HL Deb 30 June 1978 vol 394 cc555-78

11.7 a.m.


My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Mottistone.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ABERDARE in the Chair.]

Clause 9 [Interpretation]:

Lord MOTTISTONE moved Amendment No. 17: Page 11, line 2, leave out ("for a period").

The noble Lord said: With the leave of the Committee I should like to take Amendments Nos. 18 and 19 with Amendment No. 17. As Clause 9(2) is at present worded it could be held that the exemption at the end of the subsection applies only to a hiring or loan for a fixed period, and not to a hiring or loan which is determinable by notice by either party but which is not expressed to be for a specified period. The present exemption in Section 2(6) of the Consumer Protection Act 1961 for goods which are let on hire is not limited to a hiring for a period but looks to whether the supply was lawful at the time when it began. This is surely right, and the effect of the three Amendments is to amend Clause 9(2) to bring it into line with the situation which exists at present under the 1961 Act. I beg to move.

On Question, Amendment agreed to.

Lord MOTTISTONE moved Amendment No. 18: Page 11, line 3, leave out ("the continuation of") and insert ("anything done in pursuance of the arrangements for").

On Question, Amendment agreed to.

Lord MOTTISTONE moved Amendment No. 19: Page 11, leave out line 4.

On Question, Amendment agreed to.

Lord WALLACE of COSLANY moved Amendments Nos. 20 and 21:

Page 11, line 35, leave out second ("and").

Page 11, line 37, leave out from ("1970") to end of line 38 and insert (",medicinal products within the meaning of the Medicines Act 1968 (except cosmetic and toilet products as defined by regulations made by the Secretary of State) and controlled drugs within the meaning of the Misuse of Drugs Act 1971, except drugs which are excepted from section 4(1)(b) of that Act (which makes it unlawful to supply a controlled drug) by regulations under section 7(1)(a) of that Act;").

The noble Lord said: with the permission of the Committee I should like to take Amendment No. 21 with Amendment No. 20. The second, and principal Amendment, has two purposes. First, it brings within the scope of the Bill cosmetic products and toilet preparations which would otherwise be excluded by the exclusion of "medicinal products" from the definition of "goods" in Clause 9(4). Second, it excludes from the scope of the Bill "controlled drugs", the supply of which is controlled under the Misuse of Drugs Act 1971.

The definition of "medicinal products" in Section 130(1) of the Medicines Act 1968 is such that it includes many cosmetic products and toilet preparations. It is appropriate for requirements relating to the safety of the great majority of such products to be imposed under the powers provided by the Bill and not under the Medicines Act and it is therefore necessary to take them out of the exclusion of "medicinal products" from the definition of "goods" in Clause 9(4). This is one effect of the second of the two Amendments, the first being a minor consequential Amendment.

The proposed Amendment also excludes from the scope of the Bill drugs which are subject to the controls relating to the supply of drugs under the Misuse of Drugs Act 1971. The regime of control provided by that Act is comprehensive and there can be no occasion for the exercise of the powers in the Bill in relation to "controlled drugs"—a term which is defined in the 1971 Act as including products containing such drugs. It is appropriate therefore to exclude "controlled drugs" from the definition of "goods" in the Bill and thus to remove them from its scope. The exclusion of medicinal products from the scope of the Bill was effected by an Amendment in another place. The Government are considering whether it would be appropriate to make some of the powers provided by the Bill—for example, those relating to prohibition notices and hazard warning notices—available in respect of medicinal products, and may seek an Amendment at Report stage enabling this to be done. I beg to move.

On Question, Amendments agreed to.

Lord WALLACE of COSLANY moved Amendment No. 22: Page 11, line 44, at end insert (""publicised information", in relation to a disclosure, means information which, before the disclosure occurred, was published in proceedings mentioned in paragraph (a) or (b) or in a warning mentioned in paragraph (e) of section 4(3) of this Act;").

On Question, Amendment agreed to.

Lord MOTTISTONE moved Amendment No. 23: Page 12, line 2, after ("and") insert ("any risk of").

The noble Lord said: This is a drafting Amendment intended to make it quite clear that goods which do not give rise to risk of death but give rise to risk of injury may be regarded as unsafe.

On Question, Amendment agreed to.

11.14 a.m.

Lord TREFGARNE moved Amendment No. 23A: Page 12, line 4, leave out ("might") and insert ("are designed to be or might reasonably").

The noble Lord said: I move this Amendment on behalf of my noble friend Lord Lyell, who unhappily is not able to be here today and who has asked me to express his apologies to the Committee. This is in the nature of a probing Amendment but, like all good probing Amendments, has the merit of being suitable for inclusion in the Bill if the probing proves to be ineffective, which I am sure will not be necessary on this occasion.

