HL Deb 15 December 1960 vol 227 cc672-85

Committee stage resumed.

LORD SILKIN

On behalf of my noble friend Lord Burden, I beg to move the next Amendment in his name, which is linked with the following three Amendments. The short purpose of these Amendments is that where it is sought to take away from an existing weights and measures authority the powers under Clause 35 (3) of this Bill, then they should have the right to make representations under Clause 55, which we are now considering. It seems to me eminently reasonable that a local authority such as, for instance, Winchester, which we discussed the other day, should have the right to put forward this argument if the Board of Trade decided to take away their functions. I beg to move.

Amendment moved— Page 45, line 9, at end insert ("() subsection (3) of section thirty-five;").—(Lord Silkin.)

7.20 p.m.

LORD ST. OSWALD

The first effect of these three Amendments is to kill the timetable which has been set, as described by the noble Lord, so leaving the whole timing established by this Bill unsettled. The second effect would be that any authorities which lose the function will not do so automatically under the Bill, but only as a result of an order made by the Board of Trade—presumably a separate order for each case. If the council of a non-county borough with a population below 60,000 decides not to appeal to the Board to be allowed to continue to exercise the function, it will automatically lose the function on March 31, 1963.

The Amendment is designed to enable the process of reducing the number of smaller weights and measures authorities to be spread over a longer and, indeed, indeterminate period. From that, we assume that there is no doubt as to the ability of the Board of Trade to consider individual cases put up by non-county boroughs and urban districts with a population below 60,000 to consult the county councils concerned and to reach a decision by March 31, 1964. The reason is no doubt that the noble Lord thinks that there would be advantage in letting decisions be deferred, at any rate until the first round of recommendations are received as a result of the work of the Local Government Commission and of the county reviews. The Government recognize the force of this, and a non-county borough with a population of considerably less than 60,000, who are already exercising the function, may not be enabled by the Board of Trade order under subsection (5) to retain it. Yet a few years later its population may be increased to 60,000 or more by an order made by the Minister of Housing and Local Government, following a report of the Local Government Commission or a county review, and the authority, as a result, will have the right to regain the function at five-yearly intervals thereafter. Thus, a long-established authority could lose the function for a few years, only to regain it later as a result of a boundary change.

This is, however, a field in which perfect solutions acceptable to all the interests concerned are hardly practicable. The Hodgson Committee recommended, in effect that only counties and county boroughs should be weights and measures authorities, and they even advocated that the smaller among these authorities should combine for all weights and measures purposes. There is a great deal to be said for this course, in the interest of both economic and efficient administration. It is not a question of the smaller authorities being inefficient, but that, particularly as trade is conducted more and more on a national or regional basis, the enforcement by bigger units becomes more efficient. Traders and manufacturers operating over wide areas have fewer authorities to deal with, and the establishment of local offices by the local authorities ensure that the enforcement is not remote from the consumer. It is also to the interest of business and consumer alike that the standard of enforcement should be uniform over wide areas.

Nevertheless, as the noble Lord has seen, the Government have not accepted the Committee's view, and the Bill provides for a large number of non-county boroughs and urban districts to exercise the function if they so wish. By no means all authorities entitled to the function in the past have exercised it. They have combined with other authorities or ceded the function to the county. There are, however, some non-county boroughs which are attached to its exercise, and the Bill therefore enables any non-county borough or urban district with a population of 60,000 to be a weights and measures authority if it wishes. The Bill even goes further by enabling the Board to make orders by which non-county boroughs and urban districts with a population below that figure may, in special circumstances, be enabled to act as a weights and measures authority. So, in both these respects, the Bill constitutes a considerable watering-down of the Hodgson Committee's recommendations. The Government consider that this is a justified compromise between the arguments for the county and county borough only, on the one hand, and the need to keep a lively civic organization in the smaller units of local government.

LORD SILKIN

I cannot help thinking that, owing to the lateness of the hour and the long time the noble Lord has been sitting on the Bench, he has misconceived the point here and is reading the wrong brief. This is a very simple point. I am not arguing whether any particular weights and measures authorities should or should not remain. I am not arguing the case of the county boroughs or the non-county boroughs. All I am saying is that, before the President of the Board of Trade makes an order depriving a weights and measures authority of these powers, that authority should have the right to make representations in accordance with the particular section with which we are dealing. That seems to me so reasonable that I should have thought, subject to the drafting of the Amendment in the name of my noble friend—which I had not come prepared to deal with, but as he is not here I think his opinion ought to be put—the Government would at once accept it. Surely they will not deprive a local authority of its powers without giving it a right to make representations. That is all this series of Amendments really asks for. I am not saying that they should not deprive anybody. I hope that the noble Lord will examine this and see that no authority is deprived of its powers unless it has had the opportunity of making recommendations.

