CONSUMER PROTECTION BILL [H.L.]

HL Deb 04 December 1967 vol 287 cc429-520

5.48 p.m.

Committee stage resumed.

VISCOUNT MASSEREENE AND FERRARD

moved, in subsection (2), to leave out "goods or other thing of that person in relation to or by means of which the offence was committed", and to insert "such goods as may have been necessary to prove the offence". The noble Viscount said: My reason for putting down this Amendment is that I consider that Clause 17(2) has been drawn too widely. Subsection (2) says: The court by or before which a person is convicted of an offence under this Act may order any goods or other thing of that person in relation to or by means of which the offence was committed to be forfeited", and so on. This could lead to great injustice. For instance, if that subsection was interpreted literally a shopkeeper might commit an offence in relation to the words in this subsection, "in relation to or by means of which", and not only could he have all his stock of goods forfeited but as I read it he could also be required to forfeit his shop premises if he owned those premises.

If one wants to take it even further, one could read into it that even the factory which had made the offending goods could be forfeited. That may seem rather far-fetched, but as I read the subsection it might mean that. For instance, one may have a factory which manufactured jam, and this jam might be sold as "full fruit jam" and yet have in it some turnip. Under the clause as at present drafted the manufacturer would be committing an offence, and he might have perhaps £20,000 worth or more of this jam. Under the subsection as now drawn all this stock could be seized, and if this were done it might throw many people out of work. The object of my Amendment is to provide that only such goods should be seized as would be necessary to prove the offence.

When one looks at the fines to be imposed, one sees that they are extremely heavy. One can be fined £400 on summary conviction, and on conviction on indictment one is liable to a fine or imprisonment for a term not exceeding two years or both. Surely these penalties are quite severe enough without whole premises or a whole factory having to be forfeited, as appears to be the case under the subsection. I hope that the Government will see some way in which to narrow this subsection so as to make it not so far-reaching in its application. I beg to move.

Amendment moved— Page 10, line 9, leave out from ("any") to first ("to") in line 11 and insert the said new words.—(Viscount Massereene and Ferrard.)

LORD CAWLEY

I feel that this subsection has been resurrected from the 1887 Act, although I have not looked it up. In the 1887 Act there was the offence of forging a trade mark, so the words in the subsection in relation to or by means of which the offence was committed obviously refer to the dies or stamps which were put on the goods. I feel that it would be a good thing if this subsection were looked at again, both in the light of modern conditions and of the fact that forging a trade mark is no longer an offence.

LORD STRABOLGI

I hope the Government will not accept this Amendment. The whole point surely is that confiscation takes place only after conviction. As I read subsection (2), the goods are the goods in relation to or by means of which the offence was committed—not any goods in the factory. I should have thought that it was essential to remove all this category of goods, otherwise the guilty person might go on selling them either directly or through his association. Therefore, I hope the Government will not accept this Amendment.

BARONESS ELLIOT OF HARWOOD

I also hope that the Government will not accept this Amendment. One of the things in the Molony Report which was adversely commented upon was the one-day sale of various goods, particularly that involving carpets. This subsection would make it impossible, for instance, for someone who was having a one-day sale and selling articles which he should not be selling to go on doing so. It would, in fact, be an offence at the discretion of the court, and this would be a powerful deterrent. What is more, he would not then be able to use the goods he was selling at any other sale or take them somewhere else and produce them three or four months later, which was one of the things the Molony Committee was anxious should not take place. In fact the offending goods would be forfeited, and I think that is only right.

LORD AIREDALE

I feel that the noble Viscount, Lord Massereene and Ferrard, clearly has a point here. It is surely going rather wide to allow the court to order forfeiture of "any goods or other thing", as this subsection does. To take the case of goods sold by a vending machine, suppose that bars of chocolate, improperly misdescribed, are sold in a vending machine. It is no doubt quite right that the forfeiture of the bars of chocolate should be ordered by the court, but is it intended in such a case that it should be possible also for the court to order forfeiture of the vending machine? Unless this subsection is amended in some way, that vending machine surely comes within the words or other thing by means of which the offence was committed … Do Her Majesty's Government intend this kind of result to happen? If not, surely the subsection requires to be looked at again.

LORD DRUMALBYN

May I probe this a little further, in light of what the noble Lord, Lord Brown, said on Second Reading? This was a point to which I made reference on Second Reading. The noble Lord said: The Bill calls for forfeiture of goods which have actually been used only to prove an infringement of the law. So that the idea that a court, having found an infringement of the law on the basis of a few samples, can then order forfeiture of the whole of the contents of the warehouse, worth £100,000, is not in accordance with the Bill."—[OFFICIAL REPORT, 14/11/67, col. 674.] I should have thought the principle here was that although goods which are going to do harm to the public may be confiscated, if the goods themselves can do no harm, and it is merely that their qualities, or something in relation to them, or a comparison with some other goods has been misrepresented, that cannot be a reason for their confiscation. The matter simply has to be put right and steps taken to see that they are sold with the right descriptions on them. I hope that this is the intention, but I agree with the noble Lord, Lord Airedale, that it is not clear in the Bill.

LORD WINTERBOTTOM

I think that the Committee are divided on this point. The noble Baroness, Lady Elliot of Harwood, and my noble friend Lord Strabolgi are for taking draconian measures in this matter, but the Government have considerable sympathy with the point of view put by the noble Viscount, Lord Massereene and Ferrard, and the noble Lords, Lord Drumalbyn and Lord Airedale. We believe that the situation is as was set out by my noble friend Lord Brown in his Second Reading speech. It is not intended to spread the net wide for confiscation. Although we believe that the actual phrasing of this Amendment is not quite what we should like to see, we believe that the intention is correct. We believe, for instance, to take Clause 27(1)(d), that the powers are somewhat undefined: A duly authorised officer … may … seize and detain any goods which he has reasonable cause to believe are liable to be forfeited …". We feel that that is somewhat too wide. If the noble Viscount will agree to withdraw his Amendment, perhaps he will take our assurance that we are in sympathy with his intentions. It is not our wish to spread the net of confiscation wider than is absolutely necessary, and we will see whether we can provide wording which will satisfy the whole Committee.

VISCOUNT MASSEREENE AND FERRARD

I thank the noble Lord very much for that answer, and on his assurance I beg leave to withdraw the Amendment.

Amendment, "by leave, withdrawn.

6.0 p.m.

BARONESS ELLIOT OF HARWOOD

moved to add to the clause: ( ) The court by or before which any person is convicted of an offence under this Act may order the person guilty of such offence to make payment by way of compensation to the purchaser of the goods or services misdescribed.

The noble Baroness said: I rise to move Amendment No. 40, which is not really a very revolutionary Amendment. It has a respectable precedent in the Criminal Justice Act 1948, which provides that in certain cases a criminal court may, as part of its sentence, instruct the defendant to pay compensation to the person who has suffered as a result of a criminal act. My proposal will allow a court which has convicted a person under the new law to require him, as part of the penalty, to make compensation to the person who has purchased goods to which a false trade description has been applied, or who has entered into a contract for services which have been falsely or misleadingly described.

There are two strong arguments in favour of giving this discretionary power to the courts. First, people who have suffered loss will be more eager to assist the local authority or other enforcement body, and to give evidence if a case is brought by the State. Secondly, in the great majority of cases this arrangement would place no extra burden on the convicted defendant, but the amount of any award made would be taken into account when the penalty was being assessed. I beg to move.

Amendment moved— Page 10, line 12, at end insert the said subsection.—(Baroness Elliot of Harwood.)

LORD STRABOLGI

I hope that the Government will not accept this Amendment. I think it will encourage the bringing of frivolous prosecutions by those who wish to have their cake and eat it. It would also, in most cases, be very difficult to assess the amount of compensation due to the purchaser, especially with fast-moving, low-priced goods. How is one to assess how many purchasers are to be awarded compensation? It may be that the local authority will prosecute a retailer because of one line of goods which he has been selling. It will be necessary to trace all the customers who bought those goods, and I suppose that if the goods were shoes everybody would have to be given a new pair of shoes. It would be a very large undertaking, and largely unworkable, and would be out of all proportion to the amount of damage done to those unfortunate people who happened to buy something which did not turn out to be what they expected. For those reasons, I hope that the Government will not accept the Amendment.

LORD DRUMALBYN

I think I am right in saying that this would be a very novel provision to introduce into the criminal legislation. I do not know whether the noble Lord will tell us if it is precedented in any way, but it is as if a man was prosecuted for dangerous driving and, at the same time, the same court had to assess the damages of any person who was injured as a result of that dangerous driving. It seems a very curious combination of the civil and criminal law, and I doubt whether either the civil or the criminal courts would welcome this novelty.

LORD WINTERBOTTOM

Not being a lawyer, I cannot assist the noble Lord, Lord Drumalbyn, by quoting any precedent. But what I do know is that the Government are opposed to this Amendment, for the reasons outlined by my noble friend Lord Strabolgi. In the majority of cases where goods are misdescribed, a whole line of goods are affected and many people have bought them. I see no justification for arranging compensation for the few who may chance to be concerned in prosecutions. To provide for the granting of compensation to all purchasers upon a conviction by a criminal court for an offence committed against one purchaser would be quite unworkable, since it would mean that each of them (and there might well be thousands) would have to prove that he had been supplied with the goods or services concerned, and to show what loss he had suffered as a result of the misdescription. We believe that this is simply not a practical measure, and for this reason I ask the noble Baroness to withdraw her Amendment.

BARONESS ELLIOT OF HARWOOD

I think the noble Lord exaggerates, as indeed did the noble Lord, Lord Stratiolgi, the effect the Amendment would have, since it is, in effect, already in the Criminal Justice Act 1948. It might work in a different way from what was suggested. I thought of the person who was the complainant, and who had been given false goods or been cheated in some way, being the person who received the compensation. I accept that if the compensation had to go to a great many people who had not taken the trouble to prosecute that would add to the complications and would make the Amendment unworkable. But I should have thought it only right that it should be possible for an offence under this Bill to be treated in the same way as an offence under the Criminal Justice Act 1948. However, if that is not possible perhaps the noble Lord will consider giving an indication that compensation might be paid in some other way. I beg leave to withdraw the Amendment.

LORD DRUMALBYN

Before my noble friend withdraws the Amendment, I wonder if she could make plain whether the Amendment was intended to mean that compensation would be paid to the purchaser only where the purchaser was the prosecutor.

BARONESS ELLIOT OF HARWOOD

Yes.

LORD DRUMALBYN

That is not what the Amendment says.

BARONESS ELLIOT OF HARWOOD

My intention was that the person who initiated the prosecution and won the case should be given compensation. If the wording that I have put forward is not correct, I am sorry. But that was my point.

LORD LEATHERLAND

I am not a lawyer, but would it not be possible in such an event for the court to award costs in favour of the prosecutor, those costs to include any time lost from her work, and also the expenditure in which she had been involved in purchasing the tins of goods which became the subject of the prosecution?

VISCOUNT COLVILLE OF CULROSS

No. I am quite sure that the costs would not include all that. But I should have thought there were really two points on this. The first is that I know very well that at the moment a Committee is considering the whole question of the supplementary payment of compensation in the case of criminal prosecutions. This is a matter that was discussed under the Criminal Law Act which we had last Session, and I remember that at that time the noble Lord, Lord Stonham, told me there was a Committee looking into this matter. I should have thought it would be a mistake to introduce an ad hoc provision of this kind in advance of the Report of that Committee.

The second point is that criminal courts are not really set up in order to assess civil damages. If there are cases in which somebody has really suffered damage as a result of the misdescription or false description of goods, and has a real pecuniary damage to show for it, that is what the county courts are for.

Amendment, by leave, withdrawn.

6.8 p.m.

LORD ILFORD

moved to add to the clause: ( ) A prosecution for an offence under this Act may be instituted either at the place where the offence is alleged to have been committed or at the place where the offence is detected.

The noble Lord said: This Amendment deals with an administrative matter. Your Lordships will recall that the local authorities who are weights and measures authorities are made responsible by the Bill for the administration of the Act. They are the chosen instruments by which the Act is to be operated. The local authorities are very anxious to obtain this Amendment, and it will certainly facilitate their task very considerably. I hope that your Lordships, and the noble Lord who is going to speak for the Government, will agree that this Amendment should be introduced into the Bill. It provides that a prosecution for an offence under the Act may be instituted either at the place where the offence was detected, or at the place where the offence was committed. In the normal way, of course, the prosecution would occur at the place where the offence was committed. Rather different considerations apply. I think, to prosecutions under this Bill.

There are several reasons why the Bill should include this provision, which might not be acceptable in the case of a Bill of another character. Here it is very possible that an offence may be committed in one town and detected in another. That would mean that the authority which would prosecute for the offence might not be the authority which had detected it. That, I think, is in itself not a satisfactory arrangement. Or, equally, it might mean that if the offence was committed in an area outside the area of the authority in which it was detected, the prosecution would have to be undertaken by one authority in the area of another. All those factors make this rather different, I think, from an ordinary case; and I should have thought that no injustice could be done by making this provision. I hope that your Lordships will agree to it and will give the local authorities, who are going to have a difficult task in administering this Bill, this additional power which they are very anxious to receive. I beg to move.

