§ 7.23 p.m.
§ Further considered on Report.
§ Schedule 2 [Enforcement]:
Lord AIREDALE moved Amendment No. 4:
Page 22, line 20, at beginning insert ("if he has reasonable cause to suspect that relevant provisions have been contravened").
The noble Lord said: My Lords, perhaps we could discuss this Amendment and Amendment No. 5 together, as the points involved in each are similar. One hesitates to raise again on Report a matter which was fairly fully discussed
in Committee. However, I am emboldened to take this course by the concluding words of the speech of the noble Lord, Lord Trefgarne, in Committee last Friday afternoon, when the noble Lord concluded his speech with these words:
The proposal put forward…merits a more careful consideration than it has so far received. Even if the noble Lord is not advised to press the Amendment now, he ought to come back to it at a later stage of the Bill".—[Official Report, 30/6/78; col. 575.]
Here we are discussing this matter again. I hope that we may perhaps take it a little more shortly on this occasion. I do not wish to weary the House with the full gamut of the arguments that I put forward earlier. However, I do have to go into the matter in a little detail to explain it properly to your Lordships.
This is an Amendment to Schedule 2, which is the enforcement Schedule. It amends paragraph 3(a), which appears to give the enforcement officer of a local authority power to go into any premises other than a dwelling to make a routine inspection, or what is frequently called "a spot check". I say that it appears to give him that power. I should like your Lordships to notice how this paragraph is contrasted with paragraph 3(c), which deals with the officer's powers to inspect the books of the business. Paragraph 3(c) begins with the words:
if he has reasonable cause to suspect that relevant provisions have been contravened".
So we have this position. If the officer wants to inspect the books under paragraph 3(c) he must have reasonable cause to suspect that something is wrong. But if he wants to go into the warehouse of the trader not to inspect the books but to examine the goods, he apparently can do that under 3(a) without having any reasonable cause to suspect that all is not well.
§ Pausing there, this is a curiosity—is it not? Granted, the dishonest trader will probably hide the goods and cook the books. But we were told more than once that this is not a Bill the purpose of which is purely to catch and punish dishonest traders. This is a Bill that will also guide and warn honest traders. It is a curiosity that although the officer may only look at the books if he has grounds to suspect that something is wrong, he can inspect the goods without having those suspicions.1255
§ Would not your Lordships think that an officer, knowing that certain goods were unsafe goods, and wishing to find them and to warn honest traders about them, would have a good deal more luck if he were able to sit in a corner of the office of the trader and go through the stock books and look at the descriptions of the goods in the stock books? Would that not be a quicker operation, and probably more effective, than going into the warehouse and rummaging about among the goods themselves? However, if he wants to look at the books he may do so only if he has grounds for suspicion. Yet, apparently, under 3(a) he may go into the warehouse and inspect the goods on a purely spot check basis.
I say that paragraph 3(a) appears to give him these powers because of this question that immediately comes to anybody's mind: What happens if the trader does not let the officer into the warehouse? Not surprisingly the promoters of the Bill thought of that one. They provided for it in paragraph 5, which says that if the officer has been refused entry by the trader he may go before a justice of the peace and complain that entry has been refused to him; and then,
If a justice of the peace on sworn information in writing—
(a) is satisfied that there is reasonable ground to believe…
(ii) that relevant provisions have been…contravened
and so on, then, and only then, the justice may issue a warrant to admit the officer to the warehouse. But that can be done only if the magistrate is satisfied that there are reasonable grounds for suspicion.
§ When one considers paragraph 3(a) in the light of paragraph 5, one finds that the enforcement officer can enter the warehouse to do a spot check if the trader gives him permission to enter, but if the trader refuses him that permission, there is absolutely nothing that the enforcement officer can do about it if he wants to persist in his spot check. It is no use his going to the magistrate, because the magistrate will say, "I can give you a warrant only if you show me reasonable grounds for suspicion, and if you can't do that, I can't give you a warrant to go spot checking". So the enforcement officer is absolutely stuck. Paragraph 3(a) is an empty shell. It 1256 purports to give power of entry for spot checking which simply cannot be enforced under the rest of the Schedule.
