HL Deb 28 June 1951 vol 172 cc449-63

4.6 p.m.

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(Lord Douglas of Barloch.)

On Question, Motion agreed to.

House in Committee accordingly:

[The EARL OF DROGHEDA in the Chair]

Clause 1 [Seizure of fireworks]:

LORD DOUGLAS OF BARLOCH

moved to omit all words in subsection (1) after "factory" (where that word first occurs) and the whole of subsection (2), and to insert: , magazine or store fireworks which he has reason for thinking may he dangerous when in the possession of the public, he may take a number of them as a sample and require the occupier of the factory, magazine or store to keep the remainder of such fireworks in the factory, magazine or store for a period of three weeks, or such shorter period as the inspector may specify, and to take such steps as the inspector may specify to secure that they are not moved or tampered with during that period. (2) If the Secretary of State is satisfied as a result of examination and testing that the fireworks removed by the inspector would be dangerous when in the possession of the public and is satisfied that the sample is a fair one, the Secretary of State may require the occupier to deliver at the factory, magazine or store the fireworks kept there in pursuance of the inspector's requirement to a person authorised by the Secretary of State to receive them; and the Secretary of State shall cause the fireworks so delivered to be destroyed or otherwise rendered harmless and disposed of as he directs. (3) Where the Secretary of State does not act under subsection (2) of this section, he shall return to the occupier any fireworks forming part of the sample unless their value after examination and testing is so small that it appears to him unreasonable so to do.

The noble Lord said: This and the following Amendments standing in my name in the Marshalled List are intended to meet some criticisms which were made upon the Second Reading of the Bill. I should like to explain the effect of all the Amendments together, as I feel that this would be the most convenient course. The noble and learned Viscount, Lord Simon, and the noble Lord, Lord Teynham, pointed out on the Second Reading that this clause was drawn in extremely stringent terms. I indicated then that I thought there was considerable substance in the observations which they made. These Amendments are put down for the purpose of improving Clause 1, so as to achieve the main object which it was intended to secure—namely, that there should be power for an inspector of explosives to seize fireworks in order to prevent them from getting into circulation and doing damage to innocent persons, but at the same time to protect manufacturers of fireworks from the followed sequences which might have followed under the clause as originally drafted.

Your Lordships will remember that Clause 1 as it stands provides that fireworks which are seized by an inspector of explosives because they would, in his opinion, be dangerous when in the possession of the public, are to be destroyed or otherwise rendered harmless, and are to be forfeited to the Crown. These Amendments provide that fireworks may be seized by the inspector, and that he may cause them to be detained. After that, he has to take samples of the fireworks, which are to be examined; and if upon such inspection they are found to be dangerous, then the Home Secretary may cause the fireworks to be destroyed, rendered innocuous, or otherwise dealt with. The clause as it stands provides no remedy for the manufacturer if, in fact, the seizure and destruction of the fireworks prove unjustified. There is a provision in subsection (6) which was intended for the protection of the inspector, but which, conversely, had the effect of depriving the owner of a factory of any remedy for an unjustifiable procedure. That subsection will disappear, and if the owner is aggrieved he will have his normal right, if he can prove that the seizure is unjustified, of taking proceedings against the Crown. I have had the pleasure of discussing these Amendments with Lord Simon and Lord Llewellin, and I am obliged to them for the assistance which they have given. We are all agreed upon the principle of the Bill. Our object is to make it as just and as workable as possible, and I hope that your Lordships will accept the Amendments. I beg to move.

Amendment moved— Page I, line 7, leave out from in "factory") to end of line 16, on page 2, and insert the said new words."—(Lord Douglas of Bar-loch.)

