§ 6.16 p.m.
§ Lord LYELL
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(Lord Lyell.)
§ House in Committee accordingly.
§ [The Lord DERWENT in the Chair.]
§ Clause 1 [Closure of food premises, stalls or vehicles dangerous to health]:
§ Lord GRAY moved Amendment No. 1:
Page 1, line 15, at end insert—
("(c) the transport of food in or by any vehicle which is insanitary or which is so constructed or is in such condition that the food is exposed to the risk of contanimation.
§ The noble Lord said: In speaking to this Amendment it might be for the convenience of the Committee if I also addressed my remarks to Amendment No. 2, which is directly linked with it and consequential upon it. It would be best if I were to open my case for my Amendment by saying something about Clause 1 itself. Clause 1 contains the real muscle of the Bill. It arms sheriffs with power to close down premises which have been convicted of an offence against regulations made under Section 13 of the Food and Drugs (Scotland) Act 1956. Paragraphs (a) and (b) of subsection (1) provide that the offence which led to conviction under those regulations must have included one or more specific characteristics. Subparagraphs (i), (ii) and (iii) of subsection 1(b) list a group of conditions as to which the sheriff has to be satisfied before he makes a closure order. The remainder of the clause deals with various aspects of the making of a closure order and its possible subsequent withdrawal.
Under paragraphs (a) and (b) of subsection (1) the key words which control the considerations as to whether an offence against regulations is to lead in turn to a closure order are the words "the carrying on of a food business". For the purposes of the Bill the words "food business" are interpreted in Regulation 3 of the Food Hygiene (Scotland) Regulations 1959. I quote that definition:
In these regulations, unless the context otherwise requires, the expression 'food business' means any trade or business consisting of or so much of any trade or business as consists of the selling, exposure, service, preparation, transport, storage, packaging, wrapping or delivery of food
It goes on to certain exceptions, but they do not concern us here.
§ I would wish to draw the attention of the Committee to the inclusion of transport in the list of activities in that definition which identify what can constitute a food business. Noble Lords will see that Clause 1(1)(b)(i), at line 17 on page 1 of the Bill, repeats several of the activities listed in the interpretation which I have quoted, but they will notice that among the absentees is "transport". It may be that food businesses engaged solely in transport have been deliberately excluded from the ambit of the Bill. I do not know whether that is so. However, a different point should be noted. A food business might well consist of premises where food is prepared and other quite separate premises, miles away, where the prepared food is subsequently to be sold. Quite patently, the food would have to be transported between one premise and the other during the course of business.
§ I may, perhaps, have drafted my Amendment—the new paragraph proposed to be included in Clause 1—too widely. Whether I have done so will depend on what my noble friend Lord Lyell has to say about the intention of the draftsman in regard to businesses which are solely concerned with the carriage of food. However, I ask noble Lords to consider whether it would not be appropriate at least to introduce the word "transport" into the Bill in the two ways suggested in my Amendments, if only to prevent a situation which I suppose could arise where a sheriff should be considering the condition of the transport involved in a business, but perhaps is precluded from doing so by the selective use of the words extracted from the definition clause. I beg to move.
§ Lord LYELL
I am sure that the Committee will be grateful to my noble friend Lord Gray for explaining his Amendment so clearly. The noble Lord pointed out that under the Food Hygiene Regulations 1959 there are provisions which govern the sale of food and, indeed, the conditions of food businesses in Scotland. The noble Lord clearly stated the definition of "food business"; he went right through all aspects of the food business. However, I am sure he noted that those definitions included the transport, packaging or delivery of food. As 360 we understand it, the reference in Clause 1(1)(b) to "a food business" under Regulation 3 would already include the transport of food, which I believe is what my noble friend's Amendment seeks to introduce.