§ One may ask, why does the Bill not give the magistrate the power to grant a warrant in a proper case where he thinks that the officer has been refused entry to make a routine spot check? It would be perfectly easy to write such a provision into the Schedule, and then paragraph 3(a) would make sense. Why is this not done? I can only hazard that the reason that it is not done is that the Promoters of the Bill strongly suspect that Parliament simply would not stand for it. I should not be surprised if, in the course of a series of consumer protection Bills, the ground has been tested in this respect, and it has been discovered that Parliament will not stand for magistrates being badgered with applications for warrants for enforcement officers to be able to go around spot checking when they have no reasonable grounds for suspecting that something is wrong in the premises.
§ I know that precedents for the Schedule can be quoted. Indeed, I know that the Schedule has been copied almost word for word from Section 162 of the Consumer Credit Act 1974. But this, far from seeming to be a satisfactory precedent, is, if anything, a ground for some suspicion. I can only hazard that when the promoters were putting the Bill together, upon reaching the question of enforcement they asked themselves, "What are we going to do about this? There is Section 162 of the Consumer Credit Act. That looks to be roughly about right. If we copy that in our Bill and someone then complains about it, we shall at least be able to say that it is precedented."
§ If that was the approach, all I can say is that it simply is not good enough. Enforcement provisions impinge upon the liberty of the subject. It is extremely unlikely that the enforcement provisions in one Act of Parliament, enacted for one particular purpose, will be satisfactory if they are identically reproduced in some other Bill, enacted for some other, quite different, purpose. I should have thought that the only proper approach was that in every case the minimum necessary enforcement provisions should be tailor-made for the particular Bill in question. 1257 Therefore, I suggest that although precedent may be a good guide in many fields, it may be an unreliable guide in the particular matter we are discussing.
§ In Committee the noble Baroness, Lady Phillips, who has great knowledge of consumer affairs, assured us that the enforcement departments of the local authorities are understaffed and overworked; and I am sure that she was right about that. Even if paragraph 3(a), which I seek to amend, gave an effective power to an enforcement officer to go spot checking—which it does not—I do not believe that the enforcement officers in the local authorities would either want, or need, any such power. I should have thought that spot checking is a very extravagant means of using manpower, by going around the warehouses of innocent traders on the off chance that officers may stumble upon some goods which would be found to be unsafe. I do not believe that the enforcement officers want any such power, or that Parliament would think it right that they should have any such power.
§ I am thankful to be able to think that under paragraph 3(a), defectively drafted as it is, enforcement officers do not have such power. The purpose of the Amendment is to insert at the beginning of paragraph 3(a) the words relating to "reasonable cause", so that the paragraph then makes sense. Thus, if the officer has to have reasonable cause to suspect, and he is turned away by the trader, he can then go and quote his reasonable cause to suspect to the magistrate and obtain a warrant. He will then be able to enter the warehouse. As the Schedule stands at present there is no way that the enforcement officer can enter the warehouse to make a spot check if the trader says, "Oh no, you're not coming in. You've got to go off to the magistrate to show reasonable cause". I beg to move.
§ 7.38 p.m.
§ Lord DARLING of HILLSBOROUGH
My Lords, I was hoping that I would not be called upon to take part in the debate, and your Lordships will understand my position when I declare my interest. I am the honorary president of the Institute of Trading Standards Administration, which is the 1258 professional body of the enforcement officers to whom the noble Lord has referred. I must say on their behalf that I have to disagree with most of the arguments, and certainly the conclusions, that the noble Lord has put forward. I do so from experience—the officers' experience, not mine.
I want to tell your Lordships that the noble Lord's suggestion that the Schedule is based on only one or two precedents is quite wrong. This is the kind of Schedule that appears in all the consumer protection legislation. It has an honourable history, and it is probably appropriate that we should celebrate it, as it were, this year, because the right of unrestricted entry on the part of enforcement officers first appeared in the major Weights and Measures Act which was passed in 1878. Ever since then enforcement officers have been enjoying the right of unrestricted entry for the purpose of carrying out their statutory duties. In a few moments I shall quarrel with the description "consumer protection legislation", but it will do for the present. Every piece of what we call consumer protection legislation which has followed from that enactment—in particular in recent years with, in 1961 the Consumer Protection Act, in 1963 the new Weights and Measures Act, in 1974 the Trade Descriptions Act, then the Fair Trading Act and all the other Acts that have come along during this period—has this Schedule in it.