VISCOUNT SIMON

The Committee will be grateful to the noble Lord for explaining the terms of the substantial Amendment on the Paper which he has just moved. As he has frankly recognised, that Amendment has been moved because he feels that Clause 1 of the Bill as it stood on Second Reading contained provisions which were unduly severe and peremptory. It was on that ground that my noble friend Lord Teynham and I called special attention to subsection (6) of the clause. I notice that, consequential upon the Amendment which the noble Lord is now moving, subsection (6) will disappear. If I may be permitted to say so, I think the noble Lord has shown a wise discretion in that matter. I do not think it would have been difficult to persuade the Committee that subsection (6) should not stand, which is what we said on Second Reading. If subsection (6) remained in this clause, the result would be that, even though the inspector made a mistake, even though he seized something which was not in a store or magazine—perhaps he had confused the Co-operative Stores with a store, when in fact it is only a shop—and which he had no legal right whatever to seize and destroy, none the less the party who suffered would be deprived of all possible remedy for compensation. Therefore we ventured to point out that it was not right in such circumstances to say that the man who had suffered the loss could recover nothing. Recently, thanks to the activity of the present Lord Chancellor, we have passed the Crown Proceedings Act, and when a man suffers from wrongful destruction of his goods, even though his goods be destroyed by an inspector of the Home Office, he not only has his remedy against the inspector but, what is much more to the point, has his remedy against the Crown who, in such circumstances, would have to pay.

I believe that the noble Lord's Amendment is an immense improvement, and I think I speak for my noble friends beside me when I say that we shall be prepared to accept it. It makes a very different and much more reasonable provision. In the first place, it does not authorise an inspector to seize and destroy goods which he thinks are dangerous and then snap his fingers at the consequences. It takes a much more reasonable course. It says that if the inspector enters a factory, magazine or store, and finds fireworks there which he has reason to think may be dangerous in the possession of the public—and it is usually the juvenile public he is not to destroy them out of hand, but he is to take a sample, just as though he were a food inspector taking a sample of food which was alleged to be dangerous. This sample has then to be considered by the authorities. I remember enough of the Home Office to know that the Secretary of State is extremely well equipped with people who know how to form a just opinion on matters of this sort. If the Secretary of State, with the sample before him, is satisfied, as a result of examination and testing, that the sample would be dangerous in the possession of the public, then the fireworks may be destroyed. On the other hand, of course, if it turns out that a mistake has been made, the fireworks will be returned and no harm will be done to anyone.

While subsection (3) of the noble Lord's Amendment, quite properly, includes a duty to return to the occupier any fireworks forming part of the sample if it is found that they ought not to be destroyed, it does not insist upon that course if the sample is so minute or the articles are so trifling that it would be unreasonable to expect the squib or cracker or catherine-wheel to be returned with, due solemnity, and, I presume, a receipt demanded by the Home Office from the man whose apparatus has for the time being been detained. All that seems very reasonable, and I think your Lordships be perfectly willing to put your confidence in the Home Office—which takes the greatest care to do what is right in these things—not because you are willing to give authority to an inspector to go in and destroy things wholesale because he thinks it is right, but because he has taken a sample and properly analysed it—I suppose the doubtful squib has been held at a certain distance to see what would happen. Nobody is hurt, except that perhaps the Secretary of State's hair may have been singed. When it is all over, the result is one which is perfectly reasonable and satisfactory. To my mind, the object of the Bill is an excellent one. None of us wants to see Guy Fawkes Day celebrations result in a lot of children in hospital with fingers blown off. But the Bill in its original form was going too far, and I venture respectfully to thank the noble Lord for having framed an Amendment which, to my mind. is perfectly reasonable. In the circumstances, I need not move my Amendment for the omission of subsection (6), because the noble Lord, Lord Douglas, has down an Amendment to the same effect.

LORD SHEPHERD

Perhaps I may be permitted to say one or two words on behalf of His Majesty's Government. The point has not been mentioned this afternoon, but the Government are keenly interested in this measure, notwithstanding the fact that it is a Private Member's Bill. Although the debate in the main has been between the Benches on either side of the House, the Government have not been without sympathy for the points which have been put forward. Therefore, I am very pleased indeed to say that the Government lock upon these Amendments to the Bill as a great improvement on the original measure and agree with them.

On Question, Amendment agreed to.

Amendment moved— Page 2, line 17, leave out ("of an inspector") and insert ("made").—(Lord Douglas of Barloch.)

On Question, Amendment agreed to. Amendment moved— Page 2, line 18, leave out from ("section") to ("he") n line 20.—(10n1 Douglas of Barloch.)

On Question, Amendment agreed to.

VISCOUNT SIMON

I am not sure whether I have to move the next Amend-mend or not. In accordance with the suggestion of the noble Lord, we have amended the Bill down to line 20, but he does not require subsection (6), which begins at line 22.

