HL Deb 20 January 1987 vol 483 cc881-922

House again in Committee on Clause 5.

Lord Morton of Shuns moved Amendment No. 46: Page 4, line 37, after ("any") insert ("item of").

The noble Lord said: It may be for the convenience of the Committee if I discuss Amendments Nos. 46, 47 and 48 together. They are all straightforward semantic points. The aim is to comply, no more and no less, with the directive.

The first amendment is to add "item of" before "property". That is straight out of Article 9: damage to, or destruction of, any item of property", and not "any property".

Amendment No. 47 is to take out the word "lost", which has one connotation which I understand. It means that you cannot find something. That seems to be different from the meaning of the word "destroyed", which is the word in the directive. If one loses something, it is different from destroying it. It is destruction that is talked of in the directive: damage to, or destruction of, any item of property".

The third amendment, Amendment No. 48, is in the same vein, leaving out "description of property" and inserting "type". That again is to take the words of Article 9(b)(i): is of a type ordinarily used". All that I am trying to do is to fit Part I to the directive and I hope that that is not to the Government's disadvantage. I beg to move.

Lord Denning

I think it is important that our Act should correspond as closely as possible to the directive. I would hope that we can give explanations or make amendments in our Bill. However, I do not think that that should be done unless there is good reason, and I should like to know whether there is sufficient reason for departing from the directive in these cases.

Lord Kilbracken

I should like to comment on Amendments Nos. 47 and 48 moved by my noble friend. I puzzled for a long time as to the significance of and reason for Amendment No. 47, because in Clause 5 we find no fewer than eight references to "loss or damage", including this one to "lost or damaged". Yet on that one occasion my noble friend wishes to change that from "lost" to "destroyed". He has said that these are semantic amendments and I do not wish to appear to be anti-semantic. It seems to me that if here he wants to change "lost" for "destroyed", he should change "destruction" for "loss" on the seven other occasions where it appears in this Clause.

As regards Amendment No. 48, I should always support an amendment that seeks to substitute one short word for three much longer words so long as the provision still makes sense. I should be particularly inclined to do so here, where my noble friend's amendment would give the paragraph sense where at present there seems to me to be none. It talks of: damage to any property which … is not of a description of property ordinarily intended etc. At best that makes very little sense.

I would go a little further than my noble friend and leave out altogether those six words: of a description of property ordinarily". The paragraph would then read: damage to any property which … is not intended for private use, occupation or consumption". However, if that would be improper I should like to see my noble friend's amendment accepted.

Lord Cameron of Lochbroom

I am grateful to the noble Lords for their contributions. I assure the Committee that we are attempting to represent in words which the courts have been accustomed to use the concepts in the directive. Perhaps I may take each in turn.

We have used "property" as opposed to "item of property" because, in the first place, probably in the English translation of the directive this was an attempt to reflect the French text, which refers to "chose". There is a danger of adding unnecessary words to a statute because the courts may feel bound to give them some kind of meaning. I think it would be difficult here, but, for example, I do not believe that one would naturally speak of an "item" of land, and there may be a danger that by a side-wind the amendment would exclude any recovery for damage to land or buildings.

We must remember, as has already been said in your Lordships' Committee, that at the end of the day acute minds, such as that of the noble Lord opposite, may come to bear upon this Bill, and we therefore want to make absolutely certain that by side-winds they do not defeat its principal object.

The noble Lord, Lord Kilbracken, raised a point on the next amendment. I would only add that if one reads subsection (3) of Clause 5 with the amendment, it begins to make slight nonsense: —person shall not be liable under section 2 above for any loss or damage to the property which, at the time it is destroyed or damaged". The first thing the courts will ask is why use the word "destroyed" when it has been introduced by "loss". The noble and learned Lord, Lord Denning, will know that "loss or damage", is an expression commonly and widely understood in statute law. Indeed, I am sure that the noble Lord opposite uses that term in his private practice to describe property that is destroyed, even in his pleas in law.

It seems to be perfectly clear that the word "loss" has the same meaning as "destruction" in Article 9, but the use of the term "loss" would reduce some uncertainty. If we were to insert the word "destruction", it may compel our courts to give a different or narrower construction where none was intended. I am advised that the term "destruction" has been used in a rather narrower sense in previous legislation. I am referred to Section 29(1) of the Town and Country Planning Act 1962, where it is used in the context of wilful destruction of property.

I admit that the last point is very much a semantic point. However, it is simply that the English word "type" may have two different connotations. It could imply that the property in question has to be representative of a series or one of a class of articles of exactly the same kind. That is not the intention of the directive and a more general meaning is intended. Therefore we have adopted the more neutral expression "description", particularly since we have used such words in other parts of the Bill with the same general intention. I think that we are all trying to secure the same end. I am simply trying to use as accurate English as I can so that there can be no doubt and no ambiguity in the translation of the directive into this part of the Bill.

Lord Denning

I appreciate the explanation, but it does show that the important part of our own Bill, the directive, is framed not necessarily by English people. It has been framed mainly in another language and then translated into English. It may be much better to have it in the Bill in the words which we understand, rather than in a directive which may have become a little distorted in translation. However, on the whole, I am glad to have the explanation.

Lord Kilbracken

Perhaps I may ask the noble and learned Lord opposite whether or not he really thinks the phrase: property which is not of a description of property is really a phrase that we ever use in speaking the English language?

Lord Cameron of Lochbroom

I am bound to say that applying my own legal knowledge—and this is a personal view—I see the ambiguity which has been discovered in the directive, on one view of it. It is plainly a view which may be wrong. In an attempt to translate the concept in the directive, "a description of property" is very much better than putting in the word "type", which leaves the ambiguity there. I assure the Committee that this has obviously been the subject of very anxious consideration by parliamentary draftsmen in particular, and I would certainly accept their advice that that represents what the directive is seeking to achieve.

Lord Kilbracken

Perhaps "which is not of a kind" would be preferable to "which is not of a type".

Lord Morton of Shuna

I do not intend to ask the opinion of the Committee, but "loss and damage" is one phrase which is used fairly frequently in the legal language, at least of Scotland. I make no attempt to speak of England.

Lord Denning

I can assure the noble Lord that it is just the same.

Lord Morton of Shuna

The noble and learned Lord, Lord Denning, was speaking of England and I am sorry to keep on putting up the flag of St. Andrew. I have to do that and I have no intention of apologising for doing so. The difficulty is that if one talks of a description of property ordinarily intended for private use, and the directive talks of "a type of property" the court's first question will be: Why do you change the word? If you change the word you must mean something different, and what "different" do you mean? If one talks about "property" it includes perhaps everything that is owned. If one talks about "item of property" one is talking about an individual article, and that is the wording in the directive.

I cannot see why it is so difficult for the draftsman, because the noble and learned Lord obviously is not relying on his own private opinion which, with respect to him, I should have thought he should rely on. After all, he is a very eminent Minister of the Crown. He should not be taking the advice of those who are drafting Bills. He should be deciding whether or not the advice that is given to him is correct. If it is correct, he should be giving it as his advice.

I do not wish to divide the Committee, but I can see difficulties on the interpretation of these words, especially as the noble and learned Lord persuaded the Committee yesterday that the directive should not be available in the Bill to the people who may have to try and work out what it means. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 47 and 48 not moved.]

8.45 p.m.

Lord Airedale moved Amendment No. 49: Page 5, line 11, leave out ("appropriate").

The noble Lord said: It might be convenient if, together with this amendment, I speak to Amendment No. 50, as they are closely related. We are still in the field of necessity for particular words. Subsection (7) is dealing with the knowledge that might be imputed to a person which he might reasonably have been expected to acquire … (b) from facts ascertainable by him with the help of appropriate expert advice". Is it really necessary in the Bill to spell out that the expert advice has to be appropriate? Can it not be left to the judge to exercise his discretion and say, "This piece of advice which is being offered is not going to help me to decide this issue. I do not think we need to have this evidence"?

Paragraph (b) continues: expert advice which it is reasonable for him to seek. Let us suppose that the expert in some narrow field lives in Japan. Surely it is a matter for the judge's discretion to say, "It is not really reasonable to expect this piece of evidence to be adduced by calling a gentleman from Japan. The issue is not big enough to necessitate such a burden being placed upon the party to the proceedings."

If we are going to spell out all the instances where judges may or may not exercise their discretion in the course of deciding the cases, we are going to be in for very long Bills. In this particular instance it would be perfectly satisfactory to leave paragraph (b) as: the help of expert advice". I beg to move.

Lord Kilbracken

On this occasion I should be very glad strongly to support the noble Lord on leaving out nine completely unnecessary words.

So far as the word "appropriate" is concerned, of course this expert advice from which facts can be ascertained has to be appropriate expert advice. If it were inappropriate expert advice it would be completely irrelevant.

Similarly, in the case of "which it is reasonable for him to seek," the Committee will see that in line 9 of the same page we are already talking about a person's knowledge including: knowledge which he might reasonably have been expected to acquire". If he has been reasonably expected to acquire it, it is also reasonable for him to seek it. Therefore, this is completely otiose.

I would support this amendment also because in leaving out the seven words in line 12, the section will no longer contain a relative clause: which it is reasonable for him to seek", tagged on at the end of another relevant clause which begins in line 8: which he might reasonably have been expected to acquire". I suggest that that is not good English, and if it is to stay in the Bill line 11 should read: with the help of such appropriate expert advice as it is reasonable for him to seek. I would be prepared to argue that the word "which", appearing in lines 8 and 12 should in both cases be the word "that". The question of when to use the word "which" and when to use the word "that" is so complicated and badly understood that I do not intend discussing it tonight.

Lord Denning

Perhaps I may just say one word. This does not follow the directive at all; but if I recollect rightly, a great deal of this is on the same lines as we have in our own Limitation Act. I think in a way the draftsmen may have been following much the same thought as we have in our own Limitation Act which might be subject to the same criticisms. But on the whole I feel that it is probably all right as it is.

Lord Beaverbrook

I should have liked to take Amendments Nos. 49, 50 and 51 together because they all change the test of a person's knowledge or the knowledge he might reasonably have been expected to have about loss or damage caused by a defective product.

Lord Airedale

If the noble Lord will allow me to intervene, if he would like to take Amendment No. 51 with the other two, then perhaps it would be helpful if I were to speak to Amendment No. 51 and explain what I find difficult.

This amendment is to leave out all the words after paragraph (b) down to the end of subsection (7). I hope the Minister is being helped by my taking the matter in this order and in this way. What I find difficult is that I cannot understand the five lines in the paragraph because of the use of the word "unless", when we come to it. I would understand it if the word "if" were substituted for the word "unless". Let me just take the bones out of the five lines and state them in the two alternative possibilities: A person shall not be taken to have knowledge of a fact ascertainable only with the help of expert advice unless". The Bill says unless he has failed to obtain that advice. I cannot make sense of that. If it said: A person shall not be taken to have knowledge of a fact ascertainable only with the help of expert advice if he has failed to obtain that advice.". To me that would make sense of it. I think it needs "if" in the place of "unless". That is my difficulty. I hope that helps the Minister if he is now going to reply.