If these Amendments are carried, the effect is going to be that the enforcement officers (as for the moment we must refer to them) will be able to go into any business premises for the purpose of carrying out all their statutory duties—dealing with the scales in a grocer's shop, making sure that goods are honestly labelled in a supermarket, dealing with fertilisers and feeding stuffs for cattle and dealing to a certain extent with public health—except for one thing.
If the noble Lord's Amendments are carried, they cannot go and look for dangerous goods; they cannot go and look for the goods against which this Bill has been devised to protect the public, the goods which will cause death and injury. The Bill lays down quite clearly how the specifications are going to be arrived at and what the legal descriptions 1259 of dangerous goods will be; but the noble Lord is going to put restrictions upon the enforcement officers, the trading standards officers, if they go searching for dangerous goods.
The noble Lord said that what he wants to stop—and I would agree with him in this—is the enforcement officers going off on "fishing expeditions". That was the phrase he used in his previous speech; it is now "spot checks" I would suggest that paragraph 3 has nothing to do with spot checks or fishing expeditions. What the trading standards officers are concerned about is this. When the notice of the sale of dangerous goods comes along, whatever they may be—it may be that decorative lamp which the noble Lord, Lord Mottistone, referred to—their first concern is to get them off the market, to make sure that people do not buy them, to get them out of the stock rooms of traders, to trace the importer who brought them in and make sure he is not going to sell any more. Because most of these dangerous goods are in fact imported; most of them are not manufactured in this country, they are imported—and, as the noble Lord said, usually from the Far East. The primary job of your trading standards officer is not to go searching for evidence for a prosecution at that stage: his job is to get the things off the market, to stop people buying them; and for that job, which must be done quickly, he must have unrestricted access to the premises in which the goods may be found.
There are other aspects of the noble Lord's proposals which I am quite sure he has not considered. As I have said, under all these Acts of Parliament the trading standards officer has the right of free access to business premises. In which kind of shop are you going to find these dangerous goods? I would suggest that a possible source of supply to the customer is the general hardware store which sells everything from lawn mowers to tintacks, crockery, cutlery, seeds, garden implements and all the rest of it. I do not know—I am making a guess—but I should imagine that the public control of all the goods in a shop of that description would come under about five different Acts of Parliament. The trading standards officer has access to that shop. He can go in quite freely, 1260 produce his card and say, "I am going to test the scales on which you measure the tintacks", or whatever it may be. He produces his card, and he can go and watch for all the other things—except this one. Because if he then says to the shopkeeper, "I want to know whether you have been selling any of these dangerous goods", and gives a description—in this case, this decorative lamp, which is a very good example—at that moment he is committing an offence under this Bill if the noble Lord's Amendments are carried. He has no right to do it unless he has ground for suspecting that the shopkeeper—perhaps the noble Lord would wait one moment—has been selling these things and has them in stock. If he has no ground for suspecting that; if he is merely saying, "Have you sold any of these things? Have you any in stock? Give me the information", that is an offence if the noble Lord's Amendments are carried, surely.
§ Lord AIREDALE
My Lords, what offence is this? How is the noble Lord going to frame the charge for that offence? I have never heard of such a thing.
§ Lord DARLING of HILLSBOROUGH
My Lords, I am not worried about a charge. He is seeking information to get dangerous goods out of the hands of customers, which is a point which the noble Lord does not seem to understand. That is the purpose of the Bill. At some point there may be a prosecution when somebody has offended against the terms of the Bill, clearly laid down. But I am not sure that in those circumstances the shopkeeper will be prosecuted. What the noble Lord does not appear to understand is that these trading standards officers are far more concerned with giving advice, in being helpful to honest traders, than they are in prosecuting; and I think—
§ Lord DARLING of HILLSBOROUGH
My Lords, the noble Lord did not say it in those terms, and he certainly would not say it in the terms that I am going to develop very briefly, because I do not want to go on too long. Only a month ago I attended a conference of 1261 400 production line managers, some of whom came from members of the trade association of the noble Lord. That was a conference about how, with the help of trading standards officers, they are going to deal with metrication and the changeover from minimum weight to average weight. I do not want to go into these technical details, but this is the job of work they do. Prosecutions are expensive; they take time. The noble Lord, who I gather is a lawyer, will know that lawyers are expensive; and no public authority wants its trading standards officers to be spending a lot of time in the courts. In fact, the offences that are not prosecuted—real offences—greatly outnumber those which are prosecuted. So it is quite fallacious to suggest that all that these people are doing is going around on fishing expeditions. They do not go round on fishing expeditions; they do not go round spot checking in the way that the noble Lord described. They go round to make sure that the law is being carried out.