LORD DOUGLAS OF BARLOCH

No, but the noble and learned Viscount's Amendment has priority over mine in the Marshalled List.

VISCOUNT SIMON

If my noble friend would like to move the Amendment himself, nobody would be better pleased than I. In the circumstances, however, I beg to move.

Amendment moved— Page 2, line 22, leave out subsection (6).—(Viscount Viscount Simon.)

On Question, Amendment agreed to.

Clause 1, as amended, agreed to.

Clause 2:

Determination or amendment of licences for factory where dangerous fireworks made

2.—(1) If the Secretary of State is of opinion that in any factory there are being manufactured fireworks which would he dangerous when in the possession of the public, he may serve a notice on the occupier of the factory—

Provided that the Secretary of State shall at least fourteen days before serving the notice give to the occupier a statement of the grounds on which his opinion is based and shall afford to the occupier a reasonable opportunity of making representations as to the accuracy of the statement.

4.18 p.m.

LORD LLEWELLIN moved, in subsection (1), immediately before the proviso to insert: stating the grounds on which his opinion is, based. If within fourteen days of the receipt of the notice the occupier has not discontinued the said manufacture, the Secretary of State may serve upon him a notice—

The noble Lord said: The Amendments to Clause 2 are really designed to put the clause in its proper order. If your Lordships will look at the clause you will find that action taken under the first part, down to the end of paragraph (b), will be subsequent in time to action taken under the proviso. I am given to understand that this proviso was inserted at a certain stage in another place, and my Amendments are designed to put it in its proper sequence in time. After all, one of the justifications for a second House is to see that a Bill is put into tidy form before it reaches the Statute Book. The words of my Amendment may not be quite correct, and if they are not perhaps the noble Lord will provide the appropriate words. I believe it will be the wish of the whole House that the alteration shall be made, so that the actions which have to be taken are put in their right order in the Bill. I was glad to hear what fell from the noble Lord, Lord Shepherd. One is always delighted, when there has been a kind of anonymous parentage of a child, to see the real parent come and claim responsibility: I suppose that everyone knows that this, in its origin, is a Government measure—and it is right that it should be so, to deal with such a problem. And yet the Bill was introduced again quite properly—by a private Member. At any rate, we welcome the real father's appearance in the House for the first time in connection with this Bill. I thought he was looking a little anxious when I started to move my Amendment, but I assure him that no damage is intended to his child. I beg to move.

Amendment moved— Page 2, line 33, at end insert the said words. —(Lord Llewellin.)

LORD DOUGLAS OF BARLOCH

The noble Lord is quite correct in saying that this clause (and a similar point arises on Clause 4, to which he has put down an Amendment) is in its present form owing to an Amendment which was made in another place. It is, as the noble Lord has said, a question of putting events in proper sequence. I would, however, ask the noble Lord to withdraw his Amendment, because in it he has inadvertently narrowed the ground upon which the occupier of the factory can make a representation to the Home Secretary to a single point. There may well be other grounds on which he could make representation to the Home Secretary which might influence the Home Secre- tary's course of action. Therefore, it would be fairer to the owner of the factory if the substance of the clause remained as it now is. If the noble Lord will agree to that suggestion, I will undertake between now and Report stage to put down an Amendment which will effect the purpose he has in view and will preserve the subsection, but which will clarify it and make it easier to understand.

LORD LLEWELLIN

I am quite happy to accept what the noble Lord has said. I think he and I are at one in thinking that this clause should be drafted so that it presents in the right order events which will take place. I presume that the experts that the Home Office have put at the noble Lord's disposal for drafting will devise the correct form of words, and I am content to ask leave to withdraw my Amendment now, on the undertaking given by the noble Lord that he will put down something on Report stage.

LORD SHEPHERD

There is just one point that should be mentioned in this connection. Under the Amendment proposed by the noble Lord, a certain power of the Secretary of State would be voided and he is very anxious that his powers should not be lessened. The point is that if, within fourteen days, a manufacturer of dangerous fireworks makes the necessary changes, then, apparently, the Secretary of State is not in a position to withdraw the licence. It might be, if an offence were a first offence, that no great harm would have been done; but if a manufacturer repeatedly made dangerous fireworks, then there might be an occasion when, notwithstanding the fact that the matter then under review would be cleared within fourteen days, the Secretary of State would want to take disciplinary action. If, therefore, the noble Lord will withdraw his Amendment, the matter will be raised in the re-drafting, followed, if need be, by consultation.

