Lords Sitting of 12 March 1987

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Rochester): The LORD CHANCELLOR on the Woolsack.

Air Transport Competition
Baroness Burton of Coventry: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether cooperation between the European Commission and the Council of Transport Ministers on the subject of air transport competition has been advanced by recent developments and by the discussion held between the Secretary of State and the Transport Commissioner of the European Community in late January. (H.L. Deb. 29th January, col. 462.)
The Parliamentary Under-Secretary of State, Department of Transport (Lord Brabazon of Tara): My Lords, my right honourable friend has had a number of meetings with both the Transport and Competition Commissioners, including the meeting referred to by the noble Baroness. He has pressed the Commission for assurances that it will stand firm and resist any watering-down of the package of aviation measures that the UK put forward last year.
Baroness Burton of Coventry: My Lords, while hoping that the commissioners will take note of that suggestion and that advice, what I had in mind was the informal meeting of the Transport Ministers on 17th February. Can the Minister tell the House whether or not anything useful emerged from that meeting and whether it is true that the Commission was unhappy at the rate of progress made? If that is the case, could the Minister tell the House whether he feels that the commissioners mentioned in his original Answer will really take some active steps in the matter?
Lord Brabazon of Tara: My Lords, at the informal Council on 17th February the Commission made it clear to other member states that it will take whatever steps are necessary to ensure that any agreement on a package constitutes a genuinely worthwhile first step. The Commission's role in the negotiations is crucial. We are encouraged by the line it is taking and trust that it will not cave in to restrictionist member states.
Baroness Burton of Coventry: My Lords, while thanking the Minister for that reply, is it not correct that the Community is coming under increasing pressure from the consumer movement for some definite advance in the liberalisation of air transport? Do the Government feel that they could co-operate by joining with the consumer movement in these matters so that some real progress is made?
Lord Brabazon of Tara: My Lords, yes, I understand that the consumer movement is in regular contact with
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the Commission. The British consumer movement is very active and effective in making its position clear and the Government are closely in contact with it. My right honourable friend the Secretary of State recently met the National Consumer Council—in fact only last Monday. We know that the British consumer movement does all it can to encourage similar bodies in other member states to press their case. However, we really need some pressure from European consumers to help us on our way.

Sunday Trading
3.2 p.m.
Lord Boyd-Carpenter: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how many prosecutions in respect of Sunday opening have been launched against the proprietors of shops since 30th June 1986, how many of these have resulted in convictions, and how many are awaiting a hearing.
The Minister of State, Home Office (The Earl of Caithness): My Lords, this information will not be fully available centrally until later in the year and will be published as usual as part of the criminal statistics in September or October.
Lord Boyd-Carpenter: My Lords, I thank my noble friend for that singularly informative reply. Are the Government taking any steps to find out the extent to which the largely unenforceable present law is attempted to be enforced?
The Earl of Caithness: My Lords, it is for the police to report to the Home Office the statistics for offences against the Sunday trading laws. As soon as we have them and are able to complete the criminal statistics they will be published.
Lord Grimond: My Lords, would not the Government agree that the present state of the law regarding Sunday trading is, first, putting a totally unfair burden on the police; and, secondly, bringing the law into total disrepute because it is wholly illogical and it is quite differently administered in different parts of the country?
The Earl of Caithness: My Lords, I echo the noble Lord's sentiments. That is why we introduced a Bill which unfortunately did not proceed beyond Second Reading.
Lord Elwyn-Jones: My Lords, have there been any prosecutions? If I may say so, it was all rather wrapped up in the Minister's Answer.
The Earl of Caithness: My Lords, I cannot tell the noble and learned Lord the details that he would like until we have them before us; but I am sure that the full light will be revealed in September or October.
Lord Elwyn-Jones: My Lords, I merely asked if there had been any. Perhaps there has been none.
Lord Chelwood: My Lords, with the law broken on such a widespread national scale, are prosecutions just left to chance or are there some guidelines?
The Earl of Caithness: My Lords, the question of whether prosecutions are instituted is up to the local authority.
Lord Airedale: My Lords, are the Government prepared to leave benches of magistrates permanently in jeopardy of having to try a case brought by a zealous local authority against a cathedral book shop for selling a Bible on a Sunday?
The Earl of Caithness: My Lords, if the Liberal Party had given overwhelming support to the Government's proposals last year, we would not be in this state now.
Lord Rochester: My Lords, is the noble Earl aware that many of us, who, for various reasons, opposed the Sunday trading Bill in the form in which it was presented to the House last year, nevertheless accept that there is a need for the law in its present form to be tidied up?
The Earl of Caithness: My Lords, if the party opposite is as divided as it always is, I can only refer the noble Lord to the fact that it divided on Second Reading against the Bill.
Lord Diamond: My Lords, if the Minister will insist on choosing this opportunity to make a wholly unnecessary, highly regrettable—
Noble Lords: Oh!
Lord Diamond: My Lords, is the noble Earl aware that this Bill reached people's very sensitive feelings and their religious feelings and it was thought proper therefore, throughout the Alliance, for individual conscience to have the final say?
The Earl of Caithness: My Lords, I am afraid that I do not know what the Whipping arrangements for that Party were in the other place.
Viscount Brentford: My Lords, returning to the question of figures on enforcement, is my noble friend aware that The British Hardware Federation recently carried out a survey of 360 DIY shops on a Sunday and found that no fewer than 260 were open illegally?
The Earl of Caithness: My Lords, if they were open there is sufficient power under the 1950 Act, as my noble friend will be aware, for the local authority to take action if it so wishes.
Lord Mackie of Benshie: My Lords, is it part of the Government's policy, if they cannot get their way in Parliament, to instruct the police and others to ignore the law?
The Earl of Caithness: My Lords, I fear that the noble Lord misheard me. It is not up to the Government; it is up to local authorities in this instance.
Lord Winstanley: My Lords, if it is proper and recommended, as it has been, that Members of these Benches should vote according to their conscience on the matter of the Shops Bill, is it not equally proper that the prosecuting authorities should be left to operate their consciences as well for a time?
The Earl of Caithness: My Lords, so far as I am aware, the local authorities are operating in the way that they feel is right.

SDI and Nuclear Disarmament
3.8 p.m.
Lord Molloy: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will attempt to persuade the USA to agree to stop development of SDI and thereby promote further negotiations between the USA and the USSR on nuclear disarmament.
The Minister of State, Foreign and Commonwealth Office (Baroness Young): My Lords, no. We fully support the SDI research programme which is permitted by the ABM Treaty. Mr. Gorbachev's proposal that a separate agreement be concluded on LRINF demonstrates that the SDI need not be a block to progress in nuclear arms control.
Lord Molloy: My Lords, is not the noble Baroness aware that Mr. Gorbachev's relaxed view on these matters augurs for some form of civilised negotiations to take place, perhaps in line with the statement by the British Foreign Secretary when he said something quite contrary to what the noble Baroness has just said when speaking to the International Institute for Strategic Studies. He said:
"We have to accept that not everything technically possible may be affordable or prudent. Meanwhile—all the more important that both sides should adhere strictly to their obligations under the ABM Treaty".
Is that the Government's policy, or is it not?
Baroness Young: My Lords, I have set out the Government's policy on this matter on many occasions. I have answered the noble Lord's Question on the Order Paper. If I may say so, it is really an own goal in view of what Mr. Gorbachev has said.
Lord Gladwyn: My Lords, in view of the well-known agreement between the Prime Minister and the President at Camp David, do the Government welcome the very considerable opposition which is building up now in Congress against a so-called broad interpretation of the ABM Treaty of 1972?
Baroness Young: My Lords, the noble Lord, Lord Gladwyn, has asked me a question in similar terms on many occasions. I agree that he has hitched this particular one to a recent press report. However, the position cannot be other than I have stated it: namely, that we have no locus in interpreting the ABM Treaty; secondly, deployment is clearly a matter for

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negotiation; thirdly, we have received satisfactory assurances from the United States that there will be consultation about any significant changes of policy in relation to SDI research; fourthly, the Government fully support the SDI research programme which is permitted under the ABM Treaty.
Lord Mellish: My Lords, is it not a fact that in his latest proposals Mr. Gorbachev made it absolutely clear that the star wars issue is no longer relevant? Therefore would it not be very dangerous to start those kinds of negotiations at the present time? If we are to get the best out of Mr. Gorbachev, why not leave him alone and see how genuine he is on these issues?
Baroness Young: My Lords, I thank the noble Lord, Lord Mellish. In his statement, Mr. Gorbachev delinked SDI from negotiations on INF.
Lord Orr-Ewing: My Lords, will the Minister say whether there is any evidence that during the past five years the 10,000 Russian scientists who have been deployed on research and development of their own SDI are either increasing or lessening in view of the more relaxed attitude which Mr. Gorbachev is now showing?
Baroness Young: My Lords, it would be difficult for me to answer my noble friend's question in the form it was put. However, it has been demonstrated by SDI that progress can be made if both sides adopt a reasonable attitude to negotiations. It is clear that the link between INF and SDI is unreasonable, and it is totally unreasonable to ask the United States to drop SDI research when Russia's activities into BMD research would continue.
Lord Cledwyn of Penrhos: My Lords, we support the Government's response to the Gorbachev proposals. Will the Minister say what action the Government have taken to discuss this important development with the United States Administration? Have the Government pressed the United States to introduce this matter into the disarmament negotiations in Geneva, and if so, when is it likely to be discussed? Secondly, what will be the Prime Minister's objective when she visits Moscow in a fortnight's time?
Baroness Young: My Lords, I am grateful to the noble Lord, Lord Cledwyn, for his support of our response to what Mr. Gorbachev has said. I do not think that the noble Lord would expect me to go into detail about what my right honourable friend will say when she visits Moscow in April. However, I have no doubt at all that there will be discussions on arms control talks. As regards our relations with the United States, we discuss these matters regularly with the United States.
Lord Kennet: My Lords, it is a mistake to say that Mr. Gorbachev has delinked progress on SDI from progress on disarmament in general. Is it not correct to say that he has delinked progress on SDI only from progress on intermediate-range nuclear forces, and that it remains firmly linked in the Russian mind with progress on strategic offensive nuclear forces; and not only in the Russian mind but in the nature of things?
Baroness Young: My Lords, yes. The position is that Mr. Gorbachev has suggested that there can be the zero-zero option on INF. In his recent statement Mr. Gorbachev made it clear that that was not dependent on the United States giving up its research into SDI.
Lord Chalfont: My Lords, in the interests of strict accuracy and the best use of time in your Lordships' House, will the Minister confirm, first, that there is no development taking place in SDI; that there is only research; and that therefore there is no development to stop? Secondly, will she confirm that at the moment there is no projected arms control negotiation that relies upon any conditions on SDI? Therefore is not the original Question on the Order Paper totally irrelevant?
Baroness Young: My Lords, the noble Lord, Lord Chalfont, puts the position very clearly. The answer to the first two parts of his question is yes. As I indicated earlier, I think that the Question on the Order Paper has been overtaken by events.
Lord Jenkins of Putney: My Lords, will the noble Baroness agree that whatever Mr. Gorbachev may think on the matter, or even whatever the noble Lord, Lord Chalfont, may think of it, the Government have embarked upon a course which her own chief, the Foreign Secretary, has described as leading to something which, if my memory serves me correctly, is not affordable or prudent? Why are the Government persisting in a policy so described by a leading member of the Cabinet and widely thought to be undesirable throughout the West?
Baroness Young: My Lords, the noble Lord, Lord Jenkins, is quite mistaken if he thinks that there is any disagreement in the Government about the part that Britain is playing in the research programme on SDI. A number of British firms are taking part in the programme, and I believe that there is much to be said for our keeping in the forefront of technology.
Lord Strabolgi: My Lords, has the noble Baroness anything to tell the House concerning the meeting the other day between her right honourable friend the Secretary of State for Defence and M. Giraud, the French Defence Minister, about mutual defence matters? Did those matters include nuclear defence, considering that French nuclear arms are supported by all parties there, including the Socialists?
Baroness Young: My Lords, I believe that the noble Lord's question is outside the terms of the Question on the Order Paper. However, I can confirm that we and the French were glad that when Mr. Gorbachev made his proposals he did not refer to either the British or the French independent nuclear deterrent.
Lord Molloy: My Lords, will the noble Baroness agree that the Prime Minister's visit to Moscow, for which we all wish her well, would be greatly assisted if she could take with her the considered views of the British Foreign Secretary, which I quoted, and for that matter the views of the Secretary of State for Defence, who said, in effect, on 16th February that he does not

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believe that the case is made for any deployment of star wars and that it is wiser to stick to an ABM Treaty?
That could help the Americans; it could help us; it could help the Russians and perhaps make the great progress for which we all fervently wish after the Prime Minister's visit.
Baroness Young: My Lords, the noble Lord's question is based on a completely false premise. My right honourable and learned friend the Foreign Secretary and my right honourable friend the Prime Minister are entirely agreed on this matter; that is to say, that Britain is taking part in the research programme into SDI, which is what the Americans are doing. No one at all is talking about or taking part in deployment.

The Disabled: Special Health Authority
3.17 p.m.
Baroness Lane-Fox: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how the setting up of the special health authority announced on 10th March will achieve full integration of services for disabled people at the point of delivery.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Baroness Trumpington): My Lords, we have accepted the McColl recommendations that the limb and appliance service should, in the long term, be alongside the occupational therapy, physiotherapy and rehabilitation services offered by the NHS. The special health authority, the chairman of which will be my noble friend Lord Holderness, with Professor Ian McColl as vice-chairman, has been constructed to achieve this. It will have a threefold responsibility: to oversee the planning for the eventual transfer of the service to the National Health Service on 1st April 1991; to build upon the improvements already under way; and to run the service for the transitional period.
Baroness Lane-Fox: My Lords, in thanking my noble friend the Minister for that informative reply and in saying, as a long-term user of appliance centres, how delighted I am with the excellent news contained in the recent Statement, I should like to ask how the improvements listed in the Statement are to be implemented.
Baroness Trumpington: My Lords, the principle of general management, which was started by the appointment of a general manager to head a specialist disablement services division, is now to be extended throughout the limb and appliance service in order to implement the far-reaching changes we envisage. We intend to reorganise the service into regions with boundaries that are coterminous with those of the NHS. Each region will be headed by a senior manager
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responsible for the entire limb and appliance service in the area. It will be their job to implement the improvements already identified and to continue to search for further improvements.
Baroness Jeger: My Lords, is the noble Baroness aware that we all welcome any improvements that can be made to help disabled people, and we especially welcome the appointment of the noble Lord, Lord Holderness, as the chairman? May I ask the Minister whether there will be other people who need to use artificial limbs on this special authority, or will it be possible to have a committee of users so that people who need artificial limbs can have a direct channel of communication with the special health authority? There have been some problems about communication.
Baroness Trumpington: My Lords, my honourable friend the Minister for the Disabled, in consultation with the chairman and vice-chairman, will consider further appointments to the board at an early date. Some of the other members may well be disabled. I emphasise that they will be appointed not because they are disabled but because of their ability to achieve the objectives. I am quite sure that my friends from BLESMA will most certainly make sure that they have an input.
Baroness Lockwood: My Lords, does the Minister agree that, despite the criticism in the McColl Report of the artificial limb manufacturing industry, nevertheless one of the British limbs (namely, Endolite, by Blatchford) is at the leading edge of this technology and is being much sought after by many countries, including America and Germany? Indeed steps are being taken in those countries to emulate the techniques. Will she assure the House that any future organisation of the industry will not be so fragmented as to inhibit the continuation of research and development?
Baroness Trumpington: My Lords, I am grateful for the words of the noble Baroness. There are many satisfied users of the service, but there are some bad parts of it. However, the limbs to which the noble Baroness referred are indeed praiseworthy. I feel sure that the new health authority will press for research to continue because we wish for nothing but the best for disabled people.
Lord Taylor of Blackburn: My Lords, may I ask the Minister on the financing of this authority whether this is new money that the Government are to give to the NHS or whether it is to be a reallocation from various health authorities existing at the present time?
Baroness Trumpington: My Lords, we shall be protecting the funding during the life of the special health authority and for a period after integration with the National Health Service. The authority will also be charged with devising safeguards to ensure that the continuity of the service is maintained following integration.

Business
3.23 p.m.
Lord Denham: My Lords, with the leave of the House, either side of four o'clock this afternoon my noble friend Lord Davidson will repeat a Statement that is to be made in another place on Sizewell B.
It may also be for the convenience of the House if I announce that the Report stage of the Consumer Protection Bill will be adjourned at approximately 7 p.m. for approximately one hour and that during this adjournment the Committee stage of the Social Fund (Maternity and Funeral Expenses) Bill and the Social Security (Payments on Account, Overpayments and Recovery) Regulations 1987 will be taken.

Royal Assent
The Lord Chancellor (Lord Hailsham of Saint Marylebone): My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts:

Rate Support Grants Act,

Local Government Finance Act,

Grampian Regional Council (Harbour) Order Confirmation Act.

Housing (Scotland) Bill [H.L.]
The Lord Advocate (Lord Cameron of Lochbroom): My Lords, I beg to introduce a Bill to consolidate with amendments to give effect to recommendations of the Scottish Law Commission, certain enactments relating to housing in Scotland. I beg to move that the Bill be now read a first time.
Moved, That the Bill be now read a first time.—(Lord Cameron of Lochbroom.)
On Question, Bill read a first time, and to be printed.

Banking Bill
The Secretary of State for Employment (Lord Young of Graffham): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That it be an instruction to the Committee of the Whole House to whom the Banking Bill has been committed that they consider the Bill in the following order:

Clauses 1 and 2,

Schedule 1,

Clauses 3 and 4,

Schedule 2,

Clauses 5 to 9,

Schedule 3,

Clauses 10 to 50,

Schedule 4,

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Clauses 51 to 105,

Schedule 5,

Clause 106,

Schedules 6 and 7,

Clauses 107 and 108.

—(Lord Young of Graffham.)
On Question, Motion agreed to.

Consumer Protection Bill [H.L.]
3.26 p.m.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Lucas of Chilworth): My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Lord Lucas of Chilworth.)
On Question, Motion agreed to.
Clause 20 [Offence of giving misleading indication]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No.42:
Page 17, line 40, leave out ("of his").
The noble Lord said: My Lords, if I may, I shall speak to this amendment in the name of my noble friends Lord Williams of Elvel and Lord Gallacher. It is a simple amendment to delete two words, "of his". I shall also speak at the same time to an identically worded amendment, Amendment No.43.
This subsection makes it an offence to give a misleading price indication, and the crucial words are:
"in the course of any business of his".
The words "of his" appear to be quite unnecessary and unnecessarily restrictive. What is to be the position of somebody who is giving a misleading price indication in the course of his employer's business, possibly unauthorised by his employer? Is that employee who is acting against instructions to be safe from prosecution? That is the way it reads.
There does not appear to be a necessity for the words "of his". The sense would remain if it is just
"in the course of any business",
which would restrict the subsection to a business use, so to speak, but allow the prosecution of somebody who might say, "Well, it was not my business. I was acting for somebody else when I gave the misleading price".
No doubt the noble Lord or the noble and learned Lord, whoever who is to reply, will refer to subsection (3)(a) of this clause, but that does not give a complete answer. It says,
"whether the person who gives or gave the indication is or was acting on his own behalf or on behalf of another",
shall be immaterial. All well and good, but what happens if the basic premise is that he was not acting on any business of his but on somebody else's business? For those reasons, I beg to move.
Lord Denning: My Lords, let me say a word in support of this amendment. The words "of his" are not only unnecessary but misleading. Take an ordinary private limited company, a £100 company.

