§ 8.21 p.m.
§ Baroness Ewart-Biggs
My Lords, I beg to move that the Bill be now read a second time.
The Bill is the result of a Private Member's Bill introduced in another place by my honourable friend Mr. Chris Smith and is based on two simple principles: first, the importance of freedom of information opening up the processes of government and administration; and, secondly, the need to take steps to improve public safety provisions. It is a modest but important measure that will provide the public with more information about the location of environmental safety and fire hazards.
The public authorities responsible for such matters have traditionally enforced their requirements by prosecuting offenders. The trend in more recent years has been to give those authorities the additional power to issue enforcement notices which may require specified steps to be taken. There are two main types of notice. The first is an improvement notice which is served when an inspector believes that there has been a breach of a statutory requirement and which requires the person on whom it is served to put the matter right. The other is a prohibition notice which is generally served only where there is a risk to people's health or safety so serious that the activity must be stopped or restricted until the hazard is dealt with. More than 14,000 notices a year are served although many of them are relevant only to employees.
Where an improvement or prohibition notice is served to protect the safety of employees, the employees or their representatives have a legal right to know about it. However, where a notice is served in order to protect the public, the public have no right to know. Indeed, such notices are generally secret.
The Bill is designed to open up those notices by requiring the enforcing authorities to put details of them on a public register. That will help to alert people to dangerous sites in their areas. For example, if a sports ground, cinema or Underground station is a fire risk, or if chemicals on waste land present a danger to children who play there, if pesticides are being recklessly sprayed near a public place, or if a building which is being demolished is in an unsafe condition, people should know of it so that they can avoid the danger.
By way of illustration, perhaps I may refer to an incident described in one of the annual reports published by the Health and Safety Executive. It describes the yard of an electroplating company 348 which was littered with containers of flammable chemicals lying on heaps of combustible rubbish. Among them were 45 gallon drums of polythene containers labelled "cyanide poison". The firm's management admitted that the site was regularly invaded at weekends by children from a nearby housing estate who played there. A notice was quite properly served on the owners requiring them to deal with the matter urgently.
At present such notices are not normally made public. The case for publicising them and making sure that parents know about such problems and keep their children away is surely overwhelming. Moreover, the fact that such a notice was publicised would ensure that the owner of the premises responded more promptly and with greater urgency. There is sometimes excessive delay and even complete failure to comply with notices at present.
The factory inspectorate brings more than 100 prosecutions a year against people who fail to comply with notices. Indeed, your Lordships may have read of the prosecution in April this year of a major bookshop in London under the fire regulations. The bookshop was convicted on 15 charges of contravening the regulations. It was disclosed that the owners had been asked to deal with the matter in June 1987 but had not done so when the premises were next inspected in September. The powers to serve prohibition notices were not in force at the time—they came into effect only on 1st January this year. Had a notice been served and been made public, one can be quite sure that the matter would not have been ignored for all those months.
Who will consult those registers? I suspect that people who are concerned about a particular problem in their area and local safety and environmental groups will use them. The press will also do so and in that way the information will reach the local community. I accept that many ordinary people would probably not think of consulting the register. The information will be brought to them either by the press or local environmental groups.
I should like very briefly to outline the specific provisions of the Bill. It applies to the authorities and notices as listed in the schedule. The first of these is the fire authorities. Here I must tell the House that during Committee proceedings in another place an amendment excluding fire authorities was moved. Happily, at Report stage in another place the fire authorities were brought back into the Bill at least in relation to the prohibition notices that they serve.
The second group of authorities covered are those enforcing the Health and Safety at Work etc. Act. They include the factory inspectorate, the industrial pollution inspectorate, the agricultural inspectorate, the railway inspectorate, the nuclear installations inspectorate and local authority environmental health officers. The third group are local authorities carrying out their duties under the Safety of Sports Grounds Act. Finally the Bill applies to authorities such as the agricultural inspectorate which enforces the regulations on pesticide use made under the Food and Environmental Protection Act.