It seems necessary to put beyond reasonable doubt that the Bill does not confer on consumers protection which is too wide and more than was originally intended when the Bill was drafted. Consider the case of a carving knife, which, if used properly for the purpose for which it is designed, does not cause undue injury—at least not unless something untoward occurs. On the other hand, if the carving knife is used for purposes for which it is not designed—for example, cutting string on a parcel or something of that sort—it is easy to cause a nasty injury, and I do not think it would be right for consumers to be protected unduly against the liability of the manufacturer if they were to so misuse the implement.

The noble Lord, Lord Lyell, has suggested that I should draw a distinction between what might be called risky use and anticipated use, and I believe these would be useful words to consider in this context. Let me give another example: consider an electrical appliance where a plug supplied or manufactured by a different person is fitted to the appliance at or shortly after the time of purchase, and it then proves to be faulty. We understand that the liability to the consumer is even less clear in such circumstances; perhaps my noble friend Lord Mottistone would explain the meaning of the word "safe" in that example.

Another possibility has come to our attention. Apparently there was a case in America where a lady bought a set of electric hair curlers, but instead of using them on her own hair she used them on her poodle's hair, and, not being designed for that purpose, unhappily the poodle suffered injury and indeed died. One wonders whether the manufacturer of those hair curlers would, under this Bill, be liable for the injury to the animal. There is a certain area of lack of clarity on this point and I hope Lord Mottistone will be able to set my mind at rest.


I support the Amendment. One always finds the odd lunatic who leaves a sharp knife lying about in the children's playroom or something of that kind and I hope it will be explained to us that a situation of that sort is not intended to create a state of unsafety within the meaning of the Bill.


I understand that an American court awarded damages to a man who used a hedge-trimmer to cut his hair and suffered injury thereby.


To take up the point made by my noble friend Lord Drumalbyn, we are not takling about product liability, which was, I think, his example; we are talking about a definition of "safe" within the meaning of the Bill, and it needs to be thought of particularly in connection with the safety regulations and the various orders and warnings which may be created as a result of the Bill.

The Amendment would alter the definition of "safe" in Clause 9 and would thus be central to the powers in the Bill. Its effect would be to prevent goods from being regarded as unsafe for the purposes of the Bill if the risk of injury arose from a misuse of the goods. That restriction would not apply where the goods themselves caused injury but would apply, as the Amendment is drafted, where injury was caused by circumstances in which the goods were used or kept.

That brings us to the two points made by my noble friend Lord Trefgarne and endorsed by the noble Lord, Lord Airedale; but I will give two examples of my own and then return to those points. Unfortunately people, and particularly young children, are not always reasonable in the use to which they put goods. It may not be considered reasonable to open the door of a spin dryer while it is revolving at several hundred revolutions per minute, but a number of accidents have occurred in that way and it has been accepted that, on that account, an interlocking device is needed which prevents the cover of a spin dryer being opened while it is revolving.

Your Lordships will note that this is a safety device which is added to the goods in order to make them safe. If one uses a knife for a purpose for which it is not designed, it is not possible to have that kind of provision which is effective, and so, in that kind of circumstance, no safety regulations in the world will protect people from cutting off their fingers with inappropriate knives. However, there are events and occasions where safety measures can be taken, such as the example I have quoted. Another example is that it is not reasonable for children to insert their fingers or metal implements into electric wall sockets, but before safety shutters were incorporated they did so, with sometimes fatal results. To prevent the Government from imposing safety requirements such as these would seriously limit the effectiveness of the safety regulations.

To come to my noble friend's point about the faulty plug that might be attached to an electrical appliance, standards are established for the design of electric plugs and it could well be that under the terms of Clause 1(2)(c) such plugs will become more widely used, if not used exclusively. For that purpose I think this problem would be met. It will very frequently be necessary to include in safety regulations requirements which take account of aspects of misuse. To prevent the Government from including provisions to this end in safety regulations would be to narrow the scope of safety regulations unacceptably.

I hope that my explanation will satisfy my noble friends and the noble Lord, Lord Airedale. I think that the restriction that this Amendment would create would not be in the best interests of the Bill. With regard to the comment I heard from over my left shoulder from a noble friend, not having attended the Second Reading debate perhaps he would not be aware that this particular Bill is to bring up to date the Consumer Protection Act 1961, which was passed by the Conservative Government of the time.


I do not think that there is any purpose in pursuing this matter at any great further length. However, I am still worried about the case of the carving knife, which my noble friend did not deal with. Can my noble friend tell me, before I withdraw this Amendment, whether a carving knife continues to be thought safe when it is used for purposes for which it was not designed? If a consumer chooses to use a carving knife, for example, for cutting string on a parcel, for which it is obviously not intended, and thus does himself an injury, is he, or is he not, protected by this Bill? If he is, it is right that he should be.


