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Nat"D Ure Of Defence Of Due Diligence

Volume 22: debated on Friday 23 April 1982

The text on this page has been created from Hansard archive content, it may contain typographical errors.

The following section shall be inserted after section 112 of the principal Act —

"Defence of due diligence
112A. In any proceedings for an offence under this Act or an instrument made under it, it shall be a defence for the person charged to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence."—[Mrs. Fenner.]

Brought up, and read the First time.

9.58 am

The Parliamentary Secretary to the Ministry of Agriculture, Fisheries and Food
(Mrs. Peggy Fenner)

I beg to move, That the clause be read a Second time.

New clause 1 adds a new section 112A to the Act and provides a defence of due diligence to a person against whom proceedings are brought under the Act. It replaces the defence of contravention due to default of another person under section 113 of the Act.

Section 113 of the Food and Drugs Act 1955 provides a defence for a person who can prove that any contravention of the Act with which he is charged, although proved, was due to the act or default of some other person and that he himself used all due diligence to secure that the provisions in question were complied with. If this defence is satisfied, the defendant is acquitted and the other person may be convicted. The other person is brought into the proceedings by means of an information laid by the defendant.

10 am

The defence is considered defective in a number of respects. The procedure laid down by section 113 is cumbersome and difficult for the courts to follow. Prosecuting authorities have also found it complicated. It is also not satisfactory from the defendant's point of view since he may be innocent not because of the act or default of another person but because of something else which was beyond his control, such as an accident. The defence is not available to him in those circumstances. It is also doubtful whether it applies when the third person is outside the jurisdiction of the courts, such as a foreign manufacturer.

The defence provided by section 24 of the Trade Descriptions Act 1968 for offences similar to those of the Food and Drugs Act 1955 is less onerous for the defendant. He does not have to lay any information implicating another person or prove that the contravention was due to the act or default of someone else. He may escape liability by proving that the commission of the offence was due to some cause beyond his control, including mistake or the default of another person, and that he took all reasonable precautions and exercised due diligence to avoid the commission of the offence by himself or any person under his control. That is under the Trade Descriptions Act 1968.

Under section 26 of the Weights and Measures Act 1963, as amended by the Weights and Measures Act 1979, the defence is further simplified. The defendant is entitled to be acquitted if he proves that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence. The defence is identical in substance to that provided in section 2(6) of the Consumer Safety Act 1978.

As the penalties under the Food and Drugs Act are being increased to accord with penalties for similar offences in other legislation, it seems right that this defence provision should also be brought into line with the defences under those Acts.

I am grateful to my hon. Friend the Parliamentary Secretary for her introduction of the new clause, but I must warn her that I am not yet satisfied that we should approve it with the introduction of the defence of due diligence, which she has rightly and fairly compared with the defence available in other legislation.

I would not in any way wish to accuse my hon. Friend of being less than frank, but was the defence not present in the original Act and taken out in 1948 for what I suspect were good and substantial reasons at the time? Can my hon. Friend, by referring back to the amending legislation, show us why reasons that were considered valid at the time are now thought no longer to be so strong that the defence can once again be introduced?

I had occasion to inquire from the House authorities whether the introduction of the defence was within the scope of the Bill's title. It appeared to mark a radical departure from the intention of the hon. Member for Tottenham (Mr. Atkinson), whose Bill it is. I was happy to be a sponsor. The hon. Gentleman will no doubt expand on this, but I believe that he and I had the common intention to deal in the Bill with the problems raised by unfit meat being sold for human consumption. We were worried that the penalties were inadequate, that the time for investigation was too short to permit of successful prosecution and on a number of other grounds which it has not been found possible to fit within the scope of the useful but limited measure.

I could understand the introduction of the defence perhaps as softening the impact of the increased penalties and the extended time limit for offences connected with unfit meat, which, I repeat, was the original worry, but the new defence appears to apply to all the existing offences under the Act. That is a very different matter. That is why I consulted the authorities. I was told that it was a moot point, but they finally came down in favour of it being within the scope of the title.

The difficulty for us all was the short time in which to consider the matter. The new clause appeared on the Notice Paper only on Wednesday. I was not able to give it attention until yesterday at a late hour. The advice from the authorities was that if I raised the matter on a point of order their opinion would be bound to be repeated in view of the short time available for examination of the matter.

There is a considerable point here. If it is not one of order it is certainly one of administration. If I were put to embarrassment in trying to consider the matter, those concerned with the administration of parts of the Food and Drugs Act other than the provision relating to unfit meat must have been considerably surprised if they have been made aware of the extension of the defence of due diligence to the other parts.

