HC Deb 28 April 1978 vol 948 cc1873-901
Mr. John Fraser

I beg to move Amendment No. 2 in page 1, line 5, leave out from 'may' to end of line 14 and insert ', for the purpose of securing that goods are safe or that appropriate information is provided and inappropriate information is not provided in respect of goods, make regulations containing such provision as is authorised by subsections (2) and (3) of this section;'.

Mr. Deputy Speaker

With this we may take the following amendments:

Amendment (a) to Amendment No. 2, leave out from 'safe' to 'make'.

No. 3, in page 1, line 7, after 'securing', insert 'so far as is reasonably practicable'. No. 4, in line 7, after 'kind', insert 'when property used'.

No. 5, in line 7, leave out 'or are used or kept in a safe way'. No. 7, in line 17, leave out 'include' and insert 'contain'.

No. 18, in page 2, line 32, leave out from 'inappropriate' to end of line 34 and insert 'information is not given in respect of goods either by means of misleading marks or otherwise'. No. 19, in line 34, at end insert— '(ff) for prohibiting persons from supplying, or from offering to supply, agreeing to supply, exposing for supply or possessing for supply, goods which the Secretary of State considers are not safe and goods which do not satisfy requirements of the regulations;'. Amendment (a) to Amendment No. 19, leave out from third 'supply' to 'goods'.

No. 20, in line 35, leave out 'the supply of, and other transactions relating to,' and insert 'persons from supplying, or from offering to supply, agreeing to supply, exposing for supply or possessing for supply,'. No. 26, in line 29, leave out subsection (5) and insert— '(5) In this Act—

  1. (a) none of the sections of this Act shall apply to, nor shall any regulations or orders be made thereunder in relation to the making or processing of goods, their composition, contents, design, construction, finish or packaging or their conformity with standards where these aspects are now or may in future be the subject of separate requirements to the same effect under existing legislation;
  2. (b) subject to paragraph (a) above nothing in subsection (2) or (3) of this section and sections 2, 4(3), 5 and 6 shall be construed as derogating from the generality of subsection (1) of this section'.
No. 27, in line 29, leave out subsection (5).

Mr. Fraser

Amendments Nos. 2, 7, 19 and 27 are very largely consequential on the insertion of New Clause No. 1 and the restriction of powers as they stood in the Bill as first drafted.

Amendment No. 2 limits the powers to make regulations consequent upon New Clause 1.

With regard to Amendment No. 7, the word "contain" is rather more restrictive than the word "include".

Amendment No. 19 seeks to restore in another place some of the words which would be deleted by Amendment No. 2, and Amendment No. 27 is again consequential.

Amendment No. 18 seeks to explain the reference to inappropriate information by providing that this includes misleading marks—for example, a mark closely resembling a mark which informs persons that goods comply with a particular standard. In a previous debate, the question of the Trade Descriptions Act 1972 was raised. We have looked at this. The basis of offences under the Trade Descriptions Act is the inducement of a person to enter into a contract. It is all based on the correct contractual relationship, and it is not possible to deal with these matters under the Trade Descriptions Act. That is why there is a reference to inappropriate information in a safety context. It would not be appropriate to deal with these matters solely under the Trade Descriptions Act.

Mr. Tim Smith

Amendments Nos. 3, 4 and 5 are in my name. If we accept Amendment No. 2, the Minister's amendment, my amendments will not be necessary.

I think that Amendment No. 2, which is consequential on our inclusion in the Bill of New Clause No. 1, is a considerable improvement on the wording of Clause 1 in the Bill as amended by the Standing Committee. My amendments seek to introduce a form of words which would tighten up the existing Clause 1.

With regard to Amendment No. 3, there would have been, by the introduction of the words so far as is reasonably practicable after the word "securing", the opportunity to challenge whether the regulation was a reasonably practicable one.

Equally, Amendment No. 4 seeks to introduce also into the first line of the clause the words "when properly used". It is possible for consumers to buy goods and then to use them for purposes which would have nothing whatever to do with the purposes intended by the manufacturer. I think that that is an important point.

Amendment No. 5 is the same as Amendment No. 24 in Committee, in the name of my hon. Friend the Member for Gloucestershire, South (Mr. Cope). This is an important amendment. We seek to delete the words or are used or kept in a safe way because we feel that it is not possible to legislate for the safe keeping of products in a consumer's home. We cannot provide for what the consumer does with the product once it has been purchased.

Taking the three amendments together, the object of the exercise was to try to tighten things up, because at the moment the clause is so broadly drawn that it could make life very difficult indeed for the manufacturer if the regulations followed the existing wording.

Amendment No. 2, which has been moved by the Minister, is a considerable improvement, as I have said, and if it is accepted my amendments will not be necessary. However, it still includes the the words "appropriate information" and also "inappropriate information", therefore we come back to the same point that we were considering on New Clause No. 1, namely, the definition of the words "appropriate" and "inappropriate". At the moment, as has been pointed out, there is no definition of these terms.

The Minister has said that the regulations will be specific, and that these words apply only to the purpose of regulations, and that when we have the regulations they will be specific, so that there will be no question of trying to determine what is appropriate or what is not appropriate. When I asked the Minister whether that meant that the words "appropriate" and "inappropriate" would not appear in any regulations, he was not able to give that undertaking. We may still have to try to determine what is appropriate and what is not appropriate. So although Amendment No. 2 is a considerable improvement, there is scope for further improvement.

1.30 p.m.

Mr. Neubert

My hon. Friend had the advantage of serving on the Standing Committee. He said just now that it was not possible to secure the safety of people acting in their own homes. He will know that shortly, no doubt, we shall have proposals from the Government on product liability, and a strong possibility is that it will be a total liability on the manufacturer and that contributory negligence will be no defence. Is my hon. Friend aware of that, and does he believe that what he is saying is necessarily consistent with the possibility that we may have such provisions in other legislation?

