HL Deb 12 March 1987 vol 485 cc1167-93

5.18 p.m.

Consideration of amendments on Report resumed on Clause 20.

[Amendments Nos. 45 and 46 not moved.]

Lord Morton of Shunamoved 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, 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 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 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 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 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.

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 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 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 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 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 Hansardand 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 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—

  1. (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
  2. (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 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 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 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 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 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 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 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—

  1. (a) indications given by persons in the course of business; and
  2. (b) such indications given otherwise than in the course of business as—
    1. (i) are given by or on behalf of persons by whom accommodation is provided to others by means of leases or licences; and
    2. (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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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. (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 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 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 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 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 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 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 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 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).