court hearing in the heat of last summer my constituent stopped to buy a can of Coke. As he walked back to his car, he pulled the ring tab and cut his finger. On the way home he thought the matter over and sent the ring tab to Quality Control Service Ltd. of Wembley and asked it to measure the thickness of the metal tab. I have their report dated 13th July 1976 and addressed to my constituent. It states:Report on Sample of Ring Tab from Coke Tin. Tests required:The thickness of the metal tab was 0.34 mms—well under the minimum thickness for toys. The second finding was that both sides of the metal tab were coated with lacquer.
- 1. Measure thickness of metal tab.
- 2. Determine presence of surface treatment."
Thousands of Coke and other tins are used. My constituent does not want them to be made more expensive by making the metal thicker, but he believes that what is sauce for the goose is sauce for the gander and that such containers 322 are used more frequently than his toys by the children who open and drink from them.
Surely the evidence that I have brought to the House shows the flimsy basis for the introduction of these regulations. They should be withdrawn or revised.
The case is symptomatic of the way in which a host of regulations have been introduced in the last 10 years—and I do not exempt my own Government's regulations. Business men and others cannot possibly understand them. There is little need for them and many are not relevant. They have done much to harm the country and to suppress initiative. Because of the number of inspectors that are needed to enforce such regulations rates and taxes have gone up faster than necessary.
Behind it, in my opinion, is the single-minded determination of the Civil Service to maintain and increase its employment and its influence and power. The civil servants honestly think that they know best. If one couples that with a Socialist Government, who have always stated that they know best, the result is disastrous.
The disaster behind all this lies in the damage done to Mr. Marcus, my constituent, and his business, and the other constituents of mine who are his employees. The fact remains that my constituent, when he was buying in the autumn and winter of 1973, could not possibly know that regulations were to be introduced in October 1974 which would prevent him from selling toys that he had bought. I ask the Minister to deny that or to give me a reason, if he can, why my constituent should have known when he was buying in the autumn and winter of 1973 that regulations would be introduced which would prevent him from selling toys a year later.
Will the Minister not admit, first, that the evidence on which these regulations were introduced was extremely flimsy and, secondly, that no adequate time was given to dispose of the toys that were in the pipeline? Finally, will he not be prepared to mitigate the loss to my constituent by either withdrawing and then revising these regulations or making monetary compensation for the loss that they have caused Mr. Marcus?
§ 8.31 p.m.
§ The Minister of State, Department of Prices and Consumer Protection (Mr. John Fraser)
The hon. Member for Norfolk, South-West (Mr. Hawkins) has more than once referred in his speech to civil servants, and he has attached some blame for the mischief of which he complains this evening to civil servants. I reject that. So long as I am a Minister, I have full responsibility for regulations that are made, on my judgment, and sometimes I differ from the advice of my civil servants and sometimes I agree with it. Sometimes, I spend a good deal of time cogitating about regulations and trying to put myself in the position of a member of the public or a trader. That is the responsibility that I shall always take, and I reject the allegation that these regulations are made to satisfy an empire-building instinct among civil servants.
I come, secondly, to the evidence and the basis upon which these regulations were made. Regulations relating to the safety of toys were first made by the Home Office, under the Consumer Protection Act 1961, in 1967. They prescribed limits for lead and other toxic metals in paint on toys and prohibited the sale of toys made from celluloid on account of the fire risk. Although, from time to time, there was pressure for more comprehensive regulations, the Home Office, which remained responsible for consumer safety matters until October 1974, continued to hope and expect that compliance with the British Standard Code of Safety Requirements for Children's Toys—British Standard 3443—would be achieved through the voluntary co-operation of the toy trade.
The great majority of British manufacturers and most toy importers came to comply with this code. Many did so from way back in 1961. However, it became apparent from continuing complaints about unsafe toys that some were not doing so and eventually, towards the end of 1973—when the hon. Gentleman's party was in Dower—the Home Office decided to make further, more comprehensive regulations giving statutory support to some of the provisions of British Standard 3443, including those relating to sharp points and edges, the flammability of pile fabrics, the detachability of eyes, and facial features and 324 the maximum operating voltage of electrical toys. The decision was taken on the basis of the need to deal with obvious hazards which simply ought not to be presented by toys.
Of course, the Government have a responsibility to manufacturers and importers. I am bound to say that they also have a responsibility to young, vulnerable children who may be injured. There have been some fairly severe accidents to children, particularly in regard to doll's eyes, and I owe that part of the community as much a responsibility—perhaps even more so because they are young and vulnerable—as I owe other people.