Further, under Regulation 30(1), as amended by the 1966 amending regulations, there is the following provision:Every stall or vehicle which is used in the course of or for the purpose of a food business shall be kept clean and be of such construction and in such order, repair and condition as will enable it to be effectively cleaned and the layout of any such stall or vehicle shall be such as will enable operations conducted therein for the purpose of food premises to be conducted hygienically".That is quite a mouthful of rather detailed provisions from the regulations and I apologise to the Committee for it. I hope that my noble friend Lord Gray might consider that it is clear from that definition that the inclusion of the transport of food between points of production, storage, packaging, selling or the ultimate consumption of food, is indeed covered by the definition of a "food business", both as it is found in Clause 1(1)(b) of the Bill and also in the Food Hygiene Regulations 1959. That is all I wish to say. I hope that my noble friend will be reasonably satisfied with that, and if he has any further points I shall consider them.
§ Lord STRABOLGI
Perhaps I may say on behalf of the Government that I absolutely agree with what the noble Lord, Lord Lyell, has said. I am happy to confirm that the Food Hygiene Regulations, as appropriate, apply to vehicles used for the transport of food. Nevertheless, we are very grateful to the noble Lord, Lord Gray, with his great knowledge and experience of these matters, for raising it. It has given the noble Lord, Lord Lyell, and myself the opportunity to explain the purpose of the clause, which I may say is working very well in the English Act.
§ Lord BALERNO
I was unable to be present at the Second Reading debate of this Bill. I should like to take this opportunity to say how necessary the Bill is. In Scotland in recent months there have been several rather terrible cases, not just of cockroaches but of other things in kitchens and places where food is prepared and served. This Bill will be extremely useful. I am interested in the 361 point raised by my noble friend Lord Lyell, but I wonder whether my noble friend Lord Gray is not right to raise this point. If he, as an intelligent person reading the Bill, spots that the transport of food is omitted when everything else is included, may not the Bill when it becomes an Act—if it goes through in its present form—be similarly interpreted by those who have not simply to enforce it but to obey it? Therefore, I suggest that for the avoidance of doubt it would be a good thing to include transport and to accept this Amendment. It would certainly do no harm.
§ Lord LYELL
I am grateful to my noble friend Lord Balerno. With respect, I would call myself a quasi-lawyer in that I have been plunged headlong into these matters. As I understand it, the inclusion of the Amendment as it is at present tabled would not necessarily cause more confusion but could be misleading. It is for that reason that I have sought to show that although the fears raised by my noble friend Lord Gray and, indeed, by my noble friend Lord Salerno, are not groundless, the inclusion in the Bill of transport, as stated in the Amendment, would be misleading.
If we included this particular aspect of a food business, which is already defined under the food hygiene regulations, we should probably have to include every other stage in the food processing business: the production, packaging, selling, storage, and every aspect of it. From what I understand to be the case, both as to the law and the interpretation of the regulations, the inclusion of this Amendment would necessitate the inclusion of many other aspects and considerably complicate this Bill, which is fairly brief, uncontroversial and simple. I hope that this goes some way towards explaining the position and allaying any fears which might be aroused in the noble Lord, Lord Balerno.
Before my noble friend sits down, may I ask him whether I heard him say that there was a defect in the drafting of the Amendment at present?
§ Lord LYELL
I had not understood that there was a defect in the drafting of the Amendment, but if the Amendment were to be included in the Bill at this point the Bill would not necessarily be misleading 362 but would, or might, be taken to be incomplete in that we should have to include in the Bill every other aspect of the food business, which indeed, as the noble Lord pointed out in the first stage of his Amendment No. 1 would include transport, packaging and delivering. Of course that would operate right back to every stage, and there might have to be included a separate paragraph—not just paragraph (c) in Amendment No. 1—for every other process in the food business which is already included in the regulations. Indeed, this Bill stands on its own, but it also stands with the regulations and goes some way to interpret the regulations. I did not mean to suggest that the drafting was defective. I just thought, and I understood, that if the Amendment were to be inserted into the Bill the Bill would become over-detailed and could then be misleading. I do not say that it would be misleading, but it could be.
I am grateful to my noble friend Lord Lyell for the trouble he has taken in answering my Amendment, and also for the support I have had from my noble friend Lord Balerno. As I think my noble friend Lord Lyell already knows, my welcome for this Bill is wholehearted. I would do nothing wittingly to hinder it on its way to the Statute Book, and any Amendment which I am putting forward to what really represents a considerable and desirable improvement and strengthening of the food and drugs legislation in Scotland, and the enforcement of that legislation, I put forward only in a spirit of support.
