Consumer Protection Bill [H.L.]

HL Deb 19 January 1987 vol 483 cc781-808

House again in Committee on Clause 2.

The Deputy Chairman of Committees (Earl Cathcart)

In calling Amendment No. 16 I should advise the Committee that if it is agreed I cannot call Amendments Nos. 17 or 18.

Lord Morton of Shuna moved Amendment No. 16:

Page 2, line 50, leave out subsection (6) and insert— ("(6) The liability under this Part shall not affect any other right, liability or obligation however arising.").

The noble Lord said: This is an attempt to do what the noble Baroness, Lady Elliot, earlier in the day asked that her Majesty's Government should do, which was to produce plain and straightforward English. The only purpose of this amendment is to render Clause 2(6) into something that is not just gobbledegook. As it is, the subsection reads: This section shall be without prejudice to any liability arising apart from by virtue of this Part". That is a piece of English that I suggest could be improved. I have endeavoured to improve it by putting forward the amendment: The liability under this Part shall not affect any other right, liability or obligation however arising". I think that is more understandable to any normal person. I beg to move.

Lord Denning

I suggest that each of them has the same meaning, but it is clearer and better to have the amendment.

Lord Cameron of Lochbroom

A slight blast of trumpets from the noble and learned Lord. A later amendment, Amendment No. 18, is aimed to take out what might be described as the most infelicitous phrase in this subsection. My noble friend Lord Beaverbrook will be replying to that, but the indications are that he will give it a fair wind. If that infelicity were taken out one would find that the subsection would approximate to what I was attempting in an earlier debate to indicate was the purpose of expressing in this part of the Bill what we thought the directive was seeking to achieve. I said then that we wanted to use words which were known and precedented in our statutes. That is exactly what we have done in relation to the general thrust of this subsection, especially the use of the words "without prejudice to".

The noble Lord has used words derived from the directive, but it is directed to member states and does not indicate how they should put the directive into effect so far as their national law is concerned. The formulation we have adopted is one, leaving aside the words, "apart from by virtue or, which is common in United Kingdom statute law. This is a Bill related to the Health and Safety at Work etc. Act 1974. I notice that the use of that phrase "without prejudice" is to be found in Section 47(4) of the 1974 Act.

Because these words are precedented they are well known. I am sure that the noble and learned Lord, Lord Denning, will be able to support me on that. Therefore, they do not give rise to any difficulties that might occur when we depart from words that have been commonly used in statute. For that reason I advise the Committee against accepting this amendment for the reason the noble Lord proposed.

I should mention one of the problems that can arise if one departs from a well-precedented legislative recourse. For example, my noble friend in the next amendment is seeking to bring in a change which refers to a particular Act of Parliament. I shall be speaking in response to my noble friend's amendment, but if it were to be accepted provision to save the operation of that Act would have effects on whether it was intended that other Acts should be saved, and so on. When my noble friend moves his amendment I shall argue that that Act is clearly expressed and that it is unnecessary to bring in any reference to it.

Perhaps I should also say—because this amendment touches on the new subsection tabled as Amendment No. 19 in the names of the noble Lords, Lord Williams and Lord Morton—that we are sympathetic to Amendment No. 19 and I shall make that clear if necessary at the appropriate time. I note that it takes the opposite line to this amendment because it ensures that the other laws relating to liability and tort will be affected by Part I.

All I can say is that at this stage I have indicated that if that amendment is moved we shall look at it closely. It has certain difficulties in relation to making sure that when accepting the thrust of it we do not leave out something which should properly be included. While accepting that this is an attempt to cure what the noble Lord sees as an infelicity, and accepting that to do so in the more general terms which he suggests here would be appropriate and that difficulties could arise from that, I suggest that the noble Lord might prefer, since he has indicated the real point of it, to await the response which my noble friend Lord Beaverbrook will give to Amendment No. 18 and for that reason to withdraw the amendment.

Lord Morton of Shuna

I have never claimed, and I suspect I never will, to be an authority on the English language. Therefore, as my only purpose was to make this understandable, if the noble and learned Lord the Lord Advocate thinks this infelicity or the infelicity of the draftsmen in subsection (6) is better cured by the amendment of the noble Lord, Lord Airedale, I beg leave to withdraw this one.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees

In calling Amendment No. 17 I should advise the Committee that if it is agreed I cannot call Amendment No. 18.

Earl De La Warr moved Amendment No. 17: Page 2, line 50, leave out from ("shall") to end of line 51 and insert ("have effect without prejudice to any liabilities arising otherwise than by virtue of this Act and without prejudice to any rights arising under the Civil Liability (Contributions) Act 1978."). The noble Earl said: This amendment seeks to deal with one special part of manufacture and distribution, namely, pharmaceuticals, and in particular the retail pharmacists. I shall from now on call retail pharmacists chemists because that is in line with what we have been discussing and it is better understood.

A chemist who puts his name only onto a prescription, as is typically done, can for that reason find himself the sole defendant in any case arising from a defect. If the defect can be shown to have resulted from a fault in one of the ingredients obtained by the pharmacist from an identified manufacturer, I believe that there needs to be some provision whereby that manufacturer can be joined in any resulting action and made to pay some or even all of the compensation. But so far as I can see, as the Bill stands and taking into account particularly Clause 2(2)(b), there is no provision for such a recourse to the chemist. If a pharmacist and a manufacturer are sued together and both found liable, it would be for the court to make the apportionment of the damages and I am advised that an equal division would be the most likely result.

It seems to me that chemists, particularly the small ones—those who are not part of a big manufacturing or retailing chain—will be in a weak and potentially dangerous position. I believe they deserve the protection that would come from a right to have the manufacturer joined in any action and the resulting damages fairly split, taking into account, of course, whether or not the chemist could reasonably have been expected to have spotted the defect.

The Civil Liability (Contribution) Act 1978 provides at least one way—I do not pretend it is the only way—of dealing with the situation. Section 1 says that a person liable for damage may recover contribution from any other person liable in respect of the same damage". Clause 2 gives the court complete discretion over the extent of the effective contribution to a point where there could be, if circumstances demanded, a complete indemnity.

I hope the Government will accept this amendment but I suspect they may find some difficulty. If they cannot accept it, I should be extremely grateful if my noble and learned friend would explain how we overcome what appears to me a really serious problem in the Bill as it stands. I beg to move.

Lord Morton of Shuna

I have a great deal of sympathy for the amendment proposed by the noble Earl, and I have a great deal of admiration for his courage in referring to pharmacists as chemists. The Law Reform (Miscellaneous Provisions) (Scotland) Bill in 1985 brought me and also, I think, the noble and learned Lord the Lord Advocate, a tremendous rebuke from the noble Lord, Lord Tordoff, for referring to pharmacists as chemists, and vice versa.

However, although I compliment the noble Earl on his courage, I wonder whether the amendment is really necessary. I agree with the sentiment behind it. It is clearly unreal that a pharmacist who puts his name on a bottle of pills produced by one of the big medicine companies such as Glaxo, Wellcome, or whatever, should incur the liability of the producer. However, I wonder whether, under Clause 2(2)(b), he is really holding himself out to be the producer. It is my experience that the pharmacist's label tells you how many pills to take but it does not say or imply that the pharmacist has produced the pills. Therefore I am not sure that this is the way to cure the difficulty.

Lord Hacking

May I briefly intervene? To move away from pharmacists for a moment, Article 5 of the EC directive specifically states that the joint and several liability provision should apply notwithstanding the right to have recourse to contribution. Thus it is quite plain from the EC directive that there is an intention to allow parties to use contribution proceedings against other parties when those other parties are also responsible for the defect or the wrong. I make that observation to widen the debate and I shall listen with hope to the answer from the noble Minister.

