HL Deb 15 January 1990 vol 514 cc487-507

House again in Committee.

Clause 11 [Prohibition orders]:

Lord Mottistone moved Amendment No. 43: Page 8, line 27, leave out ("shall") and insert ("may").

The noble Lord said: Clause 11 relates to the impostion of prohibition orders. The complication is that if everyone was terribly sensible and made no mistakes prohibition orders could be applied in a reasonable way. But problems become evident as you read the clause. My amendment seeks to allow a court to make an order if it wishes rather than it being ordered to make an order as proposed by the present wording of subsection (1).

The problem arises where a single item of defective food or the adverse reaction of an individual, medically intolerant to an ingredient, could result in the full imposition of the clause shutting down an entire company. Let us suppose that a company has just bought another business and there are premises which are not built as they should be. The investigation into it and the conviction which previously occurred would put it under subsections (2)(b) and (3)(b). Subsection (3)(b) states: prohibition on the use of the premises or equipment for the purposes of the business or any other food business of the same class or description".

A court which was not presented with all the facts or which did not listen —courts are not always perfect, as we know —might shut down the whole business just because one part of the premises was not within the terms required for its construction.

My probing amendment is designed to see whether we cannot modify this rather stiff clause to make it more responsive to what one might call practical common sense. A possibility, therefore, would be to insert the word "may". Another possibility would be to put other qualifications elsewhere in the clause. I hope the Government see the point of what I am trying to put across. I beg to move.

Lord Gallacher

I have a great deal of sympathy for the remarks of the noble Lord, Lord Mottistone. I referred specifically to the rather stringent nature of the clause as drafted when I spoke on the Second Reading of the Bill. Some form of discretion should be available to the court to take account of circumstances that none of us, quite frankly, is capable of envisaging in an area as complex as this.

I often ask myself whether the substitution of "may" for "shall" gives that discretion. When this much used amendment is aired, it is often used in reverse order; that is to say, people want to take out "may" and insert "shall". They are then confronted, as I recall, by the lawyers' opinion that there is in any case no difference in the words. For that reason I am not certain that "may" will do the trick in this particular circumstance. Nevertheless, to non-legal minds it reads less mandatory than "shall". I believe this is an area where the court needs an element of discretion: I hope the Government will find it in their heart to give it that element of discretion. I therefore support the amendment.

Lord Airedale

It occurs to my rusty legal mind that a good case can nearly always be made for the legislator not telling the judiciary what the judiciary "shall" do. "May" is a much more appropriate expression. The independence of the judiciary is beginning to be threatened if its members are told by the legislator what they "shall" do.

Baroness Hooper

The use of "shall" or "may" has taken up a considerable amount of your Lordships' time over the years. Perhaps I may begin my response, with all due deference, by trying to explain why we have used the word "shall" instead of the word "may".

A court could impose a prohibition order only if a proprietor had been convicted of a food safety offence and if it was satisfied that the health risk conditions were fulfilled. In our view it would be quite wrong if the court did not then close all or part of the business. That is the reason for using the word "shall".

I sympathise with my noble friend's intention. The amendment is to ensure that the courts are not compelled to impose prohibition orders as a result of minor isolated incidents. However, I think I can reassure the Committee that minor isolated incidents will not be caught by the provision.

In order to make a prohibition order the court would need to be satisfied that the health risk condition was fulfilled both at the time of the offence and at the time of the hearing. Common sense would tell it that this was not so. I hope the Committee will therefore feel reassured that minor incidents of this kind will not lead to prohibition orders under the Bill as drafted. I hope that my noble friend will feel able to withdraw his amendment.

Lord Mottistone

I am grateful to my noble friend the Minister for explaining the situation as seen by her at this stage. I am also most grateful to the noble Lord, Lord Gallacher, for his support. I am still not entirely happy that there is a fair basis for treatment of all sorts of companies under all sorts of circumstances. However, this is not the time to press the amendment. As everyone has said, it does not make much difference whether it is "may" or "shall". We will try and find another amendment which may push the point a little further. For that reason I reserve the right to come back at the next stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Gardener of Parkes moved Amendment No. 44: Page 9, line 1, leave out ("also includes") and insert ("may also include").

The noble Baroness said: This amendment appears to be rather like the last one moved by my noble friend Lord Mottistone, but in a way it is rather different. As it stands, Clause 11(4) states: The appropriate prohibition also includes, in a case falling within subection (2)(c) above, a prohibition on the carrying on by the proprietor of the business of any food business".

I appreciate that there are occasions when that is absolutely essential. In my health committee capacity I have seen cases whereby a man who had one set of premises closed down rapidly reopened almost next door and carried on in just as bad a way. Therefore, I can see there will be occasions when this power is required.

However, the major food manufacturers are very concerned. They say that a situation could exist whereby they acquire a tiny subsidiary, along with other assets or some other business transaction, but that little subsidiary becomes part of their concern. They are the proprietors of that little subsidiary, which is found to be defective. It may well be that the major manufacturers looked at the premises themselves and closed them down in next to no time. Instead, this prohibition order comes forward and, under this clause, they believe it would close down their entire manufacturing business for the whole of the United Kingdom.

That appears to be a most alarming prospect and I am sure that can never have been intended. That is why my amendment adds, "may also include". That would mean that the court would have discretion to see that cases of the kind I have been speaking about are included where there has been a scandalous attempt to avoid proper control in food terms. However, it would not penalise a group that was running 99.9 per cent. of its establishments perfectly and which had just one problem in one spot. I beg to move.

