§ 2.13 p.m.
§ Lord Darling of Hillsborough
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 Darling of Hillsborough.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD HAYTER in the Chair.]
§ Clauses 1 to 5 agreed to.
Lord Mottistone moved Amendment
After Clause 5, insert the following new clause:
§ (" Seizure by inspectors
§ . Section 102 of the principal Act (Powers of inspectors of weights and measures) shall be renumbered as subsection (1) and the following new subsection shall be added at the end—
§ "(2) Subject to the production if so requested of his credentials, an inspector may at any time within the premises seize and detain—
- (a) any article which he has reasonable cause to believe is liable to be forfeited under this Act, and
- (b) any document or goods which the inspector has reason to believe may be required as evidence in proceedings for an offence under this Act.".").
§ The noble Lord said: I am advised by the Food and Drink Industries Council and the Retail Consortium on these amendments. Amendments Nos. 2 and 3 will be familiar as being copies of amendments moved in another place by the Government and later withdrawn. No. 1 has been added because it is understood that in updating the Food and Drugs Act 1955 in relation to Amendments Nos. 2 and 3 and defences, it would be appropriate to update it also in relation to the seizure of documents where it is in line, for example, with the Weights and Measures Act 1979, it being another factor which has arisen over the last 25 years and in which the Food and Drugs Act requires updating. I have tabled these amendments as promised on 444 Second Reading because the Government have not seen their way to tabling them themselves, and I hope my noble friend Lord Sandys will tell us a little about the results of the quick inquiry that was initiated to see how interested parties reacted to the amendments.
§ The point at issue is that, whatever your Lordships decide to do with the amendments and whatever happens to the Bill, the potential injustices in not bringing the food legislation up to date in respect of defences on the same lines as other consumer protection legislation will remain. I hope, therefore, that my noble friend will be able to show us that the Government understand fully that it is a potential injustice and that they will do something without delay. There will obviously have to be some delay, but I hope he will show us that it is not something that will just be shelved because it is too difficult, but that something will happen. I think that is as far as I need go at this stage. I beg to move.
§ Lord Darling of Hillsborough
I understand from my reading of the first amendment that it is defective because the provision to which it refers was repealed from the Food and Drugs Act 1955 by the Weights and Measures Act 1963. That places us in some confusion and therefore it might be helpful if the Minister would give us the benefit of his advice on how we should proceed.
§ Lord Sandys
It would probably be suitable for our deliberations if at this stage I were to respond to the comments of my noble friend Lord Mottistone and the noble Lord, Lord Darling. My noble friend referred to the fact that when the Bill was being considered in another place, the Government moved two amendments which would have altered the statutory defences available under the Food and Drugs Act 1955. Section 113 of that Act makes the seller of a defective article liable in law unless he can prove that the contravention was due to the default of another person and has that other person brought before the court. That degree of liability on the seller goes considerably further than in other major legislation designed to protect the consumer, such as the Weights and Measures Acts 1963 to 1979, the Trade Descriptions Act 1968 or the Consumer Safety Act 1978, whose provisions operate satisfactorily. The Government therefore thought it right to take the opportunity presented by the Bill to move those amendments to the Food and Drugs Act which would have made it a defence to prove that due diligence had been exercised to prevent the contravention.
The Government hoped that that proposal would be acceptable to all interests concerned in the proper administration and enforcement of the food and drugs legislation. However, representation was made in another place that a major change of principle in the legislation ought not to be made until all interests had been consulted and their views had been considered. The Government accepted that, and therefore withdrew their amendments, and immediately sought the views of interested organisations. These have been received, and unfortunately there is no consensus of opinion.
It is clear that this is a case where the Government ought to follow the normal procedure of allowing ample time for consultation. In the light of the amendments tabled by the noble Lord, Lord Mottistone, it is 445 especially important that there should be proper consultation and exchange of views before Parliament is asked to take a final decision. However, if that is to be done, there will not be time to incorporate new clauses in the present Bill. In any case, the first amendment is deficient in its drafting, not least because it refers to Section 102 of the principal Act, which has been repealed by the Weights and Measures Act 1963. Clearly we need more time for thought.
