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Skinner, Dennis

Smith, Andrew (Oxford E)

Smith, C. (Isl'ton & F'bury)

Soley, Clive

Spearing, Nigel

Squire, Robin

Strang, Gavin

Straw, Jack

Summerson, Hugo

Taylor, John M (Solihull)

Trotter, Neville

Viggers, Peter

Walker, Bill (T'side North)

Waller, Gary

Wardell, Gareth (Gower)

Wells, Bowen

Williams, Alan W. (Carm'then)

Wilshire, David

Wise, Mrs Audrey

Tellers for the Ayes :

Mr. John Gale, and

Dr. John Marek.

NOES

Nil Tellers for the Noes :

Mr. Edward Leigh and

Mr. John Marshall.

Question accordingly agreed to.

Bill immediately considered in Committee.

Clause 12

Enforcement, defences, etc.

Question proposed, That the clause stand part of the Bill.

Mr. Wilshire : On a point of order, Miss Boothroyd. I ask you to clarify which clause 12 we are considering. It seems from what I heard this morning that the consideration and amendment of the original clause 12 in Standing Committee was out of order because the appropriate formalities had not been completed. Are we considering the original clause 12 or the amended clause 12?

The Second Deputy Chairman of Ways and Means (Miss Betty Boothroyd) : We are considering clause 12 in the recommitted Bill, which was amended in Standing Committee C. It is clause 12, at line 25 on page 7. I hope that all hon. Members understand that.

Mr. Squire : I am pleased that you gave that ruling, Miss Boothroyd, otherwise the time that I spent in preparation might have proved to be wasted.

When I spoke earlier today I declared what was probably an irrelevant financial interest. I declare now a non-pecuniary but relevant interest, which is that I have the honour of being one of the vice-presidents of the Institution of Environmental Health. As a glance at clause 12 will show, that esteemed body will be responsible for administering, at council level, the duties that the Bill imposes, and especially those set out in clause 12.

Like other hon. Members, I raced for a copy of the report of the proceedings in Standing Committee to digest what was said on clause 12. It would be fair to say that it was something less than a satisfactory meal. It seems that the debate lasted for about 30 seconds, and that that time was spent applying the clause to Northern Ireland. I find today that there are amendments to delete Northern Ireland, so perhaps the Standing Committee proceedings were unnecessary.

The clause is concerned with the Consumer Protection Act 1987 and its application to the Bill. I have a few questions and comments to put to my hon. Friend the Minster or to the promoter, the hon. Member for Clwyd, South-West (Mr. Jones), whoever is the appropriate person to respond to them.

The apparent effect of the clause is that trading standards authorities would be under a statutory duty to enforce the provisions of the Bill by reason of the

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application of section 27 in part IV of the Consumer Protection Act 1987. I stress that : I shall return to the words "statutory duty". I would appreciate some assistance from my hon. Friend the Minister, but it seems that the Secretary of State, who is included in the definition of an enforcement authority in section 45(1) of the Act, would have enforcement powers, but not a duty to enforce.

1.30 pm

Will the Minister give us an idea of how he expects the Secretary of State to exercise what, on the face of it, is a discretion rather than a duty? I hope that hon. Members perceive the distinction. We can all see how duties can be exercised and can be set out ; Secretaries of State are clearly answerable under a number of Acts. When powers but not duties are laid down, however, a Minister may presumably choose to ignore a vote in the House and say, "I personally have no wish to exercise those powers, and I will not exercise them."

The power of enforcement appears to be exercisable in relation to the Bill generally, but the Bill creates civil rights and obligations. For instance, clause 8, which deals with the enforceability of guarantees, obviously does not deal with a criminal offence. The Bill therefore covers both civil rights and criminal offences. Surely it is not appropriate for trading standards authorities to seek to enforce civil rights : that would introduce a whole new concept into law. Is the intention for the authorities to limit their enforcement activities to possible criminal offences? That is the logical interpretation, but it is not how the Bill is currently drafted.

Let us assume that that is the intention. It is unclear to what extent--if at all--some of the provisions of part IV of the 1987 Act would be applied for the purpose of enforcing the criminal provisions in the Bill. There are two reasons for my uncertainty. First, many of the provisions apply only for the purpose of enforcing specific parts of the 1987 Act. That is not unusual : often legislation contains unique aspects specifically designed to ensure that it works properly. Is it intended that the provisions of the Bill should be included in all the references to those specific parts?