I apologise to the Committee for taking time on this but I should like to take up one or two points made by my noble friend, or which arise from what he said. I do not know whether he has quite taken the point that I was making, that by being selective in the words chosen from the definition clause in the regulations there is a danger that this selection could be seen as excluding the others, because the Bill before us, at Clause 6(1)(a), says:any expression to which a meaning is assigned by the regulations in question shall, unless the context otherwise requires, have the same meaning in this Act as in those regulations;…".I was only suggesting that we have created a context by selecting a few of the criteria in those regulations.
363 I would certainly not want to introduce a lot of new paragraphs or subsections into the Bill. Despite the support which I have received from my noble friend Lord Balerno, I am anxious to see this Bill on its way. I am not sufficiently sure of my rightness as against that of my noble friend Lord Lyell. I think I could see my way to withdrawing this Amendment if my noble friend would look at what I have added in reply to his answer.
§ Lord STRABOLGI
Before the noble Lord, Lord Lyell, replies, perhaps I could assure your Lordships, and particularly the noble Lord, Lord Gray, that this Amendment is not necessary. The best legal advice at the disposal of the Scottish Office, and also of course of the Department here in London who put through the original Bill, is that this Amendment is not necessary, because what the noble Lord is rightly seeking to do is already contained in the Bill under Clause 1(1)(b); the reference to "a food business", which includes the transport of foods. I went into this in considerable depth this morning with my legal advisers and officials, and I can assure the noble Lord that his Amendment is not necessary.
In those circumstances, I think that this would be an appropriate moment for me to beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ 6.37 p.m.
Lord GRAY moved Amendment No. 3:
Page 1, line 20, after ("state") insert ("or situation").
The noble Lord said: The situation of any premises is one of the choice of criteria, upon fulfilment of which an application for a closure order must rest under the wording of Clause 1(1)(a) and (b). Therefore, "situation "should surely appear in the list of considerations set out in subsection (1), sub-paragraphs (i), (ii) and (iii), and about which the sheriff is required to be satisfied before granting a closure order. The state of the premises is cited as such a condition in sub-paragraph (ii), but unless the word "state" is held to embrace "situation", which I personally doubt it would, I submit that the correct course
is that we should add the word "situation", as proposed in my Amendment. As my Amendment suggests, the correct place for it would be in sub-paragraph (ii). The corresponding sub-paragraph of the English Act equivalent to this Bill reads:
… by reason of the situation, construction or insanitary or defective condition of the premises or stall or the insanitary or defective condition of the fittings or fixtures or equipment or the infestation of vermin or the accumulation of refuse …".
et cetera. While the Scottish draftsman is to be congratulated on so elegantly reducing the English verbiage to the one word "state" from the list of conditions in the English Act, it appears that, perhaps inadvertently or mistakenly, he has jettisoned an essential ingredient.
§ Lord LYELL
I thank my noble friend Lord Gray for moving the Amendment, which he did most eloquently. We have recently listened to many hours of legal argument—I certainly have, especially when debating matters with the noble and learned Lord, Lord McCluskey; many hours have been spent discussing Scottish law—and the Committee will be grateful to Lord Gray for his Amendment and for drawing a comparison between the Bill and the English Act which, I agree with him, is sought to be the equivalent.
The Committee will accept that I am a layman in these matters. When I looked at the phrase "state of the premises" I thought it was intended to cover the physical condition, the height and construction, of the premises, the vehicle or the stall. It would seem to cover the situation of the premises as well. However, there are far more eminent legal representatives than I in the Committee tonight and certainly the draftsmen have gone a great distance to help to improve the Bill.
I am instructed that the Bill as drafted, containing the words "state of the premises", might indeed cover the condition and construction of the premises, stall or vehicles, but that it might not cover the situation as Lord Gray has described it. We therefore feel that the Amendment should be accepted because it will put the matter beyond any reasonable doubt.
§ Lord STRABOLGI
I agree absolutely with the noble Lord, Lord Lyell, and it is the view of the Government that the 365 Amendment makes an improvement to the Bill because, as he rightly said, it will put the matter beyond doubt. We are grateful to the noble Lord, Lord Gray, for moving it and I commend it to the Committee.