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That is not the business of the man who makes the representation; it is the company's business. It is not the director's business; it is the company's business.
It seems to me that the matter would be entirely obscure unless you have subsection (3):
"For the purposes of this section it shall be immaterial—(a) whether the person who gives or gave the indication is or was acting on his own behalf or on behalf of another".
He may be acting on behalf of another person's business. It would not be his business. He would still be liable. I see no reason whatever for these words "of his" to remain. It would be much clearer if the words were omitted.
Lord Campbell of Alloway: My Lords, I support this amendment. I shall be very interested to hear what my noble friend the Minister has to say in justification of the phrase "of his". Why this qualification? This puts the Crown to prove beyond all reasonable doubt that the trader, where there is a misleading price indication, is the true and rightful owner, even allowing for the incidence of subsection (3). What is the possible justification for that? The substance of the matter is whether there is a misleading price indication given in the course of business, and the definition of "business" in Clause 45(1) in no way mitigates or answers the problem.
If anyone in the course of business gives a misleading price indication he should be guilty of a criminal offence, full stop, subject to mitigation. For example, an assistant in a new job might have no idea of what is going on and there would be an absolute discharge. But the true owner would always be liable, as proposed by the clause as it stands, because the business was his and still would be even if "his" were excised. What does "his" mean? I ask my noble friend the Minister: is it supposed to mean rightful ownership? Does "his" mean possession? Does "his" mean a licence to use? What on earth does it mean? If there is no satisfactory answer to those questions surely it would be right for the amendment to be accepted.
Baroness Burton of Coventry: My Lords, the discussion that we are now having gives me the opportunity of making a point on the control of problems caused by the resale of electricity and, presumably, of gas. As the Minister will recall, we have had many discussions over past months and indeed over past years and we have made a certain amount of progress. But the Electricity Consumers Council has become worried about a particular aspect. I should like, on behalf of it and of all consumers, to ask the Minister for clarification.
Part III of the Bill contains the mechanism by which the Government indicated to me that they would control the problems caused by the resale of electricity. However, there is concern about Clause 20, which states:
Subject to the following provisions of this Part, a person shall be guilty of an offence if, in the course of any business of his, he gives (by any means whatever) to any consumers an indication which is misleading as to the price at which any goods, services, accommodation or facilities are available (whether generally or from particular persons)".
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The worry about which the Electricity Consumers Council has written to me is its fear that many small landlords would not be caught within the ambit of these words, especially if they let, for example, only one or two rooms within the house that they themselves also occupy or argued that they let out flats not as a business but as a hobby, a sideline, a social service or something else. We feel that this concern is reinforced by the wording of the Explanatory Memorandum on page 3, which states:
"The provision does not apply to indications given otherwise than in the course of a business".
We feel that that is even weaker than,
"in the course of any business of his".
This implies that only those who act as letting agents as their main business—rather than being solicitors, farmers, greengrocers or whatever one likes, who happen to own a couple of properties which they let to others—are intended to be covered by the Bill.
I assure the Minister that these are very real fears. I am asking him whether when he comes to reply he can assure the House and all those affected that anyone who resells electricity for use in domestic circumstances falls within the ambit of this legislation. We hope that the Minister will give us a categorical answer on that point. We want an assurance.
I shall make one further point with which I am sure the Minister will agree. Whether the Bill is implemented by regulation or by code of practice may ultimately be somewhat academic if because of the wording and the drafting of Clause 20 many of the people who resell fuel fall outside the legislation.
Lord Beaverbrook: My Lords, I am most grateful to the noble Lord, Lord Morton, for his explanation of the purpose of this amendment. Before answering the detailed points made by noble Lords on this amendment, I should like to say to the noble Baroness, Lady Burton of Coventry, that later government amendments to be moved to Clause 26 by my noble friend will ensure that regulations on the resale of gas and electricity apply to landlords whether or not they are in business.
Baroness Burton of Coventry: My Lords, I am glad to have that assurance. May I take it from that that all the people whom I have mentioned—I did not give the noble Lord notice of this—will be included in the Clause 26 amendments?
Lord Beaverbrook: My Lords, I cannot give the noble Baroness that assurance at the moment because I am not sufficiently familiar with what my noble friend will say later. If he does not cover the ground no doubt the noble Baroness will have something to say at that time.
On the main point of this amendment as set out by the noble Lord, Lord Morton, it is a general principle of law that employers are largely responsible for the actions of their employees. I believe that it is especially right that this principle should apply in the case of misleading price indications. Policy on price indications in an individual store is rarely in the hands of individual employees, but it is more often a matter of centrally determined company policy. It is for the

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employer to ensure that his procedures and staff training are adequate and appropriate to prevent misleading price indications being given to consumers. I therefore think it is right so to draft the Bill that proceedings are directed against employers—that is the corporate body standing behind the misleading price indication—rather than individual employees. Accordingly we have included the words "of his" in the Bill to ensure that individual employees will not be prosecuted.
It is of course for employers to institute systems and staff training to ensure that their employees do not give misleading price indications. If, in spite of all these precautions, a rogue employee nevertheless gives a misleading price indication, then the defence of due diligence, as set out in Clause 39, is likely to be available to his employer. But I have to say that I see little point in prosecuting individual employees in these circumstances.
It is a matter of where to draw the line, and in the case of Tesco v.Nattrass the House of Lords found that the manager was not identifiable with the company. If the company had exercised all due diligence, it would not be liable for the act or default of one of its subordinate managers. Clause 40(2) of the Consumer Protection Bill, however, provides that where a body corporate is guilty of an offence, any director, manager or other similar officer of the body corporate to whom the offence is attributable shall also be guilty of an offence. In the light of this explanation I hope that the noble Lord opposite will feel able to withdraw his amendment.
Lord Morton of Shuna: My Lords, I am very much obliged for the support I have received from the noble and learned Lord, Lord Denning, and from the noble Lord, Lord Campbell of Alloway, both of whom put the difficulties raised by this matter much more clearly than I was able to do. The difficulties they have raised and I endeavoured to raise have been wholly missed by the answer that we have received from the Government.
This clause about misleading price indications does not apply only to Tesco, Woolworths or that kind of shop. It applies to the travelling employee salesman and it applies to the person going round selling insurance. If the only person who is responsible is the employer, there is a huge gap left. Surely a liability and a responsibility in respect of misleading prices must be placed on somebody who deliberately disobeys instructions. This is a matter at which the Government might look again. It is clearly something which is not a party issue and which we have to get right. I very much hope that we shall have an indication that the Government will look at this again.
Lord Campbell of Alloway: My Lords, before the noble Lord sits down, may I associate myself with the plea that this might be looked at again?
Lord Beaverbrook: My Lords, with the leave of the House, I entirely take the argument put by the noble Lord, Lord Morton, and supported by the noble Lord, Lord Campbell. On that basis, I think that we would like to look at this again carefully to see whether something has been missed and whether it can be looked at further.
Lord Morton of Shuna: My Lords, I am very much obliged, and in the circumstances I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn
[Amendment No.43 not moved.]
The Chairman of Committees (Lord Aberdare): I have to point out that if this amendment is agreed to I cannot call Amendments Nos. 45 and 46.
3.45 p.m.
Lord Gallacher Lord Gallacher moved Amendment No.44:
Page 18, line 15, leave out subsection .
The noble Lord said: My Lords, in moving Amendment No.44, with the leave of the House, I shall speak also to Amendments Nos. 61 and 62. In order to consider this group of amendments in the round, so to speak, it is necessary to recall the events at Committee stage on the 29th January when we discussed Amendment No.71, which is germane to the amendments now before us.
The discussion at Committee stage led to the withdrawal of Amendment No.71, because the Minister then acknowledged the existence of a new factor which had arisen since the Bill was drafted: namely, a request from a body, which he described as a concordat, to reconsider the code of practice so that it became a guidance document only and not, as it then stood, a document which is a mixture of regulation and guidance.
In fairness to the Minister, when making that statement he also made it clear that the decision to have a further look at the document meant there would inevitably be a delay, a consequence of which might be that at this Report stage of the Bill the House of Lords would not be able to consider the matter in the exact form in which it would finally be placed before another place, because the discussions with the concordat might not be concluded by that time. Although sympathetic to the approach made, the Minister did not in any way indicate that the Government were of a mind to concede the representations made to them without fairly detailed consideration of them. I understand that subsequently the members of the concordat have met with the Minister for Corporate and Consumer Affairs, in particular on 9th February last.
I remind your Lordships that the concordat is a representative body, comprising the National Consumer Council, a body appointed by the Secretary of State for Trade and Industry, which reports to him and which is financed by him. It consists also of the National Federation of Consumer Groups, which takes care of the voluntary sector of consumerism in this country. The Retail Consortium claims to speak for 90 per cent. of the retailers in this land, including some of the most famous names in retailing. The Institute of Trading Standards Administration is the professional body of those who would be called upon to enforce the code of conduct on behalf of local authorities. Finally, the Local Authorities Coordinating Body on Trading Standards, known by its initials as LACOTS, is also a member of the

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concordat. In consultation with the concordat, the Consumers' Association and the Confederation of British Industry are also involved.
The outcome of the discussions which the concordat had with the Minister resulted in a consultation paper which was issued to interested parties by the Department of Trade and Industry on 27th February. A copy of the document was placed in the Library on 3rd March. 1 understand that the process of consultation with interested parties involves no fewer than 200-plus organisations and persons and in consequence there is likely to be some delay before the outcome of the consultations is known.
The consultation paper gives two options. First, it offers consultees the opportunity of either adopting the code which the Department of Trade and Industry originally prepared in its third edition—that is to say, a code of practice which combines regulations and guidance—or of following the concordat's proposal to the Minister, which is to take regulations out of the code of conduct, leaving the subsequent code as a guidance document only. As a guidance document, it would have evidential status only in the courts and not the higher status which it has at the moment in the Bill.
Some disappointment was expressed by the concordat at its failure to change the Minister's view at that stage, particularly in view of the Minister's sympathy with self-regulation in general. We certainly know in this House that so far as corporate affairs are concerned he has been a consistent advocate of the value of self-regulation. As I say, it is a disappointment to the concordat that in this instance the Minister apparently was not sufficiently convinced of the case to concede what it was asking at that stage.
The document which has now gone out gives the DTI's view, which is that separate regulations—that is to say, taking the regulations out of the code of practice—would be a complex affair, would lead to rigidity and might create an undesirable technical situation. On the other hand, the document expresses the concordat's fear that a code which mixes regulations and guidance may not be enforced by trading standards officers and, to that extent, may become a somewhat discredited document. Furthermore, it believes that the combination of regulation and guidance gives the code an unwanted status—unwanted, that is, by consumers, retailers and enforcement bodies.
Having got a list of the organisations and persons that have been consulted, I must confess that, first. I was amazed at the number of bodies to be consulted, which was over 200. I was also somewhat surprised to see that many of the organisations involved are represented by bodies which comprise the concordat. For example, there are retail companies which are members of trade associations that are in the Retail Consortium, and in addition to that there are other less well-known bodies. There are also individuals, no doubt with a special interest in consumer law, such as professors in universities.
The width of this consultation process and its importance for the future, having regard to the choice which will inevitably be made between the two points of view, leads me to ask the Minister when he comes
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to reply to tell us what weighting his office of consumer affairs is going to give to the replies. If there is still a difference of view as between the Department of Trade and Industry's version of the code of conduct and the concordat's wishes, it may be important to know whether, for example, the views of a professor of law in an academic institution will carry as much weight as those of significant retailers and significant local authorities that will be directly involved. Is it to be on the basis of one reply, one vote or will the office concerned with consumer affairs attempt in taking account of the replies to give weight to the importance of the body which is giving it the information it is seeking?
A timetable has been set by the Department of Trade and Industry for replies to this consultation document. So far as the principles are concerned, replies are required by 25th March. But detailed comments are not being asked for until 21st April. So far as I can find out, on the assumption that we complete the Report stage of the Bill today, the Third Reading is scheduled in your Lordships' House for 19th March. On that basis, your Lordships will see that there is no effective way in which this House can take any decision on this matter before sending the Bill to another place. It seems highly probable therefore that the main decision will need to be taken in another place. That point was, I believe, made clear by the Minister at the very outset; and the timetable has confirmed what he told us when we last discussed the matter.
However, the question arises—and this is really the subject of the three amendments—as to what this House ought to do in the meantime about the three references in the Bill to the status of the code. The purpose of the amendments is, in effect, to neutralise the position pending a final decision by the Minister, so that the Bill, if your Lordships agree to the amendments, contains no definitive statement as such and it is left to the other place, in the light of the replies which the Government receive to their consultation document, to decide on the merits of the issue. No doubt the matter will then come back to your Lordships' House to agree or otherwise with Commons amendments. What the amendments suggest as regards deletion is fair and reasonable. I hope that in the light of that the Minister may feel disposed to accept the amendments. I beg to move.
Baroness Burton of Coventry: My Lords, it is difficult to avoid repeating what was put forward at the Committee stage. At that stage, in my opinion, we got exactly nowhere. There was general agreement that the control of misleading price claims is a difficult area. I asked the Minister whether the Government would pay particular attention to a point on which 1 felt strongly and which was supported by the Consumers' Association and by the National Consumer Council.
We were of the opinion that one reason why the Bargain Offers Order has failed to provide an adequate system of control against misleading pricing is that it ties the courts to examining the technical detail of the order instead of allowing them to make a judgment on whether the alleged misleading price claim is indeed

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misleading. I thought that this somewhat narrow aspect was basic to the adequate system that we want.
I listened carefully to what the noble Lord, Lord Lucas, said on 29th January. I have since re-read Hansard but I can find no reference to the point raised. I am hoping that the noble Lord will feel able to remedy that omission today. Consumer organisations feel that the present law is unclear; indeed, the National Consumer Council made the point. It believes that the Government's proposals go a long way towards explaining to traders what is lawful behaviour, but create much uncertainty as to what is not.
I must repeat a point made in Committee concerning the 28-day rule. The National Consumer Council considers that this should be addressed to the primary legislation. The present law states, as the House will be aware, that the higher price must have been offered for 28 days. To remove this as a clear rule would be a retrograde and confusing step. And so today, on our last Report day, I ask the Minister whether he will give the Government's reactions on three points—the technical detail of the order, the clarity of the explanation given to traders, and the 28-day rule.
Before moving on to the status of the code of practice, I must deal with what the Minister actually said at col. 1473 of Hansard of 29th January. Personally, I was amazed. The noble Lord, Lord Williams of Elvel, found the remarks quite extraordinary. I found them an insult to your Lordships' House. The noble Lord, Lord Lucas, said:
"I take the opportunity to assure the Committee that my right honourable friend the Secretary of State is prepared to reflect the outcome of the serious and proper consultations to which I have referred when this Bill is before another place".
While admitting that this Bill is imperfectly drafted, the Minister actually proposed that it should go to another place to be settled. I should like to ask the noble Lord, Lord Lucas, whether he considers that that is the proper way to treat this House, when the Bill has actually started its parliamentary journey here and when we have revealed its shortcomings.
I imagine that we have all received the letter from the Retail Consortium dated 25th February referring to the meeting held on 9th February. At that meeting, the Minister said that his officials would issue a consultation letter to all interested parties to ask them to decide between the Government's proposals and the alternative proposals. The Minister asked also for further arguments in support of the latter. A reply was requested by 19th February.
I expect that most of us sitting in this Chamber have now received a second letter from the Retail Consortium dated 5th March, stating its disturbance that a number of concerns felt by the concordat—which is of course an umbrella term for all the interested parties—were not resolved during the Committee stage. The Minister received a letter developing further arguments for the alternative proposals on 19th February as requested. These he was unable to accept and on 27th February his officials invited further comments in still another consultation letter. Initial comments on this are required by 25th March and detailed ones by 21st April.
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In this letter of 5th March, which many of us received from the Retail Consortium, the consortium states that it seems most unlikely that this matter will be resolved before the Consumer Protection Bill passes to the House of Commons. It does indeed seem most unlikely. It seems to me also to be an entirely wrong procedure, when we learn from the consortium that the whole concordat believes that certain provisions of the Government's draft code should be put into regulations and, in some cases, redrafted, as rogue traders cannot realistically be expected to comply with a voluntary code of practice. The remaining parts of the code should be of practical guidance only. That is quite an indictment, and coming from the members of the concordat and the Retail Consortium I think it is a very serious indictment.
In conclusion, I am sorry if I seem to be in a complaining mood, but it is difficult when one receives no reply to points raised after considerable study of the problem. I am not objecting to whether or not what has been put forward is acceptable. I am objecting to getting no answer at all. The points are just swept under the carpet and ignored.
On the matter of the proposed code of practice and its status, I am far from happy about the Government's proposal. As I understand, and as I said in Committee—and perhaps the Minister will correct me if I am wrong—the main proposal being put forward is without precedent. It is that compliance with the code of practice will be an absolute defence to a charge of misleading pricing. I took the same view as the National Consumer Council; namely, that such a proposal has the effect of elevating the code beyond one of guidance, and that it will detract from the general duty.
I repeat a point made previously—one has to keep on repeating until one gets an answer—is there not a danger that this Bill will become too legalistic, so that examination of technical detail overrides the necessity of making a judgment? As I explained—I apologise for the necessary constant repetition—I would accept the view that the code we are now discussing should have the same status as the Highway Code.I would accept such a solution because I believe, in common with consumer organisations, that we have an important constitutional dimension to bear in mind. The noble Lord gave me no answer on this matter at the Committee stage.
If the code is granted formal status it will assume the importance of delegated legislation, but Parliament will not have had an opportunity to discuss in detail what behaviour should or should not be lawful in this area. That is serious, and I should have thought it would be an unwelcome innovation both in our House and in another place.
This time, when the Minister comes to reply, doubtless he will comment on the points made in our House. I should like to stress to the noble Lord the Minister, because I feel very strongly about this, that I say "our House" because I believe that your Lordships' House has been most grieviously offended and, indeed, slighted by the action proposed by the Government; namely, that the Secretary of State is prepared to reflect the outcome of the serious and proper consultations that we have been discussing when the Bill is before another place.
4 p.m.
Lord Campbell of Alloway: My Lords, I support all these grouped amendments, as I supported the same theme at Committee stage. Unlike some other noble Lords, I represent no trade interests at all. That does not mean to say that I am not interested in trade, but I represent no one.
The hope must be that my noble friend the Minister may find his way to be able to accept Amendment No.44, to get rid of Clause 24, for the reason given at Committee stage so that contravention of the provisions of a code cannot be used as an aid to conviction for a criminal offence. Also, the hope must be that my noble friend the Minister will accept Amendment No.61 to Clause 24, which provides that compliance with the provisions of the code affords a defence to criminal proceedings. Again for the reasons given at Committee stage, the document is not suitable for such purpose in court. Lastly, the hope must be that my noble friend the Minister will accept the consequential amendment to Clause 25—that is Amendment No.62—by excision of subsection (3) which renders the code admissible in criminal proceedings.
If my noble friend could take such a magnanimous course, this would afford an important and praiseworthy reflection of the value of the revisory role in your Lordships' House at Committee stage, and the noble Baroness, Lady Burton of Coventry, could have scant complaint. On all sides of the House there has been an attempt to improve the quality of this legislation, and if my noble friend the Minister were able to take that course the revisory role would have been discharged.
For my part, I well understand the difficulty in which my noble friend the Minister finds himself, in that he has not been able to implement his intention as stated in col. 1472 of the Official Report for 29th January, of,
"bringing forward amendments to reflect our intentions more accurately and to make clearer what the status … of the code is in the circumstances".
I understand that, because the reasons for the inability are not, if one is fair about it, because of some obdurate unwillingness on the part of my noble friend the Minister. The reasons lurk in Annexes A and B to that departmental document of 25th February. Annex A is the government proposals and Annex B is the concordat proposals. Comment is invited. With the greatest respect, both sets of proposals are totally misconceived, the government proposals because they still maintain the structure of Part III, and Annex B, the concordat proposals, because they contain muddled concepts of the status of the code, in particular paragraph 2.4, which even led the noble Baroness, Lady Burton, to speak of the Highway Code status, which I have sought to suggest would be wholly inappropriate, and then to acquaint that to delegated legislation. That is a sort of terror of error which permeates Document B.
Again, the reason is not far to seek. If you have 200 parties all whirling around in consultations and overlapping as between one trade association and another, it is not to be wondered at that a fairly confused result ensues. It is a confused result, and I
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have considerable sympathy with my noble friend the Minister in trying to unravel it. I cannot. Annex B is in such a state of muddle that it could not be put into legislation in its present form. Furthermore, to say in it that the essential status of the code is consultative, when it is a code which lacks any legal efficacy but is to be used evidentially, is nonsense. I sought to try to point that out at Committee stage.
I listened with admiration to the way that the noble Lord, Lord Gallacher, sought to explain Document B, but I was unable to follow. With the greatest respect, I wonder how many of your Lordships were. Therefore, when my noble friend the Minister is asked "What are you going to do with these replies? What sort of weighting?" I would hazard the suggestion that it is the quality of the reply not the weight of the body that will assist the trade in the long run and assist the Government to produce some decent legislation which is effective.
The general comment on both Annex A and Annex B is that although it is common ground that there should be effective enforcement procedures, neither Annex A nor Annex B achieves that purpose. The only appropriate approach is the straightforward approach. That involves the three principles of which no due account has been taken either in Annex A or in Annex B. They are quite simple: first, to create the offence, leave Clauses 20 to 23 as they stand; take out Clause 20(4) and, if you wish, supplement by statutory instrument under Clause 26 as amended. The second principle is: for the defence, if you are going to use a code of practice, redraft the code of practice with the use in the criminal courts in mind. The third principle is: that the status of the code in terms of legal efficacy must be defined with total clarity in the primary legislation; that is to say, must be on the face of the Bill before it receives Royal Assent, or subsequently it is too late.
At Committee stage, in the light of the debate on Amendment No.71 and Amendment No.72, which was in my name, the Minister said that he accepted that there were difficulties with Clause 24 as drafted. I therefore do not think, with the greatest respect, that the noble Baroness, Lady Burton of Coventry, was quite fair to my noble friend the Minister. The Minister said that the Government would consider seriously the drafting of Clause 20(4) and, with it, Clause 25(3) with the intention of bringing forward something to reflect Government intentions more accurately and to clarify the status of the code. In other words, the Minister said in terms that he would take back Part III for further consideration.
In these circumstances, if my noble friend the Minister was prepared to accept this set of grouped amendments, his way would be free to exercise any of the options which were discussed by your Lordships at Committee stage within those three principles. An effective, simple and acceptable enforcement machinery could then be devised.
On the point taken by the noble Lord, Lord Gallacher, as amendments introduced in another place would return to your Lordships' House for further consideration, there could be no question of circumventing the revisory role. We should have discharged that revisory role and I respectfully suggest