Industry, trade and advertising interests are generally in favour of the principle of a defence of due diligence, while representatives of enforcement authorities and consumer groups have serious misgivings. However, even some of those in favour recognised that the defence provisions cannot stand alone. It is now clear that powers of enforcement officers, sampling procedures, and related matters, need to be studied in depth, and there has been insufficient time for that to be done. Indeed, on reflection we might well argue that a Private Member's Bill was inappropriate to tackle such a complex issue. I realise that this is a disappointment to my noble friend and the interests on whose behalf he has spoken. But I know also that he and they fully recognise the importance of allowing full prior consultation in cases of this type, and that they would indeed expect it.
The Government remain of the view that it would have been preferable to provide for a due diligence defence. They therefore intend to re-open consultation on this issue when the next opportunity arises for a review of the food and drugs legislation. I regret that 1 cannot say when that will be, and the Government have already said that they do not believe that a review would be justified at present, but they will give serious consideration to arranging one when resources allow.
Finally, my noble friend has suggested that the Bill would seriously alter the balance between prosecution and defence, because the penalties would be considerably more severe while the defence would remain subject to the existing provisions of the Food and Drugs Act. Much higher financial penalties would indeed be possible but, on the other hand, the power of magistrates to imprison would be removed—that is under Clause 5 of the Bill. Noble Lords will also recognise that the penalties laid down in the 1955 Act have become nugatory as a result of the fall in the value of money since then. Above all, everyone recognises—not least the reputable majority of the food industry—that the appropriate penalties must be available to the courts in order to deter the illegal and highly lucrative trade that has been detected in unfit meat. In view of what I have said, 1 very much hope that my noble friend Lord Mottistone will not press his amendments to the Bill.
§ 2.24 p.m.
§ Lord Darling of Hillsborough
In view of the undertakings that we have heard from the noble Lord, Lord Sandys, I think that it would be inappropriate to continue any discussion on the Bill; rather we should hope that the noble Lord, Lord Mottistone, will withdraw the amendments and thus allow us to speed the Bill on its way to the statute book unamended. Since I am not going to say much more, I want it to be clearly understood that I do not agree with any of the views expressed by the noble Lord, Lord Mottistone, on behalf of the interests for which he was speaking.
446 I would add only two other comments. The noble Lord, Lord Sandys, has given us an undertaking that the defence will be considered in relation to a review of the Food and Drugs Act. I think it deplorable that the Government ended the review that had already started, and on which a great deal of progress had been made, and I would hope that that review can be resurrected, as it were, as speedily as possible.
The other comment I should like to make is that in light of the views that have been expressed that is, that there ought to be a great deal more uniformity in the defences in this very wide field of consumer protection legislation—the question of the defences should be referred to full examination by the Law Commission. I think that this is a matter that is most suitable for an inquiry of that kind. In fact, I do not think that a review of what is major legislation should be conducted by any body but the Law Commission. With those very few remarks, I must again thank the noble Lord, Lord Sandys, for helping us out of a difficulty and for helping us to get the Bill on its way to the statute book.
I was approached by my borough health officer for Ashford in Kent, and also by the Institution of Environmental Health Officers, to oppose Amendments Nos. 2 and 3 to this Bill. They do not consider that they are good amendments; they do not consider that they have been given enough time for adequate consultation since the amendments were first introduced in another place: and they consider that if they were to be accepted the Bill would be seriously weakened. So I hope that the noble 'Lord. Lord Mottistone, will see his way clear to not pressing his amendments.
Lord Wallace of Coslany
This is a Private Member's Bill, of course, and from this Bench I should merely like to say that I think the Committee should accept the detailed explanation given by the noble Lord, Lord Sandys, and that under the circumstances the noble Lord, Lord Mottistone, should withdraw his amendment; and I would echo the words of my noble friend Lord Darling, that the Committee should allow the Bill to proceed with the greatest dispatch, and then the Government can carry on with the detailed work that they have announced.