Secondly, many of the enforcement proceedings in part IV of the Act--for example, the power of customs officers to seize and detain imported goods in section 31--are inherently unsuitable for use in enforcing the provisions of the Bill. There are other provisions that cannot be applied without modification ; I shall not go into the details, but that requires careful thought. Examples are sections 29(2), (3), (6) and (7). None of the provisions in part V of the Act is applied. A provision restricting the disclosure of information on the lines of section 38 would also be needed. Those points are important, but, for reasons at which I can only guess--as I was not a member of the Standing Committee--the Committee did not discuss them. A provision concerning the service of documents, on the lines of section 44 of the Act, would presumably also be needed.

So far I have concentrated on what I consider to be the defects in the clause as it is currently drafted. As we are already in Committee and have had relatively little opportunity to table amendments, we must either ask for a response from the Minister or hope for amendments to be tabled in the other place.

We must be clear about the Minister's response. It is fairly standard practice--every hon. Member has

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encountered it in Committee--for a Minister to say, "I accept the principle," or "I accept the need for change, but the wording is not right,"--or a variation on that--and promise to table amendments later. Clearly my hon. Friend will not have the opportunity to table amendments today, but I press him strongly to accept my concerns if he considers them valid, and to instruct those in another place to table the appropriate amendments.

Clause 12 is arguably one of the most important clauses because it deals with enforcement. Even with the best of intentions, if there is no enforcement the Bill will fail in its aims. Of course, we are here primarily to discuss the money aspect and the impact of the clause on local authorities and environmental health officers. My hon. Friend the Member for Hendon, South (Mr. Marshall) referred to the impact on the community charge because a statutory duty is being placed on local authorities. It is not an option ; it is a statutory duty. When the Committee discussed clause 12 in February, it was before the surge of correspondence on the community charge. Regardless of hon. Members' views about the community charge--

Mr. Ron Davies : The poll tax.

Mr. Squire : Indeed, some call it the poll tax. I have been rather more outspoken than some, but no one can deny that there has been a surge of interest, almost an obsession among the public about the size of their community charge bills compared with those of other people. The provisions of clause 12 will directly increase the amount of community charge. I cannot speak for other hon. Members, but I have not yet received any letters saying, "Please make the community charge higher." Some people have used rather stronger language than that, but they certainly did not suggest that it should be increased. Indeed, they strongly suggested that it should be lower.

I hope that my hon. Friend the Minister or the Bill's promoter can explain the impact of clause 12 on staffing levels. That matter was not debated in Committee, but as it imposes a statutory duty it is important to know the consequences. On Second Reading, the promoter, the hon. Member for Clwyd, South-West--whom I congratulate on his manner--said that each year

"14 million people are dissatisfied with products "--

presumably those figures came from the National Consumer Council-- "and only half will have their problems resolved."--[ Official Report, 26 January 1990 ; Vol. 165, c. 1174.]

That means that 7 million people are dissatisfied.

Mrs. Gorman : Does my hon. Friend really believe that there are 7 million complaints each year? Is it a genuine figure or is it made up, having been extrapolated from a much smaller number by virtue of the number of people in the population? I cannot think of an organisation that could handle that number of complaints.

Mr. Squire : My hon. Friend puts me on the spot. I am taking in good faith what the hon. Member for Clwyd, South-West said on Second Reading. I cannot account for his figures, but I am sure that when he speaks he will give the points of reference that my hon. Friend rightly seeks to establish.

I have no idea how many of those 7 million dissatisfied people would take the matter further and complain to trading standards officers or what action would then follow. Let us suppose that 10 per cent. of complainants are so upset that they pursue matters with their local

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environmental health officers. One is then talking of 700,000 new cases each year--I can answer my hon. Friend the Member for Billericay (Mrs. Gorman) to that extent--involving a statutory duty to act. Environmental health officers will have no option but to attend to those complaints. They cannot say, "We would like to do so, but those complaints are not a matter of priority."

There are 400 local authorities in this country, and right hon. and hon. Members can calculate for themselves the extra work load that will be placed on members of the institution of which I have the honour to be a vice-president. I calculate that each local authority will have to deal with an additional 1,500 cases per year, with major implications not only for the Consolidated Fund but for local authorities, and therefore for the community charges that they make. I do not know what priority local authorities would give to such complaints. I confess that I have not spoken to the institution in that respect, so the following are my views alone. If one considers three of the important duties of environmental health officers, one's concern begins to increase. EHOs are required, for example, to certify whether a house is in such a bad state of disrepair that no one should be expected to live in it. That is a critical responsibility, and I should not want to see anything else take precedence over it. EHOs are also called upon to deal with complaints about excessive noise, and with the whole subject of food safety and public health--which the public acknowledge as a proper responsibility of local authorities and of the members of the Institution of Environmental Health Officers who undertake it. How are EHOs expected to cope with all that work and investigate an additional 1,500 cases--and that may be an underestimate--per year? I know from my involvement in the institution and from my previous political life as a local councillor that there remains a significant national shortage of properly qualified personnel to fill the role of environmental health officers.