§ 6.43 p.m.
§ On Question, Whether Clause 1, as amended, shall stand part of the Bill?
I am obliged to my noble friend Lord Lyell for accepting my last Amendment and to the Government for the blessing they gave it; my lucky number three has turned up for me again. Through the acceptance of that Amendment, the Committee has accepted or acknowledged the relevance of the word "situation" among the criteria about which the sheriff has to be satisfied in his consideration of an application for a closure order. The situation is cited, as I pointed out, elsewhere in Clause 1; it is used both in regard to fixed premises and to what might be termed mobile premises.
The point I wish to raise at this juncture concerns its application to fixed premises, a building. Is it possible that "situation" could be the prime or sole factor which led to the conviction under regulations which triggered the provisions of this Bill and led to the closure of premises? Could there not arise a case where, despite the best efforts of the proprietor or manager of a food business, the situation of the premises in terms of its proximity to other premises over which he had no control might lead to a closure order?
I readily accept that anyone who, through his own fault, does anything to offend against the regulations deserves no mercy, but there seems to be a possibility that it might be the negligence or activities or inactivities of a third party which led to the situation of the premises being a factor which was taken into consideration. All I should like to know, not necessarily tonight, is whether there is anything in the Bill or in any other legislation whereby action could be taken in such a situation by the sheriff against a third party, otherwise it would seem that the premises might be closed and, quite unfairly, the person whose premises were closed might be left to bring civil suit to get redress.
§ Lord LYELL
I thank my noble friend Lord Gray for raising that point. As I see it, the addition of the word "situation", which we have accepted, appears to me to mean the geographical location of the vehicle, stall or premises; where, to use the Scottish term, they are "situated". The only example that came to my mind as my noble friend was speaking was the possibility that food might become contaminated because of the geographical situation; that rats, vermin or mice might gain access to the food during its preparation, during the processing of the food or while it was being sold. Or perhaps the food, if it were consumed immediately adjacent to the premises, stall or vehicle, could come under a contamination risk because, for example, people dropped chip bags and then ate the chips. That is the kind of thing that I had in mind and, while it is unlikely, it is a risk. It was the geographical location that I had in mind when my noble friend was speaking.
I should like to consider what he said, because I think there is merit in it. Perhaps he will allow me to consider the point and get in touch with him at a later stage. I hope the one example that came to my mind, that of the geographical location of the premises, would not of itself mean that a food business was closed down. However, whatever the cause—whatever the geographical location of the food business—the object of the Bill (I know I have the support of the Committee in this) is to see that, no matter what are the circumstances, contaminated food should not be sold. I hope I have said enough to convince my noble friend at this stage, but I will consider the matter and be in touch with him. Meanwhile, I hope the Committee will agree the clause.
I willingly accede to the arrangement my noble friend Lord Lyell suggests—that he will get in touch with me—and I put the point tonight only when I had exhausted the powers of my own research because I find that Section 45 of the 1956 Act does not, on my reading of it, quite fit the situation, although it has been given effect in this Bill by Clause 4(2).
§ Lord LYELL
In fact, the winged messengers have produced something that tallies with that of my noble friend Lord Gray. I understand that provision for such a case as has been mentioned by my 367 noble friend is made in Section 45, as my noble friend has said. I understand that that is the position and that also it would be for the court and the sheriff ultimately to decide whether this situation constituted an adequate and reasonable defence in a particular case. It might or it might not. I hope that my noble friend will accept that the court would probably be able to judge this issue on a local basis and I wonder whether we could leave it at that.
§ Clause 1, as amended, agreed to.
§ Clause 2 agreed to.
§ Clause 3 [Right of appeal]:
§ 6.52 p.m.
Lord STRABOLGI moved Amendment No. 4:
Page 3, line 39, at end insert (", and any appeal under this subsection shall be by way of summary application.")
§ The noble Lord said: This Amendment seeks to rectify a technical weakness in the Bill brought to the attention of the Government by the Law Society of Scotland. We are grateful to the Society for doing this. As at present drafted, an appeal against granting or refusing an interim order shall be made to the sheriff principal but there is no indication in the Bill of the procedure by which such appeals should be made. While it is not strictly necessary to specify the procedure for such appeals, since the court can itself lay down the procedure which it considers most appropriate, this could lead to difficulties and uncertainties in implementation after the Bill becomes law.