Lord Beaverbrook

I am most grateful to the noble Lord for now grouping these amendments together and I shall speak to them accordingly. As I was saying, subsections (5), (6) and (7), to which these amendments are all directed, reproduce the wording in Section 3 of the Latent Damage Act 1986. They determine when damage to property is to be taken to have occurred in a case where the damage could not initially be discovered. It is when any person with an interest in the property had knowledge of such facts as would lead a reasonable person to consider the damage sufficiently serious to justify the institution of proceedings. In subsection (7) it says that knowledge for this purpose includes the knowledge which a person might reasonably have been expected to acquire from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek.

The noble Lord's Amendment No. 49 would mean that in considering the expert advice which might have been given, you must disregard whether it would have been appropriate to seek that advice. Thus you might fix the point at which the damage was suffered at the earliest date on which someone with some very unusual expertise could have detected the damage.

I would resist the noble Lord's first amendment on three grounds. First, it seems to me that it places an undue restriction on what ordinary people might be expected to do. Secondly, I find no reason for this Bill departing from the policy laid down so recently in the 1986 Act. Thirdly, the test laid down by Section 3 of the 1986 Act and reproduced here is the same test as that which is laid down by Section 14 of the Limitation Act 1980 for the purposes of determining the date from which time runs in actions for personal injuries and also, as a result of the 1986 Act, in actions for latent damage. This test is also applied to actions under Part I of this Bill by virtue of Clause 6 and Schedule 1. The test accords with the liberal approach advocated by the Law Reform Committee in their 20th Report concerning the limitation of actions in personal injury claims. I have no reason to believe that a less liberal approach should be adopted in this Bill.

With regard to the noble Lord's Amendment No. 50, the words which the noble Lord would remove reproduce exactly the corresponding words in Section 3(6)(b) of the Latent Damage Act. The purpose of those words is to ensure that while a person is to be fixed with knowledge of facts ascertainable by him with the help of expert advice, that only applies to advice which it is reasonable for him to seek. The effect of the noble Lord's amendment would be presumably that it was enough that the advice was formally available, even though in practice no one would ever think of seeking that kind of advice in the circumstances. I cannot think that it would be realistic to fix a person with knowledge in those circumstances; and for the same reasons which I gave in the case of the noble Lord's Amendment No. 49.

Regarding the noble Lord's Amendment No. 51, the words which the noble Lord would remove reproduce exactly the corresponding words in Section 3(6) of the Latent Damage Act 1986. The purpose of those words is to ensure that a person will not be fixed with the knowledge of a defect which an expert might have discovered if he took all reasonable steps to obtain that advice. So it may be that there was a firm of experts who could have uncovered the defect, but it would not have been possible for them to inspect the property concerned for a very considerable time. I cannot believe that the noble Lord would wish to fix a person with notice of the defect in those circumstances before that firm could carry out the inspection. For the reasons that I have given in relation to his Amendment No. 49, I would very much hope that the noble Lord will feel able to withdraw his amendments.

Lord Denning

My recollection is right, if I may say so. When you look back to Schedule 1 of the Limitation Act, the draftsman is following the words of our Acts of 1980 and 1986 and these words in this particular clause are almost taken from those statutes. I really do not think this is worthwhile. It was all discussed in those Acts and I do not think it is worth pursuing it now.

Lord Airedale

I am always grateful when so much trouble is taken to deal with the amendments which are put forward. I am very grateful for the amount of trouble that has gone into the reply to these amendments. I should like to thank the noble Lord, Lord Kilbracken, for his support. I would say to him that I think that the Committee must always be very careful not to get trapped into trying to redraft clauses in Committee across the Floor of the Chamber. That way lies disaster nearly every time.

The noble and learned Lord, Lord Denning, had some reservations about these amendments; but before the Minister was able to confirm it, the noble and learned Lord, Lord Denning, surmised quite correctly that the words being used here were hallowed by having been used in an earlier English Act. That pays great tribute to the learning of the noble and learned Lord, Lord Denning, although it is not necessary for me to compliment the noble and learned Lord.

I am grateful for the discussions that we have had. As I think this may be the last amendment that I shall be moving (although there is one more in my name), I am grateful to noble Lords for the patience with which they have heard me. I have enjoyed the Committee stage on Part I of this Bill. I beg leave to withdraw this amendment.

Amendment, by leave, withdrawn.

[Amendment No. 51 not moved.]

Lord Airedale had given notice of his intention to move Amendment No. 52:

Page 5, line 16, at end insert— ("( ) In assessing damages recoverable under this Part the Court shall have regard to the amount of insurance cover which the defendant might reasonably have been expected to have in force at the relevant time in respect of the liability in question.")

The noble Lord said: Amendment No. 52 is about insurance and it is somewhat akin to Amendment No 54 in the name of the noble Lord, Lord Williams, which he moved at the beginning of today's proceedings, alongside Amendment No. 39 in the name of my noble friend Lady Burton. Amendment No. 52 is just another way to try to resolve the insurance difficulty to which the noble Lord, Lord Williams, referred earlier. If some noble Lord intends to speak to No. 52 I shall move it formally; otherwise I shall not move it.

[Amendment No. 52 not moved.]

9 p.m.

On Question, Whether Clause 5 shall stand part of the Bill?

Lord Morton of Shuna

I take advantage of this procedure to raise two questions. One is why, in Clause 5(3)(b), the first word is "intended"? It reads, intended by the person suffering the loss or damage mainly for his own private use". This, to my Scottish legal mind, means "intended but not used". The words in Article 9 are quite straightforward, and say that it is an item of property that is used.

According to my reading of Article 9, one has to prove that the item of property to which the claim relates was in fact used. As I read Clause 5(3)(b) one has to prove that one intended to use it but did not use it. No doubt the noble and learned Lord will give me an explanation as to why there is this distinction. But it is difficult to understand why one cannot simply use the words, was used by the injured person mainly for his own private use or consumption as meeting the intention of Article 9(b)(ii).

The other difficulty I have to raise is that in the definition of "injury", especially in Clause 5(5), which I realise relates only to property damage and not to personal injury damage, we are dealing with one incident of damage that occurs at one point in time. What is the position regarding both personal injury and damage to property which occurs over a period of time?

My experience happens to be mainly in personal injury cases, and, therefore, I think of asbestosis, or dermatitis, where the disease arises out of a length of exposure to the delinquent article, if I may refer to it in that way, over a period of time. There is also the situation that has been referred to of somebody who takes pills over a period of time which result in damage. What is the relevant time there? What is the time when the damage occurs?

In damage to property, there is the same situation—changing the way the damage occurs but not the method of a sort of percolating damage. What is the attitude to be adopted in the view of the Government? I should be pleased to have some answers to these points.

Lord Cameron of Lochbroom

In response to the noble Lord opposite, I am going to say something. I think the words "or other" are otiose. If one looks, in relation to the noble Lord's first question, at the words of Article 9, it would have the strange result that if you purchased something and it were to injure you before you had put it into use, you would be cut out from recourse to this Bill. That, clearly, is not intended by the article. In order to make the matter clear, we have used the word "intended" which avoids the problem where property is held but not yet used.

So far as the latter question is concerned, I answer with some trepidation as a Scots lawyer, because we have been told that this is taken from an Act which applies to England and Wales and, in terms of subsection (8), does not extend to Scotland. I think the question must be answered thus: it must always be a question of evidence as to what caused the injury, and from that, one has to determine the period of time at which the person having an interest in that property had knowledge of the material facts about the loss or damage.

Although it may be damage continuing over a period of time which arises, as the noble Lord suggests, from a packet of pills, I would imagine that having fixed what the defect is, there should be little difficulty from that point onwards in determining the point at which subsection (5) comes into operation. I hope that that is of some assistance to the noble Lord. This being a statutory provision which has precedent, I have no doubt that I shall be corrected if I am wrong in what I have stated.

Lord Morton of Shuna

The problem has arisen time and again in limitation and proscription legislation both in England and in Scotland about continuing damage where one has pills, or exposure to asbestos, or exposure to something that gives you a disease. That has caused continual trouble. It would be reckless of me to say that the law has got it right yet, but the collective mind of the drafters of this Bill does not seem to have been applied to the problems that occur with damage from asbestosis following exposure over a period of years, or the taking of pills over a period of years. However, I shall leave that. If I were, in my private capacity, instructed to appear for an insurance company and were to be instructed to defend a case where somebody who had used an article for some time had suffered loss or damage, I should take the position with some strength under Clause 5(3)(b) that the article had been used and was therefore no longer intended to be used because "intention" implies, in the way that subsection (3)(b) is worded, that one has to have an article, of a description of property ordinarily intended for private use, occupation or consumption … and … intended"— and that is a future intention not a past intention. Therefore it has to be a new article that has not been used. If I may give any advice—no doubt it will be spurned as usual, but I proffer it—"intended" or "used" may cover the situation but "intended" implies a future which is not necessarily there.

Lord Cameron of Lochbroom

All I shall say is simply that I have listened to what the noble Lord has said. I am not persuaded by his first point about the continuing loss because one has to start with a defect in a product. One has to find out what the product is and the defect. Perhaps the question of being subjected to asbestos dust in one's employment is a slightly different question.

I shall consider again the second matter that the noble Lord has raised, though we thought we had the matter right in the way we have put it in subsection (3)(b).

Clause 5 agreed to.

Clause 6 [Application of certain enactments etc.]:

Lord Morton of Shuna moved Amendment No. 53: Page 5, line 24, leave out ("and") and insert ("by that person's wrongful act or negligent act or omission and for the purposes").

The noble Lord said: This is a very technical amendment. I apologise for it, but we might as well get things right. The reference to the Law Reform (Miscellaneous Provisions) (Scotland) Act and Section 1 of the Damages (Scotland) Act is not correctly put. The Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 refers to somebody's wrongful act or wrongful act or omission.

Lord Cameron of Lochbroom

It would be for the covenience of the Committee and of the noble Lord if I were to say that I am entirely persuaded by what he is about to say. If it would save time I indicate now my acceptance of this amendment.

Lord Morton of Shuna

For that small favour I am very much obliged. I formally move the amendment.

On Question, amendment agreed to.

Clause 6, as amended, agreed to.

Clause 7 agreed to.

Clause 8 [Power to modify Part I]:

[Amendment No. 54 not moved.]

Clause 8 agreed to.

Clause 9 [Application of Part I to Crown].

On Question, Whether Clause 9 shall be agreed to?

Lord Williams of Elvel

I am grateful to the noble Lord the Chairman of Committees for his indulgence. Clause 9 brings us to the end of Part I, for which the Committee will be extremely grateful. We can now pass on to other matters.

Perhaps I am anticipating events, but in the light of Clause 49, which specifically excludes Northern Ireland from the provisions of Part I which we are now completing, can the Minister or the Lord Advocate say what will be the position of Northern Ireland if the Bill is enacted as it as present stands? I understood that Northern Ireland was part of the United Kingdom and presumably the directive applies to the United Kingdom. I should be grateful if that matter could be cleared up.