If politics is about priorities, we must ask ourselves whether it is right to place the new responsibilities introduced by clause 12 on people who are becoming more important by the month. I spend a great deal of time travelling around the country to give talks on environmental issues. The points that I have made are brought to my attention time and again by the public. It is seldom that people complain to me as dissatisfied customers. The number who do so is tiny by comparison with those who say, "Please do something to reduce the hellish noise that I have to suffer in my flat," or ask, "Are the products that we eat or drink safe?"

I want answers from my hon. Friend the Minister on the questions that I asked earlier, and a response from the Bill's promoter on the points that I put to him. If their responses satisfy me, I am prepared to move on, to debate the other amendments to which I referred. Mr. Wilshire : I am relieved that the procedural matters are behind us, so that we can turn at last to a Bill, the objectives and principles of which have had the support of people right across the political spectrum from the very beginning. I hope that we may now make progress.

We must sort out three things in our minds. First, we must take account of the fact that this is a Committee of the whole House. Therefore, for the benefit of those not party to our earlier deliberations we must clarify exactly what clause 12 seeks to do. Secondly, at no stage during

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the deliberations of the Standing Committee did we give any thought to public expenditure in the context of the objectives of the Bill. Having let procedural matters go through so rapidly, it would be improper to allow what appears to be £1 million to go through without careful scrutiny. Thirdly, we must ask ourselves whether, as a Committee of the whole House, we are justified to try to put right at the 11th hour matters that there has been plenty of time to put right before now.

First, we should be clear about the exact meaning of clause 12. As my hon. Friend the Member for Horncastle (Mr. Squire) said earlier, it will give trading standards authorities a new statutory duty. My hon. Friend was talking about opportunity to do things, but in this context we are talking about a duty that will be required of those authorities and if they are in dereliction of that duty the public will have a right to require action to be taken. Little discretion is involved. If we go down that track, as sure as day follows night, public expenditue will be incurred. It is crucial to understand the powers that we are giving to those authorities.

1.45 am

Section 39 of the Act concerns the all reasonable steps defence. That is right and proper and I do not quarrel with it. If one is hauled up before a trading standards authority it is proper to say, "I did my best." Section 40 says that if the law is broken one can take action against a second person as well as the principal person involved. I also think that that is a sensible technicality. Before dealing with technicalities of that sort, however, we must return to the principle which is at stake in clause 12.

I can identify the following principles. Given all the debate about local government at the moment, should we be giving local government, via clause 12, yet another job, whether funded or not?

Mr. Ron Davies rose --

Mr. Wilshire : I give way to the hon. Gentleman.

Mr. Davies : I do not wish to intervene.

The Second Deputy Chairman : The hon. Member was too generous in giving way.

Mr. Wilshire : I am known throughout the House for my generosity, and I willingly give way to Labour Whips as well as to Whips on my own side if they wish to break their silence.

If I can gather my wits rather than my Whips about me, should we be giving local government yet another job when we are not sure where the money is to come from? Secondly, are the trading standards authorities the right enforcers for this? My hon. Friend the Member for Hornchurch touched on that and I will develop the argument in a moment. Thirdly, has the trading standards authority been consulted? I will explain in a moment why I ask that question.

Is it right for the House to give local government yet another job? Before I came to the House, I spent 11 years as a councillor in local government. That experience has made me wary of what appears to be a habit of all Governments of whatever persuasion, and the promoter of the Bill is falling prey to the same dangerous habit. Time and again, they decide that something is a good idea, approve the principle, shunt it off to local government and blame local government if it goes wrong. That concerns me

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greatly. Local government is already in difficulty as a result of the tasks given to it. Many local authorities have difficulty repairing houses within a reasonable period. Shoving yet another task on to them means that they will not be able to tackle fundamental problems.

There is great debate about overspending by local authorities and it is undeniable that many local authorities are unjustifiably spending far too much money. For different reasons, all parties are critical of local government expenditure and the question is being examined by people of all political persuasions. It is therefore essential to ask whether we should add to local authorities' expenditure in this way.