May I take up this point? If we go on like this we shall arrive at the point of trying to make everything foolproof. The fact of life is that nothing can be made foolproof because fools are so ingenious.


I hoped that I had answered this point. The fact is that some pieces of equipment are involved—and knives are a good example. Even I have cut myself many times with knives when using them, no doubt, for purposes for which they were not intended. The point about this is that we cannot have safety regulations which will guard against every known circumstance. What we can do is to have safety regulations which, where appropriate, can call for modifications to equipment to make it safer against being used for the wrong purpose, as in the two examples I quoted. That is as far as one could go.

It is true that we can say that this kind of legislation is only dealing with fringe events. But that is not really so, because the kinds of cases which we were talking about on Second Reading—I do not want to go over the Second Reading debate again—such as shutters on electric sockets so that children cannot put their fingers in them, form a very wide application. This is a reasonable thing to do, but it would not be possible under my noble friend's Amendment.


Could it be added that we must bear in mind that if people are going to cut string on parcels with carving knives there is nothing that the manufacturer of the carving knife can do about it?


Yes. That is exactly the point. As there is nothing that the manufacturer can do, should he then be liable for the injuries that are caused? I am bound to say that I am not entirely satisfied with the answer that my noble friend has given. It may well be that my noble friend Lord Lyell will want to return to this matter at another stage of the Bill. In the meantime, however, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Lord MOTTISTONE moved Amendment No. 24: Page 12, line 4, at end insert (",and for the purposes of section 1 of this Act the Secretary of State shall be entitled to consider that goods containing radioactive substances are safe or not safe by reference to the radiation from the goods and from other sources and to the consequences of the radiation for users of the goods and other persons;").

The noble Lord said: With the leave of the Committee I should like to take as well Amendment No. 39. The purpose of Amendment No. 24 is to enable the Secretary of State, in considering whether to make safety regulations relating to goods containing radioactive substances and the provisions of such regulations which may require such goods to be approved before they can be marketed, to take account of the peculiar risks of radiation. The level of radiation of goods containing radiation may not itself be such as to cause personal injury to the user. But that amount of radiation, together with radiation from other sources, may give rise to a risk of injury because of the cumulative effect of exposure which is peculiar to radiation hazards. Another matter which must be taken into consideration in making safety regulations is the likely increase in the overall population dose if the supply of any goods containing radioactive substances is to be permitted. Amendment No. 24 enables both these matters to be taken into consideration.

Amendment No. 39, which is an Amendment to the Long Title of the Bill, is consequential upon Amendment No. 24. The Long Title, with its reference to the safety of consumers—specifically consumers—is no longer adequate since regulations involving radioactive substances will take account of persons other than consumers. I should perhaps add that it has been questioned whether other powers are not available in existing legislation. I can say that there are no powers to satisfy this particular point with regard to the Title in the existing legislation except in relation to Community Directives, which control the supply of goods containing radioactive substances. I beg to move.

On Question, Amendment agreed to.

Clause 9, as amended, agreed to.

Clause 10 [Repeals and transitional provisions]:

11.29 a.m.

Lord WALLACE of COSLANY moved Amendments Nos. 25, 26 and 27:

Page 12, line 20, at end insert— ("(1A) If a draft of regulations under section 1 of the Consumer Protection Act 1961 is approved by a resolution of each House of Parliament, a statutory instrument containing the regulations shall not be subject to annulment in pursuance of subsection (6) of that section.")

Page 12, line 21, leave out ("Consumer Protection Act") and insert ("said Act of").

Page 12, line 38, leave out ("(2) and") and insert ("(1A) to").

The noble Lord said: In some cases safety regulations made under this Bill will necessitate consequential amendments or revocations of regulations under the 1961 Act. The purpose of the Amendments is to enable the safety regulations, and the consequential amendments or revocation of the 1961 Act regulations, to be made in the same instrument. But for this Amendment, the safety regulations under the Bill would be subject to Affirmative Resolution procedure, and the consequential regulations, amending or revoking the 1961 Act regulations, would be subject to the Negative Resolution procedure and would not, therefore, have been able to be made in the same instrument. The Parliamentary procedures for making regulations under the Consumer Protection Act 1961 and under the Bill differ. The former specifies the Negative Resolution procedure while the latter requires the Affirmative Resolution procedure to be followed. It will be convenient if, when safety regulations made under the Bill necessitate amendment or revocation of regulations made under the 1961 Act, the amendment or revocation can be effected in the same Statutory Instrument as safety regulations. I beg to move these Amendments en bloc.

On Question, Amendments agreed to.