Lord Cameron of Lochbroom

Clause 49 provides, as I understand it, that Part I will not apply to Northern Ireland. The result will be that it will have to be regarded as being applicable only to the other parts of the United Kingdom. That includes the part providing that so far as consumer safety is concerned it will not be regarded as a transferred matter for the purposes of the Northern Ireland Constitution Act but will be a reserved matter; that is, a subject to be legislated upon on a UK basis. This is consequential to extending Part II to the whole of the United Kingdom.

Subsection (3) provides that, where an Order in Council under the Northern Ireland Act 1974 is made only for the purposes corresponding to the matters covered in the Bill but which are not extended to Northern Ireland, then such an order should not be subject to the affirmative resolution procedure and the special procedure in cases of urgency but should be subject to a negative resolution procedure. I hope that makes clear the way in which the matter will be dealt with and that the noble Lord is clearer now as to the result of the effect of Clause 49 in relation to Part I.

9.15 p.m.

Lord Williams of Elvel

I am grateful to the noble and learned Lord. As he says, I am slightly clearer, but not wholly clear. Am I right to understand that for the purposes of the directive Northern Ireland does not form part of the UK; in other words, the directive, which is a directive to the UK, as I understand it, and therefore has to be in place by a certain date for the whole of the UK, is not provided for in the Bill?

If that is the not the case, am I to understand that the Government have a firm commitment to bring forward some curious animal of legislation in respect of Northern Ireland that will give effect to the directive and will exactly reproduce what we have been discussing in Part I in respect of Northern Ireland? Am I to understand that that will be in the form of an order that will be subject to the negative procedure rather than the affirmative procedure?

Lord Cameron of Lochbroom

I am not suggesting—I hope that nothing I have said so far suggests—that the directive does not apply to Northern Ireland. It is simply the manner in which it would be brought into effect. The provisions of Part I are not extended to Northern Ireland, as I said, because the material is similar to the law of negligence, which is a transferred subject. Therefore, a separate order will have to be made for Northern Ireland. That I hope makes the matter clearer than I perhaps have been able to make it previously.

Lord Williams of Elvel

I am most grateful to the noble and learned Lord. I think we are two-thirds of the way there. May I therefore assume that the Government will bring forward an Order in Council in exactly identical terms to Part I of the Bill—which we have spent a great deal of time discussing—in respect of Northern Ireland in order to implement the directive?

Lord Cameron of Lochbroom

It would be wrong for me to suggest, I think, that it would be in exactly the same words as Part I. If there is to be an Order in Council for Northern Ireland, it would take account of the law as it applies there. Certainly the directive applies. The means by which it will be brought forward will of course be by way of an Order in Council.

Lord Williams of Elvel

I am grateful. I am now quite clear about the procedure. I should like to warn the noble and learned Lord that when we consider Clause 49 we may wish to make it the affirmative procedure rather than the negative procedure because it seems to be rather an important question.

Clause 9 agreed to.

Clause 10 [The general safety requirement]:

[Amendment No. 55 not moved.]

Lord Mottistone moved Amendment No. 56: Page 6, line 41, leave out second ("any") and insert ("an approved").

The noble Lord said: In order to expedite the work of the Committee I propose to discuss together Amendments Nos. 56, 57 and 58. I have had discussions with the CBI. It is my view and that of the CBI that Clause 10 in principle and as a whole is excellent and achieves the object that we wish.

The aim of catching the manufacturer or suppplier, and particularly the importer, who negligently puts an unsafe consumer product on to the market is thoroughly to be supported. However, the objection to the drafting of Clause 10 is that it does not provide a sufficiently precise objective test by which suppliers can determine where they may be breaking the law and by which trading standards officers, who will be the enforcement officers for the purposes of the legislation, can decide whether to prosecute with a reasonably high degree of certainty and consistency.

Turning to Amendment No. 56, I seek there to remove the second "any" from Clause 10(2)(a) and replace it by the words "an approved person". It seems to me that as the Bill is now drafted any standards of safety published by any person can take effect within this clause and it lays the matter very wide open to all sorts of people producing a standard of safety.

For example, if I were in a business manufacturing particular goods and I did not like the rival goods a competitor was producing, it seems to me that within the terms of this Bill as it is drafted I, as "any person", could produce a standard of safety which would be detrimental to my competitor's goods and possibly make it easier for me to sell my own. Therefore one needs to have not just "any person" but a recognised person, an approved person.

I should say that all these amendments of mine at this stage are probing amendments. I am quite ready for the Minister to say to me that the wording is not right. But they are put forward in order to make sure that it is only a person with some sort of status who can publish a standard of safety which would take effect within this Bill. That is Amendment No. 56.

Amendment No. 57 rests on the fact that the criterion in Clause 10(2)(b) is far too subjective and is quite an inappropriate test for a criminal offence. Safety is not absolute. It is almost always possible to make goods safer, either at a greater cost or sometimes at the expense of efficiency. It is for that reason that I propose that the subsection should be removed. A test, if it has to be there, should be much more closely tied to recognised modern standards of safety or to accepted sound modern practices.

It may be that my noble friend, if he agrees with me that this subsection is inadequate, would like to think of something better that could be put in its place. Because of the weather I have not had time to think of something better to put in its place and, if need be, I may come back on Report with something better if my noble friend is not as encouraging and helpful as I hope he will be.

Turning to my third amendment, No. 58, I correspondingly believe—and here we turn to a defence—that it should be a defence to a general safety requirement that a product conforms to standards of safety published by an approved or recognised body or person: that is, a body or person whose standards are generally adhered to in relation to a particular sector or class of goods.

As drafted, the defences are confined to standards contained in legislation of one sort or another, and in particular, as I read it, the Bill does not cover any safety regulations that might be published by the British Standards Institution, for example, which is a semi-official body. I should not have thought that they would be covered by this, and the object of my amendment is to try to make sure that recommendations of the kind put forward by the BSI should be covered by this part of the Bill. I beg to move.

Earl De La Warr

I should like to support my noble friend in all these amendments, but in particular in his Amendment No. 57. I drew attention on Second Reading to problems about the word "safety", although I said that I was a layman, and I wondered how it could be turned into sufficiently absolute terms if necessary to send a man to gaol. Now here in this subsection—and I had that in mind when I made the reference at Second Reading—we get safety in a special relative sense. We get the word "safer". Safer than what? Safer than the other chap who is selling something, and is he selling it at the same price? Safer than any particular standard? These are things which we surely ought to know if we are to judge a man to have committed a criminal offence. I am glad that my noble friend did not think of any answer, because I very much hope that the Government themselves will take the sense of what he said and think of something a good deal more precise than we find in this subsection.

Lord Gallacher

The noble Lord, Lord Mottistone, has moved Amendments Nos. 57 and 58 as well as No. 56. I address my remarks specifically to No. 56, because that is the amendment which commends itself mostly to this side of the Committee. We are of the opinion that the noble Lord, Lord Mottistone, is quite correct to ask for an "approved" person, rather than the words currently in the Bill; namely, "by any person".

We feel that there may be an explanation, which no doubt the Minister will give to us in due course if such an explanation exists. It may be that the explanation is that there is to be some form of distinction as regards defence; that is to say, if a person is approved for purposes of a standard of safety, then that will constitute an absolute defence, whereas if approval has not been given by the Secretary of State it may only constitute a partial defence. If that distinction is in the Minister's mind, we think that it would be undesirable to introduce it in an area as important as this.

Therefore for this reason, and for the fact that in general we applaud and encourage the work of standards promotion in Britain by organisations like the BSI and, indeed, by comparable bodies operating in the electricity and gas industries, we support Amendment No. 56 moved by the noble Lord, Lord Mottistone.

Lord Brougham and Vaux

If I may come in at this stage, and first declare my interest as president of RoSPA on behalf of whom I speak, in general RoSPA welcome the Bill in total with one or two exceptions. This to me is one of them, as my noble friend on the Front Bench will know because RoSPA have had many communications with the DTI.

One of our concerns is over the means to be used to measure what is or what is not to be regarded as safe. Up till now Britain, we feel, has led the world in safety standards and we regret that we shall lose a degree of control. It is beyond doubt that some EC countries have very different and frequently lower levels of safety than our own. Standards are vitally important in helping to interpret the general safety duty, and they cannot be totally comprehensive in anticipating foreseeable conditions of use. The greatest care must be exercised by the Government when they are accepting a standard deemed to satisfy status, to ensure that it is comprehensive, up to date, comprehensible and acceptable to users as well as to producers. Otherwise we accept the Bill.

9.30 p.m.

Lord Beaverbrook

I am grateful to my noble friend for grouping these amendments and I shall speak to them all together. I turn first to Amendment No. 56. The purpose of Clause 10(2) (a) is to highlight one of the factors which should be considered along with "all the circumstances" which must be considered when deciding whether goods fail to comply with the general safety requirement.

Along with the consideration of "all the circumstances" it will also be considered whether the standard of safety published by any person is suitable for goods of that description and whether the level of safety set by that standard is suitable. Although we expect that these standards may be British, European or from any part of the world, they may be taken into account only if the level of safety provided by them is sufficiently high.

There is one point about this amendment which I do not understand, and that is who the noble Lord, Lord Mottistone, believes should be "an approved" person. Without that definition of the word "approved" it might appear that any person might approve himself for the purpose of this clause and that the amendment, when viewed in this way, has little effect at all. However, the point is that only relevant standards of safety will be taken into account for the purposes of the general safety requirement and if the published standard of safety does not reach the level of safety which persons generally expect—in other words, the goods would be defective for the purposes of Part I—then compliance with the standard will not necessarily be enough to outweigh consideration of these other circumstances.

The purpose of Amendment No. 57 in the name of my noble friend would be to remove from Clause 10(2) (b) a particular factor which should be taken into account when deciding whether consumer goods fail to comply with the general safety requirement.

As I said in relation to Amendment No. 56, it is apparent from subsection (2) that all the circumstances should be taken into account when that decision is made. Subsection (2) also points back to those factors in Part I of this Bill which determine whether the product would be defective. There are in addition to those factors the further two factors listed in paragraphs (a) and (b).

Paragraph (b) provides that when deciding whether consumer goods fail to comply with the general safety requirement one should take into account whether it would have been reasonable for the goods to have been safer. When assessing that reasonableness it is particularly emphasised that one should take into account the cost, likelihood and the extent of any possible improvement.

This paragraph is there to ensure that when we assess compliance with the general safety requirement we do not look for safety in absolute terms. This paragraph ensures that we must look at whether it would have been possible to have made those goods safer, and if that had been possible, whether the cost in relation to that good would have been reasonable.

Thus the paragraph will ensure that a trading standards officer would not regard goods as failing to comply with the general safety requirement if the cost of making those goods safer would have been wholly disproportionate in relation to the benefit likely to accrue. I should repeat that this is only one factor in all the circumstances which must be considered before any decision about whether consumer goods fail to comply with the requirement can be made.

