Consumer Products (Control of Biocides) Bill [HL]

Lord Thomas of Cwmgiedd Excerpts

2nd reading
Friday 17th January 2025 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I too thank the noble Baroness, Lady Bennett of Manor Castle, for introducing this Bill, and I thank those who preceded me for enhancing a little my scientific education. I shall comment not on the science of the Bill but on an important general development, which is making certain that the law keeps pace with our greater knowledge of science and adapts itself. Therefore, I want to speak about Clause 2, not so much about its detailed wording, because I see the point that the noble Baroness, Lady Anelay, made about particular words, as that is not the purpose of a Second Reading debate. It is important because paragraphs (b) and (c) raise issues that we have to grapple with.

Our criminal law was developed over the centuries in times when punishments were particularly harsh and trials were fast. Steps were gradually taken to try to ameliorate that harshness and make the conviction of someone for a criminal offence fairer and more just. It became an important part of our criminal law that where the resources of the state were vast, it was for the state to establish the elements of the offence and prove them beyond reasonable doubt or making sure.

Parliament has for some time taken a slightly different approach, which I want to mention because it is akin to this provision, and the law generally proceeds by building on what has gone in the past. For some time, it has been the policy of Parliament, accepted by the courts, to transfer certain matters, where they lie particularly within the knowledge of the defendant before the court, to the defendant raising and establishing evidence of that issue. In most cases, because of the provisions of Article 6 of the European Convention on Human Rights, the burden of disproving the defence and showing that the offence is established is left to the state and the prosecution, the burden on the defence being merely evidential. However, there are certain circumstances where the legal burden rests upon the defendant to establish a particular defence.

I say that this provision is akin to that, and it is on that that we should build. It seems to me that this provision has at least four particularly important advantages. First, it places the responsibility at the outset firmly upon the manufacturer, and that is critical. Secondly, it ought to ensure that the manufacturer keeps what he is doing under review to ensure that it is safe. Thirdly, there is far too much regulation, and industry should think: is this sort of provision of self-responsibility not better placed on the manufacturer? That may be harsh and the consequences down the line may be severe, but is this not a better way forward? Fourthly, it is realistic to realise that the state is not equipped, certainly in the area of criminal justice, with the resources that it once had.

I therefore welcome this type of provision. I hope we shall see more provisions of this kind, because we constantly need to rethink and evaluate the regulatory burden that is placed and what the criminal law can do to reduce that burden.