Quite obviously they cannot go to all the shops, all the warehouses, all the manufacturing plants, in the country; they have to be selective. This is where another aspect of it which I am quite sure the noble Lord has not considered comes into play. The vast majority of manufacturers and traders in this country are perfectly honest. They not only obey the law, but they are very glad to have rules laid down for them, because if we can force everybody to obey the rules that they accept, then you get fair competition; you have nobody breaking the rules. What the trading standards officer is doing is seeking the people who do not obey the rules. He does not go round harassing the manufacturers and the traders who he knows very well are obeying the rules. He will go into their business premises, in many cases being welcomed—he is invited in—to help them deal with their stock control, to make sure that the goods which are coming out of the factories are up to standard and do obey the rules. But the person he is chasing is the person who does not obey the rules—the shyster, the cheap importer of dangerous goods. That is the chap he is chasing; and, in order to get his information, he must go unrestricted into business premises to get it.
1262 I said that this had been going on for 100 years. If the noble Lord could have produced any evidence at all of this right of free entry being abused, if he could have brought any evidence from trade associations saying, "The trading standards officers, the enforcement officers, are harassing us; they are a nuisance to us; we want their activities stopped", I should have listened more patiently to the noble Lord. But there is no evidence. I can tell him that the vast majority of manufacturers in this country would give him no thanks for putting these Amendments on the Statute Book because the only people who will benefit from them are the shysters, the importers of cheap materials; because assuming these Amendments are accepted, and I hope they are not, they will now have what the noble Lord referred to on a previous occasion—instructions given them on how to prevent the trading standards officer from coming into their premises to find out whether the law is being broken. They are the only people who will benefit from the noble Lord's Amendments. I do not want to develop this any further, but I hope that he will have second thoughts about this and will withdraw his Amendments.
§ 7.51 p.m.
§ Lord MOTTISTONE
My Lords, I must thank the noble Lord, Lord Darling, very deeply because he has said all that I would have tried to say but he said it so much more excellently based on his real experience. Indeed, he has clarified for me several points which I hope he has also clarified for the noble Lord, Lord Airedale. As a result I shall say only half the things I was going to say. The only point that he did not stress, but which I would like to stress, is that we are dealing with a consumer safety Bill, we are dealing with measures basically to protect the average consumer of today from being harmed by goods which, for one reason or another, can harm or even, possibly, kill him. That is the main purpose behind it. Whereas perhaps in 1878 there was not all that amount of goods on the market which ordinary people could lay their hands on, now there is a vast range of goods. Happily, because of various protective measures taken over the last century, most of the bad articles are not made in this country; and they do not come only from the Far East but also from places like 1263 Italy, so one must be vigilant to protect the average consumer because he is confronted with gadgetry whose details, frankly, he does not have the expertise to know. That is why I, personally, think that this Bill, which is an improvement on its predecessor of 1961 and has learnt from the experience of that one, is important and worth promoting.
Turning to the Amendment of the noble Lord, Lord Airedale, for the reasons given so explicitly by the noble Lord, Lord Darling, it really seems to me that the emphasis of Lord Airedale's Amendment loses sight of the underlying need to protect the unwitting and not-very-well-informed consumer. He is dealing with a fundamental point. If he had been arguing about VAT inspectors who are only seeking money for the great Government, then I might have found myself going with him. Perhaps I should not have instanced VAT but instead the Inland Revenue; then I would be attacking the Government instead of my own Party. If we had been talking about somebody who is money-grabbing for the Government, I would be with him. But this is a narrow balance coupled with great experience as to what is possible and what is not possible, a narrow balance of trying to produce an Act of Parliament which is sufficiently safeguarding the consumers and safeguarding as much as is reasonable the people who supply them with goods.