LORD LLEWELLIN

I do not seek to alter the position as stated by the noble Lord, Lord Shepherd, and I am quite agreeable that the point should still be included. I recognise that it may need to be included in the new draft which Lord Douglas had promised to bring in on Report stage, and on that understanding I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 2 agreed to.

Clause 3 agreed to.

Clause 4:

Determination or amendment of licences for factory where there is negligent manufacture

4.—(l) If the Secretary of State is of opinion that in any factory the manufacture or storing of fireworks is being carried on in such a way as to cause danger to persons in or about the factory from explosion or fire, he may, subject to the provisions of this section, serve on the occupier of the factory any such notice as he might serve under section two of this Act if he were then of the opinion that there were being manufactured in the factory fireworks which would be dangerous when in the possession of the public, and the like consequences shall ensue as would ensue upon service of the like notice under that section:

Provided that the Secretary of State shall, at least fourteen days before serving the notice, give to the occupier a statement of the grounds on which his opinion is based and shall afford to the occupier a reasonable opportunity of making representations as to the accuracy of the statement.

LORD LLEWELLIN moved, in subsection (1) to omit all words from "may" down to "any," and to insert: give to the occupier a statement of the grounds on which his opinion is based and shall afford to the occupier a reasonable opportunity of making representations as to the accuracy of the statement or of discontinuing the dangerous practice as the case may be. If the occupier does not convince the Secretary of State by his representations and does not discontinue the dangerous practice, then the Secretary of State may serve on him.

The noble Lord said: This is a very similar point. As your Lordships will see, Clause 4 contains a similar proviso which also, in the operation of this Bill when it becomes law, has to take place in advance of what precedes it in the clause. I do not know whether I have been more successful with my draftsmanship in this Amendment than in the previous one—I shall not be offended if I am told I am not—but I believe that this time I have included everything necessary, though not, perhaps, in the very best possible words. The point, however, is the same, and I beg to move.

Amendment moved— Page 3, line 43, leave out from ("may") to ("any") in line 44 and insert the said new words.—(Lord Llewellin.)

LORD DOUGLAS OF BARLOCH

I think the noble Lord is right in saying that this Amendment is in a not very different category from the previous Amendment; but I am not absolutely certain at the moment whether, in fact, his Amendment has narrowed the point or not. In any case, if I may respectfully suggest it, as the previous clause is to be re-drafted, with the assistance of those who are expert on these matters, and this one follows on similar lines, it might be more convenient if the noble Lord would withdraw his Amendment to-day. I will then undertake to put down an Amendment on Report stage which will effect the purpose he has in view.

LORD LLEWELLIN

I am prepared to accept that suggestion. As I have said, I think this Amendment is a little better drafted than the previous Amendment, and that I have included everything this time; but it might be put in more apt words—and, after all, since the country employs gentlemen who are expert to draft these things we might as well take advantage of their skill. I am quite prepared, in the circumstances, to ask leave to withdraw this Amendment.

Amendment, by leave, withdrawn.

Clause 4 agreed to.

Clause 5:

Marking of fireworks

(6) A person against whom proceedings are, brought under this section a shall, upon information duly laid by him and on giving to the prosecution not less than three clear days" notice of his intention, be entitled to have any person, to whose act or default he alleges that the contravention of the provisions in question was due, brought before the court in the proceedings, and, if after the contravention has been proved the original defendant proves that the contravention was due to the act or default of that other person, that other person may be convicted of the offence, and, if the original defendant further proves that he has used all due diligence to secure that the provisions in question were complied with, he shall be acquitted of the offence.