It is also necessary to consider whether the trading standards authorities ought to enforce the provisions of the Bill. I served on a county council and a public protection committee. Trading standards officers of great quality, ability and enthusiasm have been involved in the enforcement of the criminal law. Parliament specifies the penalties. Trading standards officers have the role of policemen in local government and enforce the criminal law. If they are given the powers provided in the Bill, we shall for the first time be turning then into enforcers of civil rights. That would be very dangerous. It would muddle their role of enforcing the criminal law with the enforcement of civil rights and local government would be given a role for which it is not well suited.

What are trading standards authorities to do if they are given the dual role of enforcing both the criminal law and civil rights? Are they to take the view that their true role is to deal with the criminal law, ignore the civil rights bit and all will be well? If so they would overlook the point that I made earlier--that they will have a statutory duty to enforce everything, not just to enforce the bits that they think appropriate while ignoring all the others. We should be setting a dangerous precedent if we provided local government officers with such powers.

We must also inquire into whether the trading standards authorities have been consulted. I should not have bothered to raise the matter, but for something that came to light in Committee. We were told by the British Radio and Electronic Equipment Manufacturers Association that it was not consulted about the Bill, yet that association represents some of the leading high street names in terms of manufacturers of radio and electronic equipment. BREEMA wrote to the National Consumer Council on 8 November :

"The Members expressed surprise that the Association was not consulted during the preparation of the report as their goods are specifically mentioned and they would have been able to offer useful and practical advice, since it is clearly both in their interests and in the interests of the public to have a scheme which is a workable proposition."

That was an example that we heard of in Committee of an interested party not being consulted.

We must therefore find out whether the trading standards authorities have been consulted and, if so, whether they are worried about civil rights, whether they believe that they will be able to enforce everything in the Bill or whether they believe that only certain powers should be given to them. I should like some answers. We have to consider which parts could be enforced. I am not a lawyer, but I have some more questions about the detail of part IV. I do not know whether my hon. Friend the Minister is a lawyer or whether he could get some legal advice, but my hon. Friend the Minister, the promoter of the Bill or someone else might like to intervene to explain

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whether the whole of part IV, which we are seeking to include, is suitable for the Bill. Is it applicable to the objectives of the Bill and is it enforceable by trading standard authorities? I am not a lawyer, but I gather that there are some doubts about whether the whole of part IV is suitable, applicable or enforceable. Before we vote on the clause, we should consult somebody who can clarify whether that is the case.

Bearing in mind that I have still not heard an answer all these hours later as to whether it is only clause 12 of the Bill which requires a money resolution, can somebody please tell me whether part IV is the only part that is relevant or are we going to find at some subsequent date that parts of other Acts should have been brought in? As there has been so much confusion in the past we need that to be cleared up. Because we have a money resolution and because, contrary to what we were told at the outset, we now know that public expenditure is involved, we have to discuss that. It is wholly irresponsible for us to wave aside money in the hope of getting a measure on to the statute book because its objectives are laudable.

Mr. Squire : Does my hon. Friend agree that if the Committee had met when things were as lively as they seem to be at the moment every right hon. and hon. Member on the Committee would have known about the high profile of the community charge or poll tax, and had they known that the money resolution was necessary they would have given clause 12 much greater attention than we have given it today?

Mr. Andrew F. Bennett : On a point of order, Miss Boothroyd. Will you confirm that the right time for hon. Members to discuss the money resolution was last night when it went through without any debate? Is this not another example of the way in which hon. Members have deliberately set out to filibuster by not taking things at the right time?

The Second Deputy Chairman : There is some reason to refer to it on clause 12.

Mr. Wilshire : I am grateful for that, Miss Boothroyd, as it is fundamental that we consider the question of expenditure.

Mr. Bennett : Why did the hon. Member not speak against it last night?

Mr. Wilshire : If the hon. Gentleman would not try to shout me down, he would get an answer--if he wants an answer rather than having a closed mind, having made his point.

As we have now been told that the clause has financial implications, it is essential that we discuss it. When we considered the Bill in Standing Committee we were told on good authority by the sponsors of the Bill and the people who drafted it that there were no public expenditure requirements. Our discussion in Committee was based on the fact that no part of the Bill involved public expenditure, so I certainly make no apology for saying that last night and this morning the rules have been changed by the House and now that we are in Committee we have to consider whether we should pursue the matter given its financial implications.