Clause 10, as amended, agreed to.

Clause 11 [Application to Northern Ireland]:

Lord MOTTISTONE moved Amendment No. 28: Page 13, line 15, leave out ("of this Act").

The noble Lord said: This is a drafting Amendment. The words which it is proposed to leave out are unnecessary. I beg to move.

On Question, Amendment agreed to.

Lord MOTTISTONE moved Amendment No. 29: Page 13, line 45, at end insert ("and in section 10(3) the word "(2A)" shall be omitted").

The noble Lord said: This, too, is a drafting Amendment. In the Consumer Protection Act (Northern Ireland) 1965 there is no Section 3(2A). I beg to move.

On Question, Amendment agreed to.

Clause 11, as amended, agreed to.

Clause 12 agreed to.

Schedule 1 [Prohibition orders, prohibition notices and notices to warn]:

Lord MOTTISTONE moved Amendment No. 30: Page 15, line 8, after ("this") insert ("Part of this").

The noble Lord said: This is purely a drafting Amendment. I beg to move.

On Question, Amendment agreed to.

Lord WALLACE of COSLANY moved Amendment No. 31:

Page 19, line 21, at end insert— ("23A. If a person discloses a secret manufacturing process or a trade secret contained in information obtained by him in consequence of the inclusion of the information in written or oral representations made in pursuance of this Part of this Schedule or in a statement made by a witness in connection with such oral representations, then, subject to the following paragraph, he shall be guilty of an offence and liable, on conviction on indictment, to imprisonment for a term not exceeding two years and a fine and, on summary conviction, to a fine of an amount not exceeding the statutory maximum; and it is hereby declared that the reference above to written representations includes such written representations as are mentioned in paragraph 19 of this Schedule.

23B. A person shall not be guilty of an offence under the preceding paragraph in consequence of his disclosure of a process or trade secret contained in information if—

  1. (a) the information was obtained by him as a person appointed by the Secretary of State in pursuance of this Part of this Schedule to consider the representations in question and the disclosure was made in his report to the Secretary of State about the representations or was made for the purpose of criminal proceedings or an investigation with a view to such proceeding; or
  2. (b) the information was obtained by him otherwise than as a person so appointed and the disclosure was made as mentioned in paragraphs (a) to (e) of section 4(3) of this Act; or
  3. (c) the disclosure was of publicised information.")

The noble Lord said: The Amendment implements the undertaking given by my honourable friend the Minister of State in another place. The proposed Amendment prohibits the disclosure by a person, appointed under paragraphs 10. 16 or 19 of Schedule 1, of any information relating to a secret manufacturing process or a trade secret contained in written or oral representations, or given by a witness in connection with oral representations, otherwise than to the Secretary of State, or for the purpose of any criminal proceedings, or any investigation with a view to such proceedings.

This information should also be protected after it has been disclosed to the Secretary of State. The proposed Amendment accordingly also makes the disclosure of the information—about secret manufacturing processes or trade secrets—by any other person an offence, unless the disclosure was made for one of the purposes specified in paragraphs (a) to (e) of Clause 4(3). However, it would hardly be reasonable to make it an offence to disclose the information concerned if it had already been made known to the public at large. Paragraph 23B(c) of the Amendment therefore provides that it shall not be an offence if the disclosure was of information which had previously been publicised by way of proceedings mentioned in paragraph (a) or (b) or in a warning mentioned in paragraph (e) of Clause 4(3). I beg to move.

On Question, Amendment agreed to.

Lord WALLACE of COSLANY moved Amendments Nos. 32 to 34:

Page 19, line 43, leave out ("and 21 to 23") and insert (",21 and 23 to 23B").

Page 20, line 7, leave out ("and").

Page 20, line 9, at end insert— ("; and (e) in paragraph 23A of this Schedule the words from "and it is" onwards were omitted and in that paragraph and paragraph 23 B of this Schedule for the references to Part II of this Schedule there were substituted references to provisions of that Part as applied by this paragraph").

The noble Lord said: Amendment No. 32 applies the new paragraphs 23A and 23B to notices to warn, and deletes the reference to paragraph 22, which is not relevant to notices to warn. Amendment No. 33 is purely a drafting Amendment. Amendment No. 34 removes from the provisions against disclosure in paragraph 23A, in their application to notices to warn, references to "other representations" mentioned in paragraph 19. "Other representations" are those made concerning a prohibition notice after it has been in force for a period, possibly bringing to the attention of the Secretary of State changed circumstances concerning the prohibited goods as a basis for revoking or varying the notice prohibiting their supply. They have no corresponding application to a "notice to warn" as, once a notice has been published, that is it. I beg to move Amendments Nos. 32, 33 and 34 en bloc.