Amendment No. 58 would have a serious effect on Clause 10(3)(b)(ii). At present subsection (3)(b)(ii) provides that consumer goods shall not be regarded as failing to comply with the general safety requirements if they comply with, briefly, first, any safety regulations made by the Secretary of State; secondly, any standards of safety approved by the Secretary of State by or under such regulations; and thirdly, any relevant United Kingdom legislative requirements. Thus the only goods that will, as a matter of law, comply with the general safety requirement are those that comply, as regards any matter at issue, with regulations made by the Secretary of State, with standards of safety approved by the Secretary of State or with other relevant United Kingdom legislation. Any other standards, or legislation from any other country, will only be considered among all the other circumstances and those particularly mentioned in the preceding subsection (2) for the purpose of deciding whether goods comply with the general safety requirement.

The effect of this amendment would be that goods would be deemed to comply with the general safety requirement if they complied with any standards of safety recommended, but not approved, by a, I have to say, ill-defined "nationally approved body". I am not sure what is in my noble friend's mind in using the words "a nationally approved body". No matter. It must be apparent to the Committee that the approval of safety standards should, like the making of regulations and subordinate legislation, remain under the control of the Secretary of State, who is answerable to Parliament. "A nationally approved body", whatever that may be, would not be answerable. Anybody else's standards may only be taken into account with all the other factors. For those reasons I ask my noble friend to withdraw his amendments.

Earl De La Warr

May I raise one point with my noble friend? He has given a definition of how the word "safer" should be interpreted. I understand from what he said that the safety officer may take the view that a particular product is not safe enough because it could have been made safer provided it did not cost more to an unreasonable extent. I think that is what he said. If I have that wrong I should be grateful to be told because it is an important point.

Lord Beaverbrook

What I said was—and I must apologise to the Committee for repeating myself—that paragraph (b) ensures that we must look at whether it would have been possible to have made those goods safer and, if that were possible, whether the cost in relation to those goods would have been reasonable.

Lord Mottistone

I am afraid I am not altogether happy with my noble friend's answer. I take his point that on Amendment No. 56 if "any person" would do to produce a standard of safety then "any person" wanting to be an approved person could approve himself. I think that is true. There was an alternative of saying, "any recognised person", but I think we need a qualification rather than making it so wide open. If an international standard of safety is concerned, that will have been approved by somebody.

However, I believe that we need a qualification and I had hoped that my noble friend would say that he would take away these amendments and have a look at them. If he does not, I certainly shall and I shall endeavour to come back with something better to meet the points he made. I am not happy that "any person" is good enough in the circumstances.

With regard to subsection (2)(b), my noble friend did not take one of my points concerning the lack of precision. Perhaps we need definitions. Perhaps we need other wording, but as it stands at the moment subsection 2(b) is too wide both for a manufacturer to know precisely where he stands and also for a trading standards officer to know what he needs to do.

My noble friend said in relation to my third amendment that he did not know what was in my mind. With the greatest possible respect to him, I actually told him what was in my mind. I said I had the British Standards Institution in my mind. It was a little casual of him not to take account of that when commenting on the point.

On the whole I am not altogether happy with the reply that I have had. I hope that my noble friend will take this matter away and have a look at it. If he cannot do that, I shall certainly do my best to produce something which may be more acceptable at Report stage.

Lord Beaverbrook

I have listened carefully to what my noble friend has had to say. We shall carefully look at what he said, and if he cares to withdraw his amendments this evening and come forward at a later stage, we shall be pleased to consider anything that he may want to put down.

Lord Mottistone

I was rather hoping that my noble friend would say that he would come back at a later stage. However, at this time of night one cannot expect everything. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 57 and 58 not moved.]

Baroness Nicol moved Amendment No. 59: Page 7, leave out lines 21 and 22. The noble Baroness said: By taking out lines 21 and 22, this amendment deletes one of the defences against offences under the general safety requirement by removing the defence of goods intended for export.

We on this side of the Committee believe that it is morally wrong, and in fact it may even be commercially damaging, to export to another country goods which do not meet the safety standards of this country, unless we at least inform the importing country of the status of those goods. It would be even better if all goods manufactured in or supplied from the United Kingdom were included in the general safety requirement. We are discussing safety and not quality. I appreciate that goods are manufactured to different qualities for different importing countries, but I am concerned at present only with the general safety requirement.

Where unsafe goods exist there is always a danger that they may find their way back on to the British market. If an export order fails, or for some other reason goods originally intended for export do not in fact become exported, it is not unknown for such goods to turn up in this country for sale on market stalls or in other ways. The Consumers Association which supports this amendment draws attention to the United Nations guidelines for consumer protection which were adopted in 1985. Paragraph 44 states: Governments should develop or strengthen information links regarding products which have been banned, withdrawn or severely restricted in order to enable other importing countries to protect themselves adequately against the harmful effects of such products". I hope that when it comes to a sensible moral stand of this kind this country allies itself with every other country which takes it. I think it will be a great pity if this amendment, or at least the sense behind it, is not found acceptable. Perhaps the noble Lord can explain why the subsection was included in the first place if he intends that it should remain. I beg to move.

Baroness Gardner of Parkes

I find this section very difficult to remove, although I appreciate the moral point that has been made. This is a matter that has been discussed quite often at United Nations women's meetings which I have attended. For example, some poorer African countries would like to obtain very simple types of dental anaesthetics which we no longer produce in this country because we have progressed to a sophisticated single cartridge individual type of anaesthetic. Because those poorer countries cannot afford such products and are not capable of that degree of sophistication, they end up with nothing. Patients either have pain or have their teeth extracted without an anaesthetic. Representatives from those countries have come here to discuss these matters.

I know that the United States Government will not allow to be exported any drugs or medicines of a type that is not available for sale in their own country. They have always taken that view. I have always found that there is a very delicate balance to be held between determining what one would really like the whole world to have and giving it something which might alleviate some distress. I think that this is a difficult matter and I should be very interested to hear the Minister's reply on it.

9.45 p.m.

Baroness Lockwood

I support my noble friend in this amendment. While I appreciate the remarks made by the noble Baroness, Lady Gardner, I would remind her that in moving the amendment my noble friend talked about safety standards. For the life of me, I cannot understand why we should be prepared to permit the export of goods from this country which do not meet the domestic market's safety standards. That is especially so in the context of the Common Market. I may be prepared to concede that there are some circumstances when such goods may be exported, although not unsafe goods, but we are thinking in terms of a single market in Europe by the early 1990s.

One of the British commissioners, the noble Lord, Lord Cockfield, was responsible for issuing the White Paper Completing the Internal Market. That White Paper has been supplemented by other documents from Europe. The Committee will remember that in June last year the Select Committee on the European Communities reported on one of those documents which was concerned with a new impetus for consumer protection. On page 23 in paragraph 64 of its report, the Select Committee said: The Internal Market cannot be successful unless there are sound modern safety standards for consumer goods. The aims of consumer safety and of free circulation of goods and services can be reconciled by imposing on manufacturers a general duty to produce and trade safely in the EEC. In this debate, we have heard a great deal about compatibility among European countries. A Bill which gives protection to consumers in the United Kingdom would want to be compatible with other activities within the Community to ensure that those goods could be traded freely at safe standards. I support the amendment.

Earl De La Warr

I hope that the Government do not accept the amendment. I have great sympathy with what the noble Baroness has said. In many cases it is clearly a shame that we export unsafe goods. As she rightly says, that will probably do our reputation no good. But we must have regard to what we are about tonight; we are discussing acts which may become criminal. If we take that as the context, we are in the business of protecting our population. The criminal law cannot be extended to protect the population of the whole world.

Viscount Hanworth

I earnestly ask the Government to consider this proposal, in the drugs field in particular. Anyone who knows anything about international consumer affairs will know the appalling things that the multinational drug companies do in foisting unsafe drugs on to developing countries without even adequate instructions. That is a major scandal. It must be stopped. I ask the Government to look at this amendment in that respect. It is no good saying that the countries themselves can easily stop it; they do not, and they cannot because they are developing countries. It is morally completely wrong to foist dangerous drugs on a market for purchase without adequate instructions. I hope that the Government will look at this. There is plenty of evidence as to what is happening, which they can obtain, for example, from the Consumers Association.

Baroness Burton of Coventry

As it is getting late and I wish to speak on the next amendment, I should merely like to support what has been said by the noble Baroness, Lady Nicol, and by my noble friend Lady Lockwood on this matter. I hope very much that the Government will give consideration to the points put forward by the noble Baroness, Lady Nicol.

Baroness Seear

Let me say in reply to the noble Baroness, Lady Gardner, yes, of course it is highly desirable that, for instance, good, cheap drugs which are no longer of the level of sophistication that we use in this country should be exported abroad because they are cheap but are still perfectly good to use. However, that is not the argument. The argument that is under discussion is whether they are safe. An item can be simple and unsophisticated but still safe. I cannot see why one cannot use items that are not of the latest fashion but still safe.

Baroness Gardner of Parkes

Perhaps I may reply briefly to that point. In terms of dental anaesthetics we in this country would no longer accept what was always used 20 years ago—a large bottle from which one filled one's syringe for each individual patient. Now, with AIDS, we should not entertain that idea. We should not consider anything but a disposable needle. But people in those other countries could not entertain the idea of having a disposable needle or a sealed cartridge. To us such a situation would not be acceptable. But the dilemma that one finds oneself in, is which is more acceptable—to have no anaesthetic or to have one which, unless the proper sterilisation technique is carried out, could be considered unsafe. By our standards we would not accept that situation any longer.

Lord Kilbracken

Safety standards and regulations vary greatly from one country to another. In the case of an exporter what matters is that the product should conform with the regulations of the country to which the goods are being sent. They may be stricter or less strict than here, or they may be stricter in some cases and less strict in others. I should have thought that the exporter has enough trouble conforming with the regulations in the country to which the goods are to be sold without having to worry about whether they also conform to regulations in this country.

Lord Lucas of Chilworth

Let me first give a warm welcome to the noble Baroness, Lady Nicol, who moved this amendment. I think that this is the first occasion during our Committee proceedings that we have had the pleasure of hearing and seeing her at the Dispatch Box. That I do not agree with her does not in any way reduce my admiration for her argument.

Let me say something in general terms first on this amendment. On the starting point of the provision that we are discussing, in the White Paper relating to safety of goods published in 1984 the Government proposed the general safety requirement. They also proposed that this requirement would not apply to goods intended for export. That is the starting point to which the noble Baroness referred when she asked how this subsection came to be in the Bill in the first place.

At that time we explained that, although there was a sound case, it was possible to exempt from the scope of safety regulations goods intended for export. It would not be possible in the case of the general safety requirement to treat each case on its merits. For these reasons we concluded that it would be preferable on balance for the general safety requirement not to apply to goods for export. It would be better to allow manufacturers flexibility to meet the safety requirements of the overseas market concerned.

This is one of the points that the noble Lord, Lord Kilbracken, made. It also underlines the point that the noble Baroness made as to whether exporting goods abroad of a different standard was commercially damaging. That of course is for the commercial judgment of the company involved. If our manufacturers and suppliers are to compete effectively in overseas markets where standards may differ from those in the United Kingdom, the defence in Clause 10(4)(a) is essential.

