Lords Sitting of 15 January 1990

Preamble
Reassembling after the Christmas Recess, the House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Salisbury.

Tributes to the Late Lord Gardiner
2.35 p.m.
The Lord Privy Seal (Lord Belstead): My Lords, I know the whole House will have heard with sadness of the death of Lord Gardiner, formerly Lord Chancellor, on 7th January this year.
Lord Gardiner was unique in our times in that he came to the Woolsack without having served in the House of Commons or on the Bench. He held the post of Lord Chancellor with great distinction from 1964 to 1970, and during those years he initiated many of the projects of law reform which have, in the intervening years, entrenched themselves in our system of justice.
There will be many of your Lordships who know more intimately than I the scale of his achievements. Lord Gardiner presided over the creation of the Family Division of the High Court, of the Law Commission, and of the ombudsman. As many of your Lordships will recall, it was he who started the first compulsory training for magistrates. Passionate and unshakeable in his beliefs, he worked tirelessly over the years towards further humanising and liberalising the law.
After his tenure of office, his concern for penal reform endured, as his chairmanship of Justice, his membership of the International Committee of Jurists and his presidency of the Howard League for Penal Reform testified. Yet he still found time not only to become Chancellor of the Open University but to achieve an Open University degree as well.
Lord Gardiner brought a fine presence to the office of Lord Chancellor. As many of your Lordships will remember, he was a courteous and most persuasive speaker, as befits a man who had acted professionally on the stage in his youth with Gerald du Maurier, and was one of the most formidable advocates of his generation.
In recent years he had been able to take less part in the work of the House, but I know that your Lordships will wish to join with me in offering every sympathy to Lady Gardiner and in expressing the belief that his memory will live on in his achievements.
Lord Cledwyn of Penrhos: My Lords, we are grateful to the noble Lord the Leader of the House for his generous tribute to our late noble friend Lord Gardiner. The noble Lord referred to the milestones of the distinguished career of Lord Gardiner which culminated in his elevation to the Woolsack in 1964. He will be remembered as one of the great lawyers
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of this century; but it is of interest that he was also attracted to the stage, as the noble Lord has just said, and that Gerald du Maurier, for whom he acted in a West End production, had a high regard for his talents as an actor. There seems to be a certain affinity between the stage and the Bar, as we have observed in this House from time to time.
We remember Gerald Gardiner's impressive progress in the years after he took silk in 1948 during which he gained a reputation as a formidable and fearless advocate. It was an experience to hear his calm and lucid exposition of a case. But Gerald Gardiner did not stop there, as he might well have done. He pursued other causes, notably law reform, and his work both in and out of office will be remembered in years to come. He was indeed the natural choice to be Lord Chancellor when my noble friend Lord Wilson of Rievaulx formed his first administration in 1964.
We were fortunate to have a man of his distinction and intellect in so crucial an office. As the noble Lord said, Lord Gardiner was the first Lord Chancellor in modern times not to have served in the House of Commons nor to have sat on the Bench. The appointment was more than justified because he presided over so many radical changes. Those changes will need a number of books to do them full justice. He was more the great lawyer than the politician, as I discovered when I had the privilege of sitting in Cabinet with him. When dealing with political issues, he was always brief and to the point. That set him apart from the rest of us!
He was not aloof and cold, as some have said. He was kind and considerate to me as a younger colleague, although there was also a shyness about him and an innocence too. He did not cultivate publicity and never sought to be a household name; but he will nevertheless go down in history as one of the great reforming Lord Chancellors as well as a man of great dignity, charm and generosity. We send our deep sympathies to Lady Gardiner and to his daughter.
Lord Jenkins of Hillhead: My Lords, this is the second melancholy occasion within a few weeks that we have paid tribute to a departed Lord Chancellor. Gerald Gardiner, who was 10 years older than Lord Elwyn-Jones, had not been recently among us in the way that Lord Elwyn-Jones had been. I do not think that I was ever present in this House with him, but there was nonetheless a time when I had just as close an association with him.
He was Lord Chancellor when I was first Home Secretary. That was in the swinging 'sixties which are sometimes now portrayed as the fount of all evils. I do not know whether or not this will be taken as a tribute by the majority of your Lordships, but I can say that he and I were always at one on the life and liberty legislation of those days. That was in some ways surprising for we were not otherwise at all alike in background, cast of mind, attitudes to politics or pleasure, shape or anything else. It was a great sustenance for a young and perhaps impetuous Home Secretary to have a Lord Chancellor who was 20 years older and of high legal repute, although

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occasionally of a little impetuosity himself, protecting his flank.
Nor was it only on the softer side of legislation that he sustained me. I remember that when I was deciding whether to introduce majority verdicts in criminal trials—then a very controversial step—I was much encouraged to discover that Gerald Gardiner agreed with me. So did the noble and learned Lord, Lord Hailsham. So did the noble Lord, Lord Hutchinson of Lullington. I thought that if I was protected by Lord Gardiner and the noble Lord, Lord Hutchinson, I could not be affronting civil liberties very deeply.
Lord Gardiner was immensely diligent. He once told me that he almost never got to sleep before 2.30 or 3 a.m. because he read all his Cabinet papers, word for word, after midnight. Paradoxically, he spoke very little in Cabinet, but his lasting impact was probably greater than that of those of us who chattered away.
The Law Commission, and the reforms which have stemmed from it, is his principal monument. I feel increasingly that to be the author of a major statute which sets up a continuing institution and which, because of its inherent sense and utility, is not tampered with by subsequent governments is of more influence than matters which occupy the foreground of politics, such as the management of the economy, where everything is quickly washed away by the next wave of improvidence or misjudgment.
I remember not only Gerald Gardiner's achievements and words of wisdom and encouragement but also his shy charm and the peculiarly sweet smile which frequently illuminated his otherwise austere countenance.
In a winter in which we have bade farewell to the last two of my former party's five Lord Chancellors, it is perhaps appropriate to recall that there was not a single one of them who did not look every inch the part. Gerald Gardiner did not perhaps have Haldane's Edwardian authority and massive experience of men and affairs, or Jowitt's features cast in an almost Roman parchment, but on the Woolsack he certainly epitomised not only liberal conscience but also legal distinction. I do not know what the future may hold or who will be the sixth, if ever there is one, to join that formidable gallery, but it is a very formidable one to join. In that gallery no one has left a greater reforming imprint or was a nicer man than Gerald Gardiner.
Lord Wilberforce: My Lords, at the request of our Convenor I should like to associate all noble Lords who sit on these Benches, including my noble and learned colleagues, with the moving tributes that have been paid to Lord Gardiner as Lord Chancellor, and the expressions of sadness at his passing.
Lord Hailsham of Saint Marylebone: My Lords, perhaps I, who come from a very different part of the political spectrum, may add three points. The first relates to Lord Gardiner's war service. He was, I suppose, a pacifist. He served in the Friends
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Ambulance Unit because he was too proud not to expose himself to considerable danger, rather than rely simply upon his opposition to fighting.
The noble Lord, Lord Jenkins of Hillhead, referred indirectly to the Law Commission. That will go down to history as Lord Gardiner's most enduring and valuable achievement. All of his successors have made use of it, to the infinite advantage of the public. The third point, which has been touched upon by all, is his immense uprightness of character, his intellectual honesty, and his courage and impartiality as a member of my profession. I shall miss him very much indeed.
The Earl of Longford: My Lords, as someone who introduced Gerald Gardiner into this House and was later Leader of the House when he was Lord Chancellor, perhaps I may be allowed to add a few words to the fine tributes that have already been paid. I shall not attempt to go over his career but I shall put on record my own conviction that no one did as much to bring about the abolition of capital punishment—though many did a great deal—as Gerald Gardiner.
Before I sit down, perhaps I may introduce a slightly lighter note. When I introduced Gerald Gardiner into the House my fellow sponsor was Lord Silkin. Thereby hangs a tale. Not long before, Lord Silkin had brought an action for libel against the Sunday Express. He had noticed that the late Randolph Churchill had won an action against the Sunday Express. What he had not noticed was that when Randolph Churchill won his action Gerald Gardiner was acting for him but that by that time he was acting for the Sunday Express.
I remember Lord Silkin joining me at lunch in the House of Lords after he had been cross-examined by Gerald Gardiner. Lord Silkin was a very honest man and revealed his feelings totally. He was very perplexed by the whole business. He said, "Gerald began by asking me in cross-examination: 'Don't you think this is a silly action to bring, Lord Silkin?'" Lord Silkin said to me, "Put like that, I thought that he was absolutely right". Not surprisingly, he lost the action. It was a great credit to both of them that when Gerald Gardiner came to take his seat the two sponsors he chose were myself and Lewis Silkin.
When I resigned from the Cabinet because of the failure to raise the school-leaving age—that is history and occurred before most people here were born; but at any rate it happened—other colleagues expressed mild regret. I remember that the noble Lord, Lord Jenkins, said six months later that he nearly wrote to me. That happens to be true. I was grateful for that expression of what might have happened.
Gerald was the only person who made a serious effort to dissuade me. He came to see me at my flat. He was a very shy man, as we all recall. It cost him a great effort, but he called on me at my flat and tried to dissuade me. He adopted the same kind of tactic as he had adopted with Lewis Silkin. He said to me, "If you could be absolutely sure that the school-leaving age would be raised in two years' time, would you resign?" I felt like the late Lord Silkin. Perhaps he was in the right there, but luckily

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I had already committed myself publicly so there was no way back. I tell that story only to show how extraordinarily kind he was, as we all know.
Along with Lord Attlee, the late Lord Gardiner was to me a truly great man. No one could have looked less like Lord Attlee than he did. In each case, there was the same emphasis on efficiency and total selflessness and dedication. My thoughts at this moment are with Muriel, Carol and Leonora. I know that they will be greatly heartened by all that noble Lords have said today.
Lord Walston: My Lords, perhaps I may speak briefly from these Benches and, as a former very junior colleague of the late Lord Gardiner, pay my tribute to him. As has been said, he was a great reformer—a persistent, almost stubborn reformer—yet he combined with that persistence and stubbornness great gentleness, humanity and goodness. He was in every sense of the word a gentleman, and all of us who had the privilege of knowing him and working with him are the better for it.

Bank of England: Role
2.52 p.m.
Lord Ezra Lord Ezra asked Her Majesty's Government:
Whether they are considering giving the Bank of England a more independent role.
The Paymaster General (The Earl of Caithness): My Lords, the Government have no such plans.
Lord Ezra: My Lords, does the noble Earl agree that there is a trend, particularly within the European Community, for central banks to achieve greater independence? In the light of that trend, would it not be desirable that we in the UK responded to it and made our central bank less an arm of the Treasury and more an independent body directly answerable to Parliament?
The Earl of Caithness: No, my Lords. The primary concern is to bring down inflation. That is the Government's responsibility which they will not abdicate.
Lord Taylor of Gryfe: My Lords, does the Minister agree that the relationship between the central bank and the Government is a very delicate one, and that it depends substantially on who occupies the important post of Governor of the Bank of England? May I have an assurance that, in any subsequent appointments to that great and important position, a distinguished banker with experience in that field would be a candidate, but not necessarily with political ties?
The Earl of Caithness: No, my Lords. I shall not give the noble Lord that assurance; but I shall certainly pass his thoughts on to my right honourable friend.
Lord Bruce of Donington: My Lords, does the noble Earl agree, as I am sure he will, that bankers have no monopoly of wisdom? Regarding the supplementary
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question put by the noble Lord, Lord Ezra, would it not be better if, rather than be required to react to what our colleagues think about these matters, we asked our colleagues to react to what we in Britain think?
The Earl of Caithness: My Lords, I agree with the noble Lord's first point. On the second point, that matter was discussed fairly extensively in our recent debate on the Delors Report. I am sure that noble Lords will recall that it was not the mood of the House that there should be an independent bank in this country.
Lord Jenkins of Hillhead: My Lords, without necessarily having enough old Treasury feeling to be sure that one wants the central bank to go off on its own and without necessarily endorsing that point of view, will the noble Earl tell us how he pursues his argument that there cannot be independence for the central bank because the Government's priority is to bring down inflation? Surely it is a striking and observable fact throughout the world that it is the countries with independent central banks—Germany, Switzerland and even the United States—which have notably lower inflation rates than those with more dependent central banks.
The Earl of Caithness: My Lords, I wish that the matter was as simple as that; but, as the noble Lord will be aware, there are constitutional differences and a different attitude, particularly in the countries mentioned by the noble Lord, which affect the situation.

Friendly Societies: Green Paper
2.55 p.m.
Lord Ezra: My Lords, in the unfortunate absence, due to illness, of my noble friend Lord Banks, I beg leave to ask the Question standing in his name on the Order Paper:
Whether the Government are now ready to publish a Green or a White Paper on their proposals for the future legislative and tax regime for friendly societies, bearing in mind that an internal review on the subject was established in September 1988.
The Earl of Caithness: My Lords, we plan to lay a Green Paper before Parliament tomorrow.
Lord Ezra: My Lords, I thank the noble Earl for that positive response. However, is he aware of the eagerness with which the friendly societies await a positive response from the Government in this matter which has now been subject to discussion for several months?
The Earl of Caithness: My Lords, I appreciate the eagerness for the Government response. If the friendly societies would only wait for another 24 hours or so, that will be satisfied.
Lord Bruce of Donington: My Lords, will the noble Earl give the House an assurance that the paper will fully take into account the unfair position in which low income depositors with a building society are put as a result of the existing composite rate? Can he give any hope that that injustice will be amended?
The Earl of Caithness: My Lords, the noble Lord asks a question which is rather tangential to the Question on the Order Paper; but I should not like to commit myself in advance of what is said tomorrow.

Hearing Aids: NHS Service
2.57 p.m.
Lord Hunter of Newington Lord Hunter of Newington asked Her Majesty's Government:
Whether the provision of hearing aids by the National Health Service is satisfactory and the referral of such patients to ear, nose and throat surgeons in hospitals is necessary.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Hooper): My Lords, the National Health Service has provided and continues to provide a very good hearing aid service to large numbers of hearing-impaired people. A variety of proposals for hearing aid services announced last year included the setting up and evaluation of pilot projects which will involve the direct referral of patients from their general practitioners to the hospital audiology department without the need for a prior examination by a consultant. However, there are some patients with a hearing loss caused by an underlying medical condition who may need to be examined by a consultant before being referred for a hearing test and fitted with a hearing aid.
Lord Hunter of Newington: My Lords, I thank the Minister for that reply. Does she believe, as I do, that every senior citizen should be offered an audiogram at suitable intervals? There is a growing practice for the machines to be available in general practice, and one hopes that in future large general practices will have that facility. Does the Minister agree that the ideal person to operate the machine would be the practice nurse? Does she further agree that the overcrowding of ear, nose and throat departments with so many additional patients is burdensome?
Baroness Hooper: My Lords, the screening of elderly patients in particular, which is proposed in the new GP contracts, will go some way to meet the noble Lord's anxiety. We encourage testing and dispensing services in community centres in order to cope with geographical problems, but under the control of the hospital unit. If GPs have the necessary expertise and equipment, there is no reason why that service should not be carried out by them.
Lord Molloy: My Lords, is the noble Baroness aware that the old-fashioned National Health Service
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hearing aid has brought millions of people immense happiness and relief? Is she further aware that there now exist on the British market exceptionally super hearing aids which could be a further blessing to those who are very hard of hearing? Is it not possible for the Government to make them available on the NHS? If a doctor believes that a patient's problem is caused primarily by a hearing aid deficiency, is it not possible for the patient to go direct to the hearing aid department, and for the patient to be referred to the other departments only if that department believes that there is an additional problem? Could at least that prospect be examined?
Baroness Hooper: My Lords, as I said, we believe that the National Health Service hearing aid service has provided and continues to provide a very good service. As a result of the proposals announced last year by my right honourable friend we shall be looking to increased co-ordination. As regards choice of hearing aids, there is a wide range of National Health Service hearing aids available to meet a variety of needs. In a few cases however a patient's clinical need may only be met by a commercial hearing aid which may be purchased and supplied free of charge to the patient by the National Health Service hearing aid centre.
Baroness Fisher of Rednal: My Lords, can the Minister tell the House whether it is understood that the general practitioner who supplies a hearing aid through his own clinical diagnosis without sending the patient to the hospital will have that charge come out of his practice money? If for one reason or another that is not possible because the general practitioner does not supply that service, and the patient has to be referred to the hospital, will that come out of the practice budget and will he have to pay a hospital charge for that patient?
Baroness Hooper: My Lords, as said, testing outside hospitals will continue to take place whether in community centres or via GPs under the control of the hospital unit. Therefore we have no plans at present to make the kind of arrangements that the noble Baroness suggested.
Lord Peston: My Lords, clearly hearing problems and remedial work are subjects which noble Lords take very seriously. Did I understand the Minister to say that the NHS would provide whatever state of the art hearing appliance that was required by the patient and that there is no restriction on the ability of the medical profession to provide under the National Health Service the exactly correct hearing aid? In other words, is the noble Baroness saying that the stories that one hears to the effect that the very best hearing aids are not available on the NHS are not true?
Baroness Hooper: My Lords, what said was that there is a wide range of hearing aids available under the National Health Service. In fact the Mersey Regional Health Authority which is responsible for the procurement and distribution of all National Health Service hearing aids has recently negotiated with the hearing aid industry for a reduction in the

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cost of commercial hearing aids supplied free of charge to NHS patients. That means that in future National Health Service hearing aid centres should be able to supply even more commercial hearing aids and that is certainly the intention.
Lord Peston: My Lords, may I ask the Minister to clarify her answer? I agree that I used the cliché "state of the art". Nonetheless I asked in the case of a person going for a hearing aid under the NHS and who required the very best available technologically advanced hearing aid, whether that would be prescribable under the NHS? Is she able to say categorically "yes" in answer to that question?
Baroness Hooper: My Lords, our firm intention—and I wish to emphasise it—is that National Health Service hearing aids should remain free at the point of issue. The vast majority of hearing aids come within that definition, which is being expanded as a result of the procurement and distribution arrangements being made by the Mersey Regional Health Authority. We certainly hope to have the widest possible choice available for patients.

Training and Enterprise Councils: The Disabled
3.4 p.m.
Baroness Turner of Camden Baroness Turner of Camden asked Her Majesty's Government:
Whether they are satisfied that sufficient resources are available to Training and Enterprise Councils to provide special training for disabled people to enable them to secure employment; and what steps are being taken to ensure this.
The Parliamentary Under-Secretary of State, Department of Employment (Lord Strathclyde): My Lords, Training and Enterprise Councils (TECs) will have responsibility for improving arrangements for training in their areas and will have substantial and sufficient resources for this task. As part of that, each TEC will be required to set out how it intends to provide in its business plan for the needs of people with disabilities. That will form the basis of its contract with the Secretary of State for Employment.
Baroness Turner of Camden: My Lords, I thank the Minister for that response, which is encouraging. On the other hand, is he aware that training disabled people is an expensive, though very worthwhile, process? In fact I understand that it can cost as much as between £10,000 and £20,000 a year to train a badly disabled person. Would it not be a good idea to have a national TEC with that kind of responsibility, able to co-ordinate and with specialist resources and specialist personnel to carry out that task?
Lord Strathclyde: My Lords, superficially the proposal of the noble Baroness is attractive, but the whole idea of the TECs is that they are locally responsive and flexible to local training requirements. I believe that the employment opportunities of people with disabilities will best be
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served by having training provision made for them by TECs at a local level.
Lord Mellish: My Lords, is the Minister aware that the training board for the construction industry is probably one of the most efficient in the country? Can he tell us what, if anything, it does about training disabled people, recognising that disablement more often than not comes from employment in the building trade? I refer to those disabled who are confined to a wheelchair but who can in fact carry on working. What is done to help them retain their position?
Lord Strathclyde: My Lords, I am not sure what the construction industry training board does to help people with disabilities. The Question deals with Training and Enterprise Councils. However, I agree with the noble Lord that people with very severe disabilities—people in wheelchairs—can play a full and very valuable part in the whole economy.
Lord Dormand of Easington: My Lords, will the Minister confirm that throughout the whole of England there are only 39 groups of employers who receive development funding and that means that there are very wide areas of the country in which no training at all is conducted? That affects particularly the disabled in the way that my noble friend described. When will the Government do something about setting up TECs throughout the whole country and when are they likely to complete the programme?
Lord Strathclyde: My Lords, I am sorry to disappoint the noble Lord. The figure is not 39; 51 groups have been awarded development funding as of 18th December last year. That is out of a total of about 85. There has been an excellent response from employers. We are two years ahead of schedule and the first TECs will start operating early next year. That will help all people to get training for jobs.
Baroness Turner of Camden:My Lords, considering his earlier reply, perhaps I may come back to the Minister and ask him, in view of his statement that local activity is all important, whether TECs have been urged to establish contacts with their local committees on the employment of disabled people or other local groups concerned with the disabled.
Lord Strathclyde: Yes, my Lords. The noble Baroness will be pleased to hear that TECs are being greatly encouraged to negotiate and consult with their local committees for employment of disabled people. The Department of Employment will be monitoring the situation over the coming years to make sure that training provision is adequately given.
Lord Dormand of Easington: My Lords, perhaps I may come back to the Minister a second time. He said that he had disappointed me. He only disappoints me because the figure that he gave is grossly at odds with the Written Answer that I had from him two weeks ago.
Lord Strathclyde: My Lords, that was written two weeks ago. The new figure is 51. It might have been 39 then, but it is 51 now.

Business
Lord Denham: My Lords, it may be for the convenience of your Lordships to know that the Committee stage of the Food Safety Bill will be adjourend at about 7 p.m. for about an hour and that during this adjournment the Committee stage of the Trade Union Act 1984 (Amendment) Bill will be taken.

