SUPPLEMENTAL

HC Deb 28 April 1978 vol 948 cc1909-17

Amendment made: No. 42, in page 7, line 32, leave out 'or safety regulations'.—[Mr. John Fraser.]

Mr. Giles Shaw

I beg to move Amendment No. 43, in page 7, line 37, leave out 'person who was purporting to act in any such capacity' and insert 'other person'.

The amendment, which appears on the Notice Paper in the name of my hon. Friend the Member for Gloucestershire, South (Mr. Cope), follows an amendment in Committee, to be found at column 17 of the Official Report of our proceedings. The question was whether a person not designated to be a secretary, manager or director of a company should be exempt from the operations of the Bill. The dis- cussion in Committee raised the point whether a person other than a secretary or director or someone who purported to be such was exempt.

I am sure that the Minister will want to make it clear that any person should be liable under the Bill in dealing with hazardous products and that there should be no exemptions. As the clause is drafted, it is at least our belief that it does not specify that any—I emphasise "any"—person of any kind, be he honest factory worker or honest shop steward, should be liable. It is confined to those who purport to be secretary, director or manager of a company. I am sure that this is a modest clarification which the Minister will be able to give to the House.

Mr. John Fraser

Under the earlier provisions of the Bill, any one contributing towards an offence is liable. The words appear here only because the clause is a supplemental clause and deals particularly with those who might be sheltering behind a corporation. But those directly responsible for the commission of an offence are primarily liable. There is no loophole in the Bill.

Mr. Giles Shaw

The Minister said that they were supplemental provisions. I hope that he will forgive my ignorance on this matter, but I do not see why supplemental provisions are different from any other provisions. Is there a gradation here that I do not understand? I assume that the fact is that, whatever the provision, any person can be held liable for a hazardous product under the Bill.

Mr. Fraser

Yes, Sir. Any person can be held liable, and the clause appears here to deal with the particular positions of companies and partnerships.

Mr. Giles Shaw

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Trotter

I beg to move Amendment No. 44, in page 7, line 47, leave out from first 'instrument' to end of subsection and insert 'but no regulations shall be made in the exercise of such a power unless a draft of the regulations has been laid before and approved by resolution of each House of Parliament. (7) A prohibition order shall be laid before Parliament after being made and shall expire at the end of the period of 28 days beginning with the day on which it was made unless during that period it is approved by resolution of each House of Parliament. The expiration of a prohibition order in pursuance of this subsection shall not affect the operation of the order as respects things previously done or omitted to be done or the power to make a new prohibition order; and in calculating the period aforesaid no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days'.

Mr. Deputy Speaker

With this we are to take Amendment (a) to the amendment, at the end of subsection (7) leave out 'both Houses are' and insert 'either House is'.

We are also to take the following amendments:

No. 45, in page 7, line 47, leave out from first 'instrument' to end of line 4 on page 8 and insert 'but no order or regulations shall be made in the exercise of such a power unless a draft of the order or regulations has been laid before and approved by a resolution of each House of Parliament'. No. 46, in page 8, line 1, after 'containing', insert 'safety regulations or containing'.

No. 47, in line 4, at end add— '(7) No safety regulations shall be made unless a draft of the regulations has been laid before and approved by a resolution of each House of Parliament'. No. 60, in Schedule 1, page 12, line 8, leave out from '"order")' to end of line 23 and insert it shall be his duty before making the order to consult, in such manner as he considers appropriate having regard to the subject matter and urgency of the order, with such organisations representing interests to be substantially affected by the order as he considers appropriate'. No. 63, in line 31, leave out paragraph 5.

Mr. Trotter

There are two choices before the House in dealing with this group of amendments. I was conscious in the early days of the Bill's passage that there was a strong feeling that there should be an affirmative resolution procedure in dealing with this sort of delegated legislation. The precedent is not in the Consumer Safety Acts of the past. There was an attempt in one of the earlier Acts to introduce an affirmative procedure, but that was negated on a Friday afternoon by about four to one.

Considerable worry and concern have been felt about excessive legislation of any sort and the way in which it is imple- mented. It has been a problem for many years that there is no way of legislating for Ministers and their Departments to operate efficiently and sensibly.