LORD ST. OSWALD

The series of Amendments which the noble Lord has just moved on behalf of his noble friend are consequential on an Amendment which he withdrew on Tuesday at page 34. Therefore, since the noble Lord again moved these consequential Amendments, I was obliged, reluctantly, to repeat the same arguments which persuaded his noble friend to withdraw them yesterday.

LORD SILKIN

I do not think so. I do not think they are consequential. I think this is a new point, an entirely new thing—that if you deprive a local authority of its powers it should be able to make representations.

LORD ST. OSWALD

May I make a point? No formal requirement of consultation is needed in respect of local authorities who may lose the weights and measures function. They have the right of appeal to the Board of Trade if they wish to keep that function. It is in this form of consultation that the local authorities can lay before the Board all the arguments they wish to deploy in favour of their retaining the function. Does that answer the noble Lord's question?

LORD SILKIN

That comes much nearer to the point we are discussing. If the noble Lord is saying that they already have the right to make recommendations in some form, which I presume is acceptable—I will have another look at that—then, of course, there is no need to specify it still further. In the circumstances, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 55 agreed to.

Clauses 56 to 58 agreed to.

Clause 59 [Interpretation]:

7.30 p.m.

LORD JESSEL moved, in the definition of "pre-packed", after "proved" to insert: which may be done by a statement marked or printed on the container to the effect that the article is not for retail sale".

The noble Lord said: In various industries goods sold by the ton, or multiples of a ton, are made up, for the convenience of handling, into containers—for example, 1 cwt. bags or 5 gallon drums; but it is not intended that the individual package or container should be sold by retail singly. The purpose of this Amendment is to make it clear that in such cases the manufacturer or trader may elect to treat such a consignment as a bulk sale provided that he gives due notice on the container that the package is not for sale retail singly. I beg to move.

Amendment moved— Page 48, line 12, after ("proved") insert the said words.—(Lord Jessel.)

THE EARL OF DUNDEE

We have now reached the definition clause, and one of the definitions in that clause is of the, word "pre-packed", which is stated to mean made up in advance ready for retail sale in or on a container". The Bill makes it an offence to have in possession for sale unmarked containers of many categories of pre-packed goods, and the definition goes on to provide that any article made up in a container which is found on any premises where such articles are made up or stored for sale shall be deemed to be pre-packed unless the contrary is proved. My noble friend's Amendment seeks to establish that, in order to prove the contrary, it shall be sufficient that the container is marked with a statement that the article is not for retail sale; in other words that the bare statement on the article shall be accepted as proof. As the Bill is drafted it places on the packer who claims that certain packs are not pre-packed, within the meaning of the Bill, the onus of proof that this is in fact the case. And, of course, a statement on the package that it was not for retail sale would be prima facie evidence of this fact. But to provide that prima facie evidence is the same thing as indisputable proof would, I think, tear a hole in the protection which this Bill is intended to afford to the consumer of pre-packed goods, and I am afraid that the Government could not see their way to accept an Amendment of that kind.

LORD STONHAM

Might I ask the noble Lord a question on this point? The definition of "pre-packed" is not entirely clear to me. In dealing with his noble friend's Amendment he has not clarified the position. Does it mean that "pre-packed" could possibly cover the containers only? From what he said I thought that would be possible. But in, my view "pre-packed" can mean only that the outer covering or container has something inside it. Surely it would not be an offence for the manufacturers of all sorts of containers to have them stored empty in a warehouse waiting to be sent to the people who are going to put goods into them?

THE EARL OF DUNDEE

An empty container could not possibly be pre-packed. The definition of "pre-packed" in Clause 59 is at page 48, lines 7 to 15. What the Bill does is to place on the person in whose possession the goods are the onus of proving that (they are not pre-packed. As has often been explained on earlier occasions, we have felt this was the only way in Which we could give adequate protection to the consumer. The onus on the possessor is to show that the goods are not prepacked within the meaning of the Act. All this Amendment does is to propose that a statement written on the container that it is not for retail sale shall be sufficient evidence that it is not for retail sale; and that is what we can not accept.

LORD STONHAM

If a container has nothing in it that presumably would be reasonable evidence that it was not pre-packed.