Amendment moved— Page 10, line 12, at end insert the said subsection.—(Lord Ilford.)

LORD DRUMALBYN

May I ask a question about this Amendment and its effect, first of all? Does this mean that, as between England and Scotland, an offence which was committed in England could be prosecuted in Scotland, and vice versa? Again, it seems to be going rather wide. Also, is it not desirable, broadly speaking, in a measure of this kind, that prosecutions should be undertaken in relation to offences over certain areas, rather than that a weights and measures authority should be able to prosecute in respect of offences that are not committed or detected in their areas? I am not quite certain how far this particular provision would go.

LORD ILFORD

If I may speak again, I am not quite sure that I followed my noble friend. It would certainly make it possible to prosecute for an offence which had not been committed within the area of the prosecuting authority, the prosecuting authority having detected the offence. They might very well have to prosecute it outside their area.

BARONESS ELLIOT OF HARWOOD

May I add just one word? My Council are in very close touch with the weights and measures authorities, and the inspectors find it a great handicap under the present law that they can prosecute only where an offence affects their own locality. The goods may have been labelled in London and the offence committed there. Although two authorities can co-operate to bring a prosecution, the difficulties and expenses of providing witnesses from another part of the country make this very difficult. Therefore, as the noble Lord, Lord Ilford, has said, the Amendment would make matters much easier and more practicable for those local authority officials about whom we are on this occasion talking—namely, the weights and measures officials who are the employees of the local authorities. I beg to support this Amendment.

LORD PARGITER

It would seem that there is a real difficulty here in these modern days, when so many goods, having been packed in one place, are distributed over a very wide area. The person actually selling the article over the counter may rot be guilty of any offence at all: he may be acting in perfectly good faith. Obviously, therefore, no prosecution ought to lie against him. But the person who supplied him with the goods may well have been guilty of an offence, whether wilfully or otherwise. It seems to me that, in those circumstances, the prosecution ought to take place at the point where the offence is committed, and not in some remote shop where the goods happened to have been sold. It seems to me that the object of the Amendment is to provide for this.

I appreciate the difficulties that arise from this method. There may be a number of authorities who discover this particular offence at about the same sort of time, or within a reasonably short time of one another while the thing is boiling up, and who might equally want to prosecute. Being obliged to prosecute in their own area, it could well be that there would be several prosecutions for what is virtually the same offence; whereas if the whole prosecution could be taken at the point where the offence is committed, one authority could do the prosecuting. I am not arguing about which one should do it, but certainly the authority which discovers the offence would have the right to prosecute at that point. The other authorities concerned would then be quite willing to leave this with a single prosecution. It seems to me quite wrong to have the possibility of a dozen prosecutions where one prosecution could settle the issue. I think that is the point which the noble Lord has in mind in his Amendment. It is one, I know, which the county councils, as weights and measures authorities, would support, and I hope that my noble friend will find it possible to accept it.

This is about the only thing that gives any weight to the requirement of notice to the Board of Trade. It may well be that a limited period of notice might be given to the Board of Trade when it was proposed to prosecute in another area, so that there might be some collation of these things which have boiled up at the same time, in order that there should be not more than one prosecution. That might justify the Board of Trade in becoming a sort of co-ordinating authority for the purpose of the prosecution. I cannot think of any other circumstances in which the Board of Trade would require to deal with or give an authority for a prosecution. I am rather trespassing on another point, but I thought your Lordships would be willing to allow me to do so in order to illustrate perhaps the only thing that the Board of Trade could usefully do with regard to prosecutions themselves.

LORD FORSTER OF HARRABY

Is there not a practical disadvantage in this proposal? Suppose an offence which is committed in London is detected in Newcastle. If you are going to try it in Newcastle, you have to take all the witnesses necessary for its proof from London to Newcastle. If you try it in London, all you need do is to bring the man back to London. Are you not going to make very heavy weather by prosecuting him in a place where the offence was not committed at all?

LORD ILFORD

May I speak again? The Amendment will, of course, give the local authority an option as to at which place they prosecute. I do not think the difficulty that my noble friend has raised is really a substantial one.

LORD WINTERBOTTOM

First of all, may I answer the point raised by the noble Lord, Lord Drumalbyn, on the question of England and Scotland? The effect of the Amendment would in fact be, as the noble Lord foresaw, that if this Amendment were carried it would be possible to try in Scotland an offence committed in England, and I believe this would cause very great complications. On balance, Her Majesty's Government are against this Amendment for the following reasons. The general rule of the criminal law is that a prosecution must be instituted in the place where the offence is alleged to have been committed. This applies whether the offence is tried summarily or on indictment. This basic rule has been extended by Statute, principally by the Criminal Justice Act 1925 and the Magistrates' Court Act 1952, and the extensions are complicated. But, very broadly speaking, a person may be prosecuted for an indictable offence also in the place where he is apprehended or is in custody, or where he has appeared in answer to a summons. For summary offences, the general rule—that is, the place where the offence was committed—applies, subject to some very limited exceptions not relevant here.

This Amendment, moved by the noble Lord, Lord Ilford, would make a special extension, not known to the criminal law generally, for offences under the Bill. I think the noble Lord would have to show much stronger ground than he has to justify an exceptional case here. It would cause serious injustice. The case has been made by one noble Lord who mentioned an offence which was committed in London but detected in the North of England. It would be difficult to try the case at the point of detection. The mere wish to strengthen the arm of the enforcing authorities, laudable though that may be, is not sufficient to make such a drastic change desirable solely for the purposes of this Bill. I have listened carefully to what was said but I do not believe that the noble Lord has made a sufficiently strong case to alter the present Rules which apply over the whole field of criminal law. Therefore I cannot advise the Committee to accept this Amendment.

LORD PARGITER

Before the noble Lord sits down, would he just explain the words "where the offence is committed"? Is it committed when the article is sold or is it committed at the time when it was packed? Where is the offence actually committed?

LORD WINTERBOTTOM

The prosecuting authorities will, in fact, form an opinion where the offence has been committed, whether it be at a factory or a packing station or at the counter of a retail shop. The prosecuting authority will have to decide this.

LORD ILFORD

I am sorry the noble Lord has not been able to do a little more than that to encourage the local authorities in what they have to do. In the circumstances, I have no alternative but to ask leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 17 agreed to.

Clause 18 [Time limit for prosecutions]:

6.23 p.m.

LORD DRUMALBYN

moved to add to subsection (2): except in the case of an offence in respect of an oral statement about goods.

The noble Lord said: The purpose of this Amendment is to restrict to six months from the commission of the offence, in place of twelve months, the period of time within which a magistrates' court may try an information. The way this is done, simply by putting in the words, except in the case of an offence in respect of an oral statement about goods", takes out oral statements alone and brings them within Section 104 of the Magistrates Courts Act 1952, which lays down a period of six months. The Bill extends the normal period of six months to twelve months in the case of offences under this Bill. The reason for doing this is, I think, obvious. With offences not connected with oral misdescription there is generally some documentary evidence: whereas by the nature of the case of oral misdescription there can be no documentary evidence, for the people concerned, the shop assistants, may have left the employment and gone elsewhere. In any case, after six months memories grow dim. Altogether, there seems to be a good case, so far as oral misdirection is concerned, to stick to the usual rule of six months. I beg to move.

Amendment moved— Page 10, line 21, at end insert ("except in the case of an offence in respect of an oral statement about goods.").—(Lord Drumalbyn.)

LORD WINTERBOTTOM

The Government have a great deal of sympathy with the object of this Amendment. For the reason stated by the noble Lord, it is accepted that it would be desirable to ensure that summary offences in respect of oral statements should be tried as soon as possible. But the Amendment has several implications which I think need further thought. For instance, if a different rule could be adopted for offences related to oral misdescription it would seem odd to confine it to statements about goods. Do not the same arguments apply to all statements about prices and services? We are also not sure at this stage whether there may not be technical difficulties about adopting a different period of limitation. I am also bearing in mind that the Amendment as it stands would apply only to England and Wales; so the position in Scotland and Northern Ireland would have to be considered.

If the noble Lord would agree to withdraw his Amendment we should be ready to consider whether it will be practicable at a later stage to put forward a proposal which would secure the object he has in mind. But at the moment—and I say this as a warning—we are not certain that it will prove practicable. With my promise to do the best I can, will the noble Lord withdraw his Amendment?

LORD DRUMALBYN

With that statement of good will on the part of the Government towards this Amendment, I beg leave to withdraw it.

Amendment, by leave, withdrawn.

On Question, Whether Clause 18 shall stand part of the Bill?

LORD DRUMALBYN

May I ask a question on Clause 18? Am I right in thinking that subsection (1) of this clause restricts the period, as opposed to subsection (2) under which the period is extended? I understood at some stage that the normal rule is that, so far as offences on indictment are concerned, there is no limit to the period within which the prosecution must be brought. In the Bill, the period is three years. Is it the case that an especially long period is being prescribed here?

LORD WINTERBOTTOM

It was chosen as a particularly long period. That is all I can tell the noble Lord at this stage.

LORD DRUMALBYN

Longer, that is to say, than the normal period for prosecutions on indictment? Then perhaps the noble Lord can explain why a particularly long period is necessary in this case.

LORD BROWN

These are difficult questions—not that I blame the noble Lord for asking them. I think the nature of the offences that may arise under this Bill are such as to warrant this extension of period. There will obviously be some offences which may not be detected for a long time. It would be a pity in some cases to allow people to get away with serious offences because the period since they were committed has outstripped the length of time during which prosecutions can be brought. Therefore the period has been lengthened.

Clause 18 agreed to.

Clause 19:

Offences by corporations

19.—(1) Where an offence under this Act which has been committed by a body corporate is proved to have been committed with the consent and connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

LORD AIREDALE

moved, in subsection (1), after the first "or", to insert "not being an offence under section 13 of this Act". The noble Lord said: Clause 19 deals with offences by directors, managers, secretaries and so on by consent and connivance or by negligence. This Amendment applies only in the case of negligence, and also only in the case of offences that have been committed under Clause 13, which is the clause dealing with false or misleading statements as to services. The Committee will remember that an offence is committed under Clause 13 only if it is made knowingly, that is to say, deliberately, or recklessly.

I am seeking by this Amendment to introduce a safeguard against the case that whereas a person behind the counter has committed an offence only because he has acted deliberately or recklessly, under this clause (if it is not amended in the way I seek to amend it) some manager or director, who must of course be only in remote control of the person behind the counter, will be liable to be prosecuted for a criminal offence for mere negligence. I do not use the expression "mere negligence" as suggesting that negligence is not something to be deplored. But negligence is a very much lower degree of culpability than deliberate responsibility or recklessness. So I am seeking to ensure that in a case where the person behind the counter dealing with a customer has committed an offence only because he has acted recklessly or deliberately, the director or manager in remote control shall not automatically be liable to prosecution for mere negligence, seeing that he has only remote control over the person who commits the principal offence. I beg to move.

Amendment moved— Page 10, line 32, after ("or") insert ("not being an offence under section 13 of this Act").—(Lord Airedale.)

LORD PARGITER

I cannot understand the reason for an Amendment of this kind when one looks at what the clause says. It says that an offence is proved to have been committed with the consent and connivance of, or to be attributable to … Surely this implies, whether it is under Clause 13 or any other clause, that someone has deliberately connived at what has been done. I should have thought that this interpretation shows that a person must be proved to have been guilty at least of assisting in the commission of the offence.

LORD AIREDALE

If the noble Lord, Lord Pargiter, reads subsection (1) he will see that it says: … committed with the consent and connivance of, or to be attributable to any neglect on the part of any director, manager … There is the contrast of connivance and consent on the one hand and mere neglect on the other hand.

LORD PARGITER

With respect, if it is proved that he has neglected to do his duty would not he be prosecuted?

LORD DRUMALBYN

That would be so, but for the way in which Clause 13 is drafted. It says: It shall be an offence for any person in the course of any trade or business—

1. (a) to make a statement which he knows to be false; or
2. (b) recklessly to make a statement which is false."

It is very difficult to find that that is compatible with neglect. I think that here my noble friend is on a logical point. It is a question of compatibility between the two clauses.

LORD WINTERBOTTOM

This is a legal argument. Our view at the moment is that Clause 19, both in form and substance, is the provision which is found in nearly all modern Statutes under which an offence may be committed by a company, which is a purely legal person, and which is actually responsible afterwards. It has long been recognised in our Statute Law that if those officers consent or connive at the company's criminal offence or if it is attributable to their neglect, then they as well as the company shall be guilty of an offence. This is very necessary if the criminal law is to be enforced adequately. The noble Lord, Lord Airedale, has sought to convince us that we should depart from part of this well-established policy in cases where the offence in question is one relating to false or misleading statements as to services under Clause 13.