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that if my noble friend the Minister were to take such a course, the criticisms of the noble Baroness, Lady Burton, would lose some of their sting.
Lord Graham of Edmonton: My Lords, perhaps the Minister can deal with what I regard as the quite extraordinary process which he has adopted in dealing with very powerful forces—that is, the concordat, added to by the CBI who came along after the concordat began to work—which include consumers, industry, local authorities and enforcement officers. The Minister has told us quite fairly that he wishes to widen consultations. I believe that trade bodies will need to look carefully at how this Government view their status and stature, as well as their ability to represent their members. In all good faith, they consult with their members and produce what they consider to be the opinion of their members for the Minister. The Minister may then say that in that case (or is it only that case?) he has consulted not merely representative bodies but also many individual members and others.
The noble Lord, Lord Campbell of Alloway, says that what we are concerned with is the quality of representation and not the weight. Well, we certainly had the weight and the quality from those bodies. What we are going to get is the Minister producing the views, not merely of the four or five central bodies, but also the views of perhaps 200 individuals and individual organisations. I think that the least the Minister should promise to the House is that at some stage we shall know not merely who is consulted but what those whom he has consulted have said. We need to see the views of those organisations. I ask the Minister, at some stage in these proceedings, whether he will agree that it would be fair for the views to be made known, not merely collectively but also placed in the Library so that we can see the plethora of views. I venture to suggest that he will he not one whit further forward than he is now in genuinely representing the views of consumers, enforcement officers, councils and industry if he does not follow that course. I am puzzled and amazed that the Minister has not decided to use the opportunities presented to him by such organisations in the past.
4.15 p.m.
Lord Denning: My Lords, may I speak for a moment in support of this amendment? It seems to me that these amendments are absolutely necessary and that the Bill as it now stands, in giving special status to the code of practice, is a constitutional monstrosity. Having been a judge and having considered such indictments as would be put forward for the offence of giving misleading indications—such as, for instance, saying that a price is being reduced by 10 per cent. when it is not—I believe that that is a simple indictment and charge, to which the jury would be asked the simple question, "Guilty?" or "Not Guilty?". The jury would answer that one question in the ordinary trial before a judge and jury for indictable offences.
Such a simple course would not be permitted under the code of practice. It is quite plain that in addition to that simple indictment one will have to have the particulars of the contraventions of the code. My
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word, what a task that will be! I have before me the draft code of practice—I think it is the third draft code—and an example of the sort of clause which is in the code of practice is as follows:
"You should be clear about your meaning and should not leave your customer to guess whether you are making a price comparison or not".
Another example is:
"You should also be clear about the nature of the comparison you are making".
What a hopeless provision it is which makes any charge of contravention. The first difficulty, therefore, lies in giving the particulars of the ways in which the provisions have been contravened. There are all sorts of difficulties which follow. Section 25(3) says,
"A code of practice … shall be admissible … but a contravention of any such code shall not of itself render any person liable to any proceedings".
It is not enough to say simply that the code has been contravened. Something else must be put forward as well.
In the end, it is a complete defence to show that one acted in accordance with the code of practice. Those are quite impossible issues to sum up to a jury or to leave with a jury. A jury should, in those cases, be asked to decide the question which they have always been asked throughout our history: "Guilty" or "Not Guilty". A jury could not give such a verdict when it is trammelled with a code of practice of many pages which is set before them. This code of practice ought to disappear altogether as part of the legal code. If you like, it could give guidance. So far as a legal code and legal offences are concerned, they can be dealt with by regulations. They should not he dealt with by a code of practice and anything relating to the code of practice should go out of the Bill altogether.
Lord Sainsbury: My Lords, I welcome this amendment because it gives us an opportunity to discuss the status of the code of practice. I was very interested in the debate at Committee stage and regret not having been able to participate in it. It reflected the tone of the comments I made on Second Reading, to the effect that the code should be a practical guidance worked out in conjunction with retail organisations and other interested parties. I am therefore delighted that in the interim it has been possible for a very significant measure of agreement to he achieved between the representative bodies of those who are going to be most intimately involved in putting the provisions of the Bill into practice.
The proposals of the so-called concordat, and the members of the concordat who have already been mentioned, are also supported by other important organisations such as the CBI and the Consumers' Association. I do not see why there should be any difficulty in accepting these proposals. As I understand it, they fit very easily into the framework of the Bill. Indeed, they focus directly on the words "practical guidance" used in Clause 25(1)(a). The Government are consulting further on these proposals. Frankly, I am not sure what the Government seek to achieve. They have had plenty of time to react to this practical approach. I am worried that the Bill will leave the House without any adequate response from the Government to the concerns that have been expressed.

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Your Lordships will no doubt recall the White Paper Lilting the Burden,published in July 1985, in which the Government set out their policy to simplify some of the laws affecting businesses. This measure was promised as part of their effort. I support the concept of a general prohibition against misleading price indications but I have to say that I quail before the detailed drafting of Clauses 20 and 21, some three pages of text. It will require a great detail of explanation and practical guidance for them to be understood in the high street.
In conclusion, I hope the Government will listen to the views of those who have to apply the law and adopt the proposals that have been recommended to them.
Earl De La Warr: My Lords, I too should like to support the amendments of the noble Lord, Lord Gallacher, and I should like very briefly to tell your Lordships why I agree so strongly with the concordat that certain of the provisions in the draft code should come out and go into regulations under Clause 26 and so become—I shall not put it technically—part of the law with the code thereafter in a redrafted form serving only as guidance. I shall not try to guide your Lordships as to the exact evidential form it should take other than to say that I agree with the noble and learned Lord, Lord Denning, that I rather wish it was not there at all.
The provisions that we are discussing consist of a small number of well-known abuses in the marketplace. The noble and learned Lord referred to one of them. The abuses are used not by responsible retailers but by the rogue traders—and there are some—who are prepared and indeed anxious sometimes to mislead shoppers by their pricing methods. It is those people this Bill and this part of the Bill should seek to nail. If that he so, then the present draft of the code, which is a mixture of prohibition on the one hand and simple advice on the other, is not the right tool to achieve this end. That is why the concordat says rightly that the code as it stands is both unworkable and unenforceable.
I repeat that its main argument is that the important provisions that are at present in the code should come out of it and go into regulations. That is why I so strongly support the amendments of the noble Lord, Lord Gallacher.
4.30 p.m.
Lord Lucas of Chilworth: My Lords, I am grateful to the noble Lord, Lord Gallacher, for the way in which he explained the purpose of and the reasoning behind the three amendments which he has put before your Lordships this afternoon.
I shall begin by fulfilling the commitment I gave during the Committee stage to give the House an indication of the progress of the consultations on the code of practice which I then undertook to begin. It is necessary for me to be somewhat repetitive and I hope that the noble Lord opposite and your Lordships generally will forgive me for that.
Perhaps it may help if I remind the House of the history of the subject. The legislation contains three basic elements: a general offence of giving a misleading
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price indication; a code of practice; and regulation-making powers. There is at this time no disagreement on that basic structure.
Following extensive consultations, the Government introduced the Bill in November and simultaneously laid before the House a draft of the proposed code of practice. On 22nd January, a week before consideration of Part III of the Bill in a Committee of this House, the Retail Consortium, the National Consumer Council, the National Federation of Consumer Groups, the Local Authority Co-ordinating Body on Trading Standards and the Institute of Trading Standards Administration (which have come to be called the concordat) presented jointly agreed alternative proposals. These proposals suggested a change in the status of the code of practice—that is, that it should no longer be a defence but only be of evidential status—and suggested that rather more matters than we had envisaged should be covered by regulations.
Noble Lords will recall that I gave the Committee an undertaking that, although we were not persuaded that our approach was wrong, we would hold further consultations on the question with all interested parties. There are some people concerned with price indications who are not represented by the concordat. I also undertook that the outcome of those consultations would be reflected in the Bill when it reached another place. My honourable friend the Parliamentary Under-Secretary of State for Corporate and Consumer Affairs met representatives of the concordat on 9th February. The purpose of the meeting was to explore how that further consultation should be carried out. As a result of that meeting we received a further more detailed paper setting out the concordat's proposals on 19th February. That paper, together with a restatement of the Government's proposals and an agreed covering letter, was sent out to some 240 consultees on 27th February. I announced the issue of the consultation document in a written parliamentary reply on 3rd March, and a copy of the consultation document has been placed in the Library of the House.
The questions that we have asked our consultees are inevitably a little complex, and it seems to us that a little time is needed to consider them. Accordingly we have asked for replies on the main question of the status of the code by 25th March. We shall be happy to receive comments on matters of detail up to 21st April. Perhaps I should say here that we envisage the comments to be on those matters which may be better covered by regulations or should remain in the code.
That is where we stand at present, and as yet we have had very few replies to the consultation document. I have said before, and I repeat today, that my right honourable friend the Secretary of State for Trade and Industry will reflect the overall outcome of the consultations in the Bill in its later stages in another place.
I appreciate the desire—indeed the right—of your Lordships to be assured of being able to return to this issue at a later stage. This was very much in my mind in not bringing forward at this stage all the amendments to clause 20(4) which I had said in reply

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to my noble friend Lord Campbell of Alloway would be made. That would have ensured that whatever the outcome of the consultations, your Lordships would have had a further opportunity to discuss the status of the code. But the noble Lord opposite, together with the noble Baroness, Lady Burton, proposed an alternative—in some ways, if I may say so, a more neutral alternative. It is a procedural device to ensure that your Lordships should have an opportunity to consider these matters. I am content to go along with that approach and to accept Amendments Nos. 44, 61 and 62.
However, these amendments leave Part III of the Bill in a rather odd and unsatisfactory state, which may convey a misleading impression to some people outside your Lordships' House. I therefore emphasise that my acceptance of these three amendments is based soley on their function as a procedural device. I would not like noble Lords, or again anyone outside your Lordships' House, to believe that this acceptance is in any way an indication that we accept the arguments put forward by the concordat and others for a change in the status of the code. We are not persuaded at this time that the alternative status that is proposed offers advantages over the status currently in the Bill. However, we shall be bound on this by the outcome of the consultations.
I turn to some of the points which have been made in the debate this afternoon. I say straightaway that it would be absolutely wrong of me to take up all the points which have been made with regard to the status of the code because that is precisely what this consultation is about. Contributions have been made by the noble Lord, Lord Gallacher, by the noble Baroness, Lady Burton, my noble friend Lord Campbell of Alloway, the noble and learned Lord, Lord Denning, and the noble Lord, Lord Sainsbury, and they make their contribution to this consultative process. The noble Lord, Lord Gallacher, asked me why we had gone to this extent in consultation; why we had gone to a list of some 240 consultees. The reason is largely because they asked to be consulted. They include bodies such as chambers of trade which are not parties to the concordat and many other groups. In the course of our earlier consultations prior to November last year we built up a list of interested parties, so they have been consulted.
The noble Lord, as well as my noble friend Lord Campbell of Alloway, asked me whether the results of the consultation were to be on a head count.
Lord Graham of Edmonton: My Lords, am I correct that the noble Lord said that chambers of trade had asked to be consulted? If so, does he not understand that the National Chamber of Trade is a member of the Retail Consortium and to that extent the collective view of chambers of trade is conveyed through it? Are we to understand that if any one body in a constituent body asks to be consulted, in effect it gets the same weight as the others?
Lord Lucas of Chilworth: My Lords, I think the noble Lord is confusing two issues. I have not even come to discuss the matter of weighting, I was merely answering the question of the noble Lord, Lord
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Gallacher, as to why there were 240 consultees. I have not discussed weighting at all. I said, "For example, chambers of trade". If any chamber of trade, if any individual person or if any individual company belonging to any society, association or institution writes to us and says, "Please may I have copies of this consultative document? I should like to make representations", we would not deny them and I do not think the noble Lord, Lord Graham, would either.
To return to how we deal with this, certainly it is not one head, one vote. That is not the proper way of doing things. We would have to take account of what is said and the representation it brings; in other words, the weight of the body or person concerned. The views of all those directly affected are especially important. It will not be an easy job.
Perhaps I should just say this to the noble Lord, Lord Graham. He asked whether the views of all those consulted would be published and placed in the Library. No, we are not proposing to do this. We do not believe it would be right to make public correspondence which is sent to us in confidence and which the authors may not wish to have made public in this way. We shall of course have to make public the overall result. It is this listening process, to which the noble Lord, Lord Sainsbury, referred, that is part of the consultation. This is what it is about: to listen to the people who are concerned and one would hope to reach a consensus.
I failed earlier to include in my list of noble Lords to whom I was not going to respond in detail my noble friend Lord De La Warr. I believe his contribution, as with others, is part of the consultation process.
The noble Baroness, however, raised two other points. One was the so-called 28-day rule and whether this rule and other matters covered in the code of practice would continue to be covered in that way or were to be covered in regulations. This is part of the consultation which is now going on. The technicalities of enforcement were raised by the noble Baroness, and she suggested the new approach would not become bogged down in technicalities. Again, it would depend on whether the indications were misleading. The Bill provides in Clause 20 a general offence of giving a misleading price indication. That is the foundation of Part II of the Bill.
I am sorry that the noble Baroness felt that I had in any way slighted your Lordships' House. I think it was the noble Lord, Lord Henderson of Brompton, who told us at an earlier stage when we were discussing these matters—I was speaking about the way forward, which has been moderately changed by the noble Lord, Lord Gallacher, as a way out of the predicament; that of ensuring that your Lordships had an opportunity to debate these matters further—that the course I proposed, broadly being followed by the noble Lord, Lord Gallacher, was a proper course, with precedent, and the House would not be denied its rightful role as a revising Chamber. I think that, on reflection, the noble Baroness will feel that this is the right way of dealing with matters.
Finally, I should say that since my Amendment No.45 falls within the acceptance of these three amendments, I take the opportunity to assure the House, and particularly my noble friend Lord

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Campbell of Alloway, that I have not overlooked my commitment to bring forward amendments to Clause 20(4) and that will be taken into account as appropriate in another place.
With that rather long explanation—and I apologise to the House for it—I commend to your Lordships the three amendments commencing with Amendment No.44 in the name of the noble Lord, Lord Gallacher, and other noble Lords.
Baroness Burton of Coventry: My Lords, before the noble Lord sits down, will he be kind enough—because I have raised these matters several times—to look through the remarks that I made and write to me on the points that he has not been able to answer today? Do I take it that the noble Lord will do that? I see he indicates his assent for which I thank him.
Lord Gallacher: My Lords, I first thank all those who have taken part in the debate and I particularly thank the Minister for the very patient and detailed reply which he has given to the proposition put forward in Amendment No.44. I note that in accepting that amendment he also accepts Amendments Nos. 61 and 62.
I have only one point I should like to make. I listened carefully to the qualifications which he attached to his acceptance and I note that the Government, in those qualifications, still reserve their rights in the matter. However, I feel that the consultations in which the noble Lord's Ministry is engaged, involving some 240 consultees, indicate a willingness on the part of the Government to move from their original position on this matter if, in the light of those consultations, movement is both indicated and justified. It is in that spirit that I accept the noble Lord's offer to agree to my amendments.
On Question, Amendment agreed to.

Sizewell B Power Station
4.43 p.m.
Viscount Davidson: My Lords, with the leave of the House, I shall now repeat a Statement on Sizewell B which has been made in another place by my right honourable friend the Secretary of State for Energy.
The Statement is as follows:
"With permission, Mr. Speaker, I should like to inform the House that I have reached a decision on the application by the Central Electricity Generating Board to construct a nuclear power station using a pressurised water reactor: the Sizewell B station in Suffolk. In accordance with the statutory requirements of the inquiry rules, I am notifying the board, the local planning authorities and the objectors of my decision and my reasons therefor. I am placing copies of my decision letter in the House Library.
"The CEGB's application has been the subject of the most wide-ranging and longest public inquiry carried out in this country. I published the report on 26th January. It was debated by this House on 23rd
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February. On that occasion the thoroughness and well-written nature of Sir Frank Layfield's work were generally acknowledged by both sides.
"I can assure the House that before reaching my decision I have carefully considered the points raised during that debate and those made in the debate in another place last week.
"Honourable Members have clearly studied the inspector's report with care. They will be familiar with his conclusion that there is a national interest in building a PWR and that this can best be met at Sizewell. He found that a new power station is required to meet anticipated capacity need; that it should be approved in the near future; and that the proposed PWR is likely to be the least cost means of adding that capacity. The inspector further concluded that there is good confidence that Sizewell B was sufficiently safe to be tolerable and that the national need for the station overrides the local interest in favour of conservation.
"Sir Frank therefore recommended that consent and deemed planning permission should be given for the station, but should be refused for the second access road. He also made a number of detailed subsidiary recommendations.
"The inspector closed the inquiry in March 1985 and properly reported only on the evidence he received before then. In reaching my decision, however, I must consider whether anything has occurred since that date which is material to my decision and, if so, what weight I should give to any such matters.
"I have, in particular, considered the relevance of Chernobyl to the safety of the proposed station. I have also taken into account recent changes in electricity demand and in fossil fuel prices.
"First, in relation to the Chernobyl accident, the Chief Inspector of Nuclear Installations has advised me that the PWR design for Sizewell B is of a different reactor type from the Soviet RBMK design. All nuclear power stations in the UK, unlike those in the USSR, must have engineered control and automatic protection systems. Moreover, our system of regulation, unlike that which applied in the USSR, ensures that there is a proper and reliable procedural framework of controls. All our experience in the UK has demonstrated that there is a superior safety culture to that which apparently existed at Chernobyl and which allowed the repeated deliberate non-compliance with safety procedures. The Chief Inspector of Nuclear Installations therefore advises me that the Chernobyl accident does not call for any reconsideration of the conclusions or recommendations of the Layfield report. I agree with his advice, a copy of which I am placing in the House Library.
"In his report, Sir Frank Layfield also discusses emergency plans in the event of a nuclear accident. My right honourable friend the Prime Minister announced on 18th December that the Government were undertaking a review, in the light of our experience of the Chernobyl accident, of the United Kingdom's emergency plans and procedures in the event of a nuclear accident either in the UK or abroad. The conclusion of the first stage of the