LORD LLEWELLIN

This is a very simple Amendment which will not require many words of explanation from me. Subsection (4) of Clause 5 reads: If the foregoing provisions of this section are contravened in respect of any fireworks, the occupier of the factor shall on summary conviction he liable to a penalty not exceeding

  1. (a) ten pounds; or
  2. (b) an amount equal to twenty shillings for every pound of fireworks…."
I am told that in paragraph (b) "every pound" means pound weight, but in the line before we have the reference to "ten pounds," which, quite clearly, means £10 in value. I think we should make it clear in the succeeding line that we mean pounds weight and not pounds value. I suggest putting in the word "weight" in the second instance. My drafting in this Amendment has been very short and simple, and will, perhaps, be acceptable to the noble Lord. I beg to move.

Amendment moved— Page 5, line 8, after ("pound") insert ("weight").—(Lord Llewellin.)

LORD DOUGLAS OF BARLOCH

The noble Lord's Amendment is certainly extremely short and clear. I have great pleasure in accepting it.

On Question, Amendment agreed to.

4.33 p.m.

VISCOUNT SIMON moved to omit subsection (6). The noble and learned Viscount said: My noble friend Lord Teynham and I have no intention of pressing this Amendment, but I feel that it is right briefly to move it, so that the noble Lord, Lord Shepherd, can (as I think he will) give an assurance which I think would be proper in connection with it. Clause 5 is a remarkable clause. It requires that each firework bears conspicuously the name of the occupier of the factory and the address of the factory. It is a time long ago, but the sort of fireworks I used to acquire were not usually of a size which would make that a very easy condition to fulfil. I recognise that there is an exception in the Schedule in respect of three forms of fireworks more familiar to the youth of to-day than to myself—namely, "sparklers," "jumping crackers" and "throw-downs." With those exceptions, every firework has to be conspicuously marked with the name of the occupier of the factory and the address of the factory. I suppose the idea is that, after an accident has happened, the expert examines whatever may happen to be left as a result of the explosion, and, with good fortune, he may still be able to find out from where the firework came. That seems to be quite right.

As my noble friend Lord Teynham and I ventured to point out on Second Reading, subsection (6) contains what is certainly a very unusual procedure. It is a procedure by which, if the accused is charged with having consigned from a factory fireworks which are not thus marked, he may none the less say: "Well, it really is not my fault. I will lay an information against somebody else" —I suppose it would probably be one of his staff, or somebody else concerned within the department—"He is the man who ought to be pursued. I told him that he ought to mark them and he has failed to mark them, whether negligently or maliciously, and therefore the right man to hit is not me but him." That is a form of procedure which I am sure the Lord Chancellor will agree is not very usual in this country, although there are precedents for it. In fact, the one which I regard as quite overwhelming was brought to my attention by the noble Lord himself in conversation, because it appears that, when I was Home Secretary and responsible for the last Factories Act, I had a clause in these same terms in reference to the occupiers of factories in certain matters, so I am not denying that it is a procedure which may be proper. It is just unusual, and it has its disadvantages.

It has the disadvantage that the occupier of the factory, though he has given every explanation and shown exactly how it happened, may nevertheless be hauled up before the magistrates, and then this elaborate procedure would be gone through. If he has a good answer, and somebody else is, in fact, responsible, one would think it right that the occupier should not be prosecuted at all. I can see that there may be cases in which this is a proper provision to make, but I feel that they will not be numerous. I should like to be assured by the noble Lord, Lord Shepherd, as I think I shall be, that the Home Secretary or those concerned will prosecute only where they are satisfied that the right man is in front of them, and, that in cases where they investigate the matter and find that somebody else is to blame, we shall not have this elaborate procedure gone through. That is the practice under the Food and Drugs Act; I do not know whether it applies under the Factories Act, but there may be such a provision. Otherwise, we are going round in circles to get the man who is responsible. I am not challenging the inclusion of this provision in the Bill. If the noble Lord, Lord Shepherd, can tell me that that is the way it is to be worked, I am quite content, and I shall withdraw my Amendment.

Amendment moved— Page 5. line 27, leave out subsection (6).—(Viscount Simon.)

