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The noble Baroness said: I propose through this amendment to downgrade the potential penalties for breaches of the labelling requirements under the Bill. I do so for reasons of consistency and proportionality—two of the better regulation principles. I have already read out a bit of the advice on the principle of consistency; on proportionality, the advice is as follows:

The first comparison that I would make is, again, with the Food Labelling Regulations 1996, under which any person found guilty of an offence is liable on summary conviction to a fine not exceeding level 5 on the standard scale, which is currently up to £5,000. The kind of offences that we are talking about under the food labelling regulations would be misleading nutritional information, selling food after the use-by date or not marking or labelling the product in compliance with the regulations. We are looking at a comparable type of message or advice in the Bill. No term of imprisonment is mentioned in the food labelling regulations and no reference is made to conviction on indictment.

There is another comparison, which I suspect the noble Lord, Lord Mitchell, would rather make—the penalty under the Tobacco Products (Manufacture, Presentation and Sale) (Safety) Regulations 2002, under which an offence would attract a penalty harsher than the one that I propose in that it specifies on summary conviction a term of imprisonment not exceeding three months or a fine not exceeding level 5—but please note the either/or. So even here there is no additional mention of a penalty on conviction on indictment of up to two years’ imprisonment, as is currently in this Bill. The penalty is also clearly either three months or the fine, whereas in the Bill it could be both—although I see that the noble Lord intends to try to change that himself. Would he consider going further still and support my amendment, taking the view that the parallel with the food labelling regulations and not the tobacco regulations is the fairer and more consistent approach?

As I argued earlier, we are not in a tobacco situation here: we are talking about advice, not a warning. Smoking kills, whereas alcohol in moderation can be beneficial to some groups in the population. Even in the very specific and special circumstance of pregnancy, it is important to keep things in a proper perspective. I would hate us to fall into the trap of sending out disproportionately alarmist messages and thereby cause problems, not alleviate them, as happened in the USA and Canada in the 1980s, for example, when completely unfounded misinformation about foetal alcohol syndrome reportedly led to unprecedented distress, anxiety and even requests for abortion on the part of healthy women who had been light drinkers, but were scared by the way in which the media and others had distorted research findings that were applicable only to women who were clearly problem drinkers and consuming very high levels of alcohol.

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We are not dealing with a potential offence that should be capable of putting someone behind bars for two years or at all. A fine at level 5, which is the most severe level, is adequate. Anything more than that could be counterproductive, as it could be seen as so disproportionate that convictions would be unlikely. That would, in turn, defeat the whole object of creating an offence. I beg to move.

5.45 pm

Lord Monson: Once again, the noble Baroness has put the case extremely well and I cannot really add to it. The key word is “proportionate”. For the reasons that she mentioned and the comparison that she has drawn, this suggestion would be disproportionate. There is also a practical aspect. As I said at Third Reading of the Criminal Justice and Immigration Bill, our prisons are full to bursting. Unfortunately, the Government are creating more offences for which people can be sent to prison, but this is crazy for practical reasons let alone moral ones. I would have thought that a fine—possibly an unlimited fine—and not imprisonment is the right penalty for such an offence.

Lord Mitchell: This is another clause on which we disagree. On the fears that women might have in this country, given the amount of media publicity on foetal alcohol syndrome and the dangers of drinking when pregnant or thinking of becoming pregnant, I think that most people have begun to get the message by now. I am not sure that that is particular.

I have a real problem with this amendment. I cannot see that there is any difference between a label on a packet of cigarettes and a label on a bottle of alcohol. A label is a label. There would be a legal requirement and if somebody chooses not to comply, they should face the same penalty as for tobacco labelling. As far as I am concerned, the clause should stay as it is in the Bill. As far as a fine is concerned, who would be the transgressors? They would be supermarkets, manufacturers and whoever. If they are fined, they are fined and they will just get on with life. There should be real teeth to this provision and the wording in the Bill should stand.

Baroness Coussins: Does that mean that the noble Lord will not move Amendments Nos. 24 and 25?

Lord Mitchell: I am intending to move Amendments Nos. 24 and 25.

Lord Monson: Could we hear from the Government? This is an important matter. The Government are rightly concerned that our prisons are full to bursting point. They must have a view on whether it is wise to provide for the possibility of imprisonment for such an offence.

Baroness Thornton: The Government’s position is that, should we legislate, we will consider what penalties are most appropriate, using as a starting point the penalties in similar legislation such as for food labelling.

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Lord Mitchell: In that case, I will support the noble Baroness on this.