There were full consultations with interested bodies. The Toys (Safety) Regulations 1974 were, as the hon. Gentleman said, made on 6th August 1974 and, with some exceptions, they came into force on 1st October 1974. There were very full consultations indeed between the time when the regulations were mooted by the Home Office towards the end of 1973 and the time when they came into effect in October 1974.
I know the point that the hon. Gentleman makes. He says that Mr. Marcus gave an order abroad for these toys, as I understand it, before the idea had even emerged in public from the Home Office in 1973. I can understand Mr. Marcus's anguish and perhaps I ought to congratulate him on his persistence in this matter. I understand his side of the argument, that the order was placed and was irrevocable before the regulations, or even the proposals for them, had seen the light of day.
But I have two answers to that. First, it was known during 1973 that there was pressure for regulations and greater protection. Secondly, there was a British standard widely observed not only by British manufacturers but by importers. Many of them observed that standard as far back as 1961. That was the general practice of the trade. The general standard was accepted, was well known and was understood even in 1973.
I do not know whether it is right for me to give legal advice from the Dispatch Box, but I suppose that, in these circumstances, one way in which Mr. Marcus might have protected himself when he made the contract—and any importer 325 might be wise to do this—would have been by including a clause that provided a right for the importer to rescind the contract if the goods that were the subject of the contract became illegal in this country. There could be other circumstances where there might be quicker action over toy regulations.
§ Mr. Hawkins
I understand that once an irrevocable letter of credit has been given, the goods are paid for and are on their way, one cannot get one's money back even if the goods do not come up to the standard of the sample. This could apply to many things and I do not believe that such a clause appears in any contracts.
As for the Minister's point that this was well known throughout 1973, it was not known until early 1974 that negotiations were taking place.
§ Mr. Fraser
I am not suggesting that the regulations and the details of the regulations were known in 1973. I do suggest that there was a British standard that was widely observed for the protection of the public, particularly of children, and that Mr. Marcus could have taken that set of circumstances into account and might have anticipated that a widely observed safety standard might eventually be incorporated into law.
If one looks at it the other way round, a good many people could have lived in peril of importation or production of a dangerous product for a long time—that is, if one accepts the hon. Gentleman's argument that the regulations ought not to have come into force until all the goods for which orders had been placed had not only passed into warehouses but right through to the general public.
§ Mr. Hawkins
I think that I am correct in saying that these safety standards have existed since 1961, so that we might say that everybody was in peril from 1961 to 1974. It would have been fairer to give two years, or possibly only 18 months, to clear the pipeline of goods that had been ordered. That is the point that the Minister does not appear to have answered.
§ Mr. Fraser
I understand the argument and I know that when regulations are made—for instance, under the Weights and Measures Act—they are preceded by 326 a great deal of consultation. As far as possible, one tries to provide a reasonable time span for goods to pass through from the manufacturing stage to the wholesalers and retailers, but one cannot accommodate regulations to every particular circumstance.
I turn to the detail of the regulation and the effect upon the hon. Gentleman's constituent. Regulation 7 requires that edges of sheet metal up to a maximum thickness of 5 mm, used in toys, shall not be accessible to a child's fingers or, under normal conditions of use become so accessible without the use of tools, or that the edges of sheet metal shall be coated with a protective substance or be folded back. Many metal toys are made from sheet tinplate and these are particularly likely to have edges that are sharp enough to cut a child's finger. For these reasons it has become generally accepted practice in this country over the years and in some other countries—to take suitable precautions so that the edges of sheet metal toys are not accessible or are suitably protected.
It was for this reason that the provisions relating to sharp edges were included in the 1974 regulations. The toys marketed by Kitfix Hobby's Ltd. which have led to prosecutions are made of tin plate. The British Standards relating to sharp edges and points are similar to the provisions which have existed since 1961 in the British Code of Safety Requirements for Children's Toys and Playthings produced by the British Standards Institution technical committee upon which British Toy Manufacturers' Association and the Association of Toy and Fancy Goods Factors and Importers are represented. They are included in the revised edition of the code which was published in 1968.
Regulation 7 is consistent not only with the British Standards Code, but with the draft CEN standard for toys produced by the European Committee for Standardisation on which 15 countries, including the United Kingdom, are represented. Our delegation includes representatives of the British Toy Manufacturers' Association, and briefing of the delegation is undertaken by the BSI technical committee on which their representatives serve. The CEN standard is intended to form the basis of an EEC 327 directive which will be binding on all members.
The United States Manufacturers' Voluntary Product Standard for toys provides that edges of sheet metal that are less than 0.02 inches thick must be rolled back. This is similar to our requirement.