In another place, this was gone into in great detail and many Amendments were included, the bulk of which safeguarded the supplier rather more than the consumer. We have had further Amendments in this House as a result of undertakings by the Government in another place which have furthered that aim in some respects. I am thinking particularly of the Amendments relating to the restraints on disclosure of information obtained in this process. Every effort has been made to get this in the right balance. All the experience available (which the noble Lord, Lord Darling, gave us in such detail) has been taken into account and therefore I must ask the noble Lord, Lord Airedale, to accept the fact that if this Amendment were included it would be definitely to the detriment of the consumers' safety which the Bill is designed to promote.
§ The LORD CHANCELLOR
My Lords, if I may intervene briefly, I would submit that the effect of the Amendments would be to inhibit seriously the preventive role of the enforcement authority under the Bill. I think it would greatly erode its effectiveness. I say so for this reason. These—whatever they may be called—visits, routine checks (and I will not say "spot checks" for this is a term of abuse) are to be made by the enforcement officers; but they can only do so if they have reasonable cause to suspect that the relevant provisions have been contravened. If they have no such reasonable cause they cannot enter; they would not be entitled to enter the premises. As my noble friend Lord Darling has said, they go and they search. They may not have any idea before entering the shop if any offending material is there.
On two matters which were raised by the noble Lord, Lord Airedale: he invited your Lordships to consider the distinction between the provisions in paragraph 3(a), which do not provide for the requirement of reasonable cause to suspect, and 3(c). Paragraph 3(c) begins to operate only after the processes of entering under (a) and having a look round or examining under (b) have been carried out. Then, after inspection of the goods has shown that there is reasonable cause for suspecting a contravention of the requirements, it will enable the supplier of the goods to the trader to be discovered and other matters of that importance to be followed up. In addition, if the offence is suspected, inspection of the books at that point becomes right and necessary.
On the other point which the noble Lord, Lord Airedale, made—suggesting by reason of the terms of paragraph 5 that the remedy is ineffective because the enforcement officer, not having any reasonable cause to suspect, could not provide the necessary information to the magistrate—the remedy for obstructing the enforcement officer is in paragraph 10 of Scheule 2:Any person who…wilfully obstructs an officer of an enforcement authority acting in pursuance of this Schedule…shall be guilty of an offence…".The way of enabling the enforcement officer to do his job is provided for (as I understand it, at any rate) by that provision of the Bill. It is of some comfort 1265 to be reminded, as we have been, that a whole mass of similar provisions in the law to protect the health and safety of the public—and I will not list them—contain similar rights of entry. It is also reassuring to be informed (as I have been) that not only do the Local Authorities' Association want the powers of entry as they stand but the Consumers' Association consider them to be essential, and the CBI and trade associations have not objected to them in any way.
In the light of all those considerations, it may be that the noble Lord, Lord Airedale—I will not call him a "village Hampden" but a noble Hampden—will feel, having ventilated this, that perhaps the public interest is best served in his not pressing the Amendment.
§ 8 p.m.
§ Lord AIREDALE
My Lords, I really am astonished about this. With the very greatest respect to the noble and learned Lord the Lord Chancellor, who has had a very busy day today, how can he say upon reading paragraph 3(a)—if I heard him aright—that the officer may enter the premises only if he has reasonable cause to suspect?
§ The LORD CHANCELLOR
My Lords, I was saying that that was the effect of the noble Lord's Amendment.
§ Lord AIREDALE
I beg the noble and learned Lord's pardon. Now I understand, my Lords. The next point, which I do not understand, is this. The noble and learned Lord says that sub-paragraph (c), the inspection of the books, arises only after there has been entry into the premises for the inspection of the goods. But this is not the case. The books will not be in the warehouse or in the shop where the goods are. The books will be in the office. Under sub-paragraph (c) it is quite clear that the officer, if he has reasonable grounds to suspect something, may demand to examine the books in the office without going anywhere near—
§ Lord AIREDALE
I will just finish my sentence. My Lords, I was saying that, 1266 without going anywhere near the warehouse or, for that matter, the shop, he could go to the company's offices and inspect the books if he had reasonable cause to suspect all was not well.
