England and Wales High Court (Administrative Court) Decisions

IN THE SUPREME COURT OF JUDICATURE
QUEEN'S BENCH DIVISION (CROWN OFFICE LIST)

		Royal Courts of Justice Strand, London, WC2A 2LL
		23 November 1999

LORD CHIEF JUSTICE:

On 28 April 1998 Liverpool City Council issued a press release concerning some models of babywalker which were said to fail standard tests of safety. The issue on this application is whether, in issuing that press release, the Council acted unlawfully. The ground of challenge is not that the Council acted irrationally or in bad faith or with any improper motive, nor is the Council accused of procedural unfairness. The sole ground of challenge is that, having regard to the legislative scheme governing regulation of the safety of consumer products, it was beyond the power of the Council to issue the press release which it did.

The first applicant is an unincorporated trade association representing the interests of manufacturers and importers of baby products. The products which members manufacture or import include babywalkers, which are mobile frames used by very young children when they are learning to walk. The second applicant is the secretary of the first applicant, and is added as an applicant for formal reasons. The first respondent is the Liverpool City Council. The Secretary of State for Trade and Industry was served under Order 53 rule 5(3) and has exercised his right to be represented at the hearing.

The facts

In July 1997 the Trading Standards Department of the Council began to investigate the safety of babywalkers. During August and September 1997 a number of different models were bought and subjected to testing by officially approved laboratories. A number of the models, tested for compliance with British Standard 4648 of 1989, were found to fail. On 17 November 1997 letters were written to members of the first applicant informing them of the investigation and calling for information under section 29 of the Consumer Protection Act 1987. Further tests were then performed, meetings were held and a contentious correspondence ensued.

On 27 March 1998 the Council wrote to certain members of the first applicant. In these letters the Council wrote:

"Based on the results of all the samples tested, it would appear that a considerable percentage of the product is in breach of the above legislation. You must stop supplying all non-complying babywalkers immediately, if you have not done so already. To minimise the risk of product liability claims, you should also take steps to advise distributors, retailers and users of the non-compliance and arrange to recall the products affected.

In discussion with the DTI we will be issuing a safety warning in the media naming a number of non-complying products, including your model. This will be done within the next two weeks. ...

Please provide me with any information you can about any intentions to publish a product recall so I can include appropriate references in the warning. Similarly, I would like details of any public information line you intend to set up for the benefit of your customers."

Solicitors were instructed for the first applicant and those of its members to whom letters had been written. The solicitors made plain that the allegations of non-compliance were strongly contested. The member companies were unwilling to recall products at that stage. The solicitors strongly contested the right of the Council to issue a safety warning in the media as threatened.

On 28 April 1998 the Council issued the press release which is the subject of this application. This press release announced that samples of ten models of babywalkers had been tested and found not to comply with the British Standard Safety specification. Details of the makes and models were set out in an appendix. In the course of the press release it was stated:

"Head of Trading Standards Services, Peter Mawdsley, said "The advice we have received from RoSPA (the Royal Society for the Prevention of Accidents) indicates that these types of failures are likely to present a risk of injuries to babies. We have therefore asked producers to stop supplying products which do not comply with the standard and to arrange to recall all the products affected.

Where a recall is launched, people should follow the producer's instructions. Where no recall is in place it will be unlikely that most consumers can identify whether their example of the babywalker in question complies or not. Liverpool Trading Standards has set up a special hot line for local parents and carers seeking further information - 225 3333.

Official Government statistics estimate that almost 23,000 infants were injured and taken to hospital between 1992 and 1996 following accidents involving babywalkers. 17,500 involved infants under one year old. It is not possible to say how many of these were the result of problems such as those identified in the tests. It is clear, however, that safety is a very important consideration where babwalkers are concerned."

In their form 86A the applicants contend that the purpose and intended effect of the press release was to give a public warning so as to cause a recall of the identified products and to cause a suspension of supply. They also say that this was in fact the effect of it. The identified members of the first applicant were, as a result of the press release, obliged to suspend supply and recall their product. These assertions were not challenged by the Council.

The legislative framework

Pursuant to obligations imposed on the United Kingdom by Council Directive 92/59/EEC of 29 June 1992, the Secretary of State made the General Product Safety Regulations 1994 S.I. 1994 No. 2328. In Regulation 2, "safe product" was defined in terms which required account to be taken, in particular, of the categories of consumers at serious risk when using a product, in particular children. Regulation 7 imposed a general safety requirement:

"No producer shall place a product on the market unless the product is a safe product."