The first draft of the new regulations was circulated by the Home Office in January 1974 to consumer and safety organisations, local authority associations and all interested trade associations, including the British Toy Manufacturers' Association of which Kitfix Hobby's Limited is a member, the Association of Toy and Fancy Goods Factors and Importers and associations representing toy wholesalers and retailers. A number of comments were received about the proposed new regulations and they were all carefully considered by the Home Office before the regulations were made.
Some trade associations asked for operative dates to be deferred to allow for the disposal of existing stocks and later dates were adopted for some of the requirements. It was decided to keep 1st October 1974 as the operative date for the requirement relating to sharp points and edges, although the Home Office took into account all the factors involved, including the fact that the British Standard had been in existence since 1961, that most British toy manufacturers and importers had complied voluntarily with the code since it was published and that it was undesirable to permit over the pre-Christmas period the continued sale of toys with certain hazardous features, including the obvious and substantial hazards of sharp points and edges. Irrespective of whether the regulation was made or not, importers and manufacturers of toys still had a duty of care to the public. It is incorporated in and strengthened by the regulations which have been made.
On publicity, it is accepted that ignorance of the law is not an excuse. If laws were not operative until they had been notified to every person affected, it would be a long time before some health safety and consumer safety requirements were brought into operation.
I think that the hon. Member for Norfolk, South-West used to be an auctioneer. I am a solicitor. We both 328 know that laws are passed which affect our respective professions and neither of us would complain that a law operated against us even though we had not been personally notified. People such as Mr. Marcus belong to trade associations. Consultations take place with those associations and if people read the journals of the associations they are normally informed of the passage of regulations of this nature.
Mr. Marcus complained that he was not aware of the existence of the regulations until the first prosecution arose. He contended that he should have received individual notification about the regulations from the Home Office.
In order to bring new regulations and proposals for regulations to the attention of the trade, it was the practice of the Home Office—now continued by my Department—to rely, first, on the circulation of information to their members by the trade associations concerned during the period of consultations and when the regulations were finally made and, secondly, on the issue of Press notices to the national and trade press and to the media generally when the regulations were published and when they came into operation.
It is known that the British Toy Manufacturers' Association circulated the draft regulations to its members in February 1974, referred again to the proposed regulations in a Newsletter issued to its members in April 1974 and sent members a copy of the published regulations under cover of a Newsletter issued in November 1974.
When the new regulations were made, a Press notice giving details was issued by the Home Office in August 1974 and they received wide coverage in the Press throughout the country. A further Press notice was issued by the DPCP on 1st April 1975, the date when some of the provisions took effect for manufacturers and importers. That gave details of all the regulations, including those which had come into effect on 1st October 1974. Articles on the regulations were published in British Toys, the BMTA journal, in August 1974 and in Toy Trader in March 1975.
It is not possible for any Government Department, when making regulations 329 which affect traders in one way or another, to notify every trader individually about the requirements which they impose, and it is understood that it is common practice to rely, as the Home Office did, on the circulation of information by trade associations to their members and on publicity in the national and trade Press.
§ Mr. Hawkins
I apologise for interrupting again. I believe that the Minister has already told me in correspondence that no advertisements were put in the papers but that there were hand-outs which the newspapers made use of as they thought fit. Did they in fact give the details of the thickness of metal or anything else? Did the trade associations, when they circularised members early in 1974, give full details about the 0.5 mm? Does the Minister know?
§ Mr. Fraser
I do not know offhand. There were consultations about the regulations. They may have been altered during the course of the consultations. I do not know precisely the content of the draft regulations circulated to members, but wide publicity was given to them. It has not been the invariable practice of Government Departments to advertise new legislation. I know that it is done on some occasions. However, in such cases as this the Department relies on the trade association concerned notifying its members, as it did, including Mr. Marcus.
I turn now to complaints and accident statistics. In his letters to the Department, Mr. Marcus has contended that the provision in the regulations relating to sharp edges is unnecessary and unjustified by the small number of accidents which they cause.
In 1974, for example, 34 out of 121 complaints about potentially dangerous toys were about sharp edges and points. That is not a large number in relation to the millions of toys sold each year, but it is right to bear in mind that the majority have in the past complied with the British Standard Code and would not have had potentially dangerous features of this kind.
Statistics collected during 1973–74 as part of a wider study on the collection of home accident information showed that in the six participating hospitals—the hon. Gentleman mentioned this matter— 330 there were 197 accidents involving toys, of which six were recorded as being due to sharp edges. On a national basis—the hon. Gentleman made some fun of this aspect—that is equivalent to 150 accidents throughout England and Wales requiring hospital treatment. There is nothing illegitimate in projecting statistics on a national basis. If one did not accept the projection of certain statistics, one would have to collect statistics for every accident. That would be far too expensive and, I believe, unnecessary. What is more, reported accidents are only the tip of the iceberg since the majority of cuts are treated at home or by family doctors. It is significant that the NEISS data collection system and in-depth investigations in the USA have shown that sharp edges are one of the primary hazards presented by toys.