THE EARL OF DUNDEE

This sounds to me like a question out of Alice in Wonderland. I see no difficulty in agreeing to the fact that a container which contains nothing is not packed with anything.

VISCOUNT ALEXANDER OF HILLSBOROUGH

I should like to be quite clear. I am naturally very Interested in this sort of thing. The definition at page 48, lines 7 to 15, is, I think, fairly clear. It is concerned with the pre-packing of stuff ready for retail sale. But is it sufficient simply to put on the outside of a package which contains, say, two dozen (or whatever the quantity is) that it is for sale wholesale, to escape any inspection to discover whether the weight proposed to be sold to a retail customer by a retailer is the right weight? I am not quite clear what the noble Lord, Lord Jessel, is after. If he could explain a little more I might be in sympathy, but prima facie it seems to me that the Government are right here.

LORD JESSEL

I do not want anybody to get into trouble because one pack is underweight. It is the whole bulk total which is to be the prescribed weight.

VISCOUNT ALEXANDER OF HILLSBOROUGH

The container which is only for wholesale sale is the one on which you want to put the special marking? Could you name a commodity pre-packed ready for the retailer to sell which would have reference to one pack? I do not follow it. If you are going to have a cardboard container which has two dozen pots or cans or packages already made up, surely if they are being sold to a retailer to sell again each one should be the correct weight, should it not?

LORD JESSEL

They are not being sold to a retailer.

VISCOUNT ALEXANDER OF HILLSBOROUGH

What are they doing pre-packed?

THE EARL OF DUNDEE

Perhaps I could help. Pre-packed goods are exempted if it is proved that they are not for retail sale. My noble friend's Amendment accepts the fact that they should be inspected if they are not for retail sale. The Amendment proposes that the fact that they are marked not for retail sale should he sufficient evidence that they are not for retail sale: and that is what the Government cannot accept.

LORD SILKIN

There is very little difference between the two noble Lords, if I may help to reconcile them. It is that in the one case the Amendment wants this statement to be conclusive evidence, whereas the Government are saying that that can be put forward as evidence if there is a prosecution but that it is not conclusive. Is not that the only difference?

THE EARL OF DUNDEE

Exactly.

LORD LATHAM

It is a question of where the onus of proof lies.

LORD JESSEL

I am a little disappointed, because I was led to believe that this Amendment was acceptable. But in view of what the noble Earl has said I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn

LORD JESSEL

Although one cannot expect interpretations for all the words and phrases used in this Bill, there appear to be a number of occasions where an interpretation would assist your Lordships and the general public in understanding this difficult and complex piece of legislation. A meaning of "retail sale" which will not be open to argument seems to be necessary, and it appears essential in the public interest that the words should be defined in the Bill itself and not left to be settled in the course of a series of court proceedings. I beg to move.

Amendment moved— Page 48, line 17, at end insert ("'retail sale' means a sale by way of trade to a person buying otherwise than for the purpose of resale or otherwise than for use or consumption in any trade or business;").—(Lord Jessel.)

THE EARL OF DUNDEE

The phrase "retail sale" is at present used in the Bill only in one place, namely in the definition of "pre-packed" which we have just been talking about, and in that context the words do not occur in isolation but are part of a longer phrase which runs "made up in advance ready for retail sale". The Bill as drafted does not define the term "retail sale", and my noble friend's Amendment proposes to insert a definition of it in the interpretation clause. Possibly the object of my noble friend in moving this Amendment may be the same which led him to move the preceding one, which seeks to vary the definition of what is pre-packed—that is to say, that a packer should be free of all inquiry by a local inspector whenever he is packing goods which he intends for sale for ultimate consumption in a trade or business.

The essential question underlying the definition of "pre-packed" and the present Amendment is the position of the factory packer. Certain goods are, when pre-packed, required by the Schedule to be marked with their quantity, or in a few cases to be made up in specified quantities, as soon as they are held in possession for sale. The packer who is making up those particular goods in containers wants to know at the packing stage whether they must conform to these requirements. The answer given by the definition of "pre-packed" is that it depends on whether the goods are being made up in advance ready for retail sale. In ordinary language, the question is whether the packer is making up what would ordinarily be known as a retail pack. If, the definition of pre-packed says, in effect, it looks like a retail pack, then it shall be assumed to be so unless the contrary is proved. In most cases the facts will be self-evident, one way or the other. The only difficulty which appears to arise is that of the packer who, first, has a substantial business in selling to processors and builders, as well as in supplying the retail market; who, secondly, also wishes to use the same pack for both markets, and who, thirdly, wishes to avoid a marking or other requirement of the Schedules when selling to what might be called the non-retail side of his business.