It is interesting that in 1961, on the first of the Consumer Safety Bills, my right hon. and learned Friend the Member for Huntingdonshire (Sir D. Renton) said: In passing a Bill of this kind, Parliament must assume—and it is reasonable and proper to assume—that in administering the Bill, the Government will act sensibly and consistently. Parliament has, of course, the last word, because of Parliament's control over any regulations that may be made.—[Official Report, Standing Committee C, 8th March 1961; c. 118.] That remains as true as when it was said 17 years ago.

In view of the fears that have been expressed—I believe unjustified but understandable fears—I think that the affirmative procedure is basically the better way of controlling the subordinate legislation. I believe that as Back Benchers we should be able to carry out our role much more effectively if there were a great deal more affirmative as opposed to negative resolution procedure. I am happy to move the amendment, as I promised in Committee, to bring that about.

There is a problem, because the proposals in the Bill fall into two broad categories. One is basically the establishment of regulations prescribing safety standards. For that, I can see no reason why the affirmative procedure should not apply. The second type of proposal in the Bill is to deal with the very isolated case where somebody has transgressed, is selling something dangerous and does not—as is normally the case—willingly agree to remove the public's opportunity to purchase it.

In such a case there is undoubtedly a need for speedy action. We have already had examples. In that instance I see that the affirmative resolution procedure may well not be appropriate because of the need for urgent action. I stress that this is something which will not happen often. On that basis there is a second amendment aimed at confining the affirmative resolution procedure to the first of the proposals I mentioned, basically the safety regulations. I refer the Amendment No. 46 with which is coupled Amendment No. 47. I hope that the House will accept Amendments Nos. 46 and 47 and not Amendment No. 44.

Mr. Tim Smith

This group of amendments raises an important point of principle. The issues involved were not fully dealt with in Committee. I fully understand the point about the distinction between safety regulations on the one hand and prohibition orders on the other. The Government have conceded that in the case of safety regulations an affirmative resolution will be necessary before they can take effect.

However, we are told that in the case of prohibition orders such a procedure would not be practicable because of the need to introduce such orders urgently and at short notice. For example, during a recess there could be an inordinate delay such that dangerous goods continued to be available to the public. I am not a constitutional expert but I was under the impression that it was possible to have the affirmative resolution procedure and still to have the order taking effect before the House had considered it, so that a resolution would cease to take effect if the House decided not to give it its approval.

In saying that I have in mind the current Price Code order which, as I recall, took effect on 1st August 1977. We did not get round to discussing that until nearly three months after that. That did not mean that the order did not have effect. I am in a difficulty because I am not clear about the constitutional position. The point which those of us seeking a change in this respect wanted to make was that this Bill goes beyond current consumer safety legislation. If that is so, all of the orders and the regulations should be subject to the affirmative resolution procedure.

I welcome the change being proposed but am still in some difficulty about the prohibition orders because I would have thought that it was still possible to issue such an order and for it to be considered subsequently under the affirmative resolution procedure. If it did not meet with the approval of the House it could then be annulled. I may have misunderstood the constitutional position. No doubt the Minister will put me right.

Mr. John Fraser

The advice that I put forward is that we should accept Amendments Nos. 46 and 47. These amendments would make general regulations. Those are regulations which follow a long period of consultation, have general application and do not apply to a particular item or firm. They would have to be made by affirmative resolution. For 17 years they have been made by the negative resolution procedure without any difficulty. I sensed that it was the wish of the Committee and the House that the orders should be affirmative, and I bow to those wishes.

With regard to the prohibition orders, congratulations are due to the hon. Member for Tynemouth (Mr. Trotter) on making the options available to the House on this occasion through his amendment. The amendment would enable the affirmative procedure to apply to the prohibition order, and it would also deal with a situation where the House is not sitting. I think it was conceded that it would be quite wrong to have to delay the making of an order in respect of a very dangerous product for three months during the period of the Summer Recess. The amendment provides the option of the order being effective during the period when the House is not sitting. But I still advise the House not to accept Amendment No. 44, and I hope that it will not be pressed.