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review was that, while planning needs to provide more specifically for an accident outside the UK, existing emergency plans continue to provide a valid basis for the response to any nuclear accident in the UK.
"Turning to the economic case, I have noted that since the inquiry closed, economic activity has risen with associated growth in demand for electricity. Sizewell B, even if started now, is unlikely to be ready ahead of need.
"On the other hand, fossil fuel prices have fallen since 1985. Projecting these forward to the end of the century and beyond is subject to great uncertainty. I have, however, examined the inspector's economic case against a range of coal prices considerably lower than those discussed in the report.
"Even against this lower range, I have concluded that Sizewell B remains the cheapest option for meeting the anticipated need for new capacity. I have also concluded, as did the inspector, that the development of a further nuclear station would be a valuable step in achieving greater fuel diversity in our generating system.
"In view of the inspector's conclusions and recommendations, together with my own consideration of the issues, I agree with his conclusions that Sizewell B is acceptably safe and would meet a national need by providing new capacity at least cost. This outweighs any disadvantage from disturbance to the locality.
"I have therefore decided to give my consent under Section 2 of the Electric Lighting Act 1909 to the CEGB's application to construct the Sizewell B power station, together with deemed planning permission under Section 40 of the Town and Country Planning Act 1971, and the necessary investment approval. In order to minimise disturbance to the locality, I have decided that this should be subject to the detailed local planning conditions proposed by the inspector and should exclude the CEGB's proposal for a new access road, consent for which is refused. In my decision letter, which set out my detailed response, I also accept the substance of the inspector's other recommendations. A number of these recommendations will now need to be actively followed up outside government. In particular, I can say that I agree with the inspector that a study of alternatives to the B.1122 for heavy traffic should be made and am commending this to the Suffolk County Council.
"Sir Frank Layfield also helpfully made a number of observations and informal proposals for further action which he considered desirable. I am not required to reach a conclusion on these for the purposes of my Section 2 consent. I have, however, examined them carefully and, where appropriate, they will be further considered by the Government.
"In reaching my decision I have considered most carefully Sir Frank Layfield's comments on safety. I should make clear that, as a separate process, under different statute, the CEGB also require a licence from the independent Nuclear Installations Inspectorate as well as my consent before they can
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start construction. The Chief Inspector of Nuclear Installations informs me that the Nuclear Installations Inspectorate judge that there are now no safety obstacles of substance which would prevent the licensing of Sizewell B in the next couple of months. He has assured me that the Nuclear Installations Inspectorate will consider carefully Sir Frank Layfield's comments and proposals on the safety of the reactor before issuing a licence. Sir Frank Layfield commented that both the CEGB and the Nuclear Installations Inspectorate possessed impressive technical competence and engineering judgment of a high quality.
"I am fully confident that the Nuclear Installations Inspectorate will continue to satisfy itself about the safety of the station throughout the rest of its design, construction, operation and decommissioning. At each major stage in the construction and commissioning process, the approval of the Nuclear Installations Inspectorate is required before the CEGB can proceed further.
"Turning briefly to alternative sources of electricity, I should make clear that the Government are determined that renewable techniques should, in the longer term, make the maximum contribution of which they are economically capable. We are supporting a major research and development programme of which over £100 million has been spent to date. Strong support will continue to be provided for our programmes on wind, tide and geothermal hot dry rocks.
"My decision on Sizewell B reinforces the importance which the government attach to the role already played by nuclear power within the United Kingdom. It now provides some 20 per cent. of our electricity requirements and with those stations due for commissioning in the near future, a quarter of Britain's electricity will come from nuclear power. On any projection of world energy needs there is no way of meeting those needs in the coming decades without the emergence of a substantial contribution from nuclear power. My Sizewell decision today will enable Britain to play its part in that endeavour".
My Lords, that concludes the Statement.
Lord Bruce of Donington: My Lords, the House is grateful to the noble Viscount for having made such a comprehensive and indeed lengthy Statement on this matter. We on this side of the House should like to say immediately that the decision that has been made, involving as it does hazards for the future, is one of the gravest decisions that has been taken by the Government and one that is profoundly disappointing.
If I may say so, in the course of his Statement the noble Viscount has played a little fast and loose with the inspector's report. According to him the inspector,
"found that a new power station is required to meet anticipated capacity need; that it should be approved in the near future; and that the proposed PWR is likely to be the least cost means of adding that capacity. The Inspector further concluded that there is good confidence that Sizewell B was sufficiently safe to be tolerable and that the national need for the station overrides the local interest in favour of conservation".
In view of the fact that the report is now many months old, it would perhaps have been a little more

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honest to say that that was likely to be the least cost means, because of course many considerations have arisen since the report was completed. One does not have to repeat the arguments that were put forward at some length from all sides of the House on this aspect of the matter, but it will be recalled that the inspector's decision was made before the accident at Chernobyl and before the drastic fall in the price of oil and other fuels and that his decision in favour of Sizewell was only reached on balance.
The Government have decided—and noble Lords will have an opportunity of reading the Statement in detail—to ignore all the factual contributions arguing to the contrary that were made both in this Chamber and in another place on the question of cost. Nowhere does the noble Viscount refer to having taken account of the views expressed by Parliament, even though he gave a considerable undertaking that he would take all views into consideration. In relation to price he merely says:
"I have, however, examined the Inspector's economic case against a range of coal prices considerably lower than those discussed in the report. Even against this lower range, I have concluded that Sizewell B remains the cheapest option for meeting the anticipated need for new capacity".
That is against the weight of documented evidence that was produced not only in another place but in this House also.
The noble Viscount's Statement goes on to say that the safety factor is regarded as being acceptably safe and that,
"This outweighs any disadvantage from disturbance to the locality".
The balance was not put in those terms by Sir Frank Layfield, who said that only the national interest should outweigh these various considerations. We have today heard a reiteration of the view taken by the Government even before they received the Layfield report. It is an example of how technological and sectional interests have been allowed to outweigh the broader social considerations with which the Government should properly be concerned.
Moreover, and somewhat surprisingly, there is no mention of waste disposal. The Government have been dithering for two years over the whole question of nuclear waste disposal. At the moment they do not have a clue as to how they will be able to dispose of it and have given no indication in any of the reports or during the parliamentary debates that have taken place. That great question, which poses such hazards to the community at large and to society as a whole, still remains unresolved. It is a vital matter that ought to have been taken into account at the time the Government reached their decision.
We are also surprised that the environmental factors, which Sir Frank Layfield indicated should only be overriden in the national interest, have barely been dealt with in this Statement, other than by offering a sop to local opinion with an indication that permission for the access road requested by the CEGB will not be granted. This decision was arrived at by people who live outside Suffolk. One wonders whether the same decision would have been reached if those people had known that they themselves were to live there.
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This report and Statement take no account of the broad interests of the country. That is made clear by the last paragraph, which is disingenuous to say the least. The noble Lord said:
"My decision on Sizewell B reinforces the importance the Government attach to the role already played by nuclear power in the UK. It now provides some 20 per cent. of our electricity requirements and with those stations due for commissioning in the near future, a quarter of Britain's electricity will come from nuclear power".
The Statement then cleverly shifts the focus away from the United Kingdom, with which it should be dealing, to the world scene. The Statement says by way of justification:
"On any projection of world energy needs there is no way of meeting those needs in the coming decades without the emergence of a substantial contribution from nuclear power".
The Statement does not deal with the question of whether it is possible to satisfy this country's needs on the basis of our resources. We greatly regret that such a Statement should have been made.
5 p.m.
Lord Ezra: My Lords, I should like to join with the noble Lord, Lord Bruce of Donington, in thanking the noble Viscount for repeating the Statement. It is of course a matter of great importance. I should like to put three questions arising from the Statement to the noble Viscount. The first concerns the economic case, to which the noble Lord, Lord Bruce, has already referred. The Secretary of State said that he had concluded that Sizewell B remained the cheapest option for meeting the anticipated needs for new capacity, despite the much reduced prices of fossil fuel since the report was prepared.
The evidence that was available to those of us who took part in the debate in your Lordships' House last week did not support that conclusion. There could well be other reasons for going ahead with the project, but that did not seem to be one of them. The evidence, based not only on information made available from British Coal but from a number of independent sources, was that if a projection had been made, similar to that made by the inspector, of the present prices of fossil fuels, the economic argument seemed debatable to say the least.
I should like to ask the noble Viscount—
The Lord Chancellor: The noble Earl, my Lords.
Lord Ezra: I thought that he was the noble Viscount, unless the noble and learned Lord has elevated him.
The Lord Chancellor: I am sorry, my Lords.
Lord Ezra: My Lords, I should like to invite the noble Viscount to tell us whether he is prepared to let us have the basis on which this conclusion was reached so we can have before us the figuring which the Secretary of State used in reaching his decision just as we had before us the figuring that the inspector used. I do not think that that is an unreasonable request.
Secondly, I should like to refer to the AGR, which is nowhere mentioned in the Statement. A major case in favour of the AGR was put to the inspector at the inquiry. The AGR has been developed in this country

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as a result of the devotion of a great deal of resources and engineering skill. It has turned out to be much more effective than at first seemed possible. Is there, in the Government's thinking, any future for the AGR, which is a British developed nuclear station, in view of this decision?
Thirdly, I should like to refer to what strikes me as being almost the most important sentence in the Statement; namely:
"Sizewell B, even if started now, is unlikely to be ready ahead of need".
Does that mean that we will run short of electricity generating capacity while Sizewell B is being constructed, or will measures be taken to introduce additional capacity from other sources to meet that need?
This raises the whole question of coal-fired capacity. I am uncertain whose responsibility—the CEGB's or the Government's—it is to decide that. Answers given in this House have suggested that it is a matter for the CEGB; answers given in another place have suggested that it is the Government's responsibility. Whether it is the responsibility of the Government or the CEGB, it is of great national interest. We should know how this country's future electricity needs are to be met in view of the suggestion contained in the Statement that even if Sizewell B were to go ahead we could still be short of electricity.
Viscount Davidson: My Lords, I am grateful to the noble Lords, Lord Bruce of Donington and Lord Ezra, for their mixed reception to my right honourable friend's Statement. I must tell the noble Lord, Lord Bruce of Donington, who seemed to think that it was my Statement, that it was not mine; I was repeating a Statement made in another place by my right honourable friend.
I am not sure how to answer the noble Lord, Lord Bruce of Donington, because we are well aware that his party is committed to cancelling Sizewell B, in the unlikely event of it ever having to form a government. We listened to his speech in the debate last Monday week, and all we have had today is a reiteration of that speech. I do not think that I should waste the time of the House by making any comment on it.
The noble Lord, Lord Ezra, asked me about the economics of the matter. The department has carefully considered the implications of the fall in fossil fuel prices which has occurred since the inquiry closed. The department's economic advisers conclude that Sizewell B is still likely to be the least-cost choice for a new main power station although, with lower fossil fuel prices, the gap between a PWR and a coal-fired station will be narrower than Sir Frank Layfield concluded on the evidence available to him.
The Secretary of State has received no applications for consent for a new power station other than for Sizewell. However, the CEGB has made public its view that it will need several more stations by the end of the century. I understand that it is likely to submit further applications for coal as well as nuclear stations in the near future. Each application will of course be treated on its merits.
With regard to the AGR, a new AGR station could not be constructed in time to meet the likely capacity
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shortfall. The Sizewell B order does not rule out the possibility of further AGR orders. The CEGB will be keeping design teams in being until at least 1990. The Layfield view was that the AGR was likely to be less economical than a PWR. On the strength of the information before us, my right honourable friend agrees with that.
With regard to the requirement for electricity supply between now and the commissioning of Sizewell B, all I can say is that Sizewell B is the best means we have of meeting that capacity need. The inquiry process is already complete.
Lord Orr-Ewing: My Lords, may I congratulate my noble friend on the fact that the Government have made the right decision, one which will help supply electricity at economical prices for British industry and therefore for our exports? Have we gone far enough? France is building 15 new nuclear power stations; Germany is building four; Japan is building 16; and the USSR, after Chernobyl, has decided to double its nuclear power construction programme.
There are 33 countries now using nuclear power stations. There are over 300 PWRs. Of those, 200 are operational and 106 are under construction. How can the Opposition suggest that that is a hazardous operation? Will we have enough power when our oil and gas supplies run down? Shall we always be able to depend on the two French nuclear power stations, which are currently providing us with under-Channel power supplies, until our new nuclear power stations come on stream? Will my noble friend deal with that query?
Viscount Davidson: My Lords, I am not sure that I can answer my noble friend's questions. With regard to AGRs, the United Kingdom has not persuaded one overseas customer to order an AGR in the 23 years since 1965. Of course, his figures on PWRs are correct. He should also know that several UK companies have won orders to supply components for PWR stations abroad. We are confident that UK manufacturers can compete on quality, price and delivery. We are competent in this field.
Baroness Nicol: My Lords, what reassurance can we be given that the status of conservation designations will not be affected by the decision? We should remember that the area involved is one of natural beauty (with capital letters), a sight of special scientific interest and a national nature reserve. This must surely weaken the status of those designations in the future. Is the Minister prepared to give any undertaking on that?
Viscount Davidson: My Lords, I can only say that every application will be considered on its merits. I do not know whether the noble Baroness has been to Sizewell. I have, and I do not think that it affects the natural beauty of that part of the coast at all.
The Earl of Halsbury: My Lords, in thanking the noble Viscount for the information in the text that he has read out, I should like to ask him whether he can confirm two points. First, nothing in the text to which I listened implies anything as to a programme for

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constructing PWRs ahead—five is the number usually mentioned—as if the decision were pre-empted. Secondly, does the conditional blessing that the Nuclear Installations Inspectorate has given to the design of the PWR include the modification which I have so often suggested that the fill cladding should not be zircalloy but stainless steel?
Viscount Davidson: My Lords, on the second part of the question of the noble Earl, I cannot offhand give that assurance but I shall certainly write to him. I have forgotten the first point.
The Earl of Halsbury: My Lords, not a whole programme.
Viscount Davidson: My Lords, the Statement related solely to Sizewell B. Anything further will be considered later.
Lord Jenkins of Putney: My Lords, is the noble Viscount aware that there was no reference in the Statement to the question of human error? Is he further aware that there was insufficient reference in the Layfield report to that question? In these circumstances, have not the Government come to this conclusion without giving sufficient weight to that factor considering the various disasters which have occurred since the report was published?
Finally, is he aware that in this matter I prefer to rely on the United States of America, which has built no reactors in recent years, rather than the USSR? Will he not agree that on this matter there seems to be no question at all that the USSA is right and the USSR is wrong?
Viscount Davidson: My Lords, the USSA—I beg your Lordships' pardon; I was confused; I thought that the noble Lord had got it the wrong way round. The USA is still building PWRs. The lack of new orders in the USA has more to do with the absence of a capacity need than concern about safety or the economics of nuclear generation. I am completely convinced that my right honourable friend is quite happy on the score of safety.
The Earl of Lauderdale: My Lords, will the noble Viscount enlarge a little on his reference to the AGRs? As I understand it, he is saying that the design teams of the AGRs are being kept and that the CEGB does not rule out the possibility of another AGR if the need is shown. Can he enlarge on that? Is the design team to be kept going until 1992 and will it then be sacked, or can it look forward to designing an AGR station?
My second question bears on that. Do I understand from noble friend that he is expecting the CEGB to come along with a programme for further nuclear power stations, probably PWRs, as suggested in Layfield, but that he does not know when it is coming?—Thirdly, does he know when to expect an application from the GECB for another coal-fired power station?
Viscount Davidson: My Lords, I can go no further on AGR than I have already. That is to repeat that the Sizewell B order does not rule out the possibility of
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further AGR orders and that the CEGB is keeping design teams in being until at least 1990. I can go no further than that. I also said earlier that the CEGB has made public its view that it needs several more stations by the end of the century. I understand that it is likely to submit further applications in the near future for coal as well as nuclear stations.
Lord Somers: My Lords, will the noble Viscount give a little more information on a very important point raised by the noble Lord, Lord Bruce of Donington, about the disposal of nuclear waste? Have any new arrangements been made about this?
Viscount Davidson: My Lords, No. The Government are quite happy with the proposals for the waste disposal from Sizewell B.
Lord Morris: My Lords, turning briefly to the point made by the noble Baroness, Lady Nicol, will my noble friend agree that perhaps the best way of protecting the natural habitat on a site of special scientific interest is to build a nuclear power station upon that site?
Viscount Davidson: My Lords, I do not think that I can comment on that.
The Earl of Lauderdale: My Lords, may I put one further question to my noble friend? He referred to further studies on renewable sources such as wind, tide and geothermal. Are we to understand from that that no research is intended to be carried out from now on into the matter of wave power?
Viscount Davidson: My Lords, I should have thought that wave power is covered by "tide".
The Earl of Lauderdale: My Lords, no. It is not.
Viscount Davidson: My Lords, I shall write to my noble friend.
Lord Bruce of Donington: My Lords, is the noble Viscount aware of the reason certain points emerged in my comments on the Statement of his right honourable friend that he has repeated today? They arose because in the course of the Second Reading the noble Viscount specifically declined to offer any views. Is he aware that I was offering him an opportunity to answer some of those points, quite deliberately and as a matter of impartiality, on which he declined to make any observations in the course of the Second Reading?
Is he also aware that there are two questions which he ought to be in a position to answer? The first is on waste disposal. The answer he has just given is completely inadequate, as well he knows. The second matter is that in the course of the Statement of his right honourable friend which he repeated here there is no indication whatsoever that his right honourable friend has given the consideration that he promised to give to representations that were made in another place and here.
Viscount Davidson: My Lords, I do not think that a Statement on Sizewell B is the right moment to continue a debate which we completed last Monday week.

Consumer Protection Bill [H.L.]
5.18 p.m.
Consideration of amendments on Report resumed on Clause 20.
[Amendments Nos. 45 and 46 not moved.]
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No.47:
Page 18, line 23, leave out ("to a fine") and insert ("to imprisonment for a term not exceeding two years or to a fine or to both").
The noble Lord said: My Lords, I beg to move this amendment. The purpose is to add to the available penalties on contravention on indictment. The present penalty in the Bill is that a person found guilty of an offence under Clause 20—that is the misleading price indication—on indictment is liable to a fine.
From the debate on Amendments Nos. 42 and 43 earlier this afternoon it is apparent that the Government's intention is that it should be only the company or the proprietor who should be the offender in this type of offence. That is a matter which will be looked at again. However, the idea that it could be a one-man unincorporated business seems to be omitted. If one is proceeding on indictment it is all very well to fine Tesco an appropriate sum if that company should ever be in trouble. However, if it were a one-man business the fine for an indictable offence might be totally inappropriate because it was outwith the man's capabilities. The only appropriate penalty therefore might have to be imprisonment.
Imprisonment is spoken about in the offences under Clause 12(5), Clause 13(4) and Clause 14(5). These relate to all summary convictions. In Clause 38(5) there is a penalty on indictment carrying two years' imprisonment or a fine. It seems that the thinking behind subsection (5) is that we would be dealing only with limited companies, but of course we are not. We are dealing with individuals and potentially partnerships as well as limited companies, and the alternatives should be open. I beg to move.
Lord Denning: My Lords, I am rather against this amendment. It is not like fraud or fraudulent conversion. It is giving a misleading price indication. In a way it does not have quite the connotation of fraud or fraudulent conversion. On the whole I prefer to omit the reference to "imprisonment" and leave it at "a fine".
Lord Lucas of Chilworth: My Lords, I am grateful to the noble Lord, Lord Morton of Shuna, for his explanation of the amendment. Let me say at the outset that generally in deciding what the penalty should be for the offence of giving a misleading price indication we might perhaps look at the precedents. It is true that under the Trade Descriptions Act 1968 there is the possibility of imprisonment under Section 11, which deals with false price indications. However,
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it is important that we also take note of the fact, that despite the existence of this sanction, the courts have never made use of it.
The other legislation that this part of the Bill replaces is the Bargain Offers Order and the related offence in the Prices Act 1974. The option of imprisonment is not available under that Act. I think that experience and precedents point to the fact that imprisonment is not necessary. In addition, I doubt whether prison sentences are appropriate for absolute offences of this kind, certainly where it will be but rarely, as we discussed on an earlier amendment, that an individual trader (as distinct from a company) is prosecuted.
I should like to stop there and get the view of the noble Lord on my argument. I may possibly wish to ask leave of your Lordships to come back further, if it seems necessary.
Lord Morton of Shuna: My Lords, it surprises me that the noble Lord did not include in the previous Acts and precedents the Consumer Credit Act 1974, which carries a term of imprisonment of a year as an alternative. However, as I suspected, the Government are only considering limited companies as being liable to be prosecuted on indictment—not summarily but on indictment—and therefore on a serious offence.
I should have thought that it is far more likely that the very serious offences will be carried out by some unscrupulous sole trader and not by a limited company at all. The sole trader may have or may pretend to have no assets. What does one do with him? If he is worth prosecuting on indictment because of the seriousness of the offence but has no cash to pay a fine, what do we do? Do we admonish him? There seems to be a difficulty there.
It must he a serious offence. It must be something near to fraud. The noble and learned Lord, Lord Denning, would not have it. However, a misleading price indication, if it is so serious as to warrant prosecution on indictment, will be fairly close to fraud. That is one of the situations which may arise. I hope that the Minister will agree and will indicate that he will think again about it without commitment.
Lord Foot: My Lords, it strikes me as a little odd that we should have this proposal coming from the Opposition Front Bench, because whenever we discuss prisons—we were discussing them only recently in this House—there appears to be a general agreement upon two matters. The first is that a great number of people in prison today need not be in prison. Secondly, the fact that we in this country, as compared with most other countries of the EC at any rate, have a higher proportion of people in prison seems to be an argument for reducing rather than increasing the number of cases in which we think it necessary to send people to prison. I can only say that I hope that the noble Lord will not press the amendment because I do not think that he will get any assistance from us.
Lord Lucas of Chilworth: My Lords, with the leave of the House, I listened very carefully to what both noble Lords have had to say about this. I leave two thoughts with your Lordships. It is a general principle