On Question, Amendments agreed to.

On Question, Whether Schedule 1, as amended, shall be a Schedule to the Bill.

11.36 a.m.


I hope that I am in order, as is said in the other place, to make a reference here to the Schedule. I should like to make a little caveat by linking Clause 4—dealing with power to obtain information—with the Schedule. This is a safety Bill, and we have inserted into it powers which are very loose. Many years ago a member of my family invented a new process involving a sewing machine. I had better not mention the name of the machine—but it was not a Singer. Ultimately, the machine went around the world. Had the Bill been in existence at that time and had the man concerned talked to his wife about the invention he would have been liable to proceedings.

The firm was able to say that it was no invention of his, but that it belonged to the firm because he had discovered it in the process of doing his job. We have talked quickly about the Bill, but I believe that the position is blurred for someone who, in the process of his job, invents something and then talks in a local pub or club about the invention which he ultimately hopes to patent. A situation could arise in which an innocent inventive mind could be placed in jeopardy. I do not wish to halt this excellent Bill at all, but—


I hope that my noble friend will forgive me for interrupting, but I was afraid that he was about to sit down—


I am about to sit down.


Well, that would be a great pity. A few minutes ago I was about 14 clauses behind in the discussion, and later I found that I was about 17 behind. I have been desperately trying to follow the Bill clause by clause. I am not sure to which Schedule my noble friend is referring, nor which Part, and if he could speak for a little longer I would have time to read them.


I thought that the noble Lord had been listening to the Lord Chairman, and I thought it was quite clear that we were talking about Schedule 1. I did not want to delay the Committee with tautological or rhetorical arpeggios. I feel that I have made my point, and so if any future questions arise on this legislation, it will be noted that this blurred situation had been referred to in Parliament.


I should like to make a comment in response to the noble Lord, Lord Davies of Leek. The Bill is about safety and the Schedule is about the rules for various types of orders and warnings. Clause 4, to which the noble Lord referred, deals with the restrictions on information obtained during the course of certain activities. Various people who might be concerned with enforcing safety are restrained from releasing information to third parties. I think I am right in saying that while there could be circumstances in which the noble Lord's inventive friend found himself at cross-purposes with this provision, in the ordinary course of events he would not, because he is not in the safety game. He is not an official, and he is subject to quite different rules and laws about protecting the confidentiality of his employers, which is a quite separate issue and has nothing to do with the Bill.

Of course if the gadget in question was a safety gadget, which he had devised because he was asked to do so, then the provisions might apply. However, it is perfectly reasonable that in the generality of terms we should protect the manufacturers and sellers of goods from too much of the information which is discovered under the Bill being spread to the world at large. Indeed, the various provisions in the Bill to cover this point were considerably tightened up in the debates in another place, much to the delight of all Parties in that place. So the overall regulations for preservation of confidentiality, which have indeed been further tightened up in this Committee, are what is deemed necessary by another place, and indeed by myself, to protect people from the consequences of any actions which may be taken under the Bill which could be detrimental to their business even if they are being law-abiding and following the safety regulations.

Schedule 1, as amended, agreed to.

Schedule 2 [Enforcement]:

11.41 a.m.

Lord AIREDALE moved Amendment No. 35: Page 20, line 38, at beginning insert ("if he has reasonable cause to suspect that relevant provisions have been contravened").

The noble Lord said: We are now at Schedule 2, which has the heading "Enforcement", and I wish to speak of paragraph 3, which comes under the sub-heading: Powers to enter premises and to inspect and seize goods". Your Lordships will notice that under paragraph 3 there are sub-paragraphs (a) to (f), and, in particular, that sub-paragraphs (c) and (d) both begin with the words, if he has reasonable cause"— and "he" is the enforcement officer— to suspect that relevant provisions have been contravened …

Your Lordships will also notice that those words, referring to acting on suspicion, do not appear at the beginning of either sub-paragraph (a) or sub-paragraph (b); and without those words about acting on suspicion sub-paragraph (a), in particular, appears to give very wide powers indeed to enforcement officers. Perhaps I could intervene here to say that I should have mentioned that I am speaking, if I may, to Amendment No. 36 as well as No. 35, because I think the point involved is very much the same in each case.

What is it that the enforcement officer may do under sub-paragraph (a) without having reasonable cause to suspect that something is wrong? … he may, for the purpose of ascertaining whether any relevant provisions have been contravened, inspect any goods and enter any premises other than premises used only as a dwelling". What do those powers amount to? In order to discover this, one has to read sub-paragraph (a) of paragraph 3 in connection with paragraph 5, and when you come to paragraph 5 you find that if admission to the premises is refused the enforcement officer then has to go before a justice of the peace and, if the justice of the peace is satisfied that there is reasonable ground to believe that something is wrong in the premises, then the magistrate may issue a search warrant. But at that stage the enforcement officer can proceed only if he has shown reasonable cause to suspect that all is not well in the premises.