Under Clause 1 the authorities would set up registers which would contain details of notices 349 served after the Act had come into force. The register must be indexed and available for inspection without charge. The notices themselves would not have to go on the registers so long as the substance of the notices was described. That means that authorities which keep summaries of notices on a computer database would be able to use that database as the register.
Clause 2 contains provisions to cover the variety of authorities or persons who may be authorised to serve notices under the Food and Environment Protection Act. It also stipulates that only notices which affect the public are covered. Notices served exclusively to protect employees are not covered because, as I have already said, arrangements for informing workers about such notices already exist. Where a notice affects both employees and the public—for example where asbestos stripping is being done in such a way as to expose both workers and passers-by to danger—the notice would be made public.
Clause 3 lays down timescales. Here, on account of changes made by the Government in Committee in another place, the timescales are longer than the sponsors of the Bill had originally intended. A notice would normally be placed on the register within 14 days of being served, but where there is a right of appeal the notice would be entered within 14 days of the end of the period allowed for appeal. There was some debate in another place during Committee stage when it was pointed out that that would mean a delay of up to five weeks before the public learnt about a notice. It was felt that in the circumstances that was really a very long time.
Where the authority is satisfied that a notice has been complied with it must indicate it in the register; but the Bill does not require authorities to go out of their way to check upon compliance. The authority would not be expected to carry out inspections more regularly or quickly than it otherwise would do simply to keep the register up to date. Notices would stay on the register for at least three years.
Occasionally it may happen that a notice refers to a chemical or process which is a trade secret. Clause 4 is designed to protect such information. If the owner of the premises claims that a notice refers too explicitly to a trade secret, then the details which he regards as sensitive would not go on to the register. Instead, the register would merely record the fact that a notice had been served on the premises for breach of a particular statutory provision.
The authority would then draft a summary which it believed excluded the sensitive information. That draft would be shown to the owner who would have 14 days either to approve it or agree with the authority to an alternative. If the two sides failed to agree then the owner could appeal against it to the Minister; otherwise, the draft could go on to the register.
Finally, I should like to say that there is considerable support for this Bill. It has the support of the Campaign for Freedom of Information, the Consumers' Association, the National Consumer Council, the British Safety Council, the Conservation Trust and Friends of the Earth. The Royal Society of 350 Chemistry also gave it very strong support. It said that:The Society feels that the Bill will have the desirable effect of publicising cases in which industry has failed to meet its statutory obligations. The Society believes that this will encourage an improved attitude towards compliance in certain sectors of industry".That was very strong support. In addition many of the enforcing bodies are in favour of the Bill. It is backed by the Institution of Environmental Health Officers whose members will be directly affected. Indeed, they serve many thousands of notices each year. The Association of Chief Fire Officers said that it welcomed the Bill in relation to the prohibition notice powers. The Fire Brigades Union support it also and the Health and Safety Commission, which is most affected, says that it has no objection to the measure.
There has recently been much discussion about some of the terrible fires and other disasters that have taken so many lives in such a tragic way. A recurrent theme is that in many cases official warning had been given but apparently not acted upon. I accept that formal notices may not always have been served in all those cases. Perhaps they should have been; but I have absolutely no doubt that, where the authorities have such serious concern about the safety of public premises that they issue an enforcement notice, there should be no secrecy about the matter. This Bill will help to ensure that that happens.
In commending the Bill to your Lordships, I accept that it is not exactly and entirely what the original sponsors aimed for and what they wanted it to be; but my honourable friend in another place, Mr. Chris Smith, and I believe nevertheless that it will achieve its basic objectives. We hope to see it on the statute book as soon as possible. I look forward very much to hearing the Government's response from the Minister. I commend the Bill to the House.
§ Moved, That the Bill be now read a second time.—(Baroness Ewart-Biggs.)
§ 8.33 p.m.