In order to deal with the special and limited problem which can relate only to one or two of the pre-packed goods covered by the Schedule, the Amendment introduces at the packing stage the question of exactly how the goods are going to be used some weeks or months later. The average packer cannot know this. Nor can the inspector. Nor could a court. In fact, if this Amendment were accepted without the previous one, which my noble friend has not pressed, it would mean that the definition of pre-packed would become nonsensical, because goods would only be pre-packed if they were going to be consumed by the man in the street, but this would be assumed in all cases unless the contrary was proved. I am afraid that the Government must, therefore, resist this Amendment, like the last, because it would produce a general weakening of consumer protection over the whole field in order to solve the problem of one or two particular trades which can be properly considered only in the context of those particular cases as they arise in the Schedule.

LORD JESSEL

I am afraid I shall have to read that reply in order properly to understand it. In the meantime, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

7.43 p.m.

VISCOUNT STONEHAVEN had given notice of his intention in subsection (1) to insert the following definition: 'volume', in relation to wood fuel, may include the overall cubic measurement of a regularly piled stack of such fuel".

THE DEPUTY CHAIRMAN OF COMMITTEES (LORD AILWYN)

I understand that this Amendment is not moved.

VISCOUNT ALEXANDER OF HILLSBOROUGH

I was rather hoping to get the feeling of the noble Earl upon the effect of this Amendment. I know the Amendment is not moved and therefore we cannot have it as an Amendment before the Committee. If it had been moved is it likely to have been accepted by the Government or by the Board of Trade? Because, it follows that it might have some effect upon businesses of different kinds concerned both with the farm and with retail distribution as well.

THE EARL OF DUNDEE

It does indeed, and if my noble friend had moved his Amendment I should have said that I was considering the whole question of fuel, which I think needs more examination in relation to this Bill—particularly wood fuel.

Clause 59 agreed to.

Clauses 60 to 62 agreed to.

Clause 63 [Repeals]:

THE EARL OF DUNDEE moved to add at the end of subsection (1) and, without prejudice to paragraph (b) of this subsection, in paragraph (a) of subsection (3) of section eighty-seven of the Food and Drugs Act, 1955 (which relates to the authorities responsible for enforcing certain of the provisions of that Act) the reference to local authorities for the purposes of the Weights and Measures Acts, 1878 to 1936, shall be construed as a reference to local weights and measures authorities for the purposes of this Act.

The noble Earl said: We have got now to Part IV of the Bill, which provides for regulating certain transactions in goods and which will not come into operation until two years after the passing of the Bill. In the meantime, the marking of pre-packed commodities will be controlled by the marking regulations made under the Food and Drugs Act 1955, and that Act will be repealed when Part IV of this Bill comes into operation. Those marking regulations specify, and are required by the Act of 1955 to specify, that they are enforceable by the local authorities for the purposes of the Weights and Measures Acts, 1878 to 1936. When Part V of this Bill comes into operation six months after its enact- ment, there will be no such authorities, because the provisions of the Weights and Measures Acts, 1878 to 1936, will be repealed and replaced by the provisions of Part V of this Bill. It is necessary, therefore, to enable the marking regulations made under the Act of 1955 to provide for their enforcement, but by the local weights and measures authorities exercising functions by virtue of this Bill. Until that is done there will be no authorities capable of enforcing those regulations after six months from the enactment of this Bill. The Amendment which I now move does this by providing that the reference in the Act of 1955 to local authorities for the purposes of the Weights and Measures Acts is to be construed as a reference to local weights and measures authorities for the purposes of this Bill. I beg to move.

Amendment moved— Page 50, line 29, at end insert the said words.—(The Earl of Dundee.)

On Question, Amendment agreed to.

Clause 63, as amended, agreed to.

Clauses 64 to 66 agreed to.

First and Second Schedules agreed to.

Third Schedule [Measures and Weights Lawful for Use for Trade]:

LORD FARINGDON

This is a small Amendment, intended principally to protect the small householder. Builders merchants frequently sell small quantities of goods, principally of sand and ballast and things of that kind, to the people who were referred to, I think, by my noble friend Lord Latham yesterday, as "Do-it-yourself" buyers. There is a particular reason why I hope the Government may be prepared to accept this Amendment: it is that this one-quarter cubic yard will, I think, satisfactorily replace the bushel which, five years after the entering into force of this Bill, will no longer be an approved measure. I hope that Her Majesty's Government will be prepared to accept this Amendment which I beg to move.