As presently drafted, the Bill states that 28 days' notice of intention to make a prohibition order must be given, to give an opportunity for the person or persons affected to make representations. There is a catch involved in accepting Amendment No. 44. It is that the notice of intention to make the order would no longer be necessary. That was associated with the negative procedure. We cannot have it both ways. Either we give 28 days' notice or we lay the order straight away and seek confirmation. The catch for the firms affected is that they may well prefer to have 28 days' notice of intention to make an order, and the chance to make their representations, which they could present speedily and directly to the Secretary of State. If we accept the affirmative procedure, there is a risk of delay and of having hybridity proceedings. But, worst of all, there is the risk of robbing people of the opportunity to have 28 days' notice before any order is made, to make their representations to the Secretary of State and to muster support in Parliament before the order is laid. I think that that would be preferable, on the whole, and that the reasonable compromise would be to have the affirmative procedure for general regulations, leaving the Bill as it stands in respect of prohibition orders.

Mr. Giles Shaw

I think that the whole House will be very grateful that the sponsor of the Bill and the Minister have agreed that the affirmative procedure should be the one mainly followed in the Bill. There can have been few occasions when a Government have willingly granted the affirmative procedure in regard to Statutory Instruments and orders made by Secretaries of State. We welcome the principle.

I take the Minister's point that the crucial factor, when a prohibition order or regulation is to be made, is that there should be a period within which there can be consultations with those who are to be penalised, whether in relation to fines levied against them or, more importantly, penalties against their trading, that is to say, the restraint of goods and loss of trade. That seems to me to be of vital concern.

My hon. Friend the Member for Ashfield (Mr. Smith) referred to the operation of the price code regulations. There appears to have been no real conflict in laying the order and making the change, and having that debated under the affirmative procedure as and when the House resumed, if the House happened to be in recess at the time. That is a precedent which has been observed, and it should not make it more difficult to operate the affirmative procedure in relation to the Bill, if and when it becomes an Act.

My hon. Friend the Member for Gloucestershire, South (Mr. Cope) was unable to be here but nevertheless his presence during our debate has been formidable. His reason for putting down Amendment (a) to Amendment No. 44 was purely to take account of the fact that there have been certain occasions in recent times when the other place has been sitting at different times from this House.

If the procedure requires, as it does, both Houses of Parliament or Parliament in the general sense to be involved in the procedures, we have to recognise that one half of Parliament sometimes operates at different times from the other. Hence the suggestion in Amendment (a) to delete "both Houses are" and to insert "either House is". It is a modest technical point, but it has some relevance if we expect both Houses to affirm the procedure.

3.15 p.m.

I turn to the more important consideration, which is that if we operate the affirmative procedure, the House will want to be able to consider the draft regulation or the proposals of the Secretary of State in good time. The 28-day rule is a sensible one. It is the kind of period which should allow most interested and affected parties to have their say with the Department. But one problem that we have is that these orders tend to come on fairly late, usually in the middle of the night, at relatively short notice and not always accompanied by all the facts available to the Minister laying the order. That is understandable, because the Department is in total control of the decision whether to lay a regulation or order. But hon. Members who have to scrutinise and approve the order have not the source of information which the Minister has.

I put it to the Minister and to my hon. Friend the Member for Tynemouth that, although we welcome the use of the affirmative procedure to give us greater parliamentary scrutiny of government by order, we require to have all the necessary information made available to us. In times past, frequently we have come up against an order being laid where all that we have had is a departmental brief drafted with the speed, skill and no doubt accuracy which has been absent from some parts of this Bill, but very little time to check whether these were terms and conditions acceptable to those affected by the order.

I do not think that we should applaud too greatly the decision of my hon. Friend and the Minister to allow the affirmative procedure. We have to ask whether it will operate in a manner which allows hon. Members to express their considered views having had all the information available to them and having had the opportunity to consult those affected by the order.

This is no reflection on the Minister, who has always been able to make available both himself and his Department to help us when we have been discussing an order of this kind. But it is one of our difficulties in proceeding by the affirmative method that frequently we find ourselves unable to make the considered judgments which are necessary.

Having explained why Amendment (a) has been tabled, and having said that this is a procedure which we welcome, I must say that I hope that regulations making use of this procedure will be issued sparingly. We recognise that consultation is of the essence and that if Parliament is to play its part to ensure that Ministerial power is not used to an excessive extent, the affirmative procedure is the best method available.

Mr. Trotter

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 46, in page 8, line 1, after 'containing', insert 'safety regulations or containing'.

No. 47, in page 8, line 4, at end add— '(7) No safety regulations shall be made unless a draft of the regulations has been laid before and approved by a resolution of each House of Parliament'.—[Mr. Trotter.]