§ Lord Lloyd of Kilgerran
Like the noble Lord, Lord Spens, I came here this morning with a whole sheaf of letters from various health and environmental authorities deploring the fact that the Government were proposing to have any sympathy towards the amendments put forward by the noble Lord, Lord Mottistone. The basic principle of law in relation to the sale of bad food (I had come along this morning to argue) should be quite simply that it is an absolute offence. Any person marketing bad food should be strictly liable for such an act. Food is totally different from other commodities. Mistakes should not be tolerated, in the public interest, as the consequences of one mistake can be disastrous and can cause considerable suffering.
Therefore, the matters referred to in the amendments should not be allowed to provide a defence to a prosecution. Of course, they would be important as 447 factors in mitigation of the penalties that a court might impose. Naturally, the question of due diligence would be a factor which might influence the court in the amount of penalty it imposed, but it should not be a defence.
On the question of due diligence, from the letters I have had—and I agree with them, in view of the fact that I have had some experience of these matters as a county magistrate in Surrey for a number of years—I would say that the fact that due diligence should afford a defence would make a farce of prosecution proceedings, particularly in a magistrates' court.
§ Lord Sainsbury
I am no lawyer, and I always listen with great attention to what lawyers have to say, but from the point of view of a retailer of some long experience, as your Lordships know, I think it would be wrong, in the ultimate, to do away with the defence of due diligence. Although the noble Lord, Lord Mottistone, may have withdrawn his amendments for reasons that have already been stated, I still think it is a very important thing that should be embodied in the legislation.
§ Lord Mottistone
I am grateful to all noble Lords who have spoken, even those against me, and so briefly. It is obvious that the bulk of noble Lords who spoke are against me. I would ask them and, in particular the noble Lord, Lord Lloyd of Kilgerran, to observe that we are all very distressed at the meat traders who have given rise to this legislation in the first place. Meat falls into a special category in this area, as is widely recognised within the food processing industry. Immense trouble is taken by food processors to avoid this sort of situation, not least because if they did not they would not sell their goods. It is not fair that, because there are a few people who have been guilty of a malpractice, all the rest should be swept together by the same argument and assumed to be as potentially guilty.
§ Lord Lloyd of Kilgerran
I am grateful to the noble Lord for giving way. He has misunderstood the position. It is not a question of suggesting that other firms are guilty in the same way as those dreadful cases in relation to meat distribution. Once you put into a statute that there is a defence of due diligence there are almost endless opportunities for lawyers to find, sincerely and properly, circumstances in which it would be of assistance. It seems to me as a matter of principle a mistake that there can be a defence of due diligence against a prosecution for the sale of bad food.
In saying that there should be an absolute offence, I would take the analogy of the Belisha beacon crossing. I know that all analogies raise problems; but, there, it is no good a motorist who interferes with the passage of a person on a Belisha beacon crossing saying that he looked around and was very diligent in approaching it. It is an absolute offence to interfere with the passage of a person on a Belisha beacon crossing. So far as bad food is concerned, that should be an absolute offence also, if there is any marketing of such a product.
§ Lord Mottistone
I do not think that it is as simple as that, but this is not the time or place to pursue the argument. I should like to ask my noble friend Lord Sandys before making my decision on what to do whether I got the impression correctly that there would be a deeper review of this issue immediately, notwithstanding the fact that it may be some time, as he explained to us, before the overall review, as one may call it, of the 1955 Act takes place. Is the inquiry which was started three or four weeks ago to be further studied, so that, when it comes to a chance to fit something into legislation, this subject will have been dealt with in a clearer way?