Although we are primarily concerned in the Bill with safety standards, other standards may be relevant—for example, mechanical and electrical standards. I should like to give an illustration. An electric hairdrier manufactured for use in a country which operates on 110 volts and uses a two-pin unearthed plug might very well comply with the safety regulations of and be considered safe in that country; but it would certainly not be acceptable in this country. Therefore this flexibility is important to our manufacturers if they are to maintain their competitiveness in export markets. However, I should make it clear both to the Committee and to manufacturers that if this flexibility is abused, in order to stop any abuse the Government will not hesitate to make use of the regulation-making powers in the existing legislation, and eventually those in Clause 11 of this Bill. I believe that that answers the question raised by the noble Baroness about the "return to the market stall".

The noble Baroness, Lady Lockwood, spoke about the UN guidelines, and I am aware that information links should be strengthened. Certainly in the Community, through the consumer Ministers' meetings, we are fostering exchanges of information with regard to unsafe goods, and I have no doubt that that scheme will prosper.

The noble Baroness, Lady Nicol, said that it is morally wrong and other noble Lords moved somewhat in that direction. While we are of course concerned with morality, here we are talking of safety matters as concerned in the United Kingdom. Some argue that by the defence in Clause 10 there is implied a set of double standards and that perhaps unscrupulous manufacturers may dump unsafe goods on other countries. I do not believe that this is the case. First, I do not believe that the United Kingdom should be the arbiter of other countries' safety standards. If manufacturers are to compete overseas—a point made by my noble friend Lord De La Wan—they would have to comply with whatever safety regulations exist in the country where they intend to supply their goods.

Returning to the point made by the noble Lord, Lord Kilbracken, it would be quite unreasonable for this Government to impose United Kingdom standards on manufacturers or suppliers in this country who do not intend to supply those goods in this country.

I turn quite briefly to the contribution of the noble Viscount, Lord Hanworth. I was just a little disappointed not only by what he had to say but by the tone in which he said it. Perhaps that is quite irrelevant because in fact Part II of the Bill which we are now discussing does not apply to drugs. I would refer the noble Viscount to Clause 11, subsection (7).

Briefly, those are the basic reasons why we find the amendment unacceptable. There is no question of my thinking about this matter again. I have to say that I recommend to the Committee that they reject the amendment should it be formally put to the Committee to decide.

Viscount Hanworth

Can the noble Lord help me by saying whether or not this section, or the amendment, applies to drugs?

Lord Lucas of Chilworth

I have just said so.

10 p.m.

Lord Kilbracken

I wonder whether I can take up that point. The noble Lord referred to Clause 11(7). I turned to Clause 11(7) where I found all the goods to which this clause does not apply. It contains paragraphs (a), (b), (c) and (d). Under subsection (7) (d), the Bill does not apply to: controlled drugs and licensed medicinal products". The point I should like to make is why on earth is subsection (7) not put into the Bill as subsection (1)? Why does this clause not start off by telling the unfortunate reader to what goods it does and does not apply? The result is that the noble Viscount, Lord Hanworth, very understandably picks up the Bill and reads the whole clause with great care. He does not get quite as far as the last subsection but finds the whole clause does not apply to the goods that he is interested in. It seems very perverse to put it that way round. I know that Bills are always written like this, but why do they always have to he written like this?

Lord Lucas of Chilworth

I think I said Clause 11; I should have said clause 10(7). I apologise to the Committee. As we discussed yesterday at Question Time, sometimes the way parliamentary draftsmen order the affairs in writing what Ministers want to put in a Bill exceeds some of our understanding. I take the point that the noble Lord makes. I do not think he wants to make too much of an issue about it this evening.

Baroness Nicol

Naturally, I am disappointed that the Minister is not prepared to give this matter some more consideration. I should have said at the beginning that this amendment was supported very strongly by the National Consumer Council, the Consumers' Association (which I mentioned), and also by the Association of County Councils. The Association of County Councils draws our attention to the fact that the Bill, as presently worded, is inconsistent with the Government's own principles relating to the quality of goods for export set out in the White Paper on standards of quality and international competitiveness.

I am sorry that this inconsistency should take the form of erring on the side of what I still believe to be a slightly immoral approach, not by the Minister opposite, but by the legislation as it stands. I do not think one should have double standards. I am not talking here of electrical goods with different technical requirements. I understand that. But there are other goods which must reach a required standard. It is a great pity that we do not decide what is good enough for us has to be the same for other countries. I am not going to test the opinion of the Committee tonight. I should like to read carefully the answer which the noble Lord gave. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Nicol moved Amendment No. 60: Page 7, line 31, leave out from ("requirement") to end of line 40.

The noble Baroness said: The purpose of this amendment is to bring under the general safety requirement secondhand goods sold in the course of business as defined in subsection (5)(a). We do not wish to include sales between private individuals or sales in aid of charitable bodies, not even the Conservative annual fete where I am sure many secondhand goods change hands that might not meet the safety requirements—as indeed they do at the Labour Party fete.

This amendment has the support of the National Consumer Council and the Consumers' Association, as indeed have many other amendments that we have moved tonight. There is a risk that provided goods are marked "not sold as new", which is the requirement in the Bill, they can be disposed of quite lawfully, even though they may be part of a batch which has been found to be unsafe.

Then we have goods which have been returned to the trader by a customer as unsatisfactory. These goods can be resold as secondhand without being subject to the general safety requirements. There is a particular problem in the case of secondhand cookers. The noble Baroness, Lady Gardner of Parkes, has an amendment on this later. Sales levels are very high. The Committee may not be aware that it is a requirement of the Department of Health and Social Security that those in receipt of financial assistance to purchase a cooker must buy secondhand where it is possible. Almost any buyer of secondhand gas or electrical appliances is unlikely to be affluent. Are we saying that they are less entitled to protection from unsafe goods than the better off members of society? I am quite sure that that cannot be the intention of the Bill.

There are regulations which cover certain aspects on the sale of secondhand electrical goods. These may well be satisfactory, provided they do not fall within any of the Acts being repealed by the Bill. Gas cookers are not regulated. The Gas Consumers' Council has provided horrifying examples of problems caused by unsafe secondhand cookers. I shall not weary the Committee by repeating them at this late hour, but they exist and can be produced for anyone who wants them.

The amendment of the noble Baroness, Lady Gardner of Parkes, refers, I think, only to cookers. There are probably many other problem areas in secondhand goods which one ought to bring under the legislation. Surely we should try to bring them all within the safety net. I shall, however, not go on at length at this late hour. I beg to move.

Baroness Burton of Coventry

I should like to support the amendment put forward by the noble Baroness, Lady Nicol. As she said, the Gas Consumers' Council is concerned at the omission of all secondhand goods from the general duty to supply safe consumer goods. I think we are all concerned. I hope the Committee is concerned, and I know that the noble Lord, Lord Lucas of Chilworth, is anyway not unsympathetic to the point of view. We are concerned that the exclusion of secondhand goods could diminish vital safeguards for consumers provided under the safety provisions of the Bill.

As the noble Baroness, Lady Nicol, said, the Gas Consumers' Council has sent us various examples of tragic happenings. I do not propose to put them before the Committee at this late stage. But it is difficult for consumers to recognise, on an external inspection, whether a cooker has been properly reconditioned. It is only when the cooker is delivered and installed that faults show up or that accidents occur.

It is felt by many of us that consumers who can afford only cheaper, secondhand cookers may be especially vulnerable. It is the belief of the Gas Consumers' Council, a belief which I share, that consumers need some form of legislation to ensure that any appliance, whether new or secondhand, is safe. The Gas Consumers' Council has told me that during the Second Reading the noble Lord, Lord Lucas of Chilworth, stated that the Government would not hesitate to introduce similar regulations to those covering secondhand products with particular problems, notably gas cookers. I knew that because, as the noble Lord will recall, he made the statement to me at col. 1060 of Hansard on 8th December: There are particular types of secondhand goods which present real dangers, such as electrical appliances. They are already covered by specific regulations, and where there are particular problems the Government will not hesitate to introduce similar regulations for other types of products—notably gas cookers, to which the noble Baroness referred. We were all pleased, the Gas Consumers' Council and myself, that the Government are aware of the potential dangers of secondhand goods. I wonder whether the noble Lord would be able to help us here. The Gas Consumers' Council feels that consumers will be best protected if these cookers, together with other secondhand gas or electrical appliances are included in the general safety provisions of the Consumer Protection Bill. The council feels that separate regulations may be slow to appear and that legislation is needed now. We should be glad to have the comments of the noble Lord when he comes to wind up.

Baroness Gardner of Parkes

I wonder whether, as my amendment is more or less on the same point, it would be convenient to the Committee to speak on this matter and deal with the two amendments together. The points that have been made concerning the gas cookers are relevant and real. The electric cooker situation, according to the London Electricity Board, of which I am a member, is not so serious. Most electrical appliances, unless they are very old, are fused. The fuse blows long before there is any injury to the person. The electrical devices are designed in such a way as to be fail-safe. Of course it is not very satisfactory from the point of view of use, but the safety element is not such a problem.

The gas situation is different, and the most alarming aspect that came out in the cases sent from the northern area by the former Northern Gas Consumers' Council is that many people who had a gas cooker condemned as unsafe and who invited some small local trader to buy it from them and received perhaps £10, walked down the street the next day to see the same cooker on sale again for perhaps £40 or £50. They knew that yet another person was being exposed to the danger of the cooker.

The DHSS quite rightly want the most economical and effective gas cooker to be purchased, because it is public money that is being provided for those cookers. It would be a good thing, for the DHSS as well as for the people using it, if they could be assured that such a cooker was in a safe condition. In some cases they say that the cooker has not even been cleaned, much less checked or repaired, between passing from one hand to another.

Gas appliances in general, and gas cookers in particular, present a real problem. They are potentially explosive and certainly highly dangerous. The only warning is a smell. Apart from the smell of gas there is no way of knowing whether you are going to have a flashback or a sudden leakage or explosion. It is something that the public in general are so concerned about that the Government should give that serious thought.

Lord Lucas of Chilworth

I can assure my noble friend Lady Gardner of Parkes—I am grateful to her for allowing us to discuss her Amendment No. 61 with Amendment No. 60—that we give serious consideration to the matters that she raises. Of course I am aware that the Consumers' Association and the National Consumer Council have opposed this exclusion, but I have to say that, car boot sales, private sales, or charity sales notwithstanding, where the Government see the need to prohibit the supply of unsafe goods, whether they are new or secondhand, we would do so under the existing Consumer Safety Act 1978 or the regulation-making powers contained in Clause 11 of this Bill when it is enacted.

We have done a lot in a number of areas such as toys, bedding, furniture, pushchairs, and so on. Certainly second-hand goods that present real dangers, such as electrical appliances, are covered under the Electrical Equipment Safety Regulations 1975 and 1976. At the moment we do not see further action as being needed in this sector.

As the noble Baroness, Lady Burton, reminded the Committee, I spoke about the question of gas cookers at Second Reading, and indeed have referred to it on perhaps more than one occasion in response to her penetrating questions. I confirm, and give the Committee an assurance, that the Government's intention to draft regulations to cover the safety of gas cookers is real. We are pressing on with the drafting of these regulations both for new and for second-hand gas cookers, and we hope to go to consultation in a few weeks.