8.45 p.m.

The Earl of Halsbury

I speak as a chemist rather than as a pharmacist. I must remind the Committee that one cannot alter usage of the English language by statute. People will call themselves as they wish. I have not the slightest doubt that the noble Earl, Lord De La Wan, talks of a pharmacist as a chemist because he has done so all his life. So did I until I became a fellow of the Royal Institute of Chemistry and learnt the difference.

I was interested in what my noble friend Lord Hacking said a few moments ago. The issue before us is not what may have been intended by the European directive but what we are going to enact here in response to that directive. It seems to me that we must think out the procedures more carefully than has so far appeared in the course of this debate. For example, when I go to my general medical practitioner and he gives me a prescription I take it to the chemist, who goes to a bottle supplied by one of the big firms in the pharmaceutical industry. My GMP having said "50 so-and-sos", he doles them out and puts a little label on the bottle with his name and address on it and then says "Use as directed".

By this time I have completely forgotten my GMP's directions as to usage. I suppose therefore that about one per day or per night or something like that would not be bad for me until it seems to be so. It is really quite contrary to all principles of natural justice, I think, that the pharmacist should be held, as it were, in breach of duty if, say, the bottle from the pharmaceutical house was wrongly labelled or the contents were of a different strength, or whatever. I must speak up on the side of the noble Earl, Lord De La Warr, in seeking to redress this injustice or potential injustice.

In Sub-Committee B of the Select Committee on European Affairs, I find myself over and over again asking this question of witnesses: What are we trying to do by means of legislation? Are we, at one end of the spectrum, postulating an ideal world according to some formula or other in which the inhabitants of that ideal world will never have been consulted and which may not be to their liking, or are we seeking to remedy a current mischief? In terms of that rhetorical question which I ask witness after witness, I would ask the Government: what current mischief are we attempting to remedy? Unless you can identify a mischief and its remedy, it seems to me that a great deal of our legislation is otiose and we ought not to indulge in it. For this reason, if the noble Earl chooses to divide the Committee on this issue I shall follow him into the Division Lobby.

Lord Airedale

One practical point occurs to me. If you take a drug which is in fairly common demand in the form of pills, and the pharmacist (or chemist, as we call him) draws his supplies from time to time from various manufacturers of that particular drug or pill and if he then retails it in small bottles to his customers and there is a batch which is faulty so that the customer suffers injury, the pharmacist owes it to his customer to be able to identify the particular producer from whom he bought those pills. It is no good if he is going to say, "I get my supplies from different manufacturers and I cannot say for certain which of them sold me these particular pills in this little bottle." If that is the situation, the pharmacist owes it to the injured customer to be responsible for the injury.

Lord Cameron of Lochbroom

I had not anticipated such an interesting and extensive debate on this amendment. I am grateful to my noble friend for putting so clearly the points to be answered. As regards the first point, so far as pharmacists are concerned—and I use the word "pharmacists" advisedly—that is covered by the directive itself. I read from the first paragraph of Article 3: 'Producer' means … any person who, by putting his name, trade mark or other distinguishing feature on the product presents himself as its producer". The Committee will notice that that is almost precisely reproduced in Clause 2(2)(b). As regards the pharmacist, he would of course not necessarily be a known brander unless he holds himself out as the producer of a product and puts his name or mark upon it. Provided that he does nothing to hold himself out as the producer, he will not be a known brander. I hope that on that point I can reassure my noble friend.

On the second issue, I think I had foreshadowed that matter in what I said in response to the previous amendment. I do not quarrel with the object of the noble Lord's amendment. However, I assure him that it is unnecessary in view of the terms of the 1978 Act itself. We are dealing here with the question not of whether one person but of whether two persons are to be held liable for damage. That arises in relation to Clause 2(5). There it is stated that their liability shall be joint and several. Of course if one person only is sued, the question arises of whether or not he can sue somebody else who is also responsible. The 1978 Act provides in Section 1(1) as follows: any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise)". The operation of that provision is plainly not affected by the source of the liability. In our case it will be Part I of the Bill.

If the matter were not clear from the ordinary words of the section which I have quoted, any doubt is removed by Section 6(1) of the same Act. I again quote: A person is liable in respect of any damage for the purpose of this Act if the person who suffered it … is entitled to recover compensation from him in respect of that damage"— and these are the important words—— (whatever the legal basis of his liability, whether tort, breach of contract, breach of trust or otherwise)". It is perfectly general and I do not think we could have had clearer words than those. I am sure that the draftsman had in mind the need to avoid continual cross-references such as my noble friend proposes in this amendment.

If we were to make cross-references, plainly questions would be raised as to why similar references were not made by other enactments establishing liability. I can assure my noble friend that they are not. I have not made reference to equivalent Scots legislation which makes provision for contribution. However, it might be said that if one is included that must mean that the other has been excluded.

As I say, I have no quarrel with the object which my noble friend seeks to achieve. However, I hope that he will be reassured by what I have said on both points. I reassure him that the provision in the 1978 Act is already sufficient to achieve the object of the amendment.

Earl De La Warr

I am extremely grateful to my noble and learned friend. I shall read carefully what he has said in tomorrow's Hansard. So far as I can see, he has given important assurances on both counts. So far as I can tell at this moment, that will go a long way to satisfy the doubts that I have had on advice from certain quarters of the industry. I am grateful to him for that.

Perhaps I should add that the pharmacists know very well that there is one way in which they can cope with this difficulty, if it is a difficulty. They can cope by means of what is known as original package dispensing, whereby one receives a little bottle with 50 pills in it and sees the name of the manufacturer on the bottle and the pharmacists' label next door. That cannot always happen because the doctor may prescribe fewer than 50 pills. However, I believe that pharmacists are moving towards that procedure, and it is perhaps just as well that they hurry in doing so.

Nevertheless, subject to a careful inspection of what my noble and learned friend has said, I am very happy in this case to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Airedale moved Amendment No. 18: Page 2, line 51, leave out ("apart from") and insert ("otherwise than").

The noble Lord said: I have been glad to hear musical sounds in relation to this amendment from both sides of the Chamber already. I am sure that the noble Lord, Lord Morton, is also pleased, because, although this is only a drafting matter, it was suggested in the peroration of his Second Reading speech. The Bill refers to: liability arising apart from by virtue of this Part". I suggest that: otherwise than by virtue of this Part", is better English. Apart from "by", there are three adverbs in a row, and almost anything must be better than three adverbs in a row.

Lord Beaverbrook

While I accept that this amendment will do little to alter the sense of the subsection, I believe it will improve its clarity. We are concerned that it should be clear and the Government will consider bringing forward at a later stage an amendment to achieve this. With that assurance, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Airedale

I thought I was going to score a goal that time. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9 p.m.

Lord Morton of Shuna moved Amendment No. 19:

Page 2, line 51, at end insert—— ("( ) For the avoidance of doubt the liability under this Part is a matter relating to tort delict or quasi-delict.").

The noble Lord said: Apart from my peroration (which is a rather exotic word) at Second Reading, I made various other points. The noble Lord, Lord Lucas, undertook in winding up at that stage to answer them. The answer which I received from him this morning dealt with nothing other than this amendment. His words were: While we have our doubts that quite such a sweeping amendment is desirable". I have great difficulty in seeing that this is a sweeping amendment. I am not sure whether that is a football metaphor. However, the purpose of the amendment is clear and it is necessary. I am surprised that it did not occur to the Government earlier.