Having listened to the noble Lord's speech with the care that I find necessary to listen to all legal arguments, I am afraid that I am not completely convinced. If the company is guilty of knowingly or recklessly making a false statement about its services, regardless of whether it is true or false, but it does so owing to neglect on the part of, say, a director who has failed to exercise proper control over the employee who made the false statement, the director should not be permitted to escape liability. We believe that it would seriously weaken the deterrent effect of Clause 13 were he allowed to do so. That is the present view of the Government. Nevertheless, the opposite case has been argued forcibly by two noble Lords, and we will have a look at it before we finally make up our minds.

LORD AIREDALE

I am obliged to the Minister for that assurance. I was not going to weary the Committee with an example, but in view of the observations of the noble Lord, Lord Pargiter, may I shortly explain the sort of situation I have in mind? A company runs a travel agency, and the manager has failed negligently to supply all the details about a particular coastal resort. Somebody has come into the shop and asked the person behind the counter, "Has this place got a nice sandy beach and safe bathing?" The assistant is usually a very reliable person, but it is a hot day and near closing time, and so he is suddenly a bit reckless and says, "Yes, safe bathing and a nice sandy beach", which is all wrong. Under Clause 19 as unamended, the manager who had negligently failed to give his assistant all the particulars is liable to be convicted for mere negligence when the assistant ought to, have said to the customer, "I cannot answer your question, because I have not the particulars." In such a case I do not think that the manager ought to be liable for criminal prosecution. That is all I am suggesting. Since the matter is to be looked at again, I am very pleased to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 19 agreed to.

Clause 20:

Accessories to offences committed abroad

20.—(1) Any person who, in the United Kingdom, assists in or induces the commission in a country outside the United Kingdom of an act in respect of any goods which would be an offence under section 1 of this Act if the act were committed in the United Kingdom and the goods were intended for despatch to that country shall be guilty of an offence, if the trade description concerned is false— (a) in giving an indication (or anything likely to be taken as an indication) that the goods or any part thereof were manufactured, produced, processed or reconditioned in the United Kingdom, being an indication which could not on any reasonable view be regarded as true; or

6.37 p.m.

VISCOUNT COLVILLE OF CULROSS

moved, in subsection (1), to leave out "a" and insert "any other". The noble Viscount said: This is the clause which was mentioned on Second Reading. Although I have found a certain amount of difficulty in seeing exactly what all the words are intended to do, a great deal of assistance was given to the Committee by the speech of the noble Lord, Lord Brown, during the Second Reading debate. The noble Lord said he was trying to catch the person who prints or, I suppose, induces somebody abroad to print, labels to be used in connection with whisky which had been made in some foreign country and was to be sold there with a label on it saying that it was made in Scotland. The noble Lord said this was a very serious thing to do and should be covered by the Bill.

The Amendment which I have put down is primarily one intended to obtain clarification, but I hope that it may be in order if, having introduced the Amendment, I make a slightly wider speech. It is quite clear that the person concerned has to be in the United Kingdom, otherwise the criminal law of this country will not bear upon him, but he may assist or induce the commission of an offence by an act somewhere else, in a foreign country, and it will be an offence for him to do it—or it would have been, under subsection (1), had the offence been committed in this country, and also, as I understand it, if the goods were to be despatched to the country in which the offence was committed. The way that this clause reads seems to be to be capable of a double construction. It might be that in line 6 "that country" could relate back to the last mentioned country, which is, of course, the United Kingdom. I do not think that that is what is intended; I think it is meant to relate back to the foreign country which is referred to in line 2. Therefore, in order to make quite clear that this is the case, I consider that the words I suggest in this and Amendment No. 44, which should be read together, would be an advantage.

I know that no draftsman is anxious to have extra words put into his Bill, but I should have thought that this was a difficult clause on the face of it, in any event, and if we could give a few more guide posts it might not be a bad thing. The broader issue is, what is the point of introducing the words in lines 5 and 6: and the goods were intended for despatch to that country …"? I do not understand why we have to put them in the clause. If we could leave them out, my problem would not arise. Perhaps the noble Lord will explain. He might also consider whether it is right to extend the criminal jurisdiction of our courts over activities which are committed in other countries where, I assume, they may not be illegal. I appreciate that this clause has to do almost entirely with the labelling of goods as being made in England, Scotland or Wales or in whatever part of the country it may be, and it is a rather narrower offence than the whole gamut of offences which could be committed under this Bill, but I wonder whether the noble Lord has considered the situation where it is perfectly legal to do this in a foreign country but the man is nevertheless penalised because he happened to have started a telephone conversation in London. There is a point of force here, even if it is a dreadful thing to say that foreign Scotch was "made in Scotland".

Amendment moved— Page 11, line 2, leave out ("a") and insert ("any other").—(Viscount Colville of Culross.)

LORD CAWLEY

On this clause, I have submitted a memorandum to the noble Lord, Lord Brown, because I find it extremely difficult. I find subsection (2) easy but the rest very difficult to understand. I will not repeat what the noble Viscount said. I put that point on Second Reading. The clause suggests that there may be some situation in this country where the application of a false trade description may be an offence only if the goods are intended for despatch to some country overseas. That appears to be something not contemplated by Clause 1 of the Bill. A false description is a false description wherever the goods are going to be sent. I think it would be better if this was removed. We get the curious phrase in subsection (1)(a), … being an indication which could not on any reasonable view be regarded as true; I think that this presents a great difficulty for a magistrate, because it appears to be another interpretation of the meaning of "false". I should have thought that there was no difference between "an indication which could not on any reasonable view be regarded as true" and false.

In paragraph (b) I find great difficulty in the words "in using", because they must refer to trade descriptions, so that it would read: … the trade description concerned is false … in using an expression … Noble Lords and I can use expressions but I very much doubt if a trade description can, though it may be able to do so. The paragraph continues: … (or anything likely to be taken as an expression) to which, when used in the circumstances in which it is used, … Surely that must be a different type of user. It must be application to goods. I find this extremely difficult.

In the past, there have been cases where a jury of matrons has been empanelled to decide certain facts. Surely in this case we could empanel a jury of lay magistrates and put this section before them, to see whether they could make head or tail of it. I am not against its principle—I think it is absolutely right—but I do not want malefactors to "get away with it" simply because magistrates cannot interpret the clause.

LORD HAWKE

I am thoroughly in favour of the clause but, as my past experience as a merchant shows, one can often commit an offence such as this if one cannot disentangle precisely what offence is intended to be caught by the clause. I find it difficult to understand this clause, and by the time it is translated into Japanese it will be still more difficult. If one gets something done in Ruritania which is an offence in this country and has the goods shipped to any country in the world, including the United Kingdom, that should be and could be an offence here. I cannot understand why it is only an offence if one causes the action to be committed in respect of goods which are to be despatched to Ruritania itself. What happens if you despatch goods to Ruritania and they are falsely labelled in Ruritania? There seems to be something defective dwelling here. I think that the clause wants redrafting.

LORD BROWN

It would be just as well if I started my reply in support of this clause by saying that I discussed the whole clause with those who drafted it. They believe that though it is difficult in wording, it is clear in law. Noting the criticisms on Second Reading and the criticisms in Committee to-day and other communications I have received, I have come to the conclusion that we ought to make an attempt to straighten the clause out and see whether we cannot do something better. But I cannot assure your Lordships that the attempt will be successful. There may be more difficulties in straightening this out than noble Lords believe to be the case.

Rather than let the points raised by noble Lords go by default, I ought to point out the defence against some of the criticisms that have been made, especially, though I hope this will not be the case, if we have to bring the clause back in its present form. Dealing with the noble Viscount's Amendment, I suggest that as the clause is now drafted the words "that country" in line 6 can refer only to the country outside the United Kingdom referred to in lines 2 and 3. I ought to point out that to speak of any country outside the United Kingdom suggests that reference has already been made to some country outside the United Kingdom when previous references are to the United Kingdom. These are debating points on wording and I do not want to pursue them.

LORD HAWKE

I am absolutely agog with curiosity about what the words "to that country" really mean. Will the noble Lord translate them?

LORD BROWN

To the country to which the goods have been exported, of course.

VISCOUNT COLVILLE OF CULROSS

The whole point is that the goods were never here in the first place. They were always in Ruritania. All that has happened here is that either the criminal has printed the labels and sent them to Ruritania or he has encouraged a Ruritanian to print the labels in Ruritania, but the goods never have to be in this country at all.

LORD BROWN

As regards the labels being sent out to be attached to goods in that country, the reference is to the labels being sent to some other country.

LORD HAWKE

I think that this is a hare. What we want to discover is the meaning of the phrase "that country". I should have thought that it was an offence to commit in Ruritania an act in regard to goods that were going to any country in the world. Why the phrase "that country"?

LORD BROWN

Because we are referring to a particular offence, and "that country" in line 6 refers to the country in line 2. That is a straight answer to the question.

LORD CAWLEY

This is a hypothetical case. We have to consider hypothetically whether an act done abroad is an offence here. A false trade description is an offence, whether the goods are to be exported to Timbuctoo or to Russia. If they have "Gran Bretagna" on them, do we say that they are going to be exported to Italy and therefore it is an offence there?

LORD HAWKE

Perhaps it is the word "despatch" that is misleading. If we put in the words "for sale in that country", that would make sense. But that means that you can still do anything in Ruritania and ship the stuff to Utopia and it is no offence.

LORD BROWN

We could carry on this debate for a long time if we pursue the meaning of words. It might be useful for the record if I made a further statement on the purpose of this clause. Subsequent to that, if the noble Lord, Lord Cawley, will gracefully agree, I will not take up the specific points he raised in the memorandum that he sent me, but I will certainly write to him about them. I think the main crux of the discussion that we have had so far is likely to be covered by my undertaking that we will look at the clause and see whether we cannot do better. That rests on the assumption that noble Lords are basically agreed that the general drive of the clause is in accord with their desires. I will now describe the general drive of the clause.

The purpose is to make it an offence for a person in the United Kingdom to act as an accessory to the commission in a country outside the United Kingdom of an act which, if committed in the United Kingdom in respect of goods intended for export to that country—if you like, I will say "any country"—would constitute one or more of the following types of offence under other clauses of the Bill. First, an offence under Clause 1 consisting of the ascription of British origin to goods which could not on any reasonable view be described as British; for example, a dealer carrying on business in the United Kingdom buys a consignment of Polish cotton goods which have no connection of any sort with the United Kingdom. He orders his agent in, say, Amsterdam, to mark them "Made in England" before they are resold—

LORD CAWLEY

Surely that is false. The word "false" is enough.

LORD BROWN

We are dealing with false descriptions.

VISCOUNT COLVILLE OF CULROSS

My noble friend is referring to "on any reasonable view". I think it would be better, as the noble Lord, Lord Brown, has suggested, to leave that point.

LORD BROWN

I see. Secondly, an offence under Clause I consisting of the incorrect use of a term which has been defined under the power provided by Clause 7 in the interests of exporters of the goods concerned; for example, the Board might use their powers under Clause 7 to define "whisky" because they thought this would help British distillers to combat the misuse of the expression in foreign markets. If "X" exports labels marked "Whisky" to be applied to a spirit which is not "whisky" as defined by an Order made under Clause 7 in the interests of exporters of whisky, he commits an offence under this clause.

Thirdly, an offence under Clause 12 relating in the main to false representations as to Royal approval or award. This would cover a British manufacturer who ordered his agent in Canada to mark a consignment of shoes then lying in Montreal "As supplied to the Prince of Wales" when the claim was not true.

Let me make it quite clear that this is not an attempt to make laws for foreign countries, nor to assist in the enforcement of their laws. It is designed to prevent people from doing things in this country to assist actions done abroad which could injure or unfairly exploit our commercial good name or the dignity of the Crown. In the light of that expression of the function of the clause, my undertaking to take into account all that has been said, particularly the cogent remarks of the noble Lord, Lord Cawley, about which he has written to me, and my assurance to attempt to see whether we cannot produce a simpler clause which gives effect to those intentions, I hope the noble Viscount will find it possible to withdraw the Amendment.

LORD DRUMALBYN

I do not think the noble Lord has actually dealt with the words "in the United Kingdom", in the first line. I think my noble friend drew attention to the fact that it does not matter where he does this action provided the accessory is a British subject, normally resident in Britain, and he is doing it with a view to the sale of the goods in Britain. But it does not matter whether he assists in or induces the commission in the United Kingdom, or whether, when he actually assists in or induces the commission he does it in Amsterdam.

LORD BROWN

I take the noble Lord's point. He could be prosecuted when he came back.

LORD DRUMALBYN

Yes.

VISCOUNT COLVILLE OF CULROSS

I am obliged to the noble Lord, Lord Brown, for suggesting that this might be reconsidered. I should like to read carefully what he has said, because, if I may be a little unkind, the sentence in which he described the drive of the Bill was almost as long and complicated as the sentence in subsection (1) of the clause itself. I think that it will require some study. Noble Lords should not think that those on this side of the Committee have not tried to redraft subsection (1). Some of them have, and have found it very difficult. I thought that it would probably be better to start on the Committee stage with the simple language and leave the noble Lord to deal with that.