§ The Amendment establishes two things, both in accordance with proposals made by the Law Society. First, it puts beyond doubt that an appeal against an interim closure order is a civil matter and analogous to an interim interdict. Secondly, it establishes clearly what procedure is to he followed in relation to such an appeal; that is, that the appeal is to be by summary application. This is a purely drafting Amendment which, I submit, is an improvement to the Bill. I beg to move.
§ Lord LYELL
If the Committee will permit it, I should like to thank the noble Lord, Lord Strabolgi, for having moved the Amendment. He was somewhat 368 humble in suggesting that it was only a drafting Amendment. I believe that it has real substance and that the whole Committee is grateful for the work of the Law Society and for its vigilance as regards food hygiene, as regards the legal regulations and, indeed, as regards the Bill. We are grateful for the noble Lord's advice and I hope that we shall accept the Amendment.
§ Clause 3, as amended, agreed to.
§ Clauses 4 and 5 agreed to.
§ Clause 6 [Interpretation]:
§ On Question, Whether Clause 6 shall stand part of the Bill?
The clause deals with the interpretation of the expressions in the Bill. We have already heard something of this this evening. Subsection (1) has two paragraphs: paragraph (a) takes into the Bill from the regulations which I quoted the meanings assigned in those regulations; paragraph (b) reads:Sections 1 to 4 of this Act shall have effect as if the references to premises included places which are not premises within the meaning of those regulations.It is in part with the first of those subparagraphs that I wish to deal and in part with another matter.
The noble Lord, Lord Strabolgi, was kind enough to write to me about a question that I had asked earlier about the definition of "premises", which is, for the purposes of this Bill, very important. Yet there is no definition of the word "premises" in the Bill. However, in his letter to me, the noble Lord said, if I may quote him:… that I should explain that the Bill refers throughout to premises and whilst the Bill does not itself contain a definition, the Food and Drugs (Scotland) Act 1956, referred to in the Bill, defines the term in Section 58 as, 'a building or any part thereof'.That answered quite adequately the question that I had put to the noble Lord although I had some doubts that the interpretation would come easily to those who might be looking for it. My first point is that this is primary legislation. We have here a word which is of key importance but we have to go to another Act to find the definition. Also, this is 369 an Act which is not directly connected to the Bill but is connected to it by way of regulations which intervene.
My second point is that, again, we have here primary legislation which for another very important definition—that of a "food business"—depends upon subordinate legislation for the interpretation of the term within the Bill. I believe that it could happen that at some future date the subordinate legislation could be amended by this or a subsequent Government and the existing regulations repealed. I do not imagine it is likely to happen by accident that the definition would disappear but maybe the Government would feel it appropriate to change it. That would have the effect that through an instrument which I understand would require a Negative Resolution, an important definition of a term employed in the Bill could be altered and the Bill assume a character of which Parliament when speaking about it today would know nothing and the Bill would assume a character quite different to the character of the Bill that we are talking about.
I do not want to pursue this at length, but I should like just to ask whether it might not be worth considering strengthening and perhaps removing some of the lack of clarity from the definition clause by importing into the Bill appropriate and essential definitions from the other two enactments to which I have referred.
§ Lord LYELL
We are grateful to my noble friend for raising this point. However, I hope that he and the Committee as a whole will consider that the whole Bill rests on an offence having been committed under the Food Hygiene Regulations 1959. I take on board what my noble friend has said. Nevertheless, the definition of "premises" will, we hope, always be the same as the definition of "premises" in the food hygiene regulations.
If the Bill is enacted, and if it were to contain its own specific definition of "premises", we understand that it would require amending legislation to change that definition at any time when there was a change of the definition in the regulations. I would add that the corresponding English Act deals with the matter in the same way as is proposed in the Bill before us. This was accepted by this House, and by the other place, as appropriate, but I 370 look carefully at the noble and learned Lord, Lord McCluskey, to see whether that is necessarily a good thing. But I hope that the noble Lord, Lord Gray, will be reasonably happy with that. Certainly I will endeavour to keep in touch, and I give him my word that I will look carefully at what he said.