Baroness Hooper

One of our main aims in this Bill is to catch the real offender. This applies to prohibition notices as much as it does to any other provision. I assure the Committee that it is not our intention to prohibit an entire company from carrying on a food business because of an offence committed in a single outlet which may not be typical of the company as a whole. Perhaps I should have reassured my noble friend Lord Mottistone more specifically on this point in the course of our discussion on the previous amendment.

In this kind of case the court would have to be satisfied that the health risk condition was fulfilled with respect to each and every branch. Unless that was so, no court would close down several branches of the same business. Nevertheless, I am grateful to my noble friend for raising the issue in this way. I do not feel that her amendment necessarily achieves the aim that she has outlined. We intend to review the clause carefully to ensure that there is no risk of it being interpreted in the way she suggests. We shall therefore give it more consideration. In those circumstances I hope that my noble friend will be able to withdraw her amendment on that basis.

Baroness Gardner of Parkes

I am greatly reassured by what my noble friend has said. I am sure that the industry will also be grateful. The point was raised very strongly at the all-party meeting we had outside the Chamber. It is very good that the Minister intends to review the clause. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.15 p.m.

Lord Lucas of Chilworth moved Amendment No. 45: Page 9, line 17, leave out ("14") and insert ("3").

The noble Lord said: In moving this amendment I shall speak also to Amendment No. 49 because that amendment is consequential on Amendment No. 45. In some ways these amendments go along with what my two noble friends have just been discussing. Clauses 11 and 12 provide for the courts to issue prohibition orders where a proprietor is convicted under regulations made under the clauses.

The prohibition may apply to a part or the whole of the business including the use of equipment or a certain process. Clause 11(6) states: a prohibiton order … shall cease to have effect on the issue by the enforcement authority of a certificate to the effect that they are satisfied that the proprietor has taken sufficient measures to secure that the health risk condition is no longer fulfilled".

The Bill provides that the certificate shall be issued within 14 days of the authority being so satisfied.

In these circumstances 14 days is quite a long time because when the satisfaction is established the proprietor will want to return to business. In circumstances where the business is a small one it may well be that 14 days with the non-execution of business makes the difference between staying in business or not. In other words, it makes the difference between survival or non-survival.

When the inspection is made and the authorised officer is satisfied that that which prompted the issue of a prohibition notice has been remedied, surely it should be no more than a matter of course that the notice is lifted. In other words, there is no reason why the inspector cannot reach into his briefcase, pull out the appropriate form, write on it and deliver it. I do not see that it will take 14 days for that to happen because the inspector knows precisely what he has come to look for or look at.

The inspector may not be able to attend the premises within a day or two days, if it is the weekend or a bank holiday, after a proprietor has given notice that the infringement has been remedied. It is not unreasonable to suggest that Clause 11 should state that three days is quite sufficient to issue the notice.

Amendment No. 49, on Clause 12, is pretty well the same because it gives powers to officers to serve emergency prohibition notices which impose an appropriate prohibition while the officer waits for the magistrates' court or the sheriff to impose the order. The technical difference between the amendment to Clause 11 relating to prohibition orders and Clause 12 dealing with emergency prohibition orders does not need to be considered in relation to either of these amendments because the principle of relief from either the notice or the order is precisely the same. I have suggested to the Committee what should be done about that.

As regards Amendment No. 49, we are looking for a reduction of the 14-day limit to three days concerning the issue of certificates by the authorities to lift the emergency prohibition orders once they are satisfied that the risk condition is no longer there. In the former case concerning Amendment No. 45 there should be three days to lift the prohibition notice once the authorities are satisfied that the condition is no longer there. I beg to move.

Baroness Hooper

I am happy to be able to say that my noble friend has convinced me he has a good case. I agree that it would be very unfair to require a business to remain closed for up to two weeks after it has been judged fit to reopen. Once an environmental health officer has inspected premises to his satisfaction and has reached a decision, it should not be difficult for the local authority to issue a certificate within three days. I am therefore happy to accept both my noble friend's amendments.

Lord Lucas of Chilworth

I am most grateful to my noble friend. I beg to move.

On Question, amendment agreed to.

Baroness Gardner of Parkes moved Amendment No. 46:

Page 9, line 18, at end insert— ("( ) Within 14 days of an application by or on behalf of the proprietor of the business, the enforcement authority shall decide whether to issue or to refuse to issue such a certificate and in the latter event, shall give in writing its reasons for its refusal.").

The noble Baroness said: I shall speak at the same time to Amendment No. 50. Amendment No. 46 relates to Clause 11 and Amendment No. 50 to Clause 12. In each case the intention is to avoid undue delay by requiring the enforcement authority to issue the certificate or give grounds for its refusal within a reasonable time—within 14 days —of an application by the proprietor. If there has been a problem and a proprietor has taken all reasonable steps to put it right, thus obviating any health risk, why should he not be allowed to seek the lifting of the prohibition within a reasonable time? The only possible justification for delay would be as a form of punishment for failing to comply with the regulations in the first place. That is not the motive because other forms of punishment are set out in the clauses. In regard to Amendment No. 50, I agree that it is right that there should be provision for such emergency powers, but again I do not see why people should have to wait an unreasonable length of time. I beg to move.

Baroness Hooper

My noble friend has raised two very fair points, which once again I feel I can accept in principle. It is important, as I said in replying to the previous amendment, that businesses which no longer present a risk to health should not be forced to remain closed for longer than is reasonable while the enforcement authority makes up its mind about them. Fourteen days does not seem an unreasonable time to allow them to do this.