There is one point which the noble Lord made about which I am not quite happy. He took my illustration of the labels for whisky. If we can, for the moment, exclude the possibility of "whisky" being defined as a technical term, it is, I think, quite plain that those labels themselves are not the goods, because until they are attached to a bottle of something which is not Scotch whisky there is no falsity and, I should think, no offence under the Bill. Labels in themselves are quite harmless until they become attached to something. Therefore, they are not the goods. The goods must be the bottle with the label on it and the spirit inside. If the noble Lord's advisers suggested otherwise, then I think they must be wrong. Perhaps that is another point that might be looked at. Meanwhile, I have pleasure in asking leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD CAWLEY

I must apologise to the noble Lord, Lord Brown, for the apparent use of unparliamentary language when I used the word "false". It was not addressed to the noble Lord's argument, but merely to the definition of the word. I think my noble friend Lord Colville of Culross picked it up.

LORD BROWN

I assure the noble Lord that no offence is taken.

Clause 20 agreed to.

Clause 21 [Restrictions on institution of proceedings and admission of evidence]:

6.57 p.m.

LORD DRUMALBYN

moved to leave cut subsection (1) and insert: (1) Where any act or omission constitutes both an offence under this Act and an offence under the Food and Drugs Act 1955 or the Weights and Measures Act, 1963 or the Weights acid Measures Act (Northern Ireland) 1967 proceedings for the offence shall not be instituted under this Act".

The noble Lord said: I beg to move the Amendment standing in my name and that of my noble friend Lord Cawley. As it stands, Clause 21 provides for the steps, such as service of notices and evidence concerning analysis, to be taken where any act or omission constitutes both an offence under the Bill and also an offence under one or more of the other Acts set out and any instrument made thereunder. This means that persons are at risk under two or possibly three Statutes, each of which provides for different procedures (including notices), different defences and different penalties. The proceedings under these Acts already on the Statute Book are well known, and weights and measures authorities have no difficulty in carrying them out. The food trade, on its side, has enough to contend with in complying with the complicated regulations made under the Food and Drugs Act, without having to look over its shoulder at possible additional charges based on the same alleged offence. It is surely only equitable that where an offence is covered by one of the existing Statutes no charge should lie under this Bill.

It is possible that a tendency will develop for the prosecution to bring alternative charges under the different Statutes and later to stop prosecution under the more specific Food and Drugs Act and Weights and Measures Act, and opt instead for the wider provisions and stiffer penalties of this Bill. Where legislation exists to deal with specific offences prosecutions should surely be brought under that legislation and not under alternative more general measures. Overlapping legislation can only lead to confusion. I beg to move.

Amendment moved— Page 11, line 23, leave out subsection (1) and insert the said new subsection.—(Lord Drumalbyn.)

LORD BROWN

I agree with the noble Lord about the attraction of this and the next Amendment, and we should be glad to adopt such a neat and tidy arrangement if we thought it would work satisfactorily. In practice, however, we fear that it would give rise to difficulties. There are bound to be cases where goods are described in a way which would seem clearly to offend against this Bill and which might possibly, but less certainly, offend against one of the other Statutes. Under the Food and Drugs Act, for example, it is an offence to label or advertise food in a manner likely to mislead as to its nature, substance or quality. In given circumstances it may be doubtful whether a description would be held to be misleading when there is little or no doubt that it amounts to a false trade description under this Bill. In such circumstances it would obviously be sensible for the prosecutor to proceed under this Bill.

Similarly, in the case of weights and measures there might be some doubt whether a misdescription of quantity under this Bill would or would not also be an offence under the Weights and Measures Act, bearing in mind that the expression "quantity" is not precisely defined in the latter Act.

If this Amendment were accepted it would be necessary, in any case which was near the borderline, to prefer charges under this Bill and under the other legislation, because no one would know which was appropriate. Furthermore, it would be essential that the court—which would be prohibited from convicting on both charges—should convict under the right Act, or its decision would be liable to be reversed. There would be a danger of endless argument about which Act was appropriate; and a more serious danger that the Amendment would create the very situation which reform of the criminal law should avoid; namely, that in which a person commits an act which it is intended should be penalised and escapes conviction because of a technical difficulty in formulating the charge. It is on these grounds, and in view of the possibility that criminals might escape through the loopholes created by the Amendment, that I strongly ask your Lordships not to accept it.

LORD DRUMALBYN

I am grateful to the noble Lord for having explained this matter, and in the light of his explanation I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

7.3 p.m.

LORD DRUMALBYN

moved to add to the clause: ( ) No proceedings under this Act in respect of an oral misdescription of goods shall be brought if the oral statement conflicts with any statement marked on or accompanying the goods and that information is not false, unless the purchaser had no opportunity of examining the goods on or before purchase.

The noble Lord said: This Amendment is self-explanatory, and I think it is intelligible. The point of the Amendment is quite clear. We have these complicated labelling regulations, and if the manufacturer complies with them the least that the customer can be expected to do is to read them and not to rely on some passing remark of the retailer. As the saying is: why look at the crystal when you can look at the book? It is exactly the same here: why ask the retailer to make a statement which is clearly contained on the label? Of course there is the case that the label might be concealed, or the purchaser might not have an opportunity of examining the goods on or before purchase, and in such a case an exception is made in the Amendment. But it seems that this would be sensible. Although we want to protect the consumer from being cheated, I think the last thing any of us want to do is to over-cosset the consumers and get them out of the way of protecting their own interests by taking reasonable steps such as reading the label. I beg to move.

Amendment moved— Page 12, line 21, at end insert the said subsection.—(Lord Drumalbyn.)

LORD SAINSBURY

As a retailer I think this is a fair and very reasonable Amendment in the circumstances, and I am happy to support it.

LORD AIREDALE

I feel some difficulty in interpreting the words at the end of this Amendment: "no opportunity of examining the goods on or before purchase". In these days so many goods are available for sale, sealed up in containers, boxes, bottles and so on. In such cases does the customer in the shop have an opportunity to examine the goods? In what sense does he have such an opportunity? The goods are inside the sealed packets or bottles. In theory they are there, ready to be examined by the customer; but in practice the shopkeeper will say, "If you break that seal you will have to take those goods because I shall not be able to sell them to anybody else". How will the court construe the words "opportunity of examining the goods on or before purchase"?

LORD BROWN

At first sight this is one of the Amendments which one looks at and says, "This is absolute common sense. Obviously one must accept it". But when one looks a little further it is not so certain. When goods are clearly labelled with information which is quite clearly visible on the outside, it is not at all unreasonable to expect shoppers to look at the information. Unfortunately, as the noble Lord, Lord Airedale, has said, labels are not always clear and obvious. For example, nowadays it is not at all uncommon for a label saying whether a garment is washable to be tucked away inside: in fact I think this is becoming the predominant habit rather than the exception. The shopper may not bother to hunt for it, because she may not know that it is there, and in such circumstances it is very easy for her to ask the question of the shop assistant, who ought to know what is on the label, yet she could be given totally wrong information.

The precise objection to the Amendment is that it would create a loophole in the Bill of which dishonest traders could take advantage, I question whether it is wise to allow such a loophole to emerge because it allows a shopkeeper to deceive customers. For instance, if a label said that a garment was made of wool and rayon the shopkeeper might assure the customer that in fact it was practically all wool. Again, the label might say that a garment could not be washed, but the shopkeeper might assure the customer that it was perfectly all right to wash it, and in fact this was just a case of the manufacturer being over-cautious. I have had such statements made to me. I question the advisability of adopting this Amendment, and I should like to hear whether noble Lords opposite have anything further to say in defence of it.

LORD AUCKLAND

I am not particularly convinced by the explanation given by the noble Lord, Lord Brown. So far as the labelling of garments is concerned, surely it is common sense that the label should be on the inside of the garment, and it is usually fairly easy to see. If, as this Bill intends, there is to be protection for the consumer, the label or the instructions must be placed somewhere where they can not only be fairly easily read but also easily kept on the object concerned, so that they do not fall off or come off in the wash. A good deal of publicity has been given to this over the last few years, and I hope the Government will have second thoughts about accepting this Amendment.

LORD PARGITER

The thing that wo[...]ries me about this Amendment, and similar Amendments, is the impression that the weights and measures authorities, or the appropriate authority, want to rush into prosecutions in every possible circumstance. Surely one can trust the local authority and the inspector, on being faced with the possibility of something being done which ought not to have been done, to examine it and say to the person who has made the complaint, "It is perfectly clear for you to see; it is printed on the label", or something of that kind. If he feels that the person is reasonably protected, it seems to me that to give further protection is not really necessary. One ought to leave something to the good sense of the authorities whose job it is to see that the law is observed. This is really leaning over backwards to do something that the inspectors themselves would very naturally do.

LORD STRABOLGI

I am afraid that I must, with respect, disagree with my noble friend Lord Pargiter. I think this is a very good Amendment, as my noble friend Lord Sainsbury has said, and one which should be considered very carefully by the Government. What is the manufacturer, or the retailer, to do? He takes every trouble to label the garments and to include information with them—for example, that a woollen garment will not shrink—and then a customer is misled by a sales assistant, possibly a young inexperienced assistant who may have taken on the job only that morning, who may be nervous, who may be anxious to please or anxious to make a sale. I think we must allow some protection to the retailer, who, after all, is anxious to please his customers, anxious to sell the goods, anxious that the customers will return and buy them again. He does everything he can, and now he is put at the mercy of some inaccurate oral misdescription, although he has done everything to mark his goods properly. If the customer has not got the wit or enterprise to look at the labels, I do not think local authorities should be allowed to rely on oral misdescription in this way in order to bring prosecutions.

BARONESS BURTON OF COVENTRY

As the Committee know, I do not agree with the bringing of prosecutions for oral misdescription, but on this I should have thought that if an assistant commented wrongly while the correct information was on a label the crime (if that is the word) of the assistant was all the worse. I really and truly can see no excuse at all for anybody selling goods on which there is a label or on which there is an adequate description giving wrong information, and therefore I would certainly not support this Amendment.

LORD DRUMALBYN

Plainly there are two views on this Amendment, and for my part I appreciate in particular the loophole to which the noble Lord, Lord Airedale, has drawn attention. This was imperfect drafting, but it could have been improved. Dealing with the principle of the Amendment, I still feel this is something that would be worth doing. I am rather horrified at the idea (and I am sure my noble friend Lady Elliot of Harwood would have squirmed at it) that while manufacturers, in co-operation with the Consumer Council, could go to all the trouble of putting on a tag, the customer may not look for it, or even know that it is there. I should have thought this was extremely unlikely.

We are really dealing with two sets of cases; those cases where, for example, in the clothing industry, a descriptive label is attached, and the other in the food industry, where a label is on the goods and often a part of the goods. I should have thought that in both cases the consumer could be expected to read the label, and I should have thought the possibility of deliberately attempting to deceive the consumer was very remote indeed. The reason why I put this Amendment down was that I felt it could be only because the shopkeeper had made a mistake. The noble Baroness, Lady Burton of Coventry, takes the opposite view, and thinks this is very reprehensible; that even if it is a mistake the shop assistant should know better. There are two points of view. I rather gathered that the noble Lord, Lord Brown, felt this was opening another loophole. This is certainly not the intention here. I do not know whether the same object could be achieved in a different way without opening a loophole, but as it is not my intention to open loopholes I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 21 agreed to.

On Question, Whether Clause 22 shall stand part of the Bill?

7.17 p.m.

VISCOUNT COLVILLE OF CULROSS

I realise that my noble friend has some Amendments down on Clause 23, but I think it might be appropriate to ask the noble Lord, Lord Brown, about the way that this part of the Bill has been dealt with. Clauses 22 and 23 together cover very much the same ground as the provision in the Food and Drugs Act 1955. I hope it is the latest Act. The section concerned is 113. What that provision does is to ensure that when an offence is committed, and the person who was originally charged says it is somebody else's fault, machinery is provided by which thy can all be dealt with together: they all come up before the magistrates court. I am aware it causes considerable difficulty sometimes because the machinery is not particularly easy to follow. But at least it has the merit that everybody is there at once. It seems to me the way that these two clauses have been set out is liable to lead to individual and separate prosecutions.

It may be that under Clause 23, whether it is amended or not, the person originally charged puts up a defence which is successful, and since the enforcing authority are not happy about this, and since the person originally charged has convinced the court, and them too, that it was really somebody else's fault, they then have to go off and bring another charge against that other person now found to have been the culprit. That is messy and it takes up more time than should be taken up. I wonder whether there is not something to be said for using the type of machinery in the Food and Drugs Act, so that before the case is heard by the magistrates the person charged can say, "Yes, but it was not my fault; it was the fault of my supplier". He can serve the necessary notice and have everybody there at the same time for the magistrates to sort out the position. It is really a matter of putting these two clauses together. I think there is a gap now which might lead to the administrative difficulty I have suggested. I wonder whether the noble Lord has any views on this.

LORD BROWN

Is the noble Viscount referring to the third-party procedure which was in the 1966 version of this Bill?