To require all second-hand consumer goods to comply would really not be reasonable. The change, and improving standards, would make it difficult to assess the level of safety that second-hand goods should reach. The inclusion of second-hand goods could place a heavy burden on retailers. It would also put a heavy burden on the buyers, because there are the two problems: first, many of these goods which are supplied at a low price so that the purchaser may repair or renovate them—and this may well include increasing their level of safety—could no longer be supplied.

Secondly, it is possible that retailers who supply perfectly sound second-hand items at low prices to those on perhaps lower incomes may feel that the risk of supplying a product which, with the general safety requirement, might fail does not warrant the continuation of their business. I should perhaps remind the Committee that the general safety requirement does not apply to second-hand goods intended for sale, but it does apply to goods intended for hire. Thus, a person hiring, for example, a chain saw from a shop, although it has been used by others, would still be able to expect that product to comply with the general safety requirement.

I have given the assurance, particularly in relation to gas cookers, that the Government will take the necessary action where unsafe goods, and the sale of them whether new or second-hand, come to our attention. We shall deal with that situation. I believe that existing legislation provides the mechanism for doing that. I hope the noble Baroness and my noble friend Lady Gardner of Parkes, in relation to Amendment No. 61, will feel able to withdraw their amendments.

Baroness Nicol

Before I mention the amendment, I thank the Minister for his kind words to me earlier which, in the heat of the moment on the last amendment, I forgot to acknowledge. I am grateful. His was a reassuring reply. I am not convinced that the legislation will catch the trader who sets out to deceive, because it will be too easy to mark something not sold as new and to get rid of it on the market.

I very much welcome the reassurance about the intentions for gas and electric cookers, and I look forward to seeing the regulations if they are to come before the Chamber. I think I have probably had the best answer I can expect tonight. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 61 not moved.]

On Question, Whether Clause 10 shall stand part of the Bill?

10.15 p.m.

Lord Hacking

In considering Clause 10, I should be grateful to the Committee if I could raise a point of some importance. I have not moved an amendment concerning this matter because I am aware of the Minister's sensitivity towards late amendments, and particularly towards manuscript amendments. Nevertheless, I draw this matter to the earnest attention of the Minister and I should be grateful if he could consider it between now and Report.

As the Committee knows, there are significant differences between Part I and Part II. Part I considers civil liability and Part II concerns criminal liability. Part I considers damage to persons and to property while Part II considers damages only to persons. Under the drafting of Clause 10(2) it is an offence under Part II to have committed a breach of Part I. I am referring in particular to line 37 and the phrase that starts "to whether" down to the words "Part I of this Act". If I had thought it was appropriate I should at this stage have moved an amendment to leave out that phrase from the draft of Clause 10(2).

The defectiveness test under Part I in my submission is not coexistent with the lack of reasonable safety that is the test under Part II. A producer might be found liable under Part I, yet have complied with safety standards and with the generally accepted practices of his sector of work. That deals with the point that I was conceding earlier on the development risks clause. The producer cannot plead compliance with the standards as a defence under Part I, except in the very narrow circumstances where compliance with a mandatory standard actually resulted in the damage.

While therefore it can be accepted that a producer should in appropriate circumstances accept liability for injury caused to a person through the products being judged defective, even though all the standards were complied with, it is another matter in my submission that he should at the same time be found criminally liable. Thus, if a producer has complied with the relevant standards and practices, in my submission he should not be subject to criminal penalties.

There is an additional point concerning the burden of proof. Defectiveness for the purposes of Part I is a matter that the courts can determine only after weighing all the evidence. Lack of reasonable safety on the other hand should be readily ascertainable by suppliers and by enforcement officers according to objective tests—for example, whether current safety standards and accepted practices for the same or similar products had been breached.

Under Part I suppliers will not know before they market their product, although the product is later found to be defective, whether they would be adjudged liable under civil law. It will depend, as I indicated to your Lordships, on whether they can satisfy the burden of proof that rests on them under the risk development provision, which is to be found in Clause 4(1)(e). This lack of certainty in my submission is wholly unacceptable when the issue is whether there has been a breach of criminal law.

That is the argument that I advance. I have not given notice of that argument before coming to the Chamber, the reason being that I have only recently had an opportunity to consider it. I should be most grateful if the Minister will consider it because I believe it to be a point of real substance.

Lord Williams of Elvel

I am sure that your Lordships will be most grateful to the noble Lord, Lord Hacking, for raising the issue because it is obviously one of great importance. I do not wish to comment on the arguments that the noble Lord has put forward because they seem very persuasive.

All I would do is refer to the previous debate on clause stand part. I refer again to Clause 49(1)(a), which says that the provisions of Part I and Part III will not apply to Northern Ireland, and the provisions of Part II will apply to Northern Ireland. Part II, as the noble Lord has rightly pointed out, refers specifically to Part I. If Part I is not to apply to Northern Ireland, how can Part I refer to something in Northern Ireland which will not be operative?

Lord Lucas of Chilworth

I am sure that the noble Lord, Lord Hacking, has raised matters of importance. I had intended to say, until the noble Lord, Lord Williams, stood up, that I would give the noble Lord, Lord Hacking, a couple of fairly quick comments. In the light of what the noble Lord, Lord Williams, says, I prefer to say to both noble Lords that I should like to consider carefully what has been said in relation to Clause 10 stand part. Perhaps I may come back to both noble Lords in due course.

Clause 10 agreed to.

Clause 11 agreed to.

Clause 12 [Offences against the Safety Regulations]:

Lord Morton of Shuna moved Amendment No. 62: Page 11, leave out lines 4 to 7 and insert— ("(ii) he makes a statement which is false in a material particular.")

The noble Lord said: This is an attempt to simplify the provisions of the Bill. Clause 12 provides for various offences and Clause 39 provides that what is called the due diligence defence shall be available for subsections (1), (2) and (3). Subsection (4) provides something different. It provides for somebody who fails to make a statement when required or who in giving the information required of him makes a statement which he knows to be false or recklessly makes a statement which is false.

My amendment attempts to simplify the situation and to make it easier for everybody to know where they stand. It is to apply the due diligence defence to subsection (4) and to include the offence of making a false statement or failing to make a statement. From the point of view of the prosecution this would have the great advantage that it would only have to prove that the statement either was not made or was false, and then the defence could show that in making the statement due diligence was used.

The present position requires the prosecution to prove knowledge and, having been a prosecutor for some years—I think this is the one minor occasion where I can claim an advantage over the noble and learned Lord the Lord Advocate, because I have prosecuted for more years than he has—I know that it is very difficult to prove knowledge on the part of someone whom you cannot put into the witness box, as of course you cannot do with an accused. Therefore this would make the situation simple and straightforward. You would have to prove that there was a false statement, and then the defence could put forward the defence that they used due diligence. It makes the position clear. I beg to move.

Lord Cameron of Lochbroom

This is an offence which follows upon the preamble, as it were, in subsection (4) where safety regulations require any person to give information, and so on. It says that a person would be guilty of an offence if he fails to do certain things or then gives information which he knows to be false or recklessly makes a statement.

If Members of the Committee would be good enough to turn to Clause 32, which deals with obstruction of an authorised officer, you will find there a very similar offence, namely, under subsection (2): A person shall be guilty of an offence if, in giving any information which is required of him by virtue of subsection (1)(c) above". I think that is clear; and then the offence is in precisely the same terms.

That formulation in Clause 32 is taken from the Consumer Safety Act 1978 and the Consumer Safety (Amendment) Act 1986. The two matters which give rise to the offence which appear in Clauses 12 and 32 are so similar that any divergence of approach would require special justification. Certainly I do not think the noble Lord has endeavoured to offer any. I would have to say that there can be no justification in the difference of approach, although I appreciate the serious point the noble Lord is making about proof.

But the purpose of this provision in Clause 12 is a very serious one. It is not a matter of catching simple mistakes or errors made in good faith. Rather, the primary concern is to penalise the person who knowingly or recklessly makes false statements. Because it is a serious matter, it is right that in this instance, as in the case of Clause 32, the burden of proof should be upon the prosecution, and that is the effect of the Bill. I hope that with that explanation the noble Lord may feel able now to withdraw the amendment.

10.30 p.m.

Lord Morton of Shuna

I am perfectly prepared to put forward the same amendment to Clause 32 at Report stage. This is an argument that, if my recollection is right, we had also on the Financial Services Act. It appears to me to be quite impossible to ask the prosecution to prove that somebody knows something is false if it cannot put the person into the witness box. Therefore this is a completely worthless provision because you cannot prove what is necessary.

The purpose of my amendment is to make it possible to prove it and possible to defend it. I should have thought that that was a perfectly reasonable position to put forward both from the point of view of preventing crime and from the point of view of the freedom of the individual. I am sorry that the Government do not seem to accept either point of view, but in the circumstances and as it is late at night I beg leave to withdraw the amendment, subject to the comment that I may return to it.

Lord Hacking

I hope that the noble Lord will. Amendment, by leave, withdrawn.

Clause 12 agreed to.

Clause 13 agreed to.

Baroness Nicol moved Amendment No. 63: After Clause 13, insert the following new clause:

("Product recall notice.

.—(1) If it appears to the Secretary of State that any product or any consumer goods are dangerous, defective or unsafe (whether or not they conform to any safety regulations or published standards), he may serve on any person a notice ("a product recall notice").

(2) A product recall notice may require the person named in the notice, within any period specified therein, to do one or more of the following—

  1. (a) take action to recall the product or consumer goods;
  2. (b) disclose to the public, or to a class of persons specified in the product recall notice, and in the manner specified therein, any of the following—
    1. (i) the nature of a defect in, or a dangerous characteristic or want of safety of, the product or consumer goods identified in the product recall notice;
    2. (ii) identify the circumstances in which the use of the product or consumer goods is dangerous or unsafe; or
    3. (iii) procedures for disposing of the product or consumer goods specified in the product recall notice;
  3. (c) inform the public, or a class of persons specified in the product recall notice, in the manner specified therein, that the person served with the product recall notice will—
    1. (i) repair or replace the product or consumer goods; or
    2. (ii) refund to whoever the product or consumer goods were supplied the price of the goods.

(3) The Secretary of State may by regulations make provision specifying what action is to be taken and the manner in which information is to be given by any person named in a product recall notice.

(4) A person who contravenes a product recall notice shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both.

(5) The power to make regulations under subsection (3) above shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament and shall include power—

  1. (a) to make different provision for different cases; and
  2. (b) to make such supplemental, consequential and transitional provision as the Secretary of State considers appropriate

(6) In this section "product" and "consumer goods" shall have the meanings contained in sections 1(2) and 10(7) of this Act.")

The noble Baroness said: This amendment would enable the Secretary of State to order the recall of goods which have failed to meet the existing safety requirements. Clause 13 is emphatic about the need to prevent prohibited goods from being marketed, and it is logical therefore to wish to recall goods which have already been distributed. Other clauses in the Bill deal with the question of the destruction of goods which have been seized and found to be unsatisfactory, and there are other methods of disposal. But nowhere in the Bill can I find a requirement that goods which have already been distributed should be recalled at the expense of the supplier or the producer.