I am grateful to my noble friend for what he said, and I appreciate the offer that he has made, and the courtesy with which he dealt with the points I raised. I wish to mention here only one matter. I think that he made a slip when he said that there was a definition of premises in the regulations. I think that it occurs in the Act, and arrives in this Bill only by virtue of the fact that the regulations which trigger the provisions of the Bill are written with regard to the definition in their parent Act.
§ Lord LYELL
I thank the noble Lord for saying that. What I intended to say and what I meant—though saying and meaning have great differences at times—was that we hope that the definition of premises would be the same as the definition of premises in the regulations, but indeed that definition might depend on the Act, as the noble Lord has said. But that taken, we are certainly looking at subordinate legislation of two different types. I take note of what the noble Lord has said.
§ Clause 6 agreed to.
§ Clause 7 agreed to.
§ Clause 8 [Short title, commencement and extent]:
§ 7.2 p.m.
Lord STRABOLGI moved Amendment No. 5:
Page 5, line 20, leave out from ("force") to end of line 21 and insert ("on such day as the Secretary of State may by order made by statutory instrument appoint.")
§ The noble Lord said: I beg to move Amendment No. 5. This Amendment seeks to make a technical adjustment to the provision concerning the date on which the Bill will come into operation after enactment. As at present drafted, the Bill will come into operation two months after Royal Assent. Because of the 371 rapid progress which the Bill has made, there is a possibility that the Bill could be operative before the completion of the current updating of the Scottish food hygiene regulations on some of the terms of which the Bill rests. By providing that the Bill will now come into operation on a day to be appointed by order by the Secretary of State, the possibility of enforcement difficulties for local authorities will be avoided.
§ On Question, Whether Clause 8, as amended, shall stand part of the Bill?
I apologise to the Committee for rising again, but perhaps Members of the Committee would view my speaking with a little more understanding if they were to know, as they may not, that the Bill passed through every stage in another place without one single syllable being uttered. It is only here, at Second Reading and today, that it has had any probing, or even any praise. I notice that the Bill extends to Scotland only. That is stating the obvious, but I missed the opportunity that I should have taken of rising when the Question was put on the previous clause stand part, in which ships were dealt with. I had not been going to talk about ships, but if I may be excused a simply appalling pun at this hour of the evening, I should say that I was going to ask an omnibus question about other types of vehicle. I should like to ask specifically whether aircraft are caught under the terms of the Bill, and furthermore whether oil rigs and railway trains are caught by the Bill? If they are in some cases, but are not in others, or if they are not all caught, should they not be so caught, or should they be so?
§ Lord LYELL
We are very grateful to the noble Lord, Lord Gray, for raising this point. I, too, am interested about, and worried by, the question of trains and aircraft which commence and terminate their journeys within Scotland. I understand that this is a matter which could be, and indeed should be, looked at when the 1956 Food Act is reviewed, and various other points which have been raised this evening could also be looked at, particularly the comment raised by my noble friend.
372 With regard to oil rigs, I believe that if a food business were carried on at a particular oil rig, the Bill would apply. I am given to understand that oil rigs (I think that they are known as production complexes) where attached by mechanical, geological or possibly other means to the seabed, and where used for production, and are, more or less, a static complex, in a static location, are, for the purposes of law, Scottish structures. They are subject to Scottish law, and I understand at the moment that the Bill, if enacted, would apply to an oil rig.
However, when it comes to an exploration rig, which I understand is not only capable of moving about, but tends to move about in the North Sea, and which possibly might be defined as a ship, this would be a matter for legal experts, with greater knowledge than my noble friend and myself have, to determine. Nevertheless, we are grateful that he has raised this point, and I should like to look into it. I should be happy to keep in touch with the noble Lord, and let him know the position.
§ The DEPUTY CHAIRMAN of COMMITTEES (Lord Derwent)
I apologise to the noble Lord, Lord Gray, for having been a little too quick for him earlier, but luckily our proceedings are sufficiently easy to have enabled him to get in his point.
§ Clause 8, as amended, agreed to.
§ House resumed: Bill reported with Amendments.