I stress that my comments have been in no way hostile to my hon. Friend the Parliamentary Secretary as I know that not only in her present post but in her previous post she has been a forthright and rigorous defender of the rights of the consumer and the public and I pay tribute to the effective work that she has done. Nevertheless, I should be grateful if she would tell us what representations, if any, have been received and whether she thinks that the time scale has been fair and adequate. It is not reasonable to argue that it does not matter because after Third Reading the Bill will be considered in another place, so there will be time for further representations. In this House, we properly and jealously stick by our rights as elected representatives and it is right that we should have first crack at matters of this kind which so closely affect the interests of our constitutents—and what could affect them more closely than the provision of meat fit for human consumption?

It could be argued that the penalties that we seek to increase and for which we seek to extend the time limits are a new and heavier imposition on those charged with the responsibility to supply meat for consumption by the public and that it might therefore reasonably be considered necessary to mitigate their severity and to allow an alternative defence. But that is very different from extending this defence to all the other provisions of the Food and Drugs Act. If my interpretation of the new clause is wrong, I shall be happy to give way to my hon. Friend the Parliamentary Secretary, but that is certainly my reading of it.

My hon. Friend referred to other legislation such as the Trade Descriptions Act and comparable consumer legislation in which, as I have said, she played a valiant part on behalf of the housewife, but I doubt whether that analogy is sufficiently close or stringent to help us in this matter. As I understand it—I freely admit that I am far from expert on this and I am happy to be corrected—the Trade Descriptions Act could be taken to apply in cases of this type. It might involve labelling requirements with an abbreviated description of contents and, perhaps—this is doubtful, but I should be grateful if it could be considered—something about the quality. But that is a far cry from the absolute requirement that most hon. Members would consider necessary to cover the sale and handling of all the products covered by the Food and Drugs Act.

I believe that this should be considered by the bodies responsible for the administration of the Act. That is why I have asked my hon. Friend whether such full consideration has in fact been given. I rather doubt it, because if the consultation process had preceded the introduction of the new clause it is reasonable to suppose that notice would have been given to the promoter of the Bill and perhaps to myself by the interested parties, who would be aware that we were helping to introduce the legislation. I certainly received no such intimation until about 5 o'clock yesterday afternoon.

I must therefore ask my hon. Friend to deal with this when she replies and to tell us what consideration has been given, as this is a wide extension of the powers of defence, incorporating a power which was expressly removed from the legislation in 1948. We therefore need a more substantial reply than my hon. Friend's introductory remarks, grateful though I am to her for opening the debate.

10.15 am

On a point of order, Mr. Deputy Speaker. I have read with care new clause 2 as well as new clause 1. I think that it is clear beyond peradventure that new clause 2 is entirely part of new clause 1 in that it greatly extends the existing powers in the light of the first provision. It requires the defendant to serve notice on the prosecutor, giving seven clear days, informing him of the identity of the other person. In effect, it provides that if a person is charged under new clause 1 the burden of proof is upon him to establish his innocence and to show that he exercised all reasonable and due diligence and precautions. It then, in effect, imposes the further duty that if the person so charged says that somebody else is to blame he must take certain action to establish that.

Briefly, my point of order is this. I believe that it is impossible to deal with new clause 1 without dealing with new clause 2 at the same time. The two should be discussed together and dealt with as a whole. The House may then decide whether it wishes to incorporate either or both of them. I do not know whether that has been considered by those who advise you on these matters, Mr. Deputy Speaker. I do not wish to delay the House now, but I shall certainly argue later that neither of the new clauses falls within the ambit of the Bill.

Further to that point of order, Mr. Deputy Speaker. If you rule that the two clauses should be taken together—my hon. and learned Friend the Member for Thanet, West (Mr. Rees-Davies) has put a powerful case for doing so—I hope that I shall have the leave of the House to speak to new clause 2, on which I have several important topics to raise.

The hon. Member for Bromsgrove and Redditch (Mr. Miller) has shown that a difficulty would arise if the two new clauses were taken together. There would be no essential difficulty in doing so if that were the will of the House, but I suggest that in view of what the hon. Member has said it is better to proceed as at present.

My view is exactly that of the hon. and learned Member for Thanet, West (Mr. Rees-Davies). One cannot properly discuss new clause 1 without at least bearing in mind the consequences of new clause 2 upon its implementation.

I must say at the outset that both the Consumers Association and the environmental health officers are most unhappy both about the way in which the new clauses have been introduced and about their content. In February 1980, the hon. Lady's predecessor as Under-Secretary of State, when asked about a review of food legislation, said:
"The review has been completed. The Government have concluded that major changes in the law are not necessary at present and therefore no consultative document will be issued."—[Official Report, 1 February 1980; Vol. 977, c. 786."]
It is clear that the two new clauses taken together constitute a major change in the law. I argue that insufficient consultation with interested and important bodies has been allowed for. I have read again thoroughly the proceedings on Second Reading and in Committee. At no point was it intimated that new clauses of this content would be introduced. I find no indication anywhere that one could have reasonably expected these two new clauses and, in particular, that the change in the law of due diligence was envisaged by the Government. Neither the sponsors of the Bill nor other hon. Members have been given due time to consider them.