The Lord Speaker: I can put the Question on Amendment No. 23, but if I do so, I will not be able to call Amendments Nos. 24 and 25.

Lord Mitchell: I am very conscious of the conflict on this. Is there any way that we can defer it for further consideration before we take a position on it?

The Lord Speaker: It may assist the Committee if the noble Baroness withdraws her amendment for the moment and considers the issue on Report.

Baroness Coussins: In those circumstances I am happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 24 and 25 not moved.]

Clause 11 agreed to.

Clauses 12 and 13 agreed to.

Clause 14 [Interpretation]:

Baroness Coussins moved Amendment No. 26:

(a) is classified as a foodstuff for the purposes of licensing or customs and excise legislation, or(b) appears to be solid or heavily textured (or can be made to be, for example, by freezing or shaking).”

The noble Baroness said: This amendment proposes a more comprehensive definition of “alcoholic beverage” that takes into account innovation over recent years in the drinks industry, and without which some products that are particularly popular with young adults may find themselves in a loophole and able to escape the Bill’s obligations.

It is too restrictive to define “alcoholic beverage” only as something in liquid form. When I worked at the Portman Group and we were strengthening the code on the naming, packaging and promotion of alcoholic drinks, we realised that some products might avoid the code’s remit unless we updated the definition to take account of products which looked more like solid or semi-solid crushed ice, gel, jelly, thickened cream or had some such texture. Sometimes these products are not even classified as alcoholic drinks for licensing purposes. The Portman Group upheld a complaint against one of these products that appeared on shelves next to sweets and baking products. It had a very high alcoholic content and was attractive to children. The code got rid of it by ruling against its packaging and getting the retailers to destock it.

The definition proposed in my amendment is taken from the definition used in the Portman Group’s code. I am happy to note that the noble Lord, Lord Mitchell, supports this amendment, which would ensure that the alcoholic products that would be captured by this

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definition would be covered by his Bill, or any other requirements concerning pregnancy advice on labels. I beg to move.

Lord Monson: I did not add my name to this amendment because, frankly, I did not understand entirely what it was getting at. However, now that it has been explained I do understand and it makes perfect sense and I support it. However, I raise liqueur chocolates in this regard. This is not frivolous. In the days when I used to ski—they are, alas, long since gone—I used to enjoy stopping off at Geneva on the way out and on the way home and picking up a few bars of something quite delicious at the airport or railway station called Gouttes de Kirsch. It was a chocolate bar containing full strength kirsch. A woman suffering cravings during pregnancy could easily demolish a bar or two of these. I reckon they contain as much alcohol as a miniature, perhaps more. I wonder whether consideration has been given to that. Liqueur chocolates are not very fashionable in this country nowadays but if you had a craving for them and ate a bar a day you could presumably do yourself harm.

Lord McColl of Dulwich: I draw attention to a very small point regarding alcoholic drink above 0.5 per cent alcohol by volume—0.5 per cent means 0.5 of a gram per 100 ml, so one does not need to include “by volume”.

Lord Mitchell: The amendment is a very useful contribution by the noble Baroness, Lady Coussins. It was suggested by her and it deals with an area which, frankly, I had not anticipated. In response to the noble Lord, Lord Monson, surely chocolates containing alcohol are covered by paragraph (a) of the amendment which states, “classified as a foodstuff”. I would think that his delicious chocolates are probably covered as a foodstuff. I am also pleased that the 0.5 per cent mentioned by the noble Lord, Lord McColl, is a threshold requirement.

On Question, amendment agreed to.

Baroness Coussins moved Amendments Nos. 27 to 29:

On Question, amendments agreed to.

Clause 14, as amended, agreed to.

Clauses 15 and 16 agreed to.

House resumed: Bill reported with amendments.

Consumers, Estate Agents and Redress Act 2007 (Commencement No. 3 and Supplementary Provision) Order 2008

5.57 pm

Lord Tunnicliffe rose to move, That the draft order laid before the House on 10 March be approved.

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The noble Lord said: My Lords, I begin by setting this draft order in context. The Consumers, Estate Agents and Redress Act 2007 sets out key reforms to benefit consumers. It meets this objective in a number of ways. First, it brings together consumer bodies to form the new National Consumer Council and its associated councils in Scotland, Wales and Northern Ireland. It establishes new redress schemes for consumers in the energy, postal services and estate agency sector, and it improves regulation of estate agents and doorstep selling.

