Food Safety Bill [H.L.]

HL Deb 18 January 1990 vol 514 cc801-65

House again in Committee on Clause 18.

Lord Gallacher moved Amendment No. 88:

Page 14, line 12, at end insert— ("(4) Regulations issued under subsection (2) above shall be identified for England, Scotland and Wales").

The noble Lord said: This is an amendment which focuses on the well-known fact that this Bill, unlike previous food legislation, covers Great Britain. The subject of the amendment should be identified in that context. It asks that regulations in relation to milk should take account of the fact that there is a need to create conformity between Scotland and the rest of Great Britain. I assume that this is in part due to the separate character of Scotland at the moment and the fact also that it operates its own three milk marketing boards.

It is considered unsatisfactory by people who engage in the milk trade north and south of the Border that there is a greater barrier to trade in milk between Scotland and England than there is between, say, England and France. The object of the exercise is to encourage the Minister, given the passage of this Bill, to eliminate that barrier so that the milk trade between Scotland and England may flow freely. I beg to move.

Baroness Trumpington

I agree that there is much to be said for common provisions throughout Great Britain. However, there may be cases in which different rules are needed to reflect different production or consumption patterns. The amendment would rule out such 'variation and impose uniformity. That is why I am unable to accept it.

We considered the whole question of green-top milk last year —which brings in Scotland —and concluded that sales should continue, subject to new labelling and testing requirements. That decision reflected a consumer demand that evidently does not exist in Scotland and conveniently illustrates the need for flexibility, which is why the Government are resisting the amendment.

Lord Gallacher

I may have misunderstood the purpose of the amendment because I was not aware that green-top milk was a major consideration. I did not embarrass the noble Baroness earlier when we were discussing food safety by drawing her attention to the disparity between regulations relating to unpasteurised milk in Scotland and those in England and Wales, where the very safe pasteurisation process that she mentioned, which was somewhat opposed when first introduced, is now accepted as correct and normal. Of course the Minister in England —in response, I admit, to farm-gate pressure —made an exception to permit unpasteurised milk called green-top to be sold, provided that it is identified as such, whereas in Scotland a number of years ago they took the decision not to permit it and indeed it is not permitted.

I believe that at the heart of this amendment is not the simple question of green-top milk but rather the ability of those engaged in the milk trade to trade north and south of the Border, particularly with regard to milk surpluses and the like. The Committee will know that for historical reasons there are three separate milk marketing boards in Scotland, some of them with a very limited geographical area. In itself, that is not of concern to me. I am more concerned about the aspect whereby if milk is surplus in one country, say, under the present quota system, it cannot apparently flow unimpeded north to south or south to north.

On that basis I believe that there is a case for having a further look at this amendment. Perhaps the Minister will look at it again. 11 too will take further advice to make sure that I have correctly interpreted what is before me. If so, it may be necessary to come back to this matter. Does the Minister wish to say something?

Baroness Trumpington

Thank you very much. I wish to say that it is simply not the case that trade in milk between Scotland and England is restricted. England sells to Scotland for manufacturing and Scottish milk is sold in our supermarkets.

Lord Gallacher

If that is the case, I have no case to put before the Committee. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18 agreed to.

Clause 19 [Registration and licensing of food premises]:

8.15 p.m.

Lord Sainsbury of Preston Candover moved Amendment No. 88A: Page 14, line 18, after ("(b)") insert ("for the purposes of food safety").

The noble Lord said: First of all, I declare an interest as chairman of a food retailing company. With regard to Clause 19, I wholly agree with the proposal concerning registration and think that it is a sensible move. I also entirely agree with the need for the power to license premises. My amendment seeks to ensure that the licensing should be used for its intended purpose, which is in the interest of food safety. It should not be so drafted as to perhaps be misused in future by other governments to require licensing for reasons other than food safety.

For example, I believe that it would be possible for a bureaucratically-minded government which would like control over the economy —I am thinking of some of the taxes that were swiftly introduced to the service industries at one time and which were antipathetic to commerce —to introduce a requirement that food stores of a certain size should not be allowed to open without a licence. That is not the intention of the Bill but it is the reason for my suggested amendment.

The Bill serves the national interest of food safety and its purpose is the promotion and control of food safety. I suggest that the licensing should be effected with that purpose in mind. As a layman —indeed, this is the first time that I have risen to propose an amendment in this Chamber —I may not have got the wording exactly right. However, I am perfectly confident that my intention is right and that the powers given by this clause should not be so wide that they can be misused in the future for purposes other than the safety of food for this nation.

I hope that the amendment will gain support from all parts of the Committee and that I shall be disabused of any fear I may have that in future years there might be any possibility that the powers given by this Bill could be misused. I beg to move.

Baroness Gardner of Parkes

I should like to speak from the local authority point of view and support this amendment, at least in principle. As the clause is set out it could form almost a mini-planning control and it could involve for the local authority a great deal of work and trouble unrelated to food. For example, a change of use from a different type of manufacturing to a food business might be resisted. I therefore think that it is important to have such an amendment.

On licensing in general, all councils are overworked. Where voluntary members have to sit on panels to determine licences for such matters as sex shows, late nights and music and dancing, it is very hard to get councillors to sit on such panels. The provision should not become so widened that it becomes a complete burden on local authorities. I support the amendment.

Lord Gallacher

On this side of the Chamber we have much pleasure in supporting the amendment. We strongly support the views expressed by the noble Lord, Lord Sainsbury of Preston Candover. I am quite sure that no government of which I have experience —certainly no government formed by this party on this side of the Chamber —would dream of using the clause in the manner that he suggests. Nevertheless, for the purposes of food safety it seems to me a very wide insertion at this stage because these provisions are somewhat loosely drawn and could be misused in the manner in which he describes.

Baroness Trumpington

I am extremely glad to have heard the speech of my noble friend. I am glad that he has moved his very first amendment on this Bill. I hope that it will be the first of many.

I have listened with great interest to what he and my noble friend Lady Gardner of Parkes and the noble Lord, Lord Gallacher, have said. I should like to have a little think about it. I am not sure that it is written in the right way or perhaps in the right place. However, I should like to consider the point further to see whether we can go some way towards what everyone seems to be agreed on. I give no promises, but in view of what I have said I hope that my noble friend will not press his amendment this evening.

Lord Sainsbury of Preston Candover

I am familiar with what non-commitment means. Nevertheless I very much welcome what the Minister has said. I thank her for it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Tordoff moved Amendment No. 89:

Page 14, line 21, at end insert ("; or (c) for the publication by such authorities of information relating to applications for such registration or licences.").

The noble Lord said: Clause 19 concerns regulation of premises and/or prohibition of the use of premises. On the assumption that the recent amendment will be brought back in some different form I believe that my Amendment No. 89 could still be useful. It is so naive that I see it only as a probing amendment.

In the case of planning consents there has to be prior publication so that the public and the neighbours know what is going on. It seems to us that the registrations mentioned in Clause 19 ought to be dealt with in a similar way so that those who live in the neighbourhood of premises which will be the subject of a licence or a registration can be aware of what is going on over the garden wall. For instance, if some change of manufacturing process or change of product will be involved, people have a right to know whether it will be noxious or not necessarily within the terms of what would be covered by normal planning consent. It is in this mood that I move the amendment. I am asking the Government whether they would find it useful to have a subsection in Clause 19 to cover such a situation. I beg to move.

Lord Mottistone

The principle of a list of granted registrations or licences being available to the public will obviously be sensible. There is no reason why they should not be so available. However, the information submitted by companies in support of such registration should surely remain the property of the company. I suspect that the amendment will breach that confidentiality. I therefore suggest to my noble friend that she should resist the amendment.

Lord Carter

Although the drafting of the amendment may not be perfect, as the noble Lord, Lord Tordoff, has said, we feel that in principle it is a good idea. Perhaps the Government will consider it.

Baroness Hooper

The Bill already contains powers for us to require registers under regulations and to require such registers to be open to the public at all reasonable times. We shall be considering how to make use of this power in devising the regulations on registration of food premises on which all interested parties will be fully consulted. Our intention, like that of the noble Lord, Lord Tordoff, is to ensure that the public is properly informed about food safety.

However, the amendment would require additional information to be kept, and to be kept up-to-date by the local enforcement authorities. We believe that this would inevitably use some of the additional resources —the extra £30 million which has already been announced —which would be taken into account in the revenue support grant settlement for 1991–92 onwards.

As I said when commenting on the earlier amendment of the noble Lord, Lord Tordoff, to Clause 12 of the Bill, I am most concerned that these important additional resources which we are making available to local authorities should be used for the purpose for which they are intended: that is for improving enforcement of food law. I hope that Members of the Committee will agree that we should not be using these resources on an unnecessary bureaucratic exercise except when it is clearly in the public interest and in the interests of enforcing the requirements on provision of safe food.

With regard to the local authority register of food premises, businesses will not submit applications as such. They will, however, be required to provide certain basic information that will be used for the purpose of compiling the registers. We are not proposing to require applications for licences to be made public because these applications are likely to contain detailed information such as the names and addresses of individual employees which would be open perhaps to abuse in the wrong hands.

In addition, an application for a licence might not contain sufficient information for a decision to be made. It would be misleading and unfair to publish incomplete information.

I trust that this will help the noble Lord to decide what he further proposes to do. He has already explained that he intends it as a probing amendment.

Lord Tordoff

I thank the noble Baroness for that reply. There may be some confusion. People are frightfully worried about lists. There is no reference to lists in this provision. I had in mind that some notice would be posted on the premises to which reference was made and that notice would say, "We are minded to grant a licence to do such-and-such on these premises". That happens in planning consents and so on. Rather than the keeping of a great register, this was simply a method of letting people who live over the garden wall know what is going on in the premises if there is some significant change in the products that are being produced on those premises.

Perhaps the Minister and her aides would care to think a little more about it. I do not propose to press it tonight. However, the point is this. People would be better informed and would therefore be happier to live with what was happening if they knew about it before it was forced upon them. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 19 agreed to.

Clause 20 agreed to.

8.30 p.m.

Lord Lucas of Chilworth moved Amendment No. 90: After Clause 20, insert the following new clause:

("Defences in proceedings for offences under this Act.

"—(1) In any proceedings for an offence under this Act or any regulations made under this Act, being an offence consisting of selling, or offering, exposing or advertising for sale, or having in possession for the purpose of sale, any article or substance, it is a defence for the defendant to prove —

1. (a) that he purchased it as being an article or substance which could lawfully be sold or otherwise dealt with as mentioned above, or, as the case may be, could lawfully be so sold or dealt with under the name or description or for the purpose under or for which he sold or dealt with it, and with a written warranty to that effect; and
2. (b) that he had no reason to believe at the time of the commission of the alleged offence that it was otherwise; and
3. (c) that it was then in the same state as when he purchased it.

(2) A warranty is only a defence in proceedings under this Act if the defendant —

1. (i) has, not later than three clear days before the date of the hearing, sent to the prosecutor a copy of the warranty with a notice stating that he intends to rely on it and specifying the name and address of the person from whom he received it, and
2. (ii) has also sent a like notice of his intention to that person.

(3) Where the defendant is a servant of the person who purchased the article or substance under a warranty, he shall be entitled to rely on the provisions of this section in the same way as his employer would have been entitled to do if he had been the defendant.

(4) The person by whom the warranty is alleged to have been given shall be entitled to appear at the hearing and to give evidence, and the court may, if it thinks fit, adjourn the hearing to enable him to do so.

(5) For the purpose of this section, a name or description entered in an invoice shall be deemed to be a written warranty that the article or substance to which the entry refers can be sold or otherwise dealt with under that name or description by any person without contravening any of the provisions of this Act or regulations made under this Act.").

The noble Lord said: The amendment takes us into the realm of defences. I say at the outset that, while I believe the amendment has great merit, it is essentially an attempt to draw a balance between those who consume food and those who supply and sell it. In that regard the amendment has some importance.

In the Bill the Government have decided to dispense with the statutory warranty defence in Section 102 of the 1984 Act. That defence has served well in successive food Acts for something over 100 years. Its object is to ensure that the responsibility for any defects arising during the manufacture of food rests fairly and squarely with the person who has control of the process.

Normally that person is not the retailer who is responsible for the handling and storage of the food once it reaches the store. All the retailer can reasonably do is to ensure that he purchases food from a reliable supplier who he is confident employs the high standards which are expected today. Nobody can expect a retailer to stand over the manufacturer to ensure that he meets the standards in practice. He does the next best thing and obtains a warranty from the supplier. That guarantees that the food concerned meets all the legal requirements, including all those properly contained in the Bill.

If subsequently a customer complains —say, of a foreign body in his or her packet of whatever it may be —and the enforcement officer decides to take legal action against the retailer, that retailer would, as the law stands today, be able to use the warranty defence. In that case he will almost certainly win. If the enforcement authority concerned in the hypothetical case has been doing its job properly it will have taken the manufacturer rather than the retailer to court and it will have saved itself a good deal of time and expense.

A warranty defence, as it currently exists under the 1984 Act, would not succeed if the defect is attributable to a retailer. A retailer who sells a loaf of bread after its sell-by date, or who has altered the food in any way —for example, by slicing a piece of canned meat —will find that the liability falls fairly and squarely upon him. The Bill before us repeals Sections 102 to 104 of the 1984 Act. If that repeal is sustained the only defence available is one of due diligence. It is not clear who the enforcement authority should prosecute in practice.

Although the possession of a warranty will almost certainly be regarded as part of due diligence, I suggest that it is unreasonable because a retailer does not want to have to go to court to prove it. The defence of due diligence is a helpful tool in a borderline case where it is less clear as to who is liable. Therefore, the introduction of such a defence into the Bill is welcome. However, if it is to be the only defence available, retailers are concerned that they may well be taken to court to fight cases in which they are not the real offenders, despite the helpful subsections in Clause 21 which set out the conditions. Even if they subsequently win the case a court appearance is a costly event not only in monetary terms but also as regards reputation.

I believe that it is in the consumer's interest for the law to be as clear as possible. The consumer is the person who, at the end of the day, will pay for the combined costs of any prosecution. I suggest that it would be sensible to retain the statutory warranty defence at least in respect of home-produced goods. The proposed due diligence defence might be more applicable in the case of imported and other goods where a warranty defence cannot be used.

If the only defence available is to be that of straight due diligence, without specification of what would be deemed to constitute due diligence as set out in subsections (2) to (5) in Clause 21, retailers would need to more than double their existing expenditure on the testing of food, and so forth. Each retailer would be duplicating the other and the costs would readily and quickly mount.

Amendment No. 90 reproduces Section 102 of the Food Act 1984 except that it admits subsections 2(b) and (c) of the section dealing essentially with imports and milk respectively.

In putting the amendment before the Committee it would be proper for me to ask the Minister two specific questions. Exactly why have the Government decided to repeal the warranty defence in the light of their general policies to reduce the burdens on business? Certainly the absence of the warranty defence will increase that burden. Can the Government demonstrate a substantial number of cases where the warranty defence has failed to the detriment or injury of the consumer? In that regard I ignore some of the comments made earlier in the Committee about the reimportation of sub-standard foods or about fire-damaged goods which have hit the headlines over the past 18 months.

I believe that retaining the warranty defence alongside the new proposals will give a far better balance between the interests of the consumer and those of the retailer. I beg to move.

Baroness Trumpington

I do not consider that the warranty defence proposed in the amendment is appropriate. The warranty defence which exists in the Food Act 1984 is capable of abuse and could allow operations buying in food to avoid responsibility for all the food they sell.

For example, it operates to discriminate against UK manufacturers in favour of importers in that a manufacturer is required to accept responsibility for the food he puts into circulation but an importer is not. By pleading the warranty defence the importer can escape conviction. At present the impact of this loophole is slightly mitigated by a requirement that a warranty given by a non-UK resident is only a defence if the defendant has taken steps to check its accuracy. The amendment would remove even this safeguard.

My noble friend asked about differentiating between imported and home-produced goods. Under the Treaty of Rome we could be in trouble for differentiating between goods from other member states and those produced at home.

The new system of defences outlined in Clause 21 of the Bill based on the concept of due diligence is designed to ensure that all those involved in the food chain take appropriate responsibility for the food they sell. We have recognised that the due diligence defence in Clause 21(1) could cause uncertainty for retailers as to their precise responsibilities; for example, the case of tinned meat. Subsections (2) to (4) of Clause 21 therefore set out special deemed due diligence defences which will apply to retailers. I believe that the new system provides a fair balance between the interests of consumers, manufacturers, importers, retailers, enforcement authorities and others. Discussions which Ministers and officials have had with representative organisations have tended to confirm that belief. I hope that in view of my explanation my noble friend will not press the amendment.

Lord Lucas of Chilworth

I am grateful to the Minister for her explanation which I understand in part. Not having to hand the relevant sections of the Treaty of Rome, it is rather difficult to reconcile what she says, so I must look at that.