In considering whether new clause 1 is desirable in its present form, it is a bad argument to say that the new powers are analogous to similar legislation. The schedule to the Consumer Safety Act, for example, gives power of search and seizure to officers that is not provided in the same form in this Bill. It is, therefore, necessary that new proposals for similar powers of search and seizure to those already existing in other legislation should be provided. The legislative requirement in respect of the quality of food cannot be held to be identical with that of any other consumer goods. It is not a question of protecting the consumer in the same way. There is need of a qualitative control in respect of food that goes beyond that relating to socks, shirts or jackets. The quality of food is a different concept. I do not like the false analogy of using consumer legislation as the basis for what is proposed.

I wish to be brief because there are many amendments still to be discussed. When we reach new clause 2 I shall wish, if possible, Mr. Deputy Speaker, to catch your eye. This legislation, as the hon. Member for Bromsgrove and Redditch (Mr. Miller) indicated, has lasted adequately since 1948. It has not caused major difficulties. The whole basis of the Bill, which the Opposition welcome, was to deal with unscrupulous and potentially dishonest traders. The alteration in the due diligence clause will enable these traders to continue, perhaps more easily, their nefarious activities. The new clause represents a major weakening of food legislation when the objective of the Bill is to do precisely the reverse.

I deeply regret that the Government have chosen to introduce the new clause at this stage. I urge the Minister to think carefully whether she should not withdraw it in the light of the views expressed in the House with a view to introducing, following consultation, some modified form of it in another place. As it stands, I find it unacceptable to the whole spirit of the Bill and deeply disturbing in the manner in which it has been presented.

I wish to endorse remarks already made. The Minister has an excellent reputation as a protector of consumer interests, but that reputation is likely to be tarnished as a result of the introduction of the new clauses. In trying to protect the Minister and the House from folly, I hope that she can be persuaded to change course, to consider withdrawing the new clauses and certainly, among other things, to shift from the ground outlined in her approach to new clause 1. I believe the hon. Lady can do so without loss of face. It will not be the first time that there has been a change following the appearance of new clauses at this stag.: of the consideration of a Bill.

I was surprised by the Minister's remark that the lawyers had misgivings. Lawyers with whom I have discussed the new clauses have misgivings about their introduction. The hon. Lady's remarks are the reverse of the reality as I understand it. The hon. Lady argued that the procedures were cumbersome. It is precisely for that reason that the experts say that they wish to retain the existing situation rather than to depart in the direction suggested in the new clause. It is argued that the clause will reduce the onus now placed on the first defendant to whom the Minister referred. We are offering a soft option to defendants through following a similar procedure adopted in terms of consumer defence. In my view, we should be going in the opposite direction. I shall give some reasons.

Because penalties have been strengthened, together with associated reasons, the need to retain and even strengthen the existing situation rather than to move in the opposite direction is paramount. The professionals, who represent expert opinion, have argued that the introduction of these new clauses will reduce food standards rather than improve them. This is a move that the House, I understand, is trying to prevent. We are trying to raise food standards and not reduce them. Yet the opposite will be the result of the new clauses.

I do not wish to go over again the position in February 1980 except to express my surprise that the Minister should have wanted to move from a review of the whole of the food and drugs legislation. A review seems to me obligatory because of the changes that have taken place in the industry, together with associated changes. I hope that the Minister and her Department can be persuaded to return to a review. It is essential, for a number of reasons, that we should start now to review the whole of the food and drugs legislation.

The first reason relates to those very differences, to which reference has been made, between the Consumer Safety Act and the Trade Descriptions Act. Implicit within those differences are good reasons for the Government returning to the original position and carrying out the review in full consultation with the trade and enforcement officers, including all the professionals, the veterinary inspectors and meat inspectors, enabling the review to take place in an orderly fashion. I believe that the conclusions arising from such a review would be far different from those contained in the new clauses.

Another reason for not proceeding in the way that the Minister has outlined is to be found in experience of modern food technology and the importation of food processed overseas. Those two developments themselves mean that we should start to look at the possibility of strengthening existing legal procedures rather than to embark on this new principle of due diligence as a means of extended defence.