Mr. Smith

I am aware of the draft EEC directive on product liability and, although I support the concept of strict liability, I believe that the concept of contributory negligence is not inconsistent with it. One is talking about liability in one case and damages in the other. It is important to establish that where, for example, the consumer fails to take due care or uses the product for a purpose for which clearly it was not designed, damages should be reduced accordingly. It might be that, although there was strict liability, damages were reduced by as much as 95 per cent. or even, in an exceptional case, 100 per cent.

The safe keeping of products in consumers' homes was a matter touched on briefly in Committee. My hon. Friend the Member for Tynemouth (Mr. Trotter) said that if he read Amendment No. 24 correctly, it is an attempt to suggest that we cannot legislate for the safe keeping of products in a consumer's home. It is true that we cannot legislate for carelessness in a home. On the other hand, legislation is necessary to cover the packaging of products in homes so that there may be suitable warnings displayed to prevent danger arising in that respect."—[Official Report, Standing Committee C, 12th April 1978, c. 4.] I feel that that has now been covered in subsection (3) of New Clause No. 1, so, on the assumption that we do not accept Amendment No. 2—and I expect that we shall—I should still like to press Amendments Nos. 3 and 5 for the reasons that I have given.

Mr. Giles Shaw

My hon. Friend the Member for Ashfield (Mr. Smith) was right to conclude his remarks by saying that there were some important elements in his amendments. We are now dealing in Clause 1 with the start of the "nitty-gritty", namely, safety regulations in respect of goods.

The Minister moved Amendment No. 2, and we are also considering Amendment (a) which deserves some mention from me. The view has been expressed that if we say that the object of the regulation is to secure that goods are safe, that in itself is virtually a comprehensive statement, and that to have following from that or that appropriate information is provided and inappropriate information is not provided in respect of goods", as Amendment No. 2 suggests, does not necessarily make the goods any safer in the way in which they are defined for the purpose of these regulations.

It seemed to the Opposition, as it did to the CBI, that the phrase securing that goods of any kind are safe was wide enough and full enough to cover both packaging and informative labelling.

Mr. John Fraser

Some goods cannot be made absolutely safe. For example, bleach is dangerous per se. No one wants to prohibit the sale of bleach, but it is important to have appropriate information about what is likely to happen if a child swallows it accidentally. That goes to protecting from injury, although it does not ban bleach specifically. It simply says that this is an inherently dangerous substance and that if it causes injury, this is the appropriate way to deal with the injury. It helps to deal with what we dealt with in an earlier debate—the carelessness of the consumer or the accident to the consumer, as well as the liability of the producer.

Mr. Shaw

I take that point. I think that the average person in the street assumes that goods are goods as and when purchased and that the container of the goods is as much part of the goods as the contents. But I see that there is this distinction between the contents of a product and the container and the label which surrounds the container. The object which the Minister seeks to achieve is clear. He seeks to ensure by issuing regulations that goods are safe.

The extent to which it is the labelling which makes goods safe is a matter which we can discuss. But if the labelling is totally convincing in describing the contents as safe it will not in effect make the goods safe. It merely provides a warning that the goods are not safe. I see the distinction from the legal point of view. My only reservation is that there is no way in which goods can suddenly be prevented from being unsafe simply by labelling them. Obviously they would still be dangerous. The question is whether the goods are dangerous or not.

I accept that there are occasions when a regulation to provide information labelling would help the consumer to understand the danger of the product. It would not necessarily inherently make the product any more safe by having the labelling. That was the purpose of Amendment (a) to Amendment No. 2, and I shall not press that very far.

When we come to Amendment (a) to Government Amendment No. 19, we are dealing with a somewhat different topic. In Amendment No. 19, the Minister proposes to insert a reference to goods which the Secretary of State considers are not safe and goods which do not satisfy requirements of the regulations". Consideration by the Secretary of State reflects a matter of opinion. I am sure that the Minister does not mean to reflect that. It is a matter which has to be defined rather than a matter of opinion, and presumably the Minister will in time issue regulations which are sufficiently definitive for it not to be a matter of consideration or opinion and that goods can be proved to be safe or otherwise. I have no doubt that later in our discussions he will indicate how regulations will be made and on what criteria the definition of safe or unsafe products will be based.

Mr. John Fraser

We have discussed products such as bleach or iodine. Many products can be unsafe if they are misused. However, there may be those products which are so unsafe that they should not be marketed at all. I have in mind a product constructed with a radioactive substance which could be so dangerous and so capable of misuse that it should not come on to the market at all. That is the distinction brought out in Amendment No. 19.

Mr. Shaw

In those circumstances, it would be necessary for the opinion of the Secretary of State—the words used are "the Secretary of State considers"—to be backed up by powerful evidence. We are coming on to discuss the procedure of affirmative resolution, and I think that this lays even greater stress on the importance of the affirmative procedure.

We are dealing with an interchange of information between a manufacturer or supplier and the officials of the hon. Gentleman's Department. It should be possible to arrive at fairly clear distinctions to decide where the borderline of safety lies. It should not be a matter of ministerial whim, as I am sure it is not designed to be.

Amendment No. 26 is more important. The chemical industries have stressed that it is very important that none of the regulations in issue under this clause or the new powers that the clause provides should conflict with safety regulations already in operation. We would be very foolish if we found ourselves issuing conflicting regulations.

This amendment will ensure that any safety regulations made under the Bill will not duplicate or conflict with similar regulations under existing legislation. There are many sectors of British industry which already operate under fairly close controlling legislation. It has been indicated already by the Department that the food industry, for example, is exempt, no doubt in the light of the food and drugs legislation that controls it. There are other industries for which regulations and standards have been issued. I hope that the amendment will be acceptable to the Bill's sponsors.