§ Lord Graham of Edmonton
My Lords, I wish first to congratulate my noble friend Lady Ewart-Biggs upon her very clear exposition of the Bill. There was one omission from her introduction. She gave a very long list of people who support the Bill but did not mention my name, and I must put on record that I give the Bill a very warm welcome. I should also like to extend the warmest congratulations to my very good personal friend in another place, Mr. Chris Smith, who has worked hard and persistently on this Bill. At one time as I read the details of the debates in another place it seemed a distinct possibility that he might well be ambushed in respect of other legislation. Given the timescale imperatives for Bills of this kind to return to the other place with the minimum of delay and the minimum of change, I hope that he is successful in that respect. Certainly I have not the remotest intention of delaying the Bill's departure from this House nor of burdening it with any impediment which may be seized upon by Members in another place.
I should like to make a very serious point on behalf of the Retail Consortium, which represents retailers of considerable size and importance. The consortium supports the Bill in principle and certainly has not 351 asked me in any way to delay its passage through this House. This is an opportunity for me to make a point which I should be grateful if the Minister will take on board. It is the result of the substantial changes made to the Bill in Committee in another place by his parliamentary ministerial colleague, Mr. Nicholls. I believe that he, rather than the noble Baroness, is the best person to answer it. I should like to take him through the debate in another place on 5th February 1988, when it was stated by Mr. Chris Smith, in introducing the Bill—which was his Bill at that time:There are a number of provisions in the Bill for firms or organisations affected by a notice to place their account and explanation alongside the notice in the register. There is also a provision for any notice of appeal to be included in the register. There are provisions for a record of compliance to be placed in the register at the appropriate stage. In respect of any trade secret information which might be included in the original notice, there is provision, on application by the firm or organisation affected, for possible exclusion".—[Official Report, Commons, 5/2/88; col. 1322.]I should be grateful if the Minister can explain the reasoning behind the amendments—and, to be fair to him, they were accepted by Mr. Chris Smith as sensible—which, as I see it, excluded that provision from the original Bill in order that it could make swifter progress.
So far as concerns retail traders, there are a number of difficulties. In the same speech, at col. 1323, Mr. Chris Smith said to the House:Fourthly, it is important that persistent offenders under safety regulations are brought to public attention".He continued by making an important point that I wish to stress:The 'unfair picture of a firm's record' argument, which has been made in the past about publication of details of notices, is partly covered by the provision placed in the Bill for the firm's own account to be put in the register. It would frequently lead to an entirely correct impression being given to the public about the performance and safety record of the firm if information is publicly available about breaches of safety and environmental provisions".When I undertook some research for the debate this evening I was drawn to those pieces of legislation which it covers. I turned first to the schedule which mentions the Food and Environment Protection Act 1985 and lists the authority. In the preamble to that Act it is stated that it is:An Act to authorise the making in an emergency of orders specifying activities which are to be prohibited as a precaution against the consumption of food rendered unsuitable for human consumption in consequence of an escape of substances".I remind the House of the importance of this piece of legislation to the food retailing industry. Part I of Schedule I to the Act reads:Activities that may be prohibited in a designated area …(e) The preparation and processing for supply to purchasers or others of food and anything from which food could be derived".Then Part II, relating to movements of food etc. that may be prohibited, reads:An emergency order may prohibit the movement of food or anything from which food could be derived—In Part III, under the heading Activities that may be prohibited throughout the United Kingdom, paragraph 3(d) states:
- (a) into or out of the designated area; or
- (b) from one place to another within that area".The supply, or the possessing for supply, to purchasers or others of any food, or anything from which food could be derived".352 I wish to establish this point. The chain of food processing can be caught up in this procedure. Orders may be served quite properly. I am aware, for instance, that food could be stored in a cellar; the area could be subject to flooding; the food in the cellar could be contaminated. Quite properly, an order can be served under due process of law; an appeal may follow; and so on. I wish the Minister to assure those outside the House who are a little uneasy on this issue.