§ Lord Sandys
In response to my noble friend, I think that if he reads my reply in Hansard he will see that what has taken place (that is, the review which was set in motion early in May by a letter which went out from the department on the 5th of that month) has produced a number of replies. I think it would be informative to him to realise the scale on which it has been done. He will be interested to know that letters were sent to 269 representative bodies. It would be tedious to inform the House which they were but I have a list in front of me. On this particular matter of the due diligence consultations, 269 letters went out and, to date, 220 replies have been received. Those in favour of a due diligence defence amounted to 42. Those against it amount to 178—an overwhelming refusal of the position proposed by the present amendments before your Lordships' Committee. These replies are being studied. Naturally, we still hope that all those letters sent out will eventually be responded to by the representative bodies concerned; but of course it is only a matter of weeks and legal advice has had to be obtained at some speed on a very complicated matter. I can only reassure the noble Lord to the extent that I have in my reply, and, also, my noble friend Lord Ferrers gave certain assurances on Second Reading.
§ Lord Darling of Hillsborough
I am sorry to intervene again, but I have been shocked by the last statement that was made by the noble Lord, Lord Sandys. I think it utterly inappropriate to base a constructive review of Section 113 of the Food and Drugs Act on replies to the kind of letter sent out inviting comments. I invite the noble Lord to look at that letter again. It is a positive invitation to many of the organisations who received it to reply favourably to the Government's propositions. Apart from that, to try to measure arithmetically the 260 letters that were sent to trade associations and some nine to the local government authorities, the professional associations of environmental health officers and trading standards officers, seems to be altogether inappropriate.
I accepted when the noble Lord made his first intervention that there would be a proper review of the defence procedure and the prosecution procedure on the Food and Drugs Act. I hope that that proper review will take place. I sincerely hope that it will not take place on the basis of the letter that was sent out on 5th May to the various organisations. The noble Lord should bear in mind that that letter was posted, second-class post, on Friday, 7th May. I do not need to tell the Committee what happens to 449 second-class post which is posted on a Friday. There is not an organisation in the country that received that letter before 10th May. They were asked to reply by 21st May. Organisations had to consult their members in eight or nine days, because time has to be allowed for the information to be posted in order to arrive at the Ministry by 21st May. Therefore, the time they had for proper consultation and consideration was at the most nine days. To try to build up a constructive case on that flimsy basis is something we should not accept.
§ Lord Sandford
I must rise to support the noble Lord, Lord Darling, in the last point that he made. I have been watching this issue with some concern on behalf of the London Boroughs Association, 32 authorities that administer this legislation, and the 333 district councils. I very much hope that my noble friend has no intention whatever of taking into account this exercise, which amounts to little more than a straw vote, in the reviews and reconsiderations to which he referred in the earlier part of his speech. The exercise needed in this must be much more thorough.
§ Lord Sandys
I think at this stage it would be appropriate to say that of course I recognise what the noble Lord, Lord Darling of Hillsborough, has said with regard to the arithmetical aspect. His arguments are quite strong in that regard. While I was attempting to show that a review has taken place to the extent that I have described, it was merely to demonstrate that an effort was made between the consideration in another place and the consideration of this matter in your Lordships' House. Naturally the Government recognise that this is not a full review, but it did constitute a real effort, carried out with some speed and with the co-operation of those concerned, to furnish the Ministry with some material on which to base their preliminary examinations. I hope that to some extent what I have said will reassure the noble Lord, Lord Darling, on that point and also my noble friend Lord Sandford.
§ Lord Mottistone
I am grateful to all noble Lords for those supplementary remarks. There is a serious concern on the part of food processors that they may be unfairly treated. I fully accept the points that have been made by all sides. I, too, thought that the arithmetical proportions could be criticised the other way round, just as much as from the angle put forward by the noble Lord, Lord Darling. 1 trust the Government will really take note that this is not something which should be allowed to die but needs to be tackled seriously. However, I am very much aware of the fact that none of us wishes to destroy this Bill, notwithstanding the arguments put forward, because of itself it is good even though it does not go far enough in every respect. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 2 and 3 not moved.]
§ Remaining clauses agreed to.
§ House resumed: Bill reported without amendment: Report received.