10.30 am

We are attempting to prevent the continuance of the illicit meat trade. However, in our previous debates we have not defined what we are discussing. The illicit meat trade falls into four distinct categories. There is the substitution of fit beef, pork or offal by first knacker meat, condemned unfit meat from slaughterhouses, other meats from slaughterhouses which have been imported for use as pet food, and meat which has been illegally slaughtered on a farm or on some other premises in contravention of the Food and Drugs Act 1955 and the Meat Inspection Regulations of 1963, which have now been amended. I am concerned primarily with the illicit meat trade. It is curious that we are almost aiding and abetting it by shifting our ground and introducing a new clause that will enable due diligence to be an adequate defence.

Consumers would be horrified if they understood and were aware of that which is contained in many canned and packaged meat products that are now purchased throughout the country. There are supposed to be strict safeguards but it seems that they are not sufficient. I speak to analysts whose job it is to examine food products from time to time. They are suspicious that a great deal of the contents are not as set out on the labels. For example, when it is claimed that a product contains beef, most analysts are convinced that there is little beef in the product, or certainly less than that which is implied by the label. If they are right, an offence is being committed, but it is one that is difficult to prove even with modern technology. None the less, analysts are concerned. Indeed, very few of them ever eat any of these products. Many of them are confirmed vegetarians, and they advise others to avoid processed foods in the absence of absolute guarantees.

It is common practice for the great chain stores, the large food distributors, to purchase many thousands of tons of processed products and to place their own labels upon the cans or packets. The products appear on the shelves of the chain stores with the brand names of the stores upon them. That should mean that they carry an obligation to their customers in guaranteeing that in distributing the food they are satisfied beyond doubt about the quality of the product.

Distributors should be made responsible. They should be forced to set up their own laboratories and procedures so that they may assure themselves of the quality of the product. They should sample what they are purchasing before putting their labels on the products so that they can provide the necessary guarantees. In this area consumers are entitled to perfection. In the food business there cannot be seconds. Mistakes cannot be made and infringements of the law cannot be rectified. Unfit products in packaged goods or in cans can be fatal. There cannot be rectification if consumers become ill as a result of eating unfit products.

We should be strengthening the area of responsibility and not reducing it. We should be saying to distributors that if they put their labels on imported products they must be responsible if the products are proved to be unfit. Local authority enforcement officers are right when they say that they want to get distributors in the courts and to make them responsible for the quality of their products. We should not be arguing that defendants have an unfair burden and should be provided with the defence of due diligence in arguing their innocence. They will say "We cannot see inside the cans. We buy the product in good faith. We go to extreme lengths to buy from reputable manufacturers. We know that a certain company overseas has been manufacturing the product for a long time. We are happy with what we are buying and distributing to the consumer." That is not good enough. We should be saying to distributors "You have no right to import stuff in this way without providing the consumer with guarantees. Those guarantees should carry a penalty that you will be taken to court if anything goes wrong." We should not be giving distributors a soft option. We should not deviate from that approach.

There has been no consultation with enforcement officers and those responsible for veterinary and meat inspection services. The clauses have come before us as a result of pressure from the larger meat distributors.

I try always to make brief interventions. The hon. Gentleman might recall our discussion in Committee when my hon. Friend the Member for Hereford (Mr. Shepherd) said that he hoped that minor labelling offences would not be tried on indictment. The hon. Gentleman replied that he was quite certain that such offences would be dealt with in the lower courts and that only the more serious cases would go before the higher courts. My hon. Friend the Parliamentary Secretary said that that would be so. She has tried to meet what was said in Committee by introducing the new clause, but perhaps it has been drawn too wide. Perhaps all this trouble springs from what was said in Committee.

That is part of the argument. We may be able to make brief reference to that when we discuss new clause 2. I am concerned primarily with the introduction of the defence of due diligence. However, it is right to refer to our discussions in Committee.

Bearing in mind what goes on in food processing, we should strengthen the relevant procedures. Manufacturers of bulk food products often observe that a penny profit per item for them is a profit of £22 a tonne. If they are dealing with many thousands of tonnes a year, they are dealing with many pence and many pounds. That profit is sometimes gained by substituting other ingredients for quality meat. The attraction of so doing is very great. When substitution takes place profit margins are extremely high.

Most consumers would be horrified if they knew of some of the items that go into some products to make up the bulk. They are not confined, for example, to cereal binds. I am horrified when I read analysts' reports and learn that urea is used to give softness and pliability to fibre. I know that the Minister is similarly horrified. The knowledge that extracts of urea are used for that purpose would put most people off the products for life. It has had that effect on me. We must be careful in restructuring defence procedures by providing the extra dimension of due diligence.