VISCOUNT COLVILLE OF CULROSS

Yes, I was comparing the two and seeing whether there was perhaps not the possibility of what I was suggesting occurring under this particular method of drafting. There may be good reasons for it, but I think there is this difficulty.

LORD CAWLEY

I have had some experience of the Food and Drugs Act and it is very effective.

LORD BROWN

This is a complex matter, and I have a very long technical note. I am wondering whether to read it in full or to say merely that we take note of what your Lordships have said. I know that this has been the subject of great consideration since the 1966 version. On balance the conclusion was that this Clause 22 should be introduced, which effectively cuts out third-party procedure and makes it unnecessary, and the law can proceed straight to the behind-the-scenes offender, if I may put it that way, without necessarily troubling the ostensible offender.

VISCOUNT COLVILLE OF CULROSS

That is perfectly true, but that is possible anyway under subsection (3) of Section 113 of the Food and Drugs Act; it is possible to go straight to the original culprit if desired, and the third-party procedure is to provide for the occasion where the enforcing authority have not done that and the person charged feels they should have done so.

LORD BROWN

Is the noble Viscount advocating that the third party procedure should have been retained in this Bill in order that the original, the superficial offender shall I call him—the man who is apparently an offender—has the right to go through this procedure even if the prosecuting authority want to take it to the "behind the scenes" offender right away?

VISCOUNT COLVILLE OF CULROSS

No, I am not; I am not suggesting anything of the kind. I approve of subsection (3) of Clause 113 of the 1955 Act, whereby the enforcing authority can start with the original offender if they know who it is. All that concerns me is this. If you do not have the third party machinery, are you not liable to have to bother the magistrates and everybody else concerned twice, because it is not until the first hearing that the defence in Clause 23 is established, and it is not until then that the enforcing authority know that there is somebody else for whom they should go? Therefore you have two cases instead of one. It may be that on balance it is better to do it that way, but I wanted to hear the noble Lord's arguments as to why the Government wish to introduce this possibility of dual proceedings into the law.

LORD DRUMALBYN

May I say this to the noble Lord opposite. I think he is aware that there is considerable interest in this point, and I think it would be of considerable advantage outside the House as well as within it if he were to trouble the Committee with his technical information.

LORD BROWN

I shall proceed to do that. It will be easier for me, because this is a matter outside my normal experience. We have been advised that a third party procedure was incompatible with the more formal procedure and stricter rules of evidence of a trial on indictment. We have now received further advice on this subject and the difficulties of reconciling the third party procedure with the rules applicable to the conduct of a trial on indictment have been more precisely specified.

A trial on indictment is a trial before a jury. The jury reaches its verdict under the direction of the Judge whose duty it is to give them very careful directions on the rules of evidence and to ensure that no inadmissible evidence is put before them during the trial. The Judge has to warn the jury that they must not convict except upon evidence that establishes guilt beyond a reasonable doubt. On the other hand, the standard of proof required for the defendant to establish a defence is that of the balance of probabilities. The introduction of a third party procedure would involve great practical difficulty over the application of these rules. The prosecution will produce evidence to show that the defendant is guilty, and the Judge must warn the jury that before they can find him guilty they must be satisfied beyond reasonable doubt. If, on the other hand, the defendant says that the person who is really responsible is a third party, the Judge must tell the jury that it is enough for the defendant to establish his allegation on the balance of probabilities. In these circumstances there is a danger that the jury will unconsciously set too high a standard for the defendant, because they feel that in acquitting him they are, in effect, finding the third party guilty. This will obviously be unfair to the defendant.

The rules of procedure applicable at a trial on indictment are strict and complex. The order in which the prosecution and the defence may address the court, in particular the right to the last word, are minutely regulated. These are all based on the fact that a trial under our system of criminal procedure is essentially a contest between prosecution and defence with the Judge acting as the umpire who sees that the rules are observed. If the third party procedure were introduced, and a third party took advantage of his right to be heard and to give evidence, the whole procedure would become unmanageably complicated.

Confusion would also arise over the application of the rules relating to the admissibility of evidence of character. The general rule is that the prosecution may not call evidence to attack the character of the defendant unless he has put it in issue (that is, unless he says in effect "the jury cannot possibly believe that I would do a thing like that, see what a high reputation I have amongst by business associates") or attacked the character of a prosecution witness. If a third party were permitted to intervene in order to defend his reputation against the defendant's allegation that he (the third party) is the real villain of the piece, it would be extremely difficult to apply this rule sensibly to the conduct of the dispute between the third party and the defendant. The third party is in effect a kind of "sub-defendant". In other words, the defendant stands in the same relation to him as the prosecution to the defendant in the main proceeding. It follows that the defendant should not be allowed to produce evidence attacking the third party or his witnesses unless the third party has put his character in issue or has attacked the character of the defendant or of his witnesses. But, if this rule is applied, the defendant will be hampered in the conduct of his defence and one of the main purposes of the rules governing the conduct of criminal prosecutions; namely, that the defendant is not to be unfairly prejudiced, will be defeated. An equally grave difficulty will arise if the third party wishes to attack the character of the defendant. As between him and the defendant it seems reasonable that he should have the same right to attack the defendant's character as the defendant has to attack the character of the prosecution witnesses. But the effect of this would be to defeat the rule that the prosecution cannot, except in the special cases mentioned above, attack the character of the defendant. It is true that it is the third party who would be attacking, but it is not reasonable to expect the jury to put out of their minds the evidence produced by the third party about the character of the defendant when reaching their verdict on the issue between the prosecution and the defendant. That is the technical information that I have.

VISCOUNT COLVILLE OF CULROSS

That, if I may say so to the noble Lord, is a most impressive note, and it seems to me that in so far as the conviction on indictment under Clause 17(1)(b) is concerned there is a great deal to be said for it. But, of course, there is still Clause 17(1)(a) which is the magistrates' court procedure. I quite agree with the noble Lord that the rules which should be applied at quarter sessions or assizes are probably rightly more strict than those which work in the magistrates' courts. I would not disagree with him at all about that, or about anything that he read out. But I am still talking really about summary jurisdiction, about magistrates' courts. It is there that the Food and Drugs Act, the third party procedure, works; and it is there that I am suggesting that we could possibly save time and a great deal of trouble to all the people concerned if we at any rate consider whether the same procedure (which I am glad to hear from my noble friend Lord Cawley is efficacious) is perhaps incorporated into this Bill.

Perhaps the noble Lord would like to consider whether there should be a divergence of practice between the magistrates' courts procedure, where the old third party machinery could continue, and the more serious cases which go to quarter sessions where of course it is only right that the prosecution should weigh carefully who they are going to charge, and if they get the wrong chap that is their fault. I would see no objection to that, but it means that you must alter the way the Bill is drafted at the moment.

LORD AIREDALE

I should have thought there was great advantage in having similar procedure throughout that group of Statutes which come under the consumer protection umbrella.

LORD BROWN

I could not possibly refuse to consider this matter, particularly as it is one that to a large extent arises outside the compass of my own experience. I will have it considered. I note the noble Lord, Lord Airedale's comment; but of course, by having a similar procedure to that of the other Statutes one has two procedures applying to this particular Bill. That may not be a disadvantage. I do not want to argue the case. I will have it considered.

Clause 22 agreed to.

[The Sitting was suspended at 7.30 p.m. and resumed at 8.30 p.m.]

Clause 23:

Defence of mistake, accident, etc.

23.—

(2) In any proceedings for an offence under this Act of supplying or offering to supply goods to which a false trade description is applied it shall be a defence for the person charged to prove that he did not know, and could not with reasonable diligence have ascertained, that the goods did not conform to the description or that the description had been applied to the goods.

LORD AUCKLAND moved, in subsection (1), to leave out "and (b)" and insert: or (b) that he had relied in good faith upon information supplied by another person; and (c)".

The noble Lord said: We now come to the clause dealing with defence of mistakes, accidents, and so on. There has already been reference to this clause, which is obviously one of the more important clauses in the Bill. What has to be decided by Parliament is as to what can be interpreted as a defence and what is deliberately going against the rules aid violating them. The purpose of this Amendment is to ensure that there is an adequate defence for, say, the advertising agency which is preparing "copy" and which, after some kind of inquiry, must rely upon the information which the advertiser supplies. That is but one example.

As the Bill stands, paragraph (b) of subsection (1) puts the onus upon the person concerned to consult these people himself, whether the manufacturer or the retailer. This must obviously be a very difficult matter. He may find that the other person concerned is many miles away, or that he may have left for another job. Therefore the Amendment puts the onus to some extent the other way round and allows time for some inquiry into circumstances, which might mean that it is the advertising agency which is preparing the "copy" and not merely the advertiser. It is clear that Clause 23 as a whole needs a good deal of study, because it is important that we should get it absolutely right as to upon whom the onus should be laid in relation to this defence clause. This Amendment is one idea which I hope the Government will consider. I beg to move.

Amendment moved— Page 12, line 33, leave out ("and (b)") and insert the said new words.—(Lord Auckland.)

BARONESS BURTON OF COVENTRY

I am sorry, but I regard this Amendment as completely unnecessary. I contend that if we look at what the Amendment seeks to replace we find that every possible defence is given to the person called upon to defend himself. I do not see that one can take more than "all reasonable precautions" or do more than "exercise all due diligence", and I hope that the Government will reject this Amendment.

LORD DRUMALBYN

I am not quite certain that the noble Baroness's reading of this clause is the same as mine. Subsection (1)(b) says: that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or any person under his control only where paragraph (a) applies; that is: that the commission of the offence was due to a mistake, or to an accident or some other cause beyond his control". This is not really enough, because there are many cases where a person who is connected with merchandising in general is not in a position to say both of those things. He may have taken all reasonable precautions, but the offence may not have been due to a mistake, or accident or something beyond his control. It may have been within his control.

The point of the Amendment is to try to fill the gap, and the kind of gap I had in mind was not only the one to which my noble friend has referred—that of the advertising agent who is briefed by the advertiser and who is not expected to check every detail of his brief. Indeed, he probably is not in a position to do so. Why should he? This is the advertiser's advertisement. He is paying for it and he is paying the advertising agent to present in the best possible way, in the most advantageous media and so forth, the case that he, the advertiser, puts to him. He is not expected to check in detail all the technical data and the rest. Unless you put in: that he had relied in good faith upon information supplied by another person". he will not be covered by the taking of "all reasonable precautions", because you have, first of all, to make it clear that he is relying on information supplied by some other person before you can decide whether the precautions were reasonable or not and the exercise of diligence was due or not. If he is accustomed to rely on the information provided by somebody else, then of course the same amount of diligence will not be due and the same amount of precautions, which would be reasonable if he were not so accustomed, would be well beyond the normal.

That is not the only case. There is also the case of the retailer. One has to remember that, in the Bill as drafted, the warranty as to trade description has been removed. Surely the retailer is normally accustomed to rely upon information supplied by his supplier, by the manufacturer or the wholesaler. This is not a question of mistake; mistake does not arise. It is a question of not knowing. The question is: what degree of diligence and what precautions should the retailer be expected to take? It seems to me right, in view of the removal of the warranty clause, that the retailer should be allowed this defence: that he relied in good faith upon information supplied by the manufacturer. Let us take, for example, the descriptions that he puts up in his shop by way of selling, and the advertisements in the local press. Naturally, he will take what the manufacturer says, because he is accustomed to rely on the manufacturer in these matters. It seems to me that this is an essential defence for the retailer, and he should not have to find out that some mistakes have been made before he can avail himself of this—

LORD PEDDIE

Would not all the points mentioned by the noble Lord be covered by some other cause beyond his control"?

LORD DRUMALBYN

No; this is not a "cause beyond his control", in my view. One must read the words, some other cause beyond his control in the light of the clause as a whole. This clause refers to mistakes and accidents, or other such causes, not lack of knowledge. My contention is that this is an essential defence that should be added if anything like reasonably fair play is to be given to the retailer and the advertising agent.

LORD BROWN

Before the noble Lord sits down, may I say that although I could say this in my general reply I should like to give him an opportunity to respond to it. It seems to me that the defence of the retailer lies in Clause 23(2), because it there states quite clearly: In any proceedings for an offence under this Act of supplying or offering to supply goods to which a false trade description is applied it shall be a defence for the person charged to prove that he did not know, and could not with reasonable diligence have ascertained, that the goods did not conform to the description or that the description had been applied to the goods. Is that not a complete answer to this point about retailers?

LORD DRUMALBYN

No, indeed not, because of course he can prove that he did not know, but you have to add on to that, and could not with reasonable diligence have ascertained". Nobody is saying that the advertising agent "could not with reasonable diligence have ascertained", or that the retailer could not have reasonably ascertained. He could open the goods and examine them, at considerable loss to himself, but he is not expected to do that; and the advertising agent is not expected to go to the British Museum and check all the data that he has been given. It is really ludicrous that that should be expected. I am quite certain that the noble Lord thought, and probably the Government thought, that they were offering enough by way of defence in subsection (2), but they certainly are not. I hope I have convinced the noble Lord of this, because it seems to me that this really is important.