Certainly there is uncertainty. However, does the Minister not agree that there can be no uncertainty that a foreign manufacturer, being outside the jurisdiction of the UK courts, cannot be engaged in any prosecution which may take place between the enforcement authority, manufacturer, wholesaler or retailer? We are concerned about the responsibility of the retailer in terms of due diligence. Under existing law, the retailer has the warranty —this is a quotation from Section 102(2)(b) of the 1984 Act —that, he had taken reasonable steps to ascertain, and did in fact believe in, the accuracy of the statement contained in it". Therefore, it seems to me that there is already a responsibility of due diligence under the existing law dealing with the warranty defence which is not changed by the omission of the warranty defence. That seems something of an imbalance which particularly concerns me.

The retailer, who might very well be dealing through a wholesaler or an importer, should be the one to be taken to court. But his warranty, which he has relied upon before, because it is taken outside the law by virtue of this Bill, affords him no protection whatever. He must then rely solely on due diligence. Is it reasonable that a number of retailers buying from perhaps the same importer or wholesaler should have to take all the steps of testing, examination and so on, whereas hitherto, they have not had to do so?

Lastly, I repeat my question to my noble friend. Can the Government demonstrate over the past five or 10 years that a substantial number of cases causing damage or injury to a consumer have occurred as a result of a retailer pleading and winning a case of a warranty defence? If they cannot, I suggest that that defence should remain intact.

Baroness Trumpington

I believe that my noble friend fights his corner very well. I do not believe that the warranty defence has worked at all well in the past. I do not consider that the warranty defence proposed in this amendment, which repeats and indeed exacerbates the faults of that in the Food Act 1984, is appropriate. The retailer will still be able to quote a warranty in establishing a due diligence defence. However, under the new system we shall be able to pin responsibility on the person who first brings the food into the UK. I cannot give examples off the top of my head but I must tell my noble friend that I shall not change my mind on the matter.

Lord Lucas of Chilworth

Knowing the noble Baroness as long as I have done, I certainly detect an "ironness" in her remarks. I should not expect her this evening to change her mind. I shall think about what she said, and I ask her to be kind enough to think about what I said. I may or may not wish to return to this matter on another occasion. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.45 p.m.

Clause 21 [Defence of due diligence]:

Lord Stanley of Alderley moved Amendment No. 91: Page 14, line 41, leave out ("or (4)") and insert (", (4) or (4A)").

The noble Lord said: This amendment should be read with Amendment No. 94. It is intended to clarify the position of the pick-your-own enterprises. I should say that I have an interest in my son's enterprise in Oxfordshire. I believe, and I hope that my noble friend will agree, that if a person picks a mouldy strawberry, the owner of the pick-your-own would not be committing an offence. However, I hasten to add that if the owner was in breach of pre-harvest intervals as laid down under the Food and Environment Protection Act regulations, he would be committing an offence under that Act. I hope that that satisfies the noble Viscount, Lord Falkland.

This simple amendment makes it crystal clear that pick-your-own enterprises are exempt rather than burdening the courts with proving that the owner of the pick-your-own took all reasonable precautions. I hope that my noble friend will accept the amendment.

However, there is a further problem with pick-your-owns. It may be that my noble friend would prefer to write to me. This is a rather grey area and perhaps she does not have the answer now. What is the position if the farmer picks the fruit or, much more likely, the vegetables, and then displays them for sale for the public so that they can choose which produce they wish to buy? Sadly, the public are usually too lazy to pick vegetables. They will pick strawberries and raspberries, but, for some reason, they do not like picking beans. That is quite common. Therefore, the vegetables have to be picked for them so that they can select what they wish to buy. What is the position there?

We often offer cream for sale because it is too far for the public to walk to the village shop. I ask my noble friend whether the pick-your-own becomes a farm shop and therefore becomes subject to all the regulations in the Bill. This too is a rather grey area. There is also concern about catch-your-own trout. How is that affected? I beg to move.

Lord Carter

This is an interesting amendment. It seems that there is an omission in the Bill regarding the implications for pick-your-own which the draftsman has not really thought through. The Minister will know that we are encouraged by the Ministry and by ADAS to diversify our farm enterprises, including the operation of pick-your-owns.

Clause 21(3)(a) states that, the commission of the offence was due to an act or default of another person who was not under his control". Does the picker commit an offence if he picks unripe or damaged fruit? Is the act of picking it a default under the Act? How does that differ from a greengrocer who has lots of self service fruit and vegetables? If the greengrocer puts unripe fruit on display and the customer chooses it, is the retailer at fault? We can see that there is an area here which needs to be looked at carefully. I believe that the noble Lord has done the Committee a service by bringing this matter to our attention.

Baroness Trumpington

Once again I am afraid I cannot accept my noble friend's amendment. It would mean, for example, that the owner of a pick-your-own enterprise could automatically be deemed to have satisfied "due diligence" and therefore escape conviction even if the food his customers had picked was unfit, contaminated, or injurious to health. That would hardly be a satisfactory state of affairs.

I understand my noble friend's anxiety, but I believe that as the Bill stands it already affords an adequate degree of protection for the farmers and growers that he has in mind. Clause 8(2)(c) is carefully drafted. It makes clear that food is only regarded as contaminated if it would not be reasonable to expect it to be used for human consumption in that state. After all, if the person who picked strawberries then sat on them and squashed them, as a result of which they rotted, that would hardly be the fault of the person from whose farm they were picked.

Neither that, nor the defences in Clause 21, would preclude the sensible and safe use of pesticides or fertilisers by farmers and growers engaged in pick-you-own enterprises. Pick-your-own lettuces covered in mud from the field would clearly not be regarded as contaminated because any reasonable person would wash a lettuce before eating it. Of course, if a pick-your-own enterprise is selling grossly contaminated produce, that enterprise would be committing an offence just as a shop would be. A farm shop is a shop, is a shop, is a shop. If a farmer picks vegetables and displays them for sale, he is caught by the food law. I am sorry, but I cannot accept my noble friend's amendment.

Lord Stanley of Alderley

I am sorry about that. I was hoping that at some stage my noble friend would accept one of my amendments. I was being very nice to her compared with the other day. However, to be serious, I shall very carefully read what my noble friend said. Looking at all the examples given by her I, as a pick-your-own owner, would have been caught under the Food and Environment Protection Act. As I said, I shall read carefully what has been said because I am certainly not trying to escape from that obligation. If I contaminate my food by using pesticides or by late spraying before picking, of course I am liable; but I cannot quite see the other side. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Stedman moved Amendment No. 92: Page 15, line 1, after ("out") insert ("or caused to be carried out").

The noble Baroness said: I speak also to Amendment No. 93. Clause 21 brings the food safety law into line with other consumer protection legislation in that as it stands at the moment it sets out how a person may satisfy the defence of due diligence, which will be a defence against prosecution under the Bill. My two amendments do nothing to alter that premise and they accept the central principle of the clause.

I seek to clarify the Bill's provisions so that they do not impose an undue burden on smaller firms. It is the smaller firms who do not have extensive warehouse testing facilities and who have to contract certain testing work to outside laboratories. Surely that should be reflected in the person being able to prove that he carried out, or caused to be carried out, such checks as would be the case with Amendment No. 92.

Amendment No. 93 deals with the case of a person or company who might otherwise be liable to prosecution who has reasonably relied on tests carried out the supplier. By inserting the words "or on behalf of" in line 3 of the clause I am seeking to ensure that small suppliers are able to have tests carried out by someone else. The person supplied can then put equal reliance on such tests as if they had been carried out by the supplier himself. If that was not the case, the smaller firms would find it hard to sell to larger firms.

I do not believe that my two amendments in any way weaken the Bill, the object of which is to ensure the safety of food. One way to do that is by the testing of foods and ingredients. Provided such tests are carried out at all the appropriate stages, does it matter who physicially carries out the tests?

My proposals are comparable to ensuring that our cars are roadworthy. We do not necessarily carry out the mechanical checks or do the necessary repairs. We arrange for our garages to do that for us and to check that our cars are roadworthy. In a sense, I am asking that the same principle of testing is extended to the safety of food.

I confidently expect the Minister to tell me that the Bill as it stands can be interpreted as implicitly covering the points I have raised. However, the contrary interpretation is also possible. Where there is such a doubt in the Bill, then the Bill should be made as clear as possible because the courts will have to decide all the cases that go to them on the basis of what the legislation actually states and not on what we intended it to mean. I beg to move.

Lord Mottistone

I support the amendment, and I hope that my noble friend will give it a fair wind.

Baroness Trumpington

I am sorry to tell my old friend the noble Baroness, Lady Stedman, that I cannot find favour with the amendments. As the noble Baroness will know, courts interpret defences very widely and would accept checks carried out at the instigation of the defendant as being checks carried out by him. Similarly, checks carried out on behalf of his supplier would be regarded as being carried out by that supplier. I hope in view of that brief explanation the noble Baroness will not feel it necessary to press the amendment.

Baroness Stedman

I am terribly disappointed with the Minister's reply. Having tabled only two very small amendments in the whole of this Bill, I was hoping to be the lucky one to hear the words "yes, we accept the amendment".

The Minister has taken precisely the view that I expected, that the situation is covered by the Bill as it stands. Clearly, we must wait for the courts to make a decision to show who is right. I hope that the Minister is right. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 93 and 94 not moved.]

Baroness Trumpington moved Amendments Nos. 95 to 99:

Page 15, line 21, leave out ("(a)").

Page 15, line 22, leave out ("(b)").

Page 15, line 24, after ("unless") insert ("(a)").

Page 15, line 24, after ("hearing") insert ("and

(b) where he has previously appeared before a court in connection with the alleged offence, within one month of his first such appearance,").

Page 15, line 27, at end insert — ("(6) In subsection (5) above any reference to appearing before a court shall be construed as including a reference to being brought before a court.").

The noble Baroness said: I hope the Committee will welcome these amendments. They are designed to close a possible loophole in respect of action taken against defendants further back in the food chain. We have also taken the opportunity to make clear that the reference to appearing before a court will cover the case where someone has to be brought before a court and who does not do so voluntarily.

The main object is to ensure that proceedings against the real offender can be started before the overall time limit for taking a prosecution has run out. The Committee will be aware that Clause 34 sets these overall time limits one year from the discovery of an offence or three years from its commission, whichever is earlier.

At present, Clause 21 provides that if someone wants to use in his defence the fact that a third party was at fault, he has to identify that person seven days or more before the case has its full hearing. We are concerned that a defendant, perhaps wishing to protect the third party, could drag out his preparations so that there is not enough time left for the prosecution to start proceedings against the real offender.

With these amendments the defendant who intends to point to the guilt of a third party will have to identify that person within one month of his first appearance before the magistrate's court. In the unlikely event of a defendant wishing the case to receive a full hearing on his first appearance, he will still have to identify the other person at least seven days beforehand. This should lead to a much better working of the system. I trust that the Committee will appreciate the merits of these amendments which should make for more effective enforcement of food law provisions. I beg to move.

On Question, amendments agreed to.

Clause 21, as amended, agreed to.

9 p.m.

Lord Lucas of Chilworth moved Amendment No. 100: After Clause 21, insert the following new clause:

("Defence of unavoidable consequences

.In proceedings under section 14(1) above in respect of any food containing some extraneous matter it is a defence to prove that the presence of that matter was an unavoidable consequence of the process of collection or preparation.").

The noble Lord said: This amendment inserts a new clause which has exactly the same wording as Section 3(2) of the 1984 Act. That provides a defence where it can be proved that the presence of extraneous matter in food was an unavoidable consequence of the process of collection or preparation.

Section 3(2) states: In proceedings under section 2 in respect of any food containing some extraneous matter, it is a defence to prove that the presence of that matter was an unavoidable consequence of the process of collection or preparation". That is what we are seeking to retain. Here I am not thinking of the piece of machinery in the can of beans to which we have referred earlier, but of something far more natural and not at all harmful. For example, I was thinking of the husk of a pea pod in a can of peas or something of that nature. It seems quite reasonable that the due process of law should not be enacted in cases of that kind and that there should be an automatic defence.

I am not going to press this amendment tonight. If my noble friend the Minister can tell me that my anxiety may be covered by the due diligence defence which we have discussed in connection with Clause 21, that would be helpful. If she has any other comment, I shall be delighted to hear it. I beg to move.

Baroness Trumpington

Before I answer my noble friend, I ask him whether there is a misprint in the amendment as printed. Should it refer to Section 14(1) and not 15(1)?

Lord Lucas of Chilworth

I am most grateful to my noble friend for reminding me of that. I had that point written down but I failed to read it out. The Minister is quite correct.

Baroness Trumpington

I am grateful to my noble friend for the explanation of his proposal. I understand his anxiety which is to ensure that people should not be convicted of selling food not of the required nature, substance or quality if it contains matter resulting unavoidably from the manufacturing process. I am pleased to be able to tell my noble friend that the Bill already meets his point. The amendment would reinstate the defence in Section 3(2) of the Food Act 1984.

We are very concerned with tins of peas this evening. Some of my noble friends may recall the case of the caterpillar found in the tin of peas in Smedley v. Breed. In that case, the defendant —despite his demonstrating that his manufacturing methods were of the highest quality —was convicted though relying on this proposed defence. That was because he could not convince the court that the presence of the caterpillar was an unavoidable consequence of the manufacturing process. The process was designed to exclude such objects.

That result did not seem fair, but it was the legally correct consequence of the defence. Under the defence in Clause 21 I am assured that the defendant would have been acquitted on the evidence. In view of my explanation, I hope that my noble friend will withdraw his amendment.

Lord Lucas of Chilworth

I thank my noble friend for her explanation. Does her answer apply to a tin of carrots? That is a purely rhetorical question. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 22 to 24 agreed to.

Clause 25 [Orders for facilitating the exercise of functions]:

Baroness Hooper moved Amendments Nos. 101 and 102:

Page 16, line 20, leave out ("and") and insert ("or").

Page 16, line 35, leave out ("or any class of such food").

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

On Question, amendments agreed to.

Lord Tordoff moved Amendment No. 103:

Page 16, line 46, at end insert ("or (c) where disclosure is necessary for the purpose of preventing an imminent risk of injury to health;").

The noble Lord said: In moving this amendment, I shall also speak to Amendments Nos. 133 and 134. As the Committee is aware, Clause 25 enables the Minister to obtain samples of a particular product from all of its producers. For instance, if the Minister decides that she wants a sample of pigs' trotters and goes to every pigs' trotters manufacturer in the country—thought I hate to think of the state of the noble Baroness's office after that exercise has completed —the Minister is entitled to do so.

Under subsection (3) of this clause it is an offence to pass information relating to any individual business which is obtained by means of an order under subsection (1). Any person who discloses any such information is in contravention and he shall be guilty of an offence. There are two very proper exclusions from that provision. We are seeking to include a further exclusion in cases where there is a danger to health. The actual wording of the amendment is: where disclosure is necessary for the purpose of preventing an imminent risk of injury to health". If in the course of this sampling procedure there is found in one particular sample something which is genuinely nasty and a danger to public health, then that should be disclosed to the general public, who could be at risk, even without the consent of the manufacturer or the person from whom the sample was obtained.

With Amendment No. 133, we come to the secrecy clause, Clause 32(7), to which I made some oblique reference the other evening. This severely penalises unauthorised disclosure of information about food by enforcing authorities, which are mainly local authorities. As the Bill stands, an inspector who publicly reveals information about unsafe food or unsafe food manufacturing processes could be guilty of an offence. The maximum penalty is an unlimied fine or up to two years' imprisonment, which incidentally is the same penalty as the new Official Secrets Act prescribes for unauthorised disclosures which damage Britain's defences or national security. But this clause if anything is slightly more oppressive than the Official Secrets Act.

The offence under Clause 32(7) is too disclose information about any manufacturing process or trade secret unless that disclosure is in the performance of the inspector's duty. However, there is no duty to inform the public about these hazards. That is what we are worried about. The case for protecting trade secrets is obvious. We would not wish in any way to alter that under Amendment No. 133. But we are concerned about the protection of information relating to manufacturing processes even where no trade secret is involved and the information is without commercial value of any kind. It would be an offence to reveal that a manufacturing process was being used, for instance, without the required safety precautions. We believe that the use of the words "manufacturing process" is unnecessary and that they should be removed. Such secrecy has been dropped in other legislation. For example, the Clean Air Act 1956 originally used exactly the same words, but it was amended by the Control of Pollution Act 1974 to delete that reference.

Amendment No. 134 would allow the disclosure of trade secret information but only where it was necessary for the purpose of preventing an eminent risk of injury to health. That is a necessary case. Emergency action might have to be taken where people ought to be told that there was imminent risk of injury to health. In those cases it should override even the need to preserve trade secrecy. One would always hope that it would be possible to speak to manufacturers and get them to agree that emergency action should be taken, but in those cases where that permisson was refused, it ought still to be possible for the authorities to override them.

The three amendments are extremely important in reducing the amount of secrecy built into the Bill. I beg to move.

Lord Carter

On these Benches we are pleased to support the amendments. Considerable concern has been expressed by a number of organisations about the quite draconian powers contained in Clauses 25 and 32 of the Bill. We all understand and accept the need to protect trade secrets, although I expect that the lawyers will have a field day in defining a "trade secret". The protection of a manufacturing process which may have no commercial value and which may involve an imminent risk of injury to health is not acceptable.