The Bill and the directive put on the producer or the importer a liability. The "producer" means a producer anywhere in the Common Market; the "importer" means an importer anywhere in the Common Market. The person who suffers damage from our point of view is somebody in Britain. The whole purpose of what I said at Second Reading was to find out whether it would be possible for that person to sue in Britain or whether he would have to go to Greece, Portugal, Denmark, Germany, France or wherever. The words I have chosen come from the protocol which is part of the Civil Jurisdiction and Judgements Act 1982. I fail to see how it could have been made less sweeping, but perhaps it could have been. If so, I would be perfectly willing to leave it to the Government to realign the amendment in terms acceptable to them. It is of the utmost importance that people who are injured because of product liability should be able to sue in Britain rather than have to go abroad. I beg to move.

Lord Cameron of Lochbroom

With respect to the noble Lord opposite, I do not know that we are talking about jurisdiction in quite the same way as he was suggesting. Nevertheless, I accept that the noble Lord has made a point regarding the general principle that lies behind the proposed amendment. However, if we were to make the express provision in the Bill which he seeks, we must obviously try to work out the practical consequences. In particular, we would have to be sure that we were not inadvertently extending or overturning legislative policies enacted on the assumption that they were dealing with torts, delicts or quasi-delicts which are based on fault. I understand that a search has revealed that there are well over 100 references to tort alone on the statute book. No doubt, there will also be a considerable number of references to delict. I assure the Committee that we shall be considering these as speedily as we can. I expect that we will be able to complete the exercise before Report stage and that we shall be able to bring proposals before your Lordships at that time.

I am sure that on reflection the noble Lord opposite will understand the complexity of the matter, notwith- standing the apparent simplicity of the amendment, and that he will allow us to complete our homework before it is considered further. With that undertaking, I hope that the noble Lord will withdraw the amendment.

Lord Morton of Shuna

I have no wish to delay the Committee. I have difficulty in seeing how a liability under this part of the Bill has anything to do with any other Act. To say that it is a matter relating to tort, delict or quasi-delict makes it, I should have thought, perfectly clear. But if the noble and learned Lord wants to do his homework for a week or two, who am I to stop him? I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 2 shall stand part of the Bill?

Lord Williams of Elvel

I wish always to understand the legislation that is before the Committee, and there is one point to which I should like the noble and learned Lord to respond. I refer to the chain of responsibility of suppliers of the product as defined in Clause 2. I should be grateful for confirmation that what I am about to say is a correct interpretation of that clause.

As I understand it, and I shall be reading from Clause 2(3), any person who supplied the product"— and I shall leave out some of the words in brackets— or to any other person)", is liable unless or if he fails to identify the person who supplied the product to him. I interpret this as meaning that if there is a person within the Community who supplied the product to somebody who suffered damage as a result of a defect in that product, that supplier, if he then names the person who supplied the product to him, is, as it were, off the hook.

The person who supplied the product to him, on the other hand, is presumably the "any other person" in the bracket. What obligation is there on the person who supplied the product to the supplier to name a third party supplier who may have supplied the product to the second party supplier? I imagine that there is a continuum here. You can go behind the second supplier, to the third supplier, to the fourth supplier until you come to a crossing of the frontier or until you come to a manufacturer, but I should be most grateful if the noble and learned Lord will confirm that my interpretation is correct.

Lord Cameron of Lochbroom

The noble Lord is correct because he has already read out the relevant passages. He started off with "any person"—and I emphasise the word "any"— who supplied the product … shall be liable for the damage if— (a) the person who suffered the damage requests the supplier to identify one or more of the persons (whether still in existence or not)". They are to be the persons in subsection (2). Once they are identified, all is well. If they are not identified, the supplier remains responsible. I hope that that has answered the question.

Lord Williams of Elvel

I am grateful to the noble and learned Lord. He has partially answered the question. I want to be absolutely certain that the second supplier who is identified in the first place by the supplier is under an obligation, if requested, to identify his own supplier.

Let me take a sequence of events. There is a wholesaler. He sells to a retailer. The retailer sells to the noble and learned Lord. The noble and learned Lord has suffered damage because of defects in the product. He goes to the retailer and asks, "Who supplied the product?" The retailer says it was wholesaler "X"—perhaps the noble Lord, Lord Lucas of Chilworth. Lord Lucas is then asked, "Who supplied the product to you?" Are we to take it that the noble Lord, Lord Lucas of Chilworth, or the wholesaler—I do not wish to personalise it—is under the same obligation and, therefore, you continue the chain of obligation back to the original manufacturer or the crossing of the frontier, whichever is appropriate?

Lord Cameron of Lochbroom

I am sorry if I did not make the matter clear. The noble Lord is correct. As I should have gone on to say, the words in brackets make quite clear the chain along which you proceed. If we take it that the person who supplied the product to the person who suffered damage responds by saying: "I received it from somebody else who was the supplier", and if that supplier is then asked, he is under the same duty to respond back along the chain until eventually the question elicits the response which meets what is required under subsection (2), or it gets no response at all; in which case the buck stops at that point, so to speak. I hope that is sufficient for the noble Lord.

Lord Williams of Elvel

I am grateful to the noble and learned Lord. My understanding of the clause is confirmed.

My second question is this. In those circumstances, and given that these chains can be extremely complex and difficult, what in the noble and learned Lord's view is "a reasonable period"?

Lord Cameron of Lochbroom

That, as is always said, is a matter for the court.

Clause 2 agreed to.

Clause 3 [Meaning of "defect"]:

Lord Airedale moved Amendment No. 20: Page 3, line 4, leave out ("in the context of") and insert ("from"). The noble Lord said: Clause 3(1) states that, 'safety' shall include safety in the context of risks of damage to property". The phrase "in the context of" seems to me to be woolly. Surely what the clause is saying is, safety from risks of damage". Why does not the clause come out in the open and say so? I beg to move.

Lord Williams of Elvel

It may be for the convenience of the Committee—and I hope the noble Lord, Lord Airedale, will accept it—if I speak to Amendments Nos. 21, 22, 23, 24 and 25 as a group. I have no comment upon the drafting points that the noble Lord has mentioned. However, I should like to have the view of the noble Lord, Lord Airedale, and that of the Government, on what is the meaning of "its get-up" and whether that is an expression that should properly be included in statute.

I also have a certain sympathy with the noble Lord's Amendment No. 25 which I do not think is a drafting amendment. It is more than that. The phrase, doing or refraining from doing is something which the Government might wish to take into account when considering these amendments.

Lord Beaverbrook

If it is for the convenience of the Committee I will speak to Amendments Nos. 20 and 21. In this subsection we are ensuring that the kind of safety which people may expect of a product will depend upon whether it may cause damage to property as well as upon whether it may cause personal injury. This is because "safe" might be taken to refer to risks of personal injury and is, for example, used in that sense in the Consumer Safety Act 1978. We are not helped by the English language in expressing this idea; but with respect to the noble Lord, we are helped even less by his amendment, which I think would have the effect of ensuring that the defective product itself was safe from any risk of being damaged, killed or injured. For that reason I ask the noble Lord to consider withdrawing his amendment.

Lord Airedale

I should have said that I was hoping we would take Amendments Nos. 20 and 21 together. I beg leave to withdraw Amendment No. 20 and I will not be moving Amendment No. 21.

Amendment, by leave, withdrawn.

[Amendment No. 21 not moved.]

Lord Airedale moved Amendment No. 22: Page 3, line 8, leave out ("in relation to") and insert ("of").

The noble Lord said: At page 3, line 8, the clause refers to, what persons generally are entitled to expect in relation to a product". The phrase "in relation to" is another woolly phrase. What it is saying is what they are entitled to expect "of a product". Why does not the Bill say so? I beg to move.

Lord Beaverbrook

I must say to the noble Lord that I resist this amendment because of the way in which it narrows the sense in which we should have regard to the level of safety of a product. We should be concerned with the character of the safety in relation to the product in its widest sense. Thus we should consider the product in its environment and not in isolation. For that reason we have chosen particularly to use the words "in relation to".