It must be to everyone's benefit if the authority is required to set out its reasons for refusing to cancel a prohibition order or an emergency prohibition order. The proprietor will then know exactly what is expected of him, and will be able either to address outstanding problems or to appeal if he feels the refusal was unreasonable.

I should like to take advice on how best to accommodate the principles of the amendments within Clauses 11 and 12. There may be some residual renumbering and so on. I should therefore be grateful if my noble friend would agree to withdraw her amendments on the understanding that we shall bring forward two similar amendments in due course.

Baroness Gardner of Parkes

I thank my noble friend. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 47 not moved.]

Clause 11, as amended, agreed to.

Clause 12 [Emergency prohibition notices and orders]:

Lord Mottistone moved Amendment No. 48: Page 9, line 47, leave out ("such injury") and insert ("danger to health").

The noble Lord said: Subsection (4) of Clause 12 sets out the reasons for subsections (2) and (3) of Clause 11 applying. Under those circumstances, it would probably be more appropriate if the seriousness of the situation in which such powers could be exercisable was conveyed. I believe that it would be better to terminate the subsection with the words "danger to health" instead of "such injury". It is a small point but it conveys better the sense of what is required. I beg to move.

Baroness Hooper

I regret that in this case I cannot accept my noble friend's amendment. I understand his concern that the definition of "injury" as it appears in Clause 7 may seem too wide. I cannot see, however, that substituting the word "danger" for "injury" would help in any way. Both words amount to more or less the same thing. The Government are concerned to ensure the proper protection of the public. I am not sure that I could in any case support any substantial weakening of these provisions. For the reasons which were explained earlier, I hope my noble friend will understand that the concept of injury to health is by no means as wide as he fears although it is wide enough to cover circumstances where emergency action is required. In the light of my remarks, I trust that my noble friend will not wish to press the amendment.

Lord Mottistone

I do not wish at this stage to press the amendment. However, it is not a question of weakening the provision. I reckon that I am tightening it up and strengthening it. I agree with my noble friend that we need to do that rather than weaken it. The whole matter spins around the definition of "injury" in Clause 7. We shall return to that at a later stage when we can pick up this point. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lucas of Chilworth moved Amendment No. 49: Page 10, line 25, leave out ("14") and insert ("3").

The noble Lord said: I have already spoken to this amendment, which I understand my noble friend the Minister will accept. I beg to move.

On Question, amendment agreed to.

[Amendment No. 50 not moved.]

Baroness Gardner of Parkes moved Amendment No. 51: Page 10,.line 39, leave out subsection (10)

The noble Baroness said: This is the last of my amendments to address the need for urgency in determining whether or not provisional orders or notices should be confirmed and remain in force. The amendment deals specifically with the public holiday issue. Clause 12 deals with emergency prohibition notices and orders. As I said earlier, there is a need for such powers. However, subsection (10) would exempt Bank Holidays and weekends from the period of three days provided for in Clause 12(7)(a) within which an officer, having served an emergency prohibition notice, has to apply for an emergency prohibition order.

I understand the difficulties which enforcement authorities may face but many businesses, including manufacturers, retailers and caterers, operate during weekends and during public holidays. The law should surely recognise the practicalities of businesses tuned to meeting consumer requirements. Thus my amendment suggests omitting this subsection to bring the timing into line with the type of industry involved.

A further point is covered by the amendment. As drafted, subsection (10) would curiously seem to preclude action in England on a Scottish Bank Holiday and in Scotland on an English Bank Holiday. Is that so? I shall be graceful for the Minister's comments on that. I beg to move.

Lord Stanley of Alderley

I support my noble friend's amendment. Most of this country works for only about three days a week. As she pointed out, some of us have to work for seven days. She is absolutely right in moving the amendment.

Baroness Hooper

In spite of the support for my noble friend, I am afraid that I cannot accept the amendment. Courts' normal sitting days are weekdays. We see no reason for departing from usual practice in this case. These days therefore cannot be counted as sitting days for the purposes of the clause. However, I would point out that businesses are able to insure themselves against losses sustained in these circumstances.

I should also like to point out that Clause 12(10) works in the proprietor's favour. I am sure that no proprietor would like to be told on Christmas Eve that his local authority would be applying for an emergency prohibition order against him in court on Christmas Day. It would be difficult, if not impossible, for him to get the legal advice and representation he needed over the Christmas holiday. Some unfortunate proprietor might be put in that position if the amendment were to be adopted. I think my noble friend is right in her point about Scotland. However, I shall have to look into the matter. I hope that in view of what I have said, my noble friend will feel able to withdraw the amendment.

Lord Mottistone

Surely my noble friend is aware that magistrates' courts often sit, where necessary —in the case of there being a public disorder or some such other occurrence—on Saturdays, Bank Holidays and, under real pressure, on Sundays. However, the latter is very rare. In my view it is about time one or two other people were obliged to sit on those days.

Lord Lucas of Chilworth

My noble friend mentioned the point about insurance against loss of profits. It was also mentioned by my noble friend Lord Stanley of Alderley when we discussed an earlier amendment. He said that insurance in those circumstances is nearly impossible. It is true that you can certainly insure almost anything at some kind of rate and a loss of profits insurance is not overly difficult to obtain. However, a loss of profits insurance that involves an action by a proprietor would almost certainly make void his loss of profits claim.

It may be that I am being a little pernickety this evening and perhaps what I have to say does not greatly affect the purport of my noble friend's amendment. However, if the Minister is going to give such a reply, then I think that it should be couched in terms which are more accurate than those contained in the statement that she made.

Baroness Hooper

I believe that the loss of perishable food under those circumstances is an insurable risk. However, I shall look into the matter in the context of my noble friend's remarks.