These amendments are not intended to be a whistle-blower's charter. They are intended to protect the public, which we understand is also the Government's object in this Bill. We hope therefore that the Minister will be able to consider them favourably. The Independent pointed out on 9th January that the penalties under this clause are the same as those prescribed in the new Official Secrets Act for unauthorised disclosure of information which damages the defences of Britain or its national security. It pointed out that most offences under that Act require the prosecution to show that disclosure was likely to cause harm. No evidence of harm will be needed to convict someone who makes a disclosure about hazards in food. That is an extremely important argument. We have no hesitation in supporting the amendments and we look forward to hearing that the Government are prepared to accept them.

Baroness Trumpington

In order to put noble Lords out of their misery I shall tell the Committee immediately, without giving a lengthy explanation, that I sympathise with the noble Lord's intention in putting forward the amendments. We had not realised that problems had arisen in the past. However, in view of the concern expressed on the subject, I am willing to take the matter away and give the issues further careful consideration. I hope that the noble Lord will not press the amendment.

Lord Tordoff

I am most grateful to the noble Baroness. I assure her that there is evidence of difficulties in the past. Even if the provision had been tested in the courts and found to be wanting, people might be inhibited by such a provision. I am grateful to the Minister for taking the matter seriously. I look forward to an amendment or some further discussions at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 25, as amended, agreed to.

9.15 p.m.

Clause 26 [Regulations and orders: supplementary provisions]:

Lord Mottistone moved Amendment No. 104: Page 17, line 1, after ("regulations") insert ("or orders").

The noble Lord said: In moving this amendment I should like to speak also to Amendment No. 106. Members of the Committee will notice that the title of the clause set out in the margin includes the words "Regulations and orders". Noble Lords will also notice that subsection (4) refers to: Regulations under this Part or an order under section 25".

It seems to me that it would be appropriate for consultations which are already required within subsection (1) to apply equally to orders under Clause 25 as well as to regulations contained in Clause 26. Indeed, that process should also apply to any regulations or orders in this part of the Bill. In my view this is merely a small omission and I hope that my noble friend will agree to accept what is proposed. I beg to move.

Baroness Trumpington

The amendment would require Ministers to consult before exercising either of the two order-making powers under Part II of the Bill. The first such power allows Ministers to make emergency control orders. Such orders would of necessity have to be made very swiftly and there would be no time to carry out a consultation exercise before they were made.

The second order-making power would enable Ministers to collect information or food samples. That power is intended to supplement rather than replace the existing voluntary system. For example, the Government food surveillance programmes are at present based upon samples given voluntarily, but the order-making power would enable Ministers to take samples compulsorily should that prove necessary. However, such orders would only be made if voluntary approaches had failed. Consultation would clearly not help in such circumstances. Moreover, information gained in that way could on occasion be used to help reach a decision on whether regulations were needed. Interested parties would of course be consulted in the usual way before such regulations were made. I am afraid that, once again, I shall have to disappoint my noble friend.

Lord Mottistone

I appreciate what my noble friend said. I shall take great pleasure in carefully reading her reply. I am not entirely sure that I am satisfied and I may return to the subject at a later stage of the Bill's proceedings. However, at this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Viscount of Falkland moved Amendment No. 105: Page 17, line 4, after ("interests") insert ("including the interests of consumers").

The noble Viscount said: This amendment reflects the need for greater consumer representation on the various advisory committees. Despite the recent increase in consumer representation on the Food Advisory Committee, there are still only two representatives out of a total of 15 committee members.

While I welcome the consumer panel newly set up by the Ministry of Agriculture, Fisheries and Food to strengthen consumer output, it is not yet clear exactly what its role will be and how it will interact with the directorate and the various advisory committees. There is no consumer representation on the committee dealing with toxicity or, more important, on the Advisory Committee on Irradiated Novel Foods, which has a crucial role to play in the future.

In dealing with such matters as the use of biotechnology in the food industry and the controversial issue of irradiation, the committee should not just touch upon matters of scientific safety; it should also deal with the social and ethical implications of such new processes.

Consumer participation is especially important when it comes to the vexed question of whether new processes are really necessary. The regulation of food additives provides an example of where there are clearly two sets of criteria to be considered prior to approval; namely, safety and need. In the past, need has been interpreted very narrowly by the Food Advisory Committee in terms of the technological and economic need of the manufacturers for the additive in question. The regulatory process tends to be dominated at present by scientific debate; that is, debate which is obviously essential to establish safety but which often overlooks more human questions. In our view, consumer needs should be given more consideration in such assessments. It is that factor which has prompted the tabling of this amendment. I beg to move.

Earl Baldwin of Bewdley

The consumer is central to the whole Bill: he is to be protected from bad food; he is to be offered irradiation although he says that he does not want it; but is he to be consulted on any of those measures? I am sure that the Minister will say, "Of course", but the Government's idea of consumer involvement is sometimes a pretty measly affair. If the Government wish to be seen to be on the public's side —they have a large credibility problem at present —a good way would be to write consumer consultation on the face of the Bill. Those interests likely to be substantially affected by the regulations are sure to include the big battalions, and it is right that they should. Many of us would feel a great deal more confident about the interests of the public if the amendment were accepted.

Baroness Trumpington

The noble Viscount's proposal is specifically to include consumer interests among those to be consulted who are likely to be substantially affected by the regulations. I of course believe that that is unnecessary. Consumers' interests are already fully recognised by Ministers as being in the forefront of interests to be consulted. An extensive list of consumer organisations is consulted regularly on a wide range of issues, including food legislative matters.

There is no need to highlight consumer interests in the Bill. In any case, they are already well covered by the current wording. I think that I understood the noble Viscount to say that there was no consumer representation on some committees. Some of the committees that he enumerated are committees of experts to give Ministers the kind of information that we can be sure is scientifically correct, and they are not therefore for the amateur. That is why we have some committees composed only of scientific experts. We consult a great deal. I assure the Committee that the consumers' interests are very much to the forefront of the Government's thinking.

The Viscount of Falkland

I am encouraged by the Minister's remarks. The committees to which I referred are too expert for one to expect the consumer to take a leading role. I was suggesting that there might be an increase in consumer participation even if it is on the edges of those committees. I take on board what the Minister says and I am generally encouraged by her recognition of what prompted the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 106 not moved.]

Lord Mottistone moved Amendment No. 107: Page 17, line 23, leave out ("the public") and insert ("an authorised officer of an enforcement authority or such other persons as may be specified in the regulations").

The noble Lord said: The amendment seeks to replace "the public" with a specified authorised officer of an enforcement authority or such other persons as may be specified in the regulations". As time goes on perhaps even the public might be such other persons as may be specified", but until the detail of the subsidiary provisions contained in subsection (3)(c) are specified, it does not appear appropriate to include reference to members of the public or any other specific group of people.

My noble friend the Minister may say that she believes that the only information to be disclosed on the register would be the name and address of the company and the number of employees. I wonder whether that is so. The detail of registration and licensing has yet to be established. There is concern that if such information is open to public inspection it could be abused, not just by commercial interests —for example, sales representatives —but by activists such as the Animal Liberation Front and "food terrorists". The Committee may be familiar with recent incidents when food terrorists have sought to upset large companies.

If the registered information is limited; that is, to little more than what appears in a telephone directory, that concern would be minimal. Such limited information however would be of little value to enforcement authorities, and the expectation is that the registered information about a company would be much more detailed and give information about types of activities and names of responsible personnel.

An amendment of this nature at this stage would be a suitable safeguard, because it would enable the Government to widen the number of persons specified, as and when they saw what they required under the remaining headings of the clause. I hope that this argument will appeal to my noble friend the Minister and that she will be able to agree. I beg to move.

Baroness Hooper

The register of food premises will contain a very limited amount of information such as the address of the premises, as my noble friend suggested; the nature and size of the business; and the name of the proprietor. It will not include detailed information on the running of the business. We believe that allowing the public access to the register has three major advantages. First, it will benefit the consumer because he or she will be able to check whether or not premises are known to the local authority and therefore whether or not the authority is monitoring hygiene standards. Secondly, it will benefit the industry. Reputable businesses sometimes suspect that they are being undercut by unscrupulous traders who cut corners on safety to keep down prices. If they have access to the register, they will be able to check whether or not those premises are registered. If they are not, the occupants may deliberately be trying to avoid inspection. At any rate, the reputable trader will be able to do something about it. Finally, we believe that public access will lead to better standards of enforcement as any gaps in the local authority's knowledge can be filled by the public.

I note the examples quoted by my noble friend which give rise to his concerns. But we believe that industry has nothing to fear fom public access to the register. Indeed, there are real advantages for all concerned. I hope that my noble friend will therefore agree to withdraw his amendment.

Lord Mottistone

I am partially reassured by my noble friend's remarks, but not altogether. I may well come back at the next stage of the Bill with some alternative amendment in order to tackle the point. At this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Gallacher moved Amendment No. 108: Page 17, line 31, leave out ("or to a tribunal constituted in accordance with the regulations").

The noble Lord said: This is a probing amendment. It raises the question of what kind of tribunals are envisaged under the regulations; how such tribunals will in themselves become appeal courts; and whether appellants will have any choice regarding which body they take their appeals to in order to be heard. I should be grateful if the Minister could give me some further information and clear up what for me is a somewhat unusual provision, particularly in regard to appeals. I beg to move.

Lord Mottistone

It gives me great pleasure to support an amendment moved from the Opposition Front Bench for the first time during proceedings on the Bill.

The Earl of Strathmore and Kinghorne

The main purpose of these provisions is to allow us to maintain the system of milk and dairies tribunals. It may help noble Lords if I try to explain the need for this system. Our milk hygiene regime includes arrangements for registering dairy farmers and for licensing dairies in order to ensure that high standards are maintained so as to protect public health. If standards are not maintained the registration or licence can be cancelled by the Ministry or a local authority but this is a severe penalty because it effectively deprives the farmer or dairyman of his livelihood. Accordingly, there is a long established tribunal system to consider appeals against cancellation. The system works effectively in practice; it is inexpensive; and it enjoys the industry's confidence. This is, therefore, a case where there is much to be said for leaving well alone, and this evidently means that we must keep the enabling power. Accordingly, the Government are resisting the amendment.

Lord Gallacher

The noble Earl's resistance is unnecessary. He has jogged my memory about milk and dairies tribunals. That point did not impress itself upon me when I first read this provision, although I have reason to believe now that I am a member of a milk and dairies tribunal. That is for the reason that no one else whom I approached at the material time would agree to serve. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 109 not moved.]

Clause 26 agreed to.

Clause 27 [Appointment of public analysts]:

9. 30 p.m.

The Earl of Strathmore and Kinghorne moved Amendment No. 110: Page 18, line 4, leave out ("food authority") and insert ("authority to whom this section applies, that is to say, every food authority in England and Wales and every regional or islands council in Scotland,").

The noble Earl said: On behalf of my noble friend and with the permission of the Committee I shall move Amendment No. 110 and speak to Amendments Nos. 112, 113 and 114. Amendment No. 110 amends Clause 27 so that responsibility for the appointment of public analysts in Scotland rests with regional and islands councils. Amendments Nos. 112 and 113 are consequential. Amendment No. 114 empowers such authorities to provide facilities, if they wish, for microbiological examinations.

Lest any Member of the Committee should feel that these amendments are at variance with the stance which the Government adopted to the amendments to Clause 5 proposed by the noble Lords, Lord Gallacher and Lord Ezra, perhaps I may offer some background. Responsibility for food matters in Scotland currently rests under the Food and Drugs (Scotland) Act 1956 with the environmental health departments of district and islands councils. This is unlike the situation in England and Wales where responsibility is split between environmental health and trading standards officers employed by different layers of local authorities. Because of this split, Clause 5(4) empowers Ministers to make orders specifying which authority may carry out specific functions. This, as my noble friend explained, is not required in Scotland where there are unitary authorities, although Clause 5(6) enables an authorised officer to be other than an employee of the district and islands council so that TSOs could be called on to act on the council's behalf.

The position of public analysts is somewhat different. Public analysts carry out a range of duties outwith food. For example, they analyse pesticides, soil samples, materials and contents of certain foods, toys, etc, and carry out analysis for the police. In those areas they are employees of regional and islands councils. It clearly represents an economic use of resources for these analysts also to undertake the necessary work on food which they currently do. The amendments to Clauses 27 and 28 are designed to accommodate that. I beg to move.

On Question, amendment agreed to.

Lord Carter moved Amendment No. 111: Page 18, line 13, at end insert ("provided that nothing in this Act shall preclude a person acting as a public analyst who may have received instructions from the proprietor of any food business, whether carried on in that area or otherwise, to undertake professional analytical work.").

The noble Lord said: This is a probing amendment. It arises from the drafting of the Bill and specifically the use of the word "indirectly" in Clause 27(2)(b). Although some local authorities employ public analysts on their staff, we are advised that there are others which employ consultants on a fee-paying basis. In that way a council receives the service it requires at a lower cost.

It follows that consultants and public analysts used by local authorities in this way should also be able to receive instruction as professional scientists from private firms, including food businesses. We are advised that the words used in Clause 27(2)(b), as drafted, would appear to preclude the use of private consultant analysts who act for food businesses as being persons engaged indirectly in a food business in the area. This is a probing amendment and we hope that the Minister can clarify the meaning of the clause. I beg to move.

Baroness Trumpington

I am grateful to the noble Lord for explaining the amendment. However, we do not agree that the wording in the Bill should be changed. Clause 27(2) is designed to prevent any public analyst being so involved in the food industry as to bring about a conflict of interest. Public analysts are holders of public office and exist to assist in enforcement and trials. I hope that in view of that brief explanation the noble Lord will feel that I have solved his problem.

Lord Carter

I am not sure that the Minister has solved the problem because I am talking about the case of a private consultant who is acting as a public analyst. However, I do not wish to take up the time of the Committee now. I shall read what the noble Baroness said and I may come back again at a later stage. I beg leave to withdraw the amendment.

Baroness Trumpington

I hope I may write to the noble Lord on that point.

Lord Mottistone

Will my noble friend also write to me as she did not give me time to break into the discussion? I support the amendment.

Baroness Trumpington

I shall gladly write to my noble friend.

Amendment, by leave, withdrawn.

The Earl of Halsbury moved Amendment No. 111A:

Page 18, line 13, at end insert — ("( ) A public analyst may also be appointed as an authorised officer for the purposes of this Act.").

The noble Earl said: In moving Amendment No. 111A, with the leave of the Committee I should like also to speak to Amendments Nos. 117A and 154A. In doing so, I should like leave to question the Minister on the future academic status of food examiners, starting with Clause 28(2). I shall also ask leave to comment on the amendment of the noble Lord, Lord Ezra, Amendment No. 117, which seeks to amend Clause No. 30.

My amendments and the comments and questions that I seek to ask all relate to the status of public status of public analysts, about whom I should like to ensure that the Committee is sufficiently informed, without making a Second Reading speech on the subject. Public analysts are defined in Statutory Instrument No. 273 of 1957 entitled The Public Analysts Regulations 1957. The only item that need concern the Committee is Regulation 2(a), which reads: A person appointed to be a public analyst under the Act" — that is, the Food and Drugs Act 1955— shall either

1. (a) hold a diploma of fellowship or associateship of the Royal Institute of Chemistry of Great Britain and Northern Ireland and a certificate granted by that institute after an examination conducted by them in the chemistry including microscopy of food and drugs and water; or
2. (b) have held immediately before these regulations came into operation an appointment as a public analyst".

That implies that public analysts existed before the regulations and are an evolutionary body.

The words need updating in so far as at some time after 1957 the Chemical Society, a learned society, and the Royal Institute of Chemistry, a professional body, merged with a new charter to form the Royal Society of Chemistry which combines the work of its two merged predecessors.

The requirement for a public analyst is now that the candidate should hold a degree of Master of Chemical Analysis awarded by the Royal Society of Chemistry. The examination for that degree lasts a whole week.

Perhaps I may say a few general words about public analysts as they are today. There are about 100 qualified public analysts holding a master's degree, and of those some 80 are in practice. Without them the Bill would have no teeth and be inoperable. They are the cream of the cream of their profession. Many of them work for more than one local authority. I know one who works for no fewer than eight. Some are self-employed, others are partners in a general practice. They operate always as individuals. They are all of the highest professional integrity. My amendments are all concerned with preserving their status, in grateful acknowledgment that I received part of my practical training in the laboratories of one of them.

Master of Chemical Analysis is a very advanced scientific qualification covering the analysis of foods, drugs and water together with related disciplines such as microbiology, pharmacology and food technology and the disciplines of sampling processes which are essential to water analysis. In addition public analysts must be familiar with no fewer than 27 Acts of Parliament, 28 including this one, making provision for their services, not to mention the rain of Statutory Instruments which descends from Ministers under the enabling powers in those Acts.

They have to maintain liaison with central government and the European Commission in the review of relevant national and Community legislation. In a very general sense they are advisers across the board on scientific matters to local government which, having no specific scientific qualifications, may require help in locating specialist advisers of whom it stands in need.