One sees that the register will contain details of the notice in these terms. I do not refer to the notice that may have been presented to the court where a conviction may have been sought, but to Clause 1(2) of the Bill where it states:Each entry in the register shall state sufficient particulars to convey the substance of the notice to which it relates".I do not refer to the notice itself, about which there can be no dispute if it has gone to an appeal which has been lost. That is a matter of record. I refer to the substance of the notice. In other words, is the notice to be compressed, shortened or précised? Is it to be interpreted? The unease of the trade is that something may be conveyed erroneously in the wording that appears on the register. If the Bill does not now contain the opportunity for them to state their side of the argument —because that provision is omitted—can the Minister satisfy those outside the House that it is not possible for someone maliciously or mischievously to try to blacken the name of a perfectly reputable trader? The trader—perhaps through illness or shortage of staff—may have extenuating circumstances or an explanation.
The Bill refers to the process for the protection of trade secrets. At page 3, Clause 4(2) states:where such a notification is given"—that is in respect of a secret—the authority …shall draft such an entry as, in their opinion, would make particulars of the notice public without disclosing information about the secret; and(b) shall serve on the person affected a copy of the draft and a notice of their intention to make an entry into the register".It would be very helpful to the trade if, before a notice appeared on a register, the terms in which the notice will appear on the register were cited by the company, the organization, or the individual who had been found guilty in a court, so that they were satisfied that they were fair. If they were erroneous the good name of a company may have been libelled. They may be in difficulty. Many difficulties could result from this situation.
I have no brief in the sense of a vested interest in this matter. The trade welcomes the good intentions of the Bill. However, it is sensitive to this fact. The public record and the register will do much good and will satisfy the imperatives listed by my noble friend Lady Ewart-Biggs. The trade wishes to make sure that the Bill does not get off to a bad or difficult start. I hope that it will be a very enterprising, satisfactory and worthwhile Bill.
§ 8.45 p.m.
§ Baroness Turner of Camden
My Lords, this is a small but very useful Bill—a Private Member's Bill, as has been said. In accordance with what I believe to 353 be the tradition of the House I speak in a personal capacity although from the Dispatch Box. As has been said by my noble friend Lady Ewart-Biggs, the Bill imposes an obligation on the appropriate authorities to keep registers open to public scrutiny of notices served to enforce compliance under several Acts concerned broadly with health and safety in the environment.
I know that we are all very concerned about major accidents when they take place. The King's Cross disaster is still fresh in the memory. It was referred to in the debate on the Bill in another place. Only yesterday there was an appalling explosion at a factory in North Wales when two employees were killed and another badly shocked. It appears to have been by a fortunate chance that there were not more casualties.
There are many accidents which do not attract so much publicity. Certain industries—the construction industry immediately comes to mind, but there are others, notably the chemical industry—have a working environment acknowledged to be hazardous not only to the employees but often to those inhabiting the surrounding countryside as well.
It is not being suggested by my noble friend, nor was it suggested in the debate in the other place, that this modest measure will of itself prevent such terrible tragedies in the future because, as we have said, its main purpose is to establish a public record of enforcement orders to be served under the relevant legislation. The legislation concerned is set out in the schedule, the Fire Precautions Act 1971, the Health and Safety at Work Act 1974, the Safety of Sports Grounds Act 1975 and the Food and Environment Protection Act 1985. Incidentally, it has been suggested to me by the Association of Municipal Authorities—which generally supports the Bill—that it may possibly be necessary that the Fire Precautions Act 1971 and the Health and Safety at Work Act 1974 may require some amendment to permit the disclosure of information, as intended. Perhaps that point could be borne in mind by the Minister.
My experience is in the industrial relations sphere. Therefore, the aspect of which I am most aware is that covered by the Health and Safety at Work Act. The Health and Safety Commission established under that Act has done, and continues to do, admirable work. In the last 15 years or so unions have begun to take health and safety very seriously indeed.
In large numbers of plants nowadays there are elected health and safety representatives. My own union runs a health and safety course for such representatives and so does the TUC and other unions. Nevertheless, there are sometimes difficulties in persuading employees of the importance of health and safety and in getting them to make use of protective devices and clothing. Furthermore, activists constantly report that the number of health and safety inspectors is not adequate. However, employees are advised, and so are trade union representatives, when a health and safety inspector intends to issue an enforcement notice.
