CONSUMER PROTECTION BILL [H.L.] (Hansard, 3 November 1970)

§ LORD DERWENT
My Lords, I beg to move that this Bill be read a second time. As I explained to your Lordships on First Reading, this Bill is a substitution for a previous Bill which I withdrew because the drafting was faulty, so may I start by thanking very sincerely my noble friend Lord Windlesham, the Home Office and the Parliamentary draftsman for getting the drafting of this Bill right.
As your Lordships will see, this Bill seeks to amend Section 3 of the Consumer Protection Act 1961. Section 2 of that Act deals with the prohibition of sale of certain articles or parts of articles. The regulations that prohibit their sale are not only for selling but for holding for sale. Section 3, which I seek to amend, gives the enforcement provisions. When that Act had been in force for some time it was found that there was a gap in the enforcement provisions which makes enforcement in certain cases very difficult and in certain cases virtually impossible. This was realised seven years later in 1968 when the Trade Descriptions Act was brought in; this loophole had been spotted and the necessary section was put into that Act. This Bill in fact brings the Consumer Protection Act into line with the later Act.
The law under the present Act is that where a retailer—or anyone else for that matter, but I want to talk particularly about the retailer—sells goods which are prohibited, the local authority in whose area the goods are being sold must first of all prosecute the retailer. The retailer has a defence laid down in the Act if he can prove, which is not always easy, that he had reasonable grounds for believing that the goods were in accordance with the regulations. As I hope to show in a moment, very often the fault lies with a wholesaler, and more often with an importer or a manufacturer. But the local authority who have brought an action against the retailer— and that must be the first step—cannot bring an action against the manufacturer 297 or importer if they are outside the local authority area. There are very few local authorities who have manufacturers and importers necessarily inside their area. Therefore, the only way to bring a satisfactory prosecution in a case which is not the retailer's fault is to ask another local authority to bring an action. The whole procedure has to be completed within six months. Very often this makes it virtually impossible to prosecute anyone. That is the position.
The matter is urgent because of the safety regulations for children's toys. The regulations are fairly involved and very widespread. Apart from the big toy shops, such as Hamley's, specialising only in toys, there are thousands of small retailers all over the country selling a few toys who have neither the experience nor the equipment to test the toys to see whether they come within the regulations. Some of the testing is extremely expensive. The most usual fault, I think, is the lead content, either in part of the toy or in the paint on the toy. Small retailers cannot possibly test that; they do not have the facilities, and, as I say, it is expensive. As a result, as the Act now stands, when it is quite clear that the retailer is not really at fault, local authorities are very often very unwilling to prosecute, partly because they think it unfair and partly because it appears rather a waste of time.
If this Bill is passed, there will be what are called "passing over" provisions. That means that where the fault lies with a manufacturer or an importer—all of whom have or should have facilities—or to a wholesaler, then the prosecution can be passed by the local authority against the person who is really at fault. One of the reasons why it is so complicated to enforce in regard to toys at the moment is this. Although many toys are manufactured in this country, an enormous number, perhaps the majority, are imported from Germany, Italy, Jugoslavia, Japan, Hong Kong, China, all over the place, and no small retailer can possibly know if what he is buying from the importer is in accordance with the regulations. If this Bill becomes law, at once the local authority will be able to proceed against the person they find is really responsible. The matter is urgent because children's health, and in some cases their lives, are at risk. Children suck lead 298 toys and so on. I use lead as an example; there are other dangerous toys. So although this is a small Bill, I hope your Lordships think it a worthwhile one, and I beg to move.

§ BARONESS PHILLIPS
My Lords, I should like at once to congratulate the noble Lord, Lord Derwent, on introducing this Bill at this time, because he seems to have persuaded the Government to find time for it—and I do not get the feeling that the Government are unduly interested in the affairs of the consumer, particularly as they have not shown great regard for the only watchdog the consumer had.
I should also like to congratulate the noble Lord on the clear way in which he explained the Bill to us. As he so rightly said, the 1961 Act is an Act of great significance and relevance. This was brought home to me only last week when talking to a group of women who were voicing their concern about these unsafe toys; and indeed about other electrical goods which are unfortunately appearing in the shops. As the noble Lord has said, it is right to extend the coverage of responsibility. One would, of course, hope that this Act may be extended; some of us would like to see it extended to the area of testing and other matters. But at this time, as the noble Lord pointed out, it is a matter of urgency, and I wish his Bill every fair wind and success in passing through this House.

§ LORD DONALDSON OF KINGS-BRIDGE
My Lords, may I briefly endorse the comments of my noble friend Lady Phillips. I think the noble Lord has brought forward a Bill which requires to be introduced. It passes over the responsibility from the retailer, where it rests under the Sale of Goods Act, to the person who has the ultimate liability, who is the manufacturer, wholesaler or importer. I think all of us who know anything about this subject must welcome it, and I hope that your Lordships will give the Bill an easy passage.