LORD CAWLEY

This question of reasonable diligence comes from the old Act. I think the leading case on it was Allard v. Selfridge, in which Selfridges were selling stockings which were called silk but which in fact were not silk. It was proved that in order to find out whether they were silk or not they would have had to destroy a stocking, and it was held that they ought to have destroyed a stocking. It was said that that was reasonable diligence. That is what reasonable diligence must mean, I think, in this Bill.

LORD AIREDALE

I would support this Amendment, too. Take the case of a retailer of complicated pieces of machinery. He could, of course, exercising reasonable diligence, take a complicated machine to pieces and examine the parts to discover whether the manufacturer's description is accurate, but I think no-one would expect him to do that. He ought to be allowed to rely in good faith upon the information supplied by the manufacturer.

VISCOUNT COLVILLE OF CULROSS

I wonder whether the noble Lord can supply an example of the circumstances in which he thinks this defence could be proved, because, having heard my noble friends and other noble Lords speak, what I am a little afraid of is that it will be so difficult to rely on either subsection (1) or subsection (2) of this clause that in actual fact it is going to become an almost absolute offence, and that the only way that people will be able to avoid it is by not being prosecuted at all. I wonder whether the noble Lord can give any sort of example, first under the one subsection and then under the other, because this may help the Committee.

LORD BROWN

I am thinking about this matter. It seems to me that the burden of the attack on the clause as it is now drafted rests in fact on the provision in Clause 23(2), and could not with reasonable diligence have ascertained … That is where the attack comes. I am affected by the argument, because I am inclined to agree with the mover of this Amendment that it is a fairly stringent condition to attach to a retailer. I can comment on this, and I have a note on the whole subject; but in order to save time I think I will undertake to take a note of the arguments used—I think they may be cogent—and have a close look at this. Unless there is a stronger argument put forward by the drafters of the Bill which indicates that the drafting meets the points that have been made we will do something at a later date. If the noble Lord will accept that and withdraw his Amendment now, I shall be happy.

LORD AUCKLAND

I am grateful to the noble Lord, Lord Brown, for the attitude he has taken on this matter. It seems to me that as the clause is drafted, subsection (1)(b) gives the indication that manufacturers and retailers are in some way unscrupulous beings when they communicate with each other. I think the term "reasonable precautions" is very vague and needs a firmer interpretation, whatever view the Government may subsequenty take. But in view of what the noble Lord has said, I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

8.47 p.m.

LORD DRUMALBYN

moved, in subsection (2), after "applied", to insert: or a false indication is given of any of the matters specified in Sections 11, 12 or 13 of this Act".

The noble Lord said: The point of this Amendment is to make certain that the defences available in the case of an offence of supplying or offering to supply goods is also available in the case of supplying or offering to supply services, and, indeed, in comparing prices. The point is simply that, so far as I can see, this particular defence, that he did not know, and could not with reasonable diligence have ascertained", does not appear to be available as a defence against a charge under Clauses 11, 12 or 13. These are the clauses which deal with comparison of prices, false representations as to Royal approval or award and false or misleading statements as to services, accommodation or facilities. And if one may take Clause 23(1)(a) and (b) together, then Clauses 11, 12 and 13 are brought into 23(2), and after the words: the goods did not conform to the description or that the description had been applied to the goods are added the words: "in the case of services" and so forth, or "that the indication was false" as the case may be. It may be that one should say false or misleading"; but I think the word "false" is sufficient. I beg to move.

Amendment moved— Page 12, line 39, after ("applied") insert ("or a false indication is given of any of the matters specified in Sections 11, 12 or 13 of this Act").—(Lord Drumalbyn.)

LORD BROWN

With respect, I think this Amendment is misconceived. Clause 23(2) provides what has been referred to as the "ignorance" defence for the person who supplies goods for which a false trade description is applied, and it has been included because we think that the supplier of misdescribed goods should be treated somewhat more leniently than the applier of the false description. Both supplier and applier, and persons who have committed offences under Clauses 11 and 12 of the Bill, have a defence under Clause 23(1). This Amendment seeks to give the "ignorance" defence to the person who supplies goods in respect of which a false indication as to price is given, contrary to Clause 11, to the person who supplies goods or services in respect of which a false representation as to Royal approval is given, contrary to Clause 12, and to the person who provides services in respect of which a false statement is made, contrary to Clause 13.

But if you look at Clauses 11, 12 and 13 you will see that the offence is not that of supplying goods or services, but giving a false indication as to the price of goods, giving a false indication of Royal aproval or making a false statement as to services. In other words, the offender under Clause 11, 12 or 13 corresponds to the applier of a false description and to the supplier of misdescribed goods. We cannot agree that the "ignorance" defence should be extended to offenders under Clauses 11 and 12. As regards Clause 13, it is of course an ingredient of the offence that a false statement was made knowingly or recklessly, and in these circumstances there can be no room for the "ignorance" defence. I hope that your Lordships have understood the argument I am using, and on those grounds I ask that the Amendment be withdrawn.

LORD DRUMALBYN

For once, at any rate, the noble Lord, Lord Brown, has convinced me that he is right, and therefore I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 23 agreed to.

Clause 24 agreed to.

Clause 25 [Enforcing authorities]:

LORD CAWLEY

moved, at the beginning of subsection (1), to insert: "Subject to subsection (6) of this section". The noble Lord said: This Amendment is consequential upon Amendment No. 50, and so with permission I will speak to both of them. When the 1953 Merchandise Marks Act was passed it was thought that a new era in trade protection was about to commence. The first case brought under the new Act was Davenport v. Prophylaxis, Ltd. which concerned a homœoeopathic medicine for cows. The result of that case was that the Buckinghamshire County Council lost and had to pay £500 costs. During the Second Reading debate of this Bill on November 14, the noble Lord, Lord Winterbottom, said about Clause 13 (col. 597): This is a tricky area to venture into. I agree that it is. We do not want Clause 13 to get off on the wrong foot. It would be disastrous if some weights and measures authority chose some subject quite inapplicable, some doubtful case, and the experience of the Buckinghamshire County Council were repeated. That is why I think the Board of Trade should keep a firm grip on this, and see that at any rate the first case they bring is one that they are going to win and not lose. I beg to move.

Amendment moved— Page 13, line 10, at beginning insert ("Subject to subsection (6) of this section").—(Lord Cawley.)

LORD WINTERBOTTOM

We all sympathise with the Buckinghamshire County Council, but there are other factors to be considered than the risk to which we are putting local authorities. The Amendment moved by the noble Lord would prevent any prosecution in relation to statements about services under Clause 13 without the prior consent of the Board of Trade. In this Bill we have deliberately adopted the principle that the right to prosecute for offences under it should not be restricted by making it subject to the consent of any central Government authority. I see no justification for singling out offences under Clause 13 for different treatment in this respect.

I agree that the clause ventures into a new field in which we have no previous experience to guide us, and for this reason we have placed on the prosecution the burden of proving the elements of guilty knowledge or recklessness. But that is not a reason for restricting the bringing of prosecutions. Local authorities will be well aware of the special features of this clause and will be quite as competent as the Board of Trade to judge whether a prosecution ought to be brought. I am in favour of devolution of responsibility. I think it would be undesirable that local authorities should always have to refer problems of this type to the Board of Trade. They are quite capable of acting on their own initiative. For this reason we believe that, although there are instances of the kind which the noble Lord pointed out, responsibility should remain with the local authority and should not be referred to the Board of Trade just in case an accident should happen.

LORD DRUMALBYN

The noble Lord is getting along very well, but I am not sure that I entirely agree with his last remarks. Am I not right in thinking that under Clause 29 proceedings can only be taken by a local weights and measures authority if notice is given to the Board of Trade, so that in any case the Board will know of the intention to prosecute? On Second Reading the noble Lord, Lord Brown, said: This Bill is of an exploratory nature, as I think we all recognise."—[OFFICIAL REPORT, 14/11/67, col. 669.] Clause 13 is particularly exploratory.

It is for that reason that my noble friend and I feel that it would be a good idea, at any rate for a time, to keep this under the control of the Board of Trade, to see how it goes. When this deals with matters such as accommodation, it is essentially a local problem. On the other hand, when it deals with travel and other services of a national character, there is a good deal to be said for having the matter dealt with in a national way. I think that the arguments are fairly evenly balanced but, in spite of what the noble Lord has said, we still feel that this would be a wise precaution in the early stages. If the noble Lord feels that he can keep sufficient control through the normal process of notification, the 28 days' delay and the advice he will give to weights and measures authorities, the balance may be tilted in the opposite way against this form of controlled experiment.

LORD AIREDALE

I feel that the Minister is right about this. I do not think it is much good saying to local authorities, as the Bill says, "You are big boys now and must go out into the wicked world and prosecute in these cases, but you must not do it without asking Auntie Board of Trade first". That is what it seems to me this Amendment is seeking to introduce, and I do not think that it is justified.

LORD STRABOLGI

Before my noble friend replies, I should like to ask him about the position concerning private prosecutions either by individuals or by quasi-official bodies. It appears that these are allowed under this clause. If this is so, how can the Board of Trade exercise control over these private prosecutions when under Clause 29 it appears that the Board do not even have to be notified about them?

LORD ILFORD

I am glad that the noble Lord has resisted this Amendment, and I hope that he will not allow himself to be deflected from his course by anything said by my noble friend Lord Drumalbyn. As the noble Lord has said, this would be a complete departure from the principle upon which this Bill has been framed—that local authorities who have to administer it should have a perfectly free discretion to prosecute or not to prosecute as they think fit or right. That is in accordance with all existing weights and measures legislation and, I believe, in accordance with the Trade Descriptions Act, too. If the noble Lord were to accept the Amendment it would be a complete departure from anything that has been put into an Act of this sort before, and I very much hope that he will continue to resist it.

LORD CAWLEY

I think that in the homoeopathic case an enormous amount of damage was done, but that may not be repeated. I have issued my warning, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

9.1 p.m.

LORD AUCKLAND

moved to insert after subsection (1): ( ) In England and Wales proceedings for an offence under this Act or any order made under this Act shall not be instituted except by the Board of Trade or by or on behalf of a local weights and measures authority".

The noble Lord said: The purpose of this Amendment primarily is to make quite sure that bodies and individuals who have no real knowledge of the terms of the Bill are not allowed to prosecute. It is indeed possible, under the Bill as at present drafted, even for advertisers' competitors to issue prosecutions against their rivals if they so wish, either from a feeling of sour grapes or otherwise. A good deal was said on the previous Amendment, and I need not say very much now, but surely it is the Board of Trade and the weights and measures authorities, who, after all, are experienced in these matters, who should carry out these duties.

The real danger at the present time is that there could be a whole surfeit of prosecutions going forward, or at least efforts at prosecuting on all kinds of ground. If this should happen, the courts would be overladen with all sorts of cases which have probably been very badly made out. It is certainly not the intention of this Amendment to allow those who have transgressed to get away with it, but it seems logical that the Board of Trade and the local authorities between them should carry out these duties. I beg to move.

Amendment moved— Page 13, line 16, at end insert the said subsection.—(Lord Auckland.)

BARONESS BURTON OF COVENTRY

If the noble Lord, Lord Auckland, had been able to draft an Amendment which said that people who were not competent to prosecute should not prosecute, which is what he implied, that, I think, would have been a different matter. I rise to speak strongly against this Amendment. I was sorry to see it on the Marshalled List. If it had not been there, I had intended to ask the Government whether they could enlighten us as to what was meant by Clause 25 (1), because, looking at this, I thought it might be inferred that enforcement of the Consumer Protection Act would be confined to local weights and measures authorities and, presumably, the Board of Trade.

My reason for rising—and I think it is one with which the noble Lord, Lord Auckland, would not disagree—is that I come back once more to a very competent organisation, the Retail Trading Standards Association. I have mentioned them several times, and I must say that I have no connection with them. However, in my battles in another place during the 'fifties I was given considerable help by this organisation. I think it is known to your Lordships and held in very high repute. The Retail Trading Standards Association already co-operate closely with a number of local authorities, and, as Ministers will know, from time to time they help them with expert evidence, particularly as to the material content of textiles.

As I see it, in the future there may be times when the R.T.S.A. will be extremely anxious to lay down a principle by taking its own prosecution in respect of an offence. I want to ask the Government, before we come to the Amendment to be moved by the noble Lord, Lord Drumalbyn, whether under Clause 25(1) we could be assured that there was no question at all that prosecutions h' the R.T.S.A. will have to cease with the present Merchandise Marks Act. If this Amendment were passed, I feel that industry and manufacturers would be deprived of an opportunity of defending themselves. I sympathise with the noble Lord in his wish to prevent people who are not competent from bringing cases, but I think if that were carried it would rule out organisations which were competent, and I hope the Government will not accept the Amendment.

BARONESS ELLIOT OF HARWOOD

I support those views. The Retail Trading Standards Association are continually taking up cases, and doing it extremely well. I think it would be most unfortunate if we were to confine the right to prosecution to a Government department, and I hope the Government will not accept the Amendment.