Food Safety Bill [H.L.]
3.9 p.m.
The Minister of State, Ministry of Agriculture, Fisheries and Food (Baroness Trumpington): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Baroness Trumpington.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 1 [Meaning of "food" and other basic expressions]:
Lord Ezra Lord Ezra moved Amendment No. 1:
Page I, line 7, after ("food") insert ("means any substance which, taken into the body, is capable of sustaining or nourishing the living human being and").
The noble Lord said: With this amendment are grouped Amendments Nos. 2, 3 and 4 tabled in the name of my noble friend Lord Falkland.
There seems to be a gap in this very important and in many ways admirable Bill. It is in the definition of food. The Bill deals with food safety. The first clause purports to deal with the meaning of food. Yet, as the noble Baroness, Lady Trumpington, said in introducing the Second Reading, it is indeed droll that it should start by defining food as including drink and chewing gum.
There are many definitions of food. I have chosen one from one of the dictionaries, the New English Dictionary, which seems to me to be very satisfactory. If it is not suitable, there could be another definition. In a Bill of the importance of this one, dealing with the subject of food, the first clause of which is intended to give the meaning of food, we should include such a definition. I therefore beg to move.
The Viscount of Falkland: I speak to Amendments Nos. 2, 3 and 4. Amendment No. 2 is a technical amendment on which the other two follow.
These amendments relate to an element of doubt on which the Minister will perhaps be able to help me. Amendment No. 3 relates to the considerable concern about the increase in technological aids—the use of enzymes in particular—used in food production. As everyone knows, tastes in foods and methods of production become mores
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sophisticated. There has been considerable change in flavour technology. An enzyme, papain, which is injected into cattle prior to slaughter has the effect of tenderising meat. Other technological aids are used in flavour technology. There is some doubt as to whether they will be caught by this Food Safety Bill. I should welcome any guidance that the noble Baroness can give me.
Amendment No. 4 concerns the habit of changing diet. People decide for one reason or another to become vegetarian or to go on diets. Various products are available— they are sold in increasing quantities—in the shape of vitamin supplements which can be bought freely across the counter in chemist shops and elsewhere. We move the amendment because they fall into a legislative black hole. Perhaps the noble Baroness can guide us. The Department of Health regards vitamin supplements as food. The Ministry of Agriculture considers that they are in the province of the Department of Health. In the meantime, sales increase without any regulatory process to control the standards. I do not suggest at this time that standards in the production of these supplements are deficient in any way. However, the amendment seeks to plug the black hole to which I have referred.
Perhaps I may also refer to mineral supplements. They are a popular supplement to the diets of not only those people who decide to become vegetarian but those who acknowledge that because of the pressure of their lives they eat what is popularly known as junk food which has little nutritional value. People often supplement this diet with these products. Are mineral supplements covered by the original food Act or is that a further gap? I look forward to the guidance of the noble Baroness.
3.15 p.m.
Baroness Carnegy of Lour: Can the noble Lord, Lord Ezra, explain why these additions are necessary? Drink, chewing gum and other items which one chews and spits out are included in the Bill, as are food and,
"articles and substances used as ingredients".
The items to which the noble Lord referred are catered for under subsection (1)(c). Whether vitamins are already in the food which one eats or are added, they become part of the product. I should not think that they need necessarily be mentioned separately. Is it necessary to enumerate all additives? Is that what is being proposed? Are they not covered by subsection (1)(c)? It would be helpful if the noble Lord could reply on that point.
Baroness Gardner of Parkes: I find Amendment No. 1, moved by the noble Lord, Lord Ezra, slightly dangerous when it refers to "any substance which, taken into the body". Although under subsection (2),
"articles or substances used only as drugs",
are excluded specifically, feeding of a patient could be included under "any substance …taken into the body" by the intravenous route. I feel that that phrase is opening the issue up much more widely. I regard food as an ordinary, every-day item, as opposed to medicinal intravenous treatment, which should come under a different Act.
Baroness Trumpington: In Amendment No. 1 the noble Lord, Lord Ezra, has proposed a general definition of food. Perhaps I may explain why we have not included such a definition. I quite agree with my noble friend Lady Carnegy. It has never proved necessary in the past and the present wording of the clause covers any reasonable definition of the word "food". However, we are prepared to consider amending the clause to bring in items not normally regarded as foods but which have nonetheless been marketed for the purpose of consumption, such as slimming aids. I do not know why noble Lords should laugh. What a terrible start to the Bill!
In Amendments Nos. 2, 3 and 4 the noble Viscount, Lord Falkland, has suggested adding enzymes and other biotechnological aids and vitamin supplements to the Bill's definitions. These are already covered. Enzymes and biotechnological aids are covered by the word "substances" and "vitamin supplements" are covered by the word "food". Therefore the amendments of the noble Viscount are unnecessary. In view of this brief explanation and the Government's intention to amend the clause I hope that these amendments will not be pressed.
Lord Hailsham of Saint Marylebone: This may be a pedantic and perhaps even a foolish point, but I should like my noble friend to give some enlightenment. Since we are talking about the amendments of the noble Viscount, Lord Falkland, with that of the noble Lord, Lord Ezra, in subsection (2)(a) we read the words,
"live animals or birds, or live fish which are not commonly used for human consumption while they are alive",
as things which are not included as food. Can my noble friend tell me what live fish are commonly used for human consumption, other than perhaps oysters?
Noble Lords: Oysters!
Lord Hailsham of Saint Marylebone: But are oysters fish? I always understood that they were molluscs. What about John the Baptist and his locusts? Are they animals?
Baroness Trumpington: I am not sure whether St. John ate his locusts while they were alive. However, I believe that my noble and learned friend is right in saying that oysters are the only food that one eats while they are alive.
Lord Ezra: I thank the noble Baroness for her comments on my amendment. I am still a little surprised that the Government are so reluctant to include in the Bill a general definition of food. I have read carefully the notes on clauses. As background there is reference to the Food and Drugs Act 1938. That Act defines foods comprehensively as being any article used as food or drink for human consumption. I should be happy with a similar definition.
It is odd that we forbear to give any definition of food of any kind. It is merely implication of what is commonly attributed to be food on which the whole
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Bill is based. I am not pressing for my particular amendment but hope that in reconsidering the matter the Government will return to the definition contained in the Food and Drugs Act 1938.
The Viscount of Falkland: I thank the noble Baroness for clearing up our doubt about the status of vitamin supplements and indicating that they are food. I hope that her remarks will be carried over into other quarters so that the situation is fully understood.
I turn to the point made by my noble friend Lord Ezra. The definition of food, which was tucked away and to which he referred, was probably satisfactory. There have been changes in taste and there are now greater varieties of food and substances which are considered to be food. Therefore, it is perhaps desirable to have on the face of the Bill the definition put forward by my noble friend although it may not be perfect. Nevertheless, I accept the points made by the noble Baroness in respect of my Amendments Nos. 3 and 4 and indicate that I shall not move them.
Lord Ezra: In the light of the comments which have been made, and in the hope that we can return to the matter at a later stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 2 to 4 not moved.]
Lord Carter Lord Carter moved Amendment No. 4A:
Page 1, line 15, after ("fish") insert ("except insofar as those animals, birds or fish are likely to be offered for human consumption").
The noble Lord said: The amendment follows on from the previous group and is intended to probe the definition of food, particularly to see how far along the food chain the Bill will operate. It will help to establish at the outset of our discussions that the Bill is not concerned with the whole food chain and contains no provisions in respect of animal feed.
In interviews in the media Ministers have claimed that the Bill is concerned with the whole food chain. That is not the case and our amendment points to that fact in order to establish at the outset the scope of the provisions that we shall be discussing. For example, much of the controversy over salmonella in chickens and eggs, which some of us remember with feeling, is centred on the recycling of poultry remains in animal feed.
The amendment does not seek to suggest that such practices are unregulated, because they are covered by a different system of regulation under different legislation. However, recently there has been considerable concern about the patchy monitoring of such regulations and about the extent of reliance on voluntary codes within the industry.
The point of the amendment is to focus attention on the fact that the Food Safety Bill contains no improvements or proposals in respect of one of the most controversial areas of food production. It is extremely important to consumers, manufacturers and farmers because the rendering of waste animal remains is a siginificant means of disposal.
Therefore, it is important that at the outset we understand exactly how far along the food chain the Bill will operate. I beg to move.
Baroness Trumpington: The exclusion from the Bill of animal fodder and feeding stuffs is quite deliberate. Controls already exist under the Agriculture Act 1970, the Animal Health Act 1981 and in EC regulations. Emergency powers are included in the Food and Environment Protection Act 1985.
The arrangement is well established. Members of the Committee will be aware that the emergency powers were used when dealing with recent difficulties concerning lead in cattle feed. My right honourable friend the Minister of Agriculture, Fisheries and Food was able to issue directions covering suppliers' and compounders' premises as well as to make emergency prohibition orders covering farms.
I hope that, in view of that explanation, the noble Lord, Lord Carter, will withdraw his amendment.
Lord Carter: I am grateful to the Minister. I understand exactly what she is saying but the problem lies in the words "fodder or feeding stuffs". The amendment refers to animals or birds and we wish to be clear that the Bill is not intended to deal with the rendering of animals or birds as a form of feeding stuffs.
Baroness Trumpington: I add only the fact that feeding stuffs legislation has never been considered appropriate to food law. For that reason existing controls are not found in the Food Act but in the other Acts which I mentioned.
Lord Carter: I am grateful to the Minister and I beg leave to withdraw the amendment.
Amendment, by leave withdrawn.
Lord Mottistone Lord Mottistone moved Amendment No. 5:
Page 2, line 5, at end insert ("for the purpose of sale").
The noble Lord said: The provisions appearing at the bottom of page 1 of the Bill deal with commercial operations. All other definitions of commercial operations, except for that relating to importing and exporting, are qualified as being for the purpose of sale. It is strange, therefore, that the words "for the purpose of sale" do not appear within that classification.
Without such an amendment the definition relating to importing and exporting would encompass some goods not intended for sale; for example, commercial samples, raw materials intended for further processing and possibly materials transferred within companies. Some companies have factories in many countries, some of which are inside the EC and some outside. They may wish to make such transfers which would fall within the general definition of exporting and importing.
Therefore, I suggest that such activities relating to such products would more suitably fall outside the
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definition of sale as provided for in Clause 3 of the Bill. I hope that my noble friend will be sympathetic towards the amendment. I beg to move.
Baroness Trumpington: I appreciate my noble friend's concern to avoid unwarranted restrictions on those who import and export food. However, I do not believe that his proposal is appropriate. Members of the Committee will readily understand why, in some instances, the best way to keep unsafe food from reaching consumers and thus endangering health is to keep it out of the country. Our ability to do so should not depend on being able in every case to prove that the food is intended to be sold. Such proof could be very hard to establish in some instances. For example, if contaminated food came here from abroad—that is, contaminated either in the country of origin or during transport by being next to something such as lead which made it dangerous—there might be an argument about whether the contaminated assignment was intended for sale. If challenged, the owner might argue that he was not planning to put it on sale for human consumption. Any regulations or emergency control orders that we had made would then be ineffective. It appears to us to be wrong to risk putting public health at risk in that way.
As regards domestic supplies, it is safe to work on the presumption in Clause 3 that this will not necessarily apply to goods in the ports in the kind of circumstances that I have described. Controls relating to imports and exports will be put in place through regulations. In most cases there will be a statutory requirement to consult interested parties. The only exception is where Clause 18(1)(b) is used to prohibit the import of food of a specific class where action may have to be taken too quickly to permit consultation. In all cases we will of course be at pains to avoid creating unnecessary controls. I hope that my explanation is satisfactory to my noble friend.
Lord Mottistone: I thank my noble friend for her very detailed explanation which I shall read with great care. My immediate thought is that it probably satisfies the point which I tried to make but I reserve the right to come back if I find that is not so. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
3.30 p.m.
Lord Mottistone Lord Mottistone moved Amendment No. 6:
Page 2, line 8, leave out ("article or substance which") and insert ("material or article, which is in its finished state,").
The noble Lord said: The purpose of this amendment is to make the definition consistent with the materials and articles in contact with food regulations for 1987 which themselves give effect to the relevant EC directive. It seems to me important that the Bill should be consistent with such other legislation and I hope my noble friend agrees that that is so. I beg to move.
Baroness Trumpington: I have no difficulty with the principle behind my noble friend's amendment which would bring the Bill's definition of contact material into line with that in relevant European

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Community legislation. However, I believe that it is desirable to have a rather broader definition in our domestic legislation. There may be cases where we need to take action in the UK beyond the scope of EC requirements; for example, the wider definition in the Bill as drafted would cover substances such as water used to wash food and the ingredients used to make contact materials. We do not wish to create potential loopholes by making our definition unnecessarily restrictive. For that reason I prefer not to narrow the definition in the way proposed by my noble friend and I hope that he will withdraw his amendment.
Lord Mottistone: I thank my noble friend and I understand her argument. However, it appears to me inconsistent. For the past 12 or 15 years, whenever one has sought to change definitions, one has been told not only by this Government but also by Labour governments that we must follow precisely what is laid down in the directive. Ministers have said that repeatedly. I believe that the logic of my noble friend's argument is quite good but perhaps she should go to Brussels and tell them to alter their legislation. If she could give me an indication that she has that in mind, I should be very happy. However, I do not wish to press the matter at this stage but again I reserve the right to come back if I feel that we can usefully wag this tail a little more.
Baroness Trumpington: There are horses for courses but perhaps my noble friend and I could have a chat together outside the Chamber on this matter.
Lord Mottistone: I welcome that and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mottistone Lord Mottistone moved Amendment No. 7:
Page 2, line 15, at end insert ("or mineral").
The noble Lord said: This amendment seeks to add the words "or mineral" to the definition of food source. It may seem rather strange to Members of the Committee to add those words. Animal, vegetable or mineral is a well-known game which we are not seeking to play during this Committee stage. However, food contains ingredients which are minerals. A very good and common example of that is salt. It seems to me that it would be relevant and appropriate to include such minerals within this general definition of food source. I beg to move.
Baroness Trumpington: Again, I understand the reason behind my noble friend's proposal. His objective to ensure that minerals intended for use in food such as salt can be subject to controls under the Food Safety Bill is one which I share. However, the definition of food in subsection (1)(c) includes substances used as ingredients for food so that minerals such as salt intended for use in food are already caught by all the main provisions in the Bill. To redesignate such minerals as food sources rather than food would weaken rather than strengthen our controls because we would have to make special regulations to apply the provision to minerals. I hope that my noble friend sees my point on this matter.
Lord Mottistone: Yes, I do see my noble friend's point. However, I am not entirely happy that the result will be exactly as she wants it to be, so I may return to this matter at a later stage. However, at present I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mottistone Lord Mottistone moved Amendment No. 8:
Page 2, line 17, at end insert ("or any raw, unprocessed or incompletely processed articles or substances derived from the same from which food is intended to be derived;").
The noble Lord said: This is a further and rather more detailed amendment to the definition of food source. The current definition combined with a lack of clear definitions of food and food ingredients, to which the noble Lord, Lord Ezra, drew attention on Amendment No. 1, could lead to an assumption that immediately farm produce moves forward in the food supply chain, it becomes food within the meaning of this Bill and controlled as such.
Historically, that has not been so. The Bill does not change the position that food and food ingredient do not include materials which are still not, or not sufficiently, processed to be regarded as a food or food ingredient; for example, unrefined vegetable oil is a raw material from which a food ingredient is still to be prepared although it has ceased to be a food source. This matter is complicated but it is very important to get right this part of the Bill dealing with definitions. It would be helpful if those detailed points could be taken by my noble friend.
The Bill rightly claims to control food safety at every point in the food chain from the farm gate to the point of sale for human consumption. That could be achieved by broadening the definition of food source, as suggested by this amendment, so as to encompass what has ceased to be a food source as currently defined but which has not as yet become a food or food ingredient.
Without such an amendment certain businesses—for example, oil seed milling—would not be a food business and would go uncontrolled. I hope that my noble friend will agree that that needs to be looked at carefully even if she does not agree with the amendment as it is phrased, and that perhaps we may tackle this at a later stage. I beg to move.
Baroness Trumpington: I understand my noble friend's wish for clarity but in practice this amendment would weaken rather than strengthen the provisions of the Bill. I understand that there is concern that there may be a gap between food and food sources; for example, as regards crops such as cereals. However, I am satisfied that there is no gap.
Under the definitions in the Bill as it stands, live things are food sources but they automatically become food the moment they are harvested, slaughtered, picked or gathered, even before they have undergone any processing. The effect of this amendment would be to reclassify certain unprocessed or incompletely processed foods as food sources. As food sources they would be subject to fewer contols than they would as food, because special regulations have to be made to bring them into the full system in the main clauses of the Bill.

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I hope my noble friend will not press this amendment, but I bet that he will wish to have a further bite when he has read what I said.
Lord Mottistone: I am indeed grateful to my noble friend for her explanation. I will certainly read with great care what she said. I hope she will also read with great care what I said, because I think there is probably still a gap here. We shall perhaps come back to it at the next stage of the Bill. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave withdrawn.
Clause 1 agreed to.
Clause 2 [Extending meaning of "sale" etc.]:
Lord Mottistone Lord Mottistone moved Amendment No. 9:
Page 2, line 32, leave out from ("business") to end of line 34.
The noble Lord said: This amendment is of a different nature from the one about which we have been talking. Have we not moved on to Clause 2? Are we not going to have Clause 1 stand part?
Baroness Gardner of Parkes: That has been dealt with.
Lord Mottistone: I apologise. I was worrying too much about my next amendment. I thought I had a little more time to worry about it.
We are trying to leave out paragraph (b), which will enable Ministers to make an order with regard to practically anything relating to food that they have not thought of in preparing the Bill. What is more, as we discussed at Second Reading, all the orders are subject to the negative procedure and therefore are harder to interfere with.
It seems to me that this is a catch-all little bit of legislation which the Government have put in to make sure that they are never caught out. I expect that my noble friend will say, "Of course things may happen and we have to work quickly", and so on. However, my noble friend referred earlier to Clause 18(1)(b), which seemed to me to be the sort of area in which the Government would have the extra powers that they are looking for. I should think it unwise for the Committee to give the Government such far-reaching powers. There may be other ways of wording this so that they do not have quite such carte blanche to make any legislation they want without us finding out until after it is done.
I should have thought, from the point of view of the Committee as a whole rather than the details of what the food industry might think, that it would be better to delete paragraph (b) and replace it with something more subject to parliamentary control than in the event Clause 2(1)(b) may give the Government an opportunity to do. I hope the Committee will agree with me that this is a dangerous subsection which governments should not be let loose with, and that we can perhaps put it another way. I beg to move.
The Earl of Radnor: I support this amendment, because as well as paragraph (b) being a little
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dangerous it is covered perfectly adequately in Clause 13 where the emergency food orders come into play. That gives Ministers roughly the wide, sweeping powers that the noble Lord, Lord Mottistone, mentioned. Not only does it seem a little sweeping and powerful but it does not seem to be needed at all. If Clause 13 were altered and there were an alteration here, there might be more cause for argument.
3.45 p.m.
Viscount Montgomery of Alamein: I support my noble friend Lord Mottistone in inquiring a little further concerning the procedures which will be adopted for the regulations that will be introduced, because one has the impression from the Second Reading debate that, this being an enabling Bill, there will be sweeping regulations which may affect the retailers of food and will certainly widely affect those purveyors of food in the restaurant trade.
Can my noble friend say clearly what will be the procedure for dealing with the regulations when they come to this Chamber? Will they be debated or will we simply be subject to government diktat which will be difficult to avoid and where, after the debate has taken place, very little more can be done? If that is the case, obviously this amendment or something in its place will be necessary.
Baroness Phillips: Perhaps the Minister can assist us by giving an example of,
"any such other thing done with respect to food as may be specified in an order made by the Ministers".
Can the noble Baroness think of a situation where a Minister would make an order that is not already covered in the Bill?
Baroness Trumpington: While I fully recognise the concern that Ministers should not be given open-ended powers, it is necessary to allow Ministers to make orders which extend further the meaning of "sale" in order to meet Community obligations which go beyond simply regulating commercial supply. This applies particularly in the area of meat imports and exports and in relation to pesticide residues.
It will enable the free distribution of food to such groups as senior citizens to be covered by food law. There is no intention of including food prepared in the home for domestic purposes. Food sold by organisations such as women's institutes which is proved to be unfit is already caught under current legislation. We will be considering carefully the position of such organisations when looking at the details of the new provisions in the Bill, such as registration of premises and training of food handlers.
One of my noble friends—I think it was the noble Viscount Lord Montgomery —asked whether orders would be debated. The answer is that it is not at present so intended, but in the light of what my noble friend said I am prepared to consider whether there is a case for consultation.
Baroness Carnegy of Lour: Can my noble friend say whether there is anything under Clause 2(1)(b)

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to prevent the government of the day making an order to the effect that none of us may boil eggs other than hard-boiled? The Minister said the Government have no intention of telling us what to do at home, but is there anything to prevent that? If there is not, should this clause not be amended to make quite clear that it has nothing to do with what we do in our own homes? It is just a thought.
Baroness Phillips: I do not want to press the Minister, but I did not get an answer to my question. I am particularly concerned about the strange reference to senior citizens. I could not quite decide whether they came under the order of food, if necessary, or whether they are going to be fed something specially.
Baroness Trumpington: It is proposed to delete Clause 2(1)(b). This power, as it exists in that paragraph, will enable Ministers to expand by order what is deemed to be "sale". It was added because of the need to control food in certain circumstances when it is supplied otherwise than by sale or in the course of a business; for example, the free distribution of food which EC directives have provided for in the past. That is the reason I brought it in.
Lord Lyell: Before my noble friend sits down, can she assist me on a point raised by my noble friend Lord Radnor, who referred to Clause 13 dealing with emergency control orders? I confess to my noble friend as well as the Committee that it escaped my notice that these emergency control orders can be made, particularly in Scotland, by a sheriff. Am I right in thinking that once an emergency control order had been made it would have to be debated as any other order in this Chamber?
If that is so, I believe that the point raised by the noble Earl is covered by what has been said so far by my noble friend the Minister. It seems that an emergency control order would have just the same obstacles and problems as well as the same benefits as those outlined by the Minister. Perhaps she will clarify that point for me.
Baroness Trumpington: I do not believe that my noble friend is right in this context. I am sorry that I did not answer my noble friend Lady Carnegy. My answer to her is no, the measure does not mean that one would not be able to boil an egg within one's own house. I hope I have explained why I put in the free distribution to old age pensioners. That was because the whole purpose of the clause is the
"Extended meaning of 'sale' etc".
In addition, as I said in my original remarks, there are the EC provisions which go beyond commercial supply.
Baroness Gardner of Parkes: Does my noble friend also include facilities such as meals on wheels in that category, or does it relate only to distribution from the EC? I know that it is a grey area.
Baroness Trumpington: It is not free but paid for. I was speaking about the free distribution of food.
Baroness Gardner of Parkes: With respect, meals on wheels can be paid or unpaid.
Lord Hailsham of Saint Marylebone: At the risk of trying my noble friend's patience, can she tell me whether the provision of food by the Lord Chancellor at his annual breakfast is covered by the Act? I note that Clause 54 of the Act binds the Crown, but I remember that before the war drink was certainly provided in the smoking room of the House of Commons, but it was held to be outside the provisions of the then current legislation because this is a Royal Palace.
Baroness Trumpington: As regards Crown immunity, this building being a Royal Palace, at the moment it is outside the provisions. For the time being, that answers my noble friend's question.
Lord Ezra: Does the noble Baroness accept that there is a good deal of concern expressed on all sides of the Committee by the wide manner in which Clause 2(1)(b) has been drawn? It appears to give the Minister virtually unlimited powers, though the noble Baroness has said that in some ways he would not exercise those; for example, in connection with what goes on in the home. Nevertheleless, would she be prepared to take the matter away and to consider it again as to how the problem might be represented in ways such as to allay some of the fears which have been expressed?
Baroness Trumpington: No, I would not. There is one other point that I failed to answer concerning Clause 13. I believe my noble friend Lord Lyell asked me about that. Emergency control orders can only be used where there is an imminent risk of injury to health. An emergency prohibition order is made by sheriffs or magistrates, and they can be applied only to individual businesses. In addition to what I said to my noble and learned friend Lord Hailsham, Royal Palaces will come under the provisions of this Bill from 1992 onwards. However, food would not be sold or supplied in the course of business.
Lord Mottistone: I am not at all happy with what my noble friend has said. We have heard something from the noble Baroness, Lady Phillips, but nothing from the Opposition Front Benches. I wonder what they feel about this matter.
Lord Gallacher: I have not intervened because, in reply to an earlier comment, the noble Baroness seemed to indicate that she was amenable to consultation on this clause. That satisfied me though I would have welcomed a closer definition of the form of consultation which she has in mind. However, later on she appears to have departed from that proposition because she was adopting a somewhat negative stance on the issue. That was commented on by the noble Lord, Lord Ezra.
It would be helpful to the Committee to know that if this amendment were to be withdrawn—and that is entirely a matter for the noble Lord, Lord Mottistone—is there to be consultation? On the other hand, if the noble Lord withdraws the

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amendment does that indicate that the situation is now final regarding the Bill?
Baroness Trumpington: I thank the noble Lord for reminding me that I had said that we would consider consultation. I stand by that.
Baroness Carnegy of Lour: I do not wish in any way to be unhelpful. However, for the sake of clarity, I read what the Bill says:
"For the purposes of this Act—any such other thing done with respect to food…shall be deemed to be a sale".
That must be nonsense.
Lord Mottistone: I thank the noble Lord, Lord Gallacher, for his contribution. I had forgotten that my noble friend had indicated that she might consult. She was very definite when replying to a question from the noble Lord, Lord Ezra. That is fine. I hope that consultation will be more successful because it seems to me that Members on all sides of the Committee are not happy with the wording as it stands. We ask the Government to think again very carefully. My noble friend gave examples of the meat industry and of old age pensioners and all kinds of important people of that nature. If there are special examples they can be specified. It is the unqualified coverage which sticks in the gullet. I hope that we shall have a successful discussion and that we shall return with a government amendment on the issue. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lady Saltoun of Abernethy Lady Saltoun of Abernethy moved Amendment No. 10:
Page 3, line 6, at end insert—
("(3) This Act shall not apply in relation to any food which is exposed for sale, offered as a prize or reward or given away in connection with any function or social gathering to which the public are admitted whether on payment of money or not at any premises other than at premises registered under section 19 of this Act organised by any person or body established for charitable or benevolent purposes according to the law of England, Wales or Scotland.").
The noble Lady said: This is a probing amendment drafted in order to clarify the position of charities, though I fear that the amendment will possibly not have the effect that I had hoped. It seems that Clause 2 as it stands may affect the position of charitable organisations selling or offering as prizes food or drink which has been donated for that purpose at fund-raising events.
On such occasions the donated food is often mixed up with other food. Therefore, it would not be possible later to identify the donor of sandwiches which have caused the food poisoning. Will liability rest with the charity, the donor or with whom? I appreciate the Government's obvious wish that functions such as large charity balls held in London hotels should not be exempted in any way regarding the refreshments purveyed. As the hotels' premises will presumably be registered under Clause 19 of the Bill, liability will therefore fall on the proprietors of the hotels whose charges will reflect the liability. Can the noble Baroness say who will be liable on those occasions for any mishap caused by food or drink which is raffled or given away as a prize?
Another very important aspect is that at a simpler level charitable functions, particularly in Scotland, often take place in the function suite of the local hotel where the proprietor makes his premises available to the charity for a nominal consideration. The charity provides the food, and staffs the event, using the kitchen of the function suite which, I presume, would be registered premises under Clause 19. Can the Minister tell the Committee who will be liable for damages under the Bill? If it is the charity or the donor, all well and good because I think that that maintains the status quo. But if it is the hotel, there can be serious implications for charitable functions all over Scotland. If hotels are sudden] y to be liable for damage caused by food over which they have no control, they will not be prepared to allow their premises to be used in this way in the future. That could ring the death knell of a vast number of fund-raising events. I beg to move.
4 p.m.
Baroness Hooper: I am grateful to the noble Lady for her explanation of the proposed amendment. I fully understand her desire to clarify the position at this stage. Nevertheless I feel sure that she does not wish to step backwards in regard to protecting the consumer. In fact she admitted that the amendment may not achieve what she intends.
Events run by charities or benevolent organisations are already covered by the Food Act 1984. As far as I am aware this has not been burdensome to charities. Enforcement officers have powers to enter premises where events are being held, inspect food being sold, take samples if necessary and, most importantly, investigate any outbreaks of food poisoning. The amendment would remove these existing provisions and I am sure that the noble Lady does not intend that. It is essential that we retain our current ability to investigate problems. For example, in 1987 environmental health officers were involved in investigating food poisoning which resulted from a lunch for more than 70 people given on behalf of a church charity in Alton in Hampshire. The lunch was given in the church hall. If the amendment were accepted, the environmental health officers would not have been able to investigate that problem. In fact in that case I understand that no prosecution took place.
I am not aware that the existing legislation has had any detrimental effect on events run by charities. I know that the noble Lady is concerned that food law should not restrict these events. I am confident that it will not do so. We shall consider carefully what impact if any may be caused by the new provisions of the Bill on charities and other benevolent organisations. In particular I would emphasise that we do not want to impose heavy burdens through the new requirements resulting from this Bill. The registration of food businesses and the training of food handlers will be introduced through regulations for general food premises. We have already said that registration will apply to commercial and permanent food premises. This should not affect the majority of charities.
Furthermore, we already have exemptions from some regulations made under food legislation.