Up to now, I have been speaking about the big distributors, the people who deal with thousands of tonnes of canned and processed packaged products and so on per year. However, I am not happy about another aspect of the matter. The small distributors are affected. There are classic cases such as the nuts and bolts in a loaf of bread or the mouse in the milk bottle. The distributor of the milk may say that he did not put the mouse in the bottle and that it got there before the milk came to him. He may say that he exercised every care in looking at his products and that, because the quality of the milk was so good, he could not see the mouse. If he had taken every care in his shop, he would claim due diligence and be cleared.

The people in the dairy could say that they had spent £1,000 in ridding the dairy of infestation and that they did not know about any mice. They could say that they had taken every conceivable safety precaution so that the dairy was clear of vermin, but the mouse still got into the milk bottle. The people at the dairy could claim due diligence in spelling out what they had done and in saying that they could not do more, but somehow or other the mouse had crept into the dairy.

We must be careful with food products and the special way in which food must be dealt with under the law. The matter must be looked at in a different way. We cannot go right across the board with the conclusions reached by the Department up to now.

I support a review of the whole legislation. It is curious that the Government have no powers to prohibit the sale of unfit food. Ours is one of the few countries where enforcement officers or the Government cannot prohibit the sale of food. Under certain circumstances, they can confiscate a limited amount of goods, but they cannot prevent the sale of food, although the batch analysis has proved that it is unfit. The penalties imposed on a distributor who ignored the warnings and still went ahead with selling what could be regarded as an unfit product would be heavy. However, the Government have no right of prohibition.

There is a difference between the law in England and Wales and that in Scotland. That is another reason why we should not go in this direction. The Scots, as in most things—except football—are far in advance of England in these matters. We pay tribute to the Scots for their imaginative approach to legal procedures. They are out front in this procedure. Therefore, there are difficulties. That is another reason why the Government should review the different sorts of food and drugs legislation.

I hope that we have said sufficient this morning to persuade the Minister to look again at the new clause and to give the House an undertaking that she will start the process of going back to February 1980 and undertaking a full review of the food and drugs legislation and of the mechanism within which enforcement officers have to operate. I hope that she will start to look at the possibility of strengthening the present law with a view to making distributors exercise greater responsibility and carry a greater legal onus than at the moment, rather than giving them a soft option and extending their line of defence to include the argument of due diligence.

10.45 am

I am afraid that I am a little rusty on food and drugs law. Many years ago, I had the task of undertaking many prosecutions and defences in that area.

I entirely agree with what has been said. We have before us new clauses, rather late in the day, without having had the opportunity to consider them fully and fairly before this morning's debate. Therefore, I share the view that these are matters that properly should be locked at in another place and should not be passed this morning by the House as they stand. New clause 2 is stringent and very much strengthens the law. Probably it goes too far.

I share the view of the hon. Member for Tottenham (Mr. Atkinson) that there is no doubt that we should take the strongest action with regard to the sale of unfit food. The law needs to be reviewed and brought up to date. It would be a great benefit to have had this small but useful measure if it leads to that action for the future.

However, when one says that one wants to take strong action against those who sell or pass over unfit food of any kind, one must also bear in mind that there is still a right for a person to have a fair and just trial. The food and drugs legislation has always imposed upon the defendant the obligation to prove his innocence. It is important to remember that. Under the new clause, any person charged under the Act would have to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence. That is a considerable onus on the defendant. I am not sure that it is necessary. Under the principal Act of 1955, there was merely the obligation on a person to exercise all due diligence. It did not go so far as to say that he had to take all reasonable precautions. I should have thought that it would be sufficient to say that he has to take all due diligence. New clause 1, for what it is worth, somewhat strengthens the position against the defendant.

New clause 2 must be adverted to when one is dealing with new clause 1 because the purpose of new clause 1 is to attach to it new clause 2. I should like to give a great deal of thought to it and hear the views of the associations and people concerned before I am willing to support one thing. The new clause says that if one is to be entitled to have a defence at all one has to serve a notice within a period ending seven clear days before the hearing on the prosecutor.

That is all right for the big companies, but supposing that the person concerned is a small butcher in a market town. He has always had a good record for selling good meat. He never had knowledge of the laws because his reputation had always been accepted, but, unfortunately, on one occasion he was passed meat intended for dogs instead of humans. He was seen and he found out that he made a mistake. He wants to bring the culprit, the person who passed the meat to him, to book. That person would have to know the law and would have to serve within a period ending seven clear days before the hearing a notice on the prosecutor giving all information identifying or assisting in the identification of the other person as was then in his possession. It is a very considerable burden.

There is no doubt that new clause 2 imposes an additional burden. When it is carefully reviewed I do not believe that the promoter and sponsors of the Bill will find that the two new clauses weaken the existing position. On the contrary, they probably strengthen it. However, that does not mean that today, without consultations and consideration of the matter, we should necessarily give them a clear run. I am by no means sure that I am prepared to support new clause 2—at least, not unless it is considered by those who have a much more up-to-date knowledge of this law than I have.