Mr. Trotter

I refer first of all to the amendment moved by my hon. Friend the Member for Ashfield (Mr. Smith). The words that he seeks to remove will be removed anyway if we accept Amendment No. 2. I hope that the House will accept that amendment which is part of the major redrafting that we discussed on New Clause No. 1 and arises out of consultations held in the substantial period between Second Reading and Commmittee. As the words covered by Amendment No. 2 will be deleted, I fail to see how Amendments Nos. 3, 4 and 5 can apply.

The effect of adding so far as reasonably practical would limit the powers in an unacceptable maner. The principle that safety is seldom if ever absolute is well accepted and this is taken account of in the definition of "safe" in Clause 8.

The effect of inserting the words "if properly used" after the word "kind" prevents the regulations from taking account of any reasonable foreseeable misuse of the goods. It is interesting to note that British Standards themselves take foreseeable misuse into account.

One of my hon. Friends referred to the next possible stage of legislation which might lead to the manufacturer or supplier being entirely responsible for any damage relating to the use of his product. That goes far beyond the scope of this Bill and is something about which I would have grave reservations and doubts.

Some years ago a friend of mine who worked for a well known firm of detergent manufacturers told me of the case of a woman who washed her husband in scouring powder and wrote to complain because he came out in blotches all over. I would be very unhappy if we had legislation under which that woman's husband could have claimed any damages whatever from the firm. To give that degree of liability is a matter which would need very careful consideration. I do not believe that Amendments Nos. 3, 4 and, 5 are technically correct if Amendment No. 2 is passed, and I do not support them in priciple in any case.

I turn to Amendment No. 19(a). There is a clear need for the Secretary of State to have power to deal with goods that he considers unsafe. An example is the case of the South American beans which are strung together to make necklaces and which are highly toxic if eaten. The supply of these beans has been prohibited in North America. While most people would not want to eat a bean from a necklace, some small child might try, and in such cases outright prohibition may be necessary. There is no great market in this country for the beans at present, but someone could decide to bring them in as a gimmick, and then it might be necessary to prohibit them from sale.

Before making such an order the Minister would have to think very carefully and explain his action. If the affirmative resolution procedure is passed by the House this afternoon, hon. Members can question this. In fact, if they are interested, they can try eating the beans to see what effect they have personally.

1.45 p.m.

Amendment No. 26 seems to be unworkable in the way in which it is drafted. I understand that it would prohibit the regulations from being made under the Bill, which in future could find themselves in conflict with future legislation elsewhere. If my interpretation of that is correct, one could not make any regulation under this Bill because one would not know what future legislation there might be.

I understand the principle behind the amendment—that there should not be superfluous enforcement of regulations. I do not think that will happen in practice because I do not think there will be a number of different bodies all trying to enforce the same regulations. Therefore, I hope that my hon. Friend the Member for Pudsey (Mr. Shaw) will withdraw this amendment.

Mr. John Fraser

I have considered whether it is possible to construct an amendment that makes the point of the hon. Member for Pudsey (Mr. Shaw). There is bound to be an overlap of goods. Goods used at work would be covered by the Health and Safety at Work Act. Goods used at home might require more or less stringent safety provisions and should be dealt with under consumer protection legislation.

If one tries to do it by defining the goods one will get into difficulties immediately. If one does it by defining the powers used, one finds it difficult to differentiate between powers under the Medicines Act, for example, and powers under this Bill. We have had 17 years of experience of making general regulations under the Consumer Protection Act 1961. A lot of experience has been gained and there has been no difficulty.

I give my undertaking and assurance that where the specific powers exist—for example, powers to deal with medicines —these powers would be used primarily, rather than the powers under this Bill. The administration of this would be no different from the practice of 17 years with the Consumer Protection Act which has given rise to no complaints at all.

I know that the words "reasonably practical" have been imported from the Health and Safety at Work Act. But these words are in that Act only in relation to the general duty of care. They do not relate to regulations. That judgment about a safety requirement being "reasonably practical" is made when one constructs a particular regulation. It is made after consultation at great length—consultation which often takes more than a year. It is a judgment which must be endorsed by the House when it gives consent to the regulations.

If one tries to write restrictions into the regulation-making powers one finds the process becoming unduly restrictive. It is at the point when one constructs one's specific requirements for electric lamps, electric fires, dummies, cots, prams or whatever that one makes a judgment about whether it is reasonably practical or not. Therefore this amendment would be unduly inhibiting.

Mr. Robin Maxwell-Hyslop (Tiverton)

I, too, am concerned about the question of overlap. Among other things it affects the manner in which Members table Questions to Ministers. If Members seek to have an order made to cover a class of goods which is seen to be dangerous, the amendment can have some effect on the direction in which those Questions are tabled.

Theoretically, I imagine that it would be acceptable that all Questions whether an order should be made pursuant to this legislation, unless it is amended by Amendment No. 2, should be directed to the Secretary of State for Prices and Consumer Protection. Yet the Minister indicated that we may experience, as we often have in other directions, Ministers passing Questions from one to another. Therefore, a Question that is tabled to the Secretary of State for Prices and Consumer Protection may be passed round a number of different Departments.

As you, Mr. Deputy Speaker, will be aware, the Scottish Office, for instance, combines within its purview the functions of quite a number of different Departments of State which apply in England and Wales but not in Scotland. Therefore, a different practice about transferring Questions may be adopted by the Secretary of State for Prices and Consumer Protection, depending upon whether the Member who tabled the Question for that Department had a constituency in England, Wales or Scotland. I think that this is a series of amendments on which matters of this kind should be clarified.