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Exemptions have been used in the past and we would not hesitate to make use of them again if that proved necessary. For example, the food labelling regulations already exempt charities and other organisations from their provisions. Therefore the vigorous standards of those regulations do not apply to food sold at a WI bring-and-buy sale. The noble Lady quoted the example of an hotel. It seems to me that it is the registered business and that the food is in fact sold. There is therefore no difficulty there. The charity would be liable if there was a problem with food poisoning which resulted from activities that had taken place not on the premises. I hope that this undertaking will help to reassure the noble Lady and that she will therefore agree to withdraw the amendment.
Lady Saltoun of Abernethy: I am grateful for that reply but I am still not absolutely clear on this point. I did not quite hear what the noble Baroness said about liability when food poisoning occurs as a result of bad sandwiches being sold by a charity on the registered premises of an hotel, the food having been provided by the voluntary workers of a charity and not by the hotel.
Baroness Hooper: The charity itself, not the premises, would be liable if there was any problem with food poisoning.
Lady Saltoun of Abernethy: I am grateful for that reply. It sets my mind at rest. I was very much concerned that the hotel would be liable for something over which it had no control and therefore that such premises would no longer be made available to charities. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 agreed to.
Clause 3 [Presumptions that food intended for human consumption]:
Lord Gallacher Lord Gallacher moved Amendment No. 11:
Page 3, line 20, leave out ("until the contrary is proved").
The noble Lord said: This amendment is concerned with the words in the clause regarding a presumption about intention for sale. There are doubts about intent. By way of probing what the Government have in mind we suggest that the words "until the contrary is proved" be deleted.
The purpose of the probe is to discover just what type and weight of proof will be required to avoid liability for any foodstuff on the premises; for example, ingredients awaiting clearance prior to food use or food removed from retail sale. We are asking whether in those circumstances a notice or a label saying "not for sale" or "not for human consumption" would be enough under the clause. It has been represented to us that certain foods are injurious to health prior to processing. In this connection, red kidney beans have been quoted as an example. The manufacturers are asking how they are protected under the clause from prosecution for possessing them before they are processed. The
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purpose of the amendment is to probe these important points for the satisfaction of people who may be vitally concerned with them. The amendment harks back to Amendment No. 8. Nevertheless it raises a slightly different issue and is worthy of the Committee's attention. I beg to move.
Lord Mottistone: I am reassured by the fact that this is a probing amendment. From the point of view of food manufacturers, if this portion of the clause is removed it could remove the opportunity for a manufacturer to demonstrate that certain goods, including those which he has rejected through his quality control procedures, are not intended for sale. I hope that the substance of what the noble Lord is seeking to remove from the Bill will be left within it and that my noble friend will be able to reassure us on that point.
Baroness Trumpington: I do not believe that this proposal would give greater protection to consumers. Perhaps I may explain by way of background that Clause 3 ensures that, where appropriate, food should be presumed to be for sale for human consumption. This clause largely repeats the presumption provisions in the existing legislation but is placed more prominently in the Bill so as to highlight their importance.
If no such provision existed it would be possible for a person to claim that food kept on his premises was not intended for sale to the public. For example, a restaurant owner could claim that defective food kept in his kitchen was to be fed to his cat or dog even though the food in question was obviously intended for sale to the public. The enforcement officer would have to establish beyond reasonable doubt, sometimes in quite difficult circumstances, that the substance was food and was intended for sale. With the presumptions in Clause 3 the onus is on the defendant to establish on the balance of probabilities that a disputed substance is not food and is not intended for sale. That seems a reasonable balance. To go further, as the amendment suggests, would prevent him establishing that fact in his defence and would be unfair and unreasonable.
I think that I am now taking in the point raised by my noble friend. For example, if the quality control system informed such a person that food should not go on sale and if he had taken proper steps to ensure that it did not enter the human food chain—for instance, by recalling supplies before they reached the supermarket shelves—he could still be prosecuted, convicted and possibly imprisoned. In the circumstances, therefore, I hope that the noble Lord will withdraw the amendment.
Lord Gallacher: I am grateful to the noble Baroness for her reply which I shall study with care. I am reassured by what she said; I can only hope that those who advise me will be similarly reassured. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 agreed to.
Clause 4 agreed to.
Clause 5 [Food authorities and authorised officers]:
Lord Carter Lord Carter moved Amendment No. 11A:
Page 3, line 45, at end insert—
("(1A) For the purpose of facilitating the exercise of functions conferred by this section, the Minister shall within three months of its coming into effect, consult each food authority as to the additional activities which it considers likely to arise in each of the succeeding five financial years as a result of the functions conferred by this Act and the likely cost of those functions").
The noble Lord said: This amendment is intended to focus attention upon the Government's announcement of an additional £30 million per annum to fund additional regulation and monitoring work undertaken by local authorities through environmental health and trading standards officers.
The amendment suggests that the Minister should seek to identify after Royal Assent the actual level of additional activity which local authorities expect to undertake in each individual area on the basis of five-year projections. The purpose would be to identify the real cost which is likely to arise. The proposal would help to establish a clear commitment that the announced £30 million represents genuine new money to local authorities which will not be clawed back or compensated for elsewhere in revenue support grant settlements. It would also enable local authorities to fit the additional resources precisely to take account of local variations in need. For example, some urban and resort authorities have much larger numbers of restaurants and eating establishments than others. The variation in need may not be fully reflected in the existing mechanisms for the allocation of grant moneys.
It would be helpful if the Minister could indicate that the purpose is to identify needs in terms of food safety. Such an indication would help to show the extent to which the £30 million is sufficient to improve standards of food safety over the next five years.
If the exercise suggested by the amendment were carried out it would doubtless point out variations in the levels of monitoring as between one part of the country and another. That situation would undoubtedly arise if authorities had fears as to the likely resources available in relation to the needs of their areas.
I should like to make a comment as regards the figure of £30 million in relation to regulation and monitoring. It is an annual commitment. I was struck by paragraph 1.3 of the White Paper on food safety where the Government point out that the food industry contributes nearly 10 per cent. of the gross domestic product. I think that that means a turnover in the order of £40 billion per year. Moreover, in paragraph 2.10 the Government seem to take some pride in the fact that they have,
"a growing commitment to research on food safety…spending over £8 million a year on this work".
That means a turnover of over £40 billion for industry. It is a curious ordering of priorities which is prepared to spend £30 million on regulation and monitoring and yet only £8 million on research into food safety. I beg to move.
4.15 p.m.
Baroness Trumpington: Despite the fact that I have not had much time to digest the amendment moved by the noble Lord, Lord Carter, I know that I cannot accept it, but that is not because I am opposed to consultation; it is quite the reverse. My officials have already held consultations with organisations representing authorities to discuss the probable cost of enforcing the additional requirements which the Bill will introduce. Moreover, if I may say so, the figure of £30 million mentioned by the noble Lord, Lord Carter, was based on information received and seems to be a reasonable estimate.
The Bill also provides for statutory consultation with interested parties, which would include local authority organisations, on many of the regulation-making powers which could have financial implications for local authority enforcement. Moreover, I believe that there is an amendment to Clause 6, tabled by my noble friend Lord Mottistone, which calls for statutory consultation on all orders under Part I of the Bill, including those allocating functions to food authorities.
I intend to accept the principle behind what is proposed and I undertake to bring forward an appropriate government amendment. It will mean that whenever food authorities are faced with any change in their responsibilities and activities they will be given a formal opportunity to comment on the matter. However, I do not believe that it would be appropriate to write in here a formal requirement to discuss activities and costings with each of the food authorities individually, of which there are more than 600. That would be an enormously cumbersome, time-consuming and expensive exercise. In any case, there are already extensive discussions taking place between officials of government departments and local authority associations about spending pressures which culminate in a meeting between the local authority associations and Ministers.
Food authorities will be free to make their normal representations in the context of the revenue support grant and to take the added cost of the Bill's requirements into account. To a large extent a separate exercise of the kind proposed by the noble Lord would simply duplicate existing arrangements. I hope therefore that the noble Lord, Lord, Carter, appreciates the point I have made.
Lord Carter: I am disappointed by the Minister's reply. In my view, if the amendment had been accepted it would have given the Government the chance to deal with many of the problems and concerns in connection with local authorities which have been brought to our attention. I must say that consultation is not the same as a five-year projection or commitment. Further, as I understand her answer, it would be possible for the money to be clawed back. I trust that I understand the position correctly.
Baroness Trumpington: No.
Lord Carter: Is the Minister saying that it cannot in fact be clawed back?
Lord Carter: In that case, it would mean that in negotiations on the rate support grant there is no way that the money could be reallocated so that the £30 million was not in fact available—
Baroness Trumpington: Perhaps the noble Lord will excuse me if I intervene here for a moment. A commitment has been made as regards the £30 million. I stand by that fact.
Lord Carter: If I may say so, that is a most welcome assurance. However, I shall read with care what the Minister said and perhaps return to the matter at a later stage of the Bill's proceedings. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Gallacher Lord Gallacher moved Amendment No. 12:
Page 4, line 2, after ("islands") insert ("regional").
The noble Lord said: The purpose of this amendment is to bring Scotland into line with the provisions contained in Clause 5(1) as regards the definition of "food authorities". In that subsection,
"food authorities in England and Wales",
include,
"each London borough, district or non-metropolitan county".
In other words, subject to ministerial approval contained in subsection (4), the functions under the Food Safety Bill will be "exercisable concurrently".
It has been suggested to us that a similar formula ought to be devised for Scotland. The purpose of the amendment, tabled in my name and that of the noble Lord, Lord Ezra, would be to give Scotland the same kind of treatment.
To the best of my recollection, the situation which exists in Scotland followed a change which took place there because of a review on the working of local government reform in Scotland. I believe that this was undertaken by the noble Lord, Lord Stodart of Leaston. Part of his recommendation for change was that the enforcement of the environmental health function should be transferred from regions to district councils. At the time there was some apprehension about the reform among those people affected by it. However, I think that it is now generally conceded that it has worked well. For that reason it is not envisaged that there should be any question of a reversal of that arrangement by way of this amendment. Nevertheless, to give Scotland the same enforcement formula as that which applies to England and Wales would be good in its own right, and, for that reason, I beg to move. I am speaking also to Amendments Nos. 13 and 14.
Lord Ezra: I support the amendment to which my name is attached. The Government must surely agree that it is right that arrangements in Scotland should be on all fours with those proposed for England and Wales and that therefore the reference to "regional bodies" should be introduced.
Baroness Trumpington: The amendment is inappropriate and unnecessary. It seeks to effect a
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change in the responsibilities of local authorities in Scotland, and that is inappropriate for a Bill of this nature. Rather than clarify, it could fudge the lines of responsibility between the various layers of local government. I understand that Amendments Nos. 12, 13 and 14 are grouped together.
Responsibility for food matters in Scotland is exercised by environmental health departments. General trade descriptions and weights and measures are however the responsibility of trading standards officers employed by regional councils. That can lead to an element of overlap but the solution lies not in bestowing a statutory responsibility for food matters on the latter but rather in ensuring better co-ordination between the two bodies. The definition of "authorised officer" in Clause 5(6) which permits the food authority (district or islands council) to authorise
"any person (whether or not an officer of the authority)…to act in matters arising under this Act".
provides the vehicle for this better co-operation.
There is a further objection to the proposed amendment. Its effect would be to alter local government responsibilities. The division between different layers of local government is a subject which continues to generate debate in Scotland and my right honourable friend the Secretary of State feels, and I am sure the Committee would agree, that the Food Safety Bill is not the appropriate vehicle for tackling that particular issue.
Nevertheless, my right honourable friend the Secretary of State is aware that there can be an overlap, but the solution to that lies not in extending statutory responsibilities but rather in ensuring that there is proper co-ordination. The definition of "authorised officer" in Clause 5(6) which allows the food authority to authorise any person, whether or not within its employ, to act in matters arising from the Act—and this means that a district council could appoint a TSO—provides the means for such co-operation. I can assure the Committee that my right honourable friend will give every encouragement to local authorities to explore such means of carrying out enforcement in an efficient and cost effective way.
There is one exception that I should like to mention which relates to the second amendment which leaves out "or" in line 20. I can happily accept that amendment. With that little bit of comfort, I hope that the noble Lord will withdraw the amendment.
Baroness Carnegy of Lour: I listened with great interest to what my noble friend had to say, but I had some difficulty in understanding what she and the noble Lord, Lord Gallacher, said. Is my noble friend saying that the Secretary of State for Scotland has studied this point and is happy about it, and the fact that, for example, public analysts are employed by the regional councils while others involved are employed by the district is allowed for in the Bill? The noble Lord said that he in no way wanted to change the responsibilities of the tiers of local government, which would be inappropriate under the Bill. We want to be sure that the wording is correct for Scotland so that the whole matter is

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replicated in Scotland. I did not pick up that that was what my noble friend was saying. Is she sure of that point? If she is, I am happy for her not to accept the amendment.
Baroness Trumpington: My right honourable friend the Secretary of State for Scotland feels, as I said, that the Food Safety Bill is not the appropriate vehicle for tackling that issue.
Baroness Carnegy of Lour: I was asking my noble friend whether she was happy that the Secretary of State has examined the Bill closely and is assured that it is doing the same thing for Scotland as is being done for England and Wales.
Baroness Trumpington: I am not sure that "happy" is the word, but a happy little man from Scotland has given me this briefing.
Lord Ezra: Perhaps I may probe a little further. As I understood it from what the Minister told us when rejecting the amendment, the Government's opinion is that the wording properly mirrors the situation in Scotland. As I recall, she then went on to say that some of the monitoring staff are employed at district level and some at regional level. The whole purpose of the amendment is to include regions. If some of the staff are employed at that level what can be the objection to including the word "region"? I fail to see where any constitutional issue arises; it is a matter of fact.
Baroness Trumpington: It may be my fault, but in Scotland responsibility for food matters rests solely with the environmental health departments of districts and island councils. TSOs have no responsibility for food law in Scotland. That unitary approach is seen by many as the strength of the Scottish system. Contrary to the aims of the sponsors of the amendment, and notwithstanding the provision which would allow my right honourable friend the Secretary of State for Scotland to make orders laying down which of the authorities should do what, extension of the definition of food authorities to include regional councils could serve to fudge the lines of responsibility, creating additional confusion in the minds of consumers, food businesses and so forth. The Secretary of State considers the single-tier system to be the best and most appropriate means of enforcement. The public and the officials responsible for enforcement are in no doubt about the effectiveness and clarity of the arrangements; in other words, Scotland does not wish to accept the amendment.
Lord Gallacher: I am grateful to the noble Baroness for her remarks which I shall read carefully. Anglo-Scots intervene in Scottish affairs at grave risk. I am aware of course that Anglo-Scottish footballers are often booed at Hampden Park before they have touched the ball. That being so, I shall look at what the Minister said, in particular at her references to the views of the Secretary of State for Scotland and the point she made that the district councils in Scotland could, if they wished, appoint trading standards officers. I shall also take into
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account the position and function of public analysts in Scotland because, while the present situation works well, as I said when I moved the amendment, perhaps it could be made to work a little better. We reserve the right to return to this matter on Report if we feel that there is a case for so doing. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Gallacher Lord Gallacher moved Amendment No. 13.
Page 4, line 20, leave out ('or").
The noble Lord said: In the certain knowledge that Amendment No. 13 will be accepted. I have much pleasure in moving it.
On Question, amendment agreed to.
[Amendment No. 14 not moved.]
Lord Gallacher Lord Gallacher moved Amendment No. 15:
Page 4, line 24, at end insert—
("( ) The power of the Ministers to make orders under subsection (4) above shall be exercisable by statutory instrument and, notwithstanding any general provision elsewhere in this Act, such instrument shall not be made until it has been laid before and approved by a resolution of each House of Parliament.").
The noble Lord said: Amendment No. 15 concerns the power provided by the subsection which touches on the very sensitive area of local government reorganisation. We are advised that the transfer of the powers of one tier of local government to another has considerable constitutional implications, as was the case in Scotland when the transfer of which we have been speaking took effect.
The local authority associations consider that in the interests of the better administration of the country such reorganisations, however minor, should be fully debated before they are implemented. For that reason I move Amendment No. 15.
Baroness Trumpington: I thank the noble Lord, Lord Gallacher, for raising this amendment. I believe, however, that the first part, calling for orders to be in the form of statutory instruments, is unnecessary. Clause 48(1) already requires that orders under the Food Safety Bill, including orders under Clause 5(4), must be made in the form of statutory instruments.
The second part of the amendment calls for such orders to be subject to affirmative resolution. That process places heavy demands upon the time of this Chamber and of another place. By convention it is reserved for powers substantially affecting provision of Acts of Parliament, powers to increase taxation or other financial burdens or other especially important powers such as those creating new varieties of serious criminal offences. I do not believe that the order-making power in Clause 5(4) falls into any of those categories.
However, in practice we would not wish to use this power without taking the views of relevant outside interests into account. I believe that my noble friend Lord Mottistone has tabled an amendment to Clause 6 that would require Ministers to carry out statutory consultation before exercising any of the order-making powers under Part I of the

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Bill, including this one. I am minded to accept that proposal in principle.
In view of this explanation, I hope that the noble Lord will not press the amendment that stands in his name.
Lord Gallacher: I am grateful to the noble Baroness for confirming what she has already stated in regard to the amendment standing in the name of the noble Lord, Lord Mottistone. This Bill raises again and again the question of regulatory powers which the Minister is necessarily taking. In general, the Government are adhering to the view that such regulatory powers shall be subject to the annulment procedure. That forces us to be selective in our approach to this question because we accept that there are limits to parliamentary time for discussing orders affirmatively. Nevertheless, in respect of this amendment I will look at what the Minister stated to see whether, in the light of the assurances given by the noble Baroness about consultation, we can withdraw it with the leave of the Committee and avoid the necessity of returning to it at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mottistone Lord Mottistone moved Amendment No. 16:
Page 4, line 33, leave out ("whether or not") and insert ("being").
The noble Lord said: Clause 5(6) defines the authorised officer. My amendment is a simple one. It would ensure that the authorised officer in relation to a food authority would be an officer of that authority. I understand that the food authorities might seek to call in experts who would not at that time be officers of the authority. However, the extensiveness of the powers granted to the authorised officers and the seriousness of some of the issues involved make it very important that people who are going to have that authority should be properly accountable to the enforcement body which is the food authority in this instance, and that they should be appropriately qualified. If, for some extraordinary reason, the Government agree to Amendment No. 17, then it is even more important that they should agree to Amendment No. 16. Amendment No. 17 seeks to remove the last three lines so that local authorities would have the people with qualifications. No doubt the Government have an explanation for that matter, but it seems rather strange.
The powers given to food authorities are very important. Authorised officers should be proper servants of the food authorities. It might be possible for arrangements to be made, as is the case in other fields of local and central government, for the experts, if brought in, to be given temporary status as officers of the authority. If my noble friend can give that kind of assurance, I will not seek to press this amendment at this stage or later. I beg to move.
Baroness Trumpington: I understand my noble friend's wish to require enforcement authorities to act only through their own officers, and his anxiety not to give them a power to appoint possibly
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unsuitable outsiders. I believe however that I can reassure the noble Lord.
We have included the provision in question so that enforcement authorities have access to expertise or manpower which they may not have in-house. As an example, I understand that a private veterinary surgeon may be appointed to carry out meat inspection on behalf of a local authority.
There are safeguards to prevent the provision from being abused. Under Clause 5(6) Ministers may make regulations to set out the qualifications required of those acting on behalf of food authorities. This power already exists in the meat hygiene area, Section 73(2) of the Food Act 1984. I hope that I have reassured my noble friend.
Lord Mottistone: That is partly a reassurance, but I reserve the right to come back at a later stage, when we have heard what my noble friend states with regard to Amendment No. 17. I am not quite happy, but jolly nearly so. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Gallacher Lord Gallacher moved Amendment No. 17:
Page 4, line 35, leave out from ("Act") to end of line 37.
The noble Lord said: This amendment seeks to challenge the introduction of a power for central government to prescribe the qualifications of local authorities' employees, and queries whether that represents a needless intervention by central government into the general autonomy of local government. I have a considerable degree of sympathy with the view that it is for the local authority to decide how its function should be carried out in the most efficient, effective and economical manner. That freedom will be restricted if the Minister can impose constraints on the staff who can be used for enforcement purposes.
The recruitment of staff over the next 10 to 15 years is likely to become more difficult. Artificial constraints, if that is what is envisaged, will not lead to the greater protection of the public. The European Community directive states that its aims are,
"not to interfere with systems of proven worth which are best suited to the particular situation in each member state".
The arrangement whereby the enforcement of these matters is in the hands of environmental health and trading standards officers has been proved over the years to be worthwhile. There is a clear understanding about where the various responsibilities lie. It is in that spirit, and in no sense in a spirit of seeking to weaken enforcement under the Bill, that I beg to move Amendment No. 17.
Baroness Trumpington: I am grateful to the noble Lord, Lord Gallacher, for the explanation of this proposal to remove the power of Ministers to prescribe in regulations the qualifications for authorised officers of food authorities. However, this would represent a serious weakening of the Bill. I wish to assure the Committee that we intend to consult interested parties before we make any use of these powers. However, it is necessary that we provide for the prescribing of qualifications. Not only

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does proper consumer protection require it, but the EC Directive on the Official Control of Foodstuffs may well oblige the UK Government to move towards declared qualifications for food inspectors.
A study is being carried out to examine the training provisions of food inspectors in member states with a view to proposing harmonisation measures in this area. In view of those remarks I hope the noble Lord will recognise that the Bill is aiming here at effective standards of consumer protection and will therefore not press this amendment.
Lord Gallacher: Again, I thank the noble Baroness for explaining to the Committee what is in the Government's mind and what appears to be in the mind of the European Community as regards harmonisation of the law for food inspectors. We have been under the impression, perhaps the somewhat out of date impression, that the Community was happy enough to leave this matter to member states. That has certainly been the situation in the past.
If the Community is seeking some uniformity of qualifications throughout the member states we are of course, in the time-honoured phrase, in a new ball game, because on the previous occasion that the Select Committee on community affairs of this Chamber looked at this matter it was somewhat shaken at the wide variety of qualifications which currently obtain throughout the Community. In that respect the United Kingdom had a standard which was certainly immeasurably superior to that currently acceptable in other member states.
If there is to be a Community initiative in that respect, we must await its outcome and allow the parties affected by it to make representations. We are all strongly in favour of qualified people and we are equally in favour of having enough qualified people to do a thorough job. Unless that situation occurs as a result of the Bill, much of the best features of the Bill will not be realised.
I am reassured to some extent by the advice of the noble Baroness that consultation is envisaged with interested parties in this area. I hope that with that assurance we can accept what has been said, but nevertheless if we receive contrary advice, particularly in the context of what I regard as a new European situation, it may be necessary to return to this matter, albeit in different terms, at a later stage. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5, as amended, agreed to.
Clause 6 [Enforcement of Act]:
Lord Gallacher Lord Gallacher moved Amendment No. 18:
Page 4, line 44, leave out subsection (3).
The noble Lord said: This amendment arises from a failure to understand why it is necessary for a default power such as we now have in the Bill to be included in legislation. County councils, for example, are large, responsible and democratically-elected organisations. They are acutely aware of their responsibilities under the food
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safety legislation. The same can be said for district councils. That applies to legislation as it now stands and as it is proposed under the Bill.
County councils wish to hear from Government Ministers the circumstances in which they envisage such a power as the clause now gives being exercised. If such circumstances are unrealistic, county councils consider that the power should be omitted, as it is wrong for unnecessary powers to be included in legislation simply as an exercise in itself. I beg to move.
4.45 p.m.
Baroness Trumpington: The noble Lord, Lord Gallacher, may be concerned that Clause 6(3) may signal the advent of excessive ministerial intervention in enforcement work. I can reassure him however, that that is most certainly not the intention behind this subsection. We have included the subsection because there may be circumstances where food authorities lack the expertise to address a specialised food safety problem; for example, the use of a brand new technology. In those circumstances it could be vital for Ministers to be able to step in and carry out a particular enforcement role. The power in question is not a default power. Default powers are contained in Clause 41. I hope that the noble Lord will not press his amendment.
Lord Gallacher: I thank the noble Baroness for the reassurance which she has given me, particularly on the point that excessive intervention is not intended under this clause. I note what she said about circumstances in which local authorities may lack the expertise to carry out particular work; for example, in the area of new technologies. We have tabled a later amendment about novel foods and new technologies in general which may give us an opportunity of returning to this question. I am reassured by the remarks of the noble Baroness that the power is not a default power, as that is covered in Clause 41. In the light of those remarks and the assurances I have been given, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mottistone Lord Mottistone moved Amendment No. 19:
Page 5, line 18, at end insert—
("(6) Before making any orders under this Part, the Minister; shall consult with such organisations as appear to them to be representative of interests likely to be substantially affected by the orders.").
The noble Lord said: We already know from hints that have been loudly dropped that this amendment is one the Government like the look of. I am simply delighted at that and I only wish to emphasise the point that in Part I, particularly under Clauses 2 and 5, Ministers have the power to make orders on unspecified and important subjects. In Clause 26(1), the kinds of powers that I am seeking with this amendment to insert in Part I already exist in Part II. Therefore, it seems logical that consultation should also be provided for in Part I. I beg to move.
Lord Ezra: I hope that the Minister will be able to accept the amendment. It seems to me to be very much in line with what she has said repeatedly during our deliberations so far. There are a number of

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bodies in this field, including the Institute of Trading Standards Administration, with which I am connected. Such bodies should be consulted about a number of the issues which have been raised in this part of the Bill.
Baroness Trumpington: I had already indicated to my noble friend Lord Mottistone that I was prepared to look favourably on this amendment. I am grateful for his proposal to require consultation. We have already provided for consultation on orders under Clause 1(3). I understand the strong feelings on this subject. In view of the discussion we have already had about the affirmative resolution procedure, I am prepared to agree to extend consultation to the other two order-making powers in Part I.
We shall of course ensure that the views of food authorities and other interested parties are heard before we make orders that affect their interests. In the circumstances I am prepared to see that written on the face of the Bill. We may need to make special transitional provisions because the first order under Clause 5(4) will be needed immediately the Bill comes into force. If the Committee agrees I shall look into that point and table a government amendment at a later stage. I hope that my noble friend will be prepared to withdraw his amendment.
Lord Carter: Is the noble Baroness happy with the proposed words "as appear to them", in other words which appear to the Government "to be representative" or would she accept the words:
"such organisations as are representative of interests likely to be substantially affected by the orders"?
Baroness Trumpington: I shall have to depend on parliamentary counsel for the wording of any amendment that I table.
Lord Mottistone: I am indeed grateful to my noble friend for accepting the principle of the amendment. I hope that the Government will be able to put down an amendment at the next stage of the Bill and not leave it until later.
Baroness Trumpington: I agree.
Lord Mottistone: That would mean that if we do not like the wording we can talk about it and improve it at an even later stage. With that reassurance I am happy to withdraw the amendment at this stage.
Amendment, by leave, withdrawn.
Clause 6 agreed to.
Clause 7 [Rendering food injurious to health]:
Lord Gallacher Lord Gallacher moved Amendment No. 20:
Page 5, line 22, at beginning insert—
("(1) Any person operating a food business is required to operate the said business so as to ensure the fitness of the food and the health and safety of the consumer").
The noble Lord said: The purpose of the amendment is to strengthen the Bill on behalf of
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consumers by inserting before the existing Clause 7(1) a new subsection which would read:
"Any person operating a food business is required to operate the said business so as to ensure the fitness of the food and the health and safety of the consumer".
We are of the opinion that the Bill is much stronger than the legislation which it seeks to replace. We welcome the duty which Clause 6 of the Bill, which we have just dealt with, places upon food authorities to enforce and execute the provisions of the Bill. However, we believe that the interests of the consumer would be well served if Clause 7 imposed a general duty of care in the operation of food businesses.
I do not believe that food retailers in general do not operate their businesses in such a way at present. Indeed those of us who have had any connection with the food trade are in general thrilled with the way in which food retailers face up to the challenge in a realistic fashion, given the diversity of the trade, the number of lines, the requirements of the public and the state of competition. Such offences as occur (regrettable though they may be) in the context of the many transactions which take place daily, are not significant statistically, or in any other way.
Nevertheless, we feel that as we are embarking upon a new Bill such an additional obligation could be written into the legislation. It would strengthen the hand of the enforcement authorities and in the long term would be beneficial to consumers. It is for that reason that I beg to move Amendment No. 20.
Baroness Hooper: I have sympathy with the aim of the amendment since the whole of the Bill which we are now considering has as its objective the supply of safe food. We believe that the Bill will achieve that objective in a number of ways. First, of course, it will be an offence to supply food which does not meet food safety requirements. Secondly, we shall be making regulations under the enabling powers in the Bill which will, among other things, improve the standards of hygiene in food businesses and ensure that people handling food are trained in hygienic practices. We believe that the provisions of the Bill will achieve the aim of the noble Lords who tabled the amendment.
The amendment is not necessary, in our view, because the provisions of the Bill will secure the fitness of food and the health and safety of the consumer by excluding all unsafe food from sale, supply or possession for sale in the various ways set out in Clauses 7 and 8. We are confident that there is no gap. The changes to the defences in Clauses 20 and 21, which we shall be discussing later, also provide a greater safeguard.
Further, we believe that the amendment would cause problems for the enforcement authorities. It would be extremely difficult to enforce a general requirement that a person should operate a food business so as to ensure the fitness of the food. The provisions elsewhere in the Bill will be legally stronger, clearer and more easily enforceable than those in the proposed amendment.
I hope that, on that basis, the noble Lord, Lord Gallacher, will feel able to withdraw the amendment.
Lord Gallacher: I am grateful to the noble Baroness, Lady Hooper, for her remarks regarding the amendment. We see the subsection as a general affirmation of purpose which would be reinforced by the specific provisions in the Bill to which she has made reference. On this side of the House we have never quarrelled much with affirmations of purpose. Nevertheless I take the Minister's point that the Bill is strong in a number of areas and that it is the strength of those particular provisions which is likely to make the Bill enforceable in a way in which existing legislation does not and which will add weight where that is regarded as being necessary.
I was mildly amused when the noble Baroness said in her final sentence that the amendment would create problems for the enforcement authorities because it was to placate the said enforcement authorities that I added my name to it. Thus humbled and humiliated I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5 p.m.
Lord Monson Lord Monson moved Amendment No. 21:
Page 5, line 22, after ("who") insert ("knowingly").
The noble Lord said: The fact that Amendments Nos. 21 to 24 inclusive and 26 have been grouped together has taken me somewhat by surprise, since the amendments, with one exception, do not hang or fall together. It would be perfectly possible for the Committee, if it so chose, to accept, for example, Amendment No. 21.
Lord Tordoff: It is entirely the noble Lord's choice as to whether the grouping is accepted. Should he wish to move the amendments separately I am sure that the Committee would not stand in his way.
Lord Monson: I am grateful to the noble Lord for pointing that out. I have decided to deal with the amendments together at this stage. However, it would be possible to accept some and not others without making a nonsense of the clause. I concede that the amendments have a common purpose. That common purpose is to make Clause 7 rather more of a rapier, or better still a surgical knife, than the clumsy blunderbuss that it undoubtedly is at present.
The purpose of Amendment No. 21 is self-evident. Even the most brilliant chemist or biologist cannot be certain of what is injurious and what is not. When I was a small boy I was made to eat up every scrap of fat on my plate. Nowadays fat is considered to be almost a deadly poison. Cyclamates were once thought to be the ideal substitute for sugar but they are now banned in this country, as are numerous food colourings which were once thought to be safe.
Turning to non-edible products, both aluminium and asbestos were thought less than 20 years ago to be God's gift to mankind. Now everyone is busy throwing away as fast as possible their aluminium cooking utensils for fear of contracting Alzheimer's disease. Asbestos is regarded with much the same horror as nuclear waste.
Therefore, when government departments with all the massive resources at their disposal, cannot
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always get it right how can the average food manufacturer manage to do so?
Still less how can the small food manufacturer do so with fewer research facilities at his disposal?
Amendment No. 22 may need a little more explanation. Perhaps I may give just one example. Liqueur chocolates are not harmful to healthy adults in moderation. However, they contain spirits or liqueurs with an alcoholic content of approximately 40 per cent. by volume. Clearly they are injurious to the health of small children or to adults suffering from certain conditions or who are taking a certain course of drugs. It is clear that those people are not generally likely to consume such food. Advertising and point-of-sale displays are not aimed at such people. Nonetheless, they may, however unwisely, consume it; hence the need for the safeguard in Amendment No. 22, or something very like it. I do not say that the wording is necessarily 100 per cent. right.
Amendments Nos. 23 and 24 go together, Amendment No. 24 being consequential upon Amendment No. 23. There is practically no foodstuff to which someone somewhere is not allergic or which is not harmful when taken in conjunction with certain medications, whether we happen to be talking about cheese, eggs, wheatflour, milk, tea, coffee, chocolate, citrus fruits or a host of other foods. Hence the vital necessity for the phrase "average person"; otherwise every food manufacturer and processor and most food retailers in the country will find themselves in court almost every week of the year.
The purpose of Amendment No. 26 is also self-evident. We should remember that for the purposes of the Bill food includes drink. I invite the Committee to look at line 8 of page 1 of the Bill to confirm that. I am not being flippant when I say that even a healthy person may well incur a hangover from quite a modest amount of alcohol. A hangover may be defined as temporary impairment to health. Someone suffering from jaundice or who had recently recovered from jaundice would have his or her health impaired to a considerably greater extent, as would anyone taking certain types of drugs prescribed by his or her doctor. This example is also extremely germane to Amendment No. 22.
I should say that I am attracted by Amendment No. 25 in the names of the noble Lords, Lord Mottistone and Lord Lucas. That may well be an even more satisfactory way of dealing with the problem that I have just mentioned, but I nevertheless proffer Amendment No. 26 as a compromise amendment which may therefore be more acceptable to the Government. I beg to move.
Lord Lucas of Chilworth: Since Amendment No. 25, in the name of my noble friend Lord Mottistone and myself, is grouped together with and covers the same subject area as all those in the name of the noble Lord, Lord Monson, it seems sensible to discuss them together.
My contribution to Amendment No. 25 is of a probing nature. I am trying to find out exactly what the Government mean by the terms "injury" and "injurious to health", in much the same way as the