So we come back to paragraph 3 in the light of paragraph 5, and what does it amount to? It amounts to this: the enforcement officer can go into any premises other than a dwelling on a fishing expedition to see whether he may stumble upon some breach of some regulation if the proprietor says that he may. What power is that, and what need have we of a Bill with a clause which says that? Because that is what an enforcement officer can do today without this Bill. You do not even have to be an enforcement officer. It is a free country; anybody, today, can go to the owner of a warehouse and say, "I should like to look round your warehouse", and, provided he is not refused permission, he can go in and have a look round. So what is paragraph 3 saying? It is just about precisely nothing; so what is the point of having it there?

I can think of only one rather sly and unpleasant reason for having it there. I do not suppose that enforcement officers employed by local authorities act unscrupulously and unfairly—I very much hope they do not—but I suppose that, if there is an unscrupulous enforcement officer, and if he goes to the owner of a warehouse and quotes paragraph 3 but is very careful not to quote paragraph 5, which says, "You can refuse me entry if you want to, and then I shall have to show reasonable cause to a magistrate", then in that sort of way I suppose the enforcement officer can bamboozle some warehouse owner into letting him in without his having to take the trouble to go to a magistrate and show reasonable cause. I am bound to say that I hope the Committee does not approve of these fishing expeditions. To begin with, I always understood that the enforcement officers of local authorities are already very busy men, and I should not have thought they needed the power to go into people's premises on fishing expeditions. They have the weights and measures legislation to supervise as well as all the consumer protection legislation, and I dare say other duties as well; and if they have spare time to go fishing in people's warehouses, I should have thought the ratepayers would very much prefer to see a pruning of the staff of the local authority and a reduction in the rates, rather than fishing expeditions.

I know that this Schedule is very largely taken bodily out of Section 162 of the Consumer Credit Act 1974, but I do not think that excuses us from looking very critically indeed at these powers of enforcement. That Act was enacted for a quite different purpose, and it does not in the least follow that the enforcement powers appropriate to that Act are appropriate to this Bill. I think we must bear it in mind that if we do not scrutinise these enforcement powers very carefully every time, it will happen again. The next consumer protection Bill will have the same enforcement provisions copied out from the 1974 Act, and before we know where we are we shall be faced with a series of precedents against which it will be difficult to argue. I should also like to mention that the 1974 Act was a very comprehensive measure indeed. It ran to 193 sections and five Schedules, and occupies 173 pages of the Statute Book. Therefore, the enforcement provisions there did not give Parliament quite the same opportunity to concentrate on this important enforcement matter as is given by the enforcement provisions of this very much shorter measure.

In winding up his Second Reading speech on this Bill the other day, the noble Lord, Lord Mottistone, said very much these words, that we must get more reasonableness written into this Bill. I very much hope that the Committee will say that, above all, we must have reasonableness written into sub-paragraph (a) of paragraph 3 of Schedule 2. I beg to move.

11.50 a.m.


Perhaps I should say that I have great sympathy with the main theme behind the remarks of the noble Lord, Lord Airedale. I think that we are very wise to consider carefully any powers we give to enforcement officers of any kind to invade the privacy of any premises. I think that that makes a great deal of sense. However, I think that in this particular case it is not unreasonable for these particular sub-paragraphs 3(a) and 3(b) to be in the Bill. The first point I should like to make—perhaps to clear away the point which the noble Lord, Lord Airedale, made about the unscrupulous enforcement officer—is that I would suggest to the Committee that one needs also to consider the unscrupulous traders. This safety Bill (and its predecessor in 1971) came about as a result of Green Papers and White Papers following the reports of Committees. These Committees were careful to point out that 90 per cent. of the manufacturers and traders in this country are very safety-conscious, are perfectly aware of their responsibilities and probably take all the action required under this Bill or under earlier Bills without anybody having to probe them.

However, there is the other 10 per cent. I am sorry that this is rather turning into a Second Reading speech; but many of your Lordships were not present at Second Reading because you were eating. I think it is probably important to widen the issue so that we may see why I object to Lord Airedale's Amendments. The fact of the matter is that in this 10 per cent. or so you get people who will import goods from, say, the Far East which turn out to be faulty. We all know of cases like that. I cannot hastily refer to my notes to give examples, but I do not think that your Lordships will require me to do so.