Perhaps I may take a specific example. It is well known in medical circles nowadays that the hazards associated with toughened glass windscreens in motor vehicles, as opposed to laminated glass windscreens, are entirely avoidable. In most civilised countries there is legislation prohibiting toughened glass windscreens.

The reasons are twofold. First, there is a finite number of accidents each year caused by opacity of the windscreen when it implodes either after being struck by an object external to the vehicle or because of disproportionate distortions in the surround of the windscreen in the vehicle concerned. It is not unknown, when a windscreen implodes in that manner, for the driver or the passenger beside him to breathe in little fragments of glass which cause untreatable abscesses inside the lungs.

That is the kind of obvious question that Members might want to raise with the Department of Prices and Consumer Protection after the Bill goes on to the statute book. Experience has taught Members that pressing for legislation to make toughened glass windscreens illegal in Britain falls unaccountably on completely deaf ears in the Department of Transport.

I have not tried my luck with the Scottish Office. There is an apparent logic in saying that the Department of Prices and Consumer Protection, under this legislation unamended, should be the recipient of representations from Members on matters concerning consumer safety and that it should by all means discuss those matters with other Departments of State. Nevertheless, I fear that if this series of amendments becomes embodied in the Bill, Members will be caught up in a process which ought to be undertaken by the Minister.

I should be grateful if the Minister would give us the benefit of his advice on how the Government intend to treat Questions and representations from Members, on the one hand, if the Bill passes unamended into statute law and, on the other hand, if it passes into statute law as amended by this series of amendments.

Mr. Jasper More

My hon. Friend is a great authority on the procedure of this House and he has spoken pertinently, in particular on the matter of the Secretary of State for Scotland. However, he will have observed that Clause 10 contains an elaborate code adapting this legislation to Northern Ireland. Specific references are made to a number of Acts which apparently also relate to Northern Ireland. Will my hon. Friend tell the House how we stand in respect of Questions about Northern Ireland under this legislation?

Mr. Maxwell-Hyslop

My hon. Friend has raised an important matter, in respect of which any answer could be of temporary relevance only. That is because we do not assume, I take it, that the present system of government in Northern Ireland, after the suspension of Stormont, will necessarily be there for all time. Therefore, in so far as the Secretary of State for Northern Ireland currently answers Questions in this House which previously would have fallen within the remit of the Administration at Stormont, my hon. Friend's perspicacious question is unanswerable, because the present administrative arrangements in Northern Ireland must presumably be regarded as temporary.

Although the Government are clearly coming to an entirely timely end, the indication is that they will endure for a few more weeks or months. Therefore, it is appropriate for the Minister, on behalf of the Government, to speculate whether matters of this kind will be within the remit of what the Government have in mind for the future constitutional settlement in Northern Ireland.

Mr. Deputy Speaker (Sir Myer Galpern)

Order. I wondered where we were getting to. We are discussing a straightforward amendment, No. 2, together with a whole series of amendments. The hon. Gentleman is now raising matters which, in my opinion, are wholly irrelevant to the amendments under consideration. If he wants to raise the question of which Department is to answer Questions tabled by hon. Members, I suggest that it would be more appropriate when we come to the Question, That the Bill be now read the Third time. He can then raise the whole matter generally. Frankly, I do not see that it arises on the series of amendments under consideration.

Mr. Maxwell-Hyslop

If you, Mr. Deputy Speaker, would prefer me to raise the matter at a different point in our proceedings, I naturally defer to your wishes.

I raised the matter in this context because, as I read this series of amendments, it seemed that if this series of amendments was embodied in the Bill the answer to the question that I was putting to the Minister would be different from what it would be if the amendments were not embodied in the Bill. If the Minister takes the view that the answer would be exactly the same whether the amendments were embodied or not, I shall be glad to give way to him on this point, because that would have the effect of foreshortening any comments.

Mr. John Fraser

I do not think that it makes the slightest bit of difference. Powers in Bills nowadays are always expressed to be exercisable by the Secretary of State, not by a named Department. Therefore, the question of division of responsibility is a division of areas of work allocated to different Departments and would not turn on the way in which the statute was framed. My guess is that if the hon. Gentleman were to have a Question on medicines he had best put it to the Department of Health and Social Security, but if he were to have a Question on consumer goods, he had best put it to me.

Mr. Maxwell-Hyslop

It was precisely because the Minister made comments of that kind a few minutes ago that I sought to intervene in the debate.

2 p.m.

For instance, in the example of laminated glass, which is entirely germane to the Bill, if one takes the guidance that the Minister has just given it looks as though—although it is not certain—Questions asked of the Secretary of State for Prices and Consumer Protection—for the reason that in the past no one has got anywhere with such quests to the Department of Transport or its predecessor the Department of the Environment—may end up being transferred from the Secretary of State for Prices and Consumer Protection to the Department of Transport.

Mr. Deputy Speaker (Mr. Oscar Murton)

I must ask the hon. Member not to pursue that line at this stage. It has nothing to do with the Bill.

Mr. Maxwell-Hyslop

My hon. Friend the Member for Ludlow (Mr. More) intervened to put a question to me about Northern Ireland. I understood that was in order, since you, Mr. Deputy Speaker, did not intervene.

Mr. Deputy Speaker

I never intervene in interventions, because it takes far too long and leads to long speeches.

Mr. Maxwell-Hyslop

I shall not stray into that province any further, except to say that the Minister presumably is appearing on the Bench on behalf of other Ministers not only in the functional sense but—in the case of the Secretary of State for Northern Ireland, for instance—in the jurisdictional sense. If the answer to the question of my hon. Friend for Ludlow is that we are likely to encounter difficulties in tabling Questions, I hope that the Minister will find out from the Northern Ireland Office whether the answer that he gave in general terms for Great Britain also covers Northern Ireland. Does it extend to the whole of the United Kingdom?