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noble Lord, Lord Monson, gave examples. At Second Reading on 5th December, my noble friend the Minister said in col. 745:
"The terms 'injurious to health' and 'unfit for human consumption' are enshrined in current food law and thus have the advantage of established case law".
However, she did not say whether that case law—it would be interesting if she could tell us exactly to which case she referred—had determined what would not be regarded as "injurious to health" within the meaning of the Bill. Can one assume that anything outside the case on which the Minister relies is deemed to be injurious? Obviously, it is in everyone's interest to ensure that time and expense are not wasted on unnecessary prosecutions.
Perhaps I may add one further injurious effect that one might see. Let us take the example of a packet of a curried meal which is popped into the pot and brought to a temperature making it fit for human consumption. If it contained too much curry powder, it might have an adverse effect on someone who was suffering from haemorrhoids. If as a result of eating that food, the person is caused to be taken to hospital and to have an operation, is that considered to be injurious to health? What would happen if the injury had occurred some four or five months before the operation? How far does one go?
In Amendment No. 25 I am seeking clarity so that those of us who are not lawyers and do not have easy access to the law—there may be many hundreds of small traders in that category—will understand exactly what this and related terms mean.
Lord Mottistone: I should also like to speak to Amendment No. 25. If subsection (3) is to remain in the Bill, what seems to be missing is what the Government mean by "injury". The use of the word in that subsection is very imprecise. The definition could embrace not only injury such as food poisoning but such instances as coronary heart disease from fats and saturated fats, dental caries from sugars and fermentable carbohydrates, food intolerance from milk, gluten and tartrazine. There is no qualification as to the seriousness of the risk or hazard not only in this subsection, but in the Bill as a whole. Raw food might contain listeria or salmonella which would be destroyed on cooking. Due account must be taken of the sources and conditions of production. It is important to know what the Government mean and what sort of injuries they are thinking of.
My noble friend Lord Lucas called our attention to what my noble friend said at Second Reading about case law on the subject. I have examples here, although I shall not dwell on them now, to show that food is not injurious merely because exceptional people are liable to be injured by it. That point must be made much clearer in the Bill. For example, it is important to know whether figures which show that about 15 per cent. of people are intolerant to something, that between 0·5 and I per cent. of people are intolerant to food and that between 0·03 and 0·15 per cent. of people are intolerant to additives are thought to be substantial. If so, foods such as milk, wheat and eggs would be unfit for us all to eat. That is ridiculous.
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As presently worded, subsection (3) states that
"'injury', in relation to health, includes any impairment, whether permanent or temporary".
That is extraordinarily powerful. I should have thought that it was a case of using a great big sledgehammer to protect the Government from being accused of not doing their job properly. I hope that my noble friend will consider taking away subsection (3) with a view to tightening it up considerably and making quite certain that a large number of unreasonable and unnecessary law suits, such as have already been dealt with, do not come about.
Baroness Gardner of Parkes: I think it very important that a genuine medical allergy should in no way be classified as a food problem. It is specific to a particular individual. It is a reaction of his or her auto-immune system to a particular protein. Some people have such a reaction with shellfish, strawberries and various other foods. The same strawberries or shellfish could be eaten by any one of us without having any effect. However, such a degree of allergy might be reached that one could be approaching the anaphylactic shock point and that person's life could be at risk by eating that food.
It is remarkable how many people with genuine allergies go ahead and eat the food to which they are allergic. They are not of course at that extremely serious and dangerous point; but they know that they cannot eat a particular food. Yet because they are at a social gathering or dinner party and do not want to be unpleasant they go ahead and suffer the adverse effects. Surely it is their responsibility to ensure that they do not eat food to which they are genuinely allergic; yet it would be wrong to classify the food itself as at fault for that reason.
Lord Tordoff: From these Benches we support the general tenor of what has been said from the Cross Benches and the Government Back Benches. This subsection seems extremely wide. The reasons for objecting to it have been put very clearly.
I want slightly to pull the tail of the noble Lord, Lord Monson, if one is allowed to do that in this Chamber, by suggesting that under no circumstances could I accept Amendment No. 23. I am astonished that the noble Lord should refer to an "average person". I should have thought that he of all people would have recognised the diversity of people in this world. For instance, does he consider that Members of this Chamber are average persons? They may very well be considered to be less than average. I do not know. I cannot see legislation going in for an average person.
Seriously, I believe that reference to persons in normal health or some such phrase might be appropriate.
Lord Walston: I should like to emphasise what has already been said by other Members of the Committee; namely, the danger of accepting Clause 7(3) as it stands. Clearly, it is much too wide and embraces far too many potentially harmful results from eating different types of food, particularly, as has been pointed out, with regard to allergies, of

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which there is an enormous and ever-growing number, and various other relatively and statistically unimportant, if not always unimportant to the individual, harmful effects which affect a minority of people.
I certainly support the general thrust of Amendment No. 25 which seeks to delete the whole of subsection (3). One is in favour of anything which makes food more safe for the general consumer. However this provision goes much too wide and too far. In its present form it is entirely unacceptable.
5.15 p.m.
Lord Auckland: I believe that the Committee has some difficulty here. First, Amendment No. 21, seeks to insert the adverb "knowingly". It is unusual, to say the least, that a manufacturer would knowingly implant in food something injurious to health. We have heard of supermarkets where something has been maliciously inserted: glass implanted into baby food is an extreme case. I do not know whether that is the target of the amendment.
Amendment No. 22 is very vague. How can any health inspectorate or indeed anybody know who is likely to consume a certain product?
With regard to allergies, when one eats at home one knows the allergens. Eating out at a dinner or banquet it is possible that even the plainest of food can contain substances which trigger an allergy. That is a risk that one must take. I believe that on the whole Clause 7 has things about right.
Baroness Trumpington: I have listened with great interest to the various views expressed by the Committee. There is nothing sinister in our decision to add a definition of "injury" and "injurious to health" in subsection (3).
As the Committee will know, the offence provisions in Clause 7 have been taken almost word for word from Section 1 of the existing Food Act. We were not intending to expand on those in any way but rather to assist in interpretation. We feel that a definition is needed now that the concept of "injury to health" occurs much more frequently in the legislation. Our definition is simply based on normal usage.
I can understand concerns that food traders could be made liable for causing harm to the consumer which is really beyond their control. We certainly do not want to impose any unfair liabilities on anyone. In the case of Clause 7 perhaps it would help if I pointed out that the offence is all about rendering food injurious to health. It would not apply to most instances of microbiological contamination.
Of course it is very difficult to anticipate the sort of effect that food will have on different sectors of the population. We know already from existing case law that a food will be "injurious to health" if it affects a substantial portion of the community.
There is one example of case law that I could quote for the benefit of my noble friend Lord Lucas; namely, Cullen v McNair which concerned a pot of cream found, by the presence of preservatives, to
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be injurious to a substantial portion of the public, namely children and invalids. It would not be injurious if only exceptional people such as those suffering from a pretty rare intolerance were likely to be harmed. Clearly there are all sorts of different ways in which people can be harmed. Honestly, it would be impossible to anticipate them all. It seems right that the courts should take decisions as and when necessary: they will do so in a commonsense way.
The noble Lord, Lord Monson, asked whether a hangover was a temporary impairment to health. Yes, but the cause—in this case alcohol—would not be caught by Clause 7. The courts would interpret the clause in a commonsense way. Alcoholic drink is not deemed to be injurious just because some people drink too much of it. No sensible court would find against a manufacturer of whisky even though in excess it can, I am told, cause injury to health.
I hope therefore that the noble Lord will not press his amendments.
Lord Monson: I am grateful to those Members of the Committee, who, mainly obliquely, support these amendments, in particular the noble Baroness, Lady Gardner, who speaks with such great knowledge. I take the point made by the noble Lord, Lord Tordoff. It is very difficult to get the wording right. If one were to specify "the majority of the people", one would be up against the dilemma mentioned by the noble Lord, Lord Auckland. How does a manufacturer know what sort of people will eat any given batch of food produced?
I agree that the wording may not be perfect—for instance, it may be that "recklessly" would be a better word than "knowingly" in Amendment No. 21—but I am still not happy with the noble Baroness's answer. The fact remains that there will always be someone somewhere who is adversely affected by some perfectly normal foodstuffs. The fact that the courts can say that if 20 per cent. of the population are affected they are caught but with a figure of 10 per cent. they are not caught leaves the matter far too open. It seems to me that there has been a certain economy with precision in the drafting. It is far too all-embracing and would, I believe, catch perfectly innocent and respectable manufacturers who have done their best to produce what they believe to be a totally safe and wholesome product. I hope that the noble Baroness will consider carefully what has been said and whether some safeguard can be inserted at a later stage in Clause 7. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 22 to 24 not moved.]
Lord Mottistone Lord Mottistone moved Amendment No. 25:
Page 5, line 38, leave out subsection (3).
The noble Lord said: I should like to speak briefly on Amendment No. 25. I was disappointed at my noble friend's remarks on this group of amendments. I do not think that subsection (3) is satisfactory in its present form. I shall reserve the right to come back on this point at a later stage. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 26 not moved.]
Clause 7 agreed to.
Clause 8 [Selling food not complying with food safety requirements]:
Lord Gallacher Lord Gallacher moved Amendment No. 27:
Page 6, line 7, leave out paragraph (a) and insert—
("(a) it is injurious to health;").
The noble Lord said: The amendment seeks to reassure consumers that the law provides a safety net which can catch all unsafe foods. The amendment goes a long way to ensure that objective. For that reason we commend it to the Committee.
The amendment would mean that suppliers could be prosecuted not only for actively causing food to be unsafe but also for failing to do something to ensure that food reached acceptable safety standards —for example, not heating food to the correct temperature during the preparation process. As the Bill is presently drafted, food which is injurious to health will be covered by the food safety requirement only if it has been rendered so by one of the operations set out in Clause 7. The main worry of consumers is that food may be unsafe. The reason that it becomes so is of lesser importance.
We consider that consumer confidence can be fully restored if the public know that there are mechanisms to control all food that is injurious to their health. In our view the amendment is the simplest, most effective and comprehensive way of making the supply of unsafe food an offence. I beg to move.
Lord Mottistone: I should like to oppose the amendment. It would bring into the scope of Clause 8(2) all injurious food rather than that which had been rendered injurious by the means set out in Clause 7(1). That would include naturally occurring injurious components and natural contaminations not able to be controlled or foreseen at any point in time—for example, the discovery of the dangers of eating uncooked red kidney beans.
I question whether there is need for the amendment. Notwithstanding what the noble Lord, Lord Gallacher, so eloquently proposed, I question the intention. Subsections (2)(b) and (c) of Clause 8 deal with unfit and contaminated food. It would be of interest if the noble Lord could explain the real purpose of his amendment. I hope that the Minister will not accept the amendment.
Baroness Trumpington: It is very nice when my noble friend and I see eye to eye. I very much regret that I cannot agree to the amendment put forward by the noble Lord, Lord Gallacher. While I appreciate his concern to provide the maximum amount of protection for the consumer, I do not feel in this case that it is necessary. The scope of the offence of non-compliance with food safety requirements in Clause 8 is already very broad. If we remove the idea of rendering food injurious to health we shall be left with a much less specific
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offence which will overlap to a very large extent what we have already. We need to remember also that the amendment will appear to manufacturers as placing a much greater burden of liability than at present. I am not sure that that is the correct impression to give.
In the light of that explanation I hope that the noble Lord, Lord Gallacher, will agree with my noble friend Lord Mottistone and myself.
Lord Gallacher: I thank the noble Baroness for what she said and for the assurance she gave that the clause as it stands is likely to be more effective in protection of the consumer than the more general amendment that we would wish to see replacing the existing lines 7 and 8. Those who are advising me must take the point of view on board and ask themselves whether it has validity. Because I ride two horses in this particular circus, I can see that there is a very substantial element of validity. When the noble Lord, Lord Mottistone, quotes back at me the red kidney beans argument with which I opened the batting, all I can say is, "Thank you very much". I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Viscount of Falkland The Viscount of Falkland moved Amendment No. 28:
Page 6, line 9, leave out ("or").
The noble Viscount said: Perhaps I may speak also to Amendment No. 29. I apologise to the noble Baroness. I have only just spotted that they should have been grouped together, Amendment No. 29 being consequential upon Amendment No. 28.
We are seeking to introduce a general safety requirement which would bring the Food Safety Bill in line with other consumer protection law, which includes the Consumer Protection Act 1987. The proposed amendment is based on the same wording in the Consumer Protection Act. Such a duty as we recommend is also included in the draft product safety directive which extends to food and takes account of the intended use, consumption, packaging, transport and storage of a product according to normal circumstances. If the directive is passed as it stands, it will require governments to include such a duty in national legislation. We think it is appropriate and right that such a duty should be included in the Food Safety Bill.
Such a safety requirement will provide a catch-all clause to cope with future eventualities. Although the food safety requirements as defined in Clause 7 are very thorough and carry with them a history of case law, general safety requirements must surely be essential to cover any loopholes which may emerge in the future. That is particularly relevant in relation to food safety, where technology is changing very rapidly.
The proposed amendment would ensure that any potential risk presented by the product is appropriately indicated in order to make the consumer aware of such a risk and to allow an individual assessment of its seriousness. It would take into account any foreseeable and intended use, consumption, packaging, transport and storage of a

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product. It would ensure that any relevant warning could be perceived at all stages of use, consumption and disposal of the product.
The need for a general safety requirement in this Bill is perhaps best illustrated through the recent speculation and publicity over how effectively microwave cooking kills listeria. Although in the light of this concern some manufacturers have seen fit to withdraw microwave instructions from products, they offered no explanation for the removal when they suspected that these products might not be suitable for microwave cooking. They provided no warning that such products might not be suitable for microwave cooking.
It is understandable and probable that people in the habit of buying food for heating in microwave ovens will continue to do so unless they are protected under a general safety requirement. That would require manufacturers to explain the removal of microwave instructions or specifically to label the product as being unsuitable for microwave cooking. These are early days in this area because it is only recently that certain models of microwave ovens have been shown to be inadequate for the cooking of food which it is usual to heat for a longer period.
The number of prosecutions that have taken place under the relevant section of the Consumer Protection Act have been illuminating. In a number of cases brought under that Act unsafe ladders with rubber strips on the steps and unsafe light bulbs have been the subject of complaints, and prosecutions have resulted. The effect has been that consumers are now protected against such faulty goods.
Although I cannot claim that my amendment has the support of the Institute of Trading Standards Officers and the Institute of Environmental Health Officers, their members have indicated their support for such a duty in principle. It is clear that officials who drew up the current framework of food legislation which dates back for approximately 35 years, could not have known that the Government would now be facing problems of food safety. They have evolved with time and now bring about their consideration of genetically engineered food and food irradiation with which we shall deal later.
I look forward to hearing the noble Baroness's remarks on the catch-all phrase. I beg to move.
5.30 p.m.
Baroness Trumpington: I was extremely interested to hear of the distinguished bodies which support the amendment because, quite frankly, I find it difficult to follow and believe that it is unnecessary. Clause 8 already prohibits the selling of unsafe food, which must be taken to include all the factors which have a direct effect on the safety of the final food, including the factors set out in the amendment.
Clause 15 deals with labelling and presentation. We have extensive regulation-making powers in Clause 16. They appear to be a more targeted way of dealing with such problems. In my view, the amendment would introduce unnecessary detail into the clause. I hope that my explanation has been helpful and that the noble Viscount will withdraw his amendment.
The Viscount of Falkland: I thank the noble Baroness for her remarks, albeit that they were brief and not very encouraging. At this early stage perhaps she does not wish to become involved in such detail, and she is right in saying that some of the background to problems are dealt with in other parts of the Bill. Nevertheless, there appear to be loopholes. There is a general feeling in this country and in the EC that such protection is required for consumers. I do not intend to press the amendment but reserve the right to consult my advisers and perhaps come back at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 29 not moved.]
Lord Gallacher Lord Gallacher moved Amendment No. 30:
Page 6, line 16, leave out ("lot or consignment").
The noble Lord said: This is a probing amendment. Clause 8 refers to batch, lot or consignment. We are trying to discover what is implied by those three terms. For example, could they mean as much as a shipload or something less? If less? how much less? How will it be identified and described in using the powers now given by Clause 8?
In that sense I ask the Minister to describe what will be in the minds of the inspectors in interpreting the terms, batch, lot and consignment. I beg to move.
Baroness Hooper: I shall try to supply the information requested by the noble Lord, Lord Gallacher. While I recognise his concern that the terms lot and consignment can go wide, it is an important provision which must be fully retained. The expressions batch, lot and consignment can have separate meanings. The first (batch) tends to mean similar foods produced at the same time under the same conditions. The second (lot) could be a collection of batches. The third (consignment) could mean a group of products which are being moved at the same time; for example a lorry load.
In order to be caught by the clause, all would have to be food of the same class or description. I firmly believe that powers should be available to seize all of those—whether batch, lot or consignment—if a part does not comply with safety requirements.
I shall give an example of the need to have power to cover batches, lots or consignments. In the past there have been occasions where fire and related damage in the holds of ships carrying a wide range of foods to this country have led to the contamination of the whole of the contents of particular holds covering batches, lots and consignments. Where the nature of the contamination makes it unlikely that the entire lot or consignment would be affected, it is relatively easy for industry to establish that and thus avoid total seizure.
In those circumstances, I hope that I have sufficiently clarified the matter for the noble Lord, and he will be able to withdraw his amendment.
Lord Gallacher: I thank the noble Baroness for the information which she has given. I shall study it with care because the object of tabling the amendment

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was to seek information. I gather that within the batch, lot or consignment delivered there is information. I shall do my best to study that and to discover whether those who raised the matter with me are reassured. If they are, it is to be hoped that we have heard the last of the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 agreed to.
Clause 9 [Inspection and seizure of suspected food]:
Lord Lucas of Chilworth Lord Lucas of Chilworth moved Amendment No. 31:
Page 6, line 41, leave out ("it appears to").
The noble Lord said: I shall speak also to Amendment No. 32. Amendment No. 31 is a paving amendment, and therefore I shall speak to the substance which is contained in Amendment No. 32. We now move into the area of inspection and seizure of food. Clause 9 provides powers for inspection at "all reasonable times", and where
"it appears to the authorised officer that any food fails to comply with food safety requirements".
There is no objection to that in principle. In subsection (2) the clause provides that the giving of a notice to restrict the use of food or its seizure may also take place where
"otherwise than on such an inspection, it appears to an authorised officer of a good authority that any food is likely to cause food poisoning or any disease communicable to human beings".
However, subsection (2) would also enable the seizure of food on the merest suspicion—and what one might almost call a gut feeling—of an authorised officer or inspector without any requirement on him or her to demonstrate that there are good grounds for the action. For example, if a food manufacturing plant was inspected, the inspector might find something which leads him to decide to seize a batch, lot or consignment—and I must use the term which the noble Baroness so exquisitely described as the right terminology in discussing the last amendment—on that day. He might then decide, frankly without any reasonable cause or suspicion, that all food in a retail chain or, indeed, perhaps in only one outlet supplied by that manufacturer should also be seized and there need be no evidence put forward to prove the rightness of such a seizure.
In fact, subsection (7) provides for compensation by the food authority—the inspectorate—should a justice of the peace, or a sheriff in Scotland, refuse to condemn the food which has been seized; in other words, food which was prevented from getting into the supply line. However, I do not believe that that is a sufficient safeguard because short shelf-life food would have to be destroyed at some considerable loss.
The amendment requires the authorised officer, the inspector, to have reasonable grounds for suspecting that any food is likely to cause food poisoning. He must have and show those reasonable grounds before issuing a notice or indeed seizing food from premises, and particularly from premises which he has not examined but which are somewhere
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else in the food chain; for example, through the wholesaler into the retail shop. It may be that he has not examined the premises or the food there.
In Amendment No. 32 I have included the phrase "reasonable grounds for suspecting". Those are the words used in the Consumer Protection Act 1987 to which the noble Viscount, Lord Falkland, referred a few moments ago. It seems to me that those words were acceptable in very similar circumstances. Those Members of your Lordships' Committee who recall the 1987 deliberations will recognise that there is a great similarity between the arguments then laid out and the arguments which I am laying out this afternoon.
If my noble friend is unable to accept those words, then I must ask a particular question: namely, why have we used different words to produce in effect, the same end? That is the purport of Amendment No. 32 which I suggest to the Committee is quite reasonable and gives fairness on all sides without in any way affecting the purpose of the Bill. I beg to move.
5.45 p.m.
Baroness Hooper: I sympathise with my noble friend's intention, which is to ensure that local authorities restrict their enforcement action to food which is genuinely suspected of being unsafe. However, I can assure the Committee that this amendment is unnecessary. Local authorities already have the power to seize and detain food which has not been inspected, and Clause 9 does not contain anything new in this respect. Local authorities use this power to detain suspect food if the grounds for suspicion do not arise from an inspection, but from some other cause, such as an outbreak of food poisoning associated with a particular food—an important consideration.
No enforcement officer would be able to justify seizing or detaining food to a justice of the peace which he must do, unless he had very good grounds for suspecting that it presented a risk to health. A substantial body of case law already exists on this subject, and is well understood by enforcement officers and magistrates. The wording of Section 9 of the Food Act 1984 has been retained in Clause 9 of the Bill. That wording is as wide as possible to enable consumers to be protected as much as possible. I hope that my noble friend will be reassured by what I have said and will agree that in the interests of continuity and ensuring the maximum protection for consumers, the current wording of the clause should stand.
Baroness Gardner of Parkes: I am reassured to a certain extent by what my noble friend said. However, I do not feel that this clause covers a situation which can and does exist from time to time. I was chairman of the health committee in this immediate area. One of the food inspectors attempted to take food which he thought was definitely unfit for sale, whereupon the person selling it seized it and flushed it down the toilet.
If one is arrested for drinking and driving and refuses to give a breath test, then there is a penalty for that in the same way as if one had been guilty of

