HL Deb 15 January 1990 vol 514 cc417-75

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.


Clause 1 [Meaning of "food" and other basic expressions]:

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 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


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 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 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 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 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 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 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 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 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.

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 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 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) 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 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 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.

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 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 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 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


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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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.

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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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—

  1. (a) condemn the food and order—
    1. (i) the food to be destroyed or to be so disposed of as to prevent it from being used for human consumption; and
    2. (ii) any expenses reasonably incurred in connection with the destruction or disposal to be defrayed by the owner of the food; or
  2. (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 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.

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 moved Amendment No. 37:

Page 7, line 39, at end insert— ("( ) A food authority shall —

  1. (a) maintain a register, which shall be adequately indexed, containing—
    1. (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;
    2. (ii) a copy of any order made under section 9(6) above;
    3. (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;
  2. (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
  3. (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, 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 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 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


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 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 moved Amendment No. 38:

Page 8, line 10, leave out paragraphs (a) and (b) and insert—

  1. ("(a) state the grounds for believing that the proprietor has failed to comply with specified regulations;
  2. (b) specify the failure or failures; and
  3. (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 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 whether I wish to pursue this argument. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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 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 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 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.

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.

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