It is a fact that there are from time to time faulty goods for which special provisions have to be made. Under the 1961 Act there were powers for the Minister or successive Ministers to make regulations, They made only about 18 regulations in the last 17 years, which is not very oppressive extra legislation which needs to be castigated as over-government. It is only about one a year. That gives a measure of the amount of work, so to speak, which results from this Bill. One of the factors made known by the Committee which sat on this, and who reported in 1976, was that they were not satisfied about the 1961 legislation, because there was no obligation on local authorities to assist Government in enforcing these regulations when they come into being. It was strongly recommended by that Committee—and accepted by the Government and by me as being reasonable—that local authorities should be required to provide a back-up to the legislation and the regulations stemming from it.

May we turn now to the particular point made by the noble Lord, Lord Airedale. I would hope that the Committee agree with me that we need balance the unscrupulous enforcement officer,—if he exists—with the unscrupulous trader who is probably much more likely to exist; because, with great respect to noble Lords, in my experience, enforcement officers are very scrupulous, on the whole, in how they carry out their duties. If they were not, they would get the sack So I think that we can take that point away. The question is whether or not what the noble Lord calls "fishing expeditions" are wicked. The difficulty is that if you were to add the noble Lord's Amendment—or even, as I thought at one stage he was suggesting to strike out, 3(a) and 3(b) altogether for he questioned whether they were necessary—the difficulty is, where do you start? You really cannot say that a reasonable ground for going into premises is that that you believe the trader to be unscupulous, crooked or whatever. Apart from the fact that you might render yourself liable to being sued for libel, you must have a start point. As the noble Lord said, anybody, if they wish, can go into any premises with somebody's permission. Therefore, why include these clauses to underline what ordinary people can do? To take that out of the way, the reason for having these clauses, is that if they were not there (or if they were there in the form on which the noble Lord's Amendment would make them) they would provide a restraint on the enforcement officers who would not be able to act like ordinary people. So we must have something in the Bill to make sure that the enforcement officers have the authority to do the "fishing expeditions".

Let us return to the "fishing expeditions."! If it is possible for you and I to go into a premises and find some goods being sold which may be unsafe or may not be marked in accordance with Clause 1(2)(f) of the Bill, for example, is it unreasonable if we report this—because we happen to know, for we have studied the Bill; at least today we have—as a contravention of the safety regulations? I would suggest that it is not. Some people do this kind of thing. They may be nosey-parkers, but they are acting within their rights. These things happen around the real world instead of within the confines of this delightful Chamber. If it is not unreasonable for ordinary citizens to make complaints if they think traders are soing something wrong, why is it wrong for enforcement officers to do the same thing?

Furthermore, the power to enter premises other than dwellings and inspect goods provided by paragraph 3 of Schedule 2, as at present drafted, is consistent with similar powers in other consumer protection legislation—for example: the Weights and Measures Act 1963, the Trade Descriptions Act 1968, the Fair Trading Act 1973, and the Act to which Lord Airedale has referred, the Consumer Credit Act 1974—neatly blanced between Governments of both major Parties and Parliament has, therefore, on several occasions accepted that it is reasonable and appropriate to provide such powers without any qualification that before exercising them an enforcement officer must have grounds for suspecting the commission of an offence.

I should have thought that the only other important point to make is that this Bill (and the regulations which stem from it) has been welcomed by all Parties in another place and, so far, by all Parties in this House. The principle of it is accepted, I think. If these Amendments which the noble Lord, Lord Airedale, seeks to put forward were to be implemented, they would seriously undermine the powers which have been incorporated within the Bill—and those powers are really based on the special Committee's report which sat to consider this matter in 1976. This took the form of a Green Paper which I do not have to hand. I would strongly urge your Lordships not to support this Amendment.

12 noon


Before we move away from this Amendment it is important that it should go on the record that the enforcement officers are already understaffed and somewhat overworked, whether we are talking about trading standards officers or shops inspectors, of whom I have some knowledge. There could be no suggestion that they were having to seek work. The burden of their song would be a different one: that there are not enough of them to carry out the laws which we are constantly initiating in both Chambers of Government.

I admire and respect the work carried out by the noble Lord, Lord Airedale, in consumer activities, in searching through the Bill carefully, but traders themselves exercise the right to have test purchases in another connection. They employ firms to make test purchases to see whether employees are ringing up the right amount of money, or indeed are undercharging to a relative. I think that the noble Lord can rest assured that traders—and, as he has said, we are concerned with honest traders—will not resent this. But I think we should search out and deal with the dishonest traders.


My noble friend Lord Mottistone went rather far when he said that if this Amendment is carried it will undermine the whole purpose of the Bill. I do not think that is so. Whether or not it is a good Amendment is another matter, but it does not threaten the Bill itself. I take a rather more sympathetic view of Lord Airedale's Amendment than do the noble Lord, Lord Mottistone, or the noble Baroness, Lady Phillips. We have to be very careful in granting these powers of search and entry. The Committee will recall the furore that was raised a year or so ago when new powers—or what were said to be new powers—were granted to VAT inspectors and, more recently, to officials of the Inland Revenue Department. The proposal put forward by the noble Lord, Lord Airedale, 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.