Baroness Gardner of Parkes

It may well be that my noble friend Lord Lucas meant that if the loss of food was in any way the fault of the proprietor, then that would be a different matter and the insurance policy may then be void. However, we have had a most useful discussion on the matter, and in the circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12, as amended, agreed to.

[Amendment No. 52 not moved.]

Clause 13 [Emergency control orders]:

Baroness Hooper moved Amendments Nos. 53 and 54: Page 10, line 45, after ("any") insert ("class or"). Page 10, line 48, after ("that") insert ("class or").

The noble Baroness said: These amendments were spoken to with Amendment No. 41. I beg to move.

On Question, amendments agreed to. Clause 13, as amended, agreed to.

Lord Stanley of Alderley moved Amendment No. 55: After Clause 13, insert the following new clause:


(1) This section applies where any person makes a complaint to a justice of the peace on the ground that he is aggrieved by an emergency control order made under section 13 above, or by an emergency order made under section 1 of the Food and Environment Protection Act 1985.

(2) If a justice of the peace is satisfied, on the basis of such evidence as he considers appropriate in the circumstances, that there was no imminent risk of injury to health from the carrying out of commercial operations with respect to food or food sources at the time when an order under section 13 above was made, or that food was not unsuitable for human consumption at the time when an emergency order under section 1 of the Food and Environment Protection Act 1985 was made, the Minister shall compensate the owner of the food or food sources for any depreciation in the value of the food or food sources.")

The noble Lord said: The proposed new clause is intended to provide a means to debate the need to look after the interests of those persons who suffer financial loss as a result of the use of emergency powers to protect the public from food which is, or which is thought to be, hazardous to human health, but who are innocent parties with no effective remedy for recovery of their losses. The amendment would include food sources as defined in Clause 1 to mean, any growing crop or live animal".

During the passage of the Food and Environment Protection Act 1985 I supported my noble friend Lord Radnor in a series of amendments which would have solved the problem of compensation to producers in circumstances outside their control. Shortly after the passing of that Act, such a case occurred; namely, the Chernobyl disaster. Moreover, such a risk still remains in connection with lead in cattle feed.

If my noble friend has the time she will be able to find the relevant amendments to that Act. The proceedings started on 6th December 1984 and are to be found at col. 1470 of Hansard. The debate continued throughout the passage of the legislation right up to Third Reading. Although my noble friend and I had the sympathy of noble Lords, and indeed that of my noble friend Lord Belstead, the Government refused to accept that such a situation —which later occurred in Chernobyl —would ever occur.

The Government argued that emergency powers under the Act could be revoked immediately. Perhaps we should try using that argument when speaking to sheep producers in Wales or in Cumbria who are today still suffering the effects of Chernobyl. They also argued at the time that the polluter, not the Government, should pay and that he would be responsible for the cost of safety measures under the emergency order. Perhaps we should try telling Mr. Gorbachev that even in today's climate.

The Government also argued on that occasion that if Ministers acted excessively, the courts would provide redress. Perhaps we should try telling that to farmers who are today suffering from the effects of lead in foodstuffs. The Government further argued that the farmers should insure themselves against such a risk. We have discussed the matter today, and I suggest to Members of the Committee that they read what my noble friend Lord Radnor said about the ability to insure during the passage of the 1985 Act.

So much then for the history and the reason for my moving this amendment. It would provide a means for a person aggrieved by an emergency order to receive redress. I hope that Members of the Committee, and my noble friend, will see the sense and justice of what I am trying to achieve. I want, as I hope do Members of the Committee, to avoid a repeat of the Chernobyl fiasco. I also want to avoid a similar fiasco as regards lead in feed which is already happening today.

If such an amendment to the Food and Environment Protection Bill had been accepted it would have solved the problem. I very much regret the fact that I persuaded my noble friend Lord Radnor at that stage not to divide the Chamber. I suppose that I was in a more than usually pathetic mood, no doubt because of the persuasiveness of my noble friend Lord Belstead who was then the Minister of State. Moreover, its acceptance may even have saved the jobs of certain Ministers.

The drafting of the amendment may well be faulty, but the purpose of it — which is fair play —is not. I feel strongly that some such amendment which is in any event in line with the Government's new view, as expressed in Clause 9, should be considered. Indeed, the remarks made by my noble friend on the Front Bench in reply to my noble friend Lady Gardner of Parkes on Amendment No. 33 support my case. I beg to move.

The Earl of Radnor

I suppose almost inevitably I must support the amendment. I do so in a most wholehearted way. However, I do not propose to bore Members of the Committee by repeating what I said a few years ago. Indeed, I have purposely not reread the debate. I agree with everything that my noble friend has said. A great deal of trouble could be caused in this connection. We must face the fact that such a situation could arise again. A producer of a food source who is aggrieved should have recourse to a justice of the peace, and have the chance to recoup from the Government some of the losses for which he was in no way responsible.

The latter point has been covered very well this evening and it was clearly mentioned in 1985. However, I should like to dwell a little upon the situation where an emergency control order is placed upon some produce or other for certain reasons. It is then decided —because such an order must be issued in a hurry —that the order was imposed in error and thus the food could be released for sale. Of course with certain foodstuffs the rate of deterioration is very rapid. I am thinking especially of fruit and fish. The goods may well then no longer be of any value whatever, or their value may be very reduced.

The producer could suffer just as much loss from emergency control orders as he could from the prohibitions that occur in Clause 9. Clause 9(7) provides a good recourse for people who have suffered loss. They can go in front of a justice of the peace, produce witnesses and be compensated for the loss in value of the food. We have already debated a detail of that clause because it was felt in some quarters, including speakers in the Chamber, that the contingent loss should also be paid.