Amendment agreed to

Amendment made: No. 7, in page 1, line 17, leave out "include" and insert "contain".—[Mr. John Fraser.]

Mr. Tim Smith

I beg to move Amendment No. 8, in page 1, line 18, leave out from "(a)" to "with" in line 19.

Mr. Deputy Speaker

With this we may take the following Amendments: No. 9, in page 1, line 18, leave out from "respect" to "to" in line 19.

Government Amendments Nos. 10 and 11.

Mr. Smith

The effect of Amendments Nos. 8, 9 and 10 is the same. I believe that we all agree that these three amendments should be taken together and that we wish to see those words deleted.

Amendment No. 11 reintroduces the same thing in different words. It will result in the Secretary of State being able to make safety regulations which include provisions with respect to other matters relating to goods".

Mr. John Fraser

The hon. Member's drafting is so brief, so economical, so inspired and so brilliant that if the House carries Amendment No. 8, I shall not move Amendment No. 10.

Mr. Smith

I am grateful to the Minister. Amendments Nos. 9 and 10 are identical.

I return to Amendment No. 11. There is no reference to safety in that amendment. There would have to be safety regulations, and the amendment gives the widest possible scope to the Secretary of State in making them. We are concerned because this is a consumer safety Bill. It is supposed to provide safety regulations for goods. Although we accept that safety regulations should include provisions with respect to the composition or contents, design, construction, finish or packing of goods we do not accept that such regulations should include provision for the making or processing of goods. Such regulations would constitute a gross interference with the manufacturing process. Manufacturing companies are already overburdened with regulations. One takes no exception to regulations under the Health and Safety at Work, Etc. Act which provides for the well-being of employees on the factory floor, but there must be a limit to the degree to which the Government are able to interfere in the manufacturing process.

If it were possible to introduce regulations that interfere with that process a manufacturer might be required to introduce new machinery, the cost of which could not be justified, and he would have to cease to produce a particular product. Apart from the cost of interference that this would involved, it is difficult to think of specified examples for which a requirement would be necessary.

Safety regulations which deal with the composition or contents, design, construction, finish or packing of goods sounds pretty comprehensive in themselves. It is difficult to imagine an example that is not covered by that part of the clause.

I am aware of only one extreme—that of aerosol cans which, by their nature and because the contents of the can are packed under pressure, require special attention in the manufacturing process. Although that is true, it is a bad example, because, as we know from the recent Price Commission report, the Metal Box Company has a monopoly in that sphere.

All the aerosol cans produced by Metal Box are manufactured in my constituency. I have had an opportunity to see at first hand the efficient and safe way in which they are produced. Safety regulations should be aimed not at companies with the highest reputation and standing, such as Metal Box, but at the one or two firms which refuse to take any notice of warnings by the Government and continue to produce unsafe goods.

I have spoken at length about this example because it is the only example that has been given. I do not think that it is a good example. I should be interested to know whether there are any other examples of consumer goods which are not embraced by the second half of subsections (2)(a).

It is my view that the words with respect to the method of making or processing goods go far further than is necessary in a Bill that is designed to deal with consumer safety and safety regulations in respect of goods, and would constitute a gross interference with the manufacturing process. I am not at all happy with Amendment No. 11, because, far from limiting this subsection, it would have the effect of widening it much further. As I say, there is not even a reference to safety in the new words that are proposed to be introduced by Amendment No. 11: or with respect to other matters relating to goods The safety regulations could go very wide indeed, and I think that at least that amendment should say: or with respect to other matters relating to the safety of goods. But I would not support the amendment at all. I believe that this subsection needs to be tightened up, rather than opened up further.

Mr. Moate

My hon. Friend the Member for Ashfield (Mr. Smith) has moved a very sensible amendment. I hope that the House will find it acceptable. I hope, too, that it will also follow my hon. Friend's advice and not find acceptable Amendment No. 11, proposed by the Minister, to insert the words or with respect to other matters relating to goods. It seems to me that the words that my hon. Friend says should be left in—namely, Safety regulations may include provision with respect to the…composition or contents, design, construction, finish or packing of goods"— cover pretty well everything that we should want to cover. I cannot see the argument for going further and saying that we should cover the method of making or processing of goods. It seems to me that what we are concerned with is a proper control on the finished product and that standards should be applied to the finished product, and that we should be very careful about allowing a great deal of examination and, perhaps, interference with the process itself. That would be giving an unnecessary power of bureaucratic intervention, and we should hesitate very much before doing that.

If we relate this provision to the discussions that we have been having about the hazards themselves, surely we find that the latter wording is quite adequate. If we are talking about inflammable materials, we find that they are covered by "contents", so one has power to exer- cise control over contents. Be they inflammable materials or any dangerous substance present in a finished product, they are already covered. If one is talking about design or construction, one realises that nearly every hazard that has been cited as giving a raison d'etre for this legislation is covered by the specific words: the composition or contents, design, construction, finish or packing of goods. Why, then, do we need to go further back in the process and allow the Government the powers to examine the method of making or processing of goods? It would seem from that that although the earlier words are quite specific and the Government might have had something specific in mind, it is more likely that all that the Government were seeking to do was to extend their powers generally, in order to give themselves a general power. The Minister shakes his head, but nevertheless, that suspicion is reinforced by the nature of Amendment No. 11, which says at end insert 'or with respect to other matters relating to goods'. That means that the Government are seeking, as it seems to me, anyway, a blank cheque.

Mr. John Fraser

The words are virtually identical with those in the 1961 Act, which were missed out in the drafting of this Bill.

Mr. Moate

I take note of that point. Is the Minister saying that the wording contained in Amendment No. 11 was omitted in the drafting?

Mr. Fraser

indicated assent.