These are very special people. However, aware as I am of the limits of the patience of the Committee I shall cut short my panegyric at this point and refer the Committee to a study guide published by the Royal Society of Chemistry which I shall place in the Library at the end of the debate.

I come now to question the status of food examiners in the context of Clause 28(2) where "examination" is defined as "microbiological examination" and where "examine" is to be construed accordingly. Those definitions are applied in Clause 30(1) where an authorised officer should have the option of submitting a sample to a public analyst or, (b), to a food examiner according to his judgment of the most appropriate choice.

Turning to Clause 30(8) I find: 'food examiner' means any person who possesses the requisite qualifications to carry out examinations for the purposes of this Act". Next, 'the requisite qualification' means such qualifications as may be prescribed by regulations made by the Ministers, or such other qualifications as the Ministers may approve".

But what are these to be? The word "examine" is tied to microbiological examination. The public analysts already do this work and are hallmarked by the Royal Society of Chemistry. Who will hallmark the examiners? There is indeed a Chartered Institute of Biology, of which I have the honour to be a fellow. Such people would be competent to hallmark food examiners, but will the Minister set about asking them to do so or not?

Unless an authorised person is technologically qualified as a public analyst or a hallmarked food examiner, how is he supposed to discriminate between who would be more appropriate to refer a sample to? I badly need answers to these questions with a view to bringing these matters forward again at a later stage in the Bill.

I now turn to my Amendment No. 111A.

Baroness Trumpington

I wonder if I might intervene?

The Deputy Chairman of Committees (Lord Ampthill)

Before the noble Baroness intervenes, if the noble Earl moves this amendment then the noble Baroness can no doubt intervene. Amendment proposed, page 18, line 13, at end insert the words as printed.

Baroness Trumpington

What I wanted to say was that the noble Earl has me and indeed the Committee at a slight disadvantage. There is a certain grouping, and we are now considering Amendment No. 111A which stands on its own. In the grouping Amendment No. 117A is grouped with Amendments Nos. 116 and 117. I am going to tell the Committee some secrets in advance, which makes it even more difficult for me to speak to the grouping as the noble Earl has arranged it.

I intend to resist the noble Earl's present amendment; I intend to consider his following amendment; and Amendment No. 154A, which is grouped with Amendment No. 154, I shall resist. It does not marry up if we break the grouping. I am entirely at the disposal of the noble Earl, but I wonder whether we may deal with Amendment No. 111A as it stands, and perhaps the noble Earl would then like to come back. Would that be suitable to the noble Earl?

The Earl of Halsbury

I have always understood that the rule of groupings is that by the leave of the Committee one is not bound to stick to them. That is why I started my remarks in moving Amendment No. 111A by seeking the permission of the Committee to group with it amendments not as grouped on the grouping paper. But if that creates difficulties for the noble Baroness I am content to speak to Amendment No. 111A and then follow the grouping that she suggests.

Baroness Trumpington

I was trying to be as helpful as I could to the noble Earl by saying what I did. I hope that he is not upset.

The Earl of Halsbury

No. The purpose of Amendment No. 111A is to enable the main, positive argument to be put in favour of public analysts and their role, and to ensure that there is a strong scientific influence on the enforcement of food safety by the involvement of professionally and scientifically qualified public analysts.

Public analysts are already employed as authorised officers in some cases. One specific example is in Lancashire. The amendment simply writes current practice into the Bill. It thereby prevents any future argument. The practice current before the Bill is not a precedent for anything to be done after its enactment. The appointment of public analysts as authorised officers will become more and more desirable in the light of the EC directive, which I must say represents the biggest single leap forward in respect of food safety since the Food Act of 1860. I beg to move.

The Deputy Chairman of Committees

I have already put the Question to the Committee whether this amendment be agreed to.

Lord Mottistone

I do not know whether the noble Earl will agree but I should be very happy to move his subsequent amendments formally later if my noble friend the Minister could talk about them now.

Lord Tordoff

Perhaps I can assist in this matter. I think that the problem here is that although it might be useful to group together all the noble Earl's amendments, nevertheless they impinge on other people's amendments, with which they are also grouped. I feel that it would be proper for the Committee to deal with the amendments in the groupings that exist on the list in order that other people's amendments which touch on similar subjects can be dealt with at the right time. I believe that we have to proceed along the lines suggested by the noble Baroness.

Baroness Trumpington

I listened with great interest to everything that the noble Earl had to say about public analysts. I am also concerned to maintain their status and their role. I accept that in some cases the same individuals may also be able to undertake the duties of food examiners. I believe that the proposed amendment, Amendment No. 111A, is unnecessary. Clause 5(6) of the Bill provides for any person, whether or not he is an officer of the authority, to act as an authorised officer for a food authority. Thus, a public analyst could be appointed as an authorised officer for a food authority if that authority thought it appropriate.

In view of that brief explanation I hope that the noble Earl will not press that particular amendment.

The Earl of Halsbury

In view of the assurance given to me by the Minister, I beg leave to withdraw the amendment standing in my name.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees

The noble Earl has spoken to Amendments Nos. 112 and 113. Does he wish to move them en bloc?

The Earl of Strathmore and Kinghorne moved Amendments Nos. 112 and 113:

Page 18, line 14, leave out ("A food authority") and insert ("An authority to whom this section applies").

Page 18, line 19, leave out ("A food authority") and insert ("An authority to whom this section applies").

The noble Earl said: I beg to move Amendments Nos. 112 and 113 en bloc.

On Question, amendments agreed to.

Clause 27, as amended, agreed to.

Clause 28 [Provision of facilities for examinations]:

9.45 p.m.

The Earl of Strathmore and Kinghorne moved Amendment No. 114: Page 18, line 31, after ("authority") insert ("in England and Wales, or a regional or islands council in Scotland,").

On Question, amendment agreed to.

Lord Carter moved Amendment No. 114A: Page 18, line 31, leave out ("may") and insert ("shall").

The noble Lord said: This amendment is not grouped with any other amendment. It brings us back to our old friends "may" and "shall". Local authorities acting as food authorities are given the power in Clause 28 of the Bill to provide facilities for the examination of food for safety purposes. The examination is defined as meaning a microbiological examination. The amendment is put forward on the basis that it will be preferable for there to be a duty to secure the protection of the public.

Behind that argument, as I am sure the Minister will recognise, is a concern among local authorities that the funding of the provision of such facilities and their upgrading in line with the rising expectations of the public should be enshrined in the Bill. It would be helpful if the Minister could give a clear commitment to local authorities, as she has done on previous clauses with other amendments concerned with resources, that the Government will place the safety of food above financial constraints in producing a proper system for the protection of the public in which the citizen may have confidence and within which the local authority may operate according to professional rather than financial criteria.

As I said, this matter was touched upon in previous amendments. I look forward to the Minister's assurance that she understands the argument behind the amendment. I beg to move.

Baroness Hooper

This amendment would require food authorities to provide facilities for the microbiological examination of food samples. We believe that to require them to do so would be unnecessary and would entail a waste of resources.

In most cases, environmental health officers make use of the resources of the public health laboratory service for the analysis of samples. The public health laboratory service has 52 area and regional laboratories in England and Wales. They are thus well dispersed across the country, and their facilities are readily available. The Committee may also be interested to know that local authorities sometimes also have access to National Health Service laboratories attached to hospitals. In Scotland, food samples from environmental health departments are examined in NHS laboratories. In some cases, environmental health officers send samples to the public analyst or indeed to a private laboratory. The Bill would not prevent them using any of these facilities for the examination of samples. For most local authorities, the facilities which I have just described are adequate.

However, Clause 28 of the Bill, which contains very similar wording to Section 77 of the Food Act 1984, is necessary for the small number of local authorities which have such a large number of samples requiring analysis that the facilities of the public health laboratory service and the National Health Service hospitals are unable to cope. These local authorities are able under this clause to provide additional facilities for their own use. As an example, the borough of King's Lynn provides its own facility because that authority has within its district major food manufacturing companies. The London borough of Hillingdon also provides its own facilities because that authority is responsible for Heathrow Airport and the large quantity of food produced in that area requires a large number of routine checks to be carried out. It is essential that we should retain the clause allowing local authorities to provide these facilities if they need them. I hope that I have reassured the noble Lord.

Lord Carter

I am extremely grateful to the Minister for that explanation. I believe that she has met the concerns we have expressed. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 28, as amended, agreed to.

Clause 29 [Procurement of samples]:

The Viscount of Falkland moved Amendment No. 115: Page 18, line 37, leave out ("or examination") and insert (", examination or other investigation").

The noble Viscount said: On behalf of my noble friend Lord Ezra, who is unable to be here, I should like to move this amendment. As currently worded, Clause 29(1) gives power to an authorised officer to procure samples for analysis or examination only.

Clause 28(2) defines "examination" as a microbiological examination, which limits it to a hygiene measure. Trading standards officers entering a manufacturing outlet to ensure that any foodstuff has not been adulterated or misdescribed are in effect limited in their powers of procurement to those samples for analysis. That inhibits the inspectors in their wish to examine labels, which is most important. Clause 30(1)(a) places a requirement on the officer in these circumstances to submit the sample to a public analyst.

Advances in modern technology have enabled manufacturers either at home or abroad to adopt techniques which can lead to adulteration and fraud on an extensive scale. By way of example, substances such as bone protein or blood powder are available on the open market and can be added to a meat product artificially to inflate the apparent meat content on analysis or disguise the presence of added water. Soft wheat has been used to adulterate Durum —hard —wheat products such as pasta.

Such frauds are extrememly difficult to detect on analysis. Moreover, there is as yet no scientific method to determine the presence of mechanically recovered meat in meat products —an ingredient of some concern to the Government's own Food Advisory Committee. Those are but a few of such problems facing food authorities in this respect.

Enforcement officers investigating these and other similar matters may need to consult, in addition to the public analyst, other experts including those in fruit, vegetables and honey, and meat and fish technologists, electron microscopists and forensic scientists.

Finally, Clause 29(2)(d) enables an officer to take samples, of any article or substance … which he has reason to believe may be required as evidence in proceedings". That is a welcome and necessary additional power and would, for example, enable the officer to produce to a court relevant ingredients, or even a piece of machinery or equipment, which had been used in the adulteration of the product. This subsection, however, is brought into effect by virtue of subsection (1) which again would appear to limit the procurement of such samples to those for analysis or examination. The proposed amendment would give the necessary flexibility to enforcement officers. I beg to move.

The Earl of Halsbury

I must oppose the amendment with everything that I have. In my view, it would completely undermine the status of public analysts and hallmarked —assuming that they are —food examiners and weaken the Bill beyond repair.

Public analysts are special people and hallmarked examiners ought to be so too. To allow run-of-the-mill investigators to provide an alternative would be to degrade public analysts and food examiners to the status of a luxury rather than a necessity. I am afraid that I must raise my voice against the amendment.

Baroness Hooper

The amendment introduces the concept of an investigation alongside that of analysis and examination. But there is no indication of what happens with a sample taken from an investigation. The purpose of this and subsequent provisions of the Bill is to provide an orderly framework for the gathering of evidence to be put before a court. That evidence is gathered in such a way that the court can be assured as to its expertise and validity. We believe that amendment would leave a loose end in this part of the Bill.

For the great majority of cases any analysis or examination of a food sample can be carried out by a public analyst or food examiner. It is of course possible that a public analyst or food examiner could seek expert opinion from elsewhere where such other expert opinion might be required.

The examples of bonemeal and blood products to meat products quoted by the noble Viscount would require analysis, and the clause as drafted would cover them. I understand from the noble Viscount that he envisages circumstances —for example, in cases of fraud and deception —where it might be necessary to take a sample not for analysis or microbiological examination, but for some other type of examination. I shall investigate whether there is a need to extend the provisions in the clause, and if necessary bring forward a more appropriate amendment at a later stage.

The Viscount of Falkland

I thank the noble Baroness. I shall convey her remarks to my noble friend. He has been more fortunate than I was in respect of my amendment, and I am happy to carry the good news to him. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 29 agreed to.

Clause 30 [Analysis etc. of samples.]

Lord Carter moved Amendment No. 116: Page 19, line 12, after ("area") insert ("either for the area where the initial investigation is being pursued or").

The noble Lord said: I should like to speak also to Amendments Nos. 117 and 117A. We have tabled the amendment because we fail to understand the reason for the restriction in Clause 30(1)(a) regarding the area in which a sample is procured. We see no reason why enforcement authorities should be restricted to submitting samples to the public analyst for the area in which they are procured. There is always controversy about the power of enforcement officers to continue their investigation outside their area. We foresee circumstances in which it would be possible that with the agreement of another authority, an enforcement officer may wish to pursue his investigations at a factory or importer's premises where further samples may be obtained.

It would be far more sensible if the restriction were removed so that the enforcement authorities could use a public analyst in the area where the sample was procured or in the area where the initial investigation was being pursued. There are considerable complexities in the food chain and I hope that the Minister is able to accept the amendment. I beg to move.

10 p.m.

Lord Mottistone

I support this amendment.

The Viscount of Falkland

Again, I speak on behalf of my noble friend Lord Ezra. In the vast majority of cases, authorised officers will act within their own areas under what is termed the home authority principle, sampling foodstuffs and ingredients and submitting them to their own public analyst. However, on occasions retail samples of products actually produced outside the authority on analysis are reported as either incorrect or suspect and further inquiries have to be undertaken at the point of manufacture.

Such inquiries have involved sampling the ingredients used in manufacture, a point particularly relevant given the ease by which certain ingredients can be used to assist in the mis-description of the product. The use of imitation cheese as a replacement for genuine cheese on pizzas is but one example.

The officer conducting those investigations outside his own area is given the relevant authority to enter such premises by virtue of Clause 32(1)(b) and to sample ingredients by virtue of Clause 29(2)(b). Under Clause 30(1)(a), he has to submit the samples obtained at the food manufacturer to the public analyst in the area in which it was procured. That appears to be an unnecessary technical restriction on enforcement.

The only analyst who will be able to analyse the ingredients and interpret the results to establish the effect they might have on the original product under investigation is the analyst who undertook the original analysis, working closely with the officer from his own authority who undertakes the actual investigation.

There is a precedent for this amendment under current food law by virtue of Section 81 of the Food Act 1984. Samples of milk obtained from a dairy outside the local authority area in pursuit of inquiries are deemed to have been procured within the local authority area. The equivalent of Clause 30(1)(a) is Section 79(1) of the Food Act 1984 which states: he shall submit it to be analysed by the public analyst for the area in which the sample was, or is deemed to have been, procured". Therefore, this amendment only reflects good and logical enforcement practice.

Lord Tordoff

Perhaps the noble Earl would now wish to speak to Amendment No. 117A which is in his name.

The Earl of Halsbury

The purpose of this amendment is to support the principle of flexibility tabled on this issue by, among others, the noble Lords, Lord Carter, Lord Gallacher and Lord Ezra, but specifically to assert the right of the public analyst who has been consulted to be further consulted and agree to any investigation being pursued elsewhere. It seems a matter of professional courtesy that that should be so.

Baroness Trumpington

It is clearly practicable that the same analyst should be used for the whole of one investigation when samples need to be taken in other areas. I am doubtful whether it is essential, as the noble Earl, Lord Halsbury, suggests, to obtain the agreement of a local analyst in every case because on some occasions that could cause difficulties for enforcement authorities, especially if, for example, the local public analyst was absent from the area at the time the sample needed to be taken.

However, I can agree in principle to the substance of these proposals. I must examine the wording further but in view of my assurances, I hope that noble Lords will not press these amendments.

The Earl of Halsbury

In view of the words of the noble Baroness, of course I shall not press the amendment this evening but will await the result of her further studies on this subject.

Lord Carter

I am grateful to the Minister for that assurance and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 117 to 118 not moved.]

Clause 30 agreed to.

Clause 31 [Regulation of sampling and analysis etc.]:

The Viscount of Falkland moved Amendment No. 119: Page 20, line 19, after ("may") insert (", after consulting such persons or organisations likely to be substantially affected").

The noble Viscount said: I speak also to Amendment No. 120. These are important powers and although the Ministry of Agriculture, Fisheries and Food consults on a voluntary basis, we would prefer a statutory requirement for it to do so. We accept that it may be necessary to hold urgent consultations especially in cases of dire emergency; for example Chernobyl-type incidents. However, if trading standards officers are to be appointed to the new food safety directorate, that will help. I beg to move.

Lord Carter

My name is attached to Amendment No. 120 which is grouped with this amendment. The Minister has been making helpful noises throughout the Bill about her wish to consult with other organisations so I shall be interested to hear her views on consultation with food authorities.

Baroness Trumpington

I am grateful for the proposals, for which I have considerable sympathy. Instead of giving endless explanations it might be better if I simply say that I am prepared to consider the matter. I hope we can bring forward a government amendment which will suit noble Lords.

The Viscount of Falkland

I thank the noble Baroness. I am encouraged by that remark; I shall pass it on to my noble friend. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 120 not moved.]

Clause 31 agreed to.