A degree of logic might well be injected into the Bill if Clause 13 were to follow the same pattern as Clause 9. I can see no reason why it should not do so. There are two distinct points here. There is the error which occasions loss, and there is the loss for which the producer is not responsible. I hope that no one will say that the latter is an insurable risk. The one thing I do remember from 1985 is asking various brokers whether the risk was insurable. I was told that for all practical purposes it was not. I hope that my noble friend the Minister will consider the amendment carefully. I suspect that it is not perfectly drafted; but the logic of Clause 13 following the same pattern as Clause 9 and allowing recompense is almost unarguable. I give the amendment every support.

Lord Carter

From these Benches we support the new clause because it is a reasonable and sensible proposition. The noble Lord, Lord Stanley of Alderley, has drawn attention to the considerable injustice that can result where restrictions are imposed and it is then shown that there was no danger in the food.

The Government are no doubt concerned about the possible cost implications of the proposal. I hope that they will recognise the justice behind the amendment and agree to consider it. An interesting sideline to the amendment was mentioned by the noble Earl, Lord Radnor. I discovered by putting down a Question for Written Answer that if a farmer has had his milk impounded due to the risk of lead contamination in the feed, that amount of milk will still be taken into account in the calculation of his milk quota and his liability under the super levy although he may not be paid for the milk. If I have understood the amendment correctly, it would also help to deal with that problem.

Lord Ezra

We, too, should like to support the amendment from these Benches. It is important that in the Bill we seek to have an even-handed approach to the various problems. Those who are shown not to have been guilty of the fault indicated and who can get a magistrate so to agree should be dealt with in the way proposed. We therefore support the amendment.

Lord Avebury

When the Minister replies, will she deal separately with two of the points that have been raised? The first relates to what happens when the Minister has erroneously exercised the power to make the order when it is subsequently shown that there is nothing wrong with the food in question, or when there would have been no risk to the public from the continued use of those foods. Secondly —and this is a point made by the noble Lord, Lord Stanley of Alderley, when he moved the amendment —what happens when the emergency control order is validly made in the case of food-stuffs which have been contaminated to an extent which makes them unfit for human consumption but where no fault can be attributed to the producer of the foodstuffs?

The noble Lord, Lord Stanley, properly drew attention to the enormous losses suffered by farmers due to the Chernobyl disaster. I do not know whether there is any provision in the Bill to deal with such circumstances, but in future emergency control orders may be made in respect of food which has been contaminated by a nuclear disaster somewhere else in the world. In those circumstances, the farmers could not look for protection to the amendment moved by my noble kinsman because that requires it to be shown that the consumption of the food could not have involved any risk of harm to the consumer.

Regarding Chernobyl, there would have been great risk if people had unwittingly consumed meat that had been contaminated by nuclear explosion. I should be grateful if the Minister would refer to any provisions in the Bill which would take care of the losses sustained by farmers from such a disaster as well as the losses sustained by an emergency control order which has been made erroneously by the Minister.

8.45 p.m.

Baroness Trumpington

I am afraid that I cannot accept the amendment moved by my noble friend Lord Stanley of Alderley. It would place an unjustifiable further burden on justices of the peace. The law already holds Ministers accountable if they exercise their powers negligently or unreasonably. That may be an answer to the first question asked by the noble Lord, Lord Avebury. The practical effect of the amendment could well be that anyone subject to an emergency control order would immediately complain to a justice of the peace who would then have to make a judgment, often on the basis of incomplete information or inadequate technical evidence, on the degree of risk which existed. The essence of emergency powers is that they may have to be exercised speedily, sometimes before all the facts are established with total certainty. Moreover, it would introduce the possibility of the Minister or his representatives having to defend the action before a justice of the peace or any number of justices of the peace.

The amendment could deter Ministers from taking swift action. The inevitable result of that would be to put consumers at greater risk. That is clearly unacceptable. As I have already indicated, Ministers must act reasonably. They know that, and they know that if they act unreasonably, the citizen can go to the High Court for a judicial review. In line with established policy on matters of public safety, there will be no statutory provision for government compensation. The onus must remain on those producing or handling food to exercise the greatest care over their selection and handling. In addition, traders can insure against such risks, and once the provisions are enacted may be better placed to seek legal redress from negligent third parties.

We hope not to have to use the powers in Clause 13, but believe that consumers will be reassured to know that in the last resort the Government have adequate powers to take immediate action when consumer safety is threatened.

Hazard notices are issued by the Department of Health. The Parliamentary Commissioner for Administration may award compensation against the department and that has happened at least once. I accept that there may occasionally be a genuine case of compensation. If so, we could pay it under other legislation. Farmers affected by FEPA restrictions imposed after the Chernobyl accident received compensation.

It was unfair of my noble friend to mention lead in foodstuffs. The Government have taken every possible prompt action to prevent adulterated food from getting into the food chain. That adulterated food was in no way the result of action in this country. My noble friend, with his NFU connections, should know what is going on. The Government are out of pocket because of the prompt and correct action which they took at the time.

Lord Stanley of Alderley

I cannot agree with my noble friend on the Front Bench. We appear to be very, very far apart. For once, I feel totally confident that I am right. It is not often that my noble kinsman supports me, and when he does, I feel that I am probably on the right lines. I do not think that my noble friend answered his questions.

I am sorry that my noble friend on the Front Bench does not have confidence in justices of the peace deciding this problem. That surprises me because in Clause 9 the justices of the peace are given that responsibility.