Mr. Moate

Nevertheless, it seems that a very wide ranging power is being sought, as compared with the rather more specific words that the Minister is seeking to delete. Whatever the pedigree of the phraseology, the fact would be that the Government would have powers to consider the method of making or processing of goods under this general phraseology, or with respect to other matters relating to the goods. This seems to run counter to the representations that one has received and, perhaps, to some of the observations in the consultation paper.

I notice that it quite specifically says, in paragraph 72, on page 20, under the heading "Requirements as to manufacturing processes and quality control" Generally, it has been found adequate —adequate— to prescribe safety requirements with which the product must comply at the time of sale. So far, therefore, generally it has been found adequate to deal with goods at the time of sale.

2.15 p.m.

The consultation paper, the Government's own document, goes on further to make the point that Since it would not be possible to ensure compliance with any such requirements in manufacturing processes in respect of imported products, such a provision could only be applied to goods produced in this country —which would be very hard on United Kingdom manufacturers who would be subject to this inspection on the process of manufacture, whereas imported goods would not be so subject. That is the implication of the Government's comments—that this would be an unfair penalty on British manufacturers.

Then the paper goes on to deal with the very specific point concerning aerosols mentioned by my hon. Friend the Member for Ashfield. There may be other examples, but I gather that this is the only one that has been cited in terms of requiring inspection under the provisions concerning manufacturing and the production process. The paper goes on to say: the EEC's optional harmonisation directive on aerosol dispensers requires anyone marketing aerosols which bear the symbol denoting conformity with the directive to guarantee that each aerosol so marked has satisfied certain prescribed tests, and similar needs may arise in other areas. The point here is that it is clear from the existence of that directive that if the Government wish to exercise control over aerosols, they have the power to do so without necessarily having the broad wide-ranging power in the clause. They can do what they require in regard to aerosols simply by pursuing the course of action allowed them by the optional directive of the EEC.

Mr. Tim Smith

Another advantage of membership.

Mr. Moate

My hon. Friend regards that as an advantage of membership. I have never thought it necessary for the EEC to suggest sensible courses of action. We should be capable of doing that ourselves, if we so wish. But in this case, if it is a sensible course of action, that course can be pursued by the Government without having the wide-ranging power, and certainly under the wording as it stands but also as it would be imported by the acceptance of Amendment No. 11.

Even if that wording already existed in Acts, it would seem that by introducing it here one is running counter to the proposition invited by the Government's consultation paper and contrary to the views expressed by the Confederation of British Industry. I have a note from the CBI, which I imagine has been widely circulated, stating: We consider that regulations relating to making or processing of goods are unnecessary and possibly restrictive. Consumer safety regulations should be concerned with safety requirements. The CBI then goes on to quote the consultation paper, quoting the paragraph to which I have referred, and then says: There are obvious difficulties in judging compliance by imported goods. Therefore, it seems right and proper that we should delete the words the making or processing of goods and confine our judgment to the finished product.

I cannot really believe that the workings of the legislation would be inhibited in any way by restricting it in the manner suggested by my hon. Friend the Member for Ashfield. The enforcement authorities could still be in a position to make all the proper judgments about the quality and the contents, and the dangerous features or other features of the finished product, and that would be enough. They could simply say that Brazilian crackers are dangerous, and that would be enough. They could ban them. They do not have to go back into the manufacturing process and say "The way in which these dangerous Brazilian crackers were made is undesirable and, therefore, we shall intervene and prevent that happening." Therefore, I hope that there is general acceptance in the House that we can delete these unnecessary words. If they are left in the Bill, they could result in unreasonable or unnecessary powers of interference in manufacturing industry. If there is agreement that we should leave out these words, largely because the other wording is already satisfactory and gives adequate powers, I do not see the case for then going further and adding in this blanket general power, or with respect to other matters relating to goods. The Minister has been very understanding and helpful generally. He is trying to lay down in the Bill more precise legislative requirements rather than doing it by legislation-making powers. In this respect he seems to be wanting broad powers, and uses the wide phraseology: with respect to other matters relating to goods. That is too broad a phrase. I hope that the Minister will concede that that wording, too, is unnecessary. I warmly support the amendment moved by my hon. Friend the Member for Ashfield.

Mr. Jasper More

I want briefly to support my hon. Friends and to say, particularly in regard to the Amendment No. 11, that surely in everything we are discussing we must bear in mind that we are leading up to offences under the criminal law and criminal proceedings.

As I said in relation to a previous amendment, when one is dealing with the criminal law it is necessary to be specific and to make it clear what the offence is and to leave the citizen in no doubt. It is wrong that in a clause concerned with safety regulations we should finish up by giving the Minister a blanket power, with the words or with respect to other matters relating to goods. My hon. Friend the Member for Ashfield (Mr. Smith) suggested that at least these words should be qualified so as to make it unequivocally clear that anything done by way of regulations under the clause should specifically relate to safety. I reinforce that point and suggest that it would be better if, instead of the phraseology used by the Minister, it is made clear this is restricted to considerations of safety and that we should have a form of words "or with respect to other matters relating to the safety of the goods."

Mr. John Fraser

I should like to respond briefly to that suggestion. The words that I seek to include in Amendment No. 11 are almost exactly the same as words in the Consumer Protection Act 1961. There is, however, one difference. In the 1961 Act the words that I am seeking to put into the Bill are qualified by the provision that the requirements have to be expedient to prevent or reduce death, risk of death or personal injury.

It was never intended when I sought to insert these words, which are almost identical to those in the 1961 Act, that they should provide any broad powers controlling processing and production. If the House accepts my amendment I shall seek to provide a qualification similar to the other qualification provided in the Consumer Protection Act 1961. The hon. Member for Ludlow (Mr. More) has put his finger precisely on the point, and I shall try to meet his point.

Amendment agreed to.

Amendment made: No. 11, in page 1, line 20, at end insert or with respect to other matters relating to goods".—[Mr. John Fraser.]