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that the penalties available should reflect the seriousness of the offence concerned. The fact that the offender may not have any money does not necessarily warrant providing in statute a possible penalty which is out of keeping with the seriousness of the offence.
As my noble friend Lord Beaverbrook in our earlier discussions undertook to give further consideration to the position both of the individual and of the company, and as the noble Lord, Lord Morton of Shuna, invited me without commitment to think again in perhaps the wider term, I shall be quite happy to do so.
Lord Morton of Shuna: My Lords, I am obliged. In those circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 21 [Meaning of "misleading"]:
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No.48:
Page 19, line 9, leave out ("what") and insert ("the impression that").
The noble Lord said: My Lords, I beg to move Amendment No.48 which stands in my name and that of my noble friend Lord Gallacher. It may be for the convenience of the House if I also speak to Amendments Nos. 49 and 50.
These amendments deal with Clause 21 and are essentially drafting amendments. When your Lordships were in Committee on this Bill we all experienced considerable difficulty in understanding precisely what Clause 21 meant. As this clause which defines the meaning of "misleading" is vitally important, not only to this part of the Bill but also in the sense that it must be clearly understood by those who will be caught by it, I offer as a drafting improvement the changes that I have put forward in Amendments Nos. 48, 49 and 50.
Subsection (1) of the clause uses the expression "convey". The expression or the verb "convey" normally applies to an object or to an impression. There appears to be neither an object nor an impression in the subsection to which I referred. This has led me to misinterpret the purpose of the clause. I had to read it two or three times in Committee before I really understood what it was about. I believe that the words that I am proposing will make it much more comprehensible to the ordinary citizen who has to read it.
It could easily be that what I am putting forward has some defect and that the reason why the parliamentary draftsman chose the words that he did was that there was some excellent reason in law that he knew about and that I did not. I should be most grateful if the noble and learned Lord could tell us precisely what it is.
If that is the case, I hope that the noble and learned Lord will accept that this clause is extremely difficult to understand. We should welcome anything that can be done, either here or in another place, to clean up the English so that the ordinary man can understand what is the meaning of the word "misleading". I beg to move.
5.30 p.m.
Lord Denning: My Lords, I am against the amendment. The noble Lord may be familiar with the word "convey" in the context of conveying luggage and such things, but in law, especially the law of libel, we continually talk of the "meaning" which is conveyed by this or by that. We use the word "convey" in that context. The substitute words "the impression" would be too vague, and I prefer the present draft—"if what is conveyed", and so on. As a lawyer, I prefer that as being more accurate and certain than the words "the impression".
Lord Cameron of Lochbroom: My Lords, I am grateful to the noble Lord, Lord Williams of Elvel, and to the noble and learned Lord, Lord Denning. On this occasion I take sides with the noble and learned Lord, Lord Denning, who has much greater experience than I in interpreting Acts of Parliament.
I understand why the noble Lord brought forward the amendment but there would be problems arising from it. I take no point that, for instance, he has not sought to amend subsection (2) of this clause where precisely the same formulation occurs, because I understand this is to be a form of probing amendment. However, the intention is that the words:
"what is conveyed by the indication"
should clearly include any impression that the indication conveys. The amendment might be construed as narrowing the definition of what is misleading because "the impression" conveyed by price indication might be taken to mean its general impression. The words "what is conveyed" include both the general impression and any more particular inferences which may be made but which may conflict with the general impression.
The word "what" is a perfectly ordinary word in the English language. I suggest that here it is a more appropriate word to indicate what is intended to be conveyed within this subsection. For the reason that I have indicated, the effect of the substitution suggested by the noble Lord opposite would mean a narrowing of what is intended by the words in subsection (1) of Clause 21. For those reasons. I cannot accept the amendment.
Lord Williams of Elvel: My Lords, I am grateful to the noble and learned Lords, the Lord Advocate and Lord Denning. They illustrate precisely my difficulties. I understand that the noble and learned Lord, Lord Denning, finds this language extremely easy, but he has had long experience in the courts. The noble and learned Lord the Lord Advocate finds it equally easy because he has long experience as a lawyer. However, speaking as a non-lawyer, I find the language extremely difficult to understand, and because the Bill must be understood by non-lawyers as well as by lawyers, I hoped that the Government might be able to find some better wording.
In view of the response of the noble and learned Lord, I shall not press the amendment. However, I hope that he takes on board the difficulty that we laymen have in understanding the English in this particular part of the Bill. If the language can be

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improved in another place, it will be greatly welcomed. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 49 and 50 not moved.]
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No.51:
Page 19, line 18, after ("has") insert ("expressed").
The noble Lord said: My Lords, I beg to move amendment No.51 standing in my name and the name of the noble Lord, Lord Gallacher.
This is partly a probing and drafting amendment. I find it difficult to see how one shows that a person has no such expectation. No doubt the lawyers will tell me that this is perfectly normal practice, is easily understood in the courts, and that one can determine that somebody has no expectation without any problem whatever. However, as a layman I find it a difficult expression to handle. I should like to see an improvement in the wording which would establish something which the ordinary layman can understand.
I can understand the case where a person expressed an expectation. I can understand the case where a person expects or says that he expects. However, I cannot understand the case where a person has no such expectation. It may be that the noble and learned Lord will say that it is perfectly easy, but I come back to my major point; namely, that the wording in this Bill must be understood by the ordinary layman, and this ordinary layman finds it extremely complicated.
Lord Mottistone: My Lords, also speaking as a layman, I have no expectation that my noble and learned friend will agree to this amendment. It seems to me to be perfectly ordinary English and I do not understand what the noble Lord, Lord Williams of Elvel, is getting at.
Lord Cameron of Lochbroom: My Lords, I am grateful to my noble friend because he has put the matter far more shortly than I had intended. However, I do not intend any discourtesy to the noble Lord opposite because I shall now indicate in more detail what it is that I find difficult about his amendment.
Lord Williams of Elvel: My Lords, did the noble Lord, Lord Mottistone, in fact have no such expectation?
Lord Cameron of Lochbroom: My Lords, my noble friend had the expectation that I would respond to the amendment of the noble Lord, Lord Williams of Elvel, by telling him that it was an unnecessary addition to the subsection. The purpose of the paragraph is to deal with the kind of price indication which suggests to consumers that they should "buy now before prices rise", and there are various gradations of that. That is fine if the trader intends to increase prices; for example, at the end of a sale period. However, if the trader has no such intention, this provision will make it an offence to indicate an expectation that a price will be altered. If your Lordships agree to this amendment, that kind of behaviour would constitute an offence only if the person giving the indication could be construed as having expressed no such expectation.
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I think that the concern of the noble Lord opposite was: how does one prove that a person has no such expectations? Sometimes that may well be proved by expression, but it may be proved by means other than simple expression. There may be facts and circumstances from which it can be deduced that the person had no such expectation. I believe that the noble Lord will now understand that if one limits the method whereby it is proved that a person had no such expectation, by saying that it must be limited to a case where he has expressed himself as having no such expectation, one may limit the scope of this offence.
The amendment would largely defeat the purpose of the provision as it is sought to be amended because in many cases the trader will express no expectation at all. The consumer might reasonably be expected to infer that the price will be changed or maintained from the indication itself. Thus the amendment is, at best, unnecessary. At worst, it seriously impairs the efficacy of the provision in Clause 21(1)(d) at which it is directed. I hope that with that assistance—or perhaps I should say with that indication—the noble Lord opposite may feel able to withdraw the amendment.
Lord Williams of Elvel: My Lords, I am grateful to the noble and learned Lord for the indication, which I have no doubt was not misleading The noble Lord, Lord Mottistone, proved my point absolutely. He had no expectation. He expressed the fact that he had no expectation. That is how we knew that he had an expectation or did not have an expectation.
The second explanation that the noble and learned Lord has given is, to be honest, much more convincing. I accept that the amendment would limit the Bill rather than make it clearer. For that reason—I think that it is a genuine and sincere reason—I shall not press the amendment.
Amendment, by leave, withdrawn.
Clause 22 [Application to provision of services and facilities]:
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No.52:
Page 20, line 29, at end insert—
(", by a recognised bank, by an authorised building society, by a member of the Law Society of England and Wales or by a member of the Law Society of Scotland.").
The noble Lord said: My Lords, in moving this amendment, I think that it will be for the convenience of the House if I speak also to Amendments 53 and 54. These three amendments are by nature of being probing amendments. They result from a discussion that we had in Committee on Clause 22 stand part. Amendments Nos. 53 and 54 are simply consequential.
The discussion on clause stand part in Committee started to clarify the position of organisations such as banks, building societies, and other services which now clearly fall within the ambit of the Bill. On the Second Reading of the Banking Bill in your Lordships' House a few days ago, I said that I had expressed some surprise that the banks fell within the Bill and this did not seem to have been picked up by the clearing banks, which would be the ones most affected. I want to bring this particular matter to the attention of your Lordships again so that we can have firmly on the

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record exactly how and in what way banks, lawyers, accountants—people who render professional services of various sorts—are caught by the Bill.
It seems to me that a bank, when it offers a facility to a consumer, has now to offer that facility in such a manner and with such a clear indication of the interest rate, arrangement fee and all the method of calculating the interest rate, that it cannot at a later stage put in a separate arrangement fee, or an additional charge of some sort or other, or disbursement of some sort or other and charge it to the account, without being potentially guilty of a misleading price indication.
I believe I am right in thinking that the same is true of a building society. I believe I am right in thinking that if a solicitor decides that he wishes to charge £10,000 for a particular piece of business for a client, he has to specify clearly whether that is with VAT, without VAT, and all the other things. If he comes along afterwards and says, "Well, I am afraid it is not £10,000 any longer, it is £11,000", he may then be guilty of a misleading price indication.
The same is true of accountants doing private tax work who, again, unless they make a clear estimate either in quantity or in the method that they use, may well find themselves in difficulties. It will no longer be enough, if this Bill is enacted, for an accountant, for instance, to say, "Well, the senior partner is dealing with your account but quite a lot of it is done by the junior partner. The senior partner has a charge-out rate of this and the junior partner has a charge-out rate of that, and we don't quite know how it will end up in the end", unless that is clearly and carefully spelled out.
It therefore raises the estimate given by a body or person rendering a service to a much higher status than it has enjoyed to date. If you go to a solicitor, an accountant, or an architect for a professional service, or indeed to a bank, for a facility, you may get an estimate. But it frequently happens that the estimate is treated as guidance rather than a contractual and clear obligation on which the charge finally comes to rest.
I should be grateful if the noble Lord could clarify this point and perhaps enlarge on some of the examples that I have given to see whether my understanding of the Bill as it is drafted is right. I have introduced this amendment—and I wish to make this clear—not because I believe that it is an amendment that should commend itself to your Lordships. It is because, since we are on Report stage and cannot have a clause stand part debate, I am afraid that this is the method one has to use to raise these issues. I beg to move.
5.45 p.m.
Lord Denning: My Lords, I would be against this amendment. I turn to the definition of "business" in Clause 45.
"'business' includes a trade or profession and the activities of a professional or trade association or of a local authority or other public authority".
It is contemplated that, although they may not intend it, any of those bodies may give a misleading price indication as to their fees or charges, or whatever it may be. Having that wide definition of business in
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hand, I do not see why there should be any exemption for the professions, the doctors or accountants, or anyone. It is only if they give a misleading price indication. As I have said, all ought to be subject to the law and none exempted.
Lord Lucas of Chilworth: My Lords, I am grateful to the noble Lord Lord Williams, for carefully setting out his general concern. Of course I, too, appreciate that events move on and that he has to take advantage of procedures to raise these points. And, of course, I do not quarrel with him. I was glad to hear that he was treating this amendment as a probing amendment, because I was a little perplexed when I first saw it.
There are two issues here. The first is the point that the noble Lord made on 3rd March during the course of the Banking Bill. Here, I got the impression that a primary concern was to protect the confidentiality of banking information that is secret between bank and client. I have no quarrel with that general principle. I assure the noble Lord that nothing in Part III of this Bill can affect that.
The general offence does not require any person to give any particular information. Rather, the effect of the Bill is that if information about prices is given to the client, then that information must not be misleading. So there is no question here of compelling banks to reveal generally information that should be confidential between the bank and a particular client.
Certainly, the noble Lord was right when he told us what he thought the position was with regard to a bank, a building society, or a solicitor in the selling of a product—I think the noble Lord described it as a "facility"—or, for example, advice. It would be necessary, when asked "What is the price of this facility?", that all the relevant information that could be reasonably expected is put before the client. The client then makes up his mind whether he buys the product. If, at a later stage, additional charges are rendered, then certainly there may be a case if the provider of the facility has misled the client into the purchase of the product by not giving full details of what the ultimate cost might be. I think we have complete understanding there.
There is one other small point which the noble Lord raised, and that is the status of the estimate. There have always been difficulties as between estimates and quotations. Where an estimate starts by saying, for example, in the case that the noble Lord makes:
"A senior partner's charge out rate is … and a junior's rate is … so we estimate so many hours at so-and-so"—
that is an estimate. If, however, the supplier of the product says:
"For this facility I will require £x. My quote is £x",
if he subsequently alters that he may be guilty of having misled the supplier. Did the noble Lord wish to intervene here, as it may be convenient?
Lord Williams of Elvel: My Lords, do I understand the noble Lord to say that an estimate is not a price indication whereas a quotation is a price indication in the context of the Bill?
Lord Lucas of Chilworth: My Lords, the noble Lord might have understood that, but that was not the

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impression that I wished to convey. I was talking about the status of the estimate as against the quotation. It does not matter whether one calls it an estimate or a quotation. It depends entirely on how either is phrased. Normally an estimate is couched in terms that allow a different cost or a different charge to be attached. Normally a quotation is accepted as a firm offer to supply. It will certainly be necessary for the quotation, to use the noble Lord's term, to be of a higher status, because it will have to be very much more carefully put together so that there can be no misunderstanding and no misleading at the end of the day. That is the fundamental difference.
I noticed that the amendment includes not only a bank but,
"an authorised building society, by a member of the Law Society of England and Wales or by a member of the Law Society of Scotland".
Perhaps I ought for clarity to address myself to that while we are on this subsection. It may be best if I explained the general purpose of the exclusion for investment business undertaken by an authorised person or appointed representatives. I think we are all aware that under the Financial Services Act rules will be made that cover much of the same territory for investment business. Indeed the noble Lord, Lord Monson, in our Committee stage debates referred to unit trusts. But we did not think that it would be sensible to overlay that regime set up for investments with the provisions in this Bill. Accordingly we have made the exclusion because there is not such a similar regime for banking and building societies, nor for members of the Law Societies. They have therefore been excluded.
I hope I have made that clear and that, in the light of those explanations, the noble Lord will feel able to withdraw his amendment.
Lord Williams of Elvel: My Lords, I am most grateful to the noble Lord for his patience in explaining what I think is an extremely difficult area. I believe that it is fairly easy to determine what is the price of a physical good. If it is seen in a shop window with a price of 30p on it, then 30p is the price indication (or we assume that it is). It is rather more difficult in the case of a service. As Clause 22 deals mostly with services, I was anxious to have this debate to elicit exactly what in the government's view was meant by "misleading price indications" in a variety of services. The fact that we have even had this problem between "estimate" and "quotation" justifies my pursuing into Report stage the debate that was stated in Committee on clause stand part.
I shall not worry with the objection of the noble and learned Lord, Lord Denning. I do not think he quite heard what I said in introducing the amendment, that it was not intended to initiate a debate on this issue. I am grateful to the noble Lord. I shall read what he said in Hansard and if I have further difficulties I shall let him know. Perhaps he would be kind enough to drop me a line about it in the future.
Amendment, by leave, withdrawn.
[Amendments Nos. 53 and 54 not moved.]
Clause 23 [Application to provision of accommodation etc.]:
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No.55:
Page 20, line 43, leave out from ("facilities") to end of line 4 on page 21 and insert ("being available shall not include references to accommodation or facilities being available to be provided by means of the creation or disposal of an intent in land except where—

(a) the person who is to create or dispose of the interest will do so in the the course of any business of his; and

(b) the interest to be created or disposed of is a relevant interest in a new dwelling and is to be created or disposed of for the purpose of enabling that dwelling to be occupied as the residence, or one of the residences, of the person acquiring the interest.").

The noble and learned Lord said: My Lords, this amendment is intended to forestall a possible misinterpretation of this clause. As drafted it refers to:
"accommodation or facilities … provided by means of the creation or disposal of an interest in land".
It therefore could be argued that only price indications given after the interest in land is disposed of or created are caught. If a court were to take that view it would have the odd consequence of Part III being applied to new property only after it had actually been sold, and that is certainly not the Government's intention. The amendment puts the matter beyond doubt. I beg to move.
Lord Morton of Shuna: My Lords, in our view on this side of the House the amendment is an improvement. It is also an improvement by taking out the "main or only" residence, which was a matter which my noble friend Lord Gallacher raised at Committee stage. We are very glad to see that that has gone.
On Question, amendment agreed to.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No.56:
Page 21, line 13, after second ("building") insert ("in Great Britain")
The noble and learned Lord said: My Lords, with leave I shall also speak to Amendments Nos. 58, 59 and 60. This amendment follows one which was moved in Committee by the noble Lord, Lord Morton, and which he kindly withdrew on my undertaking to consider the matter. He indicated his sensibility as a Scots lawyer about this and was supported by my noble friend Lord Campbell of Alloway. It is a sensibility which I share and on further reflection I put forward this amendment. It is not quite the same as that which was moved by the noble Lord, but I hope he will accept it in that it achieves our joint objective. I beg to move.
Lord Morton of Shuna: My Lords, I am grateful to the noble and learned Lord. Certainly I accept it. I am not quarrelling about the wording.
On Question, amendment agreed to.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No.57:
Page 21, line 15, leave out ("person's main or only").
The noble and learned Lord said: My Lords, this amendment was foreshadowed by what the noble

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Lord said just now. It was a point raised by the noble Lord, Lord Gallacher, in Committee. I agree that the protection afforded by Part III should be extended to those buying second homes whether for use as holiday or retirement homes. I am very grateful to him for having raised the matter. This amendment will achieve the purpose he referred to. I beg to move.
Lord Gallacher: My Lords, I am grateful to the noble and learned Lord for this amendment which meets entirely the promise he made at Committee stage.
On Question, amendment agreed to.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendments Nos. 58 to 60:
Page 21, line 21, leave out (", in relation to a new dwelling,") and insert ("—
(a) in relation to a new dwelling in England and Wales,")
Page 21, line 25, leave out ("; or")
Page 21, line 26, leave out ("(c) in Scotland") and insert ("(b) in relation to a new dwelling in Scotland, means").
On Question, amendments agreed to.
Clause 24 [Defences]:
6 p.m.
Lord Gallacher Lord Gallacher moved Amendment No.61:
Page 21, leave out lines 32 to 37.
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Clause 25 [Code of practice]:
Lord Gallacher Lord Gallacher moved Amendment No.62:
Page 23, line 1, leave out subsection (3).
The noble Lord said: My Lords, I have also spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Clause 26 [Power to make regulations]:
Lord Lucas of Chilworth Lord Lucas of Chilworth moved Amendments Nos. 63 to 65:
Page 23, line 12, leave out ("in the course of any business of his").
Page 23, line 20, at end insert—
("(1A) The Secretary of State shall not make regulations by virtue of subsection (1)(a) above expect in relation to—

(a) indications given by persons in the course of business; and

(b) such indications given otherwise than in the course of business as—

(i) are given by or on behalf of persons by whom accommodation is provided to others by means of leases or licences; and

(ii) relate to goods, services or facilities supplied or provided to those others in connection with the provision of the accommodation.").