Baroness Trumpington

I never said that I did not have confidence in justices of the peace. Indeed, I was one myself for quite a long time; therefore I have total confidence in them.

Lord Stanley of Alderley

That is fine. If my noble friend has total confidence in the justices of the peace, I cannot see why my amendment is at fault. At least we are at one on that point. If she feels that they are not capable of doing the job which they are given in Clause 9, then I am sure that we can think of somebody else who might take the job.

For producers and retailers, food is a very volatile commodity. It perishes very quickly. A High Court review is very expensive and time-consuming. I need hardly remind my noble friend of what is happening in regard to lead in food. That brings out the problem. Farmers are put in a very unpleasant position. They may be able to obtain compensation in the long run —perhaps after they have gone broke —from the supplier of the food. However, if they have not used that food for particular animals, they will not get compensation. They are in an invidious position.

I shall not delay the House any longer. I shall however return to this point. I hope that my noble friend will give the matter very serious thought. I hope that there is no prospect of the same trap into which my noble friend Lord Belstead forced me over the Chernobyl incident. I do not intend to leave the matter this time. I made a mistake on that occasion; I do not wish to make another. In the meantime I beg leave to withdraw this amendment.

Amendment, by leave, withdrawn.

Clause 14 [Selling food not of the nature, substance or quality demanded]:

Lord Carter moved Amendment No. 56: Page 11, line 29, leave out ("to the purchaser's prejudice").

The noble Lord said: In moving Amendment No. 56 I should like to speak also to Amendments Nos.

57 and 58. These amendments deal with the curious phrase in Clause 14(1), "purchaser's prejudice". Under the provisions of the Bill which reflect the existing law, an offence is committed under Clause 14(1) only if the purchaser himself or herself is prejudiced. That is a curiously restrictive phrase.

Many people buy food for their family —infants or elderly people, for example, who do not attempt to buy their own food. If they are "prejudiced", they are denied access to redress under the clause as presently drafted. Equally, elderly and diabetic people have the right to expect that the special food they need —bought for them by a friend or a carer —is of the nature, substance or quality which suits their special needs. The Bill is intended to close as many gaps in the food law as possible. This amendment would clarify the law and make possible the prosecution' of traders who might otherwise escape prosecution where they sell food "not of the nature, substance or quality demanded".

Another example is that of a catering manager or the chairman of a refreshments committee who might be a purchaser of food. Others would be the consumers of the food. The Bill seems to prevent the consumers of the food seeking redress from the seller of the food if the purchaser decides not to do so.

We feel that consumer protection measures must serve to protect all consumers. The amendment is intended to close a loophole which prevents the legislation from doing just that. I beg to move.

Lord Ezra

I should like to support the amendment in view of a similar amendment which I shall move later. The Bill causes confusion in the mind. There has been a case of a can of peas containing a caterpillar. If that were purchased by one's wife and served to the rest of the family, it is not clear whether there would be any recourse by those who ate the intruder in the can of peas by failing to observe it soon enough.

We should be clear about the matter. If any food is purchased that prejudices a person other than the purchaser, that other person should be in a position to take redress. What we should like to hear from the noble Baroness is whether our interpretation of this restrictive wording is correct or whether it means that any person who is prejudiced by that purchase can take action to safeguard their interests.

Baroness Trumpington

I am not sure that I absolutely understand the noble Lord's intentions in proposing these amendments. Clause 14 is based on Section 2 of the current Act which has been used for the majority of prosecutions under the Food Act and its predecessors. It is a very well understood offence which has stood the test of time.

I believe that to widen the clause in the way suggested would be confusing without offering any additional protection to the consumer. Food which is not of the nature, substance or quality demanded by the purchaser would still be to the purchaser's prejudice, even if that food was bought for or consumed by someone else who was adversely affected by the purchase. In any event, if injury to health were at issue, Clause 8 would apply. This applies to all points of the chain and to anyone who is affected. The new offence at Clause 8(2)(c) covers the contamination elements of nature, substance or quality. The suggestion made by the noble Lord, Lord Carter, that we should leave out the words "to the purchaser's prejudice" seems to imply that when the food sold is better than the purchaser demanded, that would also be an offence. I cannot believe that that is what the noble Lord had in mind. It would not be right.

I hope that I have read the amendment correctly. If not, perhaps the noble Lord will further enlighten me. If necessary, I shall write to him.

Lord Carter

The drafting may be at fault because we are obviously not understanding each other. This amendment is intended to show that if the purchaser is not himself or herself "prejudiced" but someone else is, that other person can take action. At the moment the third party who is affected by the unsafe food is not able to take action.

Baroness Trumpington

I think that I should write to the noble Lord, Lord Carter, on this matter.

Lord Carter

In the light of that assurance I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 57 and 58 not moved.]

Lord Lucas of Chilworth moved Amendment No. 59: Page 11, line 30, after ("nature") insert ("or").

The noble Lord said: I beg to move Amendment No. 59 standing in my name. With the permission of the Committee I should like to speak also to Amendment No. 62 which is consequential. The amendment provides for the offence of selling food not of the "nature of substance or quality" demanded. This subsection of the Bill repeats the provision in Section 2(1) of the 1984 Act. However, I suggest to the Committee that there is a subtle difference in the wording. The Bill provides an offence where a person sells food, which is not of the nature, substance or quality demanded".

My noble friend the Minister just referred to the words in the 1984 Act. I shall remind my noble friend what she said just now in answer to the noble Lord, Lord Carter. She said that the provision which she was discussing in Amendments Nos. 56 to 58 was the same as that in the 1984 Act. She said that it had stood the test of time.