The exercise of "due diligence" by the defendent is, I think, right. Although almost all lawyers prefer it, I do not want to go back to the position where the burden of proof is entirely on the prosecution. If a person is trading in meat and other food for human consumption, it is right that there is a burden on that person to establish that he is doing the best that he possibly can to see that the public get food for human consumption. Therefore, I agree with that proposal, but it is time that the whole matter was carefully reviewed and brought up to date, particularly as many foods are now entirely composite. Many of them are chemically combined with other things. Much of the food that we consume today is packaged in all sorts of ways. Thus, additional powers may be required in a number of ways that are not provided for in the old legislation, which dates back to 1948.

I share the broad general view that has been expressed that, on the whole, it is better not to handle the matter in this Bill, at least not at this time, and certainly not before another place has considered it. In the light of what has been said this morning, people in the trade will obviously now give much thought to the matter. Indeed, the promoter of the Bill, its sponsors and those who have spoken to it will at least have the assurance that they have stirred up the matter sufficiently to see that careful cognisance is taken by people in the trade and in the Ministry of all the points that they have raised.

I, too, congratulate the hon. Member for Tottenham (Mr. Atkinson) on his initiative and perseverance in bringing the Bill this far. I am happy to be one of its sponsors and I wish it well.

I also pay tribute to my hon. Friend the Minister, because I know that she has at heart the best interests of the food industry, in all its forms and ramifications. She has occasionally proved it in the House, but more often she has proved it outside, in correspondence and in response to delegations and urgent representations. She has paid meticulous attention to all the matters that have been put to her. For that, I and all right hon. and hon. Members are grateful. It is therefore with some regret that I take particular exception to new clause 1. I am sorry that she should lend her name to the proposal, and I shall briefly give my reasons for my disquiet.

The hon. Member for Durham (Mr. Hughes) said that he had heard that environmental health officers were unhappy about this matter. He may have a hot line to them which I perhaps used to have but which has now ceased to function. I was in close touch with them before Second Reading and during the Committee stage. I do not think that the hon. Gentleman was on the Standing Committee. I was lucky enough to receive representations from them during those proceedings, and since then I have heard nothing from the Environmental Health Officers Association nor—possibly more important—from my own local environmental health officers, who are very active in Leicestershire, where, unfortunately, we have had a few, but important, bad cases which necessitated law court proceedings in recent months, and which caused me to support the Bill.

I received the information about 7.30 yesterday evening by hand to the House, and I quote the last sentence:

"The proposals as presented are opposed by both Environmental Health and Trading Standards organisations and appear to be a hurriedly presented and unconsidered response to trade pressure."

I am most grateful to the hon. Gentleman for his courtesy in reading that note. The information was delivered to him by hand, and possibly mine has gone by post. I shall probably get it tomorrow.

What I find unsatisfactory about new clause 1 is the fact that these major changes in the purpose of this modest and useful Bill, as far as I am aware, were not discussed in Committee. Nor were they envisaged in Committee. Certainly they were not discussed or envisaged on Second Reading a few weeks ago. It seems extraordinary that at short notice, as my hon. Friends have said—only two or three days ago—a major change of emphasis is now being applied to all the 137 sections of the 1955 Food and Drugs Act. The House should realise the consequences of what we are attempting to slip through this morning. It does not relate just to those parts of the 1955 Act to which the hon. Gentleman's Bill refers; it refers to any proceedings for an offence under the whole Act, and there are 137 sections in that Act. With respect to the hon. Gentleman, some of those sections deal with matters that are just as weighty, if not more weighty, than the fairly narrow approach that he takes to the food and drugs problem and hygiene generally, on which, of course, he has the full support of the House.

Before I can support this proposal, I want to ask my hon. Friend why this important change of principle was introduced. The 1955 Act has been with us for 27 years, and I want to know what purpose underlies this sudden major change in direction. Can she justify this major request to the House—I am sure that she can and probably will—by giving us some data and statistics, for instance, on the number of prosecutions in recent years that would have been successfully defended if this defence had been included in the original Act? I do not ask her to go back to 1955, but I should like to know whether there have been recent upsetting examples of which the House and the general public are not aware which make her feel that justice will be done by introducing this major change of course, arising from convictions that may have taken place because a defence that we are proposing to allow in new clause 1 was not then included in the statute book.

11 am

I am sorry that we have had only two or three days to consider all the important proposed changes to the 1955 Act. I shall deal with one or two sections of the Act that are affected by the proposed new clause. Possibly the most significant and important is part II, which relates to the milk, dairy and cream industry. The whole of the dairy trade is affected by that part.