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the offence. However, this clause does not seem to cover that which the local authorities found most difficult; namely, ensuring that it is possible to get a sample. If that is refused, then it should be considered as bad in itself. Therefore, although I am somewhat reassured, I am not satisfied with the clause as it stands.
Lord Lucas of Chilworth: I am sure that my noble friend Lady Gardner of Parkes will forgive me if I say that I do not wish to become involved in what she sees as a shortfall in Clause 9, nor do I wish to confuse the Committee because I believe that her point is not associated with my amendment but is a clause stand part point.
I do not wish to confuse the issues because the Minister said that an inspector would have a good deal of trouble in justifying his actions to a JP or sheriff, as the case may be, if he had seized the food unreasonably. However, by that time it will be too late and the damage will have been done. The media will have pounced and alarm and despondency will be created along with a great deal of cost.
My noble friend then said that the local authorities already have power to make such seizures if there is evidence of an epidemic. I ask my noble friend whether those powers are contained in the 1984 Act.
This is something quite different because the Minister said quite clearly that where there is evidence of an epidemic there is then power to seize the food. My amendment proposes that the inspector, the authorised officer, must demonstrate that there is a reasonable need for the seizure. The case which the Minister put before the Committee is quite different. This subsection does not require any reasonableness to be displayed at all.
We argued that in 1987 and I cannot see why we cannot have precisely the same words—as indeed Parliament agreed with regard to unsafe goods and toys—in this Bill which is dealing with unsafe and injurious food. I have to say that I am not reassured by what my noble friend says. I had hoped that she would suggest that there is something a little more in what I am saying that would encourage her sympathy and that she might consider whether there is a similarity in the points that I have made.
Baroness Phillips: Will the noble Lord, Lord Lucas, agree that there is a slight difficulty if these words are added to this clause? Speaking as a magistrate, I think that too many Acts of Parliament already have phrases like, "have reasonable grounds for suspecting", which is an extraordinarily difficult statement to justify in a court. You could have reasonable grounds for suspecting because you could smell the food as you entered the shop and it was obviously bad.
You will have people making up lists of what constitutes "reasonable grounds for suspecting". It seems to me that the simpler you leave this, and if you have responsible officers who are quite capable of handling it, the more likely it is to be carried out. Surely we can see in another connection the policemen who seem to be in trouble because they did not know that the guns the men appeared to be
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using were imitation guns. In other words, they did not have reasonable grounds to suspect. You can make legislation almost impossible to carry out if too many almost non sequitur comments like that are added.
Lord Lucas of Chilworth: I suggest that the noble Baroness, Lady Phillips, has just contradicted herself. A policeman may take a certain course of action against a criminal who is carrying an imitation gun because he had no reason to suppose that it was not a live firearm. That is precisely the same as I am suggesting.
Baroness Hooper: My noble friend asks why we cannot have precisely the same wording as in the Consumer Protection Act 1987. I wonder why we cannot have precisely the same words as in the Food Act 1984, on which a substantial body of case law has been built up and with which both enforcement officers and magistrates are familiar.
I submit that food poisoning is different from the effect of other consumer goods such as toys, to which my noble friend referred. Food can be widely dispersed; for example, tins of sardines—an example which has not been used in the debate so far. If part of a consignment of sardines was found to be unfit the rest of the consignment, which might be dispersed all over the country, could be seized. Without looking into the cans enforcement officers would not be sure that they were all contaminated, but seizure would protect the public until the tins could be checked.
On that basis, I hope that my noble friend will feel able to withdraw his amendment.
Lord Lucas of Chilworth: As I do not think I am going to get any further with this matter, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 32 not moved.]
Lord Gallacher Lord Gallacher moved Amendment No. 32A:
Page 6, line 43, at end insert—
("(2A) For the purposes of subsection (2) above, the Minister shall, after consultation with food authorities, issue to them guidance as to the meaning of 'food poisoning"').
The noble Lord said: Clause 9 of the Bill contains no definition of food poisoning as such, despite its being used as the basis of the exercise of powers by an authorised officer in Clause 9(2). It would be helpful to local authorities if Ministers could give some indication of the information which would need to be available to an authorised officer before he or she could exercise the powers in Clause 9(2). For example, would a certified case of food poisoning need to have occurred apparently caused by food sold by or on the premises in question? Would medical judgment need to be applied to a given case before the authorised officer could act, or would a reasonable apprehension be sufficient to justify the exercise of powers?
The word "likely" is not qualified by the requirement of reasonableness. It will be helpful if the Minister can indicate whether, in the view of

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the Government, the term "food poisoning" is sufficiently clearly defined to answer this query, which has been raised by professional advisers to a local authority association. I beg to move.
Baroness Hooper: I appreciate the concerns that have given rise to this amendment, which are to ensure that food authorities are competent to recognise when food is likely to cause food poisoning. However, I believe that the amendment is unnecessary.
In taking action under this clause the intention is that the authorised officer of the food authority will be an environmental health officer whose training includes a study of the various organisms and other causes of food poisoning and when any food is likely to cause food poisoning. In spite of this, we propose to set up an implementation advisory committee on which enforcement interests will be fully represented. The scope for codes of practice affecting the implementation of Clause 9, including the possible need for a definition of food poisoning, can, we believe, be considered in that context. In view of this I hope the noble Lord will feel able to withdraw his amendment.
Lord Gallacher: The assurance that an implementation advisory committee is contemplated allows me to beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
Baroness Gardner of Parkes Baroness Gardner of Parkes moved Amendment No. 33:
Page 7, line 8, at end insert ("within a reasonable time, having regard to the life of the product, and in any case within 14 days").
The noble Baroness said: This amendment is designed to ensure that either a definite decision should be made within a certain amount of time or that the matter should be dropped. The reason is that it seems very unfair to manufacturers that unlimited time should be allowed.
It is possible that my specification of 14 days may not be the correct length of time because scientific or bacteriological tests can take variable lengths of time, depending on the tests that are required to be carried out. As the time may vary, perhaps 14 days is not the best wording to use. Nevertheless, there should be a definite, reasonable time having regard to the life of the product and the nature of the test to be carried out.
While we all approve of food being seized and tested where there is reason for suspicion—every good manufacturer would uphold that and it is only the most suspect people who would oppose such a measure—it would not be good for officers to be able to give notice of taking food, or take the food, or give notice that no food should be sold within a certain time, without further action. This amendment is designed to reduce the delay and therefore the loss for manufacturers. I beg to move.
Baroness Hooper: I am grateful to my noble friend for raising this important point. Clearly we need to ensure that the owners of food which has been seized
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are not subject to unreasonable delays when awaiting a decision from the local authority on whether food is fit to be sold or whether it should be referred to a magistrate. However, I am also concerned that local authorities should be allowed sufficient time to carry out their investigations and I am not certain that 14 days would be enough for their purposes, as indeed my noble friend said.
I hope therefore that my noble friend will not press her amendment at this stage but will agree that we should consider this matter further and deal with it at a later stage.
Baroness Gardner of Parkes: I thank my noble friend for that reply. I propose to return with the amendment deleting the 14 days and inserting instead a reasonable time at the next stage of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6 p.m.
Lord Mottistone Lord Mottistone moved Amendment No. 34:
Page 7, line 21, leave out ("may, but need") and insert ("shall").
The noble Lord said: This amendment alters subsection (5)(b) of Clause 9. In the rest of the clause the justice of the peace is being asked to deal with the question of the seized food. The subsection states that the,
"justice of the peace may, but need not, be a member of the court before which any person is charged with an offence".
It seems that it is not in the interests of the bench that in the ordinary course the justice of the peace should perform the function of being both the chief investigator and be one of the justices who deals with the case when the potential offender is brought before the court. It would not be in the interests of the justice of the peace. It would normally be the case, presumably, that the justice would take advantage of the subsection which states,
"but need not, be a member of the court".
If this subsection is to remain, I prefer that it states bluntly that the justice of the peace may not be a member of the court.
I wonder whether it is necessary to have subsection (5)(b) in the clause. I note from subsection 9(b) that subsection (5)(b) does not apply to Scotland. I believe it is being a little bossy to tell the bench what it can and cannot do. It is its own business to see that it does its job properly. I am sure, as any magistrate in the Committee will know, that it is very important that the local bench is well regarded in the local community and is seen to be doing the job properly. If subsection (5)(b) is included, then we should be thoroughly bossy, if we are to be bossy at all, and say that the justice of the peace may not be a member of the court which takes the case. I personally believe that it would be better to get rid of subsection (5)(b) altogether. I beg to move.
Baroness Hooper: As my noble friend has explained, this amendment seeks to prohibit a justice dealing with a prosecution where he has been involved in the initial condemnation of food. In spite of the explanation given by my noble friend

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Lord Mottistone, I still cannot see any reason for this prohibition. A justice who has become prejudiced in the course of hearing the application for the condemnation of food would in practice always withdraw from any subsequent proceeding in relation to the food.
There are examples of that. I understand that this is a situation which is the exception rather than the rule in any event. Moreover, the amendment could create unnecessary complications for courts in rural areas where benches are frequently very small, reducing the already small number of justices available to deal with the cases. For these reasons I trust that my noble friend will understand that I cannot accept his amendment and that he will not press it.
Lord Mottistone: I take issue with my noble friend about the size of benches. At the moment there is very great pressure for the very small benches to amalgamate with others. There is no doubt that within the next five to 10 years there will be none of these mini-benches left with only 10 magistrates sitting on them. That is a small point.
I hope that my noble friend will think about this amendment in the meantime. I shall return with an appropriate amendment. I believe the best answer is to follow what has been done in Scotland, to cut out subsection (5)(b) altogether and to leave it to the magistrates to use their own judgment. I am sure that they will do the right thing because they are as interested as anybody that their local reputation should be high. At this stage I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Baroness Gardner of Parkes Baroness Gardner of Parkes moved Amendment No. 35:
Page 7, line 24, leave out subsection (6) and insert—
("(6) If it appears to a justice of the peace, on the basis of such evidence as he considers appropriate in the circumstances, that any food falling to be dealt with by him under this section fails to comply with food safety requirements, he shall either—

(a) condemn the food and order—

(i) the food to be destroyed or to be so disposed of as to prevent it from being used for human consumption; and

(ii) any expenses reasonably incurred in connection with the destruction or disposal to be defrayed by the owner of the food; or

(b) make such other order as he shall consider appropriate to ensure to his satisfaction that the food shall be made to comply with food safety requirements.").

The noble Baroness said: In this amendment I am not seeking to undermine what I believe to be the purpose of subsection (6); namely, that unfit food should be destroyed and that the owner should pay. There is quite a similarity between my suggested text and the original. But it appears that there is no provision in the Bill for a justice of the peace to exercise any discretion in taking due account of any future or further processing to which a suspect food might be subjected. I believe that it would be better if a magistrate had discretion to make some other order that he might consider appropriate to ensure to his satisfaction that the food will be made to comply with the food safety requirements.
For example, carrots pulled from the ground will still be covered in earth and will need to be washed prior to their use as food. Unless the law recognises that there are intermediate stages of processing the possession of such raw materials appears to be an automatic offence under Clause 8. Can the Minister clarify for the Committee whether that is true and whether my amendment is necessary. Perhaps she will also look into the matter of whether it would be appropriate—as I believe it would—for the magistrate to be given some degree of discretion in any case. I beg to move.
Baroness Hooper: I assure my noble friend that we do not intend that food should be condemned or taken before the justice of the peace if the food can be made safe. Under current legislation the owner of the food has the right to appear in court and to call witnesses to make a case against condemnation. That right will continue under the Bill. If the owner wishes to subject the food to further processing he must say so. If he convinces the magistrate that in all the circumstances the food is safe the magistrate will not condemn the food. In fact, magistrates and enforcement officers already have a body of case law to guide them in this area as well as their own common sense.
For example, raw ingredients may be a source of food poisoning. But enforcement officers would not seize raw ingredients at a soup factory, for example, on those grounds because the ingredients would be subsequently cooked and made safe before consumption. In view of what I have said I hope that my noble friend will not feel it necessary to press her amendment.
Baroness Gardner of Parkes: I thank my noble friend for those remarks. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Gardner of Parkes Baroness Gardner of Parkes moved Amendment No. 36:
Page 7, line 35, after ("value") insert ("and other commercial loss").
The noble Baroness said: Subsection (7) addresses the question of what happens when food which is perfectly fit for human consumption is wrongfully seized and how the owners of that food are compensated. As drafted the subsection stipulates compensation for any depreciation in the value of the goods resulting from the wrongful seizure. That might relate to the entire goods if they have perished completely or it might be a part of the value. But the subsection makes no provision at all for any other commercial loss than that relating to the food itself.
The other commercial loss I suggest might greatly outweigh the value of the goods. For example, if baked beans were seized from two major supermarkets there would undoubtedly be publicity that this had occurred. All over the country people would stop buying baked beans and possibly stop going to the particular supermarkets that had been named in a television programme. Their loss of trade might be very great.
This amendment does not propose enormous damages. It is most important that the authorities should have the right to adequately test the food; they should not be deterred in any way from doing so. I accept that a very good job is being done by the health inspectors except for the type of case which I have mentioned where they have been obstructed from doing so. I shall raise the matter when we come to the debate on clause stand part.
In some cases it must be right for extra compensation to be available—not automatically, but by special claim and by proving the loss. That would have to be quantified in detail. That is the purpose of the amendment. I beg to move.
Lord Stanley of Alderley: I support my noble friend Lady Gardner on this point. It is often not realised that loss that can occur after seizure. This is a real cause for concern. I hope that my noble friend on the Front Bench who showed great consideration to my noble friend Lady Gardner in regard to Amendment No. 33 will recognise the importance of the amendment.
The Earl of Radnor: I support the amendment. If a mistake has been made and a justice of the peace acknowledges it, full recompense should be paid. I can see great difficulty in deciding what constitutes full recompense but there must be a way in which to quantify it. I hope that my noble friend will be able to direct her mind towards that end. I support the amendment.
Lord Gallacher: On this Bench we sympathise with the case so ably advocated by the noble Baroness, Lady Gardner of Parkes. A considerable loss of reputation can occur. This may sometimes be quite long lasting and in a number of instances very damaging to a business in the circumstances which she described. While we have no desire to see the provisions of the Bill weakened in such a way as to render it less effective than it needs to be, nevertheless the circumstances set out by the noble Baroness need to be addressed by the Government and sympathetically replied to.
The Earl of Radnor: I wish to add one point which has not been mentioned. If there is a delay in the sale, interest on the money outstanding should at least be taken into account.
Baroness Hooper: I am grateful to my noble friend for her explanation of the amendment and I note the support given to it by other noble Lords. Local authorities are already required to pay compensation to cover any depreciation in the value of the food resulting from a seizure, if the food is not condemned. This provision will continue under Clause 9(7). I believe that the provision strikes the right balance between the need to protect food businesses from wrongful seizure of their property, and the need to ensure that enforcement officers are not deterred from seizing suspect food by the threat of a hefty compensation bill.
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As noble Lords will know, responsible food businesses are in the habit of taking out insurance to cover any other consequential losses. They also have recourse to a local government commissioner if they feel that they have been unfairly treated, and may sue the local authority if they believe that it has acted in bad faith. A number of measures therefore exist to protect food businesses from the wrongful seizure of food. In saying that I must emphasise that one of the main aims of the Bill is to ensure the effective enforcement of food safety law for the better protection of public health. I hope it will be agreed that we should not build in a deterrent to effective enforcement by accepting this amendment. I hope that my noble friend will agree to withdraw it.
Lord Stanley of Alderley: Before my noble friend replies or takes a decision in this matter, perhaps I may make one point. My noble friend on the Front Bench mentioned insurance. We have been over this ground many times, not least during consideration of the 1984 Act. It is almost impossible to insure in those conditions. No insurance company likes to insure against government incompetence, if I may put it that crudely.
Baroness Gardner of Parkes: I put this down as a probing amendment. We have had a very good discussion. Perhaps further thought can be given to the matter before the next stage of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.15 p.m.
Lord Tordoff Lord Tordoff moved Amendment No. 37:
Page 7, line 39, at end insert—
("( ) A food authority shall —

(a) maintain a register, which shall be adequately indexed, containing—

(i) a copy of any notice issued under section 9(3)(a) above; and where such a notice has been withdrawn under section 9(4)(a) above a statement to that effect;

(ii) a copy of any order made under section 9(6) above;

(iii) any written statement submitted to the authority for inclusion on the register by the person on whom a notice has been served or by the owner of the food to which an order applies;

(b) enter a copy of any notice, order or statement to which this section refers on the register not later than seven days from the date on which it was issued (or, as the case may be) made or submitted; and where a notice has been withdrawn the authority shall enter a statement to that effect not later than seven days from the date on which it was withdrawn; and

(c) ensure that the register is open to inspection by any person without charge at all reasonable times; and supply to any person on request a copy of any entry in the register for which a reasonable charge to cover the cost of copying and supplying the entry may be made.").

The noble Lord said: For the convenience of the Committee perhaps I may speak at the same time to Amendment No. 52. With these amendments I should like to move into the area of secrecy and freedom of information. I am advised on them by the Campaign for Freedom of Information and I have the support of the Consumers' Association. With later amendments I shall return more generally to the question of secrecy but I am presently dealing with Amendments Nos. 37 and 52.
The intention of the amendments is to ensure that the public has access to information about enforcement of notices which we believe it has a right to know. Under Clause 9(3) notices prohibiting the sale and use of food can be served where it is likely to cause food poisoning, but these notices would remain secret. Under Clause 10(1) improvement notices can be served where a food business is breaking statutory safety or hygiene requirements, but these notices would remain secret. Only where enforcement action takes place in court, involving, for example, the destruction of dangerous food under Clause 9(6) and the provisions of Clauses 11(1) and 12(2) which deal with prohibition orders, will the details become public knowledge. That is wrong. We believe that publicity is a powerful weapon in the hands of the consumer. That powerful weapon should not be blunted.
We believe that publicity would help to alert the public to unsafe premises and enable it to assess the safety record of firms and premises. What is more, it would help to ensure compliance with formal requests for improvements. Such registers could in time also provide systematic records of compliance. That would be valuable when the proposed system of registration under Clause 19 is introduced.
There is nothing new in the type of register suggested in these amendments. It would bring the Bill into line with other provisions. Under the Environment and Safety Information Act 1988 public registers of improvement and prohibition notices served under health and safety, fire and pesticide legislation have been established. Furthermore, the Government's Environmental Protection Bill extends this approach to enforcement notices about other forms of pollution. This Bill does not contain similar provisions. We firmly believe that it should.
Amendment No. 37 deals with the provision of a register of those cases where a notice has been issued under Clause 9(3) requiring food not to be used for human consumption, or an order made under Clause 9(6) by a justice of the peace for the destruction or disposal of food. In fairness, it also makes provision for withdrawals of notice to be registered within a period of seven days. This is an important safeguard for the producer. We have been talking about safeguards for people who are wrongly, improperly or incorrectly assessed as having done something wrong and subsequently turn out not to have done it. There is the opportunity for inclusion of written statements by the person on whom the order or notice has been served so that he can state his side of the case if he wishes to do so.
Similarly, Amendment No. 52 makes provision for registers of improvement notices, prohibition orders and emergency orders and notices under Clause 10(1), Clause 11(1) and Clause 12(1). If I am to be perfectly fair to the Government, as I am sure the noble Baroness would expect me to be, it would be possible under the Bill to make regulations for public registers—Clause 26(3)(c) gives that enabling power—but there is no guarantee that that will take place. Its extent is very much unspecified. Moreover,
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such regulations would not be amendable by Parliament. Therefore we believe that the provision does not give sufficient certainty that members of the public will be properly informed about matters which are vital to their health.
What is proposed is a weapon which is not likely to be very much used by the public directly. However, it would be of enormous use to the press, and especially to the local press. In my view the local press is an important weapon regarding the public under these circumstances. The press would have the opportunity to consult such registers and where there are flagrant breaches, both as regards individual instances and those where a firm has been a regular offender, such matters would be brought to the notice of the general public.
We believe that the suggested provision should be on the face of the Bill, and that it should not be left to regulations. Therefore, in view of the benefits which such publication would bring, these amendments are most necessary. I beg to move.
Lord Lucas of Chilworth: I should like to suggest to the Committee that this amendment is neither necessary nor desirable. I would not normally accuse the noble Lord, Lord Tordoff, of naiveté. However, on this occasion he has displayed a remarkable example of that quality. The fact is that the entry upon a register of any notice is in itself sufficient to attract adverse press attention. Moreover, the successful appeal against such a notice is not reported; that is not the way the press operates. Therefore it would bear harshly and unfairly upon the person concerned.
In my view we should move away from the use of the media as a positive attacking force. However, to use them as a passive force is something quite different. I think that there is another far more important implication in what is suggested by these two amendments. In the Bill we are looking for greater safety in the production, the retailing and the handling of foodstuffs to avoid injury, human misery and all the accompanying factors. I expect responsible people who are handling foodstuffs and products to seek the advice of an enforcement agency. For example, a person could say to an official, "I am not too sure about this, can you help me?" It may well be that the inspector will visit the premises and say, "I am sorry, but you are contravening certain regulations. Therefore you must undertake this building work". Or he may say, "You must install this piece of equipment". The person then says, "I am most grateful for your help and I shall get on with the job".
However, the inspector then says, "I am sorry the matter cannot end there; I must serve a notice upon you". According to the noble Lord, Lord Todoff, such a notice would be entered on the register for all to see. Such an occurrence would only deter others from seeking advice from enforcement agencies. It is largely upon those grounds that the amendment is both pernicious and unwarranted.
Lord Mottistone: I strongly support the remarks made by my noble friend. As he made clear, the fact that the names of firms would appear on a town hall blacklist is potentially dangerous. Moreover, when the notice is withdrawn, that fact is also recorded; but it is not something which people will necessarily remember, regardless of how the publicity is handled. In any event, such publicity is very dangerous in a local community.
The situation outlined by my noble friend where inspectors are invited into factories does happen and it is customary. Such requests are made to obtain advice and sometimes to ask such agencies to issue a notice in respect of defective raw materials so as to facilitate insurance claims. All such information would be included and the notices would be publicly available. However, they would probably give the wrong impression. Instead of conveying the fact that the firm concerned had very good quality control and was using its close relationship with the local authority to enable it to obtain better raw materials, it would be seen as one of those firms which had received even more notices than others.
The intention behind the amendment lays itself wide open to misuse and misinterpretation. Apart from anything else, the danger is that the increasingly good relationships between respectable firms of all kinds and sizes and their local authority, which are so important for the proper implementation of the Bill when it becomes enacted, would be weakened. People would be cautious as to how they relate to the officials who would in certain circumstances provide notices which would not mean what people may interpret them to mean.
Finally, what is proposed would be a great bureaucratic exercise. Surely this is not what the Campaign for Freedom of Information wants. From what I know of the members of that campaign, it seems to me that they do not like bureaucracy. However, that is what they stand to create if the amendment of the noble Lord, Lord Tordoff, or anything along those lines, is accepted. I hope very much that Members of the Committee will reject this amendment and also Amendment No. 52
Baroness Hooper: While I sympathise with the intentions of the noble Lord, Lord Tordoff, in tabling these amendments, I believe that they are unnecessary and that they could be harmful. I shall speak first to Amendment No. 37 which concerns Clause 9. If the seizure of food led to a prosecution under Clause 8, the details of the seizure would become public knowledge in court. The amendment would not add anything in that case. On the other hand, if the notice detaining food pending investigation is withdrawn or the magistrate finds in favour of the owner of the food, it would be quite wrong to make details of any such detention public. To do so would damage the owner's reputation, as we were reminded when we discussed this matter in connection with the last amendment, even though he had not been found guilty of an offence. I cannot believe that Members of the Committee would wish to support such a provision.
Applications to a single magistrate acting administratively are normally heard in private. That
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applies to all legislation and not just to food safety law. It would be wrong to single out food safety law as one area where this confidentiality should be removed. The amendment would also lead to considerable confusion. Food may be detained pending investigation for very short periods and keeping a register of such matters up to date could pose administrative problems for local authorities.
I turn now to the proposed new clause suggested in Amendment No. 52. In the case of prohibition notices, emergency prohibition orders and most emergency prohibition notices, open court proceedings automatically take place. Prosecutions for failure to comply with an improvement notice would also be in open court, to which the press has access.
The amendment would simply produce a mountain of paperwork which would not in practice be read. Further, and most important—and my noble friends Lord Lucas of Chilworth and Lord Mottistone have both given us examples of the importance of the good relationships which can and do exist between some businesses and the enforcement officers—any register of improvement notices could destroy the co-operation which is currently offered to enforcement officers when visiting food businesses.
Proprietors could become resistant to the inspection of their premises if the result of an inspection were an improvement notice which would appear on a public register. It is essential that everyone concerned is committed to raising food safety standards. We believe that the amendment would destroy that commitment. Apart from improvement notices, there are other reasons why we should not publish details of cases which do not come to court. Emergency prohibition notices, for example, might be lifted before the court hearing takes place because the risk to health has been removed. The emergency notice could in fact be of short duration. In other cases the local authority might decide that it does not have sufficient grounds to proceed against a proprietor. Again, it would then be most unjust to damage his reputation by publishing details of the case.
Both amendments would add to the local authority's duties. Public interest would be better served if local authorities directed their resources towards enforcing the food safety provisions of the Bill instead of towards a bureaucratic exercise of this kind. I am therefore unable to accept the amendment. I hope that the noble Lord will agree to withdraw it.
I should like to finish by making a general point and saying that the Bill is not a vehicle for an unnecessary degree of secrecy. In particular, Clause 26(3) provides us with powers to require a register such as, for example, those made under the provisions of Clause 19(a), to be open to the public. Detailed requirements on registration of premises will be laid down in regulations which will be subject to consultation. Any organisation is free to make representations during the consultation exercise. I hope that they will accept that it is not our intention to introduce any unnecessary secrecy by means of

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the Bill. I therefore hope that the noble Lord will feel able to withdraw the amendment.
6.30 p.m.
Lord Tordoff: We seem to have touched the spot with the amendment. When we have such a vigorous response from noble Lords on the Government Back Benches who tend to be interested in the producers' rather than the consumers' interest, I feel that I may be getting close to the point.
Baroness Trumpington: No.
Lord Tordoff: I did not say the Government Front Bench. I absolved it on this occasion.
All kinds of reasons have been thrown at us as to why we should not have this provision. It seems to me that the interests of the general public are being overlooked by those who oppose the amendment. I shall not press the amendment tonight. The amendments clearly need to be looked at in the light of what the Minister has said. She said that she was not without sympathy for the reasons behind them.
I have dealt with the last point the Minister made about Clause 26(3)(c). I accept that that requirement is available, but I am not sure that regulations are the best way in which to deal with the matter because, as I say, Parliament has little or no chance of doing anything with them when they come forward. I still believe that the minimum of secrecy is important when dealing with such matters if the public is to be genuinely protected. The fact that some nasty journalist will say things in his newspaper which will offend some producer who has undoubtedly had some action taken against him during the processes which precede the list being made, is a weak reason for not allowing it. Nevertheless, I believe that I should take the amendment away, think about it and see whether I cannot come back with something that deals with its central point. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 9 shall stand part of the Bill?
Baroness Gardner of Parkes: I oppose the Motion on the grounds that there is no provision for the clause to deal with the person who deliberately obstructs and prevents a local authority food officer from obtaining the samples necessary for testing. The case I quoted earlier is not an isolated one. During my term of office as chairman of the local health committee there were many cases of devious vendors, rather than suppliers or preparers of food, who developed the most incredibly clever and devious ways of preventing the local health officer from taking the necessary samples.
As I said earlier, just as it is an offence for one to refuse to give a sample when one is suspected of drunken driving, so it should be an offence deliberately to obstruct the food officer in his duty. I realise that I could have tabled an amendment to bring the matter to the attention of my noble friend the Minister. I failed to do so and I understand that this is the only other procedure by which the matter
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can be brought forward at this stage for my noble friend's attention. There should be some way in the public interest of dealing with cases of deliberate obstruction.
Baroness Hooper: Clause 9 gives powers to inspect, detain or seize food suspected of not complying with food safety requirements and to condemn food which does not comply with food safety requirements. The clause combines and strengthens the powers which already exist under Sections 9, 28 and 31 of the Food Act 1984 which allow a council's authorised officer to examine food intended for human consumption and seize it if he suspects that it is unfit for human consumption and likely to cause a disease communicable to humans or food poisoning. He has then to notify the person in whose possession the food was found and take it before a justice of the peace who decides whether the food should be destroyed. If the justice of the peace decides that the food should not be destroyed the authority is to compensate the owner. However, the current system is not sufficiently flexible to allow enforcement officers to choose a course of action appropriate to the circumstances of the particular case. Clause 9 therefore includes some additional powers.
We have discussed many of those powers in the course of dealing with the amendments to Clause 9. Obstruction is an offence under Clause 33. The penalty is three months' imprisonment and/or a fine of £2,000. Having said that, I hope that the Committee will agree that Clause 9 represents a much needed strengthening and streamlining of the powers of the existing Act and that it should stand part of the Bill.
Baroness Gardner of Parkes: I am pleased to hear that obstruction is an offence under Clause 33. Nevertheless, I do not know whether that power is sufficient to enable the officers to carry out their duties. Will my noble friend give careful thought to the matter between this and the Bill's next stage. I too should like to give thought to it to see whether an amendment to Clause 9 should be tabled.
Lord Tordoff: I agree with what the noble Baroness, Lady Gardner of Parkes, has said. Although in general terms Clause 33 deals with obstruction of a person acting in the execution of his duty, Clause 33(2) talks about people furnishing false or misleading information and recklessly furnishing false and misleading information. It does not say much about withholding information or material. It seems to me that the provision could do with a little strengthening at that stage.
Baroness Gardner of Parkes: I should like to thank the noble Lord for his contribution. He makes the point that the Bill deals with recklessly furnishing false information or misleading material, but it does not deal with concealing information or preventing people from obtaining that information. Perhaps we should consider the matter again in relation to Clause 33 or at the next stage of the Bill, when we deal with Clause 9.
Clause 9 agreed to.
Clause 10 [Improvement Notices]:
Baroness Gardner of Parkes Baroness Gardner of Parkes moved Amendment No. 38:
Page 8, line 10, leave out paragraphs (a) and (b) and insert—

("(a) state the grounds for believing that the proprietor has failed to comply with specified regulations;

(b) specify the failure or failures; and

(c) require that reasonable steps be taken within a specified period (not being less than 14 days) to comply with those specified regulations.").