Clause 32 [Powers of entry]:

Lord Mottistone moved Amendment No. 121: Page 21, line 5, leave out ("whether within or outside") and insert ("within").

The noble Lord said: I speak also to Amendment No. 122, for which Amendment No. 121 is in effect a paving amendment. One imagines the purpose of this part of the clause is to grant an authorised officer a right to enter premises, notably vehicles, outside his authority's area only when he has reasonable grounds for suspecting a contravention of the law, particularly in regard to a food safety matter.

The amendment is somewhat vague but I seek to ensure that routine inspection of premises should be the prerogative of the local enforcement authority which, through the registration procedure, will be best acquainted with the operations carried out on the premises. The outside authority should be discouraged from extending investigations beyond its own territory. I am not sure that the amendments as phrased convey that intention adequately. I can understand that the wording needs to be improved, but the purpose is as I have described. I beg to move.

Baroness Trumpington

I hope my explanation will satisfy my noble friend. If it does not, we will be considering many other points at some future time. So why not this.

Enforcement officers are employed by food authorities which are responsible for their actions and the proper use of their resources. Any enforcement officer who entered premises outside his own area would only do so if it was a necessary part of following up an inquiry originating in his own area. For example, it would be necessary for an officer to cross borders when following up an inquiry about consignments of unfit meat. Also, if an officer needed to check the accuracy of an organic label it is likely that he would have to follow up his inquiry on a farm situated in a different area.

To restrict his power of entry by always requiring suspicion of a contravention within his own area would inhibit the proper conduct of an inquiry. However, we do not wish to give enforcement officers unrestricted and complete freedom of movement. It is intended that they will be obliged to notify the food authority of the area entered giving reasons for so doing. This will probably be achieved in one of the codes of practice referred to in Clause 39. I therefore believe my noble friend's concerns to be unwarranted. I find my explanation perfectly logical; I hope my noble friend will also.

Lord Mottistone

I find my noble friend's explanation perfectly logical because she has brought into assistance Clause 39, which did not occur to me. She has the power to do that when she wishes. The object of my amendment is met, but I think it might be improved and perhaps we might come back at a later stage. For the moment I beg leave to withdraw Amendment No. 121.

Amendment, by leave, withdrawn.

[Amendment No. 122 not moved.]

The Viscount of Falkland moved Amendment No. 123:

Page 21, line 11, at end insert — ("(d) to take such photographs as he considers necessary for the purpose of any examination or investigation under section 32(1)(a) above,").

The noble Viscount said: In moving this amendment I shall speak also to Amendment No. 124. It has always been a contentious issue as to whether enforcement officers are entitled to take photographs for the purpose of ascertaining whether there is or has been on the premises any contravention of the provisions of an Act and of similar consumer protection legislation. We are therefore seeking an assurance from the Minister that the taking of photographs is included within the wording of, for the purpose of ascertaining".

I beg to move.

Baroness Hooper

Enforcement officers are entitled to take photographs during their investigations into food law offences, just as any citizen can take photographs subject to specific prohibitions. The absence of an express provision in existing law should not have prevented them from doing this to date. There is nothing in the Bill which will prevent them from continuing to do so.

Specifying the power to take photographs would, we believe, be exclusive and would imply that other forms of recording evidence were barred. This is not, and should not be, the case. I would add that neither the Consumer Protection Act 1987 nor the Trades Description Act 1968 refers to the taking of photographs. To make an explicit reference here could cast needless doubt on the use of photography by enforcement officers operating under those Acts. Therefore we do not believe that this amendment is necessary.

The Viscount of Falkland

I thank the noble Baroness very much for her help and guidance. I shall discuss the matter with my noble friend Lord Ezra. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 124 not moved.]

Lord Mottistone moved Amendment No. 125: Page 21, line 28, leave out ("one month") and insert ("28 days").

The noble Lord said: This is a small amendment. It is desirable to have greater precision as regards the duration of a warrant than a month which can vary in length of time. Twenty-eight days would be more suitable. Until Amendment No. 98 was accepted by the Committee, this amendment was the only place in the Bill in which time was expressed other than in days. It was therefore consistent. That fact has been breached by the other amendment which I shall seek to amend at a later stage of the Bill. I beg to move.

Baroness Hooper

I believe that this amendment is also unnecessary. By virtue of the Interpretation Act 1978 "one month" would be interpreted as one calendar month. That is a convenient approach since it means that a warrant issued, say, the third day of one month will expire by the third day of the following month whatever the length of the month may be. One month is used for the lifetime of a warrant in current legislation and also in other consumer protection measures. That works perfectly well.

The amendment would make the Food Safety Bill anomalous in referring to 28 days. We therefore believe that no useful purpose would be served in agreeing to this amendment and I trust that my noble friend will withdraw it.

Lord Mottistone

This amendment is not worth pushing. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Viscount of Falkland moved Amendment No. 126: Page 21, line 35, leave out ("inspect") and insert ("require the production of, inspect and take copies or).

The noble Viscount said: In moving this amendment I shall also speak to Amendment No. 128. As with Amendment No. 123, we are seeking an assurance that the word "inspect" includes the requirement to produce, inspect and to allow the taking of copies. Parliamentary draftsmen are reluctant to give examples of what is meant by ascertaining or inspecting. Enforcement officers are content to leave the terms vague as long as there is an assurance, which I hope the noble Baroness can give, that the enforcement officers can say to the magistrate that it was Parliament's intention that these words should be construed widely and not narrowly.

As with Amendments Nos. 123 and 126, Amendment No.128 seeks an assurance that the use of the word "detain" means that copies can also be taken when there may not be a wish actually to retain the originals. That will enable the production of copies at a later date if the originals have perchance disappeared. I beg to move.

10.15 pm.

Baroness Hooper

Our proposal in the Bill is to enable officers to seize evidence for production in court—hence the seizing of originals is more appropriate than taking copies. Nevertheless, if the proprietor needs copies, they would and could be supplied to him. The power to inspect and seize the originals implies a power to take copies too, and has always been interpreted in that way. I therefore hope that the noble Viscount will feel able to withdraw the amendment.

The Viscount of Falkland

I again thank the noble Baroness for that guidance. We shall examine what she has said. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mottistone moved Amendment No. 127: Page 21, line 35, after ("any") insert ("relevant").

The noble Lord said: In Clause 32 the authorised officer has an enormous amount of power which is underpinned by the rather frightening, although I am sure necessary, Clause 33(1). It is important that he should have access only to relevant records, as specified in my amendment. It cannot be right that the officer should be able to go trampling all over the establishment and look at all records of the food business, including, for example, personnel records, records of trading over many years, and so on.

As the Bill is presently drafted, he could do all those things. I am sure that it is not the Government's intention, and probably would not be the intention of the food authority, that he should do so. But one knows how aggressive officials can become if they are given great power. It would be wise for the Government to accept the amendment, or if they cannot accept it, to consider whether my fears are not justified and that something of this kind needs to be done. I beg to move.

Lord Lucas of Chilworth

I support my noble friend. I have in mind matters such as VAT records. Where we are attempting to protect one agency against the incursion of another agency, it would be quite wrong to give a food enforcement officer powers to examine the VAT records or other matters which are confidential between the business and Customs and Excise and have nothing to do with the matters dealt with in the Bill. I hope that my noble friend the Minister will give sympathetic consideration to the amendment.

Baroness Hooper

I hope I am always sympathetic. We always look very hard at amendments which are put before us. However, we believe that this amendment, once again, is unnecessary. Examination of records will take place only when relevant to the enforcement of the Bill, and any regulations or orders made thereunder, when the contravention or suspected contravention is being investigated. We do not believe that it is necessary to limit further an authorised officer's powers. I trust therefore that my noble friend will feel able to withdraw the amendment on that basis.

Lord Airedale

The words which the Minister has just used do not appear in the Bill. If she is not prepared to insert the word "relevant" which the amendment requires, is she prepared to insert in the Bill the words which she has just used in attempting to demonstrate that the word "relevant" is unnecessary?

The point made by the noble Lord, Lord Lucas, was a very good one. Indeed, you can get an enforcement officer investigating matters which are no business of his. In my view, this is an important matter.

Baroness Hooper

My understanding is that the powers of entry of authorised officers are limited to those set out in Clause 31(1). Inspectors will therefore be able to examine records only relating to the activities covered by the Food Act and regulations or orders made thereunder.

Lord Mottistone

I am afraid that the noble Lord, Lord Airedale, put his finger right on the point. My noble friend actually used the word "relevant" when describing what the officers are allowed to do. Moreover, she now refers to a part of the Bill which will be enforced by regulation. Therefore, we must take her word for it that the regulation will be stiff enough. When she uses that argument, she is resisting the word "relevant". However, it does not seem to me to be at all duplicatory, or against the principle of what my noble friend is saying is in the Bill, to insert the word "relevant" where I wish it to be.

I am not at all satisfied, but I shall not take it further at this time of night because it might upset the whole applecart; and, in any event, there is probably not a sufficient number of noble Lords present for a Division. However, if this discussion was taking place at an earlier time of the day, I should certainly test the feeling of the Committee on the matter. I shall return to the issue at the next stage of the Bill's proceedings, unless my noble friend thinks carefully about it and puts forward a similar amendment. At this stage, I reluctantly beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 128, 129 and 130 not [moved.]

Lord Gallacher moved Amendment No. 131: Page 22, line 3, at end insert — ("( ) An authorised officer entering premises by virtue of this section, or of a warrant issued under this section, may require any person to afford him such facilities and assistance with respect to any matter or things within that person's control or in relation to which that person has responsibilities as are necessary to enable the authorised officer to exercise any of the powers conferred on him by this section.").

The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 132. Both amendments are in effect the same. Therefore I take it that what I say about this amendment will suffice if it is decided to proceed with Amendment No. 132.

What is proposed is an additional clause which would require persons in control of a food business to co-operate with the enforcement officers in order to facilitate an investigation. That would include permitting interviews to take place on the premises, ensuring that staff were available for interview, and so on. It has been represented to us that the powers being sought in this proposed new clause are compatible with existing provisions under the Health and Safety at Work etc. Act.

I gather that from time to time enforcement officers encounter a measure of obstruction. In order to counteract that situation wherever it arises, it is suggested that an additional clause along the lines set out in Amendment No. 131 would be helpful. I beg to move.

Baroness Hooper

Clause 33 already provides for the prosecution of anyone who obstructs or fails to assist the enforcement officer in the execution of his duties without reasonable cause. It is therefore implied that an enforcement officer would be able to require any person to assist him in carrying out his duties. I note the reference made by the noble Lord, Lord Gallacher, to the Health and Safety at Work etc. Act, but my understanding is that that Act is unusual in containing such a provision. Therefore I trust that in the light of the assurance I have given in respect of Clause 33 the noble Lord will feel able to withdraw the amendment.

Lord Gallacher

I am grateful to the Minister for that reply. It has been represented to us that obstruction under the Bill may be encouraged by the fact that the fine for obstruction, which I believe is of the order of £2,000, could seem to some people to be worth incurring to avoid an even greater fine if they did not obstruct and a more serious offence was detected. That is partly the thinking behind the amendment.

I take the Minister's point that under Clause 33 provision is already made by implication for that eventuality. That is to some extent reassuring. The fact that the Health and Safety at Work Act is unusual in that regard does not, I hope, exclude the possibility of picking up better features in other legislation. The Committee will be aware—this is a point to which we shall come—that there is a substantial body of opinion in this country which takes the view that enforcement would be better undertaken by a body akin to the Health and Safety at Work Commission, enjoying somewhat similar powers to those of that commission.

I do not wish to press the amendment this evening, but nevertheless it may be necessary for us to look at it again. I do not regard the fact that we have chosen to refer to another piece of unusual legislation necessarily excludes emulation. I beg to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 132 to 134 not moved.]

Clause 32 agreed to.

Clause 33 agreed to.

Clause 34 [Time limit for prosecutions]:

Lord Lucas of Chilworth moved Amendment No. 135: Page 22, line 39, leave out ("three") and insert ("one").

The noble Lord said: I should like to speak also to Amendment No. 136, which is consequential on Amendment No. 135. The amendments would reduce the outside limit of three years for prosecution to one year and from one year to six months. Three years is too long, because memories and circumstances surrounding offences would be much impaired, making it difficult to prove whether a particular product is the cause of a particular complaint. It is inconceivable that an injury would not manifest itself well within three years of the consumption. No injury or distress can be caused, under the terms of the Bill, without a foodstuff having been consumed. It is surely inconceivable that that would not manifest itself well within three years. I cannot think of a food product which has a shelf life of up to three years, but perhaps my noble friend the Minister can give an illustration.

There is a further point to which I should like an answer, though not necessarily tonight. Let us suppose that a company was prosecuted after it had changed hands. Would that sale become unlawful or in any way endangered because there had been no disclosure of an impending prosecution? That could happen, especially in a small retail business. Alternatively, if there was a hint that there might be a prosecution, that investigations were continuing, and that impending prosecution was not disclosed, would it invalidate the sale? There are two issues here. I am mostly concerned with the former, but I should like an answer to the latter at some time. I beg to move.

10.30 p.m.

Baroness Hooper

I am grateful to my noble friend for tabling this amendment, but I believe that it is inappropriate. The time limits of three years from commission/one year from discovery mirror to a large extent the existing provisions in the 1984 Food Act, although I recognise that without the previous time constraints on the handling of samples they will bite more in the future. However, I believe our proposals strike the right balance. They allow sufficient time for enforcement authorities to prepare a case but still require the case to be taken to court within a reasonable period. These time limits are completely in accord with those found in other consumer protection legislation such as the Trade Descriptions Act 1968 and the Consumer Protection Act 1987.

I cannot offhand think of an example to give to my noble friend as he requested. But on the subject of the successor company and whether it could be prosecuted, I believe it would be normal legal practice to ensure that the warranties and disclosure in relation to the transfer of the business would cover this. Nevertheless, I shall look into it and if necessary write further to my noble friend on the point. In view of my explanation, I hope that my noble friend will be able to withdraw his amendment.

Lord Lucas of Chilworth

I am most grateful to my noble friend for her explanation. I am of course somewhat amused that she calls in aid the 1984 Act when it suits her, but when it suits me she feels that it is not appropriate. However that is the way matters go and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 136 not moved.]

Clause 34 agreed to.

Clause 35 [Punishment of offences]:

The Viscount of Falkland moved Amendment No. 137: Page 22, line 42, leave out subsection (1).

The noble Viscount said: Perhaps I may speak to Amendment No. 138 as well as moving Amendment No. 137. It has always been argued by the enforcement officers, unsuccessfully, that the offence of obstruction should carry the same penalty as the offence itself. Otherwise, if it is lower by £1,800 for offences under Sections 7, 8 or 14, which are the important sections, there is a clear advantage or incitement for prospective offenders to obstruct the enforcement officer. The same remarks apply to Amendment No. 138. I beg to move.

Baroness Gardner of Parkes

I wish to support the principle of the amendment. I think that this is a point which I raised at an earlier stage of the Bill. It is very wrong that an obstruction should carry any less penalty than if someone had committed the offence. I have quoted examples and it is well known that people obstruct. There is a parallel with drunken driving where if a person refuses to give a breath test or blood test, that person is treated as having committed the offence and the penalty is the same. I think that this should be parallel. Whether the wording is right I do not know, but it is an important issue.

Baroness Hooper

Despite what the noble Viscount and my noble friend have said, I feel it is difficult to justify an increase in the penalty for an offence which in itself is not a contravention of the main provisions. In determining what levels of penalty are appropriate the possible motive for an offence should not be relevant. We have in any case increased the penalty which is currently available for comparable offences in the 1984 Food Act. At present there is only a maximum of a £2,000 fine and no possibility of imprisonment.

The Viscount of Falkland

At this late hour I have tried to follow closely what the noble Baroness has said. It still seems to me to be strange, I am not quite happy about the problem of incitement and encouragement for people to obstruct. I shall take this away and consult with my noble friend. I reserve the right to return to the matter at a later stage, if necessary. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 138 not moved.]

Baroness Gardner of Parkes moved Amendment No. 139: Page 23, line 8, leave out ("8 or 14") and insert ("or 8").

The noble Baroness said: Clause 35(3) rightly proposes increased penalties for offences under Clauses 7 and 8 which deal with rendering and selling food which is injurious to health. This reflects the importance of a safe food supply. As it stands, the Bill would impose similar penalties for offences under Clause 14 which deals with the nature, quality or substance of the food supplied. My amendment would remove Clause 14 offences from the higher penalty of £20,000 imposed under the subsection. Instead they would be dealt with under paragraph (b) where the penalty is the lower statutory maximum. This is set by ministerial order under the magistrates court and currently stands at £2,000. The suggestion is in line with my contention that this difference in penalties should not exist.

I do not wish to suggest that offences under Clause 14 are unimportant, but they seem less serious than those under Clauses 7 and 8. The latter, as I have said, deal with food safety. A person guilty of an offence under these clauses would thus be selling something which could harm or even kill someone. Clause 14 on the other hand deals with selling food not of the quality or the substance demanded by the purchaser. This might mean selling non-vintage wine as vintage or a restaurant claiming that vegetables are fresh when they might be frozen or tinned. I beg to move.