Part I of the 1955 Act contains many regulations relating to food poisoning. Part LEI deals with similar regulations and instructions relating to marketing. Part IV, in about 18 clauses, deals with the complex slaughterhouses issue and their regulation and control. Part VI contains miscellaneous and general provisions.

I am sure that my hon. Friend the Parliamentary Secretary will agree that one cannot change significantly section 28 of the Act, which deals with the milk, dairy and cream substitute industry, or the subsequent sections in that part of the Act that deal with dairies and dairy farms. Any dairy farm that produces milk, cream or milk products comes under the ambit of section 28 of the 1955 Act.

What consultation has my hon. Friend had with the National Farmers Union about the effect of new clause 1? Is it happy about it? Has she consulted the hotel and catering industries? Have they expressed their views? Large sections of the 1955 Act affect the hotel and catering industries.

What views has my hon. Friend received from the local authorities about their responsibilities under the 1955 Act? I am sure that she must have consulted them because many of the 137 sections in the 1955 Act lay down specific obligations on the local authorities. Has she consulted the local authority associations and if so what are their views about new clause 1?

Perhaps my hon. Friend has negotiated previously and has come to the House with a finished package that we could, perhaps, accept. Has she consulted the Consumers Association about the changes and what is its view?

The hon. Member for Tottenham made it clear that he regarded new clauses 1 and 2 as an improper softening up of the law relating to food and hygiene offenders. He said that it was not the intention or desire of today's House of Commons to introduce any laxity in the law in that respect. The purpose of his Bill, which I fully support, is to tighten up the law. I am loth to support new clause 1.

Hon. Members have raised a number of points about the effect of new clause 1. I can rest heavily on what was said by my hon. and learned Friend the Member for Thanet, West (Mr. Rees-Davies), who is a well-known lawyer. He will know that I do not wish to reduce protection for the consumer. I am delighted that my hon. and learned Friend said that new clauses 1 and 2 strengthen the law. He said that the onus was on the defendant to prove due diligence.

The hon. Member for Tottenham (Mr. Atkinson) expressed the view, which has been expressed in the House before, that it is time for a review of the whole of the 1955 Act. About two years ago, early in the Government's term of office, that possibility was examined carefully and we decided against a root and branch review of the whole Act. I support the Bill today because such a decision about the whole Act should not make the Government inflexible in supporting a Private Member's Bill which, in the light of the unfortunate and terrible circumstances caused by a small minority in the meat trade, seeks to ensure that the penalties for breaching controls should be a real deterrent.

The Government support the Bill. We do not wish to undermine the purpose of the Bill, which is to protect the consumer. We wish to be flexible about what needs to be done, although we have already decided not to have a root and branch review of the Act.

Decisions must be taken to protect the consumer in the light of circumstances. The hon. Gentleman was perhaps exaggerating about what the consumer would think if he knew what was in the can or the package. The hon. Gentleman will know that we are preparing new meat product regulations because we believe that consumers should be better informed about what is in their food. The hon. Member for Tottenham exaggerates when he suggests that consumers would be terribly worried, but we believe that they should be well informed about the contents of products.

The hon. Gentleman said that own-label providers could prove due diligence by saying that they had done all that they could, and that only retailers would remain absolutely liable under new clause 1. However, packers already have the warranty defence under section 115 of the Act, and I am not aware of any suggestion that that defence should be removed. There is no change in that respect.

The hon. Member for Tottenham also said that the Government cannot prohibit the sale of unfit food. In fact, the sale of such food is prohibited by the Act, and section 9 empowers enforcement authorities to seize unfit food. The DHSS, in co-operation with my Ministry, has recently twice ordered the withdrawal of food from the market.

My hon. Friend the Member for Bromsgrove and Redditch (Mr. Miller) claimed that the defence was in the 1938 Act, but that it had been removed by amendments in 1948. I do not know of any such amendments, and we are not looking back to the old legislation.

The Acts to which I referred, the Weights and Measures Act 1963—updated in 1979—the Trade Descriptions Act 1968 and the Consumer Safety Act 1978, all provided the defence of due diligence.

The onus is on the defendant. The hon. Member for Tottenham seemed to assume that it was an easy defence, but my hon. and learned Friend the Member for Thanet, West, who is experienced in these matters, said that it was a difficult defence and that new clauses 1 and 2 make life tougher for the unscrupulous.

The hon. Lady talks of due diligence, but it would be sufficient for a distributor to argue that he did everything possible to assure himself of the good reputation of the manufacturer or importer. The defence is based on reputation.

For example, some cans of meat products carry the Royal coat of arms, but I know of some with the 'By Appointment" accolade that contain ingredients unheard of in 1959, including vegetable protein, isolated milk protein, egg protein, isolated bone protein, blood powder and plasma and a number of others. The Royal Family would be horrified if it knew that its accolade was attached to such products with unspecified ingredients.