§ THE MINISTER OF STATE, HOME OFFICE (LORD WINDLESHAM)
My Lords, the noble Lord, Lord Derwent, has explained very clearly the purpose of the Bill which he has introduced. Its 299 intention, as he has indicated, is to amend the Consumer Protection Act 1961 so as to include "passing over" or "bypassing" provisions of the kind contained in other legislation concerned with the protection of consumers. Such provisions can be found not only in Section 23 of the Trade Descriptions Act 1968, on which this Bill is based, and to which the noble Lord referred, but also in Section 27 of the Weights and Measures Act 1963, Section 113 of the Food and Drugs Act 1955 and Section 45 of the Food and Drugs (Scotland) Act 1956.
Since the Consumer Protection Act was passed in 1961, regulations have been made relating to the safety of oil heaters, toys and carry-cot stands, the flammability of nightdresses and the colour coding of flexible cords attached to or supplied with domestic electrical appliances. Further regulations are in course of preparation. As the noble Lord said, enforcement of these regulations is entirely a matter for local authorities.
It is an offence for any person to sell or offer for sale in the course of a business any goods which do not comply with regulations made under the Act. Anyone, whether manufacturer, importer, wholesaler or retailer, who sells or offers for sale non-complying goods therefore commits an offence under the Act.
Section 3(2) of the 1961 Act provides that, in the event of a prosecution, it is a defence if the person who is prosecuted can establish that he had reasonable cause to believe that all the requirements of the relevant regulations had been satisfied. When the Consumer Protection Bill was before your Lordships' House in 1961 the application of the Bill to sales by retailers and the adequacy of the defence provisions were discussed at some length and, at the Committee stage, the noble Lord, Lord Derwent, moved an Amendment which would have inserted both defence and "passing-over" provisions on the lines of Section 113 of the Food and Drugs Act 1955. The noble Lord, however, withdrew his Amendment on the grounds that the defence so provided would be less favourable to retailers than the defence already provided in the Bill to which he 300 and I have already referred. No "passing-over" provisions were included, since under the Bill anyone in the chain between manufacturer or importer and retailer could be prosecuted if he had sold non-complying goods and in these circumstances "passing-over" provisions did not appear to be necessary.
In the event, as the noble Lord has said, there have been certain difficulties which were not foreseen nine years ago. In the case of regulations based on a British Standard, such as the Oil Heater Regulations, retailers can rely on the British Standards Institution's Kite-mark as ensuring that the goods which they offer for sale comply with the regulations. Then again, compliance with regulations such as the Electrical Appliances (Colour Code) Regulations can be confirmed by visual inspection of the goods in question. As regards other regulations, however, such as the Toys (Safety) Regulations, there is usually no Kite-mark or other visible approval to which the retailer can turn and on which he can rely. Most retailers, for example, are clearly unable to determine for themselves whether or not the lead content in the paint on the toys which they sell is within the prescribed limit. In practice, therefore, they have sought a written assurance from their wholesalers that any toys or other goods supplied comply with any statutory requirements which may be relevant, but it seems that, in some instances, the courts have not regarded the assurances obtained by retailers as sufficient for the purposes of the defence opportunities provided by the 1961 Act. This of course is entirely a matter for the courts, but it does point to the sort of difficulty with which a retailer can be faced.
The power to prosecute was also referred to by the noble Lord, and this is entirely in the hands of the local authorities. Local authorities can prosecute only for offences committed within their own area, and the manufacturer or importer will frequently be in business in an area outside that in which the retailer is selling or offering the goods for sale. In theory, this could perhaps be overcome by local authorities' liaising more closely with one another, but in practice it has been found that this presents difficulty.
301 I do not think the noble Lord mentioned another difficulty: that prosecution under this Act must take place within six months. This is provided for under the Magistrates' Courts Act 1952 and the Summary Jurisdiction (Scotland) Act 1954. Here again, the manufacturer or importer may escape because a period of six months has elapsed since the offence has been noticed by a local authority and proceedings have been instituted.
So, for reasons of this sort, as well as the ones that have been mentioned by the noble Lord in his introduction of the Bill, by the noble Baroness, Lady Phillips, and the noble Lord, Lord Donaldson, the Government welcome this Bill. We are happy to support it, and hope that your Lordships will agree to do the same.

§ LORD DERWENT
My Lords, may I just thank my noble friend, the noble Baroness and the noble Lord opposite for their support? I am glad that they think, as I do, that this is an urgent matter. There is just one point in regard to which I may have been misunderstood and which I would correct. A retailer may have been warned by an inspector but continues to sell, although by this time the local authority have proceeded against the real culprit. There is nothing to stop them from proceeding against the retailer at the same time. I think that ought to be made clear. I am most grateful to my noble friend for what he has said.