Baroness Trumpington

I can assure my noble friend that we have good reason for proposing an exceptional summary maximum fine of £20,000 for offences committed under Clause 14. This is an important provision which covers among other things the cases where false claims cause harm to those who are particularly vulnerable or with special needs such as those who unfortunately suffer from diabetes. We clearly need an effective penalty to match the seriousness of the harm that can be caused where the product does not meet the consumer's particular requirements. That does not mean that fines of this scale will be imposed for less serious offences. Indeed the concern is normally that courts impose inadequate fines.

There are two other reasons why we need the £20,000 maximum fine. If a large company is involved, its potential for causing harm to quite a wide range of people is very large indeed. A mere fine of £2,000 in a magistrates' court may not always be an adequate deterrent. If one is not merely being negligent but also plans to make a lot of money through selling debased food, again one might well choose to take the risk if the maximum fine the magistrates can give is £2,000. For these reasons, I feel that we must retain the £20,000 maximum that we have. I accept that there is always the possibility of proceedings on indictment for the most serious breaches of Clause 14, but our experience is that the vast majority of food law cases are considered in the magistrates' court. We must therefore ensure that adequate penalties are available to the magistrates for use if necessary. I trust that my noble friend will accept that explanation.

Baroness Gardner of Parkes

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

Amendment, by leave, withdrawn.

Clause 35 agreed to.

Clause 36 agreed to.

Clause 37 [Appeals to magistrates' court or sheriff]:

Baroness Gardner of Parkes moved Amendment No. 140: Page 23, line 37, at end insert ("or the terms of that notice").

The noble Baroness said: This is a small probing amendment. Clause 37 deals with appeals against improvement notices. The amendment simply seeks to make clear that an aggrieved person might have the right to appeal in respect of part of an improvement notice as well as against the whole of such a notice. It could be that the proprietor of a business accepts that nine-tenths of what he is asked to do is reasonable but objects to one-tenth. The amendment would allow him to appeal against that one-tenth. My noble friend earlier gave an undertaking to re-examine the wording of Clause 10 when we debated Amendment No. 38 on the form of improvement notices. This is a rather similar point which I hope may be viewed favourably.

It may be that the amendment is unnecessary because the concept of an appeal against part of a notice may be contained within the existing clause. I should very much like my noble friend to clarify whether that is so. Does the wording of the clause follow that of the existing legislation in which a precedent has already been established? If so, there is clearly nothing to worry about; but if that is not the case clarification in the Bill may be appropriate. I beg to move.

Baroness Hooper

I accept that an improvement notice may contain a number of different deficiencies, all of which need to be put right. I can assure my noble friend that Clause 37 already allows an aggrieved person to appeal against the individual requirements of an improvement notice. Her amendment is therefore unnecessary.

I also intended to remind my noble friend —she has already mentioned it —that I have already agreed to look again at Clause 10. That clause states at present that the enforcement officer may specify the steps which the owner of a food business must take in order to comply with an improvement notice. I explained that we do not intend to involve food businesses, especially smaller businesses, in any unnecessary expense. We should prefer to specify the end result rather than the means by which the result should be achieved. I trust that that reassures my noble friend.

Baroness Gardner of Parkes

I thank my noble friend for that reply and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mottistone moved Amendment No. 141: Page 23, line 39, leave out ("11(5)") and insert ("11(6)").

The noble Lord said: My advisers have spotted a printing error which the amendment corrects. I beg to move.

Baroness Hooper

I commend my noble friend for his most thorough scrutiny of the Bill which brought this typing error to light. I have no hesitation in accepting the amendment.

On Question, amendment agreed to.

Lord Lucas of Chilworth moved Amendment No. 142: Page 23, line 39, leave out ("or").

The noble Lord said: In moving Amendment No. 142 I should like to speak also to Amendments Nos. 143 and 144. Amendment No. 142 is a paving amendment for the two subsequent amendments. Even at the risk of slowing down the proceedings of the Committee, I feel that the amendments are very important. They introduce two additional rights of appeal. I know that it would be the wish of the Government to draw a fair balance between the supplier of food and the retailer.

The argument for all the amendments is the same. Amendment No. 143 would introduce a right of appeal in relation to Clause 12 of the Bill, which, the Committee will recall, provides powers for enforcement authorities to serve emergency prohibition notices. After the notice has been served the authorised officer will apply for an emergency prohibition order. There is provision for compensation by the enforcement authority for any loss suffered by the proprietor of the business in complying with the emergency prohibition notice if the magistrates' court or the sheriff refuses to impose the emergency order.

In welcoming the compensation provision one has to recognise it perhaps as a means of discouraging over-zealous enforcement officers from serving unnecessary notices. However, the amount of compensation is unlikely to make up for the potential adverse effect on the business of a retailer who has a prohibition notice displayed in a prominent position as required by Clause 12, even if that notice is displayed for only a few days.

The enforcing authorities are provided with extensive new powers. My noble friend Lord Mottistone emphasised that when he spoke to Amendment 127. I believe therefore that the Government should be seeking to strike a fair balance because the new powers are quite considerable. Those powers include the ability to shut down a business, which would obviously affect its prosperity and even its very existence.

Until the hearing in a magistrates' court there is nothing under this Bill —at least so far as I can see —that the proprietor can do to put his case. It seems only just and equitable therefore for a retailer, or any other food business proprietor, to have the immediate right of appeal against a prohibition notice. Hence Amendment No. 143, which provides for such an appeal.

10.45 p.m.

Amendment No. 144 to Clause 37 would for the same reasons provide an immediate right of appeal in respect of the powers of enforcement officers to issue a notice, or seize goods under Clause 9(3) of the Bill. That subsection enables authorised officers either to give notice to a person in charge of food that the food cannot be used for human consumption and can only be moved if allowed by the notice, or to seize food and remove it to be dealt with by a justice of the peace or sheriff, as the case may be.

It will be an offence knowingly to contravene the requirements of a notice under this clause, and I therefore suggest that this right of appeal common to both amendments is only fair. I regard this amendment as fundamental and serious. I shall be interested to hear what my noble friend the Minister has to say in response. I beg to move.

Lord Mottistone

I should like strongly to support my noble friend's amendments.

Baroness Hooper

This is a complex subject and I shall endeavour to describe as clearly as possible the procedure. An enforcement officer may serve an emergency prohibition notice on the proprietor of a food business if he is satisfied that it presents an imminent risk of danger to health. The wording is important because it means that he cannot serve an emergency prohibition notice merely on suspicion, and it also means that the danger must be unusually great.

The officer must apply to a court within three days for an emergency prohibition order, and he must give the proprietor at least one day's notice of his intention to do so. If he does not apply, the notice lapses and the authority has to compensate the proprietor for any losses that he sustained as a result of complying with the notice. If the enforcement officer does apply, the proprietor has the right to appear in court and to call witnesses to contest the application. If the court refuses to make an order confirming the prohibition, again the authority has to pay compensation.

A proprietor is therefore assured that if the enforcement officer intends to pursue the matter there will be a speedy start to proceedings and he will get automatic compensation in full if the enforcement officer's decision is not upheld. A right of appeal against an emergency prohibition notice is therefore unnecessary.

My noble friend has also asked for an appeal against an enforcement authority's decision to serve an emergency prohibition order. As I have just explained, an emergency prohibition order is not made by the enforcement authority, but by the magistrates' court. If my noble friend will look at Clause 38 he will see that the Bill allows a proprietor to appeal to the Crown Court against the magistrates' court's decision. I therefore hope that on that basis my noble friend will feel able to withdraw his amendment.

Lord Lucas of Chilworth

I am grateful to my noble friend the Minister for her explanation. Perhaps I may just say to my noble friend Lord Mottistone that I am grateful to him for his support. It is late. I think I have taken in what the Minister had to say; namely, that the enforcement officer has to make his application for the order within three days, and that he has to give one day's notice. Nevertheless an immense amount of damage can be done to the business in that time. It is exactly that problem, particularly with a small business, that worries me.

I accept that under Clause 38 the injured party has a further right of appeal to the Crown Court from the magistrates' court, by which time the damage has been done to his business, because notices in a prominent place attract the interest both of the passing public and indeed the media.

Were it earlier in the day, I should have liked to pursue the argument. As it is, I do not think that the Committee would thank me for doing so now. I should like to consider carefully the noble Baroness's response and indeed take further advice on it. But it is my intention to come back to this matter at a later stage in the Bill, when perhaps this Chamber may have the benefit of making a judgment. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 143 and 144 not moved.]

Clause 37, as amended, agreed to.

Clause 38 [Appeals to Crown Court]:

Baroness Hooper moved Amendment No.145: Page 24, line 21, leave out ("determination") and insert ("dismissal").

The noble Baroness said: This is a technical amendment and I hope that at this late hour the Committee will bear with my somewhat technical explanation. It is designed to ensure that enforcement authorities do not have two avenues of appeal to a higher court if they wish to challenge the determination of an initial appeal by a magistrates' court. This may be relevant, for example, where a magistrates' court has upheld an appeal against the issue of an improvement notice and the enforcement authority wishes to appeal against that decision.

Clause 37 permits appeal to a magistrates' court against various decisions of an enforcement authority. As presently drafted, Clause 38(a) would enable any person aggrieved by the result of such an appeal to take a further appeal to the Crown Court. This is not however the usual avenue of appeal for a prosecutor, in this case the enforcement authority. Normally a prosecutor would appeal by way of case stated to the Divisional Court.

Therefore, the amendment will ensure that enforcement authorities appeal only to the Divisional Court and not to the Crown Court. The citizen will continue to have his present recourse to the Crown Court.

I hope that the Committee can accept this amendment. I beg to move.

On Question, amendment agreed to.

Baroness Gardner of Parkes moved Amendment No. 146: Page 24, line 25, at end insert ("; or (c) any order by a magistrates' court as HS mentioned in section 9(6) above.").

The noble Baroness said: I must at the outset apologise for a drafting error in this amendment. In fact Section 9(6) does not refer to a magistrates' court but rather to a justice of the peace. Thus, the amendment should not have mentioned a magistrates' court. Nevertheless, I should like to pursue the principle of the amendment.

The previous clause, Clause 37, makes provision for those who are aggrieved by the decisions of the enforcement authorities to appeal to a magistrates' court, or in Scotland to the sheriff. Clause 38 provides for those who are still not satisfied by the magistrates' decision to appeal further to the Crown Court.

As I read the Bill, it does not seem to make provision for appeals under orders made under Clause 9(6). That, the Committee will recall, deals with the orders made by a justice of the peace either to destroy suspect food or to release it as not being unfit with compensation to the owner. I therefore seek clarification from my noble friend the Minister. Can she tell me if I am wrong and an appeals procedure against such orders is contained in the Bill as it stands? If not, is that an oversight? If so, what is the justification for not allowing appeals on this part of the Bill when appeals are allowed on other parts? I beg to move.

Baroness Hooper

I am grateful to my noble friend for explaining the error in her amendment. We believe that the provisions of the Bill are necessary because it is often important to have seized food dealt with quickly, especially if there is a large quantity of it. The need for rapid action arises because of the risk that the food could otherwise be used for human consumption. It could also deteriorate substantially if there were delay.

On the question of an appeal, if the owner of the food is aggrieved by the decision of the justice of the peace to condemn it he can apply to a court for judicial review of the decision. I hope that helps my noble friend.

Baroness Gardner of Parkes

I thank my noble friend for that reply and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 38, as amended, agreed to.

Clause 39 [Power to issue codes of practice]:

Lord Gallacher moved Amendment No. 147: Page 24, line 31, after ("may") insert ("after consulting such persons or bodies as they think it appropriate to consult").

The noble Lord said: Amendment No. 147 is grouped with Amendments Nos. 148, 149 and 151. Effectively Amendments Nos. 147, 148 and 149 are similar amendments, differing only very slightly in their terminology. Therefore if after I have moved Amendment No. 147 the Minister has any sympathy with any of the three amendments and cares to indicate which one, we shall be very happy to co-operate by formally moving that amendment.

Amendment No. 147 again concerns the question of the width of consultation and openness about decision-making which we consider to be essential if the public are to be confident about the way food law is implemented and administered.

We believe it is important that when issuing codes of practice Ministers are seen to be active in addressing and duly considering the widest possible spectrum of interest. We therefore advocate the inclusion of a statutory obligation on Ministers to consult appropriate persons or bodies when making these codes to ensure that confidence in good manufacturing practice is maintained and bolstered. I beg to move.

Baroness Trumpington

As we have already announced, we shall be setting up an implementation advisory committee to advise on the issue of codes of practice. The committee will involve representatives of the enforcement interests as well as the main central government departments involved.

I know that there are strong views concerning this matter. I wish to be as gracious to the noble Lord, Lord Gallacher, as he was to me earlier. I am prepared therefore to see formal consultation with interested parties written into the Bill. With the permission of the Committee, I shall consider whether we can apply the formula that we used in Clause 26 to this clause and bring forward an appropriate government amendment at a later stage. I hope that will suit the Committee.

Lord Gallacher

In the light of that assurance, for which I thank the Minister, I beg leave to withdraw the amendment.

Amendment, by leave withdrawn.

[Amendments Nos. 148 and 149 not moved.]

Lord Lucas of Chilworth moved Amendment No. 150: Page 24, line 34, at end insert— ("The Minister shall issue a general code of practice as regards the execution and enforcement of the powers in this Act which code shall be available by the date on which this Act comes into force").

The noble Lord said: In moving Amendment No. 150, perhaps I may take it that the remarks the Minister has just made might apply equally to this amendment. If she will indicate that they do so, I need go no further. Since she does not do so, I shall have to go further.

We have talked about the powers that are contained in this Bill for enforcement authorities inspecting factories, seizing food, issuing prohibition and improvement notices, and so on. That can be done without recourse to a higher authority. Since the enforcement agencies will be spread across the country there will be enormous scope for a variety of interpretations of the new law by the different authorities. We see this already in the way in which trading standards officers look at various matters. We have observed over the past 12 or 18 months in regard to matters such as Sunday trading that a multiple supermarket chain, for instance, is frequently faced with having to comply with different interpretations of exactly the same legislation in its different branches in different areas of the country.

Amendment No. 150 would require the issue by the Minister of a general code of practice for the purpose of providing guidance to enforcement officers on interpretation and implementation. There is an obvious advantage in greater uniformity. It would reduce costs of prosecution for all parties. It would certainly facilitate a better understanding.

In support of my argument, I draw an analogy with the existing manual of practical guidance for inspectors, which was drawn up for use with weights and measures legislation. Although that is a statutory code it provides a good deal of information which may be relevant.

If the Government consider that weights and measures legislation is sufficiently important to issue a statutory code of practice on enforcement, surely something as important as food safety law enforcement is worthy of similar treatment. To be effective such a code would need to be issued to coincide with the date on which the new Food Safety Bill comes into force. If there were a code of practice it ought to support the defender in a prosecution under the new due diligence clause contained in the Bill. That is an eminently suitable vehicle for such a code. I beg to move.

Baroness Trumpington

I need no convincing that we should issue codes of practice, in particular to ensure even enforcement of the Bill. That point was made by many interested parties during our review of food law. However, drawing up a comprehensive general code would be an enormous task for central government departments and local authority interests. Many areas of the legislation are in fact already familiar and evenly enforced throughout the country.

I believe that our time and energies would be much better spent producing codes of practice on specific points or areas of concern. These might include areas which are controversial or new, where experience of local authorities can usefully be shared or where enforcement might vary quite widely without central guidance. For example, we have in mind a code of practice indicating the frequency of inspection appropriate for different categories of premises.

Moreover, given the amount of work involved and the fact that it will take time to consult other interests, I do not think that it would be possible to draw up a major comprehensive code before the Bill is enacted. Given the commitment to consult, which we have just accepted, the codes envisaged may also take rather longer to finalise.

I hope that in view of my explanation, my noble friend will withdraw his amendment.

Lord Lucas of Chilworth

Were it a different time I should be happy to debate the matter further. However, at this time of night I am left with no option but to withdraw my amendment. I do not find my noble friend's answer satisfactory. I am not looking for a comprehensive code; I said a "general code". That is not beyond the wit of man or woman. It is certainly not beyond the wit of officials because there are sufficient codes of practice from which something can be drawn. If it is proper to draw up a code with regard to the number of inspections or visits carried out under various and different categories, it is not beyond the wit of man to draw up a general code to set a general interpretation.

I hope that my noble friend will not take offence, but the reasons for rejecting my amendment could have been based on sounder grounds. I must look carefully at her answer. I can see flaws in it and may well wish to return to the matter at another stage. Sadly, I have no option but to beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Lord Stanley of Alderley had given notice of his intention to move Amendment No. 151: Page 24, line 40, at end insert— ("(2A) Before issuing any code of recommended practice under subsection (I) above, the Ministers or the Minister shall consult with such persons or bodies as appear to them to represent the interests of food authorities, producers of food sources, the food industry, and consumers.").

The noble Lord said: I thank my noble friend for the remarks she made to the noble Lord, Lord Gallacher. I hope that she has a good night's sleep and I am pleased that we have finished in these terms. I shall not move the amendment.