The noble Baroness said: I welcome the provision in Clause 10 for improvement notices to cover issues of safety and hygiene. My concern relates to an authorised officer being able to specify the steps which the proprietor must take in order to comply with regulations.
In most cases there may be a choice of a number of equally effective alternative steps. Surely the objective should be to ensure a compliance with the law rather than to set out details of a specific means by which compliance is to be achieved. I consider that it would be more appropriate for the officer to state the grounds for believing that the proprietor has failed to comply with regulations, to specify such failures and to require the proprietor to take reasonable steps within a specified period in order to comply.
My amendment would illustrate this situation. For example, it might be that a certain area in a factory was considered to be unhygienic because a brick wall existed. It may be necessary to produce some type of hygienic cladding for the brick wall so that it could be easily washed down with a sterile solution. The officer may have suggested tiling the wall; the owner of the factory may say that he would rather have a stainless steel cladding. One cladding could be just as effective as the other. It would be a matter of personal choice and availability of material. It should not be relevant to this Bill which solution is used. This amendment would give a choice of a number of alternatives that could be considered. The same result in terms of safety and hygiene would be achieved. I beg to move.
Baroness Hooper: Although we are concerned to ensure that defective food premises are brought up to standard, we do not intend to involve food businesses in unnecessary expense. This is particularly important to the smaller business. Therefore I am happy to accept the principle of this amendment. However, I am sure that my noble friends will understand and, hopefully, agree that it is vital to ensure that the drafting of the clause fully achieves our aim. I should therefore like to take more time to consider the wording and return to it at a later stage.
Baroness Gardner of Parkes: I should like to thank my noble friend for that remark; it demonstrates what a lot of common sense she and the Government have. I shall be pleased to consult as regards the wording. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Lucas of Chilworth Lord Lucas of Chilworth moved Amendment No. 39:
Page 8, line 12, leave out ("14") and insert ("28").
The noble Lord said: I am most grateful to my noble friend Lady Gardner of Parkes. Whatever the outcome of her consultation may be, perhaps she and the Minister will take on board what I had in mind in Amendment No. 39, which I beg to move.
There are powers contained in the clause for the authorised officer to issue an improvement notice where there are grounds for believing that the owner has failed to comply with the regulations. We believe that 14 days is too short a period. Subparagraph 10(1)(b) requires compliance within a period specified, not being less than 15 days. It could be 28 days or longer. Nevertheless, to a company with no in-house capability, 14 days may prove to be too difficult. For example, I wonder how many of your Lordships have attempted to get a plumber to replace a wash-hand basin in London. I suspect that it could be considerably longer than 14 days. I wonder how many of your Lordships have attempted to obtain a fridge freezer of a particular make. I did so the other day and I was told that delivery would take a month to six weeks.
There is a potential cause of hardship to a smaller businessman who has no in-house capability to get a builder or a particular piece of equipment. If he does not comply within the specified time—perhaps it is 14 days or 21 days—he shall be guilty of an offence.
Where the receiver of a notice accepts the rightness of the case, surely he should have a reasonable time. I suggest to the Committee that 28 days might be a more reasonable time for the lower limit. I beg to move.
Baroness Hooper: I am grateful to my noble friend for his proposal. Regrettably, I cannot accept it. The minimum period laid down in Clause 10 for compliance with an improvement notice is 14 days. I am informed by technical experts that for most purposes 14 days is ample. Environmental health officers are not unreasonable people. The clause gives them a discretion to allow such longer period as may be required. If steps were required which were complicated, a longer period would be allowed. In many cases 14 days could be more than sufficent to enable matters likely to be the subject of an improvement notice to be put right. Unlike some of the examples quoted by my noble friend, they would mostly be minor matters which could be rapidly put right. I trust that in the light of that assurance, my noble friend will not insist upon his amendment.
Lord Lucas of Chilworth: I do not find the Minister's answer very helpful to those unfortunate people who may have a notice put upon them for some minor or major infringement.
In the light of what the Minister stated to the noble Baroness, Lady Gardner of Parkes, I should like to see how that amendment turns out and relate it to the purport of Amendment No. 39. It is right and proper to tell the Committee that I should like to look at further developments before deciding on

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whether I wish to pursue this argument. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mottistone Lord Mottistone moved Amendment No. 40:
Page 8, line 14, leave out ("guilty of an offence") and insert ("liable to prosecution").
The noble Lord said: This is a very small amendment. Clause 10(2) states that
"any person who fails to comply with an improvement notice shall be guilty of an offence"
The amendment proposed that it should state, "shall be liable to prosecution". That may appear to be nit-picking comment, but there is a difference. Clause 33 to which my noble friend Lady Hooper drew attention, relates to people who are positively doing things, intentionally obstructing etc. However in this case the person is not doing something; it is negative. He may not be guilty of an offence. His non-compliance with an improvement notice may be such a small issue that nobody bothers to take him to court, and therefore he has not been guilty of an offence. However, he would be liable to prosecution. Then the great "they" may decide not to prosecute him. It seems to me better common sense to accept this amendment rather than to leave the Bill in its rather untidy present state. I beg to move.
Baroness Hooper: This may be a small amendment in the opinion of my noble friend, but it would effectively remove the teeth from the improvement notice procedure. The Committee will be aware that we consider that procedure to be very important. It will raise standards of hygiene in food businesses. Prosecuting an offender may not be such an effective way of raising standards as we believe the improvement notice procedure to be.
The words "guilty of an offence" which my noble friend seeks to change in Clause 10(2) are customarily used to indicate that an offence is created in certain circumstances. I must assure the Committee that they do not imply that the defendant is in any sense prejudged. I hope that on that basis my noble friend will feel able to withdraw his amendment.
Lord Mottistone: I shall certainly not press the amendment. However, it would be helpful if my noble friend were to read my comments. I shall certainly read what she had to say. I am not sure that my solution is not more logical. However, it is getting a little late and close to dinner for us to have a long argument about the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hooper Baroness Hooper moved Amendment No. 41:
Page 8, line 18, leave out ("or any class of food").
The noble Baroness said: In moving Amendment No. 41, I wish to speak also to Amendments Nos. 53, 54, 64, 65, 66, 68, 101, 102, 157, 168 and 169. This apparently formidable group of amendments is entirely technical in that it seeks to produce consistent terminology throughout the Bill by
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deleting references to classes of food and food sources. Except in Clause 13, such references are unnecessary. However, in that clause the reference to classes is required because of its purpose.
Ministers may wish to prohibit activities in relation to classes of food, food sources or contact materials rather than to prohibit activities in relation to all foods, all food sources or all contact materials. We have also taken power in Clause 47 to make different provision regarding different areas and different classes of business. I wish to reassure the Committee that none of these amendments will reduce the power of Ministers to take appropriate action in urgent cases. In these circumstances, I commend the group of amendments to the Committee and I trust that they prove acceptable. I beg to move.
On Question, amendment agreed to.
Lord Lucas of Chilworth Lord Lucas of Chilworth moved Amendment No. 42:
Page 8, line 21, at end insert—
("(4) Where an appeal under section 37, in relation to an improvement notice is successful, the enforcement authority shall compensate the proprietor of the business in respect of any loss suffered by reason of his complying with the notice within the 14 days period laid down.").
The noble Lord said: My Lords, this is an important amendment in that it deals with compensation. Clause 37(1) of this Bill provides a right of appeal against an improvement notice. That is right and it is to be welcomed. However, I and I am sure other Members of the Committee can envisage circumstances in which in order to avoid any possibility or even probability of committing an offence under Clause 10, the owner of the premises may well carry out alterations or take such action as he sees fit. That process may injuriously affect him; in other words, it may cost money. Here I must refer to the remarks that I made a short while ago on the time element, particularly if a building alteration were involved. That may all happen before an appeal is heard as there is no provision that. I am aware of which states that appeals against an order will have any kind of priority treatment in a court or a tribunal.
If an appeal were succesful, the owner of the premises concerned might in all probability have spent money unnecessarily. Perhaps he did so purely to avoid committing a further offence, if the appeal were not upheld. It seems to me that if the appeal is successful and moneys have been unnecessarily expended, there should be a right of compensation. That is the purport of this amendment.
Notwithstanding what my noble friend the Minister has said in relation to the Consumer Protection Act 1987, what I am suggesting here is in essence precisely the same as the provision in Section 34 of that Act. I think the amendment is reasonable, particularly as the Minister has given us no extension of the time limit either to comply with an order or for an appeal to be heard. I beg to move.
Baroness Hooper: I have sympathy with the intention of my noble friend which is to safeguard proprietors from being forced to go to unnecessary expense by overzealous enforcement officers.

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However, the question is whether it would be right to build into the Bill a provision to compensate those few proprietors caught by such circumstances. Enforcement officers are unlikely to prosecute for failure to comply with an improvement notice if they know that an appeal has been lodged, because a court would probably not impose a substantive penalty. It might well also criticise the authority for misusing its discretion. Failure to comply in those circumstances is therefore unlikely to lead to prosecution. Most proprietors will realise this and will not rush to comply with requirements against which they are appealing.
Nevertheless, I recognise that this situation is far from ideal. We shall therefore consider bringing forward a government amendment to ensure that a proprietor is not guilty of an offence if he fails to comply with an improvement notice pending an appeal. I hope in view of that assurance my noble friend will agree to withdraw his amendment.
Lord Lucas of Chilworth: I am grateful for the Minister's remarks about a government amendment. However, any such amendment would deal only with one aspect of the matter. That is one of the reasons for tabling the amendment. It deals with those circumstances where, pending an appeal, the receiver of a notice would not be guilty of an offence if the improvement, whether it involved building or equipment, were not in place at the time specified in the original notice. Nevertheless, the nature of a notice may well inhibit a business and a proprietor, so causing monetary damage for which, if an appeal were successful, he should be compensated.
The time is just before seven o'clock, and as this is the first day after the Recess I have the feeling that the Committee is not used to going through the Lobbies. That process will recommence later in the Session. Therefore, I think it would be wrong to disturb the peace of the Committee in that way this evening.
I hope that the amendment that the Minister has promised will come in sufficient time for us to debate the general position regarding improvement notice and compensation. It would be appropriate for me to test the opinion of the House at that time. Having been taught by your Lordships many years ago never to look a gift horse in the mouth, perhaps your Lordships' Committee will allow me to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 10 agreed to.
The Earl of Strathmore and Kinghorne: I beg to move that the House be now resumed. In moving this Motion I suggest that the Committee stage on this Bill be resumed at 8 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Trade Union Act 1984 (Amendment) Bill [H.L.]
7 p.m.
Lord Campbell of Alloway: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee. —(Lord Campbell of Alloway.)
On Question, Motion agreed to.
House in Committee accordingly.
[The BARONESS LOCKWOOD in the Chair.]
Clause 1 [Amendment of s. 10(3)(c) of Trade Union Act 1984]:
Lord McCarthy Lord McCarthy moved the following amendment:
Page 1, line 8, at end insert ("up to a maximum of six weeks").
The noble Lord said: In moving the amendment perhaps I may remind the Committee briefly of the contents of the Bill and of the purpose of the amendment. The Committee will remember that the Trade Union Act 1984 stipulates that in order for a strike to be lawful it must fulfil two conditions: an affirmative ballot in accordance with Section 10 of the 1984 Act, and authorisation or endorsement of that ballot by the appropriate union body.
The critical issue from the point of view of the Bill before us and the amendment is that the 1984 Act goes on to say:
"after the date of the ballot and before the expiry of four weeks beginning with that date".
That is what has come to be called the 28-day rule. You must get your strike off the ground. It is not just a matter of authorising the strike. You cannot authorise it and put it on the shelf; you must get your strike off the ground and airborne within 28 days. A strike must take place.
The Committee will recall that the purpose of the Bill of the noble Lord, Lord Campbell of Alloway, is to allow the courts, probably in connection with an injunction, to extend the four week period. The noble Lord wishes that period to be extended so that it would be indefinite. The Bill says:
"for such period as the court may direct".
There would then be a 28-day rule plus an unlimited extension period. It should be clear that the purpose of the amendment is to place a limit on the period of extension to a maximum of six weeks. If the amendment were included on the face of the Bill and the Bill were to become an Act we should have a 28-day period with a further 42 days at the discretion of the judges, giving an overall period of 10 weeks within which a strike could take place under the terms of the 1984 legislation.
Those who were present when we discussed the Bill at Second Reading—and I see that most of those noble Lords are here today—will recall why the noble Lord, Lord Campbell of Alloway, and a considerable number of other distinguished lawyers who participated in the debate, thought the Bill necessary. Their reasons related to the case of the recent

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national dock strike. Therefore I shall recapitulate briefly the crucial dates in that strike, to which the amendment and the Bill itself relate.
On 6th April 1989 the Government announced the repeal of the dock labour scheme. On 7th April there was a First Reading of the Bill repealing the scheme. On 11th April the Transport and General Workers' Union decided to oppose the Bill and on 18th April the employers refused to discuss a negotiated alternative by means of collective bargaining. There was a failure to agree. On 2nd May the Transport and General Workers' Union decided to ballot its members on a national strike to achieve a negotiated alternative to the legal framework which was to be abolished. On 8th May the employers issued a writ.
The employers' writ alleged that the strike was unlawful and did not involve a trade dispute. Various other points were made which need not concern us now. The union decided to press on with the ballot. The ballot was conducted with commendable dispatch over a period from 10th to 17th May and resulted in an overwhelming vote in favour of the strike. The day the ballot ended and before the union was able to declare the result of the ballot the general secretary of the union found himself in court rebutting the case for an injunction.
Ten days later at the court of first instance, before Mr Justice Millett, the court decided in favour of the union. As the Committee will know the employers went on to appeal. On 7th June the Court of Appeal decided against the union, on rather different grounds, so the union went to the House of Lords. On 21st June the union obtained a decision from the House of Lords in its favour and on 27th June it went back to hear the reasons. The critical point is that by then the union was out of time. The 28 days ran out on 14th June and so the union needed another ballot.
The central argument, and the argument which we made at Second Reading, is that that was not the Government's intention in passing the legislation. I have read again the replies of the Minister both when the noble Lord, Lord Campbell of Alloway, introduced the Bill in the previous parliamentary Session and again in December. At no time did he say that the Government intended what has now happened. He said that this was the only case and that in five years this was the only occasion on which a union had run out of time. He also argued that there was a central reason why the Government could not accept the Bill as it stood.
The Minister's argument was that the Bill proposed an extension for an indefinite period. A great deal was made by the Minister of the fact that the noble Lord, Lord Campbell of Alloway, was asking for an ability for the judges to extend the statutory period of four weeks indefinitely. After admitting the concern which had been expressed in the debate by the Master of the Rolls and others about the problem of finding priority in the queue in order to remain within the four week period, the Minister said that he was not entirely convinced because:
"there remains a fundamental difficulty about the proposition that the court should have discretion to extend the 28-day period".
I believe that I am being fair to the Government in saying that that was the central argument against the Bill. The Minister went on to say that:
"To allow an unlimited—or unduly lengthy—period of time risks creating a situation in which the ballot result no longer accurately represents the views of the union members". [Official Report, 6/12/89; col. 961.]
He said that, if that happened, the ballot,
"would … no longer be valid".
He went on to say that, if that were to happen,
"it is right that the union should be required to re-ballot its members to make sure they are still content for it to call on them to take industrial action".
From the Government's point of view, we can see why they argue that way. We can see why they say that they do not want a Bill which gives unlimited periods of discretion to the judiciary. That is what I am trying to deal with tonight in the amendment. It tries to deal centrally with that point. It states that there will no longer be an unlimited period and that it will be an overall period of 10 weeks. That is the maximum by which a valid ballot may delay the process of a strike.
In the case of the Transport and General Workers' Union—I use that example because it is the only example we have had, although, as many noble Lords said, there could be many other examples—that would have given it about four or five weeks at the end of the period in which it could have organised a strike; in other words, something similar to the period which it would have had if there had not been legal intervention.
Perhaps the Minister will say that 10 weeks is too long and that he will accept eight weeks. I have consulted on the matter. People who know more about it than I do believe that a six-week discretion of that kind would give us a slight leeway as the courts were extremely expeditious in moving from the court of first instance through the Court of Appeal to the House of Lords and may not be able to do so at quite that speed next time. It would give the union a slight leeway if there were a small falling away if there were several cases of that kind; yet it is still entirely up to the judges as to whether they want to give that period. I stress that it is the maximum period. The judges might well decide that, if the matter were settled at the court of first instance, all the union would need is another fortnight. It would be up to the union to make the case at the time as to what period of extension would be legitimate for it in that case.
We must reject the arguments made by the Government to the effect that this is an isolated case which cannot come about again. Most of the time, employers do not take cases all the way through the system, but they might do so in future, as might unions. There might not be in most cases, and probably have not been in past cases, outstanding issues about which, at the injunction stage, there could be said to be a question of legality in which case neither side would go for an injunction. However, there might well be a tendency to take the case through its various stages.
I return to the basic point which the Government do not challenge. This was not the intention of the Bill in 1984. It was not the intention of the Bill to

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make unions run two ballots, one after the other, simply because they had got themselves into the legal process.
The only other argument with which I must deal very quickly was mentioned by the noble Lord, Lord Strathclyde, at the end of his speech on 6th December. In col. 962 of Hansard he seemed to imply that the problem which had produced the Bill was in some way the fault of the Transport and General Workers' Union because it failed to start the strike soon enough. It did not take advantage of the fact that it could have held the strike between the employers giving notice of their intention to seek an injunction and the courts deciding the case. The noble Lord said that
if the union had taken advantage of that opportunity, "it would then have satisfied the requirements of Section 10(3)(c)…Even if it had subsequently withdrawn its authorisation when an injunction was awarded, the union would have been able to organise the action without the need for a further ballot".
I ask the Committee to consider what is suggested. It is suggested that the leadership of the Transport and General Workers' Union should have started the strike between the declaration of the ballot result on 19th May and the court's decision on 27th May, a period of eight days. It should have declared the strike within those eight days in advance of the decision in case the decision went against it, or, if it went in favour of the employer, it should have done it before it went to the Court of Appeal.
One can imagine what the public reaction to that course of action would have been. One can imagine what the Government would have said. One can imagine what Fleet Street, or whatever it is now called, would have said; namely, that a union authorised a strike and a union leader conducted a strike on the very day that he went along to a court to defend his decision against the charge of illegality. That is what is suggested as an alternative to the Bill and to the amendment.
That is no solution at all. If it ever became the general practice of unions, employers would stop giving early notice of their desire and intention to ask for injunctions. If it operated at all, the courts would be under even more pressure than they are now to hold an expeditious hearing. As the Master of the Rolls, the noble and learned Lord, Lord Donaldson, said, the judges would be under pressure to hold up an injunction in order to give the unions time to start a strike. What kind of argument is that? In the heyday of the Department of Employment that kind of argument would never have been put into a young Minister's brief. That is how far we have gone. It is irresponsible and sick. The Government know that the General Secretary of the Transport and General Workers' Union, Mr. Todd, was absolutely right not to threaten strike action until he knew that if the strike took place it would be perfectly lawful. He would have been absolutely wrong to start it otherwise.
7.15 p.m.
Lord Strathclyde: This is Committee stage and we are dealing with the noble Lord's amendment. We
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are discussing only whether we are to change the period up to a maximum of six weeks.
Lord McCarthy: I do not disagree with the Minister, but I do not see why I am not making a valid point. When the Minister was last on his feet, he said that we did not need the Bill, and therefore presumably the amendment, because there was an alternative open to the union. I ask the Minister to have the courtesy to say this evening that on reflection he now accepts that that is no kind of argument at all and therefore that there is no argument against the Bill or the amendment.
Lord Campbell of Alloway: Noble Lords will remember that the first time around at Second Reading I canvassed the long stop extension of four weeks, making eight weeks in all. I said that if, for example, it were the wish of government to limit to four weeks the period of extension proposed by the Bill, then so be it. The second time around at Second Reading the noble Lord, Lord McCarthy said:
"As the noble Lord, Lord Campbell of Alloway, said, if that is the Government's primary objection to the Bill they could let the Bill go forward and in Committee propose amendments along those lines".—[Official Report, 6/12/89; col. 955.]
Then the noble Lord asked me whether I would support an amendment along those lines. Indeed I do support his amendment which allows for 10 weeks in all as a maximum.
I am grateful to the noble Lord, Lord McCarthy, for having tabled this amendment. I hope that it will meet with the approval of the Committee and also with that of my noble friend the Minister. It meets the second and third categories of objections of my noble friend the Minister, to which I referred at col. 945 on 6th December. The first head of objection that he raised—that this was a one-off situation—has been disposed of by the weight of reasoned argument and has been exposed as a misconception. The fourth head of objection was unintelligible and misconceived because it rested upon the premise that the 28-day period was under attack when indeed it was not.
But then my noble friend the Minister in his winding-up speech took a new head of objection, to which the noble Lord, Lord McCarthy, has just referred, at col. 962. He said that there was no need for the Bill at all because if within 28 days from a ballot the union authorises the action before an injunction is granted, the requirements of the statute would have been satisfied and there would be no need for any further ballot once the injunction had been lifted.
That was a point of legal construction which had not attracted the attention of any noble Lord who had spoken in either of the debates on this Bill. It was not raised by my noble friend the Minister or any other noble Lord the first time around. It was produced by my noble friend the Minister with the prestigious charm of a practised conjuror who taps the departmental hat and up pops the rabbit. He then suggested that this rabbit was a viable objection to the Bill. Noble Lords blinked in utter astonishment and we all went on our way.

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But, having considered the matter, the Master of the Rolls wrote to my noble friend the Minister the next day, on 7th December. The Master of the Rolls concluded that although the rabbit existed—in other words the point of strict construction was well founded—it was only, so to speak, by a trick of mirrors that it could be seen as a viable objection to the Bill. Quite the reverse, for if this point of construction were right—and it is open to question, there being no judicial decision as yet—the need for the Bill, in the view of the Master of the Rolls, was no less than imperative, as appears from his letter of 7th December to my noble friend the Minister, which I have the permission of the Master of the Rolls to quote. I quote the letter as it supports the need for the Bill as amended, if such be the Chamber's wish.
The letter speaks for itself. It will command the authority and respect which all noble Lords would wish to accord to the noble and learned Lord the Master of the Rolls. It is addressed to the Lord Strathclyde and reads as follows:
"Following the good humoured debate last night on this Bill, I looked into the point which you raised when stating the Government's attitude".
This is the point that the noble Lord, Lord McCarthy, was making towards the end of his remarks.
"I rather think that the legal advice which you received was correct. Under section 10(3)(c) of the 1984 Act, the "relevant act", i.e. the strike or other industrial action authorised by the ballot, has to take place within the 28-day period. At first I thought that the whole of the relevant act had to take place within that period, but clearly that is not correct, because this would mean that no strike could lawfully last beyond the end of the period. It follows, as you were advised, that all that is required is that it shall start within the period. Once it has been started, it could theoretically be suspended in response to a court order and resumed at a later date, if and when it was held to be lawful".
In effect it is getting pretty near Mr. Justice Cocklecarrot in some aspects.
"If I may respectfully say so, I think that you have been misled into scoring an 'own goal', for two different reasons".
The noble Lord, Lord McCarthy, picked one of them, but there are two.
"(1) As you will know, it is difficult for trade unions to call off a strike on a temporary basis once it has started."
This was the noble Lord, Lord McCarthy's, point—the practical point of view.
"These things have a momentum of their own. In encouraging unions to rush into industrial action when a legal challenge is threatened or anticipated, you risk creating a situation which will damage the authority of the courts. The union will no doubt issue instructions for the industrial action to be suspended and so will not be in contempt, but the industrial action will continue on the ground.
(2) The courts will be asked to enable the union to qualify under section 10 by leaving them free to start the industrial action. This could be achieved if any injunction granted at first instance was suspended pending an appeal or if the claim to an injunction failed on its merits at first instance, by refusing relief designed for the limited purpose of preserving the position pending an appeal. In the light of your advice this would be difficult to resist.
Surely it would be better to give the courts the power proposed in the Bill, which would enable them to deal with the matter on a straightforward basis without regard to the tactical position of the parties.
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I am copying this letter to Alan Campbell and Derry Irvine, both of whom were, I know, very interested in your point".
It is surely right that we should deal with the matter according to its substance, according to its merits and according to what I and all noble Lords have understood to be the general intendment of government to pass the Bill.
Baroness Turner of Camden: As the Committee will know, we on these Benches support the Bill. We supported it in both Second Reading debates. I rise to support the amendment moved by my noble friend Lord McCarthy. I do not want this evening in the limited time at our disposal to go over the history of the reasons for the Bill which he has done very effectively. However, my recollection of the Second Reading debate is the same as that of my noble friend Lord McCarthy and the noble Lord, Lord Campbell. A prime point made by the Government was that as drafted the Bill was open-ended and it would give a union the opportunity to call a dispute when the mandate that had already been given by a vote was in effect exhausted because so much time had elapsed since the ballot had taken place.
At Second Reading I made the point that it is never in the interests of a union, following a ballot vote, to prolong the time for calling a dispute. I speak as someone with experience of these matters on the ground. I can assure the Committee that once there is a ballot vote in favour of dispute action, one has to get up and go because at that stage the membership is all prepared and waiting for the next step to be taken and union instructions on what to do. Once one has lost that impetus it is very difficult to get it back again. That is where he unfairness exists which has already been described by my noble friend Lord McCarthy.
In the amendment he has tried to meet—I think very reasonably—the Government's objection. If the amendment were accepted there would be a maximum of 10 weeks. If the court had discretion, that would be the maximum amount of time available for a union. It would be reasonable because in normal circumstances a union would be able to get on with the organisation of the dispute in that period. The amendment is a reasonable and modest measure that is attempting to address an injustice which I do not think was originally envisaged when the legislation was promulgated.
In this Chamber we should be grateful to the noble Lord, Lord Campbell, for being so persistent on this question, and for bringing back the Bill a second time; and to my noble friend Lord McCarthy for attempting to meet in a very genuine way the objections that have been voiced by the Government.
7.30 p.m.
Lord Brightman: I entirely support the Bill. However, I feel that I ought to enter a caveat on the wording of the amendment. It occurred to me rather late in the day; otherwise I should have had a word with the noble Lord, Lord McCarthy, about it.
Members of the Committee know that, under the existing Act, to be lawful a strike must begin within