Page 24, line 2, at end insert—
("(3A) In this section "lease" includes a sub-lease and an agreement for a lease and a statutory tenancy (within the meaning of the Landlord and Tenant Act 1985 or the Rent (Scotland) Act 1984.").
The noble Lord said: My Lords, with permission, I should like to speak to these three amendments
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together, with the explanation that Amendment No.64 is consequential upon No.63 and Amendment No.65 introduces the definition necessary for No.64. In moving these amendments perhaps I may draw the attention of the noble Baroness, Lady Burton, to the remarks she made when my noble friend Lord Beaverbrook was discussing Amendment No.42 earlier. This refers essentially to the point she then raised.
I think your Lordships will be aware that it is the Government's intention to make regulations requiring landlords who resell gas and electricity to give their tenants an itemised bill stating the following: the statutory maximum unit price; the unit price actually charged by the landlord; and the number of units consumed. That intention was first announced to your Lordships by my noble friend Lord Gray of Contin on 5th December 1985. I confirmed this most recently to your Lordships when we were in Committee on 29th January. These regulations will enable tenants who are overcharged for gas and electricity to see that they have been overcharged and they will assist the tenants in taking action to recover the overpayment.
The purpose of Amendment No.63 is to ensure that the Secretary of State will have the necessary power to make regulations binding on all landlords who resell gas and electricity. As drafted, requirements in regulations made under Clause 26 can apply only to persons acting in the course of a business. In the case of small landlords, letting perhaps a single property or a flat, or rooms in a property they occupy themselves, it is not certain that the courts would hold them to be in business as landlords. The amendment therefore enables regulations to apply to landlords whether or not they are strictly in business as such.
The power is extended only in respect of the provision of accommodation or the incidental provision of goods, services or facilities. Of course those landlords who would be brought within the scope of the regulation-making power by this amendment are small landlords. Your Lordships will be well aware that it is not government policy to impose additional burdens unless there is a clear need. In this case I believe that it is necessary to impose requirements on landlords in order to protect tenants from an abuse practised by some landlords. Having accepted that, it is then inevitable that the smaller landlord will fall in with any provisions that are made.
Lastly, the amendment is important in order to ensure that the Secretary of State has the power, if necessary, to give effect to a policy which has been widely welcomed in your Lordships' House and indeed elsewhere. For those reasons, I commend these three amendments. I beg to move.
Lord Gallacher: My Lords, we welcome all three of these amendments. They have been promised, and I think they are fully justified. Although they may apply only to a minority of landlords, undoubtedly this is a cause of severe hardship. In consequence we fully support the amendments. The noble Baroness, Lady Burton of Coventry, who has made this cause especially her own, will doubtless wish to say something more about the subject.
Baroness Burton of Coventry: My Lords, I should like to thank the Minister for what he has just said. I think it will be very reassuring to the organisations I have mentioned.
On Question, amendments agreed to.
Clause 28 [Test purchases]:
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No.66:
Page 25, line 9, leave out from beginning to first ("by") in line 13 and insert ("be carried out").
The noble Lord said: My Lords, I beg to move the amendment standing in my name on the Marshalled List. I am sure the Minister will understand that this amendment is put forward with the understanding and sympathy of the Association of Metropolitan Authorities and the Association of County Councils, who seek to represent the views of all their constituent members.
I know this is not the first time that we have, as it were, cantered over this course. As amended, Clause 28(3) would read as follows:
"may by regulations provide that any test of goods purchased under this section by or on behalf of an enforcement authority shall—
(a) be carried out by the authority in a manner prescribed by the regulations:".
That would be the effect of the amendment if the Government felt inclined to accept it.
What concerns the local authorities—and I believe the noble and learned Lord the Lord Advocate may possibly seek to make some helpful comments—is the lack of flexibility which the present wording imposes upon them. The noble and learned Lord will understand that from the very beginning the authorities have taken a jaundiced view of the Government's assertion in the financial memorandum that in effect there will be no further financial burden falling upon them in carrying out their responsibilities under the Bill.
The Government can either hope that the authorities will prosecute with vigour all their responsibilities or, alternatively, accept that if an authority has to keep within financial guidelines of some sort it will of necessity have to consider very carefully whether it is as wholehearted as no doubt the Government would want it to be in carrying out its responsibilities.
The dilemma of the authorities arises when it comes to the question of flexibility in the arrangements prescribing that the goods which will need to be tested must be submitted to government-approved test centres. The authorities are telling me—and the Government may tell me they are wrong—that there will be occasions when it is possible for them, in the exercise of their duties in getting the best value for money, to find that they can best carry out their responsibilities by using test centres other than government test centres.
In effect, what the authorities are saying to the Government is, "Please understand that if you want us to do what is in the Bill you must give us some flexibility if we find that we can do what is required more cheaply than going through a government agency". I therefore move the amendment, hoping
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that the Government can say something helpful to the authorities who have asked me to raise these points on their behalf. I beg to move.
Lord Gallacher: My Lords, this amendment moved by my noble friend Lord Graham of Edmonton seems to me to be modest in scope and sincere in intent. If I understand him aright, both the AMA and the ACC believe that not only would it give them a degree of flexibility but that it could have the added incentive that it might save them money. Whether it will save ratepayers' money or Treasury money I would not at this point care to guess, because the more I hear of local government finance the more happy I am that I have only ecus and European finance to worry about; and they are quite enough to be going on with at present. Nevertheless, I think the Government could perhaps make a reasonable and positive response to this amendment, and I sincerely hope it will be possible for them to do so.
Lord Beaverbrook: My Lords, this amendment would remove what in my view is an essential power for the Secretary of State to prescribe by regulation that particular tests should be carried out only by specified test houses. This is not by any means a new power. It was available under both the Consumer Protection Act 1961 and the Consumer Safety Act 1978.
It is important to appreciate the purpose of the power in Clause 28(3). It is designed for a very specific purpose; that is, to restrict the choice of test house where the test concerned is of such a technical nature that it is necessary to require the appointment of a particular testing laboratory or laboratories to carry out the test under strictly controlled conditions. This may be necessary, for example, in order to achieve national uniformity in the quality of technical evidence.
The effect of the amendment would be that no safety regulations would be able to establish greater certainty in the determination of what goods lie on each side of the crucial dividing line between legality and illegality than that which is afforded by specifying the test method to be followed. But some of these tests—for example, those relating to fire resistance and electrical safety—require expensive, specialised equipment and experienced, qualified people to operate it. This equipment and these people are only to be found in a limited number of test houses, and it is therefore prudent in these cases to require that the tests be carried out only by establishments specified by the Secretary of State.
If this were not stipulated—because it would be impossible if this amendment were adopted for such a stipulation to be included in safety regulations—the enforcement authorities would be inclined to have the tests carried out by whatever laboratory or consultant or local technical college or similar body offered to carry them out on the most attractive terms. But the effect of that would be that the test results would be open to challenge in court, with expert witnesses disputing the issue of whether the specified test method had in fact been followed.
In short, the absence of any restricted list of competent test houses would in some cases lead to

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uncertainty, dispute and wasted effort and resources. It is far better for the legality or illegality of these products to be established beyond doubt, and the only way of avoiding such doubt is to require that the highly technical tests involved be carried out only by those establishments, relatively few in numbers, which are competent to do so and are recognised by all experts in the field as being the only such establishments.
For these reasons, I cannot accept this amendment. But I can, assure the noble Lord that it has been, and will continue to be, our policy to use this power sparingly and to make every effort to mitigate any possible restrictive effect by approving as many test houses or laboratories as are technically competent to carry out particular tests. I hope that with that assurance the noble Lord might be prepared to withdraw his amendment.
Lord Graham of Edmonton: My Lords, I should like to start my run with these three amendments by giving this one to the Minister. I am certainly prepared to withdraw the amendment. I take some comfort from the fact that the Minister said that where the Secretary of State is satisfied that there is a testing house which is competently staffed and has adequate equipment, it will be authorised to test. There are some large municipal authorities which will be able to satisfy the Government that it is possible to provide competence and expertise.
Before I withdraw the amendment, I should like the Minister to say that there is no suggestion whatsoever, as has sometimes been whispered to me, that the purpose here is to put this obligation wholly into the private sector; that is, non-authority testing facilities. If the Minister is satisfied that the tests can be carried out in such a way as to obviate any question of legality, through the competence and experience of the people who carry them out, and if the tests are carried out in accordance with a test procedure which the government lay down, then I very much hope that the Minister will say that in those circumstances it will be possible to allow some authorities—they need not be large—to carry out the testing, as it were, in-house. I should be grateful if the Minister would comment on that point.
Lord Beaverbrook: My Lords, with the leave of the House, I have already said that we will approve as many testing houses and laboratories as are technically competent to carry out particular tests, and I think that would be without any other restriction. Indeed, it is part of the assurance that I have given to the noble Lord already.
Lord Graham of Edmonton: My Lords, with the leave of the House, will the Minister say that if a testing house is within the ambit of a local authority, that will not prevent it being approved?
Lord Beaverbrook: My Lords, again with the leave of the House, I do not want to be drawn into saying who may or may not be competent to do this sort of testing, but I think that in what I have said I have excluded no one at all.
Lord Graham of Edmonton: My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 31 [Power of customs officer to detain goods]:
6.15 p.m.
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No.67:
Page 28, line 9, leave out ("forty-eight hours") and insert ("seven days").
The noble Lord said: My Lords, this is not a completely fresh issue and the matter has been raised earlier. What I am seeking to do is to delete the words "forty-eight hours" and insert "seven days". We are trying to be reasonable and sensible, not merely to the trader and the consumer but to the authority. What we have to satisfy ourselves about very seriously is whether the very limited period of 48 hours is adequate for an authority to fulfil its obligations.
When the Consumer Safety (Amendment) Act was passing through Parliament, it was amended by the Government so that the detention period for goods suspected of being unsafe was reduced from 72 hours to 48 hours, though the Association of Metropolitan Authorities tells me that it needed even longer than 72 hours.
I should like to plead in evidence the scenario in which this amendment would operate. Weights and measures authorities are obliged in respect of certain goods—for example, electrical goods under the electrical safety regulations—to use only certain specialised testing houses, and the Minister in replying on the earlier amendment dealt particularly with the importance of getting the right testing house, which may be many miles away from the area of action. I am told that the British Standards Institution's testing house is at Hemel Hempstead in Hertfordshire and that the appliance testing laboratories are at Leatherhead in Surrey.
I am told by the AMA that the seized goods have to be conveyed to the appropriate testing house as soon as possible, and that they will sometimes have to be sent by expensive express delivery services. Perhaps this is not such a difficult scenario for home counties weights and measures authorities, but it will not be easy for distant authorities in the North of Scotland or in Cornwall.
The nightdress safety regulations require nightdresses to be conditioned before they are tested. They have to be tested at a set temperature and humidity and they take at least five days to be so acclimatised. The British Standards Institution lays down a standard test procedure. Bicycles take three days to be tested at the BSI's Hemel Hempstead testing house. Sometimes a number of goods of the same type have to be tested to ensure that a problem or a fault is not an isolated one. It can take longer to test a quantity of the same type of goods rather than just one.
The timing of the discovery of the suspect goods is a relevant factor which must be taken into account. The appropriate department of Customs and Excise does not work at weekends—that is what I am told by the AMA—but if suspect goods are found on a Friday

1183
the trading standards officer may not be able to collect them on that day. He may not be able to do so until the following Monday morning. Even if the trading standards officer is able to collect the goods on a Friday he may not be able to deliver them to the testing house until the following Monday. I am sure the Minister will be as interested as I was to learn that testing houses do not normally work at weekends. Therefore, 48 hours will have passed since the goods were seized during which the goods will have had no opportunity of being tested.
The AMA suggests the following scenario. The goods may be seized on a Monday morning at nine o'clock. At 11 o'clock the trading standards officer arrives at the port. From 11 to 3.30 on the same day the trading standards officer decides to act. Perhaps he goes back to his office, contacts the testing house and arranges for delivery of the goods to the testing house. At half-past three on the same day (he has worked fast) the goods arrive at the testing house, but the testing house staff are busy and cannot commence testing until the following day.
I do not believe that the Minister would consider that scenario to be far-fetched; he will understand that the testing houses are not very prolific and they could very well be busy. Therefore they may not start until nine o'clock the following morning. Then at two o'clock in the afternoon within half a day, the testing house report is received by the trading standards officer. But against the samples I have given of nightdresses and bicycles that could not happen. If analytical work is involved the testing would take a full day. Similarly, complex electrical goods such as hairdriers, kettles and irons take a longer period.
I have taken the House through a scenario which indicates not only that it could be very difficult but that it could be impossible to comply with the law at 48 hours. I am asking the Minister to tell me whether that scenario is wrong. Life as lived by authorities and trading standards officers is different from the one which his brief and those who work in Whitehall have told him it is. I am telling him how it is at the sharp end. He can tell me how it is seen by ministerial colleagues and by Whitehall. I beg to move.
Lord Gallacher: My Lords, this amendment was moved at the Committee stage of the Bill and it elicited an unsympathetic response from the Government. At that time I think we would have been gratified if the government spokesman had indicated even a willingness to consider restoring the period to one of 72 hours, which was deleted from the Consumer Safety (Amendment) Bill at its Third Reading stage in the House of Commons. The local authority associations were disconcerted by that change coming so late in the passage of a Bill. Consequently, as my noble friend Lord Graham of Edmonton has pointed out, they are equally disconcerted to find that the 48-hour period now enshrined in the Consumer Safety (Amendment) Act is being written into this Bill.
My noble friend made a convincing case in support of the amendment which he is asking to be made to this Bill. Given the distance factor, in many cases 48 hours is a completely inadequate period. In addition, I gather that the degree of manning at ports by
1184
Customs and Excise officers varies, and that, whereas one can expect a full and comprehensive 24-hour customs service at ports such as Dover, that situation may not apply all over the country. It is more likely to to apply at those places which may be some distance from the approved test centres, as my noble friend said.
All in all, the view on this side of the House is that an impossible burden in terms of complying with the law may be being imposed upon local authorities. Earlier today during Question Time we heard heart-rending pleas from all corners of the House about what non-compliance with the law really means. It would be unwise if at this stage of the Bill we were deliberately and with our eyes wide open to attempt to enact a provision which we knew from the outset would not be enforceable in many cases.
Another point which arises and on which I would seek advice from the Minister when he replies is that at present the categories of goods mentioned by my noble friend are electrical, nightdresses and bicycles, but given the great emphasis on the consumer safety factor where goods are concerned, is it likely that the number of goods liable to be seized on safety grounds will be increased? Will the categories be widened or will they remain at the three which were mentioned by my noble friend?
I think there is a case for some easement here, if not to the full extent asked for, then certainly to the period of 72 hours which was deleted from the Consumer Safety (Amendment) Bill on Third Reading in another place. For that reason, I support my noble friend in the amendment that he has moved.
Lord Lucas of Chilworth: My Lords, I am grateful to the noble Lord, Lord Graham, for his explanation, as I am grateful to the noble Lord, Lord Gallacher, who reminded us that we discussed this quite shortly during Committee stage. I am sorry if he found me unsympathetic on that occasion, but I have to tell your Lordships that I have nothing to add to what I then said, so perhaps my lack of sympathy has extended over the weeks, for which I apologise.
Perhaps I should go over the ground again so that your Lordships may be quite clear about what we are talking, because the scenario which the noble Lord, Graham, drew is not true. That is not what the power is about.
Let me start by saying that the amendment would increase the period for which goods may be detained at ports without cause to suspect they are unsafe and without compensation in the event that the goods are subsequently found to be safe from two days to seven. We think that is a considerable increase. It certainly seems to me to be quite unreasonable and unnecessary. I recall that we went over this ground basically when we were discussing the Consumer Safety (Amendment) Act 1986.
In considering what limits should be imposed on this potentially sweeping power, it is important to look at the purpose of the detention provision. That is limited. The power that we have here, 48 hours, is additional to the much wider powers of enforcement authorities to seize or suspend the supply of goods suspected of being unsafe for up to six months. The

1185
detention provision in this clause is not intended to be sufficient to enable enforcement authorities to subject goods to detailed scientific tests. It is there merely to allow them to make preliminary inquiries about imports, to arrive on the scene and, if appropriate, to exercise their powers to seize or suspend goods. Perhaps I have not explained this as well as I should have done. but perhaps the AMA in providing the noble Lord, Lord Graham, with the information he has supplied to us gave the wrong impression.
It is not a question of collecting goods on a Friday and sending them somewhere or testing them. It is a question of making a preliminary assessment. It is for the Customs and Excise officer to hold goods for two days while a trading standards officer makes that preliminary assessment. That preliminary assessment will require him to decide whether or not he thinks the goods are unsafe. If he does, he can then exercise his own powers to seize or detain the goods for up to six months. Then tests will come into play and compensation issues will be considered.
The goods which can be seized or detained in this way, as defined in Part II, are any consumer goods. That means not simply the two or three goods which have been mentioned but any goods which the Customs, of their own volition or perhaps through the notification of an enforcement officer, may believe to be unsafe. Such goods would therefore be held for up to 48 hours while the preliminary assessment and view are formed by the trading standards officer.
There is one other factor which I mentioned in Committee. To allow goods to be detained for a longer period would, in our view, put the Bill at risk of challenge from the European Community under Article 30 of the Treaty of Rome. It is not easy to establish what might or might not be acceptable to the European Court. But your Lordships should bear in mind that any measures taken to impede trade on the grounds of health and safety, which is permitted under Article 36 of the Treaty, must be strictly proportionate to the health and safety risk in question. Everything would depend on the particular facts of any case.
However, it is our view, based on experience of past Community intervention and given the existence of the other powers available to enforcement officers under this Bill, that an extension of this particular provision to seven days could well be successfully challenged in our own courts on the basis of noncompliance with Article 30 of the Treaty of Rome. It is for these reasons, and particularly because I think that the noble Lord, Lord Graham, has misunderstood the purpose of the 48-hour provision, that I—
6.30 p.m.
Lord Ezra: My Lords, may I ask the noble Lord what he would do about weekends? If goods were seized for the preliminary view late on a Friday or early on a Saturday, as might arise, will he agree that the weekend problem creates difficulties?
Lord Lucas of Chilworth: My Lords, I have always felt that the problems of one group of people are the opportunities of other groups. I do not see this as a problem in that there are very few movements of goods out of an unmanned dock, for example. I do not
1186
believe that it is beyond the capability of the Customs and Excise, in conjunction with a trading standards officer, to have knowledge of goods which are coming in and are likely to be suspect, and to have someone on call in that event. I can see that it may cause some stretching of coverage. However, I do not believe that it will be a problem.
I was about to invite the noble Lord, Lord Graham, for the reasons which I have outlined, to withdraw the amendment.
Lord Graham of Edmonton: My Lords, I appreciate the care which the Minister has taken in explaining that this amendment is not necessary. However, the more he used certain phrases, which I carefully wrote down, the more worried I became. In effect, the Minister is saying that when goods come into the country—and he reminded the House that we are talking about any consumer goods—then all officers at a port are competent to make what he termed a preliminary assessment and to form a judgment. If the obligation is to be laid upon those people to come to a view within 48 hours, I can see a great many of them deciding, if they have an option—
Lord Lucas of Chilworth: My Lords, if the noble Lord will forgive me, perhaps if he is going to quote me he will use the full quote. I stated that the officer would take a preliminary view as to whether he should exercise his other powers, the other powers being seizure and detention for up to six months. That is what I said.
Lord Graham of Edmonton: My Lords, I accept completely, immediately and unreservedly that that is what the noble Lord the Minister said. But if there is an onus on the Customs officers for the consequences of exercising their powers by allowing goods to go out and subsequently finding it proved that the goods were dangerous and that if they had not been allowed to go out they would have been properly tested and found dangerous, then that is contrary to the interests of the consumer.
The Minister glossed over—I do not use that phrase unkindly—the problem of the weekend. Those are the kinds of problems which are brought to us by the people who have to be responsible for decisions. The Minister must know that another part of the Bill lays a heavy responsibility for the payment of compensation, if in the seizure of goods it is held to be the case that the authority has not acted reasonably. In other words, all the authority is saying is, "We will do what you want to protect the consumer. But give us a bit more time".
Two options have been given to the Minister. The first is to change the 48-hour time limit to 72 hours. Secondly, if I understand the noble Lord, Lord Ezra, he is suggesting that we strike the weekend out of the time scale. The Minister has had an opportunity to say something kind and helpful; he has declined to do that. I wish to say something unkind and unhelpful to him: I intend to divide the House.
6.37 p.m.
On Question, Whether the said amendment (No.67) shall be agreed to?
Their Lordships divided: Contents, 40; Not-Contents, 82.

DIVISION No.1

CONTENTS

Airedale, L.

Irving of Dartford, L.

Ardwick, L.