Baroness Trumpington

I mentioned the offence.

Lord Lucas of Chilworth

My noble friend mentioned the Bill.

9 p.m.

Baroness Trumpington

I shall reread what I said, which was that Clause 14 is based on Section 2 of the current Act which has been used for the majority of prosecutions under the Food Act and its predecessors. It is a very well understood offence which has stood the test of time. I should also pre-empt my noble friend by saying that we shall look favourably on his amendment. Therefore, I suggest he does not bang on too much.

Lord Lucas of Chilworth

I am obviously grateful for the advice that I have received from my noble friend. As I suspect she knows, the point is that there is a subtle difference in wording. The 1984 Act deals with a person who sells food which is not of the nature or of the substance or of the quality required. Thus a prosecutor under the 1984 Act must specify which of the three categories is applicable. In this Bill there does not seem to be that necessity. That is the purpose of these two amendments. However, I take heart from what my noble friend said a few moments ago and I look forward with eager anticipation to her response to this amendment. I beg to move.

Baroness Trumpington

While I do not believe that the amendments of my noble friend are necessary and will not change the meaning or intention of these clauses, I am happy to accept his proposal. I believe that whether we used the wording proposed by the noble Lord or the wording used in the Bill, it would be necessary to specify which concept out of nature, substance or quality the offence related to. It might be one of those concepts or a combination of them. However, we shall need to ensure that the amendments of my noble friend are carried through the Bill so that it is consistent. I shall bring forward an appropriate government amendment on this matter.

Lord Lucas of Chilworth

I am most grateful to my noble friend. With that assurance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carter moved Amendment No. 60:

Page 11, line 35, at end insert — ("(3) On conviction of any person under this section the court shall have the power to order the seizure and destruction of any food that may be held by the seller which is of the same nature, substance or quality as that which gave rise to the offence.").

The noble Lord said: This amendment is intended to introduce a new subsection into Clause 14. The Bill as drafted provides for the inspection and seizure of suspected food under Clause 9. However, for the court to be able to order the destruction of the food, the food must be in accordance with the requirements of Clause 8(2)(a), (b) or (c). This means that the food must be unfit for human consumption.

However, it will be recalled that some years ago there was a celebrated case involving the contamination of wine by extraneous substances. It would have been extremely difficult to demonstrate that the wine was unfit for human consumption, but, equally, it was generally felt that the wine should not continue to be sold. In the absence of a power to seize and subsequently destroy the material, the wine reappeared on the market for some time. In our view, therefore, the courts should have power to order the seizure and destruction of food which may not be of the quality demanded by the purchaser, in that it has been adulterated, possibly quite considerably.

There is another aspect of this amendment on which I should be grateful to hear the Minister's view. I refer back to Clause 8(3) and food which is, part of a batch, lot or consignment".

I have been looking for an opportunity to ask whether any part of the Bill applies to imported eggs. If part of a batch, lot or consignment of imported eggs were found to be contaminated with salmonella, for example, could the rest of the consignment be impounded? Could it be dealt with under the terms of this clause, the previous clause or both of them? I beg to move.

Baroness Trumpington

I wish to assure the Committee that Clause 8 of the Bill already allows enforcement officers to seize a whole batch, lot or consignment of food which is contaminated in the way described, and apply to a magistrates' court to have it condemned. Particular consideration was given to diethylene glycol in wine and similar cases when drafting Clause 8. That is why subsection (2) expressly distinguishes between food which is unfit for human consumption and food which, is so contaminated (whether by extraneous matter or otherwise) that it would not be reasonable to expect it to be used for human consumption in that state". Trading standards officers will have access to these powers. We would not wish to go further and give trading standards officers powers to detain or destroy food which is not up to standard in ways which do not pose a risk to health, such as mince with a fat content which is too high but which could be reprocessed.

As regards the question of the noble Lord, Lord Carter, about imported eggs, the answer is that if they were unfit or contaminated Clause 8 powers would apply, as would those under Clause 9, regarding seizure. I hope that in the circumstances the noble Lord, Lord Carter, will be impressed with these remarks and will withdraw his amendment.

Lord Carter

I certainly wish to withdraw the amendment. However, the answer that has just been given regarding eggs is extremely interesting. As we know, the problem with imported eggs is that the rest of the consignment has disappeared into the food chain while the eggs that are suspected of contamination are being tested. I hope the noble Baroness will write to me to tell me how the Government propose to deal with that problem. I should be interested to know that. However, in the light of the comments that have been made, I beg leave to withdraw the amendment.

Baroness Trumpington

I am conscious of the Chairman's presence in the Chamber in a certain connection.

Amendment, by leave, withdrawn.

On Question, Whether Clause 14 shall stand part of the Bill?

Viscount Montgomery of Alamein

Before we leave Clause 14, perhaps I may intervene briefly to ask a question of general interpretation which I indicated to the noble Baroness that I wished to raise at this stage. However, I appreciate that she may not be able to give me an immediate reply. My question concerns the Bill in general as it affects the restaurant trade, which has some relevance to consumer protection. These two clauses are concerned with consumer protection and as the Bill is a catch-all Bill it is difficult to know when one should intervene to ask questions of a specific nature.

It is all very well to have consumer protection, and some of us on these Benches have been very ardent in our pursuit of consumer protection. However, if consumer protection is allowed to run not, it could have a detrimental impact on small businesses. The noble Baroness, in a previous incarnation, was a great champion of small businesses. Restaurants fall into that category.