Lord Airedale

I beg leave to withdraw this amendment. I should also have said that I shall not be moving Amendment No. 33.

Amendment, by leave, withdrawn.

9.15 p.m.

Lord Airedale moved Amendment No. 23: Page 3, line 11, leave out ("marketed") and insert ("supplied").

The noble Lord said: Why do we turn nouns into verbs when we have a perfectly good verb already? Why do we have to talk about "marketed" when surely "supplied" would do perfectly well? I beg to move.

Lord Beaverbrook

We have used the word "marketed" in giving effect to Article 6.1(a): the presentation of the product. The report on the Strasbourg Convention from which was drawn the expression "presentation of the product" makes perfectly clear that the marketing of the product is included. I hope the Committee will agree that the word "marketed", though including supply, must go wider and include the manner of the promotion, advertising, training in use and even delivery to the user. At the beginning of this subsection we have made clear that all these circumstances shall be taken into account. The use of the word "supplied" clearly does not do so, and therefore I urge that this amendment be resisted.

Lord Williams of Elvel

Is the noble Lord aware that a product may be marketed but, by failure of supply, not supplied?

Lord Beaverbrook

I said that marketing could include those matters; they do not have to be included. For instance, many products may be supplied but not ever advertised.

Lord Airedale

I think I was probably wrong about this matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Airedale moved Amendment No. 24: Page 3, line 11, leave out ("its get-up").

The noble Lord said: The noble Lord, Lord Williams, was perfectly right. This is a purely probing amendment. What does "its get-up" mean? I do not understand what it means. I beg to move.

Lord Beaverbrook

The word "get-up" is apparently well understood, particularly in the context of the Trade Marks Act 1938. For instance, it would cover styling, packaging, leaflets that may be included, instructions and indeed everything that is included with a product. I believe that the courts are familiar with this word and that it is in use.

Lord Denning

I should like to confirm that remark. In cases which concern patents, copyright, trade marks and so forth, it is everyday practice to use the word "get-up". The word is well known among lawyers, anyway.

Lord Airedale

My only course is to withdraw this amendment.

Amendment, by leave, withdrawn.

Lord Airedale moved Amendment No. 25: Page 3, line 13, after ("doing") insert ("or refraining from doing").

The noble Lord said: The noble Lord, Lord Williams, also referred to this amendment whereby in line 13, in relation to safety, the Bill refers to the "doing" of anything and I move to insert "or refraining from doing". I should have said that I am speaking also to Amendment No. 31, which is on the same point.

I always thought that in relation to promoting safety the dont's were just as important as the dos. For instance, one may have an electric razor which carries a notice stating, "This machine works on 12 volts. Don't plug it into the mains". I should have thought that message was just as important as one stating what positively should be done. I am seeking to accentuate the negative in the interests of safety. I beg to move.

Lord Beaverbrook

For the convenience of the Committee, while speaking to Amendment No. 25 I should like also to address my remarks to Amendment No. 31. In both those amendments we are concerned with the doing of anything with a product or in relation to the product. One could argue that by using the word "doing" one includes the sense of not doing anything with or in relation to a product. However, I believe that the noble Lord's amendments go some way toward clarifying this point. Clarity must be important in this clause where the meaning of "defect", the central concept in Part I of the Bill, is being described. It is important that the instructions or warnings for a product are understood to relate to the doing or not doing of something with the product.

For that reason I should like to consider the point further, and I ask the noble Lord to withdraw the amendment so that it can be considered and perhaps brought forward at a later stage.

Lord Airedale

I keep getting into the penalty area but I never score a goal. Nevertheless, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morton of Shuna moved Amendment No. 26: Page 3, line 14, leave out ("reasonably be expected") and insert ("be reasonably foreseen").

The noble Lord said: The amendment seeks to leave out the words "reasonably be expected" and to insert the words "be reasonably foreseen". The courts are fully familiar and have spent a great deal of time dealing with what is reasonably foreseeable. "Reasonable expectation" is a new idea for them. I can see great difficulty arising while they puzzle over why Parliament passed a Bill which used the word "expected" instead of "foreseen". I doubt whether the Government have in mind any difference, and in that case it would seem appropriate to use the words which the courts are accustomed to interpret so that everyone knows what they are liable to mean.

There is another factor. Products may be dealt with by children, and children do not necessarily behave as they may be reasonably expected to behave with a product or without a product. In this context we are talking about with a product. On the other hand, cases such as Hughes v. The Lord Advocate show that an unexpected act could be reasonably foreseen. As this is a case where we are concerned with the safety of the product and of the consumer, it would be appropriate that the provision should be in that wider sense. I beg to move.

Lord Denning

I object to the amendment for two reasons. First, there is no difference in the meaning. Secondly, the words of the directive about which we have been talking so much speak about, the use to which it could reasonably be expected that the product would be put". Why not follow the words of the directive rather than use different words? I suggest that we leave in the words "reasonably be expected" because they correspond exactly with the words of the directive.

Lord Lucas of Chilworth

I thought originally that the amendment moved by the noble Lord was designed to bring the wording in Clause 3 into line with that used in other enactments. "Reasonably be expected" is found elsewhere. There is a simple reason for the use of these words. They reflect the words used in Article 6.1(b) of the directive where a defective product is covered by the words, "could reasonably be expected".

The amendment moved by the noble Lord, Lord Morton of Shuna, would make little if any practical difference. I take a little comfort from what the noble and learned Lord, Lord Denning, said in that regard. Both he and I doubt whether in this context "foresee" covers any factors which "expect" does not, and vice versa.

As we have been saying all along, the intention of Part I is to implement the product liability directive. We must strike a balance between ensuring that we give maximum effect to its provisions in our law and yet do not implement it in a way that was not intended. We have therefore adhered to the language used in the directive, except where there was a good case for making a change. It does not seem to me that any such case has been made out for a change from "expected" to "foreseen".

I accept what the noble Lord said about children. Had I the other word down in the Bill I should have expected him to raise with me the same argument because the same difficulty arises. I often look back at the conduct of my children and wonder whether I could have foreseen it, should have expected it or whether it was natural.

I said before that "expected" is a word used quite frequently in our legislation. It is used in Section 14A (10) of the Limitation Act 1980, as amended by the Latent Damage Act 1986. There is a corresponding provision in Clause 5(7) of this Bill. With that explanation I hope that the noble Lord, Lord Morton, will be able to withdraw his amendment.

Earl De La Warr

May I make one point that only a layman would see, and it may not apply to the courts. In the second line of Clause 3(2) there is a reference to, what persons generally are entitled to expect in relation to a product". It seems to me that that has a different meaning from that which appears to be in paragraph (b). That refers to "what might reasonably be expected to be done". I do not know whether I am making too nice a point, but to me in ordinary English the meaning is different.

Lord Williams of Elvel

I am sorry to intervene in the amendment of my noble friend. However, there is an important point which has been made by the noble Earl, Lord De La Wan. The words in the directive state that "a person is entitled to expect". They are in the opening lines of subsection (2). Then subsection (2)(b) continues with the words "what might reasonably be expected". That seems to refer to the rest of Article 6.1 of the directive: the presentation of the product; the use to which it could reasonably be expected that the product would be put", and so on. It seems to me that the word "foreseen" is slightly different in meaning from the word "expected". One can foresee something but may not necessarily expect it, or one can expect something and can presumably foresee it. The word "foresee" is wider. That is the point of my noble friend.