Jeger, B.

Attlee, E.

Jenkins of Putney, L.

Avebury, L.

Kilmarnock, L.

Aylestone, L.

Lockwood, B.

Brockway, L.

McGregor of Durris, L.

Bruce of Donington, L.

Milner of Leeds, L.

Burton of Coventry, B.

Morton of Shuna, L.

Cledwyn of Penrhos, L.

Nicol, B.

David, B.

Ogmore, L.

Dean of Beswick, L.

Pitt of Hampstead, L.

Diamond, L.

Ponsonby of Shulbrede, L.[Teller.]

Elwyn-Jones, L.

Ewart-Biggs, B.

Russell of Liverpool, L.

Ezra, L.

Shackleton, L.

Gallacher, L.

Stoddart of Swindon, L.

Graham of Edmonton, L.[Teller.]

Tordoff, L.

Whaddon, L.

Hatch of Lusby, L.

White, B.

Hooson, L.

Williams of Elvel, L.

Hunt, L.

Ypres, E.

NOT-CONTENTS

Ailesbury, M.

Hunter of Newington, L.

Bauer, L.

Hylton-Foster, B.

Beaverbrook, L.

Kinnoull, E.

Beloff, L.

Lane-Fox, B.

Belstead, L.

Lauderdale, E.

Blyth, L.

Lawrence, L.

Boyd-Carpenter, L.

Layton, L.

Brabazon of Tara, L.

Lindsey and Abingdon, E.

Broadbridge, L.

Long, V.

Broughham and Vaux, L.

Lucas of Chilworth, L.

Buckmaster, V.

Malmesbury, E.

Butterworth, L.

Margadale, L.

Caithness, E.

Marley, L.

Cameron of Lochbroom, L.

Marshall of Leeds, L.

Campbell of Croy, L.

Merrivale, L.

Carnock, L.

Mersey, V.

Coleraine, L.

Milverton, L.

Colwyn, L.

Molson, L.

Constantine of Stanmore, L.

Morris, L.

Cork and Orrery, E.

Mottistone, L.

Craigavon, V.

Mountevans, L.

Craigmyle, L.

Munster, E.

Davidson, V. [Teller.]

Napier and Ettrick, L.

Denham, L. [Teller.]

Nugent of Guildford, L.

Denning, L.

Orr-Ewing, L.

Dilhorne, V.

Pender, L.

Dundee, E.

Penrhyn, L.

Ellenborough, L.

Pike, B.

Elliot of Harwood, B.

Portland, D.

Elliott of Morpeth, L.

Skelmersdale, L.

Elton, L.

Stockton, E.

Fraser of Kilmorack, L.

Strathclyde, L.

Glenarthur, L.

Strathcona and Mount Royal,

Gray, L.

L.

Grimthorpe, L.

Sudeley, L.

Haig, E.

Swinfen, L.

Hailsham of Saint

Trefgarne, L.

Marylebone, L.

Trumpington, B.

Hemphill, L.

Vaux of Harrowden, L.

Hesketh, L.

Ward of Witley, V.

Home of the Hirsel, L.

Whitelaw, V.

Hooper, B.

Young of Graffham, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.45 p.m.
Clause 35 [Compensation for seizure and detention]:
[Amendment No.68 not moved.]
Schedule 1 [Limitation of actions under Part I]:
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No.69:
Page 40, line 16, after ("action") insert ("and shall do so").
The noble and learned Lord said: My Lords, this is a small drafting amendment which deals with the provision which we are introducing into the Limitation Act 1980 to give effect to the 10-year cutoff period under Article 11 of the directive. I beg to move.
Lord Morton of Shuna: My Lords, there is a variety of differing amendments to Schedule 1 which almost wholly meet the criticisms I endeavoured to make in Committee. It may be convenient to your Lordships to know that from this side of the House there will be no opposition to any of these amendments and it may enable the noble and learned Lord to move rather faster than he might otherwise have done.
On Question, amendment agreed to.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No.70:
Page 41, line 26, after ("to") insert ("the facts and circumstances alleged to constitute").
The noble and learned Lord said: My Lords, with the leave of the House, perhaps I may speak also to Amendment No.71. I am grateful to the noble Lord for his indication of support for all the amendments to Schedule 1. These two amendments were inspired by an amendment of the noble Lord in Committee which drew attention to a problem in relation to the corresponding provisions in Scottish law. The amendment was to the effect that for the purposes concerned, knowledge that any liability which was enforceable under Clause 2 was or was not as a matter of law actionable should be irrelevant. On consideration it was felt that this matter also arose in relation to England and Wales, and these two amendments are the consequence of that consideration. I beg to move.
On Question, amendment agreed to.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No.71:
Page 41, line 28, leave out from ("determining") to ("action") in line 30 and insert ("the date on which a person first had such knowledge there shall be disregarded both the extent (if any) of that person's knowledge on any date of whether particular facts or circumstances would or would not, as a matter of law, constitute a defect and, in a case relating to loss of or damage to property, any knowledge which that person had on a date on which he had no right or).
On Question, amendment agreed to.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No.72:
Page 42, line 34, after ("obligation") insert ("arising from liability").
The noble and learned Lord said: My Lords, perhaps I may also speak to Amendments Nos. 77, 88

1189
and 98. These are drafting amendments and tend to clarify references made to the obligation under Clause 2 of the Bill in the amendments made to the Prescription and Limitation (Scotland) Act 1973. I beg to move.
The Deputy Speaker (Lord Hayter): My Lords, in view of what has just been said, is the noble and learned Lord prepared to move Amendments Nos. 72 to 84 en bloc?
Lord Cameron of Lochbroom: My Lords, as there are amendments on rather technical matters I should explain these briefly for the record. For that purpose, I move only Amendment No.72 at the moment. I beg to move.
On Question, amendment agreed to.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No.73:
Page 43, line 2, leave out ("under") and insert ("or by the submission of a claim under section 22 or 48 of").
The noble and learned Lord said: My Lords, perhaps I may speak also to Amendments Nos. 74 and 75. The amendments have the general effect of correcting omissions in what is meant by a relevant claim in Scotland which can interrupt the 10-year period prescription for product liability under Clause 2 of the Bill. I beg to move.
On Question, amendment agreed to.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No.74:
Page 43, line 3, at end insert—
("(c) by the presentation of, or the concurring in, a petition for the winding up of a company or by the submission of a claim in a liquidation in accordance with the rules made under section 41 of the Insolvency Act 1986;").
On Question, amendment agreed to.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No.75:
Page 43, line 5, at end insert—
("(3) Where a relevant claim is made in an arbitration, and the nature of the claim has been stated in a preliminary notice (within the meaning of section 4(4) of this Act) relating to that arbitration, the date when the notice is served shall be taken for those purposes to be the date of the making of the claim.").
On Question, amendment agreed to.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No.76:
Page 43, line 7, leave out ("to the extent to which it seeks").
The noble and learned Lord said: My Lords, perhaps I may also speak to Amendments Nos. 78 and 87. These amendments are the first of a series of amendments which are intended to bring the provisions of the Bill inserting new Sections 22B and 22C into the Prescription and Limitation (Scotland) Act 1973 into line with Sections 17 and 18 of that Act, as amended. They make it clear that only the limitation period imposed by the proposed Section 22C of the 1973 Act applies to an action for damages under Clause 2 of the Bill which arises from the death of an injured person. I beg to move.
On Question, amendment agreed to.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment Nos. 77 and 78:
Page 43, line 8, after ("obligation") insert ("arising from liability")
Page 43, line 10, leave out (", and to the extent that,")
The noble and learned Lord said: My Lords, I have already spoken to Amendments Nos. 77 and 78. I beg to move.
On Question, amendments agreed to.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No.79:
Page 43, line 14, after first ("the") insert ("earliest")
The noble and learned Lord said: My Lords, in moving this amendment, I speak also to Amendments Nos. 80 and 89. The purpose of these amendments is to ensure that the three-year limitation period within which an action for damages for product liability under Clause 2 of the Bill must be brought takes into account any period during which the damage caused by the defective product and other relevant facts were discoverable by any person other than the pursuer who could have brought that action. I beg to move.
On Question, amendment agreed to.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No.80:
Page 43, line 14, at end insert ("(or a person who could at an earlier date have brought)")
On Question, amendment agreed to.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No.81:
Page 43, line 15, leave out ("should reasonably have been") and insert ("on which, in the opinion of the court, it was reasonably practicable for him to become")
The noble and learned Lord said: My Lords, in speaking to this amendment, I also beg leave to speak to Amendments Nos. 82, 83, 84, 90 and 91. These amendments are all intended to make the knowledge which commences the running of the three-year limitation period for the purposes of actions under Clause 2 of the Bill similar to that which commences the running of the same period for the purposes of actions for negligence under Sections 17 and 18 of the Prescription and Limitation (Scotland) Act 1973. I beg to move.
On Question, amendment agreed to.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendments Nos. 82 to 84:
Page 43, leave out line 18.
Page 43, line 20, at end insert—
("(cc) that the damage was sufficiently serious to justify the pursuer (or other person referred to in subsection (2) above) in bringing an action to which this section applies on the assumption that the defencer did not dispute liability and was able to satisfy a decree:")
Page 43, line 21, leave out ("the identity of the") and insert ("that the defender was a ")
On Question, amendments agreed to.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No.85:
Page 43, line 26, at end insert—
("(5) The facts mentioned in subsection (3) above do not include knowledge of whether particular facts and circumstances would or would not, as a matter of law, result in liability for damage under the said section 2.

1191
(6) Where a person would be entitled, but for this section, to bring an action for reparation other than one in which the damages claimed are confined to damages for loss of or damage to property, the court may, if it seems to it equitable to do so, allow him to bring the action notwithstanding this section.")
The noble and learned Lord said: My Lords, in speaking to this amendment it might be convenient to your Lordships if I anticipate what the noble Lord, Lord Airedale, might say on Amendment No.86, which is an amendment to this amendment. At the same time perhaps I may also speak to Amendments Nos. 95 and 96. The amendments put down here are intended to make equivalent provision in relation to the limitation periods applying to actions under Clause 2 of the Bill as applied in relation to actions for negligence under Part II of the Prescriptions and Limitation (Scotland) Act 1973.
I should say that so far as concerns Amendment No.86, while I take the point which the noble Lord, Lord Airedale, would no doubt have made in substituting the words "thinks tit" for the words "seems to it equitable to do so" in relation to what a court may do, the reason why these words are in the amendment is because the existing section of the 1973 Act, as amended, included these words, giving the court power to dispense with the time limit in certain cases. It would perhaps be unfortunate if a different form of words were to be used for the exercise of the same power by the court in another section, as added by this amendment.
For those reasons, I would have to tell the noble Lord, Lord Airedale, that if he were to move his amendment I should be resisting it. I beg to move.
The Deputy Speaker: My Lords, Amendment No.86 is an amendment to Amendment No.85.
Lord Airedale: My Lords, in view of what the noble and learned Lord the Lord Advocate has just said, I quite accept that for the sake of consistency it is not worthwhile my moving this amendment. I shall therefore not move Amendment No.86.
[Amendment No.86 not moved.]
On Question, amendment agreed to.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendments Nos. 87 to 89:
Page 43. line 27, leave out ("to the extent to which it seeks").
Page 43, line 28, after ("obligation") insert ("arising from liability").
Page 43, line 37, after ("make") insert ("(or a person who could at an earlier date have made)").
The noble and learned Lord said: My Lords, with leave, I should like to move Amendments Nos. 87 to 89, to which I have already spoken.
On Question, amendments agreed to.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendments Nos. 90 and 91:
Page 43, line 38, leave out ("should reasonably have been") and insert ("on which, in the opinion of the court, it was reasonably practicable for him in all the circumstances to become").
Page 43, line 42, leave out ("of the identify of the") and insert ("that the defender was a").
On Question, amendments agreed to.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendments Nos. 92 to 94:
Page 43, line 49, leave out ("this section") and insert ("section 22B of this Act").
Page 43, line 50. leave out ("above") and insert ("of that section").
Page 43, line 52, leave out ("under the said section 2") and insert ("to which this section applies").
The noble and learned Lord said: My Lords, these amendments are to correct certain drafting errors which have been noticed in the proposed Section 22C(4) of the 1973 Act. I beg to move.
On Question, amendments agreed to.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendments Nos. 95 and 96:
Page 43, line 53, at end insert—
("(4A) Where a person would be entitled, but for this section, to bring an action for reparation other than one in which the damages claimed are confined to damages for loss of or damage to property, the court may, if it seems to it equitable to do so, allow him to bring the action notwithstanding this section.").
Page 44, line 2, at end insert—
("(6) For the purposes of subsection (2)(b) above there shall be disregarded knowledge of whether particular facts and circumstances would or would not, as a matter of law, result in liability for damage under the said section 2.").
The noble and learned Lord said: My Lords, I have already spoken to Amendments Nos. 95 and 96. I beg to move.
On Question, amendments agreed to.
Lord Cameron of Lochbroom moved Lord Cameron of Lochbroom moved Amendment No.97:
Page 44, line 16. leave out ("gg") and insert ("ggg").
The noble and learned Lord said: My Lords, this is a drafting amendment which was moved by the noble Lord opposite in Committee. I think then, without any intention of disrespect, I referred to this as "Lord Morton's nag". We accept that it is necessary and I beg to move.
On Question, amendment agreed to.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No.98:
Page 44, line 16, after ("obligation") insert ("arising from liability")
The noble and learned Lord said: My Lords, I beg to move this amendment to which I have already spoken.
On Question. amendment agreed to.
Schedule 3 [Amendments of Part I of the Health and Safety at Work etc. Act 1974]:
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No.99:
Page 51. line 14, leave out ("may") and insert ("shall")
The noble and learned Lord said: My Lords, Schedule 3 amends the present wording of Section 6 of the Health and Safety at Work Act which requires, among other things, that manufacturers and other persons in the supply chain provide health and safety information rather than simply making it available, and advise customers if new and serious matters come to light. In return, they might fairly expect that this information should be taken into account by the courts in deciding whether they have provided safe products. The amendment is intended to make this quite clear by stating that in making such decisions, "regard shall be had" rather than "regard may be had" to it. I beg to move.
On Question, amendment agreed to.
Schedule 4 [Minor and consequential amendments]:
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendments Nos. 100 and 101:
Page 53, line 32, at end insert—
("The Torts (Interference with Goods) Act 1977
4A. In section 1 of the Torts (Interference with Goods) Act 1977 (meaning of "wrongful interference"), after paragraph (d) there shall be inserted the following words—
"and references in this Act (however worded) to proceedings for wrongful inteference or to a claim or right to claim for wrongful interference shall include references to proceedings by virtue of Part I of the Consumer Protection Act 1987 (product liability) in respect of any damage to goods or to an interest in goods or, as the case may be, to a claim or right to claim by virtue of that Part in respect of any such damage."
Page 53. line 41, at end insert—
("The Employment Act 1982
6A. In section 16(2) of the Employment Act 1982 (proceedings against trade unions in relation to which the appropriate limit does not apply), after paragraph (b) there shall be inserted the following words—
"or to any proceedings by virtue of Part I of the Consumer Protection Act 1987 (product liability)"")
The noble and learned Lord said: My Lords, I spoke to Amendments Nos. 100 and 101 with Amendment No.22. I beg to move.
On Question, amendments agreed to. 85 324(a).

Social Fund (Maternity and Funeral. Expenses) Bill
6.58 p.m
Baroness Trumpington: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Baroness Trumpington.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD HAYTER in the Chair.]
Clause 1 [Amendment of section 32(2) of Social Security Act 1986]:
Lord McGregor of Durris Lord McGregor of Durris moved Amendment No. 1:
Page 1, line 6, after ("amounts") insert ("including in the case of maternity expenses, a prescribed amount in relation to those under 16 years,").
The noble Lord said: I shall not rehearse all the grounds fully and persuasively urged at Second Reading for making the maternity grant payment direct to the very small number of mothers—some 1,400 in 1985—under the age of 16. I shall limit my support of the amendment which would achieve this purpose to answering the main arguments deployed against this proposal on behalf of the Government by the noble Lord, Lord Hesketh, when replying to the Second Reading debate. He said that such a grant would overturn a longstanding principle of supplementary benefit, that a mother under the age of 16 remains the dependant of her parent or guardian.
In examining this argument, we stumble first upon an inconsistency in social and legal values. The law of the family imposes the responsibility to care for their children upon all mothers, irrespective of age, and under Section 17(1)(6) of the Supplementary Benefits Act 1976, a mother of any age is liable to maintain her child. Therefore, the law appears to require independence from the mother under the age of 16.
Moreover, there is a second inconsistency in the noble Lord's argument. It is to be noted that when the Committee on One-Parent Families considered this question it was told by the social insurance authorities that direct payment to the mother under 16 would be, and I quote from the report,
"an assault upon the national insurance scheme",
because at that time the payment depended upon the contribution record of the mother.
When the Social Security Bill 1973 was going through your Lordships' House an amendment to the effect that maternity grant should be payable without regard to contributions was defeated, because, it was said, by removing the condition of contribution a contributory principle in the national insurance scheme would be weakened. Despite these arguments, the Committee on One-Parent Families recommended that the grant in the form in which it then existed should be paid direct to mothers under the age of 16.
I do not know how long a principle of supplementary benefit has to stand before it becomes long-standing, but this one has undergone a remarkable transformation during the past 13 years. Governments have shifted the grounds of what has turned out to be a very flexible principle indeed. Against it may be set the simple principle that the law makes all mothers fully responsible for the care of their children and that it is hard to think of a more certain passport to independence than motherhood.
Finally, the noble Lord, Lord Hesketh, spoke as if all such mothers were either at home with their parents or in care. We know that that is by no means the case, though unhappily there seems to be no accurate information about what happens to these youngsters in the real world. As far I know, the Church of England Children's Society is one of the few organisations working in the field with its safe home project for children. That society has estimated, in the roughest possible way from a survey of data which it obtained from the police about youngsters reported missing, that there are between 75,000 and 80,000 youngsters under the age of 18 who are away from home and not in care. It further estimates that one half of those are girls. How old they are, what proportion of them are under the age of 16, how many of them are pregnant and how many of them go through their maternities neither at home nor in care, nobody seems to know.
It is a shameful reflection that the Church of England Children's Society is having to do today exactly what it was set up to undertake in 1881; namely, to care for uncared-for children on the streets. I am told by the society that it is dealing with children on the streets of London who have been wandering and living like Victorian street arabs for two years or more. I hope that the pressure which the society is attempting to exert on the Home Office and on the DHSS to undertake the task of collecting information about this situation will have some effect. I very much hope that the noble Baroness who is to reply will he able to say something about the intentions of her department.
Against those considerations I am not at all persuaded by the arguments that were used by the Government on Second Reading. I do not for a moment pretend that this is an easy issue. It is one of those issues on which reasonable people can disagree

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reasonably. One's mind has to be made up on the balance of advantage. However, I point out that every independent body which has considered the question over the past dozen or so years has come down in favour of paying the maternity grant, in whatever form it happened to be available during the period, directly to the mother under the age of 16. I have tabled this amendment in the hope that the noble Baroness will be persuaded to reconsider the stance which the Government have taken in the light of these further arguments that I have presented. I beg to move.
Baroness Jeger: We on these Benches support the amendment and do so for several reasons. This is a very complicated and difficult question. I must say to begin with that we are not asking for payment to be made to young mothers under the age of 16 if they have over the £500 capital allowance; but that is very unlikely.
We must ask the Minister whether the payment of £80 will be made automatically where the pregnant child is in a family. Will the family, the mother or the father receive the £80; or will it be mixed up with the family credit or family support and create problems about them receiving the money?
What will happen if circumstances change during the pregnancy? Let us suppose that a girl aged under 16 is living in a family and her father obtains a job half-way through her pregnancy so that the family is not on social security or on what is called the passport idea? Does this girl or her family receive the £80, or do they receive nothing? Is there any right of appeal if she is living in a very impoverished family where more than £80 is needed to get the requisite help? Will the girl be able to apply to the social fund for single payments if needed?
Let us suppose that the girl is not living in a family and perhaps is being fostered or is in care. What then happens to the £80? Does it go to the social security people who are looking after her? I have to ask: what happens if she is just over 16 years old when the baby is born? Is there no provision for the fact that this girl may start her pregnancy when she is 15 and then be, say, 16 plus one month when the baby is born?
Those may seem to be very simple questions but they are considered very fair questions by those of us who are concerned and trying to help young girls who are going through such a very difficult situation. I am sure that the Minister will answer those questions tonight as kindly as she always does.
Baroness Lane-Fox: I should like to speak against the amendment. If the amendment is successful it will in effect bring a reward to those who have broken what are the unwritten laws about age. Those age rules exist for a number of good reasons, among which is the desire to ensure that children have a chance of being born to responsible educated parents. My memory of being a young teenager is that one needed to be constantly aware of the rules of the game. This amendment represents a slackening of the rules at a time when the climate of opinion appears to be moving the other way.
Baroness Ewart-Biggs: I rise to support this amendment. I have put my name to this amendment because I moved a similar amendment at Committee
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stage of the Social Security Bill in June last year. I should like first to say to the noble Baroness, Lady Lane-Fox, that I cannot believe that she meant to say that £80 would be a reward for a hapless child who probably through ignorance or neglect has become pregnant. Does she not understand that our concern is for the baby of someone who must have come from a background of ignorance and neglect? Is it not the child whom all of us are trying to protect with this amendment?
Baroness Lane-Fox: Will the noble Baroness give way for one moment? I suggest that independence is regarded as a great reward for a number of young people. I am not talking about the sum of £80. I am regarding the actual nomination as an independent person as that reward.
Baroness Ewart-Biggs: I see exactly what the noble Baroness means, but I should like to point out that as I understand it the maternity payment is specifically intended to meet the needs of the baby and should therefore not be viewed as a payment which is given because of the independence of the mother.
I should like to stress again, as I did at the Committee stage of the Social Security Bill, how vulnerable is this small group of very young people. The noble Lord, Lord McGregor, made the point that every safeguard should be provided for the babies who are born in such terrible circumstances as those of a mother who is so young. It seems quite wrong to take away anything that could help a young girl to be an adequate mother and to safeguard the health of her baby. I remember making a long speech about the risks to the health of babies who are born to such very young mothers. I shall not repeat my remarks because I suspect that my noble friend will be giving those details in a moment.
However, I end by saying that I know that the Minister of State in another place wrote to the director of the National Council for One-Parent Families giving as one of the reasons for not allowing this payment as an independent payment that antenatal care and health education were equally as important as, if not more important than, a cash payment for this very vulnerable group of young mothers and their babies. I think we agree that it is very important, but I should also point out that school-age mothers are those who are least likely to attend antenatal clinics and benefit from that kind of support. For them a cash payment may be the only source of support that they receive.
I hope that the Minister will consider these arguments. Those of us who have put them forward feel most deeply that this is a group of very young people who need to be safeguarded in order that they can look after their babies—babies who will certainly be the victims if their mothers do not get all the help that they can.
Lord Henderson of Brompton: I am very hopeful that the Minister will give a sympathetic reply to this amendment, in view of the words of the Minister for Social Security in another place, Mr. John Major, on 9th February:
"I am prepared to say that I shall consider further any fresh arguments that may arise".—[Official Report,Commons, 9/2/87; col. 93.]