According to the Under-Secretary of State when the debate took place in another place, the Health 354 and Safety Executive issued 9,500 notices in 1986–87. The commission works extremely well. It is a tripartite body and its performance and general standing demonstrate just how successful tripartitism can be. I understand that the commission is in support of the Bill.
My noble friend Lady Ewart-Biggs made this point very strongly. It is not enough simply to issue notices so that the workforce is advised. The public ought to know as well. It is important that they should know. Moreover, the mere knowledge that there could be a public notice could very well be instrumental in producing the appropriate improvements so that an enforcement notice might not be necessary after all.
I have referred to the industrial dangers and the Health and Safety at Work Act because it is an area with which I am familiar. However, the same arguments apply to the other acts referred to in the schedule. My noble friends Lord Graham and Lady Ewart-Biggs have dealt with those in more detail.
There is an advantage to be gained from greater openness in these matters. Public awareness—already at a higher level than formerly because of recent unfortunate disasters—will be further increased and the standing of the monitoring agencies further enhanced by this Bill.
The Bill has obviously been drafted with great care in an endeavour to meet criticisms that may be levelled against it. As has already been said, there is provision for the protection of trade secrets. There is a right of appeal within 14 days of the service of a copy of the draft of the register entry. The point was raised in another place that perhaps 14 days is a little too long and seven days would be more appropriate. After all, one may sometimes be dealing with matters of life and death. That is a point which the Minister may care to consider.
The only other criticism, which has already been made, is that the Bill may be too modest. Be that as it may, it is a useful step in the right direction. It is not claimed that it will prevent the kind of occurrence which we all abhor, but it may make a significant contribution towards accident prevention through greater disclosure and higher public awareness.
I should also like to congratulate my noble friend Lady Ewart-Biggs on the clarity with which she explained the Bill. She has done so in great detail and there is nothing further that I can add. I commend the Bill to your Lordships.
§ 8.51 p.m.
The Earl of Dundee
My Lords, this has been an interesting debate. I should also like to thank the noble Baroness, Lady Ewart-Biggs for taking this Bill from another place and for the clarity with which she has introduced it here today.
As the noble Baroness has outlined, the Bill proposes that the authorities responsible for the enforcement of certain environmental and safety information should keep registers of any enforcement notices they issue for the protection of the public and that the public should have proper access to the registers. The areas covered are health and safety related to work activity, food and environmental 355 protection, fire safety and safety at sports grounds. Therefore the scope of the Bill is wide-ranging.
The Government's response is always to welcome any proposal which sets out to improve health and safety. We must look to see how far any such proposal may be able to be justified but our starting point is to be favourably disposed. That was the spirit in which the Government approached the Bill. Initially it required substantial amendments and reshaping. However, we have co-operated closely with the Bill's sponsors. The proposals are now not only well intended but should also be workable in practice. Some minor refinements are still needed of a detailed and legal kind. Unfortunately they could not he clarified at an earlier stage and will necessitate the involvement of your Lordships' Committee. Nevertheless, I am confident that the amendments will not prove to be an impediment and that the Bill will move on to the statute book, as expressed by the noble Baroness, Lady Ewart-Biggs.
The Bill recognises a genuine wish by the public to know what is safe and unsafe and also to know what the enforcement authorities are doing about the dangers which affect them. At the same time it provides safeguards to ensure that notices are only entered on the registers when there is no question of their being disputed. Hence we can achieve the exclusion of misleading or defamatory information. There are, as we have heard, also safeguards for trade secrets. The arrangements for keeping the registers are designed to make them accessible to the interested public and to incur the minimum resource cost for the authorities.
The noble Lord, Lord Graham of Edmonton, asked me why the right to enter one's comments on the notice had been removed in Committee in another place. The Bill has now been amendment to provide that no notice is put on the register until all opportunity for appeal has passed. Therefore there should be no contention. That was not the case when the Bill was first drafted. To enter comments on the register would be meaningless, it could be defamatory and it would make it difficult to maintain the register. If people contend the issue of a notice the proper way to do so is by process of appeal—
§ Lord Graham of Edmonton
My Lords, if the noble Earl will give way I should like to clarify one point. The Minister said that to enter comments on the register could be defamatory. He implied that the comments that could be entered on the register by the trader could be held to be defamatory. I am talking about the trader believing that the comments entered on the register by the authority could be held to be defamatory.