Lord Lucas of Chilworth

I am quite sure that the noble Lord, Lord Williams, is right in what he perceives to be his noble friend's view. I would say to the noble Lord, and to my noble friend Lord De La Warr, that when he reads Clause 3(2) at line 8 he should read the whole piece: above what persons generally are entitled to expect in relation to a product all the circumstances shall be taken into account, including… We then go to the other piece which seems to have worried my noble friend. Line 14 says: what might reasonably be expected to be done with or in relation to the product". There are two matters here. I believe the way that we have expressed it demonstrates the marginal but quite significant differences that we wish to indicate.

Lord Morton of Shuna

It is always interesting to see that the difference between "expect" and "foresee" causes the Government great concern, whereas they have said that the word "industrial" equals the word "initial".

Lord Lucas of Chilworth

No.

Lord Morton of Shuna

I shall not go back to the fact that "initial" is the word in the directive. In subsection (2)(b) the words are "reasonably be expected". By whom? Whose is to be the reasonable expectation? Subsection (2) states: In determining for the purposes of subsection (1) above what persons generally are entitled to expect … all the circumstances shall be taken into account, including what might reasonably be expected". Is this by persons generally or by the producer? If it is a person or persons generally, I would suggest that means what can reasonably be foreseen. If it is by the producer, it is what can be expected. Who is to carry out the expectation? I shall be interested to hear whether the noble Lord has an answer to that at the moment.

9.30 p.m.

Lord Lucas of Chilworth

I have no doubt that the noble Lord is interested to see whether I can find an answer. He is always interested in such things, particularly, if I may say so, at this time of night.

I rest quite firmly and simply on what is contained in Article 6. This was the point which the noble and learned Lord, Lord Denning, addressed in answer to the first question of the noble Lord, Lord Morton. A product is defective when it does not provide the safety which a person is entitled to expect, taking all circumstances into account, including:

1. (a) he presentation of the product;
2. (b) the use to which it could reasonably be expected that the product would be put".

I think that that would mean the person who has acquired the product. Frankly, I do not see any great difficulty in foreseeing how a product might perform and expecting it to perform in such a manner. I do not see any great difference in this area.

I see the noble Lord being, I think, a little mischievous in shaking his head in a querying manner. If the manufacturer or the producer of the product says that it will raise the temperature of your room by 5 degrees in two and a half minutes flat, given that the curtains are drawn and it is 10 degrees outside, or whatever it may be, I would expect the product to perform in that way. If he does not say that, I do not think that I can expect it to do something of that nature or foresee that it might. I do not believe therefore that in that relationship there is any great difference.

Lord Morton of Shuna

I do not wish to prolong the matter at this time of night. On the understanding that I may return to it, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Airedale moved Amendment No. 27:

Page 3, line 15, after ("product;") insert ("( ) fair wear and tear").

The noble Lord said: The expression fair wear and tear is well recognised and understood. I should have thought that it was a matter worthy of being taken into consideration when discussing the meaning and implications of defect. The sort of example I have in mind is as follows. If one takes two identical motor cars and one is driven for five years by a commercial traveller or a jockey and the other is chauffeur driven to church once a week for five years, one cannot expect those two cars to be in the same condition at the end of the five years. To me that indicates that one of the factors needed to be taken into consideration when considering defects is fair wear and tear. I beg to move.

Lord Beaverbrook

Subsection (2)(c) reflects the wording in Article 6.1(c): the time when the product was [supplied]". The amendment of the noble Lord, if inserted at the beginning of this subsection, would appear to introduce a rule of evidence. I am not convinced that such a rule is either necessary or desirable or that it should be confined to the particular matter addressed in Clause 3(2)(c). In any event, I doubt whether matters of evidence should be addressed in this Bill unless there is a very good reason. Therefore I must resist this amendment.

Lord Airedale

I think that we are slightly at cross-purposes. The amendment does not say, "at the beginning of (c)". In my copy of the Marshalled List it reads: line 15, after ("product;") insert". It is then shown to be a separate paragraph which would become (c), and then (c) would become (d). Therefore there should be no complication about it being part of paragraph (c) because it is not intended to be. Perhaps the Minister will look at this again.

Lord Beaverbrook

I am afraid the numbering has gone wrong on my file: I must apologise to the Committee. Having now sorted out this matter I think there is no need to insert the words "fair wear and tear".

As I have said before, Article 6 of the directive, which is reflected in Clause 3 of this Bill, makes it clear that all the circumstances shall be taken into acount. Fair wear and tear would be one of those circumstances. In particular, subsections 2(b) and (c) adequately cover this point. To insert the words "fair wear and tear" would put an undue emphasis on that aspect of the product which is not reflected in the directive.

There are two other points to consider here. Is the noble Lord, Lord Airedale, suggesting that the product be examined to see if it was subjected to fair wear and tear, or (and I believe that this is the correct interpretation) that when supplied the product would have been suitable and able to withstand fair wear and tear? Either way this puts an undue emphasis on these particular circumstances. Therefore, I would resist this amendment.

Lord Airedale

I agree that this is a matter of emphasis. Does one not emphasise a particular matter? I am glad that the Government have considered this matter and I accept the answer I have been given. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Airedale moved Amendment No. 28: Page 3, line 16, at beginning insert ("if reasonably ascertainable"). The noble Lord said: At this point the Bill says that regard must be had to: the time when the product was supplied by its producer to another. I seek to insert at the beginning of that: "if reasonably ascertainable".

To give an example, let us suppose that a lady goes back to a shop and says, "This hairdryer that you sold me blew up in my face." Is that person reasonably to be expected to discover the time when the product was supplied by its producer? There may well be documents showing that consignments of 144 hairdryers at a time were supplied by company A to company B. It must be very unlikely that the particular hairdryer that blew up in the lady's face can be traced back to a particular consignment which appears on a document in the manufacturer's or the wholesaler's possession.

Therefore, I seek to say that the Bill should recognise this fact and should insist upon the time when the product was supplied being taken into consideration only if it is reasonably ascertainable. I beg to move.

Lord Beaverbrook

I am now able to go back to the answer that I erroneously gave to the noble Lord earlier.

Subsection 2(c) reflects the wording in Article 6.1(c) about the time the product was supplied. The amendment proposed by the noble Lord, Lord Airedale, if inserted at the beginning of this subsection would appear to introduce a rule of evidence. I am not convinced that such a rule would be either necessary or desirable, or that it should be confined to the particular matter addressed in Clause 3(2)(c). In any event, I doubt if matters of evidence should be addressed in this Bill unless there is very good reason. Therefore I must resist this amendment.

Lord Airedale

That was a very learned reply about the rules of evidence. I cannot pretend to follow it. I shall be interested to read about it in Hansard tomorrow. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Airedale moved Amendment No. 29: Page 3, line 18, leave out ("require") and insert ("permit").

The noble Lord said: The clause states: Nothing in this section shall require a defect to be inferred", from particular circumstances. I should not have thought that that was the message of the clause at all. I should have thought the message was that nothing in this section shall permit a defect to be inferred from those circumstances. I beg to move.

Lord Beaverbrook

This part of subsection (2) replicates Article 6.2 of the directive. It rebuts any implication arising from Clause 3(2) that a court must infer a defect in the product from the fact that a similar product supplied at a later date was safer. I agree that Article 6.2 is couched in terms which absolutely prevent such an inference from being made. However, it seems to me highly improbable that a court would ever do so. To make sense a provision for that purpose would need to go into a separate subsection. I doubt whether that would be justifiable. Therefore again I am afraid I must resist the noble Lord's amendment.

Lord Airedale

I am in no position to argue about what complies with the directive, and so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Lord Ampthill)

Before calling Amendment No. 30, I remind the Committee that if this amendment is agreed to I cannot call Amendments Nos. 31, 32 and 33.

Lord Morton of Shuna moved Amendment No. 30: Page 3, line 21, leave out subsections (3) and (4).