The order concerns the new National Consumer Council and the commencement of Section 5 of the Act, which requires the new council to prepare, consult upon and publish a forward work programme. Work is currently under way to fully establish the new council, to enable it to take on its full statutory functions by 1 October 2008. We have already made substantial progress, although much work remains to be done. The first commencement order concerning the new council—Commencement Order No. 2, which came into force on 21 December 2007—brought into force the provisions of the Act which established the new council, required regulators to set complaint handling standards in the gas, electricity and postal services sectors, and provided for new redress schemes in the same sectors. The new council does not yet have its full range of functions, because it is still in the process of being developed.

Commencement Order No. 4 commenced the provision of the Act which requires the new council to keep accounts with effect from 1 April 2008. The objective of the draft order is to bring into force Section 5 of the Act, with supplementary provisions.

Section 5 requires the new council to publish and consult on a draft forward work programme for each financial year. I should like to come back to the definition of “financial year” in a few moments when I discuss the supplementary provision. Copies of the draft programme must be sent to the Secretary of State, Scottish Ministers, Welsh Ministers, the Office of Fair Trading and any regulatory bodies that the council considers might have an interest. The council is required to consider any representations made in response to that consultation.

Section 5 prescribes that the forward work programme must include certain features. It must include a statement of priorities of the council in relation to designated consumers—that is, gas, electricity and postal services consumers—and it must set out the main activities and projects that it plans to undertake in respect of these groups of consumers. The section also requires the council to describe the other priorities, activities and projects which it proposes to undertake.

Finally, the council is required by this section to provide an estimate of expenditure in relation to the forward work programme, and to include separate estimates of expenditure in relation to work in respect of each class of designated consumer: gas and electricity as one class, and postal services as the other.

The supplementary provision in the draft order defines the financial year of the council for the sole purpose of the first forward work programme as

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being the period 1 October 2008 to 31 March 2010. As a result, the council would consult on a forward work programme for that period.

The requirement in Section 5 is that the council should produce a forward work programme before the start of each financial year. The council is currently preparing to be fully operational on 1 October. It is not possible for it to produce a forward work programme before the current financial year, which has, of course, already started. It is necessary to determine a different period of coverage for the first forward work programme.

The plan is to have the council assume its full range of functions on 1 October 2008. It is proposed in the draft order that that should be the starting date for the first forward work programme.

It is sensible to aim to align the period of the forward work programme with the financial year at an early date. One option would be to have the forward work programme cover the period 1 October 2008 to 31 March 2009, which is six months. However, that would require the council to consult on a forward work programme for a relatively short period and, having done so, to enter into another consultation for the period 1 April 2009 to 31 March 2010 almost immediately.

A 12-month period would not align the forward work programme with the financial year. The proposal in the draft order is that the initial period for the forward work programme should be 18 months. The council is already making preparations to consult on a forward work programme. I believe that requiring the council to set out its priorities and objectives for an initial 18-month period would provide it with the opportunity to show its ambition for consumers. I beg to move.

Moved, That the draft order laid before the House on 10 March be approved. 14th Report from the Joint Committee on Statutory Instruments.—(Lord Tunnicliffe.)

Baroness Harris of Richmond: My Lords, I am standing in for my noble friend Lord Razzall. As I understood the remarks of the Minister, the statutory

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instrument requires the National Consumer Council to produce a work programme before the start of each financial year; it is as simple as that. Specifically, the order deals with Section 5 of the Act, and Article 4 also alters the definition of a financial year as it applies to that section. I think that that is what the Minister said. That will now be defined as being from 1 October to 31 March, rather than the normal financial year, thus making a longer cycle of 18 months. I have no more to say. We support the order.

Baroness Wilcox: My Lords, this is a hangover from the exciting debate which ran over the dinner hour last week, so we are all ready for this one. I was chairman of the National Consumer Council and, naturally, I feel very nervous about this new body. I hope that it will be successful. If we have anything to say on the points that the Minister has just made, it would be that the Consumers, Estate Agents and Redress Act gives the Secretary of State the power to require the new National Consumer Council to produce reports on any consumer matter. However, there is no duty for the NCC or the Secretary of State to publish such reports. That calls into question the true independence of the new body. However, I have no wish to stand in the way of the order.

Lord Tunnicliffe: My Lords, I am grateful to noble Lords for their input into this debate. I am told that, in principle, it is highly likely that the Secretary of State would wish to publish reports made to him under Section 18 of the Act. Of course, each case must be considered on its merits and there may be issues, such as confidentiality, which ought to be taken into account before a decision to publish is made. The new council is, of course, able to publish any reports it wants. Publication and consultation on the council’s forward work programme will represent an important step in the development of this new body. On that basis, I commend the order to the House.

On Question, Motion agreed to.

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