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New Clause 2

Volume 22: debated on Friday 23 April 1982

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Default Of Third Party

The following section shall be substituted for section 113 of the principal Act—

"Contravention due to default of some other person.

113.—(1) If in any case the defence provided by section 112A of this Act involves an allegation that the commission of the offence in question was due to the act or default of another person or due to reliance on information supplied by another person, the person charged shall not, without the leave of the court, be entitled to rely on the defence unless, within a period ending seven clear days before the hearing, he served on the prosecutor a notice giving such information identifying or assisting in the identification of the other person as was then in his possession.
(2) Where the commission by any person of an offence under this Act or an instrument made under it is due to the act or default of some other person, the other person shall be guilty of the offence and may be charged with and convicted of the offence whether of not proceedings are taken against the first-mentioned person."—[Mrs. Fenner.]

Brought up, and read the First time.

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

New clause 2 replaces section 113 of the principal Act and, as my hon. and learned Friend the Member for Thanet, West (Mr. Rees-Davies) said, it places an even greater onus on the defendant. It provides that if a due diligence defence involves an allegation that the offence was due to the act or default of another person, the person charged must, in order to rely on the defence, give information about the other person to the prosecutor. The other person is then made guilty of the offence.

I am sure that we are all most grateful to the Minister for her very generous and considered response to the representations that we made about new clause 1. I imagine that it is possible that at a later stage her generosity and understanding will also extend to new clause 2, but it is necessary to put on record, before we consider the advisability of withdrawing the clause, some of the difficulties that have been encountered by those who are charged with the responsibility of administering these very necessary regulations and enactments designed to safeguard the purity and fitness for consumption of our food supplies.

I yield to the Minister in her far greater knowledge and experience of these matters, backed by the resources of her Ministry, but I should like to mention some of the fears that have been expressed. They can be summarised under a few headings. First, there is the satisfaction that people experience with the present operation of section 113 of the principal Act. Second, there is the question of responsibility for proof and prosecution. Thirdly, there is the time limit. Fourthly, there is the amount of information required. Lastly, there is the area of operations.

11.30 am

I have not had time, unlike my hon. Friend the Member for Harborough (Mr. Farr), to consult more widely with my local authorities, but, as I understand it, the environmental health officers feel that section 113 of the 1955 Act has been working well, with the exception of the time limits problem, which we have sought to remedy in the Bill. They believe that new clause 2 will make matters more difficult and expensive. In these times, that is a factor that we should consider. As I understand it, and I am open to correction, under the present procedure if a defendant can show that he has exercised due diligence he may be acquitted, but if he cannot the court may impose penalties on one or both of the defendants where the first defendant has shown that the second party was responsible for the offence. The whole proceedings are heard in one court on one day, which is much cheaper and swifter. We should seek to secure that in the administration of justice.

The fear is—I come to the second point—that the proposals now before us will require a longer procedure. If there is a successful defence it will then be for the local authority to introduce a further prosecution. That brings me to my third point, that there is a doubt whether the extended time limits under the Bill will be adequate to allow all the procedures and investigations necessary for the second prosecution of the second party. The hon. Member for Durham, (Mr. Hughes) pointed out that there are no powers of search and seizure, as under the Trade Descriptions Act, in the legislation that we are now considering. It is feared that there will be difficulties in obtaining the information needed to mount a successful prosecution.

That brings me to my last topic, the area of operation. It is equally true that the environmental health officers in particular have been gravely hampered in their investigations of trading rackets in unfit meat by geographical limitations which mean that they can only investigate an area within their own authority. If they are trying to trace a consignment through a chain, they have to rely on getting the information to their colleagues in the next authority. There is likely to be a breakdown, especially as consignments are often shipped at an early hour on Sunday morning or during Saturday night.

I hope that if this new clause goes forward, consideration will be given in another place to increasing the powers of environmental health officers to operate over the borders of their authorities. I know that that is not simple, but it is necessary.

I hope that my hon. Friend the Parliamentary Secretary will be persuaded to withdraw new clause 2, also for further consideration. I have briefly outlined some of the points that need to be considered before any final decision is taken.

I support the remarks of the hon. Member for Bromsgrove and Redditch (Mr. Miller). The brevity of my remarks should in no way be taken to minimise the fulsome gratitude of Labour Members for the Parliamentary Secretary's withdrawal of new clause 1.

The hon. Member for Bromsgrove and Redditch raised some conflicting points. Within the Bill we have increased costs for someone by making the offences triable either way. Clause 2 will have the greatest significance to those areas that we have raised to the higher court. I should imagine that lawyers will not allow matters to be dealt with in one day, as they are now in a magistrates court, when they go to a higher court. Therefore, there is a possible conflict there. However, I support the general theme.

Finally, a longer consultative period on clause 2 is necessary because it could affect the trade unions in a different way from the existing law. I have not had time since Wednesday to receive replies from those trade unions concerned with the food industry. It was Thursday before the trade unions had an opportunity to consider this and, therefore, I ask for extra time for the trade unions to consider the implications for their members.

I thank my hon. Friend the Parliamentary Secretary for listening to hon. Members' views in relation to new clause 1 and for its withdrawal for further consideration.

I am not nearly so unhappy with new clause 2 as I was with new clause 1. Nevertheless, the time available for consultation on a major policy change, with all its ramifications for the Food and Drugs Act 1955, is not sufficient. I hope that my hon. Friend will feel able to withdraw new clause 2 for further consideration.

As my hon. and learned Friend the Member for Thanet, West (Mr. Rees-Davies) said, under new clause 2 it is complicated for a small retailer or butcher to follow the required procedure to provide the necessary evidence within a period of seven clear days before the hearing. Any retailer who felt inclined to use this new procedure would have to rely on expensive and learned legal advice which no doubt my hon. and learned Friend the Member for Thanet, West would be glad to provide. However, the provisions of the 1955 Act seem to be simpler to understand, and possibly are just as vigorous as those contained in new clause 2.

Finally, has the Parliamentary Secretary had consultations with local authorities, consumer associations and others concerned with new clause 2? If she has, can she disclose their views?

My withdrawal of new clause 1 means, as a matter of common sense, the withdrawal of new clause 2 also. However, I felt that it was important that hon. Members should have an opportunity to put their points about that. May I reiterate to my hon. Friend the Member for Harborough (Mr. Fan-) that this is not a change of policy? If it were, I would feel his criticism deeply. We are merely updating the defence clause in line with the defence clause in other consumer protection legislation. I hope that he will accept that. It is not a change of policy, but it conforms to a defence that is in other consumer protection legislation. Therefore, given my decision about new clause 1, I shall withdraw new clause 2. I hope for a long period of consultation, and I also hope that the matter will be raised in the other place. Because there has not been a change of policy I have not sought consultations. However, I take the criticism of the House and will now seek those consultations. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.