The noble Lord said: It is an unfortunate time of night perhaps to be discussing a very important section. Clause 3(2) appears to, and has been stated by noble Lords opposite to be intended to, comply with Article 6. I have no quarrel with that attempt, but it relates to the purposes for which the product has been marketed—its get up, the use of any mark in relation to the product and any intstructions for, or warnings with respect to, the doing of anything with or in relation to the product. Putting it shortly, I should have thought that that covered the packaging of the product, the warnings that you get on it, statements that you are to get the plug wired properly and things like that. I fully agree with these provisions.

The difficulty about it is that you have instructions and warnings in subsection (2)(a) and then you go to subsection (3): where the cause or a contributory cause of any damage is a person's reliance on a false or misleading statement or on any promise or advice, that damage shall not by virtue of the statement, promise or advice having been incorporated in a product be treated for the purposes of this Part as caused wholly or, as the case may be, partly by a defect in the product". Suppose somebody puts a label on a product saying, "This must be used with a 5-amp fuse". Is that a statement or a promise, or is it an instruction or a warning? Which is it? Subsections (2) and (3) appear to be entirely contradictory in the way they sit in the Bill. Subsection (4) makes life even more difficult to understand: In subsection (3) above any reference to a statement or promise or to advice—

1. (a) shall include a reference to instructions which are already part of the product in subsection (2);
2. (b) in relation to a product which is or contains a device that makes or is used for the making of any measurement, calculation or reading, shall not include a reference to any measurement, calculation or reading made by or by means of that device".

I do not fully understand what that means. But to a relatively simple-minded person like myself, if somebody were to produce a ruler that said "inches" and in fact it measured centimetres or millimetres, it would appear that the person who used it and acted on it had no recourse under subsection (2)(b), because it would be: used for the making of any measurement, calculation or reading", and it had on the face of it something that was wrong. It is certainly a defective product if you have something which says that an inch is a centimetre.

I just do not understand what the relationship of subsections (2), (3) and (4) of Clause 3 is supposed to be. We have a premonition that the Government may be concerned that somebody like a printer, or a publisher who publishes a book that contains an inaccurate formula, should not be liable under the product liability legislation.

As far as I can see there is no basis in the directive for that idea, and yet in introducing the Bill on Second Reading the noble and learned Lord the Lord Advocate said that he was doing no more and no less than what the directive requires. Subsection (2) is what the directive requires. Where subsections (3) and (4) come from or go to, and what effect they have, totally baffles me.

Presentation of the product referred to in Article 6 of the directive must surely include instructions packaged with the product. But that seems to be excluded by subsections (3) and (4). It just becomes more and more difficult to understand what is meant by it. I have no doubt that there is some good intention somewhere in subsections (3) and (4), but I do not think it has reached the surface. Therefore, my amendment is to leave them out and to let the Government come back with something which explains, at least in some form of comprehensible language, what they are getting at. I beg to move.

9.45 p.m.

Lord Allen of Abbeydale

A long time ago, much earlier today, we had some questions about the merits of the parliamentary draftsmen, for whom I have the greatest admiration. However, as an innocent, Clause 3 really defeats me. I am pleased to hear that I am in good legal company in being puzzled by it.

Suppose, for the sake of argument, that I buy a pressure cooker which is safe up to 500 degrees but that unfortunately the instructions with the pressure cooker say that it is safe up to 700 degrees. I heat it up, and when it gets up to 600 degrees it explodes. When I have recovered I struggle to my library and I take out this Bill to see whether I am all right under this clause.

I start, "Yes; under subsection (1) I am clearly in". The test is to have something about the safety which "persons generally are entitled to expect", and the instructions accompanying the device are part of the criteria. That is splendid.

But then I go on and read subsection (3). There I am told, "Oh, no; not a bit of it. That is quite wrong. You are not entitled to any compensation for damage because of misleading statements accompanying the device." I ask, "Does an accompanying statement mean the instructions?" I read on. Subsection (4) says, "Yes, that is right; it means the instructions", and I think, "Well, I am sunk". But then, being of a persevering nature, I continue to the end and I find: nothing in that subsection shall prevent any statement, promise or advice from being taken into account in determining for the purposes of subsection (1) above what persons generally are entitled to expect". So we go back: we are in again. What on earth does it mean?

Lord Denning

I, too, support this amendment. First, there is nothing in the directive about it at all. It is introduced entirely afresh. Next, it is entirely unintelligible. It is contradictory in itself. I tried the clause on with two or three Law Lords today. They expressed the view, if I may say so as hearsay, that it is quite incomprehensible; and not only that, but completely contradictory between the first part of subsection (3) and the last part of subsection (4), to which my noble friend Lord Allen drew attention. If this clause means anything, if it has anything to do with a defective product, please let it be made clear. At present it is hopeless and ought to be taken back and something fresh put in.

Lord Lucas of Chilworth

What a sterling request has come from the noble and learned Lord! I should say one or two things before I tell the Committee what I propose to do. There are difficulties here, I must confess. If noble Lords who have spoken are in some doubt, they are in pretty good company because they are not the only people who have failed to understand this. We have spent quite a lot of time with Parliamentary Counsel trying to make it easier. I assure the Committee that the clause has improved enormously since the earlier drafts.

The purpose of Part I is to provide a regime for product liability; that we all recognise. That is to say, its purpose is to provide that regime of liability for damage caused by goods which are unsafe in the light of what people might be expected to do with them. What people might do may be affected by such matters as the warnings or the instructions that accompany the goods.

I think the Committee will be aware that there is a different but very important area of liability known as liability for negligent misstatement which governs in particular the giving of professional advice. I am sure the noble Lord, Lord Morton of Shuna, is well aware of this. He will then be aware that it is of comparatively recent origin and the courts have been somewhat cautious in limiting its application to those cases where a defendant can properly be said to have owed a duty of care to a person who relies on the advice to his detriment.

The noble Lord, Lord Morton, gave a couple of examples, but I shall give one example. Let us suppose I were to suggest that my architect gives me some advice about an alteration to my house. He may give it to me face to face, or on the telephone. Equally, and perhaps more probably, he may send it to me in a letter. Technically that letter is a product, since the envelope it has come in and the paper it is written on are goods. If the gum that has been used to fasten down the envelope contains a dangerous poison then the envelope would be defective. Any damage done as a result of that envelope, poisonous or otherwise, would create liability on its manufacturer under Part I of the Bill.

Anyone would be surprised to find that the advice itself fell within Part I and the architect became strictly liable, as its manufacturer, for damage to my property which I may suffer by making a faulty alteration according to what he had written in the letter; in other words his specification. There would surely be a particular oddity in relation to an architect's advice because buildings themselves are not treated as products within the meaning of the directive.

Surely it is reasonably clear that the directive does not address this kind of liability at all. So the oddity I have mentioned cannot arise. It is clear that the position is the same whether advice is given by an individual letter, as in the example I have given, or in a book, a periodical or a newspaper addressed to the public at large. Perhaps in the absence of subsections and (4) the courts would reach much the same conclusion. Certainly we would hope that they would. But the fact that the noble Lord has put down an amendment on the point seems to suggest that he has doubts about the validity of these provisions and therefore the issue is one which should be resolved.

Although the general purpose of subsections (3) and (4) is easy enough to see, we had to draft the provisions with care so as not to imply that statements which are made in connection with a given product can be disregarded in determining whether the product concerned is safe. If we did that, we should be taking away by subsections (3) and (4) what we have previously expressly referred to in Clause 3(2), so in effect the last limb of subsection (4) avoids that result.

The noble Lord, Lord Morton of Shuna, raised the question of a ruler, a measuring instrument. This ruler gives a reading: by subsection (4)(b) a reading is not in fact within subsection (3), and if the reading gives rise to injury then Part I will apply.