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four weeks of the close of voting. Under the Bill the period of four weeks may be extended for such period as the court directs. The amendment seeks to add the words, "up to a maximum of six weeks". With very great respect to the noble Lord, that formula is capable of meaning either that the court may extend the period of four weeks up to a maximum of six weeks inclusive of the basic four weeks, or, as is intended, that the court may extend the period of four weeks by adding to such four weeks a further period not exceeding six weeks.
I have spoken to my noble and learned friend Lord Donaldson of Lymington. He authorises me to say that he also considers that the proposed wording of the amendment is ambiguous. I therefore respectfully ask the noble Lord, Lord McCarthy, whether he will consider the wording between now and Report stage if the amendment is accepted by the Committee.
Lord Renton: The noble and learned Lord, Lord Brightman, has raised a very important point. However, with respect to him, I am not quite sure that we can deal with this by leaving it to Report stage. Under our rules there is no Report stage unless the Bill has been amended in Committee. If I am wrong about that I shall be happy to be corrected. I was borrowing from experience in another place which perhaps does not apply here.
Lord Brightman: I envisaged that the Bill would be amended in Committee in the form which was advocated by the noble Lord, Lord McCarthy. I was seeking that a further amendment be brought at Report stage.
Lord McCarthy: I fully accept the arguments made. It was my intention that it should read 10 weeks. In other words, it is the larger period rather than the smaller. If there is an ambiguity, I am perfectly willing to let the noble and learned Lord, Lord Brightman, dictate the amendment which I shall bring in at Report stage.
Lord Strathclyde: In order to avoid confusion, I understand that an amendment could be brought forward at Report stage even though there had been no amendments at Committee stage.
Lord Renton: I am very glad to hear that correction. It shows that procedure in this Chamber is more liberal and shows a better understanding of circumstances than the procedure on this point in another place. It is therefore not necessary for the amendment to be accepted this evening in its present form. It can be put right to remove the ambiguity. I was very glad that the noble and learned Lord drew attention to it. I was puzzling in my mind whether it meant six weeks altogether or four weeks plus six weeks, making 10 weeks. We have to get the provision right.
Having said that, perhaps I may say this, I hope without being pompous. It is very refreshing on a delicate trade union matter to find open-mindedness on both sides of the Chamber. The noble Lord, Lord McCarthy, made a very valid point when he said
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that it would be wrong to have an indefinite period where as the Bill stands, the judge could say, "Let it run on for months". I believe that very few judges in their discretion would be likely to do so. However, we have to enact the laws on the basis not of optimism but of possibility. Therefore it is a point that ought to be put right.
The noble Lord, Lord Campbell of Alloway, is to be congratulated both on the introduction of the Bill and on his attitude towards the amendment. I make a plea to my noble friend on the Front Bench. I very much hope that the Government will show the same sense of co-operation that both sides have shown towards each other on the Bill. I hope that the Government will accede to amendment of the Bill on the lines suggested and that the Bill will reach the statute book.
Lord Rochester: Like the noble Lord, Lord Renton, I am glad that the ambiguity to which the noble and learned Lord, Lord Brightman, referred earlier has been picked up by the Committee. I had a word today with the noble Lords, Lord Campbell and Lord McCarthy, on this point. I am relieved to learn—as no doubt are other noble Lords—that it can be put right at Report stage.
The proposal of the noble Lord, Lord McCarthy, that the relevant period might be extended by up to six weeks to make an overall period of 10 weeks is a fair and reasonable attempt to reconcile the views of government, the judiciary, employers and trade unions. I am therefore pleased from these Benches to support the amendment of the noble Lord. Like other noble Lords, I very much hope that in the interests of political consensus—which the noble Lord, Lord Campbell of Alloway, earlier said he was seeking in first introducing the Bill—the Minister will now find it possible to accept the amendment on behalf of the Government.
Lord Carr of Hadley: Perhaps I may very briefly add my support to the purpose behind the amendment. I supported the noble Lord, Lord Campbell of Alloway, the first time round last Session. I should have done so again had I been able to be here on the evening of 6th December. I was disappointed at the Government's reaction at that time. I could use a stronger word than disappointed but I shall not. However, I felt that there was this one point of substance in their objection which the purpose behind the amendment corrects. I very much hope therefore that the Government will accept the amendment in principle, taking note of the uncertainty that at present it contains and the need to put the uncertainty right, presumably with some further amendment at Report stage.
Lord Murray of Epping Forest: I should like to underline one point. The acceptance of the proposal would reduce the danger of strikes rather than increase it. If a union which has taken a ballot intended in part to induce a period of reflection and it is then faced by court proceedings which are terminated in favour of the union, there could be a danger of the union unduly precipitantly engaging

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in strike action. If a limited additional period is given, there will be much greater opportunity for discussions and negotiations to take place. Given the certainty on the part of the employers that a limit will be imposed, it will be mutually advantageous to have a period during which the union can talk rather than activate the strike decision.
Lord Strathclyde: As is customary when dealing with this subject, we have had an interesting and varied debate. I have listened with great care to the speeches that have been made. As I said during the Bill's Second Reading, we are keeping this aspect of the law under close review, and will continue to do so whatever the fate of this particular Bill. However, I shall limit my words to the amendment on the Marshalled List.
I have to say that I do not find the amendment tabled by the noble Lord, Lord McCarthy, attractive. In order to explain that view, it may be helpful if I once again describe the essential purpose of the present four-week limit on the period allowed for the first authorisation or endorsement of industrial action by a union following a proper ballot.
In requiring a union to hold a ballot of its members, the law simply ensures that union members can expect to have a vote in a proper ballot before being induced to take industrial action by their union. To allow an unduly lengthy period of time to elapse between such a ballot and the union's first authorisation or endorsement of industrial action risks a situation in which the ballot result no longer accurately represents the views of the union members as recorded in the ballot. The 1984 Act fixed the limit at four weeks from the date of the ballot.
The principle I have just described is really at the heart of the matter. The noble Lord's amendment would constrain the ability of the courts to grant an extension of more than six weeks on top of the four-week limit, but it does no more than that.
If a ballot was still an accurate representation of relevant members' views more than four weeks afterwards, I wonder why it should cease to be so after 10 weeks. If a ballot is to be held to continue to represent the view of relevant members more than four weeks after it has taken place by virtue of what a court decides, why should that depend on a court's decision and not simply be applied as the norm?
If there were to be changes in this area of the law, the Government believe that the right approach would be to preserve the principles upon which the present legislation is founded. The noble Lord's amendment fails to satisfy this test, in my view.
There is no question of whether the Government should accept the amendment. It is entirely up to my noble friend Lord Campbell of Alloway to decide what to do with the amendment. I repeat the fact that the Government will keep the matter under close review.
7.45 p.m.
Lord Campbell of Alloway: With respect—and there is nothing personal in my comment—my noble friend speaks with two voices. With one voice he
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makes plain the fact that the Government are totally opposed to the Bill. With another voice he says that the Government are keeping an open mind. Then I am asked what I propose to do. Frankly, at this precise moment I have not the slightest idea. The only honourable course is to continue the Bill's passage through your Lordships' House. In a sense, it is the joint responsibility of all sides of the House and it is not in the area of political dispute. The only dispute is between your Lordships' House and Her Majesty's Government, and I suppose we continue.
One other aspect arises and it is right. I was not consulted in the drafting of the noble Lord's amendment, and there is no reason why I should have been. An ambiguity is raised and I respectfully suggest that we pass his amendment accepting that fact. Perhaps the noble Lord will speak with the noble and learned Lord, Lord Brightman, or even with me and we can devise a form of words which will clarify the ambiguity on Report. Perhaps that would be an acceptable way of dealing with the matter.
Lord Callaghan of Cardiff: If the noble Lord, Lord Campbell, is in any doubt about proceeding with the Bill, I should like to encourage him to do so. I genuinely believe that he is doing more for good industrial relations than anything that has been said today from the Government Front Bench. I sincerely believe that the Government would be wise to accept a similar amendment and allow the Bill to pass.
If there has been one matter that has made me feel uncomfortable in recent years it has been the strongly held view within the trade union movement that, however strong a case it may make, however forceful its arguments, however unjust its position, it can receive no remedy. That is bad for the Government of this country and for the constitutional arrangements under which we work.
Although I do not believe that the passage of the Bill will remove all the complaints of the trade unions, nor do I believe for one moment that it will abate their opposition to the Government in general, it will be for the good health of our constitutional arrangements. They should believe that a case can be made. If a Bill can be put forward by a Conservative peer and receive support from all sides of the House, we are still in a position where the Government will bow to the view clearly expressed. I was deeply impressed by the speech by the noble and learned Lord, Lord Brightman, who gave the view of the Master of the Rolls.
I am sure that I am speaking to a sympathetic audience when speaking to the noble Lord, Lord Campbell, and I hope that he will continue with the Bill. By all means let us pass the amendment now that we have received an assurance that it can be amended. I am sure that with the combined wisdom of everyone present a suitable amendment can be found. I sincerely beg the Minister to convey to the Government the sentiments that have been expressed from all sides of the Committee, and I hope that they will allow the Bill to go through. The Minister may say that it is a matter for his noble friend Lord Campbell. However, I fear that the view of the Government, and those who have not heard

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the argument but come only to vote, will prevail unless the Government put their weight behind the Bill. I urge them most strongly to do so.
Lord Campbell of Alloway: I thank the noble Lord, Lord Callaghan. In view of his encouragement I undertake to continue with the Bill.
Lord McCarthy: I accept everything that has been said, except the comments of the Minister. Strangely enough, my experience has been that in all our debates on the Bill no one has supported the Government at any stage in this House. The Minister has been entirely alone.
I accept the suggestion of the noble Lord, Lord Campbell, as to what should happen. The Committee should accept the amendment, imperfect though it undoubtedly is. I shall undertake to go away with noble friends and others and find a form of words which is unambiguous.
The problem we have is that the Minister assures us that the crux of his objection is that he cannot move away from the position in which the period between the ballot and the strike must not be unduly lengthy. He has said so repeatedly. It appears that four weeks is the definition of "unduly lengthy". Even if the union has only two weeks or has run out of time and has to have another ballot, four weeks is the limit. If we had taken the minimal definition of my amendment so that it did not give 10 weeks but an additional two weeks, I do not believe that the Minister would have been any more welcoming. He tells us that this is unduly lengthy but will not tell us what is unduly lengthy.
I should like to warn the Government —as did my noble friend Lord Callaghan —about going too far down the road of saying that unions should have second and third ballots. In another place the Secretary of State for Health, Mr. Clarke, was quite right to say that part of the problem of the ambulance drivers' dispute is that there were two ballots. They had one ballot and then another ballot. Two affirmative ballots close together reinforced their determination to fight. It is not in the Government's or anyone's interests to force people who have once balloted to ballot again in a period when they feel they have been cheated by a law of this kind. In such circumstances it is in everyone's interests to give a little more time for those conducting the strike in an impeccably legal way —as did Mr. Todd —before they start their dispute. Therefore I should like the Committee to pass my amendment.
On Question, amendment agreed to.
Clause 1, as amended, agreed to.
Remaining clauses agreed to.
House resumed: Bill reported with an amendment.
[The Sitting was suspended from 7.53 to 8 p.m.]

Food Safety Bill [H.L.]
House again in Committee.
Clause 11 [Prohibition orders]:
Lord Mottistone Lord Mottistone moved Amendment No. 43:
Page 8, line 27, leave out ("shall") and insert ("may").
The noble Lord said: Clause 11 relates to the impostion of prohibition orders. The complication is that if everyone was terribly sensible and made no mistakes prohibition orders could be applied in a reasonable way. But problems become evident as you read the clause. My amendment seeks to allow a court to make an order if it wishes rather than it being ordered to make an order as proposed by the present wording of subsection (1).
The problem arises where a single item of defective food or the adverse reaction of an individual, medically intolerant to an ingredient, could result in the full imposition of the clause shutting down an entire company. Let us suppose that a company has just bought another business and there are premises which are not built as they should be. The investigation into it and the conviction which previously occurred would put it under subsections (2)(b) and (3)(b). Subsection (3)(b) states:
"prohibition on the use of the premises or equipment for the purposes of the business or any other food business of the same class or description".
A court which was not presented with all the facts or which did not listen —courts are not always perfect, as we know —might shut down the whole business just because one part of the premises was not within the terms required for its construction.
My probing amendment is designed to see whether we cannot modify this rather stiff clause to make it more responsive to what one might call practical common sense. A possibility, therefore, would be to insert the word "may". Another possibility would be to put other qualifications elsewhere in the clause. I hope the Government see the point of what I am trying to put across. I beg to move.
Lord Gallacher: I have a great deal of sympathy for the remarks of the noble Lord, Lord Mottistone. I referred specifically to the rather stringent nature of the clause as drafted when I spoke on the Second Reading of the Bill. Some form of discretion should be available to the court to take account of circumstances that none of us, quite frankly, is capable of envisaging in an area as complex as this.
I often ask myself whether the substitution of "may" for "shall" gives that discretion. When this much used amendment is aired, it is often used in reverse order; that is to say, people want to take out "may" and insert "shall". They are then confronted, as I recall, by the lawyers' opinion that there is in any case no difference in the words. For that reason I am not certain that "may" will do the trick in this particular circumstance. Nevertheless, to non-legal minds it reads less mandatory than "shall". I believe this is an area where the court needs an element of discretion: I hope the Government will find it in their heart to give it that element of discretion. I therefore support the amendment.
Lord Airedale: It occurs to my rusty legal mind that a good case can nearly always be made for the legislator not telling the judiciary what the judiciary

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"shall" do. "May" is a much more appropriate expression. The independence of the judiciary is beginning to be threatened if its members are told by the legislator what they "shall" do.
Baroness Hooper: The use of "shall" or "may" has taken up a considerable amount of your Lordships' time over the years. Perhaps I may begin my response, with all due deference, by trying to explain why we have used the word "shall" instead of the word "may".
A court could impose a prohibition order only if a proprietor had been convicted of a food safety offence and if it was satisfied that the health risk conditions were fulfilled. In our view it would be quite wrong if the court did not then close all or part of the business. That is the reason for using the word "shall".
I sympathise with my noble friend's intention. The amendment is to ensure that the courts are not compelled to impose prohibition orders as a result of minor isolated incidents. However, I think I can reassure the Committee that minor isolated incidents will not be caught by the provision.
In order to make a prohibition order the court would need to be satisfied that the health risk condition was fulfilled both at the time of the offence and at the time of the hearing. Common sense would tell it that this was not so. I hope the Committee will therefore feel reassured that minor incidents of this kind will not lead to prohibition orders under the Bill as drafted. I hope that my noble friend will feel able to withdraw his amendment.
Lord Mottistone: I am grateful to my noble friend the Minister for explaining the situation as seen by her at this stage. I am also most grateful to the noble Lord, Lord Gallacher, for his support. I am still not entirely happy that there is a fair basis for treatment of all sorts of companies under all sorts of circumstances. However, this is not the time to press the amendment. As everyone has said, it does not make much difference whether it is "may" or "shall". We will try and find another amendment which may push the point a little further. For that reason I reserve the right to come back at the next stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Gardener of Parkes Baroness Gardener of Parkes moved Amendment No. 44:
Page 9, line 1, leave out ("also includes") and insert ("may also include").
The noble Baroness said: This amendment appears to be rather like the last one moved by my noble friend Lord Mottistone, but in a way it is rather different. As it stands, Clause 11(4) states:
"The appropriate prohibition also includes, in a case falling within subection (2)(c) above, a prohibition on the carrying on by the proprietor of the business of any food business".
I appreciate that there are occasions when that is absolutely essential. In my health committee capacity I have seen cases whereby a man who had one set of premises closed down rapidly reopened almost next door and carried on in just as bad a way. Therefore, I can see there will be occasions when this power is required.
However, the major food manufacturers are very concerned. They say that a situation could exist whereby they acquire a tiny subsidiary, along with other assets or some other business transaction, but that little subsidiary becomes part of their concern. They are the proprietors of that little subsidiary, which is found to be defective. It may well be that the major manufacturers looked at the premises themselves and closed them down in next to no time. Instead, this prohibition order comes forward and, under this clause, they believe it would close down their entire manufacturing business for the whole of the United Kingdom.
That appears to be a most alarming prospect and I am sure that can never have been intended. That is why my amendment adds, "may also include". That would mean that the court would have discretion to see that cases of the kind I have been speaking about are included where there has been a scandalous attempt to avoid proper control in food terms. However, it would not penalise a group that was running 99.9 per cent. of its establishments perfectly and which had just one problem in one spot. I beg to move.
Baroness Hooper: One of our main aims in this Bill is to catch the real offender. This applies to prohibition notices as much as it does to any other provision. I assure the Committee that it is not our intention to prohibit an entire company from carrying on a food business because of an offence committed in a single outlet which may not be typical of the company as a whole. Perhaps I should have reassured my noble friend Lord Mottistone more specifically on this point in the course of our discussion on the previous amendment.
In this kind of case the court would have to be satisfied that the health risk condition was fulfilled with respect to each and every branch. Unless that was so, no court would close down several branches of the same business. Nevertheless, I am grateful to my noble friend for raising the issue in this way. I do not feel that her amendment necessarily achieves the aim that she has outlined. We intend to review the clause carefully to ensure that there is no risk of it being interpreted in the way she suggests. We shall therefore give it more consideration. In those circumstances I hope that my noble friend will be able to withdraw her amendment on that basis.
Baroness Gardner of Parkes: I am greatly reassured by what my noble friend has said. I am sure that the industry will also be grateful. The point was raised very strongly at the all-party meeting we had outside the Chamber. It is very good that the Minister intends to review the clause. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.15 p.m.
Lord Lucas of Chilworth Lord Lucas of Chilworth moved Amendment No. 45:
Page 9, line 17, leave out ("14") and insert ("3").
The noble Lord said: In moving this amendment I shall speak also to Amendment No. 49 because that amendment is consequential on Amendment

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No. 45. In some ways these amendments go along with what my two noble friends have just been discussing. Clauses 11 and 12 provide for the courts to issue prohibition orders where a proprietor is convicted under regulations made under the clauses.
The prohibition may apply to a part or the whole of the business including the use of equipment or a certain process. Clause 11(6) states:
"a prohibiton order … shall cease to have effect on the issue by the enforcement authority of a certificate to the effect that they are satisfied that the proprietor has taken sufficient measures to secure that the health risk condition is no longer fulfilled".
The Bill provides that the certificate shall be issued within 14 days of the authority being so satisfied.
In these circumstances 14 days is quite a long time because when the satisfaction is established the proprietor will want to return to business. In circumstances where the business is a small one it may well be that 14 days with the non-execution of business makes the difference between staying in business or not. In other words, it makes the difference between survival or non-survival.
When the inspection is made and the authorised officer is satisfied that that which prompted the issue of a prohibition notice has been remedied, surely it should be no more than a matter of course that the notice is lifted. In other words, there is no reason why the inspector cannot reach into his briefcase, pull out the appropriate form, write on it and deliver it. I do not see that it will take 14 days for that to happen because the inspector knows precisely what he has come to look for or look at.
The inspector may not be able to attend the premises within a day or two days, if it is the weekend or a bank holiday, after a proprietor has given notice that the infringement has been remedied. It is not unreasonable to suggest that Clause 11 should state that three days is quite sufficient to issue the notice.
Amendment No. 49, on Clause 12, is pretty well the same because it gives powers to officers to serve emergency prohibition notices which impose an appropriate prohibition while the officer waits for the magistrates' court or the sheriff to impose the order. The technical difference between the amendment to Clause 11 relating to prohibition orders and Clause 12 dealing with emergency prohibition orders does not need to be considered in relation to either of these amendments because the principle of relief from either the notice or the order is precisely the same. I have suggested to the Committee what should be done about that.
As regards Amendment No. 49, we are looking for a reduction of the 14-day limit to three days concerning the issue of certificates by the authorities to lift the emergency prohibition orders once they are satisfied that the risk condition is no longer there. In the former case concerning Amendment No. 45 there should be three days to lift the prohibition notice once the authorities are satisfied that the condition is no longer there. I beg to move.
Baroness Hooper: I am happy to be able to say that my noble friend has convinced me he has a good case. I agree that it would be very unfair to
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require a business to remain closed for up to two weeks after it has been judged fit to reopen. Once an environmental health officer has inspected premises to his satisfaction and has reached a decision, it should not be difficult for the local authority to issue a certificate within three days. I am therefore happy to accept both my noble friend's amendments.
Lord Lucas of Chilworth: I am most grateful to my noble friend. I beg to move.
On Question, amendment agreed to.
Baroness Gardner of Parkes Baroness Gardner of Parkes moved Amendment No. 46:
Page 9, line 18, at end insert—
("( ) Within 14 days of an application by or on behalf of the proprietor of the business, the enforcement authority shall decide whether to issue or to refuse to issue such a certificate and in the latter event, shall give in writing its reasons for its refusal.").
The noble Baroness said: I shall speak at the same time to Amendment No. 50. Amendment No. 46 relates to Clause 11 and Amendment No. 50 to Clause 12. In each case the intention is to avoid undue delay by requiring the enforcement authority to issue the certificate or give grounds for its refusal within a reasonable time—within 14 days —of an application by the proprietor. If there has been a problem and a proprietor has taken all reasonable steps to put it right, thus obviating any health risk, why should he not be allowed to seek the lifting of the prohibition within a reasonable time? The only possible justification for delay would be as a form of punishment for failing to comply with the regulations in the first place. That is not the motive because other forms of punishment are set out in the clauses. In regard to Amendment No. 50, I agree that it is right that there should be provision for such emergency powers, but again I do not see why people should have to wait an unreasonable length of time. I beg to move.
Baroness Hooper: My noble friend has raised two very fair points, which once again I feel I can accept in principle. It is important, as I said in replying to the previous amendment, that businesses which no longer present a risk to health should not be forced to remain closed for longer than is reasonable while the enforcement authority makes up its mind about them. Fourteen days does not seem an unreasonable time to allow them to do this.
It must be to everyone's benefit if the authority is required to set out its reasons for refusing to cancel a prohibition order or an emergency prohibition order. The proprietor will then know exactly what is expected of him, and will be able either to address outstanding problems or to appeal if he feels the refusal was unreasonable.
I should like to take advice on how best to accommodate the principles of the amendments within Clauses 11 and 12. There may be some residual renumbering and so on. I should therefore be grateful if my noble friend would agree to

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withdraw her amendments on the understanding that we shall bring forward two similar amendments in due course.
Baroness Gardner of Parkes: I thank my noble friend. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 47 not moved.]
Clause 11, as amended, agreed to.
Clause 12 [Emergency prohibition notices and orders]:
Lord Mottistone Lord Mottistone moved Amendment No. 48:
Page 9, line 47, leave out ("such injury") and insert ("danger to health").
The noble Lord said: Subsection (4) of Clause 12 sets out the reasons for subsections (2) and (3) of Clause 11 applying. Under those circumstances, it would probably be more appropriate if the seriousness of the situation in which such powers could be exercisable was conveyed. I believe that it would be better to terminate the subsection with the words "danger to health" instead of "such injury". It is a small point but it conveys better the sense of what is required. I beg to move.
Baroness Hooper: I regret that in this case I cannot accept my noble friend's amendment. I understand his concern that the definition of "injury" as it appears in Clause 7 may seem too wide. I cannot see, however, that substituting the word "danger" for "injury" would help in any way. Both words amount to more or less the same thing. The Government are concerned to ensure the proper protection of the public. I am not sure that I could in any case support any substantial weakening of these provisions. For the reasons which were explained earlier, I hope my noble friend will understand that the concept of injury to health is by no means as wide as he fears although it is wide enough to cover circumstances where emergency action is required. In the light of my remarks, I trust that my noble friend will not wish to press the amendment.
Lord Mottistone: I do not wish at this stage to press the amendment. However, it is not a question of weakening the provision. I reckon that I am tightening it up and strengthening it. I agree with my noble friend that we need to do that rather than weaken it. The whole matter spins around the definition of "injury" in Clause 7. We shall return to that at a later stage when we can pick up this point. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Lucas of Chilworth Lord Lucas of Chilworth moved Amendment No. 49:
Page 10, line 25, leave out ("14") and insert ("3").
The noble Lord said: I have already spoken to this amendment, which I understand my noble friend the Minister will accept. I beg to move.
On Question, amendment agreed to.
[Amendment No. 50 not moved.]
Baroness Gardner of Parkes Baroness Gardner of Parkes moved Amendment No. 51:
Page 10,.line 39, leave out subsection (10)
The noble Baroness said: This is the last of my amendments to address the need for urgency in determining whether or not provisional orders or notices should be confirmed and remain in force. The amendment deals specifically with the public holiday issue. Clause 12 deals with emergency prohibition notices and orders. As I said earlier, there is a need for such powers. However, subsection (10) would exempt Bank Holidays and weekends from the period of three days provided for in Clause 12(7)(a) within which an officer, having served an emergency prohibition notice, has to apply for an emergency prohibition order.
I understand the difficulties which enforcement authorities may face but many businesses, including manufacturers, retailers and caterers, operate during weekends and during public holidays. The law should surely recognise the practicalities of businesses tuned to meeting consumer requirements. Thus my amendment suggests omitting this subsection to bring the timing into line with the type of industry involved.
A further point is covered by the amendment. As drafted, subsection (10) would curiously seem to preclude action in England on a Scottish Bank Holiday and in Scotland on an English Bank Holiday. Is that so? I shall be graceful for the Minister's comments on that. I beg to move.
Lord Stanley of Alderley: I support my noble friend's amendment. Most of this country works for only about three days a week. As she pointed out, some of us have to work for seven days. She is absolutely right in moving the amendment.
Baroness Hooper: In spite of the support for my noble friend, I am afraid that I cannot accept the amendment. Courts' normal sitting days are weekdays. We see no reason for departing from usual practice in this case. These days therefore cannot be counted as sitting days for the purposes of the clause. However, I would point out that businesses are able to insure themselves against losses sustained in these circumstances.
I should also like to point out that Clause 12(10) works in the proprietor's favour. I am sure that no proprietor would like to be told on Christmas Eve that his local authority would be applying for an emergency prohibition order against him in court on Christmas Day. It would be difficult, if not impossible, for him to get the legal advice and representation he needed over the Christmas holiday. Some unfortunate proprietor might be put in that position if the amendment were to be adopted. I think my noble friend is right in her point about Scotland. However, I shall have to look into the matter. I hope that in view of what I have said, my noble friend will feel able to withdraw the amendment.
Lord Mottistone: Surely my noble friend is aware that magistrates' courts often sit, where necessary —in the case of there being a public