It is all very well talking about appeals. I am talking about a situation where an appeal is possible and where a case has been heard. When in some cases that has been expunged from the register it never appears on the records. In other words, an appeal has been heard and the matter is finished. I am talking about a case where a notice has been issued, where an appeal may or may not have been heard, where the appeal has been dismissed and where, in my view, it would be proper to make an entry on the register. Is 356 there no way in which those people whose notice appears on the register can be satisfied that the words which have been put on the register by the authority are satisfactory and fair?
The Earl of Dundee
My Lords, I should like to make a distinction in relation to that matter. First, there is the question of trade secrets which is tackled in a separate clause of the Bill. Secondly and separately, there is the question whether it was fair for a notice to have been issued regardless of trade secrets. In both cases the process of appeal is available to the trader. In the latter case the process of appeal has been available since 1974, as the noble Lord will be aware, so that is nothing new. The Bill corresponds to that legislation and reminds us of it.
The arrangements for the new process of appeal in the separate clause of the Bill specifically relate to the process of the wording of the enforcement notice appearing on the register. It is for that reason that we need to have an arrangement to protect trade secrets. The trader may be unhappy about the particular words that are used. The trader will not have the right to appeal against the enforcement notice appearing on the register but he will have the right to object to the particular words that are used. That is what the Bill provides—
The Earl of Dundee
My Lords, yes, the noble Lord is correct, only in relation to the trade secrets aspect.
The noble Lord, Lord Graham, also asked what would happen if the synopsis entered on the register is inaccurate. I believe that it is unlikely to be inaccurate because, by definition, it will be brief and contain no detail. However, let us suppose that it were to be damaging. A civil action could be taken for compensation. I believe that because of the knowledge that a civil action could be taken we can be assured that it is unlikely that the name of the trader would be blaggarded.
The noble Baroness, Lady Turner, expressed concern about delays from whatever source; whether on appeal or as built into the Bill, even if there should not be an appeal. I should like to reassure the noble Baroness about that matter. She will be aware that, through the expedient of a prohibition order, action will be taken straight away in order to stop the premises carrying on with whatever was alleged to be harmful. Action will be taken immediately to alert the public of anything that the public should know about. The purpose of the registers is to make information available. However, they are not safety features in themselves and if there is a danger the authorities will issue a notice or take other action to deal with the problem.
I should very much like to thank all of your Lordships for the positive welcome that you have given to this measure, and I should like to thank the noble Baroness for undertaking to guide it through the House.
§ Baroness Ewart-Biggs
My Lords, perhaps I may thank noble Lords who have spoken in this debate. I am very grateful for the support that my noble friend 357 Lord Graham has given. Quite rightly, he expressed some anxieties on behalf of the retailers. I think that the reply made by the Minister will have clarified some of the doubts that the noble Lord had in mind. My noble friend Lady Turner, in speaking in a personal capacity, was very enthusiastic about the Bill. She pointed out, quite rightly, that its significance was modest, but that nevertheless it would make a very significant contribution to accident prevention. I think that that is what we all hope will be the result of the Bill, and that in that hope we shall not be disappointed.
I was very relieved to hear the Minister remove any doubts that I might have had previously that the Government were not behind this Bill, although in the other place they showed some signs that they were not totally committed to it. However, he has shown this evening that the Government want to see this Bill on the statute book. The Minister has pointed out that some refinements are needed and that he will be putting these forward at Committee stage. The amendments will return to the other place, but the Minister has assured us that this will not be an impediment to the Bill reaching the statute book in very good time. I trust that his confidence will not be disappointed. The Bill with its moderate requirements is very important, and I hope very much that it will not go through any choppy waters when it returns to the other place.
I should like to thank noble Lords who have spoken today. May I ask the House to give the Bill a Second Reading?
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.