11.15 am

Irrespective of warranty and the Acts to which the Parliamentary Secretary referred, when a distributor puts his label on a meat product he should be responsible for it. He should not rely on the reputation of the importer or the manufacturer, but should guarantee the quality of the product.

I appreciate what the hon. Gentleman is saying, but the vendor of goods must establish the content of tins and would have to prove to the magistrates that he knew what the contents were and had exercised due diligence in ensuring that they were proper. Of course, that does not mean that every tin must be checked, but it would be no use a vendor relying on someone else's reputation. That would not enable him to establish a defence. It is a tough defence, and the vendor has to establish to the satisfaction of usually a lay magistrate that he has taken trouble to check what he is selling.

My hon. Friend the Member for Harborough (Mr. Farr) referred to section 28 of the Act, which defines dairies and dairy farms. I cannot ascertain why that section is deemed to be affected by new clause 1.

The hon. Member for Tottenham and some of my hon. Friends disagree with my proposals, but they were kind enough to say that they knew that I wished to do all that I could to protect the consumer. The penalties in the Bill relate not to unspecified contents, but to breaches of the law. We should not be distracted from the main point and purpose of the meat product regulations that I hope will be ready before the end of the summer. I agree with the hon. Member for Tottenham that it is important that consumers should have information, but we should not confuse that with the offence of providing unfit meat.

My hon. Friend said that she did not understand how dairy farms were affected by new clause 1, which refers to proceedings for an offence under the 1955 Act.

There are 19 clauses in the Act relating to milk, dairies and cream substitutes. For example, clause 31 prohibits the sale of milk from diseased cows. That should never happen. Section 43 relates to the breach of condition of a retailer's licence. All these offences in the 1955 Act, including the 19 under part II, relating to milk and dairies, have a relationship with the Ministry of Agriculture, Fisheries and Food in the agricultural sense. I should have thought that it would be proper to get the views of the National Farmers Union, which is responsible for these matters.

It may be more helpful if at this point I reply generally to the criticisms of the short time that hon. Members have had to look at the two new clauses. I would most certainly accept the criticisms if one were producing the two clauses, as it were, in isolation, but they are being produced in line with other Acts for the protection of consumers which carry high penalties—in this case very high fines or imprisonment, or both.

I well recall that when we first consulted the hon. Member for Tottenham about his intentions to introduce this Private Member's Bill he said that it would be reasonable for it to be in line with the Trade Descriptions Act. I am sure he will recall that, because it is perfectly proper that the penalties should match the penalties in other consumer legislation. To that extent, new clause 1 is in line with other legislation for consumer protection. I could certainly be severely criticised if I introduced something so new and so different that a long period of consultation would be required.

The Minister mentioned the Trade Descriptions Act. If new clause 1 followed the Trade Descriptions Act 1968, I would feel considerably happier, but it does not. The Trade Descriptions Act, in addition to mentioning reasonable precautions and due diligence, also requires, in section 24,

"that the commission of the offence was due to a mistake or to reliance on information supplied to him or to the act or default of another person, an accident or some other cause beyond his control",
and then that "all reasonable precautions" were taken.

That first part of the equivalent provision in the Trade Descriptions Act is a much more onerous requirement for the unscrupulous to wriggle out of. It is the absence of that harsher line in the present proposals that concerns me. I accept that they are in line with the Consumer Safety Act 1978, but they are not in line with the Trade Descriptions Act 1968. I would be much happier if the Minister had included those conditions. Will she consider inserting those words in another place, thus bringing the Bill into line with the more onerous requirements of the Trade Descriptions Act rather than of the Consumer Safety Act 1978.

In my opening remarks, I said that the Trade Descriptions Act had been updated, as it were, by later Acts in respect of the defence of due diligence. I specifically said that in the later Act—and certainly in the Act introduced by the previous Labour Government—the provision was made less onerous.

I noted with interest that my hon. and learned Friend the Member for Thanet, West said that, in justice and fairness to a defendant, a defence on the ground of due diligence should be available. I understand that in the other Acts which properly deal with consumer protection and provide for tremendous penalties for people who breach the law it is equally just and fair to enable the defence of due diligence to be argued.

I have listened very carefully to what my hon. Friends and Opposition Members have said about the short period allowed for consultation with all interests. Hon. Members will know that I would not wish to press forward with a matter on which they believe a large number of people have not been consulted. That would not be in line with the reputation of my Ministry. Therefore, rather than resting on the provision of time for the Bill to go through the other place, I intend to seek leave to withdraw the new clause in order that there shall be further time for consultations. I shall be wholly accessible in that respect. I hope later to introduce the clause in another place.

I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.