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It is fair to say that he did not give any promise, but he did give that very open undertaking to listen if not to comply with the pleas that would be put before him, as indeed they have been put before him through the noble Baroness so eloquently today by the noble Lord, Lord McGregor, and other speakers who followed him.
The crux of the matter is quite simple. There are two principles. There is the old-established principle of supplementary benefit, which has been the sticking point so far, that the child's benefits go to the guardian or parent even if the child is a mother herself. Against that there is the statutory requirement that the mother of a child is responsible for its care and provision. That requirement is contained in Section 17(1) of the Supplementary Benefits Act 1976. Where there are two principles which conflict, as those two do, very careful thought must be given as to whether the non-statutory principle (of supplementary benefit) however long-standing, should or should not prevail over the statutory provision (of the 1976 Act).
I should have thought that on merit alone the statutory principle that has existed since 1976 should prevail over the principle of supplementary benefit, which as I think has been indicated by the noble Lord, Lord McGregor, has been flexible in the past and indeed can be made sufficiently flexible now to be accommodated to the Act of 1976. On those grounds alone I very much hope that the statutory principle will prevail in this case.
I was very impressed by what the noble Lord, Lord McGregor, said when he remarked that this concerns only a very small number of people—some 1,400 young girls. It is also true to say that these young people are not necessarily living at home with their parents or in care. It is that group who are neither at home nor in care that we must find and to whom this payment should go personally.
For those reasons I should have thought that this amendment was, in the words of Mr. John Major, something that the Minister would be well advised to consider. Fresh arguments have been put forward today. It may be that the Minister cannot accept this amendment, but I trust that she will offer some hope and include its substance in future regulations.
Lord Kilmarnock: All the arguments have been extremely ably put by my noble friend Lord McGregor and other noble Lords. From the number of noble Lords who have spoken in the short debate on this amendment, I am sure that the noble Baroness will be aware that there is an area of genuine concern. It seems wrong that the passport to this benefit should be based purely on the parents' circumstances for anything to happen; in other words, that they should be in receipt of supplementary benefit. We should be concerned with the mother and the child. That point has been made by practically every noble Lord.
We should be concerned with the children because the neonatal death rate for children of mothers under the age of 16 is 50 per cent. above the average. Infant mortality for all mothers is 10 per 1,000; infant mortality for mothers under 16 is 15 per 1,000. On my calculations, that is a 50 per cent. increase. It is the technical point of the far greater likelihood of the early death of a child born to mothers in that age group. On those grounds, I say that the money should go to the
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mother. With respect to the noble Baroness, Lady Lane-Fox, I do not think we should be making moralistic judgments about whether that mother should be a mother at that age and should have had that child. We are dealing with the 1,400 mothers in those circumstances, as my noble friend pointed out.
It may well be that social habits should change in the way that the noble Baroness would like. But we are actually dealing with a small group of disadvantaged mothers probably from poor backgrounds. We should not be making moralistic judgments and penalising those girls and their offspring. I am sure that the Minister will have noted the feeling on all sides of the Committee that the Government must take this matter on board. We hope to hear from her that they will do so, and that the position of these mothers and their children will be taken into account.
Lord Rea: I should like to add one or two words in support of the amendment moved by the noble Lord, Lord McGregor. Noble Lords may be interested to know that I raised the question of this amendment with my group practice team at lunchtime today. The group includes doctors, health visitors and social workers. They all felt that these young mothers should be entitled to receive the £80 grant themselves.
Young mothers may have become pregnant for a variety of reasons. When they have the baby, it is surprising how quickly they gather a sense of responsibility and want to do the best that they can for the child. Their maturity will be increased if they feel that the early adult role which has been thrust upon them is recognised by the state through the provision of this grant. The Government need not worry that the money will be dissipated and wrongly used. My experience of these young girls is that they are extremely keen to do the best that they can for their children. They are often somewhat amazed that the child has arrived. They want to succeed in making a good job of being a mother.
I am not sure whether the wording of the amendment is the right way to put the principle into the Bill, but it would be nice if the noble Baroness could give us some hope.
Baroness Trumpington: I am, of course, aware of the deep feelings to which this situation gives rise. I am also aware that my honourable friend the Minister said that he would consider the matter, but he was not convinced by the arguments and he wrote to the National Council for One Parent Families to say so.
The assumption beyond the amendment is that pregnancy and motherhood, of themselves, make a girl of 16 into an adult. Not all all. Girls of that age are still very young, and by the circumstances of their pregnancy are in need of health care, counselling and support, both material and financial. For the majority of those young people, the close family provides that essential support. If, sadly, the family is unable or unwilling to provide it, the local authority has a duty to step in.
Where a girl under 16 is in the care of the local authority, voluntarily because the parents have requested it, or because she has been committed to care, the local authority is fully responsible for the welfare of the mother and the baby and for their necessary accommodation and maintenance. This

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may be by placement with a foster family, in a residential home, in a mother and baby home or in independent living. Health care and health education, to ensure that antenatal care is understood, should be available to all mothers. They are especially important to help those young mothers give the baby the best possible start.
Alas, I find it unrealistic of the noble Lord, Lord McGregor, to assume that the payment of maternity expenses would cause those children who are missing from their homes to come forward and claim the amount.
The amendment would not directly improve the lot of mothers under 16 who need it most—those living in poor families. For them, we have made the full provision that one would expect of a reasonable government. Where a young mother under 16 is in a low-income family, receiving one of the passport benefits; that is supplementary benefit (income support, in future) or family income supplement (family credit, in future), the family will be eligible for a maternity payment for the baby.
Additionally, where the family is on income support, the young person under 16 will continue to receive free milk tokens during pregnancy, and all mothers will be able to pick up free vitamin pills from health clinics. That represents appropriate provision for those under 16.
It is true that supplementary benefit legislation places a duty on parents to maintain their children, but it is not reasonable to require young people under the age of 16 to maintain themselves or their children financially. In practice, it is the responsibility of the parents or the local authority to do so.
There is the right of appeal to a tribunal against the refusal of a maternity payment. It is intended to fix the amount of the payment in regulations.
In answer to the noble Baroness, Lady Jeger, the mother or the father can receive the £80. If a girl has a baby at the age of 16 plus one month, the payment can be claimed. If the father obtains a job, the family may still qualify for family income supplement. A girl in care does not receive the £80. The intention is that the £80 should be paid as a reasonable contribution towards maternity expenses. Having rationalised help with maternity expenses into a much higher fiat-rate grant than at present, it would not make sense, in effect, to continue the present single payment for maternity costs, with individual totting up of the cost of nappies and so on, alongside the new scheme.
I should stress that there will be regular help from weekly benefits with the cost of looking after the baby—for instance, child benefit, supplementary benefit or income support—with extra amounts for each child and so on. If the family concerned is under wider financial pressure there is nothing to stop them being considered for single payments or social fund payments for essential items such as beds or cookers. I have to tell the noble Lord, Lord McGregor, and the noble Baroness, Lady Ewart-Biggs, that the number of under-16 mothers in 1985 was 1,403—not so very few, sadly enough.
The noble Lord, Lord Kilmarnock, spoke about the children of young mothers being at higher risk. We can
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produce all kinds of reasons why children of young mothers may be at risk, but I do not think that the £80 payment, any more than the £25 grant, is a crucial factor in removing these risks. Health education and the availability of advice and support at the early stage of pregnancy are likely to be much more important. It is important to remember that even though the £25 grant is presently available, a supplementary benefit single payment is not payable now unless the girl is in a family on supplementary benefit.
There are other arguments against accepting the amendment, which were considered carefully last year during the passage of the social security legislation. First, it would overturn a long-standing principle of supplementary benefit which we consider to be important; namely, that a girl under 16, even if she has given birth to a baby, remains the dependant of her parent or guardian. Secondly, it would breach the principle that benefits paid from the social fund should go to those who are in need, not to those who are not. Thirdly, we would not want to treat the under-16s more generously than the over-16s. Fourthly, it would be a complicating factor to devise a different claiming system for under-16 mothers because eligibility for income support or family income support could not be the passport. All this adds up to a convincing case against the amendment. I ask the Committee to reject it.
Lord Henderson of Brompton: The noble Lord, Lord McGregor, was rising to make an observation. I thought that he was invisible to the noble Lord in the Chair.
Lord McGregor of Durris: I am exceedingly disappointed by the reply of the noble Baroness, and—I hope that she will forgive my use of the words—by the stale grounds on which she rejects the amendment.
The noble Baroness corrected a statistic. I mentioned a figure of some 1,400; she refers to a figure of 1,403. Even if we are to use that degree of precision, it still remains the case, despite what she said, that it is a small number—my recollection is that it is about 2.4 per cent.—out of total births to single women. It is not a large proportion. I should have thought that all the difficulties that she mentioned of paying benefit to such a number could be overcome by a very small amount of creative administrative talent.
I also found her argument on a fundamental point—namely, when a mother under the age of 16 becomes an adult—purely semantic. A mother under 16, by the fact of motherhood, has assumed whether she likes it or not, adult responsibilities. The noble Lord, on the basis of the experience of his group practice, said that nothing makes a person become an adult more quickly than having to assume adult responsibilities. I am unwilling to be persuaded by the argument of the noble Baroness.
Finally, surely the payment to such a girl could do a great deal to give her psychological support at a time when she needs all the strengths that she can possibly possess. I am exceedingly disappointed by the unsympathetic reply of the noble Baroness. Nevertheless, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 agreed to.
Remaining clause agreed to.
House resumed: Bill reported without amendment; Report received.

Social Security (Payments on Account, Overpayments and Recovery) Regulations 1987
Lord Hesketh Lord Hesketh rose to move, That the draft order laid before the House on 4th February be approved. [10th report from the Joint Committee].
The noble Lord said: My Lords, I beg to move that the regulations be approved.
These regulations were originally laid before Parliament on 17th December last as a negative instrument. However, it was subsequently realised that, because the contents of one part of the regulations related to powers in Part II of the Social Security Act 1986, the whole of the regulations should have been laid by the affirmative procedure. In relaying this instrument we have taken the opportunity to make one or two minor improvements to the wording. I should perhaps say at the outset that the negative instrument was on sale for only four days before being withdrawn. Anyone who bought a copy will be entitled to receive a copy of the final instrument without further charge.
Much of what is in these regulations is familiar to those who deal with social security matters on a day-to-day basis. In a social security system which has evolved over some 40 years, there has been the tendency for each benefit to have its own set of regulations with its own rules relating to matters such as how to deal with overpayments.
This immediately creates two problems for those who need to understand and operate the rules: first, where to find them. This can involve a time-consuming hunt through a multiplicity of instruments. For this reason our aim has been to put the rules on the recovery of overpayments for all benefits in one instrument so that anyone seeking the detail of an overpayment question will in future go to the present instrument no matter which benefit is involved.
A glance at Part I of the schedule to this instrument shows how many varied and scattered regulations we have brought together. I am sure that this will be a move which will be widely welcomed as a simplification in an area which we all recognise has been in need of simplification for some time.
The second problem which our patchwork of benefits creates for the user is that over the years slightly different rules have been applied to different benefits but often with the same objective in view. Our second objective has been to remove these differences where we have felt it is practicable and right to do so, creating a common approach for the future.
The prime example in these regulations is the new single test which decides whether an overpayment is recoverable. Hitherto there have been broadly two tests. For contributory and related benefits the test has been whether the claimant exercised due care and diligence in obtaining a payment; whereas for supplementary benefit the test has been whether the claimant has, fraudulently or otherwise, misrepresented or failed to disclose a material fact and so been overpaid.
The case for a single test was overwhelming. We chose that currently used for supplementary benefit, for several reasons. First, it is a less subjective test and easier to understand and operate. Secondly, it is far more commonly used. There are eight times as many supplementary benefit overpayments dealt with by our local offices as there are for other benefits. Finally, the test will provide some small savings from additional benefit recovered—I emphasise that they are small—and rather more by way of staff time and administrative costs. By contrast, the general adoption of the due care and diligence test would result in less benefit being recovered and substantial additional costs in staff time and administrative expense.
The issue of the single test has of course been widely debated during the passage of the Social Security Act 1986 and these regulations merely put into effect the powers in Section 53 of that Act. I should make it clear that although we have adopted the single test of misrepresentation or failure to disclose a material fact, there are no other changes to the way we deal with overpayments. Appeal rights remain exactly the same as they are at present, as does the discretion of my right honourable friend the Secretary of State for Social Services to consider sympathetically the extent to which recovery should be pursued. He will continue to take account of the age and health of the individual and the general financial circumstances of the family.
For the most part we have brought together a number of other regulations into one single instrument without any changes. So far as concerns the single test for recoverability, the debates on the Social Security Act 1986 resulted in the principle being accepted and these regulations merely give effect to the provisions of that Act. I commend these regulations to your Lordships' House for approval.
Moved, That the draft order laid before the House on 4th February be approved. [10th Report from the Joint Committee.]—(Lord Hesketh.)
Baroness Jeger: My Lords, I am sure that your Lordships will be glad to know that I do not propose to go in detail through these regulations, which I think are very confusing and unhelpful. The whole problem which they bring to mind is that the Social Security Act of last year was very dependent on regulations. Now we have regulations here which replace those laid by the negative instrument on 17th December. It is just another example of how the Government are trying to rule by regulation and not by law. I understood, though I did not believe it, that the 1986 Act was supposed to streamline and simplify the social security regulations. Instead the regulations have confused and brought delay and have introduced into this House and the other place government by regulations which are not amendable.
I found myself reading the Green Paper, which was supposed to set out the whole plans of the Government. The Green Paper, which referred to the reform of social security, said that it was intended to make social security legislation much more compact, clear and manageable. I find that is not happening at all and that time after time we are having regulations. We said during the passage of the Social Security Act that the Government were bringing in government by

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regulation. Here again, we have the example of mistakes which the Government have made. They have to admit that the negative instrument on 17th December was faulty.
There are other examples, but tonight we are discussing only this one particular process. I can tell your Lordships that I could go through these regulations page by page, sentence by sentence, but I do not think that that would be for the convenience of your Lordships' House. I shall merely say that my honourable friends and myself think that government by regulation is not acceptable and that we shall look forward to dealing with this matter at another time.
Lord Kilmarnock: My Lords, we on these Benches should like to thank the noble Lord, Lord Hesketh, for having explained the introduction of these regulations. Once again, this is the result of a government error in that they originally laid them by the negative procedure which was incorrect under the Act which was passed only last year. They have now taken the opportunity to make one or two adjustments, bringing them forward again under the affirmative procedure. I am bound to say that that does not give one very many grounds for confidence that the stated intention in the original Green Paper on the reform of social security to which the noble Baroness referred and which preceded the Act was to make social security legislation much more compact, clear and manageable.
We now find that we have regulations superseded by other regulations, and so on. Therefore, all the complications that we foresaw as resulting from that Act are beginning to come home to roost. Like the noble Baroness, I shall not go through the regulations in any detail. However, I should like to ask the noble Lord one question, if he would be kind enough to answer me. It concerns Regulation No.4 on the recovery of overpaid interim payments. Regulation 4(3)(a)(i) refers to someone who having made a claim,
"has withdrawn it or is deemed to have withdrawn it".
Can the noble Lord tell me in what circumstances a person who has made a claim can be deemed to have withdrawn it? I find that a very obscure passage in the regulations. The noble Baroness said that they were obscure, and that seems to me to be one obscurity. I do not know how to interpret that. It also seems to me rather strange that in any circumstances there should be interim payments against final payments which are likely to be overpaid. Presumably the person making the interim payment would know what the final payment was likely to be and would not make an excessive interim payment in those circumstances. I am bound to say that I found Regulation No.4 very obscure. I think that someone trying to interpret it might also do so.
We are told in the notes that as the Social Security Act has been in effect in force for less than 12 months, these regulations are therefore exempt from automatic reference to the Social Security Advisory Committee, but we must hope that when that year is up the committee will exercise its own discretion and look at them very carefully to see whether there are any more anomalies of the kind that I have pointed out which
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should be brought to the notice of the Government. However, obviously we do not oppose the regulations.
7.45 p.m.
Lord Hesketh: My Lords, I am grateful for the contributions which your Lordships have made to this debate. As I said at the outset, much of what is in these regulations is time-honoured practice from other regulations which have been put into this instrument. The change to a single test for recoverability of overpayments is a simplification which I am sure will be welcomed. I recognise that a change to a test for misrepresentation and failure to disclose all benefits will not have been universally welcomed, but I have explained the Government's reasons for choosing the single test which is now in the Social Security Act 1986. These regulations simply give effect to the principle of recovery which has already been agreed.
I shall try to answer the two questions raised by the noble Lord, Lord Kilmarnock. The first concerned Regulation 4(3)(a)(i), which the noble Lord described as very obscure as regards the words, "deemed to have withdraw a claim". It is assumed that no response to inquiries, perhaps showing no intention to prosecute a claim, is the case there. The noble Baroness, Lady Jeger, described the regulations as complicated. I hope that we have simplified them. Part I of the schedule demonstrates that regulations from 15 different sets have been brought together in instruments now before this House.
The noble Lord, Lord Kilmarnock, referred also to interim payments in Regulation 4. Regulation 4 caters for overpayments of interim payments where either there is no statutory entitlement or the entitlement is less than the interim payment made. The claimant will already have been notified that he must pay any overpayment—that is Regulation 2(2). Therefore the question of misrepresentation or failure to disclose does not arise. Only that part of the interim payment which is more than the actual entitlement is recoverable. The method of recovery is by deduction from benefits in the same way as any other overpayment. I commend the regulations to your Lordships' House.
On Question, Motion agreed to.

Local Government Finance Bill
Returned from the Commons with the amendments agreed to.
House adjourned at ten minutes before eight o'clock/