Mr. Giles Shaw

I beg to move Amendment No. 14, in page 2, line 7, leave out "may" and insert "shall".

Mr. Deputy Speaker

With this we may take the following amendments:

No. 15, in page 2, line 9, leave out "of which particulars" and insert "that".

No. 16, in page 2, line 10, leave out "in" and insert or organisation that is recognised within". No. 17, in page 2, line 11, after "elsewhere", insert as being a competent authority in regard thereto". No. 28, in page 3, line 31, at end add— (6) Safety regulations made in accordance with subsections (2) and (3) of this section shall recognise compliance with British Standards as being deemed to satisfy the requirements of such regulations. (7) Safety regulations made in accordance with subsection (3) of this section shall not provide standards for goods that amend, alter or vary British Standards.".

Mr. Shaw

I have indicated by not moving two amendments that I am prepared to make progress. These amendments deal with the maintenance of standards, in particular, British safety standards. It has been represented to us that it is important that none of the regulations issued under the Bill should conflict or distort the standards already available, which run across many sectors of manufacturing. Some doubt has been expressed that the regulations could interfere where British standards have already been set. The suggestion, therefore, for these amendments, is that the standards should be set by reputable organisations, such as the British Standards Institute, and that there should not be duplication or confusion by British standards being issued which might conflct with standards that have found wide acceptance throughout industry.

Mr. John Fraser

I do not think that there will be any conflict. The regulations have always imposed an obligation. The new concept is that the standard provides the defence. There is no way in which the legislation could interfere with standards. It would simply be a matter of selecting the appropriate standards as defences.

The reason why there is no reference to the British Standards Institute is that it would be restrictive of the standards which could be incorporated as defences. Sometimes it might be necessary to use an international standard, sometimes a European standard—it would be helpful if we could have one for toys—and sometimes a British standard. Occasionally we have used American standards. The definition of "paraffin" used in our regulations is the American standard for kerosene. The body which makes the standard will have to be a reputable one. The important thing is the selection of the standard itself rather than the body itself. If one limits it to too few bodies, there will be difficulties about selecting the right sort of standards.

I met representatives of the Chemical Industries Association the other day to discuss this matter. There may be a small matter on which an industrial association has its own standard. If the Government think that that standard is a good and adequate one, and if, after consultation, it is agreed and the House agrees, the standard will be incorporated in the regulations as a defence. If we try to do it in any other way it may be restrictive, and rebound on industry.

Mr. Shaw

The Minister has accepted the point being made that there should not be confusion and that with consultation on the factors for which he is considering regulations it should mean that the standards are preserved. With that undertaking, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 18, in page 2, line 32, leave out from 'inappropriate' to end of line 34 and insert: 'information is not given in respect of goods either by means of misleading marks or otherwise'.

No. 19, in page 2, line 34, at end insert: '(ff) for prohibiting persons from supplying, or from offering to supply, agreeing to supply, exposing for supply or possessing for supply, goods which the Secretary of State considers are not safe and goods which do not satisfy requirements of the regulations;'.

No. 20, in page 2, line 35, leave out 'the supply of, and other transactions relating to,' and insert: 'persons from supplying, or from offering to supply, agreeing to supply, exposing for supply or possessing for supply,'.

No. 21, in page 2, line 40, leave out from beginning to end of subsection.—[Mr. John Fraser.]

Mr. John Fraser

I beg to move Amendment No. 22, in page 3, line 20, leave out from 'appropriate' to end of subsection.

Mr. Deputy Speaker

With this we may take Amendment No. 23, in page 3, line 20, leave out 'including' and insert 'except'.

Mr. Fraser

The amendment deletes the reference concerning the burden of proof in regulations—consequent upon an undertaking that I gave to the Committee.

Mr. Giles Shaw

I briefly refer to Amendment No. 23. There was some discussion in Committee about the burden of proof. The Minister will recall a discussion with my hon. Friend the Member for Gloucestershire, South (Mr. Cope). The amendment is tabled to clarify the position. The Minister said that he would consider that. Will he comment on whether the point raised in Committee on the question of the burden of proof has also been accepted by him under the amendment?

Mr. Fraser

Yes, it has been, because there is no question of shifting the burden of proof. The defence is now clearly stated.

In Committee I gave an example of how in practice the burden of proof turns out. It can depend partly on the way in which the regulations are phrased. If there is a totally prohibited supply of a particular product, if one has that product in one's possession, one could be committing an offence, but that arises from the way in which the regulation is phrased. The examples that I gave to the Committee are unchanged, but there is no way in which the regulations can otherwise shift the burden of proof.

Amendment agreed to.

Mr. Trotter

I beg to move Amendment No. 24, in page 3, line 25, leave out from "such" to "and" in line 26 and insert organisations as appear to him to be representative of interests substantially affected by the proposal and such other persons as he considers appropriate".

Mr. Deputy Speaker

With this we may take Amendment No. 25, in page 3, line 26 after first "regulation" insert and the Director General of Fair Trading".

Mr. Trotter

Amendment No. 24 incorporates the amendment moved by my hon. Friend the Member for Gloucestershire, South (Mr. Cope) in Committee. He withdrew it on the undertaking that an amendment on the lines of his proposal would be presented now. The amendment fulfils that undertaking except that it does not include the word "reasonable". My hon. Friend sought to include the word "reasonable" in his amendment. I have not felt able to include that because that would involve all sorts of extremely complicated legal implications. The amendment deals adequately with the points raised in Committee.

2.30 p.m.

Mr. Giles Shaw

Amendment No. 25, in my name, is of considerable importance. This is the first occasion on Report that we have had the opportunity to relate the Office of Fair Trading to the operation of the Bill. Many of us recognise that the OFT is probably the most likely office to be able to operate in the best interests of the consumer on such matters as devising regulations or cures for hazards that the consumer comes up against.