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disorder or some such other occurrence—on Saturdays, Bank Holidays and, under real pressure, on Sundays. However, the latter is very rare. In my view it is about time one or two other people were obliged to sit on those days.
Lord Lucas of Chilworth: My noble friend mentioned the point about insurance against loss of profits. It was also mentioned by my noble friend Lord Stanley of Alderley when we discussed an earlier amendment. He said that insurance in those circumstances is nearly impossible. It is true that you can certainly insure almost anything at some kind of rate and a loss of profits insurance is not overly difficult to obtain. However, a loss of profits insurance that involves an action by a proprietor would almost certainly make void his loss of profits claim.
It may be that I am being a little pernickety this evening and perhaps what I have to say does not greatly affect the purport of my noble friend's amendment. However, if the Minister is going to give such a reply, then I think that it should be couched in terms which are more accurate than those contained in the statement that she made.
Baroness Hooper: I believe that the loss of perishable food under those circumstances is an insurable risk. However, I shall look into the matter in the context of my noble friend's remarks.
Baroness Gardner of Parkes: It may well be that my noble friend Lord Lucas meant that if the loss of food was in any way the fault of the proprietor, then that would be a different matter and the insurance policy may then be void. However, we have had a most useful discussion on the matter, and in the circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 12, as amended, agreed to.
[Amendment No. 52 not moved.]
Clause 13 [Emergency control orders]:
Baroness Hooper Baroness Hooper moved Amendments Nos. 53 and 54:
Page 10, line 45, after ("any") insert ("class or").
Page 10, line 48, after ("that") insert ("class or").
The noble Baroness said: These amendments were spoken to with Amendment No. 41. I beg to move.
On Question, amendments agreed to. Clause 13, as amended, agreed to.
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 55:
After Clause 13, insert the following new clause:
("Compensation.
(1) This section applies where any person makes a complaint to a justice of the peace on the ground that he is aggrieved by an emergency control order made under section 13 above, or by an emergency order made under section 1 of the Food and Environment Protection Act 1985.
(2) If a justice of the peace is satisfied, on the basis of such evidence as he considers appropriate in the circumstances, that there was no imminent risk of injury to health from the carrying
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out of commercial operations with respect to food or food sources at the time when an order under section 13 above was made, or that food was not unsuitable for human consumption at the time when an emergency order under section 1 of the Food and Environment Protection Act 1985 was made, the Minister shall compensate the owner of the food or food sources for any depreciation in the value of the food or food sources.")
The noble Lord said: The proposed new clause is intended to provide a means to debate the need to look after the interests of those persons who suffer financial loss as a result of the use of emergency powers to protect the public from food which is, or which is thought to be, hazardous to human health, but who are innocent parties with no effective remedy for recovery of their losses. The amendment would include food sources as defined in Clause 1 to mean,
"any growing crop or live animal".
During the passage of the Food and Environment Protection Act 1985 I supported my noble friend Lord Radnor in a series of amendments which would have solved the problem of compensation to producers in circumstances outside their control. Shortly after the passing of that Act, such a case occurred; namely, the Chernobyl disaster. Moreover, such a risk still remains in connection with lead in cattle feed.
If my noble friend has the time she will be able to find the relevant amendments to that Act. The proceedings started on 6th December 1984 and are to be found at col. 1470 of Hansard. The debate continued throughout the passage of the legislation right up to Third Reading. Although my noble friend and I had the sympathy of noble Lords, and indeed that of my noble friend Lord Belstead, the Government refused to accept that such a situation —which later occurred in Chernobyl —would ever occur.
The Government argued that emergency powers under the Act could be revoked immediately. Perhaps we should try using that argument when speaking to sheep producers in Wales or in Cumbria who are today still suffering the effects of Chernobyl. They also argued at the time that the polluter, not the Government, should pay and that he would be responsible for the cost of safety measures under the emergency order. Perhaps we should try telling Mr. Gorbachev that even in today's climate.
The Government also argued on that occasion that if Ministers acted excessively, the courts would provide redress. Perhaps we should try telling that to farmers who are today suffering from the effects of lead in foodstuffs. The Government further argued that the farmers should insure themselves against such a risk. We have discussed the matter today, and I suggest to Members of the Committee that they read what my noble friend Lord Radnor said about the ability to insure during the passage of the 1985 Act.
So much then for the history and the reason for my moving this amendment. It would provide a means for a person aggrieved by an emergency order to receive redress. I hope that Members of the Committee, and my noble friend, will see the sense and justice of what I am trying to achieve. I want, as I hope do Members of the Committee, to avoid

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a repeat of the Chernobyl fiasco. I also want to avoid a similar fiasco as regards lead in feed which is already happening today.
If such an amendment to the Food and Environment Protection Bill had been accepted it would have solved the problem. I very much regret the fact that I persuaded my noble friend Lord Radnor at that stage not to divide the Chamber. I suppose that I was in a more than usually pathetic mood, no doubt because of the persuasiveness of my noble friend Lord Belstead who was then the Minister of State. Moreover, its acceptance may even have saved the jobs of certain Ministers.
The drafting of the amendment may well be faulty, but the purpose of it — which is fair play —is not. I feel strongly that some such amendment which is in any event in line with the Government's new view, as expressed in Clause 9, should be considered. Indeed, the remarks made by my noble friend on the Front Bench in reply to my noble friend Lady Gardner of Parkes on Amendment No. 33 support my case. I beg to move.
The Earl of Radnor: I suppose almost inevitably I must support the amendment. I do so in a most wholehearted way. However, I do not propose to bore Members of the Committee by repeating what I said a few years ago. Indeed, I have purposely not reread the debate. I agree with everything that my noble friend has said. A great deal of trouble could be caused in this connection. We must face the fact that such a situation could arise again. A producer of a food source who is aggrieved should have recourse to a justice of the peace, and have the chance to recoup from the Government some of the losses for which he was in no way responsible.
The latter point has been covered very well this evening and it was clearly mentioned in 1985. However, I should like to dwell a little upon the situation where an emergency control order is placed upon some produce or other for certain reasons. It is then decided —because such an order must be issued in a hurry —that the order was imposed in error and thus the food could be released for sale. Of course with certain foodstuffs the rate of deterioration is very rapid. I am thinking especially of fruit and fish. The goods may well then no longer be of any value whatever, or their value may be very reduced.
The producer could suffer just as much loss from emergency control orders as he could from the prohibitions that occur in Clause 9. Clause 9(7) provides a good recourse for people who have suffered loss. They can go in front of a justice of the peace, produce witnesses and be compensated for the loss in value of the food. We have already debated a detail of that clause because it was felt in some quarters, including speakers in the Chamber, that the contingent loss should also be paid.
A degree of logic might well be injected into the Bill if Clause 13 were to follow the same pattern as Clause 9. I can see no reason why it should not do so. There are two distinct points here. There is the error which occasions loss, and there is the loss for
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which the producer is not responsible. I hope that no one will say that the latter is an insurable risk. The one thing I do remember from 1985 is asking various brokers whether the risk was insurable. I was told that for all practical purposes it was not. I hope that my noble friend the Minister will consider the amendment carefully. I suspect that it is not perfectly drafted; but the logic of Clause 13 following the same pattern as Clause 9 and allowing recompense is almost unarguable. I give the amendment every support.
Lord Carter: From these Benches we support the new clause because it is a reasonable and sensible proposition. The noble Lord, Lord Stanley of Alderley, has drawn attention to the considerable injustice that can result where restrictions are imposed and it is then shown that there was no danger in the food.
The Government are no doubt concerned about the possible cost implications of the proposal. I hope that they will recognise the justice behind the amendment and agree to consider it. An interesting sideline to the amendment was mentioned by the noble Earl, Lord Radnor. I discovered by putting down a Question for Written Answer that if a farmer has had his milk impounded due to the risk of lead contamination in the feed, that amount of milk will still be taken into account in the calculation of his milk quota and his liability under the super levy although he may not be paid for the milk. If I have understood the amendment correctly, it would also help to deal with that problem.
Lord Ezra: We, too, should like to support the amendment from these Benches. It is important that in the Bill we seek to have an even-handed approach to the various problems. Those who are shown not to have been guilty of the fault indicated and who can get a magistrate so to agree should be dealt with in the way proposed. We therefore support the amendment.
Lord Avebury: When the Minister replies, will she deal separately with two of the points that have been raised? The first relates to what happens when the Minister has erroneously exercised the power to make the order when it is subsequently shown that there is nothing wrong with the food in question, or when there would have been no risk to the public from the continued use of those foods. Secondly —and this is a point made by the noble Lord, Lord Stanley of Alderley, when he moved the amendment —what happens when the emergency control order is validly made in the case of food-stuffs which have been contaminated to an extent which makes them unfit for human consumption but where no fault can be attributed to the producer of the foodstuffs?
The noble Lord, Lord Stanley, properly drew attention to the enormous losses suffered by farmers due to the Chernobyl disaster. I do not know whether there is any provision in the Bill to deal with such circumstances, but in future emergency control orders may be made in respect of food which has been contaminated by a nuclear disaster somewhere else in the world. In those circumstances, the farmers

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could not look for protection to the amendment moved by my noble kinsman because that requires it to be shown that the consumption of the food could not have involved any risk of harm to the consumer.
Regarding Chernobyl, there would have been great risk if people had unwittingly consumed meat that had been contaminated by nuclear explosion. I should be grateful if the Minister would refer to any provisions in the Bill which would take care of the losses sustained by farmers from such a disaster as well as the losses sustained by an emergency control order which has been made erroneously by the Minister.
8.45 p.m.
Baroness Trumpington: I am afraid that I cannot accept the amendment moved by my noble friend Lord Stanley of Alderley. It would place an unjustifiable further burden on justices of the peace. The law already holds Ministers accountable if they exercise their powers negligently or unreasonably. That may be an answer to the first question asked by the noble Lord, Lord Avebury. The practical effect of the amendment could well be that anyone subject to an emergency control order would immediately complain to a justice of the peace who would then have to make a judgment, often on the basis of incomplete information or inadequate technical evidence, on the degree of risk which existed. The essence of emergency powers is that they may have to be exercised speedily, sometimes before all the facts are established with total certainty. Moreover, it would introduce the possibility of the Minister or his representatives having to defend the action before a justice of the peace or any number of justices of the peace.
The amendment could deter Ministers from taking swift action. The inevitable result of that would be to put consumers at greater risk. That is clearly unacceptable. As I have already indicated, Ministers must act reasonably. They know that, and they know that if they act unreasonably, the citizen can go to the High Court for a judicial review. In line with established policy on matters of public safety, there will be no statutory provision for government compensation. The onus must remain on those producing or handling food to exercise the greatest care over their selection and handling. In addition, traders can insure against such risks, and once the provisions are enacted may be better placed to seek legal redress from negligent third parties.
We hope not to have to use the powers in Clause 13, but believe that consumers will be reassured to know that in the last resort the Government have adequate powers to take immediate action when consumer safety is threatened.
Hazard notices are issued by the Department of Health. The Parliamentary Commissioner for Administration may award compensation against the department and that has happened at least once. I accept that there may occasionally be a genuine case of compensation. If so, we could pay it under other legislation. Farmers affected by FEPA
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restrictions imposed after the Chernobyl accident received compensation.
It was unfair of my noble friend to mention lead in foodstuffs. The Government have taken every possible prompt action to prevent adulterated food from getting into the food chain. That adulterated food was in no way the result of action in this country. My noble friend, with his NFU connections, should know what is going on. The Government are out of pocket because of the prompt and correct action which they took at the time.
Lord Stanley of Alderley: I cannot agree with my noble friend on the Front Bench. We appear to be very, very far apart. For once, I feel totally confident that I am right. It is not often that my noble kinsman supports me, and when he does, I feel that I am probably on the right lines. I do not think that my noble friend answered his questions.
I am sorry that my noble friend on the Front Bench does not have confidence in justices of the peace deciding this problem. That surprises me because in Clause 9 the justices of the peace are given that responsibility.
Baroness Trumpington: I never said that I did not have confidence in justices of the peace. Indeed, I was one myself for quite a long time; therefore I have total confidence in them.
Lord Stanley of Alderley: That is fine. If my noble friend has total confidence in the justices of the peace, I cannot see why my amendment is at fault. At least we are at one on that point. If she feels that they are not capable of doing the job which they are given in Clause 9, then I am sure that we can think of somebody else who might take the job.
For producers and retailers, food is a very volatile commodity. It perishes very quickly. A High Court review is very expensive and time-consuming. I need hardly remind my noble friend of what is happening in regard to lead in food. That brings out the problem. Farmers are put in a very unpleasant position. They may be able to obtain compensation in the long run —perhaps after they have gone broke —from the supplier of the food. However, if they have not used that food for particular animals, they will not get compensation. They are in an invidious position.
I shall not delay the House any longer. I shall however return to this point. I hope that my noble friend will give the matter very serious thought. I hope that there is no prospect of the same trap into which my noble friend Lord Belstead forced me over the Chernobyl incident. I do not intend to leave the matter this time. I made a mistake on that occasion; I do not wish to make another. In the meantime I beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
Clause 14 [Selling food not of the nature, substance or quality demanded]:
Lord Carter Lord Carter moved Amendment No. 56:
Page 11, line 29, leave out ("to the purchaser's prejudice").
The noble Lord said: In moving Amendment No. 56 I should like to speak also to Amendments Nos.
57 and 58. These amendments deal with the curious phrase in Clause 14(1), "purchaser's prejudice". Under the provisions of the Bill which reflect the existing law, an offence is committed under Clause 14(1) only if the purchaser himself or herself is prejudiced. That is a curiously restrictive phrase.
Many people buy food for their family —infants or elderly people, for example, who do not attempt to buy their own food. If they are "prejudiced", they are denied access to redress under the clause as presently drafted. Equally, elderly and diabetic people have the right to expect that the special food they need —bought for them by a friend or a carer —is of the nature, substance or quality which suits their special needs. The Bill is intended to close as many gaps in the food law as possible. This amendment would clarify the law and make possible the prosecution' of traders who might otherwise escape prosecution where they sell food "not of the nature, substance or quality demanded".
Another example is that of a catering manager or the chairman of a refreshments committee who might be a purchaser of food. Others would be the consumers of the food. The Bill seems to prevent the consumers of the food seeking redress from the seller of the food if the purchaser decides not to do so.
We feel that consumer protection measures must serve to protect all consumers. The amendment is intended to close a loophole which prevents the legislation from doing just that. I beg to move.
Lord Ezra: I should like to support the amendment in view of a similar amendment which I shall move later. The Bill causes confusion in the mind. There has been a case of a can of peas containing a caterpillar. If that were purchased by one's wife and served to the rest of the family, it is not clear whether there would be any recourse by those who ate the intruder in the can of peas by failing to observe it soon enough.
We should be clear about the matter. If any food is purchased that prejudices a person other than the purchaser, that other person should be in a position to take redress. What we should like to hear from the noble Baroness is whether our interpretation of this restrictive wording is correct or whether it means that any person who is prejudiced by that purchase can take action to safeguard their interests.
Baroness Trumpington: I am not sure that I absolutely understand the noble Lord's intentions in proposing these amendments. Clause 14 is based on Section 2 of the current Act which has been used for the majority of prosecutions under the Food Act and its predecessors. It is a very well understood offence which has stood the test of time.
I believe that to widen the clause in the way suggested would be confusing without offering any additional protection to the consumer. Food which is not of the nature, substance or quality demanded by the purchaser would still be to the purchaser's prejudice, even if that food was bought for or consumed by someone else who was adversely affected by the purchase. In any event, if injury to health were at issue, Clause 8 would apply. This
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applies to all points of the chain and to anyone who is affected. The new offence at Clause 8(2)(c) covers the contamination elements of nature, substance or quality. The suggestion made by the noble Lord, Lord Carter, that we should leave out the words "to the purchaser's prejudice" seems to imply that when the food sold is better than the purchaser demanded, that would also be an offence. I cannot believe that that is what the noble Lord had in mind. It would not be right.
I hope that I have read the amendment correctly. If not, perhaps the noble Lord will further enlighten me. If necessary, I shall write to him.
Lord Carter: The drafting may be at fault because we are obviously not understanding each other. This amendment is intended to show that if the purchaser is not himself or herself "prejudiced" but someone else is, that other person can take action. At the moment the third party who is affected by the unsafe food is not able to take action.
Baroness Trumpington: I think that I should write to the noble Lord, Lord Carter, on this matter.
Lord Carter: In the light of that assurance I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 57 and 58 not moved.]
Lord Lucas of Chilworth Lord Lucas of Chilworth moved Amendment No. 59:
Page 11, line 30, after ("nature") insert ("or").
The noble Lord said: I beg to move Amendment No. 59 standing in my name. With the permission of the Committee I should like to speak also to Amendment No. 62 which is consequential. The amendment provides for the offence of selling food not of the "nature of substance or quality" demanded. This subsection of the Bill repeats the provision in Section 2(1) of the 1984 Act. However, I suggest to the Committee that there is a subtle difference in the wording. The Bill provides an offence where a person sells food,
"which is not of the nature, substance or quality demanded".
My noble friend the Minister just referred to the words in the 1984 Act. I shall remind my noble friend what she said just now in answer to the noble Lord, Lord Carter. She said that the provision which she was discussing in Amendments Nos. 56 to 58 was the same as that in the 1984 Act. She said that it had stood the test of time.
Baroness Trumpington: I mentioned the offence.
Lord Lucas of Chilworth: My noble friend mentioned the Bill.
9 p.m.
Baroness Trumpington: I shall reread what I said, which was that Clause 14 is based on Section 2 of the current Act which has been used for the majority of prosecutions under the Food Act and its predecessors. It is a very well understood offence which has stood the test of time. I should also pre-empt my noble friend by saying that we shall look favourably on his amendment. Therefore, I suggest he does not bang on too much.
Lord Lucas of Chilworth: I am obviously grateful for the advice that I have received from my noble friend. As I suspect she knows, the point is that there is a subtle difference in wording. The 1984 Act deals with a person who sells food which is not of the nature or of the substance or of the quality required. Thus a prosecutor under the 1984 Act must specify which of the three categories is applicable. In this Bill there does not seem to be that necessity. That is the purpose of these two amendments. However, I take heart from what my noble friend said a few moments ago and I look forward with eager anticipation to her response to this amendment. I beg to move.
Baroness Trumpington: While I do not believe that the amendments of my noble friend are necessary and will not change the meaning or intention of these clauses, I am happy to accept his proposal. I believe that whether we used the wording proposed by the noble Lord or the wording used in the Bill, it would be necessary to specify which concept out of nature, substance or quality the offence related to. It might be one of those concepts or a combination of them. However, we shall need to ensure that the amendments of my noble friend are carried through the Bill so that it is consistent. I shall bring forward an appropriate government amendment on this matter.
Lord Lucas of Chilworth: I am most grateful to my noble friend. With that assurance, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Carter Lord Carter moved Amendment No. 60:
Page 11, line 35, at end insert —
("(3) On conviction of any person under this section the court shall have the power to order the seizure and destruction of any food that may be held by the seller which is of the same nature, substance or quality as that which gave rise to the offence.").
The noble Lord said: This amendment is intended to introduce a new subsection into Clause 14. The Bill as drafted provides for the inspection and seizure of suspected food under Clause 9. However, for the court to be able to order the destruction of the food, the food must be in accordance with the requirements of Clause 8(2)(a), (b) or (c). This means that the food must be unfit for human consumption.
However, it will be recalled that some years ago there was a celebrated case involving the contamination of wine by extraneous substances. It would have been extremely difficult to demonstrate that the wine was unfit for human consumption, but, equally, it was generally felt that the wine should not continue to be sold. In the absence of a power to seize and subsequently destroy the material, the wine reappeared on the market for some time. In our view, therefore, the courts should have power to order the seizure and destruction of food which may not be of the quality demanded by the purchaser, in that it has been adulterated, possibly quite considerably.
There is another aspect of this amendment on which I should be grateful to hear the Minister's view. I refer back to Clause 8(3) and food which is,
"part of a batch, lot or consignment".
I have been looking for an opportunity to ask whether any part of the Bill applies to imported eggs. If part of a batch, lot or consignment of imported eggs were found to be contaminated with salmonella, for example, could the rest of the consignment be impounded? Could it be dealt with under the terms of this clause, the previous clause or both of them? I beg to move.
Baroness Trumpington: I wish to assure the Committee that Clause 8 of the Bill already allows enforcement officers to seize a whole batch, lot or consignment of food which is contaminated in the way described, and apply to a magistrates' court to have it condemned. Particular consideration was given to diethylene glycol in wine and similar cases when drafting Clause 8. That is why subsection (2) expressly distinguishes between food which is unfit for human consumption and food which,
"is so contaminated (whether by extraneous matter or otherwise) that it would not be reasonable to expect it to be used for human consumption in that state".
Trading standards officers will have access to these powers. We would not wish to go further and give trading standards officers powers to detain or destroy food which is not up to standard in ways which do not pose a risk to health, such as mince with a fat content which is too high but which could be reprocessed.
As regards the question of the noble Lord, Lord Carter, about imported eggs, the answer is that if they were unfit or contaminated Clause 8 powers would apply, as would those under Clause 9, regarding seizure. I hope that in the circumstances the noble Lord, Lord Carter, will be impressed with these remarks and will withdraw his amendment.
Lord Carter: I certainly wish to withdraw the amendment. However, the answer that has just been given regarding eggs is extremely interesting. As we know, the problem with imported eggs is that the rest of the consignment has disappeared into the food chain while the eggs that are suspected of contamination are being tested. I hope the noble Baroness will write to me to tell me how the Government propose to deal with that problem. I should be interested to know that. However, in the light of the comments that have been made, I beg leave to withdraw the amendment.
Baroness Trumpington: I am conscious of the Chairman's presence in the Chamber in a certain connection.
Amendment, by leave, withdrawn.
On Question, Whether Clause 14 shall stand part of the Bill?
Viscount Montgomery of Alamein: Before we leave Clause 14, perhaps I may intervene briefly to ask a question of general interpretation which I indicated to the noble Baroness that I wished to raise at this stage. However, I appreciate that she may not be able to give me an immediate reply. My question concerns the Bill in general as it affects the restaurant trade, which has some relevance to consumer protection. These two clauses are concerned with consumer protection and as the Bill is a catch-all Bill

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it is difficult to know when one should intervene to ask questions of a specific nature.
It is all very well to have consumer protection, and some of us on these Benches have been very ardent in our pursuit of consumer protection. However, if consumer protection is allowed to run not, it could have a detrimental impact on small businesses. The noble Baroness, in a previous incarnation, was a great champion of small businesses. Restaurants fall into that category.
The restaurant trade is concerned about where it stands under this catch-all Bill and to what extent the regulations that may be published later will affect it. To give some examples, the Minister apparently has powers to curtail the sale of certain types of raw food in restaurants, to limit the type of food processes, to stop the use of clingwrap, to control descriptions and to ban certain foods altogether. I may be wrong, and that is where I should like clarification, but if that is the case the regulations could have a very detrimental effect on a very large number of small businesses.
Earlier this afternoon the noble Baroness gave me a great deal of reassurance regarding the process of consultation. I should therefore like to ask how far that consultation will go. If it means debate in general and full consultation with all interested parties, there will be plenty of opportunity for such preoccupations to be aired. If that is not the case, it is a very serious matter.
I do not wish to delay the Committee and I appreciate that the noble Baroness may not be able to respond now. That is why I intervened at the end of Clause 14. Perhaps during the discussion on Clause 15 she might be able to make inquiries and I could return to the matter at the end of the discussion on Clause 15. Failing that, she could perhaps write to me subsequently. With those remarks, I shall allow the clause to proceed.
Baroness Trumpington: I am happy that my instinct about my noble friend's question was right. We shall be consulting interested parties, including restaurant interests, about proposals for regulations of the kind he has described. I hope that that is a helpful reply.
Clause 14 agreed to.
Clause 15 [Falsely describing or presenting food]:
The Viscount of Falkland The Viscount of Falkland moved Amendment No. 61:
Page 11, line 40, after ("describes") insert ("or depicts").
The noble Viscount said: In Amendment No. 61, by inserting the words "or depicts", we seek to strengthen and reinforce what is clearly one of the Government's main aims in this Bill; namely, to outlaw misleading descriptions. We feel that to be thorough and complete in achieving that aim the provision should be extended from the written word to cover visual representations. Otherwise it would be possible to have a visual representation on a package which was plainly misleading.
There are people in a hurry who go to supermarkets. There may be old people who cannot
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get close to the shelves; they may be myopic or have reading difficulties. Whatever the reason, they are more likely to be persuaded by the pictures or the graphics on a tin, if it were a tin of figs let us say, than they would be by the words on the tin. The graphics could suggest that the contents were larger than they actually were by clever use of contrast. The purchaser could make a sombre purchase and make a sad discovery on reaching home.
We feel that the amendment would provide an added protection which has not been fully recognised. As such, it should be non-controversial. I beg to move.
Earl Baldwin of Bewdley: This is an amendment of no great substance, but it would plug a possible loophole which the noble Viscount described. We believe that it would be anomalous if a seller of food was able to mislead by means of a picture and so escape the penalty which the clause provides in other cases. I hope that the Government will have no difficulty with the amendment.
Baroness Trumpington: I hope that I can reassure both the noble Viscount, Lord Falkland, and the noble Earl, Lord Baldwin of Bewdley. Clause 15(1) not only prohibits false descriptions of food, but also prohibits labelling of food likely to mislead as to the nature, substance or quality of the food. Those prohibitions are sufficently comprehensive to cover all the information, both written and pictorial, which may be given on the food label. In addition, European Community food labelling legislation specifically defines labelling as inclusive of pictorial matter. That definition is carried forward into the Food Labelling Regulations 1984.
The amendment would have the unfortunate effect that references elsewhere to "describes" might be construed as excluding pictorial matter. I therefore ask the noble Viscount and the noble Earl to withdraw the amendment.
The Viscount of Falkland: I thank the noble Baroness for that reply. I do not wish to contradict her, but in my understanding and, I suggest, in the understanding of the average purchaser, "describes" means the use of words. However, I take what she says and am reassured by that. I hope that other noble Lords, including the noble Earl, are equally reassured. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 62 not moved.]
Lord Ezra Lord Ezra moved Amendment No. 63:
Page 12, line 14, at end insert —
("(6) For the purposes of this section a label or advertisement which is likely to mislead as to the nutritional or dietary value of any food is likely to mislead as to the quality of that food.").
The noble Lord said: The purpose of the amendment is to ensure that a label or advertisement which is likely to mislead as to the nutritional or dietary value of any food is likely also to mislead as to the quality of that food, and therefore to bring that within the meaning of subsection (2)(b).
It is slightly surprising that words to that effect are contained in Section 6(4) of the Food Act 1984 and it is not clear why those words were not repeated in

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the Bill. The risk is that if that is not done by way of interpretation and the meaning of the clause, it might be argued in defence in future prosecutions that false nutritional claims were not offences. I am sure that the Government will be at one in wishing to avoid people making false nutritional claims and to have that point covered effectively within the meaning of the clause. I beg to move.
Lord Rea: I should like to support the amendment because it is relevant to my Amendment No. 67 which asks for the word "health" —that implies nutritional claims—to be specifically mentioned in the Bill. If I understand it correctly —I may be wrong —the offences specified in Clause 15 would be committed by contravention of the regulations allowed in Clause 16.
Baroness Trumpington: I am grateful for the proposal of the noble Lord, Lord Ezra, to clarify further the provision of misleading labelling by specifying some of the elements which would be covered by that offence; namely, the nutritional or dietary value of food. I must deal with the amendment of the noble Lord, Lord Rea, when we reach it. However, the amendment of the noble Lord, Lord Ezra, is unnecessary because the necessary clarification is already given in the Food Labelling Regulations 1984 which will continue in force. The noble Lord's anxiety is therefore met and I hope that he will agree to withdraw his amendment.
Lord Ezra: In the light of what the noble Baroness has said —I shall remind myself as to the other piece of legislation —I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 15 agreed to.
The Earl of Strathmore and Kinghorne: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

British Film Institute Southbank Bill
Brought from the Commons, read first time, and referred to the Examiners.
New Southgate Cemetery and Crematorium Limited Bill
Returned from the Commons with the amendments agreed to.

St. George's Hill, Weybridge, Estate Bill
Returned from the Commons with certain amendments agreed to, and with the remaining amendments agreed to with amendments; the Commons amendments to the Lords amendments were considered and agreed to.
House adjourned at nineteen minutes past nine o'clock.