The restaurant trade is concerned about where it stands under this catch-all Bill and to what extent the regulations that may be published later will affect it. To give some examples, the Minister apparently has powers to curtail the sale of certain types of raw food in restaurants, to limit the type of food processes, to stop the use of clingwrap, to control descriptions and to ban certain foods altogether. I may be wrong, and that is where I should like clarification, but if that is the case the regulations could have a very detrimental effect on a very large number of small businesses.

Earlier this afternoon the noble Baroness gave me a great deal of reassurance regarding the process of consultation. I should therefore like to ask how far that consultation will go. If it means debate in general and full consultation with all interested parties, there will be plenty of opportunity for such preoccupations to be aired. If that is not the case, it is a very serious matter.

I do not wish to delay the Committee and I appreciate that the noble Baroness may not be able to respond now. That is why I intervened at the end of Clause 14. Perhaps during the discussion on Clause 15 she might be able to make inquiries and I could return to the matter at the end of the discussion on Clause 15. Failing that, she could perhaps write to me subsequently. With those remarks, I shall allow the clause to proceed.

Baroness Trumpington

I am happy that my instinct about my noble friend's question was right. We shall be consulting interested parties, including restaurant interests, about proposals for regulations of the kind he has described. I hope that that is a helpful reply.

Clause 14 agreed to.

Clause 15 [Falsely describing or presenting food]:

The Viscount of Falkland moved Amendment No. 61: Page 11, line 40, after ("describes") insert ("or depicts").

The noble Viscount said: In Amendment No. 61, by inserting the words "or depicts", we seek to strengthen and reinforce what is clearly one of the Government's main aims in this Bill; namely, to outlaw misleading descriptions. We feel that to be thorough and complete in achieving that aim the provision should be extended from the written word to cover visual representations. Otherwise it would be possible to have a visual representation on a package which was plainly misleading.

There are people in a hurry who go to supermarkets. There may be old people who cannot get close to the shelves; they may be myopic or have reading difficulties. Whatever the reason, they are more likely to be persuaded by the pictures or the graphics on a tin, if it were a tin of figs let us say, than they would be by the words on the tin. The graphics could suggest that the contents were larger than they actually were by clever use of contrast. The purchaser could make a sombre purchase and make a sad discovery on reaching home.

We feel that the amendment would provide an added protection which has not been fully recognised. As such, it should be non-controversial. I beg to move.

Earl Baldwin of Bewdley

This is an amendment of no great substance, but it would plug a possible loophole which the noble Viscount described. We believe that it would be anomalous if a seller of food was able to mislead by means of a picture and so escape the penalty which the clause provides in other cases. I hope that the Government will have no difficulty with the amendment.

Baroness Trumpington

I hope that I can reassure both the noble Viscount, Lord Falkland, and the noble Earl, Lord Baldwin of Bewdley. Clause 15(1) not only prohibits false descriptions of food, but also prohibits labelling of food likely to mislead as to the nature, substance or quality of the food. Those prohibitions are sufficently comprehensive to cover all the information, both written and pictorial, which may be given on the food label. In addition, European Community food labelling legislation specifically defines labelling as inclusive of pictorial matter. That definition is carried forward into the Food Labelling Regulations 1984.

The amendment would have the unfortunate effect that references elsewhere to "describes" might be construed as excluding pictorial matter. I therefore ask the noble Viscount and the noble Earl to withdraw the amendment.

The Viscount of Falkland

I thank the noble Baroness for that reply. I do not wish to contradict her, but in my understanding and, I suggest, in the understanding of the average purchaser, "describes" means the use of words. However, I take what she says and am reassured by that. I hope that other noble Lords, including the noble Earl, are equally reassured. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 62 not moved.]

Lord Ezra moved Amendment No. 63:

Page 12, line 14, at end insert — ("(6) For the purposes of this section a label or advertisement which is likely to mislead as to the nutritional or dietary value of any food is likely to mislead as to the quality of that food.").

The noble Lord said: The purpose of the amendment is to ensure that a label or advertisement which is likely to mislead as to the nutritional or dietary value of any food is likely also to mislead as to the quality of that food, and therefore to bring that within the meaning of subsection (2)(b).

It is slightly surprising that words to that effect are contained in Section 6(4) of the Food Act 1984 and it is not clear why those words were not repeated in the Bill. The risk is that if that is not done by way of interpretation and the meaning of the clause, it might be argued in defence in future prosecutions that false nutritional claims were not offences. I am sure that the Government will be at one in wishing to avoid people making false nutritional claims and to have that point covered effectively within the meaning of the clause. I beg to move.

Lord Rea

I should like to support the amendment because it is relevant to my Amendment No. 67 which asks for the word "health" —that implies nutritional claims—to be specifically mentioned in the Bill. If I understand it correctly —I may be wrong —the offences specified in Clause 15 would be committed by contravention of the regulations allowed in Clause 16.

Baroness Trumpington

I am grateful for the proposal of the noble Lord, Lord Ezra, to clarify further the provision of misleading labelling by specifying some of the elements which would be covered by that offence; namely, the nutritional or dietary value of food. I must deal with the amendment of the noble Lord, Lord Rea, when we reach it. However, the amendment of the noble Lord, Lord Ezra, is unnecessary because the necessary clarification is already given in the Food Labelling Regulations 1984 which will continue in force. The noble Lord's anxiety is therefore met and I hope that he will agree to withdraw his amendment.

Lord Ezra

In the light of what the noble Baroness has said —I shall remind myself as to the other piece of legislation —I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 15 agreed to.

The Earl of Strathmore and Kinghorne

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.