Regulation 8 placed a duty on a producer to provide customers with information relevant to risk, and Regulation 9 imposed duties on distributors. Regulation 12 made it an offence to contravene Regulation 7 or 9. Regulation 11, so far as relevant, provided:

"For the purposes of providing for the enforcement of these Regulations -

(a) section 13 of the 1987 Act (prohibition notices and notices to warn) shall (to the extent that it does not already do so) apply to products as it applies to relevant goods under that section:

(b) the requirements of these Regulations shall constitute safety provisions for the purposes of sections 14 (suspension notices), 15 (appeals against suspension notices), 16 (forfeiture: England, Wales and Northern Ireland), 17 (forfeiture: Scotland) and 18 (power to obtain information) of the 1987 Act;

(c) (i) subject to paragraph (ii) below a weights and measures authority in Great Britain and a district council in Northern Ireland shall have the same duty to enforce these Regulations as they have in relation to Part II of the 1987 Act, and Part IV, .. of that Act shall apply accordingly;"

Part IV of the Consumer Protection Act 1987 is concerned with enforcement of Parts II and III of that Act. Section 27 (which is within Part IV) provides:

"(1) Subject to the following provisions of this section -

(a) it shall be the duty of every weights and measures authority in Great Britain to enforce within their area the safety provisions and the provisions by or under Part III of this Act. "

Powers are conferred to make test purchases (section 28) and to search (section 29).

Section 14 of the Act provides for the issue of suspension notices. These have the effect of prohibiting the supply of goods save with (and in accordance with any conditions of) consent: section 14(1) and (5). Power to issue such notices is conferred on the Secretary of State and on a weights and measures authority (such as the Liverpool City Council): sections 14(1), 27(1)(a) and 45(1). Such a notice may be issued, either by the Secretary of State or by the weights and measures authority, where there are reasonable grounds for suspecting that a safety provision has been contravened in relation to any goods: section14(1). Contravention of a suspension notice is a criminal offence: section 14(6). The section contains important safeguards for the benefit of those on whom the notice is served: the notice is for a maximum period of six months (section 14(1)); the goods must be described and the grounds for suspecting contravention of a safety provision must be set out (section 14(2)(a) and (b)); no further notice may be served unless criminal or forfeiture proceedings have been instituted (section 14(4)); the subject of the notice may appeal to a magistrates' court for an order setting aside the notice on grounds that there has been no contravention in relation to the goods of any safety provision (section 14(2), section 15); the subject of the notice, if unsuccessful in the magistrates' court, may appeal to the crown court (section 15(5)); and the subject of the notice may obtain compensation for loss and damage caused by service of the notice if there has been no contravention in relation to the goods of any safety provision and the service of the notice was not attributable to any neglect or default by the subject of the notice, any disputed question as to the right to or the amount of any compensation payable being determinable by arbitration (section 14(7) and (8)).

By section 13(1)(a) and section 13(2) of and Part I of Schedule 2 to the Act, power was conferred to serve a prohibition notice. The effect of such a notice is to prohibit the person on whom it is served from supplying or offering to supply goods save with (and in accordance with the conditions of) any consent (section 13(1)(a) and (3)). This is a power conferred on the Secretary of State, but not on a weights and measures authority (section 13(1)). Such a notice may only be issued in relation to any goods if the Secretary of State considers them to be unsafe (section 13(1)(a)). Contravention of a prohibition notice is a criminal offence (section 13(4)). There are, again, important safeguards for the person upon whom the notice is served: the notice must describe the goods (section 13(1)(a)) and also the reasons why the Secretary of State considers the goods to be unsafe (Schedule 2, paragraph 1(b)); he has a right to make written representations to the Secretary of State for the purpose of establishing that the goods are safe, giving rise to a duty on the Secretary of State to consider whether to revoke the notice (Schedule 2, paragraphs 1(d) and 2(1)); if the notice is not revoked, he has a right to an oral hearing before a person appointed by the Secretary of State, and the Secretary of State must consider any report made by a person so appointed before deciding whether to maintain, vary or revoke the notice (Schedule 2, paragraphs 2-5).

Section 13(1)(b) and (2) of and Part II of Schedule 2 to the Act provide for the service of warning notices. Such a notice requires the person upon whom it is served at his expense to publish in a form and manner and on an occasion specified in the notice a warning about any relevant goods which the Secretary of State considers to be unsafe. It is only the Secretary of State who may serve such a notice (section 13(1)). It may only be served if the Secretary of State considers the goods in question to be unsafe (section 13(1)(b)). It is a criminal offence to contravene such a notice (section 13(4)). In this instance also there are safeguards for the protection of the party upon whom the notice is served: the notice must describe the goods (section 13(1)(b)); service of such a notice must be preceded by service on the subject of a draft of the proposed notice which must, among other things, set out the reasons why the Secretary of State considers the goods to be unsafe (Schedule 2, paragraph 6(1)(d)); the subject of the notice has a right to make representations to the Secretary of State for the purpose of establishing that the goods are safe (Schedule 2, paragraph 6(1)(e)); the subject has a right to an oral hearing before a person appointed by the Secretary of State, and the right to have the matter reconsidered by the Secretary of State in the light of the report submitted by the appointed person (Schedule 2, paragraphs 7-8).

Under the Act, the Secretary of State may make safety regulations (section 11) contravention of which may be an offence (section 12). By section 16 the Secretary of State or a weights and measures authority may apply to a magistrates' court for an order for the forfeiture of goods on grounds of contravention of a safety provision (section 16(1)), the subject having a right of appeal to the crown court (section 16(5)). The Secretary of State may require information to be given for the purpose of deciding whether to make, vary or revoke any safety regulations, or whether to serve, vary or revoke a prohibition notice, or whether to serve or revoke a warning notice (section 18(1)), and failure to comply with such a requirement is an offence.