I am very much encouraged by what the noble Lord, Lord Trefgarne, has said. I will accept that invitation. I am extremely grateful to the noble Baroness, Lady Phillips. She underlined something which I suggested earlier on. The noble Baroness says, quite rightly, that the enforcement departments of local authorities are understaffed and overworked. I suggested that that was probably the situation. I simply do not believe that they seek these so-called powers in paragraph 3 to make spot checks or "fishing expeditions" without having cause to suspect that something is wrong in those premises. If Lord Mottistone's arithmetic is right, 90 per cent. of the traders are honest and above board, and nothing is wrong. The enforcement officers who go on "fishing expediditions" are going to he wasting a lot of time if 90 per cent. of their time is going to be without any tangible result.

We have a situation of nonsense here. It can be put right by the traders circulating to themselves, through their associations, an indication that if they do not want an enforcement officer in their premises, all they have to do is to refuse him entry. Then he is absolutely stuck except that, if he goes to a magistrate and can persuade him that he has reasonable grounds to suspect that something is wrong in those premises, then he gets his search warrant—and he deserves to get it. I am very much in favour of that being the position.

To have a paragraph of a Schedule which does not make clear what the position is, that the enforcement officer's power depends upon his having reasonable cause to suspect, is slightly dishonest. I am sorry to say this, but I think it is slightly dishonest to have a paragraph which does not make it clear that the officer must ultimately only act upon reasonable suspicion. Paragraph 3 is shabby in the way it appears at present and without the words "reasonable cause" being inserted at the beginning of it.

We have not been told by the noble Lord, Lord Mottistone, why it is that the enforcement officer may not examine the books unless he has reasonable cause to suspect—that is under sub-paragraph (c)—yet he can go in and examine the goods without having reasonable cause to suspect. Perhaps we can develop that on Report stage. In the meantime, I will of course carefully consider what the noble Lord, Lord Mottistone, and other noble Lords have said. But I think we shall be hearing more of this. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

[Amendment No. 36 not moved.]

12.6 p.m.

Lord WALLACE of COSLANY moved Amendment No. 37: Page 22, line 17, after ("a") insert ("secret").

The noble Lord said: Paragraph 7 of Schedule 2 makes the disclosure of information obtained by virtue of Schedule 2 a criminal offence except in specified circumstances. The disclosure of information for the purpose of proceedings for breach of duty mentioned in Clause 6(1) is permitted but only if there is no disclosure of a manufacturing process or a trade secret. It is important that in proceedings the court should have all information relevant to the issue. It is thought that there is no justification for withholding from the court information about manufacturing processes which are not secret. I beg to move.

On Question, Amendment agreed to.

Lord WALLACE of COSLANY moved Amendment No. 38: Page 22, line 19, after ("Act") insert ("or in compliance with a direction under section 5(3A) of this Act or was of publicised information.").

The noble Lord said: We discussed this Amendment last night with Amendments Nos. 11 and 14. In discussion on Amendment No. 14, the noble Lord, Lord Lye11—and we appreciate he is prevented from being in his place today because of an official engagement—asked a question. This is reported in columns 480 and 481 of Hansard. He wondered whether I would be able to tell him whether there had been any problem with the existing disclosures which I was mentioning under the Trade Descriptions Act and the Consumer Protection Act. At that time the communications system was not rapid enough for me to reply when I reached Clause 14. Therefore I make this reply now for it to be reported in Hansard in order to assist the noble Lord, Lord Lyell, personally, and I think your Lordships will approve of this.

The answer is that the Government are not aware of any difficulties of the kind referred to by the noble Lord, Lord Lyell, having arisen in regard to reports by local authorities under the present informal arrangements regarding the enforcement of the Trade Descriptions Act. No difficulties of this nature are expected in connection with reports by enforcement authorities under similar arrangements expected in connection with the Consumer Safety Bill.

That is the statement that I should like to be reported in Hansard. Apart from that, I formally move the Amendment as we have already previously discussed it.

On Question, Amendment agreed to.

Schedule 2, as amended, agreed to.

Remaining Schedule agreed to.

In the Title

Lord MOTTISTONE moved Amendment No. 39: Line 2, at end insert ("and others").

The noble Lord said: Amendment No. 39 was taken with No. 24, and I beg to move.

On Question, Amendment agreed to.

Title, as amended, agreed to.

House resumed: Bill reported with the Amendments.

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