LORD DRUMALBYN

For once I find myself differing from my noble friend Lord Auckland. Of course, it would be tidy if the right to prosecute were limited in the same way, as in the Weights and Measures Act, to the local authorities and the Board of Trade. But there are other Government departments which in certain circumstances might prosecute. Apart from that, I think the Retail Trading Standards Association has regarded itself in the past as rather a gadfly—in other words, when local authorities would not prosecute it has sometimes stepped in and done so. This is healthy. If the law is there, and if a private person thinks that the authorities are not doing all that they should by way of enforcement, it is healthy that a private person should come in and prosecute. The danger lies along the lines suggested by my noble friend Lord Cawley. One can get malicious prosecutions and prosecutions by competitors in order to establish some point which suits their own particular propaganda. It is difficult to hold the balance between these things. I do not know of any way of doing the one without the other, and on balance it seems better for the Government not to accept this Amendment. Therefore, I hope my noble friend will not press it.

LORD WINTERBOTTOM

The noble Lord, Lord Auckland, does not seem to have the support of the Committee for which he might have hoped, but I think it was valuable that he should point out the risk of private individuals pursuing a vendetta by private prosecutions of their rivals in retail trade. In answer to my noble friend Lady Burton of Coventry, who asked whether the Retail Trading Standards Association would be prevented from bringing prosecutions, I would reply that the Amendment as drafted is undesirable because it would prevent trading associations, such as the one mentioned by my noble friend, from bringing prosecutions. The Government believe this is unreasonable and undesirable, and I can assure my noble friend that in fact the position of the R.T.S.A. remains unaltered.

LORD AUCKLAND

It is quite clear that this Amendment has not received very much support, and having read it myself several times I must confess to the Committee that I moved it with a certain cynicism. The real point is—and I do maintain this—that it is primarily to stop unscrupulous people such as competitors from instigating malicious prosecutions. May I emphasise one thing more? I am certainly not casting aspersions either on the Consumer Council or the Retail Trading Standards Association, for both of which bodies I have a great respect and whose work I very much admire. It is obvious that this Amendment needs redrafting in a way in which those who are not competent to prosecute are not put in a position where they are able to do so.

VISCOUNT COLVILLE OF CULROSS

Would the noble Lord consider this point: that if people who are incompetent to prosecute or are prosecuting maliciously are found to be in that position the courts have powers to award costs against them? I should have thought that that was far the best deterrent and it was quite unnecessary to write anything into the Bill.

LORD AUCKLAND

My noble friend, who is a very accomplished lawyer, has made a very fair point. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD DRUMALBYN

had given notice of his intention to move to add to the clause: (7) No proceedings for an offence under this Act shall be taken by a local weights and measures authority except after not less than twenty-eight clays' notice to the Board of Trade of the intended proceedings, and any such notice shall be accompanied by a summary of the facts on which the charges are to be founded.

The noble Lord said: The purpose of this Amendment, which would require consequental Amendments if it were carried, is merely to draw the attention of the Government to the desirability of moving subsection (2) of Clause 29 to this point. As my noble friend Lord Ilford and the noble Lord, Lord Pargiter, have put down an Amendment to leave this out, this would pre-empt its discussion and therefore I will not move this Amendment at the present time.

Clause 25 agreed to.

Clause 26 agreed to.

Clause 27:

Power to enter premises and inspect and seize goods and documents

27.—(1) A duly authorised officer of a local weights and measures authority or of a Government department may, on production, if required, of his credentials—

1. (a) inspect any goods for the purpose of ascertaining whether any offence under this 480 Act has been or is being committed in respect of them;
2. (b) enter any premises, other than premises used only as a dwelling, for the purpose of ascertaining whether any offence under this Act has been or is being committed;
3. (c) for the purpose of ascertaining whether an offence under this Act has been or is being committed, require any person carrying on a trade or business or employed in connection with a trade or business to produce any books or documents relating to the trade or business and take copies of them or extracts from them; and
4. (d) seize and detain any goods which he has reasonable cause to believe are liable to be forfeited under this Act and any document which he has reason to believe may be required as evidence in proceedings under this Act;

and may for the purpose of exercising his powers under paragraph (d) of this subsection require any person having authority to do so to break open any container or open any vending machine or permit the officer to do so, but only if and to the extent that it is reasonably necessary in order to secure that the provisions of this Act and of any order made thereunder are duly observed.

(2) An officer seizing any goods or documents in the exercise of his powers under this section shall inform the person from whom they are seized and, in the case of goods seized from a vending machine, the person whose name and address are stated on the machine as being the proprietor's or, if no name and address are so stated, the occupier of the premises on which the machine stands or to which it is affixed.

9.14 p.m.

THE DEPUTY CHAIRMAN OF COMMITTEES

May I point out to the Committee that if Amendment No. 52 is agreed to I cannot call Amendments numbers 53 to 62 inclusive.

LORD STRABOLGI

moved to leave out subsection (1) and insert—

1. "(1) Subject to the production of his credentials, a duly authorised officer of a local weights and measures authority or of a government department may, at all reasonable times—
1. (a) inspect any goods to which any of the provisions of this Act applies or which he has reasonable cause to believe to be such goods;
2. (b) enter any premises, other than premises used only as a dwelling, at which he has reasonable cause to believe an offence under this Act has been or is being committed.
2. (2) If a justice of the peace, on sworn information in writing is satisfied that there is reasonable ground to believe that any offence under this Act has been, is being or is about to be committed on any premises, the justice may by warrant under his hand, which shall 481 continue in force for a period of one month, authorise an officer of a local weights and measures authority or of a government department to enter the premises, if need be by force,
1. (a) to require any person carrying on a trade or business or employed in connection with a trade or business to produce any hooks or documents relating to the trade or business and take copies of them or extracts from them; and
2. (b) seize and detain any goods which he has reasonable cause to believe are liable to be forfeited under this Act and any document which he has reason to believe may be required as evidence in proceedings under this Act."

The noble Lord said: This Amendment which I venture to put forward is, I believe, an important one. There are four main differences between it and the clause as it stands at present. These are, first, that the inspector has the right to inspect goods and enter the premises, as in the Bill, but he has not the right to inspect any goods; these must be the goods to which the provisions of the Bill apply. Secondly, the Amendment requires him to obtain a warrant before he demands the production of books and documents or the seizure of the goods. Thirdly, my Amendment also requires the inspector to produce his credentials before he enters, whether he is asked for them or not. This would seem to me to be not only normal courtesy but essential these days when there are so many criminals about. It also gives added protection to the nervous or shy citizen who is apt to be in awe of officials. Fourthly, the Amendment restricts the time of entry to "all reasonable times". Therefore it does not put the citizen at risk from the knock on the door in the middle of the night, possibly by some thug posing as an inspector. In my submission, the clause as drafted is drawn far too widely. My Amendment retains the position which has been in force under Section 13 of the Merchandise Marks Act since 1887.

I am aware that there are similar powers in the Food and Drugs and Weights and Measures Acts, but in those cases you are dealing with specific matters affecting public health. I believe that these powers are not justified in the case of merchandise marks legislation. They go far too wide; they are just one more encroachment on the liberty of the subject. I beg to move.

Amendment moved— Page 14, line 10, leave out subsection (1) and insert the said new subsection.—(Lord Strabolgi.)

9.16 p.m.

LORD WINTERBOTTOM

The noble Lord is wielding a most terrible weapon.

LORD STRABOLGI

I am not.

LORD WINTERBOTTOM

I mean in the sense that if we carry his Amendment we shall almost have finished business for the night. Perhaps he is to be congratulated upon that. Nevertheless, it is not the view of Her Majesty's Government that we should finish quite so early—perhaps in terms of time, yes; in terms of discussion, no.

I should like to make a few comments upon my noble friend's proposed subsection. If we take paragraphs (a) and (b), the Amendment would, in the first place, restrict the power given to enforcement officers to enter premises—and consequently their power to inspect goods—to premises at which the officer has reasonable cause to believe that an offence has been, or is being, committed.

If we take paragraphs (c) and (d) in the new subsection (2), which require a justice's warrant, they would limit the power of an authorised officer even more severely in relation to the inspection and copying of documents and books, and the seizing of goods and documents. I cannot see that this sort of severe restriction is at all necessary or desirable, and I cannot recommend acceptance of the Amendment.

The power contained in the final paragraph of subsection (1), to require a person to break open a container, would be deleted from the Bill by the Amendment. I cannot see any justification for this. I would emphasise that, as the Bill stands, this power is severely restricted—it can be exercised only where it is reasonably necessary in order to secure due observance of the Act, and will therefore be used only on rare occasions. It would be unsafe for an officer to use it unless he had cast-iron reasons for thinking he was reasonably justified in doing so. I can therefore see no objection to this power, which is similar to that provided in Section 29(1) of the Weights and Measures Act.

Lastly, we have the words "exercised at all reasonable times". I recognise that the comparable powers in the Weights and Measures and the Food and Drugs Acts are subject to the qualification that they may be exercised "at all reasonable times". This seems to me to be an unnecessary qualification. I do not believe that local authorities are likely to seek to enforce their powers at unreasonable times; and in any case, an omission of express qualification would not entitle them to do so. If anything, the qualification may hinder the enforcement of the Bill by enabling a person with something to hide to delay the entry of the enforcement officer by quibbling over whether the time was reasonable or not. It is for this reason, and the rather explosive impact of the noble Lord's proposals on the Bill as a whole, that I request him to withdraw the Amendment, while, however, considering the points he has made in the discussion.

LORD DRUMALBYN

Before the noble Lord sits down, may I ask him a question in regard to "reasonable time"? He will be aware that this is included both in the Food and Drugs Act and in the Weights and Measures Act, although I think one says "hours" and the other says "time". Has any difficulty been experienced by people, as he says, quibbling as to whether or not it is a reasonable time?

LORD BROWN

Perhaps I may make a general comment. The noble Lord realises that the ambit of this Bill is considerably wider than the ambit of the other two Bills to which he has referred. It is true that a case can be made out for confining these powers to reasonable hours. But the noble Lord well knows that the Board of Trade has in the past had enormous difficulty in enforcing some Acts and they find it peculiarly burdensome to be limited in terms of hours. It is not that they want to go in at hours which would be regarded by any reasonable judge of the situation as being unreasonable. It is that this is a sort of alibi for the person whose premises they wish to enter properly to argue that the hour is unreasonable, so keeping them out in pursuit of their duties. It thus gives a handle to an objection which is often unreasonable and would limit the extent to which the Board of Trade could properly pursue potential criminals under this Bill.

LORD STRABOLGI

I have carefully noted what my noble friend has said. I think that the Government ought to have another look at the part about the credentials. I take the points he has made about warrants. I think it is highly undesirable, though I suppose it is necessary to bring this legislation into line with the other relevant legislation, but I cannot see why the wording about producing his credentials cannot be changed to that in the Amendment. It is very important in these days, when there are so many criminals about, that an inspector should automatically have to produce his credentials before he asks to enter premises, and that it is not left to the owner of the premises to ask him. I hone the Government will have another look at this before the Report stage. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

9.24 p.m.

LORD DRUMALBYN

moved to insert at the beginning of subsection (1): "If". The noble Lord said: I beg to move Amendment No. 53, and with it I should like to discuss No. 55. The effect of these Amendments would be to make the clause read as follows: If a duly authorised officer of a local weights and measures authority or of a Government Department". and then, turning to Amendment No. 55: has reasonable grounds to believe and so on. In drafting this Amendment in this way I had two objects in mind. The first was to simplify the drafting as a whole, and the other was to try to ensure that some of the safeguards included in the Food and Drugs Act were included here. I notice that in answering the last Amendment the noble Lord did not refer to the Food and Drugs Act. I was a little disappointed at this because the procedure in the last Amendment more or less follows the procedure in the Food and Drugs Acts, and I was hoping that the Government would reply to this point, if only because there are a number of people who feel there is no reason in this Bill in the severity of the powers taken to go further than in the Food and Drugs Act. Indeed, they feel that the Food and Drugs Act needs more severe powers because it deals with matters which constitute more of an immediate menace to the health and safety of the public.

I have drafted my Amendment on the assumption that what the Government had in mind was that, in any case, there would be enforcement officers going into retail shops, and all the rest of it, in the course of their normal duties. They are entitled to go there to check up, and they will go in the course of their duties. I took it that if they find, in the course of those duties, that some offence is being committed, they do not want to say, "Look at that", and then go back and get a warrant, because by the time they get back "that" will have changed and the evidence may well have been removed. Therefore I took it that what the Government wanted to achieve here was for an officer to be able to act immediately he went on to premises in the course of his duties.

Of course, it is a fact that if enforcement officers are on premises they will be able to carry on. At the same time, it seemed to me right that if they were going particularly for the purpose of ascertaining that an offence under this Act was being committed, they should have reasonable grounds to believe that an offence was being committed, and in such a case they should, if required, produce their credentials.