[Amendment No. 151 not moved.]

Clause 39 agreed to.

Clause 40 [Power to require returns]:

11 p.m.

Lord Tordoff moved Amendment No. 152: Page 25, line 3, at end insert ("and, except insofar as they disclose information about any trade secret, the Minister shall as soon as is practicable arrange for the publication of all such reports and returns.").

The noble Lord said: This is not an amendment of which I am very proud and the more I look at it the less I like it. However, it touches on an important point. It may well be that one would have to come back with a different amendment at some stage.

Clause 40 is about, among other things, sending reports to Brussels on compliance with EC regulations. We believe that that information should be capable of being seen by the public. It is in that context that we want those reports to be made public. I suspect that the amendment does not achieve what we have set out to do. However, I should be interested to know whether the Government have sympathy with the thought that those matters should be in the public domain. I beg to move.

Baroness Trumpington

I rather agree with the assessment of the noble Lord, Lord Tordoff, of his own amendment. However, I should like to consider the matter further with a view to a possible government amendment later in our proceedings. How about that?

Lord Tordoff

It is Christmas twice on the same day. I am most grateful to the noble Baroness and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 40 agreed to.

Clause 41 [Default powers]:

Lord Carter moved Amendment No. 153: Page 25, line 10, after ("order") insert ("after holding a local inquiry").

The noble Lord said: I am not sure that this amendment is in the right place in the Bill but Clause 41 as drafted introduces yet another default power. We consider that a local inquiry should be held before the Minister makes an order relieving an authority of its statutory responsibilities.

Under Clause 41(2) the Minister may cause a local inquiry. It may be that the effect of this amendment would be achieved by substituting the word "shall" for "may" in that subsection. This is a probing amendment and I should like to hear the Minister's views. I beg to move.

Baroness Hooper

I assure the Committee that declaring a council to be in default is not a decision which the Government would take lightly. Clause 41 permits Ministers to hold a local inquiry first, and when the facts were in doubt we would normally do so. However, there are occasions when the time and expense of a local inquiry could not be justified. For example, in an emergency, the Government might need to take immediate action to protect public health. Alternatively, a local authority might be quite prepared to admit that it was in default; for example, if it were unable to provide a service because its employees were on strike.

Therefore, I do not believe that a local inquiry should be required in all the circumstances. I hope in view of that explanation that the noble Lord will feel able to withdraw his amendment.

Lord Carter

I am grateful to the Minister for that explanation. I shall read carefully what she said and, in the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 41 agreed to.

Lord Gallacher moved Amendment No. 154: After Clause 41, insert the following new clause—

("Duties of Minister in relation to Food Safety Directorate.

(1) The Minister shall ensure that the Food Safety Directorate which has been established by him is broadly based and accessible to representatives of parties having a legitimate interest in its work, and that it shall report annually to Parliament under the authority of this Act.

(2) In particular the Minister shall appoint an independent chairman to preside at meetings of the Food Safety Directorate.

(3) The Minister shall co-opt as members of the Food Safety Directorate one representative recommended by the Institute of Trading Standards Administration and one representative recommended by the Institution of Environmental Health Officers.

(4) The Food Safety Directorate as well as reporting to Ministers shall also report periodically to the Consumer Panel which has been appointed by the Minister; and that Panel should also have the right of access to the Food Safety Directorate on matters which are of importance to the Panel.").

The noble Lord said: This amendment is concerned with the Food Safety Directorate primarily and also, of course, with the consumer panel. Members of the Committee will be aware that details concerning both those creations were given in a Written Answer in both Houses on 2nd November last. I understand that the Food Safety Directorate is now in being and has been operational since 20th November.

On this side of the Committee, we welcome both initiatives by the Government. We do not take the view that they are cosmetic. We believe that, given the fair and slight amendment which we propose in Amendment No. 154, they can become very useful bodies and that there will also be some degree of public interest in them and access to them.

The reason that we seek to change slightly the composition of the Food Safety Directorate is that at present we think it too much an internal body and, therefore, one which is not likely to make an impression on the public. For that reason, it is likely to be hindered rather than helped in its work. The first change which we should like to see is that the chairman of this important body should be an independent person.

It is necessary for me to say that under the present arrangement the chairman is the Minister for Food, who is an Under-Secretary of State at the Ministry of Agriculture. We have nothing against the present Minister for Food. Indeed, on the basis of his performance to date he is likely to be promoted very soon. That is one of the objections we have to giving the chairmanship of a highly technical body to someone who is appointed at the level of Under-Secretary of State.

He may or may not bring with him, to what is for most MPs the first rung on the ladder, the kind of technical expertise which heading this Food Safety Directorate calls for. By the time he has assimilated that expertise he may either be moved up or, as sometimes unfortunately happens in the scheme of things, moved sideways or down, in which case he will not be fully able effectively to chair what we believe is a very important body. On the other hand, if a distinguished independent scientist is invited to chair the body, that in itself would reassure the public and give the Food Safety Directorate a status it badly needs.

We also think that some form of co-option is necessary so that the directorate is not wholly a body of the Ministry of Agriculture, Fisheries and Food. We suggest that the co-options might comprise one representative recommended by the Institute of Trading Standards Administration and one representative recommended by the Institution of Environmental Health Officers. At this stage, I shall be happy to accept the amendment standing in the name of the noble Earl, Lord Halsbury, which would add to the co-opted list one representative recommended by the Royal Society of Chemistry, whom I take it would be representative of the public analysts.

We should therefore have a triangle of experience externally available to this Food Safety Directorate; and again, not merely in its own right, but by way of reassuring the public, that field experience—if one may so describe it—would be valuable to the directorate. It is therefore a useful suggestion that I hope the Government will consider sympathetically.

Finally, we come to the question of reporting. The directorate should report to Ministers and also periodically to the new Consumer Panel which is in the process of being formed so that they are aware at that level of what the Food Safety Directorate is doing and why it is performing a function which will be of interest to the Consumer Panel. The mere reporting to them of their activities will not only be useful to the panel but will give the panel itself a broader experience of food safety matters. That seems to be desirable so that the level of the panel will be raised by reason of its contact with the Food Safety Directorate.

The panel should also have the right of access to the directorate on matters which the panel considers to be important. In other words, the traffic might be two-way rather than one-way. Again, we see that as being mutually beneficial and also being of reassurance to the public. For those reasons, which I have considerably truncated, I consider the amendment to be worthy of consideration. I beg to move.

The Earl of Halsbury moved, as an amendment to Amendment No. 154, Amendment No. 154A: Line 11, at end insert ("and one representative recommended by the Royal Society of Chemistry.").

The noble Earl said: The noble Lord, Lord Gallacher, has really spoken to my amendment by accepting it on his own behalf. I beg to move.

Baroness Trumpington

Following the good example of the noble Lord, Lord Gallacher, I too am truncating. The amendment misunderstands the nature of both the Food Safety Directorate and the Consumer Panel. Both have been set up within the internal structure of MAFF and are ultimately responsible to the Minister. It is for the Minister to report to Parliament on the activities of both bodies and to answer to Parliament for such activities. There is thus no role for either an independent chairman or for an annual report.

The Consumer Panel will consist of ordinary individual consumers not representatives of any particular interests. Environmental health officers are already employed full time at the Department of Health and are thus available to the Government to provide advice. I am content to examine the need for the involvement of trading standards officers, but that can be done quite separately from the passage of this Bill.

As far as the Royal Society of Chemistry is concerned, there are already members within the directorate including the Ministry's Chief Scientist (Fisheries and Food) himself. In view of these somewhat truncated explanations, I hope that the noble Lords will feel able to withdraw these amendments.

11.15 p.m.

The Earl of Halsbury

I must present the noble Lord with a contingent withdrawal of my own amendment assuming that he withdraws his.

Lord Gallacher

I am naturally disappointed with the Minister's response because on a question of some considerable importance we are being by-passed in a way which is not worthy of the occasion. We well know the Minister's responsibility in these areas. We are not in any way suggesting that that responsibility to Parliament should be diminished. Neither are we suggesting that the Consumer Panel should be representative of bodies. I made no such suggestion. The choice of the membership of the Consumer Panel is entirely within the discretion of the Minister.

I believe that the Ministry of Agriculture, Fisheries and Food has been internal and paternal for far too long. This is a very tentative toe in the water. The question to which the Minister should give attention is whether the public at large will be satisfied. From the limited time that I was able to devote to drafting this amendment and from the conversations that I had with the people concerned with this matter, I have been assured that, while they went along with the proposals because they felt I was trying to be constructive, in their considered opinion the ultimate solution lay in an independent food safety directorate.

They reached that conclusion because of past performance and because they were quite certain that MAFF had producer and other employer interests which were so overwhelming that it could not effectively discharge a food safety function in the way in which modern conditions require that it should be discharged. I shall certainly beg leave to withdraw this amendment. I shall return to the question at the Report stage. It may be that the people advising me will say "We told you so. You have asked for a half loaf and got nothing. Now go for the full loaf of bread". I beg leave to withdraw the amendment.

Amendment to Amendment No. 154, by leave, withdrawn.

Amendment No. 154, by leave, withdrawn.

Clause 42 agreed to.

Clause 43 agreed to.

Clause 44 [Regulations as to charges]:

Lord Carter moved Amendment No. 155: Page 26, line 27, leave out from ("discretion") to end of line 34.

The noble Lord said: This is a probing amendment because of the rather confused drafting of Clause 44. As drafted, the clause will enable the Minister to impose maximum charges. We consider that local authorities should be able to make whatever charges are necessary in order to deliver the service they provide as economically and as effectively as possible. That is hinted at in subsection (3) of this clause.

The circumstances of each local authority and the profiles of the individual areas which they administer are all different. A function that can be performed relatively cheaply in one local authority area is of necessity considerably more expensive in another. We consider that local authorities should have the necessary discretion to take such matters into account without the constraint of a statutory maximum charge imposed by a government department that will be many miles from the area in question. I beg to move.

Baroness Trumpington

I believe that the power included in the Bill is necessary. Where charges would apply locally we would be unlikely to wish to interfere with local authorities' decisions on charging, but would normally leave it to them to set charges appropriate for their areas. For example, we would expect local authorities to set their own charges for running training courses on food hygiene. However, some charges will apply nationally; for example, charges for issuing certain licences under Clause 19. In such circumstances it would often be appropriate for the Government to set maxima and minima or scales of charge, and I believe the power to do so should remain in the Bill.

I hope that the noble Lord will accept my explanation.

Lord Carter

The explanation is helpful. I shall read with care what the noble Baroness has said. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 44 agreed to.

Clauses 45 and 46 agreed to.

Lord Airedale moved Amendment No. 156: After Clause 46, insert the following new clause:

Food specially prepared for babies and young children

(" .—(1) Where regulations made under this Act, or regulations which have been or are made under any other Act by any Minister, contain any provision relating to food or food sources which is expressed by reference to food specially prepared for babies or young children or for babies and young children, that reference shall, unless the contrary intention appears, be construed in accordance with subsection (2) below.

(2) Any such reference shall be construed as—

1. (a) referring to food which is of such a kind, or is prepared in such manner, that it would not in normal circumstances be consumed by adults; and
855
2. (b) including a reference to food which is made up, packaged, advertised or otherwise presented in a manner which indicates or suggests that it is particularly suitable for children for whom a normal adult diet is not yet, or not yet fully, appropriate.').

The noble Lord said: This amendment is a proposed new clause arising out of the drafting of certain statutory instruments of which the easy one to remember is No. 1987 of 1987. The instrument makes it an offence punishable with imprisonment to put colouring matter in food specially prepared for babies or young children. When it came before the Joint Committee on Statutory Instruments, on which I have the honour to serve, the committee's first questions to the Minister were, "What do you mean by young children? Are you talking about toddlers, or primary school children, or something in between?"

This is an important matter because if a Minister is to be given authority to create criminal offences, and if every person is presumed to know the law, it behoves the Minister precisely to define every ingredient of every offence he creates and to leave nothing to chance. If that does not happen, the matter will go to the courts to be interpreted. If the courts are required to interpret without guidance a wide open expression like "young children", one cannot expect them to come to a similar interpretation; and then they will be in trouble.

People will say quite unfairly that the courts are not consistent, that the thing is a lottery and that if one is prosecuted what happens will depend on before which court one comes. That is unfair because all the court will have tried to do is to define a term without guidance from the Minister. The joint committee has tried long enough and hard enough to extract from the Minister a definition of "young children", so far without success. I very much doubt whether we shall get a definition from him, and so the matter has to be looked at from a different angle.

At least we know what was in the Minister's mind when these instruments were drafted. It emerges from several memoranda which he has supplied in answer to questions from the joint committee. It is quite clear that he had in mind two perfectly simple propositions which are enshrined in the proposed new clause. First, he had in mind food not normally eaten by adults; and, secondly, food that is normally eaten by children until they reach a stage in their development when they can graduate from children's food to eating ordinary adult food. That has now been put into the proposed amendment.

If the amendment is accepted and a case arises, the court can look at the new clause, see into the Minister's mind, as it were, and find out what he meant when he spoke of "young children". There will be a much greater chance of consistent interpretation on the part of the courts and all the trouble that has arisen will not occur in future. I hope that the new clause commends itself to the Committee. If the Minister were to have second, third or tenth thoughts and decide that he did not like to do it this way but was prepared, after all, to come forward at Report with a definition of "young children", I have no doubt that that would satisfy the Committee. But we must have something. I beg to move.

Lord Mottistone

I agree with this amendment in principle. I should remind Members of the Committee that I am advised by the representatives of the food processing industry. They think that a provision to clarify the meaning of food for infants and children in the legislation would be helpful. However, I shall not go into such details at this time of night. There are points of drafting which give rise to concern because they are not really clear. Nevertheless, the principle is there.

I have one further point to make. I believe that under the European Community directive in respect of foods for particular nutritional purposes, the Commission intends to draft specific controls covering foods for infants and children. It may well be that this is not the right time to put such provision into the Bill and perhaps it could be dealt with at a later stage when we know what the Commission has suggested. As I said, I support the amendment in principle and I hope that my noble friend will be sympathetic in his response.

The Earl of Strathmore and Kinghorne

On behalf of my noble friend, I must say that I do not consider it appropriate to include in primary legislation a definition of a term which only appears in secondary legislation. However, I accept that the noble Lord's proposed definition is useful and that it could form the basis of an appropriate definition for inclusion in relevant statutory instruments. The noble Lord has kindly sent me a list of the statutory instruments to which he thinks such a definition is relevant, but I do not accept that the Bill is the appropriate place for what he has proposed.

Definitions appear in respect of expressions used in the Bill, but there are no references to children or babies. It is not therefore appropriate to put such a definition into the legislation. However, I can assure the noble Lord that we shall carefully consider the definition in the context of any statutory instruments and that we shall study the list he has provided to see whether we can amend the statutory instruments at some suitable time along the lines he suggested. I hope, in the light of what I have said, that the noble Lord will feel able to withdraw the amendment.

Lord Airedale

I am most grateful to the noble Lord, Lord Mottistone, for his support in principle, and I am also grateful to the Minister for his very sympathetic reply. It seems that something will happen in this connection, although it will not happen this evening. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 47 [Regulations and orders]:

Baroness Hooper moved Amendment No. 157: Page 27, line 13, leave out from ("make") to ("and") in line 17 and insert ("different provision in relation to different cases or classes of case (including different provision for different areas or different classes of business)").

The noble Baroness said: This amendment has already been spoken to. I beg to move.

On Question, amendment agreed to.

Clause 47, as amended, agreed to.

Clause 48 [Statutory instruments]:

[Amendments Nos. 158 to 160 not moved.]

Lord Gallacher moved Amendment No. 161: Page 27, line 31, at end insert ("or to affirmative resolution of both Houses of Parliament. In deciding which procedure is to be followed Ministers shall take account of the view of the consumer panel appointed by the Minister.").

The noble Lord said: In moving this amendment, I think that it will generally be agreed that the Bill is in a sense a skeletal Bill, and that much of its effects will only really be felt when regulations under it are made. The proposal in the Bill to limit the parliamentary endorsement to the annulment procedure is a matter which has been concerning us ever since we first read it. On the other hand, it would be virtually impossible for the Committee to write into the Bill at every point where orders are likely to be made a specific provision as to whether the procedure for approving such orders should be affirmitive or whether it should be dealt with by way of annulment.

We have come up with the idea in the amendment, which I have no doubt will be well and truly turned down by the Government, that to reassure Parliament and to give consideration to the procedure to be followed as and when the occasion arises the Minister shall take account of the views of the consumer panels which he has appointed. While it may be a constitutional novelty, it will again provide the consumer panel with a useful role. To feel that it had been consulted as to whether the affirmative or the annulment procedure was to be adopted in a particular instance would be beneficial and would perhaps save us a great deal of blood, sweat and tears in attempting to write into the Bill specific provisions for the procedures to be followed.

In the event that that proposal is not acceptable to the Government, we are of the view that the principle laid down in Amendment No. 162, requiring the affirmative procedure for irradiation, should be adopted, and if that is not tested tonight we are willing to put our names to it and see it tested in Report. In the meantime, I beg to move.