The example of a pressure cooker given by the noble Lord, Lord Allen of Abbeydale, is really quite good. Certainly the instructions are saved by the last part of subsection (4). Perhaps I may draw the noble Lord's attention to that last part, starting at line 35: and nothing in that subsection shall prevent any statement, promise or advice from being taken into account in determining for the purposes of subsection (1) above what persons generally are entitled to expect in relation to any product to which the statement, promise or advice relates. I think that perhaps we are making some heavy weather of the point. I believe that noble Lords will accept the need to draft the provisions with some care, given the increasing role which instructions and warnings play in connection with goods which are put into the marketplace. I hope that with the explanation I have given the noble Lord opposite will agree that the subsections perform an important role and that he will see his way to withdraw his amendment.

I said in my opening remarks that there was some confusion between us, but I hope I have now removed that confusion. The noble Lord shakes his head. I ask him to look tomorrow at what I have said, in the fond hope that it may remove the confusion. Meanwhile, I promise to look to see whether I can find a clearer way, with the parliamentary draftsmen, in which to express what I am quite sure the noble Lord, Lord Allen, the noble and learned Lord, Lord Denning, and the noble Lord, Lord Morton, want to see in this Bill.

Baroness Seear

It is all very well for the noble Lord to say what he has said, but the fact is that what he has said tonight is not going to be available to the people who will have to read the Act in the future. He has explained it to us, and quite intelligent people in this Committee cannot understand what is down here, without the gloss that the Minister has put on it. The public who have to deal with the Act will not have the benefit of the gloss, and that gloss needs to be translated into English which is intelligible to the people who have to use the Act.

Lord Denning

I should like to say that the explanation was excellent. I now understand what the noble Lord was driving at, and it is all very desirable. But surely we ought to make this clear. Perhaps I may suggest that there could be a note or an illustration, as is sometimes done. If an illustration were given of what we are driving at, that might be better. We must make things clearer than they are at the moment.

Lord Allen of Abbeydale

I do not know whether I count as one of the intelligent people referred to by the noble Baroness, Lady Seear, but, if I do, I still do not understand the gloss.

Lord Morton of Shuna

I regret that I am with the noble Lord, Lord Allen of Abbeydale. I find my confusion even more confused. The noble Lord, Lord Lucas, started off with an architect's advice. Whatever else an architect's advice or a lawyer's advice may be, it is not goods within the terms of this Bill as we are discussing them. Therefore the product liability does not apply to an architect's or a lawyer's advice; and I find that singularly unhelpful. Apparently it was the danger of the gum on the envelope and that seems to me to have nothing whatever to do with instructions.

The situation is really confused utterly when we have the noble and learned Lord the Lord Advocate asserting at Second Reading—and that assertion has been repeated at least three times tonight—that Part I is to give effect to the directive and nothing more. Then suddenly we have, in subsections (3) and (4), what must in fact be more because, according to the Government, subsections (1) and (2) fulfil the directive; and subsections (3) and (4), so far as they can be understood, contradict it. I think that the best answer would be for the Government to accept my amendment and come back with new subsections (3) and (4) if they wish. However, as that would no doubt cause too much loss of face I ask leave to withdraw the amendment and I hope that the Government will come back later with better drafting.

Lord Lucas of Chilworth

It is not reasonable for me to accept that from the noble Lord, Lord Morton. I have said that I am quite prepared to see whether I can obtain, with my officials and parliamentary draftsmen, greater clarity. For the noble Lord opposite to accuse me of refusing to do something for loss of face is quite unworthy of him. I have made the offer in good faith and I see no reason, in the light of that offer, to accept an amendment which removes from the Bill that which we see as essential. If my explanation of what we have in the Bill was insufficient, that is my fault; I have not made that explanation suitably or adequately and I accept that. However, to make the accusation that it would be for the Government to lose face in accepting the amendment is, I think, just a little too mischievous for even me to accept tonight.

Lord Morton of Shuna

I am sorry. I thought the idea of the Bill was that it could be understood, especially after the discussion we had during Question Time. However, I have moved for leave to withdraw the amendment, and I thought that might satisfy the noble Lord.

Amendment, by leave, withdrawn.

[Amendment No. 31 not moved.]

Lord Airedale moved Amendment No. 32: Page 3, line 30, leave out ("an individual") and insert ("a person").

The noble Lord said: The word "individual" has a fruit-pie connotation. Acts of Parliament usually talk about persons, so when this clause is gone through again with a fine-tooth comb perhaps we can have a person in place of an individual. I beg to move.

Lord Kilbracken

I support the noble Lord in moving this important amendment. "Person" is a word that the parliamentary draftsman always chooses to use as a convenient disyllable covering people of both sexes, although it is not a word that I myself frequently use in speaking English. If parliamentary draftsmen develop a kind of code which we are expected to understand, and if they finally hit upon a word like "person", I should be much happier if they kept to it. Therefore, I support the noble Lord, Lord Airedale, in this amendment.

Lord Beaverbrook

We have used the word "individual" quite deliberately. What we are talking about in this subsection is personal reliance on any statement or promise or advice. We are not concerned with corporate reliance, and to use the word "person" would, as I am sure noble Lords will agree, have the effect of including both the individual and the corporate identity. Perhaps in the light of this explanation the noble Lord, Lord Airedale, will consider withdrawing his amendment.

Lord Airedale

I shall think about that reply, but in the meantime I shall withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 33 not moved.]

Clause 3 agreed to.

Clause 4[Defences]:

Lord Airedale moved Amendment No. 34: Page 3, line 41, leave out ("person proceeded against") and insert ("defendant").

The noble Lord said: Perhaps with this amendment we can discuss Amendments Nos. 36 and 38. I do not know whether the expression "person proceeded against" is in deference to Scottish noble Lords, but in England at any rate the person proceeded against is usually referred to as "the defendant", and it is a shorter phrase. I beg to move.

Lord Kilbracken

I should like to support the noble Lord, Lord Airedale. In fact I would go further. I do not understand why the words "person proceeded against" have to be included at all in line 41. The clause reads: In any civil proceedings by virtue of this Part against any person". So of course the person in question is the person proceeded against. The clause has just stated that. It is quite unnecessary to add it in parenthesis and in inverted commas. The best solution is to leave that out altogether and then substitute "the defendant" in each of the further references. The clause is far longer than it should be and the words I have mentioned are unnecessary.

Lord Beaverbrook

For the convenience of the Committee, I shall address my remarks to Amendments Nos. 34, 36 and 38. While I accept that the words "the defendant" are commonly used in England to describe the person proceeded against, the noble Lord must remember that this Part of the Bill applies to Scotland as well as to England and Wales. In Scotland the usual word is "defender". I hope then that the noble Lord will be satisfied that the phrase we have used reflects the interests of those on both sides of the Border and that he will feel able to withdraw his amendment.

Lord Airedale

My surmise was correct, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Airedale moved Amendment No. 35: Page 3, line 44 after ("enactment") insert ("or British Standard")

The noble Lord said: Clause 4 provides a defence if the defect, is attributable to compliance with any requirement imposed by or under any enactment". I hope we can extend that to include, for instance, a British Standard. Where a manufacturer is told, "You ought to make your product in this way and you will earn our blessing, the blessing of the British Standards Authority if you do", and he obeys that and manufactures his product in that way, and not in some other way which he might privately think would be rather better, I should have thought that it ought to be a defence for him if he were proceeded against under this Part of the Bill.