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My hon. Friend the Member for Hornchurch asked me whether I would care to speculate on the views of other hon. Members, and I would not. If my hon. Friend checks my track record over the years in local government and here, he will know that I consider that every time that there has been any suggestion of the expenditure of public money it is critical that we examine it. I make no apology for that because one of the reasons why we get ourselves into a mess in the town halls and in Parliament is that we do not think hard enough about whether expenditure is justified and whether we have the money to spend in the first place. We must consider public expenditure.

The Minister moved the money resolution last night, so perhaps he can tell me how the sum of £1 million was reached. During my 11 years in local government I became cynical about figures put to me with comments such as, "It's not much", "It really doesn't matter", "We don't mind, do we?" and "It will be all right in the end". As sure as eggs were eggs, in the final accounts for the year the figure was not the same figure or even double-- usually it was out of sight because nobody had asked the relevant questions in the first place. 2 pm

Mr. Forth : My hon. Friend will appreciate the difficulty for anybody at this stage of estimating the size of an appropriate money resolution because we have not finally formed the Bill. At best it can be only an estimate for the good reason that he gave in Committee--he may want to return to some of these issues--that the details of the substantive clauses and the way in which the Bill may be operated would have a direct effect on the burden on trading standards departments and thus on the size of the money resolution. It is not unreasonable that a best estimate was made. I hope that my hon. Friend will give that some thought and, if I may say so, be a little more charitable and not press the point about the £1 million.

Mr. Wilshire : I certainly accept the integrity of those who tried to work out the figure. My experience suggests that sometimes the sum turns out to be greater. We are considering this in good faith, but has the advice of the would-be enforcing authorities been sought? Does the trading standards authority agree that £1 million is a reasonable sum?

Are we justified in trying to put these matters right? We already know that when we reach Report amendments Nos. 133 and 134 are tabled to remove clause 12. In other words, we are being asked now to include clause 12 and to agree public expenditure, when we shall shortly be asked to remove it again. What are we doing? What sort of side show are we running when we start doing strange things like that?

This business of putting the clause in, taking it out and putting it back in again highlights what plagued the Standing Committee stage of the Bill from the beginning. We tried to deal with sloppy drafting and sloppy procedure. This morning we have again been asked to bale out the Bill. So far, we have decided that we should do so, but I still have my doubts. It is probably more sensible to reject clause 12 now and make it crystal clear that no Committee, whether a Standing Committee or a Committee of the whole House, is prepared to have served up to it matters that have not been thought through. No Committee should be expected in one morning to say, "All is forgiven, we shall put it right."

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Before we go any further we must be clear about important matters of principle. Should we give local government another job? Are the trading standards authorities the right people and have they been consulted? Is using part IV of another Act suitable? Is it applicable to what we are trying to do? Is it the only relevant part of other Acts that we need to consider?

We need to explore the financial issues more thoroughly than we have done. We have heard the Minister's view on whether £1 million is the right sum. We have not yet discussed whether, if £1 million is available and we are prepared to go along this track, this is the best use of that money. I should like to come back to that, if there is an opportunity. There are so many demands on extra money in local government that before we say, "OK- -more money to this cause," should we not look at the other demands being placed on local government? The other issue of finance yet to be mentioned- -perhaps the Minister would care to comment on it--is who will provide the extra money. Will central Government put up that £1 million and spread it about? What about Government policy? Do we agree that we should be bearing down on public expenditure? If central Government are not to provide the money, one is bound to ask who will. If the money is to be provided by the local charge payer we are back to the debate about whether community charges should be as high as they are or lower. Although this is a late hour in our proceedings, there are fundamental questions which must be answered before it would strike me as sensible to allow clause 12 to stand part.

Mr. Forth : It might be appropriate and helpful to the Committee if I tried to give some answers to the questions posed by my hon. Friend the Member for Spelthorne (Mr. Wilshire). In doing so I shall give some of the background to the money resolution, which has been mentioned and criticised in certain respects.

Clause 12 provides that part IV of the Consumer Protection Act 1987, which gives the basis for enforcement, is to apply in relation to the enforcement of the Bill. The application of part IV of the 1987 Act requires the expenditure of money for a variety of purposes. That is why the money resolution has been tabled. I shall not take the Committee back to the long debate that we had earlier this morning about the resolution.

Mr. Ron Davies : This is about the third time the Minister has spoken today. He would command much more respect from the Opposition if he made it abundantly clear that his objective is not to try to sort out the procedural irregularities identified, but to kill the Bill. That is what he is doing. If that is what he intended from the outset, why on earth did he not have the integrity to come to the House on Second Reading to ensure that the Government, who apparently oppose the Bill, brought in their troops to vote it out? He is doing himself no good by carrying on as he is.

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