LORD DOUGLAS OF BARLOCH

If the noble Lord, Lord Shepherd, will permit me, I should like to say a word or two about this point. As the noble and learned Viscount, Lord Simon, has said in moving the Amendment, it is true that this is an unusual procedure. The reason for it, clearly, is this: that fireworks are manufactured in what is technically an explosives factory, which is subject to certain rules and regulations, and in a case like this the primary responsibility naturally lies upon the occupier of the factory. The clause as it is drafted imposes a liability upon him if he fails to conduct his factory properly. But, if this particular subsection were not here, then, of course, the owner of the factory, if there were a contravention of this provision, however innocent he was, and whatever steps he had taken to prevent it, could not exonerate himself at all. He would be left without any defence and would be convicted in circumstances which I think we should all agree would be rather unjust.

For example, it is just possible that some malicious person who had nothing to do with the factory might get into it (I agree that this is an improbable case, but it is not impossible) and cause a contravention. There, obviously, it would be wrong that the owner of the factory should be convicted. I think that is the reason why this procedure is brought in. As the noble and learned Viscount said, there are precedents for it, although it is relatively unusual. There is not only the case to which he referred, the Factories Act of 1937, but there are earlier examples of similar legislation. For example, there is the Truck Act of 1887, where a provision is introduced, I think for similar reasons, in very much the same terms. A similar provision appears in the Shops Act of 1912. The example which perhaps is most analogous to this particular case is the Merchandise Marks Act, which relates to the marking of goods also; but there it is for another purpose. There again, there is provision for certain penalties upon the person who is assumed to be primarily responsible for conducting a business, but he is given the opportunity of invoking this particular kind of procedure. The precedents are, therefore, respectable; they extend over a consideraable period of time until recent days, and I have not found that in practice there has been any difficulty about working them.

In addition I may point out that the Food and Drugs Act contains a provision which in some ways is analagous to, though not identical with, this. I think the noble and learned Viscount was referring to the section dealing with what is called warranty. But the procedure there is not the same as under this Bill. I think that under the Food and Drugs Act there have on occasion been some difficulties, but the best information I can obtain is that the sections which provide in the terms now before us have not occasioned difficulty and have worked with smoothness. Therefore, after that explanation I hope that the noble and learned Viscount will be content to withdraw this Amendment.

LORD SHEPHERD

I find myself in a slight difficulty because the brief with which I have been furnished says nothing about this Amendment. But I have a memory of the conversations concerned with this Bill prior to the most recent interview between the two sides. My recollection is that it would be undesirable that the occupier of the premises should be by-passed, because, in fact, he is the responsible person. Another recollection of mine is that he could not pass on his responsibility, even in the courts, unless he were able to prove that the precautions he had taken, and the instructions which he had given, really did transfer the responsibility to his agent. However, I will have the point raised, and if I get a little note about it I will draw the noble and learned Viscount's attention to it for discussion.

LORD LLEWELLIN

Before we pass from the Amendment may I say this? Of course it ought to be the duty of any department which has to conduct a prosecution, to try to find the guilty party. If in a case like this, the occupier has obviously taken all proper precautions, and it is because somebody else has not obeyed them that these fireworks have gone out unmarked, the occupier having been quite frank with the inspector about it, surely he is not the right person to prosecute; it should be the person who is really responsible. I am surprised that the noble Lord, Lord Shepherd, cannot say that to-day, but perhaps he will be able to say it on Report stage. I would point out to the Home Office officials concerned that there is an extremely good and effective remedy in the hands of the court. Under subsection (7) (b) of this clause they can award costs in any way they think fit. If, in the view of the court, somebody who is clearly innocent from the start is unnecessarily brought before the court, then it would be a very proper case for the court to award costs against the prosecution. Therefore it is also to the advantage of the prosecution to see that only the right person is prosecuted, in order to save costs. I appreciate that there may be cases where both people could properly be brought before the court, but if it is quite clear from the start who is the really guilty person, then I should have thought the Home Office would say "We are going to prosecute the really guilty person, having had all the help from the other person." In many cases it would be to their disadvantage in costs to do otherwise.

VISCOUNT SIMON

I think the matter can well be left there. I am grateful to the noble Lord, Lord Douglas, for his patient and clear explanation, which I entirely accept; and I thank the noble Lord on the Front Bench for saying that he will have the matter looked into. If it is looked into in the spirit in which Lord Llewellin has just spoken, I have no doubt that a suitable assurance can be given. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 5, as amended, agreed to.

Remaining clauses agreed to.

Schedule agreed to.

House resumed.