It is apparent that these provisions comprise a detailed and carefully-crafted code designed, on the one hand, to promote the very important objective of protecting the public against unsafe consumer products and, on the other, to give fair protection to the business interests of manufacturers and suppliers.

The issues

The submissions made by Mr Fordham for the applicants were succinct and compelling:

(1) the press release of 28 April 1998 was the clearest possible warning to the public that the identified models of babywalker were said to be unsafe. The Council had no statutory power to issue such a warning. The Secretary of State could have required the companies involved themselves to publish a warning about the specified goods, but only if he considered that they were unsafe and complied with the statutory conditions regulating the exercise of this power. Had he taken this course the company would have enjoyed the rights and safeguards already listed. By acting as it did the Council purported to exercise a power it did not have and in so doing deprived the companies of rights and safeguards which Parliament had enacted that they should enjoy.

(2) One inevitable and intended object of the press release was to cause a suspension of supply of the identified products by the companies named. Under the Act the Council did have power to give notice suspending supply for a limited period. But this power was one which the Council could only exercise subject to conditions specified in the Act, which gave recipients of the notice important rights and safeguards, and it was a power which the Council did not exercise because no suspension notice was ever served. By acting as it did, the Council again purported to exercise a power it did not have and in so doing deprived the companies of rights and safeguards which Parliament had enacted that they should enjoy.

In seeking to rebut this argument, Miss Frances Patterson QC for the Council and Mr Ashford-Thom for the Secretary of State relied in particular on three statutory provisions which, they argued, empowered the Council to act as it had. The first of these provisions is section 142(2) of the Local Government Act 1972, which provides so far as relevant:

"A local authority may -

(a) arrange for the publication within their area of information relating to the functions of the authority (".

The second is section 111(1) of the same Act which provides:

"(1) Without prejudice to any powers exercisable apart from this section but subject to the provisions of this Act and any other enactment passed before or after this Act, a local authority shall have power to do any thing ... which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions."

The third is section 69(5) of the Weights and Measures Act 1985 which provides:

"A local weights and measures authority may make, or assist in the making of, arrangements to provide advice to or for the benefit of consumers of goods and services within the area of the authority."

Any of those provisions, it was argued, gave the Council ample authority to make a public statement of the kind which it made.

Mr Fordham accepted that, generally speaking, it was open to local authorities to publish information relating to their activities, at any rate within their areas. Had the Council issued suspension notices in accordance with section 14 of the Act, that fact could (he accepted) have been announced to the public. Had the Council initiated any criminal proceedings that fact, and the outcome of such proceedings, could similarly have been announced to the public. Sections 142(2) and 111(1) gave authority to make such announcements if statutory authority was needed. What, however, was impermissible was to make a public announcement having an intention and effect which could only be achieved by implementation of clear and particular procedures prescribed in an Act of Parliament when the effect of the announcement was to deny the companies the rights and protections which Parliament had enacted they should enjoy. So to act was to circumvent the provisions of the legislation and to act unlawfully. Mr Fordham did not accept that section 69(5) of the 1985 Act, an Act exclusively devoted to weights and measures, could be relied on in an entirely different factual context simply because additional and unrelated responsibilities had later been assigned to weights and measures authorities.

Neither the Council nor the Secretary of State, in my judgment, had an effective answer to the main thrust of Mr Fordham's argument. A power conferred in very general terms plainly cannot be relied on to defeat the intention of clear and particular statutory provisions. It may be, as suggested in an affidavit sworn on its behalf, that the Council faced difficulties in framing an effective suspension notice and that its difficulties were compounded by the number of babywalkers already in the possession of the public. It may also be, as stated in an affidavit sworn on behalf of the Secretary of State, that the statutory notice to warn procedure under section 13(1)(b) has never been invoked and that the prescribed procedures are "relatively cumbersome and slow and difficult to apply effectively" in cases such as the present. I can imagine circumstances in which an emergency procedure to supplement the section 13 procedure would be desirable. The remedy for a defective statutory procedure is not, however, to ignore or circumvent it but to amend it. I have doubts whether section 69(5) of the 1985 Act is applicable in circumstances such as the present, but it is unnecessary to reach a concluded view.

I was referred to several authorities, but none of these in my opinion gives valuable assistance in resolving the present application. In R. v. Director General of Fair Trading, ex parte F H Taylor & Co. Ltd. [1981] ICR 292, the Director General of Fair Trading was held to be entitled to issue a press release recording the convictions of a company for contravening safety regulations and the giving of an assurance by that company in relation to its future conduct. But the obtaining of the assurance involved the exercise of an express statutory power, and the issuing of the press release in no way circumvented the provisions of any statutory code. In my opinion the present question falls to be answered as one of principle. I conclude that the applicants' complaint is in principle justified.

I make a declaration that the issue of the press release was contrary to law. I do not regard any further relief as appropriate.