Amendment moved— Page 57, line 9, leave out ("Measures of, or of any multiple of,½ cubic yard") and insert ("Measures of ¼ cubic yard, ½ cubic yard or of any multiple of ½ cubic yard'').—(Lord Faringdon.)

THE EARL OF DUNDEE

For the reasons which the noble Lord has given, and one or two others, the Government are willing to accept this Amendment in principle. It has been represented to the Board of Trade that measures of ¼ cubic yard and multiples of that size are needed in connection with the sale of ready-mixed cement and ready-mixed concrete. The Amendment would not permit this, although the Government recognize that when the bushel, ½ bushel and peck measures are abolished under Clause 10 five and a half years after the enactment of the Bill, a ¼ cubic yard measure may help traders who supply certain goods, such as horticultural sundriesmen, selling peat, soil, proprietary composts and so on. The measure is equal to 6¼ gallons and is therefore almost midway in size between the bushel and the half bushel. At a later stage I propose to table Amendments which will provide both for the ¼ cubic yard and also its multiples.

LORD FARINGDON

I thank the noble Earl for his reply, and on that understanding I beg leave to withdraw my Amendment.

VISCOUNT ALEXANDER OF HILLSBOROUGH

The noble Earl has referred to horticultural establishments. I am particularly interested in measurement in relation to reject stones from a gravel works where there are different methods of sifting and so on. If a farmer under this new legislation, when it becomes statutory, wants so many cubic yards or part cubic yards for making his roads and paths, will that be in order under this new proposal?—because at present there is no difficulty in getting a cubic yard at a time. I am not quite sure how this new arrangement will work.

THE EARL OF DUNDEE

I gave only some examples of commodities with which this will be more convenient, and I am glad to hear from the noble Viscount that there will be others. The Schedule applies, of course, to measures of volume which are legal for all purposes.

Amendment, by leave, withdrawn

7.52 p.m.

THE EARL OF DUNDEE

Paragraph 1 of Part IV of the Third Schedule, as presently drafted, would permit any measure of capacity, no matter of what material it was made, to be subdivided if its capacity was one quart or over. The only subdivisions permissible would, however, be gallons, quarts and pints, in the case of measures of over 1 gallon capacity; quarts and pints, in the case of measures of 1 gallon capacity; and pints, in the case of measures of 1 quart capacity. The existing regulations permit glass measures of 1 pint capacity and over to be subdivided into half pints, and it is the Government's intention that this should continue to be permissible. I beg to move

Amendment moved— Page 57, line 21, leave out from ("which") to end of line 23 and insert ("shall not be marked with divisions or subdivisions except in such cases and in such manner as may be prescribed.")—(The Earl of Dundee.)

On Question, Amendment agreed to.

THE EARL OF DUNDEE

This Amendment corresponds with the Amendment I have just moved to paragraph 1 of this Part of the Third Schedule and is designed to put the subdivision of metric measures on the same basis as that of the imperial fluid ounce, fluid drachms and minim measures. I beg to move.

Amendment moved—

Page 58, line 12, leave out from ("which") to end of line 14 and insert ("shall not be marked with divisions or subdivisions except in such cases and in such manner as may be prescribed.").—(The Earl of Dundee.)

On Question, Amendment agreed to.

Third Schedule, as amended, agreed to.

Fourth Schedule agreed to.

THE EARL OF DUNDEE

We have now reached the end of the Fourth Schedule. In the Fifth Schedule there are a fairly large number of Amendments. I feel that we have made extraordinarily good progress to-day, and I am most grateful to your Lordships for your help and co-operation in accelerating our proceedings on this Bill. I feel that if only we can get an early start on Monday we might make very good progress indeed on that day, and possibly it might not then be necessary to sit on Wednesday morning, which I am sure none of us wants to do; but that is partly a question of luck, as we all realize.

VISCOUNT ALEXANDER OF HILLSBOROUGH

Our progress on this Bill must depend upon what other Government Business is put on the Order Paper before the Committee stage of the Bill on Monday and Tuesday next. That is one thing about which we are nervous So far I am not too gloomy, but one cannot be certain.

THE EARL OF DUNDEE

It is a question of whether we can get an early start on Monday.

House resumed.