As in the case of all other regulations so far made under the Consumer Protection Act 1961, the Toys (Safety) Regulations apply to all products coming within their scope regardless of the date of manufacture. This is not unreasonable. If regulations are made to prohibit hazardous features of one kind or another in consumer goods, there can be little justification for excluding any existing stocks of potentially harmful products from their scope simply because they were manufactured or imported before the requirements were imposed.
The situation in regard to stocks already in the pipeline is, of course, considered in deciding on operative dates, but in the case of the Toys (Safety) Regulations, the Home Office took the view that there was no case for allowing a lengthy period of grace for the disposal of stocks of toys with sharp points or edges—stocks which, incidentally, would not have existed if the British Standard Code had been complied with. This applies equally to any toys which may already have been ordered from overseas suppliers before the regulations were made.
The placing of advance orders for toys is understood to be a practice followed by toy importers in general. It is, therefore, relevant to note that, from the time the Toys (Safety) Regulations came into operation, no representations have been received from any other importer of toys about non-complying toys of which they have been obliged to take delivery and 331 which they cannot now sell in this country. If Kitfix Hobby's Ltd. is now in this position, there is nothing that can be done to help it. It is hardly practicable to alter the operative date of regulations two and a half years after they have been in force.
Mr. Marcus considers it unfair and illogical that sharp edges on toys are prohibited while nothing has been done about sharp edges on soft drink cans with ring-pull ends. I remember cutting myself on a Coca Cola can on one occasion. If these cans were, in fact, found to be causing cut mouths and fingers, suitable action would, of course, be taken to deal with them.
Regulations made under the Consumer Protection Act 1961 are not enforced by my Department but by local trading standards authorities. There is no reason to suppose that they act in other than a reasonable manner in enforcing these regulations, and in many cases traders found to be selling non-complying products are warned in the first instance rather than prosecuted—especially in the period following the coming into force of new regulations. It is of interest to note that the first prosecution against Kitfix Hobby's Ltd was not brought until late in 1975, that is, two years after the regulations were first mooted by the Home Office.
Since then, this company has been prosecuted in various parts of the country—possibly in respect of the same range of imported toys. This is the effect of the "passing over" provisions introduced by the Consumer Protection Act 1971, which enable enforcement authorities, on finding that non-complying goods are being offered for sale, to prosecute the original suppliers for the offence if it is considered that they are mainly to blame. When a manufacturer or importer has once been prosecuted under this procedure for an offence committed by a retailer, he would be well advised to recall existing unsold stocks held elsewhere.
It is, of course, to be regretted if any toy trader finds it necessary, because of losses on non-complying toys, to contemplate closing his business, and it is naturally a matter for concern if this means a loss of jobs. No such case— 332 apart from Kitfix Hobby's Ltd—has been reported since the Toys (Safety) Regulations were made. It is understood that the toys which have led to prosecutions against Kitfix Hobby's Ltd have been imported toys.
The 1974 regulations were made by the Home Office—not by my Deportment. The requirements they imposed seem reasonable and necessary, and there would seem to have been full consultations with all the associations representing the toy trade, which apparently kept their members well informed of developments. These consultations led to later operative dates for some, but not all, of the proposed requirements. There was little justification for allowing the continued sale for a lengthy period of toys with sharp points and edges, bearing in mind the obvious hazard which these present and also the comparable provisions which had been in the British Standard for toys since 1961.
There is no evidence that the regulations have caused difficulties for toy importers or manufacturers, and it would appear that, generally speaking, the procedure adopted for promulgating information about the regulations was effective. The regulations will be kept under review, and, indeed, discussions are currently taking place with the British Toy Manufacturers' Association about the content of possible further regulations.
The prohibition of accessible sharp edges will be retained, but it is too early to say whether the present requirement is likely to be altered in any way. In the final event, it will have to be consistent with any relevant provision in the EEC directive, when adopted. No significant change may be necessary as the requirements of the CEN standard as at present drafted, on which the directive is to be based, are similar to those in the existing regulations.
I have corresponded with the hon. Gentleman on this matter and I have listened to what he has said. I looked into the matter carefully before I came to the House, but I am afraid that, in balancing one's duty to the general pub-lie and children in particular, and given the knowledge and foresight which the hon. Gentleman's constituent might have had, I do not see any ground for changing the decisions that have been made on this matter.