I had intended to table an amendment providing that regulations could not be issued except on the recommendation of the OFT, but that was rightly ruled out of order. I feel strongly that the influence of the Office should be brought into the operation of the Bill.

The Bill provides that the Secretary of State should make safety regulations and that it will be his duty, before making them, to consult such persons as he considers appropriate. We feel that the Director General of Fair Trading should be one such person. It would be an error if he were not consulted at that stage in the preparation of regulations.

With the possibility of changes in the office of Secretary of State and in the policies pursued by the Department, it is important that there should be oversight by an independent third party of the general policy applied to regulations affecting consumer safety. The OFT is an appropriate body and its continuity would be important in helping to design consistent regulations that were not at the whim of various pressures.

The OFT has not been in existence for very long, but it has secured an enviable reputation for being able to adjudicate in difficult matters and being able to help industry and consumers when they find themselves in difficulty with regulations. It is both logical and correct that the Office should have a prime influence in consultation before the making of regulations.

The clause refers to the Health and Safety Commission because the sponsor and the Minister no doubt felt that the Commission was the vital force to consult on regulations relating to goods suitable for use at work. We feel that the OFT is a comparable body to consult in relation to regulations on hazardous products.

Under the original concept of hazardous goods in the 1973 Act, it was envisaged that the OFT would be wholly responsible for the operation of that statute. That is consistent with the way in which we have been viewing the development of the Office in recent times.

I press the sponsor and the Minister to consider including the OFT as one of the bodies to be consulted in the preparation of any proposed regulations.

Mr. Trotter

I regret that I do not find myself in sympathy with Amendment No. 25. The Office of Fair Trading has no expertise in consumer matters and it would be necessary to set up yet another bureaucracy that would involve duplication between the Department and the Office and would lead to delay, additional cost and, perhaps, even internal wrangling.

As an accountant, my experience of the Office has not been happy. The Office is bureaucratic and fixed in its views and, as a result, practising accountants have to spend £40 a year to obtain a certificate that says that the Office of Fair Trading regards them as fit people to advise clients on their debtors and creditors.

There is no check on this because members of the institute are examined under the institute's professional examinations. The Office of Fair Trading has no expertise, yet we have set up under the Consumer Credit Act a large bureaucracy to administer the licensing of accountants—something that was never considered when the Bill was going through the House.

I give that example to show the attitude of mind of the Office of Fair Trading. I should be happier to leave the matter to the Minister and the Department. It is interesting that in my discussions on the Bill over many months, I have come across no justifiable criticisms of the way in which the Department has operated under its existing powers in this area.

Mr. Giles Shaw

We are not suggesting the setting up of an additional and separate bureaucracy but the use of the OFT as one of the bodies to be consulted before regulations are made. My hon. Friend the Member for Tynemouth (Mr. Trotter) may have misread the intention of the amendment. We are seeking to amend Clause 1(4) in which the Secretary of State has to consult certain persons when considering the making of regulations. It is not a matter of setting up a bureaucracy, comparable with that operated by the Department, to oversee the enactment of regulations. We regard the Office as a source of influence that would be appropriate at that time.

In Committee, my hon. Friend the Member for Gloucester (Mrs. Oppenheim) laid great stress on the value of the Office in trying to persuade Departments to look at things from the point of view of the consumer. The Office has had considerable experience in dealing with consumers on matters of protection and fairness. It was designed to do that, and it could not be regarded as an inappropriate body.

On the question of expense, the Director General and the OFT are in existence. We are not asking that the Office should take on more people to deal with the regulations. I understand that the regulations will be issued sparingly and only when there are substantial reasons for doing so. I do not think that expense enters into the argument.

The Office is staffed, and I am suggesting that it should be used for one of its due and proper purposes—to influence consumer protection and provide fair trading conditions. I should have thought that the definition of what constitutes safe or unsafe products came well within the ambit of the OFT which has the sort of experience that would be valuable to the Secretary of State when he was seeking to draft regulations.

I ask my hon. Friend the Member for Tynemouth and the Minister to reconsider this matter. The amendment would not affect the operation of the Bill because consultation is germane to the clause that we are seeking to amend. What it would do would be to write into the Bill that the OFT would have a role to play in the design of regulations. We consider that role to be wholly beneficial and based on an experience which frequently the Department may not be able to provide. It would also add a certain element of confidence to those who have to carry out the regulations and who are affected by them—namely, those in the manufacturing and distributive trades—if they knew that the OFT would be consulted as of law, and if that were built into this Bill, before regulations are issued on their business or products.

I am sorry that my hon. Friend does not feel that this is a worthy amendment but regards it as an unnecessary and expensive extravagance.

Mr. John Fraser

Let me try to build a bridge between the two hon. Gentlemen. Where the Director General of Fair Trading has an interest in regulations which are being made he would have to be consulted. But it would be unduly restrictive to say "You cannot make regulations unless the director recommends or insists on being consulted on every set of regulations".

The director's function is economic. Indeed, the previous Administration insisted on it. There was quite a battle between the right hon. and learned Member for Surrey, East (Sir G. Howe) and his hon. Friend the hon. Member for Gloucester (Mrs. Oppenheim) on whether the word "economic" should be in or out of the Fair Trading Act. According to a television film on the subject, I noted that after a time in the Division Lobby the right hon. and learned Member won and persuaded his hon. Friend to withdraw her wording. That is why the director's function is mainly economic. It is best to handle the matter pragmatically rather than unnecessarily to involve people in the OFT when they have no direct interest in the regulations.

Amendment agreed to.

Amendment made: No. 27, in page 3, line 29, leave out subsection (5).—[Mr John Fraser.]

Back to
Forward to