If we are to have a coherent framework of safety law, there should be a statutory provision for product recall. At the moment we rely on voluntary co-operation and I am sure that reputable suppliers do co-operate; in fact they have on occasions in the past. These same reputable suppliers do not cause the problems. The Secretary of State would not need to use these powers, unless a particular situation required it, but it would be very useful for him to have them in reserve.

The National Consumer Council supports this amendment and it points out in its submission that: statutory product recall powers exist in other countries, notably France, Australia and the United States. In the USA, the knowledge that there are mandatory powers available has enabled the Consumer Product Safety Commission to negotiate the voluntary recall of millions of individual items. Compulsion has been required very rarely". I believe, as does the NCC, that this would be the position in the United Kingdom and that the existence of the reserve powers would demonstrate the Government's seriousness of purpose. I beg to move.

Lord Lucas of Chilworth

I am grateful to the noble Baroness for so clearly explaining the purpose of her amendment. She says that the new clause proposes that, if it appears to the Secretary of State that any product or any consumer goods are dangerous, defective or unsafe he may serve on any person a product recall notice. According to the proposed new clause, this notice may require a person named in it to recall the product or consumer goods in question. The notice may require the person to disclose the nature of the defect or the danger; to identify the circumstances in which the use of the product or goods are unsafe; and to disclose procedures for disposing of the product or consumer goods. The notice may also require the person named in the notice to inform the public that he will repair or replace the product or consumer goods, or refund the price of the goods. The new clause would also make provision for the notices to be supported by a regulation-making power.

All these are extraordinarily wide-ranging powers for the Bill. The aims of the new clause are commendable, but its provisions go beyond the purpose of securing the safety of consumers. They reproduce provisions contained in some consumer legislation already, and in practice they would prove difficult to administer.

The object of Part II of the Bill is to prevent unsafe goods reaching the market place. The Bill reproduces the powers in earlier Acts to make regulations prohibiting or restricting the supply of specified goods. These powers are now complemented by the general safety requirement. The powers of enforcing consumer safety legislation, in particular at the point of first supply, were widened by the Consumer Safety (Amendment) Act. Those powers have also been reproduced in this Bill. I believe that the Bill before us already provides enforcement authorities with a substantial arsenal of measures for securing the safety of consumers.

Even if unsafe products get through these safety nets and reach consumers, the Secretary of State is empowered by Clause 13 of the Bill to serve on any person a "notice to warn". That notice requires the person to publish, in a form specified in the notice and at his own expense, a warning about the unsafe goods which he has supplied. This power was introduced in the Consumer Safety Act 1978. It is significant that it has never proved necessary to serve a notice to warn as voluntary arrangements for removing unsafe goods from the market appear to work reasonably satisfactorily; and I believe that the power to prosecute suppliers for breach of the general safety requirement, coupled with the enhanced enforcement powers, renders even more remote the prospect of having to serve such a notice, let alone needing recourse to a mandatory recall power. The threat of being told to publish a public notice stating that the goods are unsafe and that the Secretary of State is making you tell people can be extremely persuasive.

In addition, the new clause takes no account of the administrative difficulties that such a recall procedure would entail. To be effective, any recall procedure must be capable of being invoked quickly, and of being effectively enforced and monitored. There would be particular problems in securing the co-operation of persons in the supply chain who were not named in the notice. There would also be the problem of establishing whether a person named in the notice had adequately fulfilled its requirements. I should add that equitable provisions for recall procedure should include compensation and appeal procedures, which the new clause does not. It would be fair to point out also that the new clause would doubtless create an increase in central government manpower if recalls were to be carried out on a mandatory basis and monitored effectively.

There are provisions which we shall be discussing—and we have already discussed many of them over the past few months—for the apprehension, if I may use that word, of goods at the point of first supply (a point of entry, a factory or a warehouse) before they reach the market place. Support for these measures would have a greater effect than that we perceive might be achieved by the new clause.

For these reasons, and because I believe we would be unjustified in taking the wide-ranging powers that the new clause includes, I ask the noble Baroness to withdraw her amendment.

Baroness Nicol

This is an enabling power. We are not saying that the Secretary of State "shall" but that he "may". He need not use all the power at any one time. We are agreed, I think, that the need is probably not very great but there can be occasions when it will be necessary.

This is a serious point and I hope that the Minister is taking it seriously. Yes, goods can be stopped at the point of supply if they are found to be defective, but defects often show up after goods have been distributed. What then happens? The need to warn can be satisfactorily met but we are still left with the situation where there are unsafe goods on the market.

I am not convinced by the argument that the manpower implications would be high, because the Minister seems to be saying with one voice that there will be very little need for this power and with the other that he is expecting us to believe there will be a huge manpower bill. The occasions on which the power will be necessary will probably be infrequent but it is important that the power should exist and that suppliers and manufacturers should realise that it exists.

I hope the Minister is taking this matter seriously and that he does appreciate that we are not expecting the power to be used more than on very rare occasions. Does the Minister wish to reply?

Lord Lucas of Chilworth

Yes, I do, because I should not like the noble Baroness to think that I am not serious. I did smile but that should not be taken as a display of non-seriousness. I smiled because the noble Baroness said, "We are only providing an enabling power." I have stood here at this Dispatch Box on more than one occasion and produced exactly the same argument. The response has always been, "Why is the Minister asking for enabling powers unless he or the Secretary of State has the intention at some time of using such powers?"

I address the same question to the noble Baroness. It is only an enabling power but she is providing and therefore expecting or anticipating that the Government will take those powers at some time. I am suggesting that the existing powers are more than sufficient to deal with the problem to which the noble Baroness draws the Committee's attention.

I can think of a great number of really practical problems in a product-recall procedure. I go back to my old days in the motor industry when we had, as they still have, recall systems on a voluntary basis. One can identify a motor car that leaves a factory. One can follow it through its chain of ownership almost to its break-up point. I do not see how one can follow a lawn mower, a hair dryer or a cooker. Why not? It is because there are thousands upon thousands and they change hands so much faster than motor cars. I have to say quite seriously to the noble Baroness that I do not believe her suggestions are practicable. As I said, I believe we have adequate powers to deal with what she rightly describes as a situation which should have some element of control upon it.

Baroness Nicol

A recall system works in the United States and I firmly believe that, if they can do it, so can we. I do not see why the Minister feels that it is impossible to do the same. Every item of note that is distributed has records which show how and where it is distributed. There may not necessarily be a record of every customer who buys it, but a recall notice could work to a large extent, particularly with goods still unsold. However, I can see that I am not going to get anywhere with this tonight, so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 14 [Suspension notices]:

10.45 p.m.

Lord Gallacher moved Amendment No. 64: Page 12, line 6, at end insert— (", or moving the goods out of the area of the authority without notifying the authority of the destination.") The noble Lord said: Clause 14 is linked to duties placed on local weights and measures authorities under Clause 27(1)(a). Those duties require these authorities to enforce the safety provisions in their various areas. If suspect goods which are subject to a suspension notice belong to a supplier who has outlets in other parts of the country, that supplier can evade the suspension notice by transferring the goods to another authority's area. The purpose of the amendment is to allow traders to move their goods freely, but the requirement that they notify the authority of their destination means that that authority can notify another authority of the whereabouts of the goods so that a further suspension notice can be served, and in this way consumers generally are protected.

The thinking behind this amendment parallels that in machinery already used in the EC whereby the Commission communicates information to member states about unsafe goods, and the fact that the principle (or precedent if you wish) has been established at Community level should, I think, commend the idea to the Government. Therefore, I hope that this particular amendment will be accepted and I beg to move.

Lord Lucas of Chilworth

I am grateful to the noble Lord, Lord Gallacher, for the way in which he has described the amendment, and I have to tell him straightaway that I have some sympathy with the reasons for it. I cannot actually agree to accept the amendment as it stands, which would in effect prohibit the movement of any goods, but I shall certainly agree to consider tabling an amendment which would ensure that local authorities were able to know at any time where those goods were kept to which a suspension notice related.

I believe that the amendment that I have in mind will satisfy the needs of the local authorities. I should be happy to discuss it with the noble Lord, and I hope that with that assurance he will feel able to withdraw his amendment.

Lord Gallacher

I am grateful to the Minister for the response that he has made to this amendment, which I readily accept, and in the light of which I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Lord Morton of Shuna moved Amendment No. 65: Page 12, line 41, at end insert ("and (c) it is shown that the officer did not have reasonable grounds for exercising the power.") The noble Lord said: This amendment deals with the compensation provisions which appear in Clause 14(6), providing that the enforcement authority (in other words, the local authority) is liable to pay compensation if: (a) there has been no contravention … and (b) the exercise of the power is not attributable to any neglect or default by the person who owns the goods or is in control of them. I am seeking to add the words: and (c) it is shown that the officer did not have reasonable grounds for exercising the power". When speaking to this amendment I should also perhaps speak to Amendment No. 89, which concerns the same provisions.

The point of this amendment is that without it enforcement authorities and enforcement officers will be very reluctant to exercise their powers to suspend, because if a conviction does not arise the local authority will suffer the risk of being liable in damages. The effect will be obvious on the ratepayer, who is someone whom the Government on previous occasions have perhaps shown a tendency to want to protect. More importantly, it will militate against the enforcement of the provisions, because if one has a situation in which, for example, a police officer says, "Now, I must not arrest this person or charge him with an offence because if I do so I shall be liable in costs, even if I have reasonable grounds for arresting him", then that policeman will be very anxious not to act. It appears to me—and this is the reason for the amendment—that this amendment is necessary to give some coherence to the clause and to make the enforcement authority enforce the law without risk of a severe liability. I beg to move.

Lord Brougham and Vaux

The success or otherwise of these important new provisions will to a large extent depend upon the effective enforcement of the criminal provisions of Part II of the Bill. I have already declared my interest in RoSPA as its president. It is concerned that no additional financial support will be made available to deal with the considerable extra work that this legislation will impose on trading standards departments.

We understand that the number of posts for qualified inspectors has remained virtually constant for 25 years, whereas the amount of legislation which must be enforced has increased dramatically. The testing of products will have to be increased and a wide range of expertise called upon to ascertain whether goods are acceptably safe.

The scope of the Bill is much more comprehenisve than previous protection measures, which covered only specific types of product such as electrial goods, toys and cosmetics. Now everything will be caught. Let us take, for example, an accident involving a lightweight ladder which has collapsed causing serious injury to the user and which is thought to have been defective. Will there be an expert immediately available to the trading standards department to which the accident has been reported who can test and evaluate the product? Undoubtedly, additional skills will be required of enforcement officers, including risk assessment techniques, and retraining will have to be undertaken, which will involve considerable additional cost.

Lord Lucas of Chilworth

I am grateful to the noble Lord, Lord Morton of Shuna, for speaking to Amendment No. 89 with Amendment No. 65. I understand the purport of the amendments. They would make a significant change to the application of the provision for compensation. At present, enforcement authorities are liable under the Consumer Safety (Amendment) Act 1986 to pay compensation, where the goods turn out to be safe, for any loss or damage resulting from the seizure or suspension unless that seizure or suspension were attributable to any neglect or default by the trader in question. The amendments would require the trader to show that the enforcement authority had acted unreasonably in seizing the goods or suspending their supply, even though the goods were safe, before he would be entitled to compensation.