§ Lord AIREDALE
My Lords, I daresay very often that is so. The point is that the noble and learned Lord the Lord Chancellor stated that paragraph 3(c) does not operate until after the officer has entered the shop or warehouse. I am saying this may be totally untrue because the office, if it is a multiple store, may be miles away from the store. Do let us get the facts right.
§ The LORD CHANCELLOR
My Lords, if the noble Lord will permit me to interrupt, until the enforcement officer thinks that there has been a contravention and then has reasonable cause to think that the books ought to be looked at in order to find the supplier and all the other sources, that stage is only reached after the initial discovery which is contemplated as a result of sub-paragraphs (a) and (b), I should have thought.
§ Lord AIREDALE
My Lords, with great respect, the noble and learned Lord might think that, but I do not think that is what the Schedule says. We shall have an opportunity to look at this again. The point about this debate is that I do not think there is anything between us as to what we want to achieve. The burden of my argument on this Amendment is really it is almost a drafting Amendment. What I am saying is nothing to do with what we seek to achieve. I am saying that what the Bill seeks to achieve, it does not achieve. The noble Lord, Lord Darling of Hillsborough, said he would have listened to me more patiently if I had said something else. The noble Lord was very patient and listened to me without interruption, and that is more than I can say about his speech which I interrupted.
Neither the noble Lords, Lord Darling, and Lord Mottistone, nor the noble and learned Lord the Lord Chancellor dealt with the main burden of my argument. It is this: if the trader says to the officer "You are not coming into my warehouse", 1267 how does the officer get in? He is entirely without a remedy. All he can do is to go to the magistrate for a warrant. The magistrate will say: "If you are only making a routine visit, it is quite clear in sub-paragraph (5) that I have not got the authority to give you a warrant". The officer is absolutely stuck. That is a bad thing.
I shall try to explain this. There are two ways to resolve this ridiculous state of affairs. One is to give the magistrate the authority to issue the warrant if he thinks it is a proper case for a routine visit. The trouble about that is that the promoters do not seem to think that Parliament will stand for it, so that seems to be out. Next is to recognise that paragraph (3)(a) in its present form is ineffective because the officer is unable to act upon it on the refusal of the trader to let him in. I suggest by this Amendment that we make paragraph 3(a) make sense by making it say that it operates only if the officer has reasonable grounds to suspect, because that is the true position.
§ Lord MOTTISTONE
My Lords, if the noble Lord will allow me, taking him a long way back in his track, I think that he was in error in saying that in the event that the officer was refused entry, and he went to the magistrate, invariably the magistrate would refuse him a warrant. Surely the fact that he was refused entry might, under certain circumstances, be held to be a very good reason for getting the warrant. It depends on the circumstances. That surely is pushing the argument too far.
§ Lord AIREDALE
My Lords, I was interrupted in the course of a speech I was making. I am now replying to that interruption and I hope that 1 am in order. If the officer asks for entry into the warehouse and the trader against whom he has no suspicion says, "No, you are not coming in unless you can get a warrant from the magistrate", if the magistrate is going to say that is ground for suspicion against the warehouse owner who merely refuses entry, I do not know what we are coming to.
The noble and learned Lord points out that there is a paragraph headed 1268 "Obstruction". Of course there is; but it is no coincidence that subparagraph (10) which deals with obstruction comes after subparagraph (5) which deals with the power of the magistrates to grant a warrant. The purpose of the paragraph is to deal with the situation that arises after the officer has his warrant and the trader still refuses admission to the premises. It is at that stage that the officer could say: "You are obstructing me in the exercise of my duties because even though I have a warrant, you will not admit me to the premises". Until that stage is reached, I do not believe that the obstruction paragraph comes into play.
If we were to divide on this matter it looks doubtful whether a quorum would be achieved. The matter would remain undecided, and we should have to come back to it at a later stage. So I had better not take that course. There is always a chance that before the next stage of the Bill we may be able to think about this and perhaps have discussions, and possibly come to some arrangement and shorten the proceedings on these Amendments when we get to Third Reading. That being so, the only proper course for me is to beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 5 not moved.]