Lord Mottistone

The amendment is totally inappropriate for the Bill and I hope that my noble friend will resist it.

11.30 p.m.

Baroness Hooper

On the general point, as the Committee will be aware the affirmative procedure places heavy demands on the time of this place and of another place, and is by convention reserved for powers substantially affecting provisions of Acts of Parliament and 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 any of the order-making and regulation-making powers in the Bill fall into any of those categories.

In any event, it would be inappropriate for the new consumer panel to advise on matters of parliamentary procedure, as has been suggested by the noble Lord. The panel is a non-statutory body designed to fill an important advisory role and keep Ministers in touch with the views of ordinary consumers.

In practice, we should not wish to use those powers without taking the views of outside interests, including consumers, into account wherever possible. In view of that explanation, I hope that the noble Lord will not pass the amendment.

Lord Gallacher

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Viscount of Falkland had given notice of his intention to move Amendment No. 162: Page 27, line 31, at end insert— ("(3) Any regulations made under section 16(1)(c) of this Act authorising the irradiation of food shall be subject to affirmative resolution of both Houses of Parliament.").

The noble Viscount said: In view of what the noble Lord, Lord Gallacher, said, I do not wish to move the amendment. We shall return to it at a later stage.

[Amendment No. 162 not moved.]

[Amendment No. 163 not moved.]

Clause 48 agreed to.

Clause 49 [Form and authentication of documents]:

The Earl of Strathmore and Kinghorne moved Amendment No. 163A: Page 28, line 12, leave out ("enforcement") and insert ("food").

The noble Earl said: With the leave of the Committee, I shall speak also to Amendments Nos. 164, 165, 166, 171, 172, 174, 175 and 175A, B and C.

I trust that the Committee will be able to accept the amendments, which are of a technical nature or merely correct printing errors. Amendment No. 163A amends Clause 49. The subsection deals with food authorities rather than enforcement authorities. The amendment is needed for consistency. I hope that the Committee will accept it as such.

Amendments Nos. 164 and 165 ensure that the lists of definitions in Clause 53 are in alphabetical order. Amendment No. 166 follows earlier amendments grouped with Amendment No. 41 enabling regulations or orders to refer to classes of food. Amendments Nos. 171 and 172 simply make printing corrections. Finally, Amendments Nos. 174, 175, 175A, 175B and 175C are to ensure that table A in Schedule 4 correctly records the new provisions in the Bill which mirror regulation-making powers in the 1984 Act. I hope that Members of the Committee will have no difficulty in accepting these amendments.

On Question, amendment agreed to.

Clause 51 [Contamination of food: emergency orders]:

Baroness Hooper moved Amendments Nos. 163B and 163C: Page 29, line 4, leave out from ("there") to ("likely") in line 5 and insert ("exist or may exist circumstances which are"). Page 29, leave out lines 9 to 15 and insert— ("(c) the substitution for subsection (5) of that section of the following subsection— (5) An emergency order shall refer to the circumstances or suspected circumstances in consequence of which in the opinion of the designating authority making it food such as is mentioned in subsection (1)(b) above is, or may be, or may become, unsuitable for human consumption; and in this Act 'designated circumstances' means the circumstances or suspected circumstances to which an emergency order refers in pursuance of this subsection";

1. (d) in section 2(3) (powers when emergency order has been made), the substitution for the words "a designated incident" of the words "designated circumstances";
2. (e) in paragraph (a) of subsection (1) of section 4 (powers of officers), the substitution for the words "an escape of substances" of the words "such circumstances as are mentioned in section (1) above"; and
3. (I) in paragraphs (b) and (c) of that subsection, the substitution for the words "the designated incident" of the words "the designated circumstances".").

The noble Baroness said: I beg to move Amendments Nos. 163B and 163C en bloc.

Lord Gallacher

Before agreeing to the adoption of Amendments Nos. 163B and 163C en bloc, I should like a word from the Minister about the effect of the amendments on the Bill. I have been looking at exactly what they say and I shall look at them again when they are reprinted. Would the Minister care to tell us briefly why the necessity for Amendment No. 163C has arisen and whether it in any way weakens the provisions regarding emergency orders as the Bill now provides for these?

Baroness Trumpington

I apologise to the Members of the Committee for introducing these substantive amendments so late in the day, but I consider it proper to do so now rather than at Report stage.

The new proposal arises as a result of recent experience of lead contamination. The effect of these amendments is to extend the powers in Section 1 of the Food and Environment Protection Act 1985. As amended, the powers will enable Ministers to take emergency action where there are or may be circumstances which are likely to give rise to a hazard to human health through human consumption of food. The 1985 Act, as currently framed, only enables Ministers to act where there has been an escape or release of substances. The new provision replaces this with the concept that there are circumstances which put people at risk if they eat particular foods. This is because it has become clear to the Government that risks have arisen from naturally occurring environmental sources—for example, from lead in the soil ending up in the cows' milk or meat. This may be a small gap but it is certainly a significant one.

I trust that Members of the Committee will recognise the merits of these amendments. Clearly Ministers must be able to take immediate action to protect consumers and the national food supply when emergencies have arisen.

On Question, amendments agreed to.

Clause 51, as amended, agreed to.

Clause 52 agreed to.

Clause 53 [General interpretation]:

The Deputy Chairman of Committees (Lord Airedale)

Amendments Nos. 164, 165 and 166 have already been spoken to.

Baroness Trumpington moved Amendments Nos. 164 to 166:

Page 30, transpose line 9 to after line 13.

Page 31, transpose line 8 to after line 9.

Page 31, line 34, leave out ("class or").

On Question, amendments agreed to.

On Question, Whether Clause 53, as amended, shall stand part of the Bill?

Baroness Gardner of Parkes

I should like to speak briefly on Clause 53 in order to point out to the Minister that the clause has definitions of various terms. Will she consider, before we come to the next stage of the Bill, whether or not there should be a definition of the word "labelling"? I know that she said that it would not be necessary because the definition was in the food labelling regulations of 1984. However, would it not be better to define what labelling means in the Bill rather than leave it to subordinate legislation? There are some other minor definitions such as that of advertisement. I leave it to the Minister to consider that point.

Baroness Trumpington

Clause 53 provides a very useful table of definitions of certain expressions used in the Bill. The clause re-enacts many of the definitions found in Section 132(1) of the Food Act 1984 and Section 58 of the Food and Drugs (Scotland) Act 1956. There are, however, some additions and amendments which I hope are largely self-explanatory.

I recognise the problem of my noble friend as regards the definition of labelling. However, I thought I had described the problems involved with the matter of labelling when I spoke on earlier clauses. I would be loath to see a definition on labelling at this stage of the Bill. No doubt when the matter of labelling has been harmonised across the EC we could include a definition, but until then I do not feel we can do so. I ask the Committee to agree that Clause 53 should stand part of the Bill.

Clause 53, as amended, agreed to.

Remaining clauses agreed to.

Schedule 1 [Provisions of regulations under Section 16(1)]:

Lord Mottistone moved Amendment No. 167: Page 34, line 43, leave out sub-paragraph (a).

The noble Lord said: Schedule 1, paragraph 4(a), which is written in a very convoluted fashion, seems to identify persons with appropriate qualifications who will give written opinions with respect to processing or treatment in the preparation of food. I wondered how these persons compared with or were part of the various advisory committees which the Minister already has, such as the Food Advisory Committee, the Advisory Committee on Novel Foods and Processes, the Committee on Medical Aspects of Food Policy, the Committee on Microbiological Aspects of Food Safety, and indeed the new consumer panel of the food safety directive.

I suppose some consumers have the qualifications prescribed by the regulations and they may have a few experts among them. However, does this provision exist for describing the members of that body or does it refer to another set of people who will give written opinions? If that is not the case, is there any provision in the Bill for the kind of advice on the subject matter of food safety which the organisations that I have described inevitably give to the Minister at the present time? Clarification on that point would be helpful. I beg to move.

Baroness Hooper

We believe that to accept this amendment would seriously weaken the proposed powers in the Bill to ensure that processes are safe. The provision we are discussing will enable us to ensure that the food producer has identified the critical control points and parameters, where necessary obtaining expert advice. That will ensure his product is safe and that he is carrying out his process accordingly.

Without this provision there may be no indication that a process is unsafe until it has resulted in an outbreak of food poisoning or other food-borne illness. Clearly in the light of the speed of technological change and the increasingly complex nature of food processing the powers contained in the paragraph under discussion are essential. We cannot depend on food enforcement authorities to provide absolute assurance on food safety in every case. That is the duty of the food producers.

The question of the qualifications of people serving on advisory committees is a quite separate provision. We intend to allow experts to give views on the safety of processes, not general views. I hope that in the light of that explanation my noble friend will feel able to withdraw his amendment.

Lord Mottistone

With the greatest possible respect, my question was not answered. I tried to help by giving advance notice of what I intended in the amendment but that does not appear to have filtered through the system. I shall have to return to the charge, dealing with the matter differently so that it is easier for everybody to understand. I am still puzzled as to who the people mentioned in paragraph 4(a) are and how they relate to the organisations to which I referred. It seems to me that the Minister will receive a great many written opinions from different sources and that paragraph 4(a) is not necessary in its present form. Something similar is necessary, but the situation is untidy and I am not at all happy with it. However, at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

11.45 p.m.

Baroness Hooper moved Amendments Nos. 168 and 169:

Page 34, line 45, leave out ("or any class of food").

Page 35, line 5, leave out ("or any class of food")

On Question, amendments agreed to.

On Question, Whether Schedule 1, as amended, be agreed to?

Lord Stanley of Alderley

Perhaps I may speak briefly on the schedule. I should like to ask my noble friend to give some indication, either in a letter or at Report stage, of what the Government have in mind with regard to training, which is mentioned in paragraph 5(3) of the schedule.

I have in mind the position of the person who works on a casual basis in a village shop or in my pick-your-own business. Is she or he to have government or local government certificates or to take government or local government courses? Is her or his training to be, as it is now, from the employer? I do not for one minute expect my noble friend to answer now because it is quite a deep question. However, perhaps she could write to me between now and Report or make a statement on Report. I believe that it is important.

Lord Lucas of Chilworth

Perhaps before my noble friend answers I may intervene. I had intended to raise a similar point in relation to paragraph 5(3) because training is uppermost in our minds in a number of areas. There is no indication of whether the training is to be industry led, whether the industry is to set the standards or curricula, or whether there is to be a government-inspired programme.

I am sorry that we do not have the opportunity to discuss the matter at greater length. We have been progressing like a runaway train since Amendment No. 81. However, I believe that before the Bill passes into law it is incumbent upon the Government to give some indication as to their thinking. It will be too late for Parliament, and particularly for this Chamber, to deal with the matter when it comes under regulations.

There may well be areas to which the industry and individual employers will have to give attention now. For example, what are we to do about the training of the sandwich bar operator? What are we to do about the training of the street vendor? Such matters are crucial to the efficacy of the entire Bill. Without adequate training in hygiene—elementary or more complex—all that we have spent two days debating can go straight out of the window.

I echo my noble friend Lord Stanley's request that at some stage, in some form or another, at least some indication should be given as to the way the Government are thinking. I hope that in giving such an indication any response may not just confine itself to, "Well, we have consultation going on, and all will emerge". It is essential that Parliament should know, either in this House or in another place, exactly what the Government are hoping to achieve under this schedule.

Lord Mottistone

The complete answer is to re-create the distributive industry training board, of which I had the pleasure and privilege to be the director in the years before 1975 when it was ruined.

Baroness Hooper

We are of course most grateful for the helpful suggestions that have been made in this respect. The Committee will have seen that Clause 16 gives Ministers fairly broad powers to make regulations on aspects of food safety and consumer protection. Schedule 1 simply spells out some of the things that may be included in the regulations. Many of these are contained in existing legislation but some are new.

The new provisions include, for example, powers to require processes to be licensed, and indeed to require the training of food handlers. In this I fully agree with my noble friend that training is of considerable importance. Because we believe that, we published a consultation paper about training last December. We would of course welcome comments on it and on any other points from my noble friends and any other source.

Schedule 1, as amended, agreed to.

Schedule 2 agreed to.

Schedule 3 [Minor and consequential amendments]:

The Earl of Strathmore and Kinghorne moved Amendment No. 170: Page 39, line 21, at end insert— ("(2) In that Schedule, paragraph 40 shall cease to have effect and after paragraph 36 there shall be inserted the following paragraph—

"Food

36A. Tribunals constituted in accordance with regulations under Part II of the Food Safety Act 1990 being tribunals appoined for Scotland." ").

The noble Earl said: I beg to move Amendment No. 170 and discuss with it Amendment No. 181. There are straightforward, technical points. The first, in Schedule 3, will bring within the ambit of the Scottish Committee of the Council on Tribunals such Scottish tribunals constituted under regulations made under the Bill.

The second amendment removes paragraph 40 of Schedule 1 to the Tribunals and Inquiries Act 1971 which will no longer apply with the repeal, under this Bill, of the Milk (Special Designations) Act 1949, as proposed in Schedule 5. This amendment achieves for Scotland what paragraph 14 of Schedule 3 to the Bill does for England and Wales. I beg to move.

On Question, amendment agreed to.

Baroness Trumpington moved Amendments Nos. 171 and 172: Page 40, line 20, leave out("16(2)")and insert ("16(3)"). Page 42, line 8, leave out ("Environment and") and insert ("and Environment").

On Question, amendments agreed to.

Baroness Trumpington moved Amendment No. 172A: Page 42, line 9, after ("(interpretation)") insert—

1. ("(a) in the definition of "designated incident", for the words "designated incident" there shall be substituted the words "designated circumstances";
2. (b) the definition of "escape" shall cease to have effect; and
3. (c)").

The noble Baroness said: This is a technical amendment following upon Amendments 163B and 163C. I beg to move.

On Question, amendment agreed to.

Schedule 3, as amended, agreed to.

Schedule 4 [Transitional provisions and savings]:

The Earl of Strathmore and Kinghorne moved Amendment No. 173: Page 43, line 32, after ("Act") insert ("or section 58 of the 1956 Act").

The noble Earl said: Schedule 4 contains six technical amendments relating to Scotland. All are concerned either with saving or transitional provisions necessary to ensure the smooth operation of food law between the repeal of existing legislation and the introduction of new regulations or orders under the Bill.

Amendments Nos. 176 to 180 are similar in nature in that they provide for any food and milk orders to continue to have effect until new regulations take their place. In this respect also a definition of existing order is provided. Amendment No. 173 simply saves a definition of home-going ships until, as with the others, regulations are introduced specific to certain ships on which food is sold. I should add that similar arrangements for England and Wales have been made in all these cases.

I hope that that brief explanation will allow the Committee to agree to these amendments.

On Question, amendment agreed to.

The Earl of Strathmore and Kinghorne moved Amendments Nos. 174 to 175C: Page 44, line 11, column 2, after ("16(1)(b)") insert ("(c)"). Page 44, line 13, column 2, leave out ("(d) and (f) and (2)") and insert ("(c), (d) and (f), (2) and (3)"). Page 44, line 17, at end insert— ("section 73(2) (qualification of officers) section 5(6)"). Page 44, line 18, at end insert— ("section 79(5) (form of certificate) section 49"). Page 44, line 35, at end insert— ("section 29(3) (form of certificate) section 49").

The Deputy Chairman of Committees

Amendments Nos. 174 to 175C have all been spoken to with Amendment No. 163A. The Question is that these amendments be agreed to en bloc.

On Question, amendments agreed to.

The Earl of Strathmore and Kinghorne moved Amendments Nos. 176 to 180: Page 44, line 39, leave out sub-paragraph (1). Page 45, line 2, leave out ("orders") and insert ("existing order"). Page 45, line 4, leave out ("repeal of that section, as if they") and insert ("relevant repeal, as if it"). Page 45, line 5, at end insert— ("(2) Any existing order made under section 3 of the Milk and Dairies (Amendment) Act 1922 (sale of milk under special designations) shall have effect, after the commencement of the relevant repeal, as if it were regulations made under section 18(2) of this Act. (3) In this paragraph "existing order" means any order made under a provision repealed by this Act which is in force immediately before the coming into force of that repeal; and references to the commencement of the relevant repeal shall be construed accordingly."). Page 45, line 19, after second ("Act") insert ("or section I of the Control of Food Premises (Scotland) Act 1977").

The Deputy Chairman of Committees

These amendments have been spoken to with Amendment No. 173. The Question is that Amendments Nos. 176 to 180 be agreed to en bloc.

On Question, amendments agreed to.

Schedule 4, as amended, agreed to.

Schedule 5 [Repeals]:

The Earl of Strathmore and Kinghorne moved Amendment No. 181: Page 46,line 9,column 3,leave out ("paragraph 15") and insert ("paragraphs 15 and 40").

The Deputy Chairman of Committees

This amendment has been spoken to with Amendment No. 170.

On Question, amendment agreed to.

Schedule 5, as amended, agreed to.

House resumed: Bill reported with amendments.