We cannot accept that compensation should be linked so inextricably with unreasonable behaviour on the part of the enforcement authority. Where issues of safety are in question, it may be quite easy for the enforcement authority to show that it had acted reasonably in seizing or suspending the supply of goods about which there was some doubt. It is indeed quite possible to envisage circumstances where an authority was not acting unreasonably in detaining the goods, even though it transpires ultimately that the trader too had acted perfectly reasonably and that his goods were indeed perfectly safe. In such circumstances where neither the trader nor the authority acted unreasonably, I cannot accept that it is the trader who should bear the cost of any damages he has suffered as a result of the exercise of these sweeping powers.

The Bill already excludes compensation where a trader has been in some way negligent or at fault and this has led directly to the act of seizure by the enforcement authority. The phrase "neglect or default" embraces not merely failure to fulfil any legal obligation under the Bill but also any act or omission (such as failure to produce evidence of safety checks) which in the circumstances could be deemed to be blameworthy.

Enforcement authorities already have responsibilities for the enforcement of safety regulations under the 1986 Act, which has provided improved enforcement procedures. The general safety requirement provides a new sanction against unsafe consumer goods. It involves enforcement responsibilities. However, trading standards departments are often involved in dealing with complaints and problems about goods not covered by regulations, and the general safety requirement will, I believe, facilitate the taking of more, and direct, effective action in such cases.

Lord Morton of Shuna

With respect, the Minister's answer shows the contempt for local authorities which has been expressed by the Government throughout their exercise of power. They are not interested.

I invite the Minister to look at the provisions of the Drug Trafficking Offences Act 1986 to see what powers and responsibilities are put on the police and the prosecution authorities where somebody is proved to be innocent of any drug trafficking offence before he can recover any damages or compensation for having his assets taken away from him, and to compare the provisions in Clause 14(6). The only answer can be that the Government do not care what a local authority has to pay for, but care very much what the police or a prosecution authority has to pay for. The standard is a double standard and it does not work. However, as it is so late, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 14 agreed to.

Clause 15 [Appeals against suspension notices]:

Lord Morton of Shuna moved Amendment No. 66: Page 13, line 33, at end insert— ("( ) Any person aggrieved by an order made under this section in Scotland or by a decision of the Sheriff not to make such an order may appeal against that order or decision to the Sheriff Principal and an order so made may contain such provision as appears to the Court to be appropriate for delaying the coming into force of the order pending the making and determination of any appeal.")

The noble Lord said: This is when I put on my Scottish nationalist hat, although I am not a Scottish nationalist. Why is there a right of appeal in England and Wales, and, for once, in Northern Ireland, but not in Scotland? The purpose of the amendment is to provide the right of appeal. No doubt the noble and learned Lord will say that I have omitted some provision somewhere. But there should certainly be a right of appeal in Scotland similar to that in England, Wales and Northern Ireland. I hope that the Government agree. I beg to move.

Lord Cameron of Lochbroom

We agree. I am surprised that the noble Lord, with his experience as a solicitor, was not aware that in Sections 27 and 28 of the Sheriff Courts (Scotland) Act 1907, as amended, there is already statutory provision for an appeal from a decision of the sheriff in a summary application to both the Sheriff Principal and the Court of Session.

This amendment would have the somewhat undesirable effect of restricting the courts to which an appeal could be taken. Perhaps the noble Lord might like to reflect on what I have said.

Lord Morton of Shuna

I am very willing to accept that and to withdraw the amendment. It points out the difficulty of keeping up with the way in which the Government amend legislation in schedules to various Bills.

Amendment, by leave, withdrawn.

Clause 15 agreed to.

Clause 16 [Forfeiture: England and Wales and Northern Ireland]:

Lord Morton of Shuna moved Amendment No. 67: Page 13, line 44, leave out from ("court") to end of line 47.

The noble Lord said: This raises the question of forfeiture in Clause 16, as it applies to England, Wales and Northern Ireland, and Clause 17 as it applies to Scotland. There are basically two provisions. One is a provision for forfeiture of goods without any court procedure against the owner or possessor of the goods. The other is where there is a prosecution of the owner.

I have no objection to the provisions about forfeiture where there is a prosecution resulting in a conviction of the owner of the goods. I am also aware—as no doubt I should be reminded, if I did not say it—that this is a re-enactment of the provisions in the Consumer Safety (Amendment) Act 1986. I doubt whether that Act has resulted in such a concatenation of prosecutions as to give us a picture of how the court will interpret it.

However, the difficulty is that we are going back to the mediaeval concept of deodand, of which I am sure the noble Lord, Lord Lucas, is fully aware. It is unusual in the modern day to prosecute goods rather than people. In 1766 Chief Baron Parker said: goods as goods cannot offend, forfeit … pay duties or the like but [only] men whose goods they are". No doubt the noble and learned Lord the Lord Advocate and the noble Lord the Minister have studied very carefully the report of the committee chaired by Sir Derek Hodgson, one of Her Majesty's judges in England, The Profits of Crime and their Recovery. They and the Committee will perhaps excuse me if I quote from it. The recommendation was that civil forfeiture (which is what we are dealing with here) is troubling.

The report states: Of course, the defendant may well view the instigation of these forfeiture proceedings as the lesser of two evils and be content to risk the seizure of his property rather than have his liberty put in jeopardy. Few owners bother to challenge the lawfulness of customs' seizures. This is not always so with other forfeitures. Many publishers have complained that the forfeiture procedure under the Obscene Publications Act deprives them of a jury's verdict on whether their books really are likely to deprave and corrupt and are therefore 'obscene' or whether they are defensible in the public good. In 1964, the Solicitor General"— who is now the noble and learned Lord, Lord Rawlinson— gave Parliament an undertaking which was understood to mean that a publisher faced with a forfeiture proceeding could insist on being tried for the parallel criminal offence. This seems sensible". The report goes on to say: The purpose of forfeiture orders of this sort is to take out of circulation goods that are inherently dangerous or contrary to the public interest. There is little dispute that such orders should be within a court's competence, though there is, of course, vigorous public debate about whether particular types of goods, for instance obscene publications, are sufficiently harmful to justify subjecting them to the possibility of such orders. We think that such orders should clearly be retained but believe that the owner should always have the right to insist that he be put on a criminal trial before suffering the loss of his goods rather than merely contesting the forfeiture proceedings".

I appreciate that this report was produced with the assistance of the Home Office and that we are dealing with a different department in the Bill. Presumably the noble and learned Lord and the Minister are aware of the report. It puts my point of view much better than I could myself. I suggest that the Bill should include a power for the owner of the goods to insist that he be criminally prosecuted if he wants to be. I beg to move the amendment.

11 p.m.

Lord Cameron of Lochbroom

The noble Lord is quite correct in saying that these are provisions which were enacted only last year and at that time Parliament was satisfied that it was appropriate that the powers should be taken. Nothing that the noble Lord has said suggests that there was any reason why the arguments then put forward were in any way improperly based. Indeed, the results of his researches from the 18th century to the present day are dealing with a somewhat different topic.

We are here dealing with safety of goods, and perhaps the Committee will allow me to expand briefly on why these powers were taken in the 1986 Act and why they are retained in this Bill. It is because enforcement authorities have often found that even when traders are prosecuted they may continue to sell the goods in question. The punishment imposed upon them may be such as not to dissuade them from seeking the profit of further trading, particularly when they have large stocks of the offending item.

Our paramount interest must be to prevent unsafe goods reaching consumers. As I have said, the whole thrust of this Bill is consumer protection. One way we can buttress our powers is to impose a suspension notice upon specific goods and a specific trader. That makes it quite clear that the trader is not to sell those goods, and offers a clear-cut case for a further prosecution.

Nevertheless, there are cases when an enforcement authority will feel that even a suspension notice is unlikely to achieve the effect that it wants. The goods may be so dangerous, and the trader so unscrupulous that the only way the public can be protected is to apply for forfeiture.

Normally, goods will only be forfeited in circumstances when other proceedings have been begun. But there will be circumstances with unsafe goods when it is possible that they will be removed and sold but it is not possible to find (at least for the purpose of legal proceedings) a relevant person. In those rather exceptional circumstances we think it right to give the authorities the power to act against the goods themselves. We believe forfeiture as provided for in this Bill to be a sensible and entirely appropriate response to a real problem.

There may be cases where a trader has done his very best not to supply unsafe goods. In such a case, an enforcement authority may not wish to prosecute him. It may still wish to apply for the forfeiture and perhaps destruction of the goods, especially if they possess, through no real fault of the trader, lethal characteristics.

In passing, noble Lords may wish to note that Sections 49 and 139 of the Customs and Excise Management Act 1979 empower the Commissioners of Customs and Excise to forfeit goods by administrative action. It is only if the importer otherwise wishes to challenge that action that the matter comes before the courts. In this Bill, only a court can make a forfeiture order, and only then if the court is satisfied that there has been contravention of a safety provision in relation to those goods.

I have answered in some length the initial statement made by the noble Lord because it seems to me that he has missed the real point and purpose of these powers. I suggest that the noble Lord gives thought to the matter having in mind the purpose of consumer protection, in particular, from unsafe goods. These are necessary powers to achieve a proper end.

Lord Morton of Shuna

I have heard of returning to Victorian values. We are returning here to the deodand, which is in a sense returning to dark ages value. So be it, if the Government wish.

I shall withdraw the amendment on the basis that I may well return to it at a later stage.

Amendment, by leave, withdrawn.

Clause 16 agreed to.

Clause 17 [Forfeiture: Scotland]:

[Amendments Nos. 68 to 70 not moved.]

Clause 17 agreed to.

Clause 18 agreed to.

Clause 19 [Interpretation of Part II]:

On Question, Whether Clause 19 shall stand part of the Bill?

Lord Williams of Elvel

With Clause 19 we have now come to the end of Part II, which I hope noble Lords opposite will agree we have covered very quickly. I should not like that to mean that we think that all the issues in Part II of the Bill have been adequately and suitably ventilated. Although in order to meet our commitment to get this Bill through your Lordships' Committee expeditiously we have moved forward rather fast, there are many issues in Part II of this Bill to which we may wish to return. I should like to serve notice that this may be an object of considerably greater scrutiny on Report than it has been in Committee this evening.

Lord Lucas of Chilworth

I am grateful to the noble Lord, Lord Williams, for his remarks. He reminds us of what he said at Second Reading, that for his part he would deal with this Bill as expeditiously as possible, commensurate, I think he also said, with our duties as a revising Chamber. I fully appreciate what he has said and what he means by it. I am grateful to him and his colleagues for the co-operation they have shown. We on our side have sought to give the essence, the kernel of the answers, in the hope that they may satisfy. If on this side we can do anything further to ensure that the Report stage, when it comes, is as harmoniously conducted as the first two days of the Committee, I assure Members that we should like to do that.

Clause 19 agreed to.

Lord Beaverbrook

My Lords, I beg to move that the House do now resume.

Moved accordingly, and on Question, Motion agreed to.

House resumed.

House adjourned at eleven minutes past eleven o'clock.