The British Standard is not intended by me to be exhaustive. I have no doubt that there are other officially recognised bodies like the British Standards Authority which give their blessing to products. There is what used to be called the Dunlop Committee which gave its blessing to new drugs, and so on. I hope that the Government will initiate research and seek out all the officially recognised bodies to which this consideration applies, so that in all the cases where the manufacturer is told that he ought to make his product in such a way, it ought to be a good defence to proceedings under this Part. I beg to move.

Lord Lucas of Chilworth

The noble Lord, Lord Airedale, puts his arguments in very persuasive terms, but I fear that I shall have to resist his blandishments. The purpose of the subsection we are discussing is to allow the producer of a defective product a defence if the defect in the product was solely due to compliance by the producer with either a United Kingdom enactment or with a Community obligation. This is a very strict defence and is intended to cover the situation, which I believe would be against the law of possibility, where the producer of a product has made a defective product because of the inevitable result of compliance with a national or Community law. It does not mean that compliance with a safety regulation would be a complete defence.

The noble Lord's amendment would have the effect of providing an automatic defence to a producer if he had complied with a British standard. That is certainly not what was intended by the directive, and for that reason alone—I admit, somewhat narrowly—I ask the noble Lord to withdraw his amendment. However, it might help the Committee if I explain that there is nothing in the Bill to prevent courts taking account of compliance with standards, whether British or otherwise, in deciding whether or not goods are defective. In fact, I would be very surprised if they did not. However, the directive does not permit us to make specific references to British or any other standards in the defences listed in Clause 4. Indeed, the variation in standards published in the different member states meant that the authors of the directive did not even feel sufficiently confident to make a reference in Article 6—that is, Clause 3 of our Bill.

The important thing for British industry to remember is that if they do manufacture their products to British standards they stand a better chance of making products which are not defective and which would not give rise to liability under this part of the Bill. It would be fair for me also to point out that most British standards contain specifications about the performance of products to which they apply and do not directly deal with their safety. There may well be a number of inventors or innovators who decide that to meet a British standard performance specification there can be an alternative or a different way; so that defence would probably fall. Compliance with those standards could not provide a defence under Part I.

Even in the case of safety standards there is some variation. When we come to discuss the general safety requirements in Part II of the Bill the Committee will see that we have specifically included a defence to criminal proceedings under Clause 10 for suppliers of consumer goods if those goods are shown to comply with approved safety standards. It is our intention here that a comprehensive range of British and other standards should be approved for this purpose, but only if and when we are satisfied that they provide adequate guarantees. Even then, there is nothing in the directive which would enable us to make compliance with an approved standard a defence to civil liability under Part I.

I mentioned the varying standards throughout the Community. Progress on harmonisation of standards is, sadly, slower than we expected. Therefore, it would be very difficult for us to add a particular British standard, thereby excluding the opportunities of finding harmony with other European institutions. I hope that that explanation will help the noble Lord in realising why we have this measure in the Bill, and will persuade him to withdraw his amendment.

Lord Hacking

Before we pass from this amendment, may I raise one point which I believe is of some importance and which is closely related to it? I think the words "or supportive legislation", should be added after the word "enactment", because a defence surely must be available not only for a statutory enactment but for any supportive legislation that is introduced subsequent to a statutory enactment. The words, "or subordinate legislation", are used in other parts of the Bill. The Minister may not have the opportunity or be able to answer this question now, but I wonder whether that point can be considered. It seems to me that it is an important matter when considering this subsection.

Baroness Seear

I speak as a former president of the British Standards Institution. I hope that in making the statement that he has just made about British standards the noble Lord, Lord Lucas, did not intend to give the impression that in setting British standards the BSI was not careful about standards of safety. Tomorrow, if he reads what he has said, he will see that there is some implication, which I think will be very damaging to the BSI, that safety is not a prime consideration when standards are being set. I hope that he will make it quite clear that that was not in his mind.

Lord Lucas of Chilworth

The noble Baroness raises a very important point. I do not think that I said what she thinks I said, but I do not wish to argue the point. I should like to make it quite clear that what I meant was that British standards are more often concerned with performance criteria than safety. That is not to say that the British Standards Institution does not have regard to safety—of course it does—but some of the standards are related to performance only and not to construction, safety and so on. That is the point that I was trying to make. I have no doubt that we shall return to that matter, as I suggested we may do, when we come to discuss the general safety requirements.

So far as concerns the point raised by the noble Lord, Lord Hacking, perhaps we can together look carefully at the term "by or under" in line 44. Subsection (a) states: that the defect is attributable to compliance with any requirement imposed by or under any enactment or with any Community obligation". That covers the point made by the noble Lord with regard to subordinate legislation.

Lord Hacking

I am much obliged.

Lord Airedale

I have received a good explanation. However, when our representatives were discussing these matters with their friends in Europe one wonders how much effort was made to put forward the importance of having regard to our excellent official British standards and to make the point that compliance with them was about as good as one could get in this connection.

I dare say that there were many matters that had to be discussed and I do not know how much emphasis was put upon that point, but it is a pity that the directive is not drafted in a way which enables British standards compliance to be a defence in this part of the Bill. I can understand the explanation. I have done my best. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 36 not moved.]

Lord Airedale moved Amendment No. 37: Page 3, line 46, leave out ("at any time")

The noble Lord said: At line 46, the clause states that it is a defence: that the person proceeded against did not at any time supply the product to another". He either supplied the product to another or he did not supply the product to another and I cannot believe that the words "at any time" add anything at all. I move to leave out the words "at any time". I beg to move.

Lord Kilbracken

I should like to support the noble Lord, Lord Airedale, in his amendment. It is a fact of parliamentary life that Ministers will go to almost any length at any time to support the parliamentary draftsman and to try to persuade us that every word that comes from that sacred pen is perfect and unassailable. I had many examples of that when I put down amendments to the Family Law Reform Bill last Thursday. I may be completely mistaken. It may be that the Minister is about to tell us that he accepts the amendment, and yet I have the most curious feeling that that will not be the case.

Those three words add absolutely nothing of any conceivable significance to the Bill. If they were left out, the Bill would be the same. The only purpose they serve is that they make the Bill three words longer. That may be a virtue that cannot be dismissed. I hope that the amendment will be accepted.

Lord Lucas of Chilworth

I think that I am right in saying that this is the last amendment that we shall discuss at any length this evening. To put the Committee out of any painful thoughts it may have, I shall say that I propose to urge the Committee to reject the amendment for these reasons: I accept that it may be believed that the three words "at any time" are superfluous or redundant but there are genuine reasons for using them.

The paragraph gives effect to the defence in Article 7(a) of the directive, which applies where the producer can show that he did not put the product into circulation. We have used the expression "supply" rather than "put into circulation" as it is more precise and enables one to reach the legal position under Part I more easily. However, it has a slight drawback in the present case because it may carry the implication that it is the particular supply to the injured person, or a supply leading to the injury, which is referred to, whereas that is not the intention. Any supply of the product at any time by the defendant will mean that he cannot rely on the defence.

I admit that the point is a narrow one, but since so much may turn on this defence we must be clear that it cannot be abused. I hope therefore that with that rather brief but succinct explanation the noble Lord will feel able to withdraw the amendment.

Lord Airedale

I do not know the difference between "brief" and "succinct". I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 38 not moved.]

Lord Beaverbrook

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

British Railways (London) Bill [H.L.]

Corn Exchange Bill [H.L.]

Hampshire (Lyndhurst Bypass) Bill [H.L.]

Keble College Oxford Bill [H.L.]

Liverpool Exchange Bill [H.L.]

London Regional Transport (Penalty Fees) Bill [H.L.]

National Provident Institution Bill [H.L.]

Newcastle upon Tyne Town Moor Bill [H.L.]

Selwyn College Cambridge Bill [H.L.]

Swanage Yacht Haven Bill [H.L.]

University College London Bill [H.L.]

Presented and read a first time.