As the Amendments are drafted, they secure that officers should inspect or enter only if they have reasonable cause to believe that an offence under the Act has been or is being committed; secondly that they should do so only at reasonable times (the Food and Drugs Act says "hours", and the Weight and Measures Act says "time"); and, thirdly, that they should seize and detain goods, only for the purpose of ascertaining whether an offence has been or is being committed, and should seize and detain only such quantity as is reasonably required for the purposes of prosecution. That brings in also Amendment No. 57. The last point really gives effect to what the noble Lord said on Second Reading; that they should seize and detain only such quantity as is reasonably required for the purposes of testing and prosecution.

I have not dealt with Amendment No. 57, because I hope that the Government will be able to accept that in any case. I am a little more doubtful whether they will be able to accept No. 55, but if they do not propose to accept it I hope they will be able to give a fairly full answer as to why they think it should not be adopted. I beg to move.

Amendment moved Page 14, line 10, at beginning insert ("If").—(Lord Drumalbyn.)

LORD WINTERBOTTOM

I thought I made the point in relation to "at all reasonable times", when I was replying to my noble friend. I acknowledged that comparable powers in the Weights and Measures Act and the Food and Drugs Act are subject to the qualification that they must be exercised at all reasonable times. I went on to say that I thought the local authorities are not likely to seek to enforce their powers at unreasonable times and that, in certain circumstances, there might be occasions when they would want to come in at what to some people might seem an unreasonable time: at a time when they might surprise the occupant, which could be the object of the exercise.

If the noble Lord's qualification is carried, it might hinder the enforcement of the Bill by enabling a person to delay the entry of the enforcement officer, by quibbling over whether or not the time was reasonable. We are not dealing with normal law-abiding citizens: we are tending to deal with the "smart alecs" who probably have a smart answer for the situation. For this reason, we want to be unreasonable with unreasonable people, if that is necessary. But I am certain that local authorities do not want their officers to be staying up at all sorts of odd hours, and in all normal circumstances I am sure that the local authorities will exercise their powers in a reasonable manner.

I do not think we ought to limit the powers of authorised enforcement officers in the way proposed by the noble Lord. If the local authorities are properly to carry out the duty which Clause 25 places on them, their officers must be able to enter premises and inspect goods and documents, not only when they suspect an offence, but as part of their normal routine duties. We have, rightly I think, limited the power to seize and detain goods in paragraph (d) to cases where there is a prima facie offence. But in the other cases covered by paragraphs (a), (b) and (c), the power should not be limited in this way. The powers given by this subsection to authorised officers are broadly similar to those given to weights and measures inspectors under the Weights and Meaures Act 1963 and to the authorised officers of a food and drugs authority under the Food and Drugs Act 1955, and there can surely be no justification for giving less extensive powers to the Akers who would be responsible for enforcing the present Bill. We do not want to hamstring them in their work. The powers of entry and inspection conferred by paragraphs (a) and (b) of this subsection are, for all practical purposes, the same as those in the Weights and Measures Act. Neither may be exercised except for the purpose of ascertaining whether an offence under the Bill has been or is being committed.

The power to inspect books or documents relating to the trade or business, conferred by paragraph (c), is admittedly much wider than the parallel powers in the Weights and Measures Act. This again, however, is not unreasonable, I believe, considering the much wider scope of this Bill. For instance where an offence under Clause 11 in respect of a price claim is suspected, it might often be necessary to inspect the business records to see whether the claimed reduction was justified. In the case of offences relating to service under Clause 13, inspection of all the books and papers might be necessary in order to judge whether a statement appeared both to be false and to have been made knowingly or recklessly. There may also be cases where a trader is suspected of systematic infringements of a provision of the Bill, which could be proved or disproved only by investigating his own records and those of other traders with whom he has had dealings. In view of the importance of ensuring that the Bill can be effectively enforced, I feel that the proposed power to require the production of books and documents is fully justified, as are the powers of inspection of goods and entry of premises. For this reason I should be grateful if noble Lords would reject this Amendment.

LORD DRUMALBYN

The clause as drafted seems a little cumbersome. At least I attempted to simplify the drafting. I hope the noble Lord will at least see whether the drafting can be simplified, even if he cannot meet the points of substance in this Amendment. I should have thought that would have been possible; but, subject to saying that, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

9.33 p.m.

LORD AIREDALE

moved, in subsection (1), after "department" to insert having reasonable grounds to believe that any offence under this Act has been, is being or is about to be committed".

The noble Lord said: I move this Amendment because I think it will rivet the attention of the Committee upon the question: does the Committee want these officials to have power to make spot checks or not? As I read the clause without this Amendment, the officials are going to be able to use these powers to make spot checks if they want to. I must confess that I have not studied the kindred legislation which has been referred to, and it may be that power to make spot checks exists in this kindred legislation; but, if that is so, I should have thought that that was an argument for Parliament looking at these other Acts on this point rather than being influenced as to what this Bill should contain on the question of spot checks.

In my submission, the argument against spot checks here is exactly, or almost exactly, the same as the argument against them in the case of those infernal breathalysers—and may I again congratulate Her Majesty's Government, as they have been congratulated many times before, for having had second thoughts about spot checks with breathalysers, having at first decided to introduce spot checks and then abandoning the idea? In my submission, this is a very similar case. The argument against is that it is extremely wasteful of the manpower of busy officials to have spot checks. You have to use a very great many man hours to catch a very few criminals. Furthermore what is perhaps more important still is that you are going to get the officials a bad name among the people they are supposed to be supervising. If they have power to make spot checks, and use them, they are going to become known as a crowd of snoopers and "Nosey Parkering" officials.

May I finally point out to the Committee that if the officials are to have power to make spot checks this will mean that the very sweeping powers given to magistrates under subsection (3) are going to be—shall I give way?

LORD BROWN

I am sorry to interrupt the noble Lord, but it seems that we are going to develop an argument about spot checks. Surely it is obvious that a great deal of the enforcement of all types of law is dependent upon spot checks. When a police constable goes round he will spot check certain premises to see whether someone has entered them unlawfully. Tests of people driving over the speed limit and all sorts of laws are subject to spot checks. It is the only way to do it economically. If you do not spot check, you do not check anybody. I am in difficulty in understanding the argument about spot checks.

LORD AIREDALE

I know that the noble Lord was not in charge of the Road Traffic Bill, but does the Minister defend the spot checking of motorists with breathalysers?—which his Government first of all thought was a good idea and then, wisely, abandoned it.

LORD BROWN

I am not prepared to enter into a discussion of that Act; I do not know much about it. I am basing my remarks on industrial and other experience. Either you continuously enforce the law by watching every act; or you spot check; or you do not watch anybody. The principle of pilot inspection, of random sampling, is so well established in the maintenance of given conditions that to criticise it in a general way seems to me to be extraordinary.

LORD AIREDALE

May I say that I could not disagree more with the Minister. The officials who will be operating this Bill when it becomes an Act are not policemen; so the noble Lord is making an unfair comparison. I should have thought it was abundantly desirable that the officials operating this should act only upon a reasonable suspicion; that they should not be expected to have power to walk into somebody's shop or warehouse without having any inkling that an offence is being committed, purely in order to spot check to find out whether, by some unlikely chance, an offence is being committed. I should think that the Committee would be against such power being enjoyed by the officials of the local authority enforcing this Act and—

LORD BROWN

I think it may be useful for me to interrupt the noble Lord. How does the official get the inkling that something is wrong without a spot check?—which may be nothing more than looking into the window of a shop. How does he get the notion that something may be wrong which may lead to further action without a spot check?

LORD AIREDALE

If he looks into a shop window and sees goods which bear a false trade description he is not making a spot check as he walks into the shop. Surely the Minister is not going to argue that point. However, it is not a question of him or of anybody else seeing something in a shop window. I should have thought the other obvious way in which he hears about this is that somebody walks into the office of the local authority and says, "Here is an orange in a wrapper which appears to me to have an odd description on it. Will you look at it please and investigate the matter?" The officer does so. And when he does so, he is not making a spot check or anything like it.

Now perhaps I may be allowed to come on to my third point, the very sweeping powers conferred by subsection (3) upon the magistrates to authorise officials to do all sorts of extremely drastic things. These powers will be available to magistrates to empower the officials to do these things for the purpose of spot checks if the magistrates so decide. I am not suggesting that magistrates are normally tin-reasonable and would act unreasonably in consequence of their powers under subsection (3). But I see no reason to give magistrates enormous powers to enable officials to take drastic action when this is not absolutely necessary. So I hope that we shall be able to argue out the whole question of whether we really want this clause to give powers to make spot checks. I beg to move.

Amendment moved— Page 14, line 11, after ("department") insert the said words.—(Lord Airedale.)

LORD PARGITER

There is one point that occurs to me. It is easy enough to talk about isolation, but the officer carrying out these duties may well be a weights and measures inspector, or someone acting under the provisions of the Food and Drugs Act and carrying out certain duties, as he would have a perfect right to do. It seems to me that it would be meaningless to insert these words in the clause, having regard to the fairly large powers which the person concerned would already possess.

LORD DRUMALBYN

I think that is quite true, and that is what was influencing me, but something the noble Lord, Lord Brown, said in reply makes me wonder whether the powers as a whole may not go too far. May I say to the noble Lord, Lord Airedale, that I am sorry he did not support my Amendment? We might have combined and it might have been more effective, but I thought that on this question I had not much support in the Committee. It is quite clear that in the course of performing duties in connection with weights and measures it is the duty of officers to go into and inspect certain types of premises. But this Bill is extending the kinds of premises and the kinds of activities.

I think that the noble Lord, Lord Airedale, would accept that in many instances inspectors would in any case go into premises. They make an annual inspection of all premises in their area to check weighing machines and so forth, and they could do other things when they were there. The question is whether it is necessary to give the same powers where there are no weights and balances and so forth to be checked. The kind of spot check required is quite different in the case of somebody giving services than it is in respect of someone selling goods. It may well be that we are going a little too far.

Here again it may be that there should be refinements and a distinction between the two kinds of instances, where people are going into premises in any case (which was what influenced me when drafting my Amendment: I thought there was no point in getting a justice's warrant, as has to be done under the Food and Drugs Act, if they are to go into the premises anyway). But what about the other kind of premises, where they would not enter? Ought they, in such a case, to go in unless they have reasonable grounds to believe that an offence is being committed? This is the kind of consideration to which noble Lords should be directing their attention.

LORD BROWN

May I draw the attention of the noble Lord, Lord Airedale, again to the question of spot checks? The Food and Drugs Act and the Weights and Measures Act do enable spot checks to be made; that is, they enable inspectors to act: for the purpose of ascertaining whether an offence is being or has been committed. It is quite clear that these laws allow spot checks. I want to rely on the general statement as an argument for the Committee to reject this limitation on the powers of these inspectors. The number of cases where a Government Department is accused justifiably of the misuse of powers given under other Acts is miniscule. The number of cases where the law is offended and the offenders are not brought to book is enormous, and it is growing daily.

My noble and learned friend the Lord Chancellor said some weeks ago that the way to reduce crime is to make detection more certain. If we reduce the powers of these inspectors—and they are going to have an extremely difficult job, because there will be loopholes in the Bill, whatever we do—in the way proposed in these Amendments, we shall increase substantially the difficulties of their job. They will have to prove in all cases that they are acting on reasonable grounds, when they are acting on suspicions; and suspicion founded on local circumstances is not always ground for reasonable cause. I think that this is a first-class way of enabling a criminal to refute the presence of an inspector. I beg the House not to accept this Amendment.

VISCOUNT COLVILLE OF CULROSS

I do not think that this is right. The noble Lord has made a powerful plea that the powers of the inspectors should not be limited, but I am not aware that, under the existing powers in the Food and Drugs Act and weights and measures legislation under which these inspectors operate they have carte blanche to go into anybody's premises, without having the slightest suspicion that there is anything wrong, and inspect forcibly every single document and book relating to the business. The noble Lord cannot say that we are restricting the powers of inspectors. We are not. The Bill is extending their powers considerably, whether it is done under the phrasing of the Bill or under the phrasing suggested by the noble Lord, Lord Airedale, or by my noble friend Lord Drumalbyn.

What we are really arguing about is whether or not, in extending the powers of inspectors, particularly under paragraph (c), we should allow them to have these powers in order to act when they have no suspicion, or only to do so when they have some reasonable suspicion in the first place. I am bound to say that I should not fall over backwards to extend their powers quite so far as the Bill does without having further thought about it. I hope that the noble Lord will look at paragraph (c), which is a departure, to see whether it is not going a little too far.

LORD STRANGE

The noble Lord, Lord Strabolgi, touched on a rather important point on the last Amendment which has not been touched on on this Amendment. Two people can go into a public house, put down their money, order two brandies, pour them into bottles, seal them and take them away. That is all right. Under this Bill, two phoney men can go in, show a phoney licence, and say they want to see a trader's cigarettes. The trader does not know much about this Bill and they can tell him, "Look at this serial number here; look at that one. These are 'hot' cigarettes. We will take them round to the station. Here is a receipt for them". Then they put them into their car and take them back to their den. I have read the Bill carefully and there is nothing in it to prevent thieves from using this power, which does not exist under these other Acts. I think that in the final draft of the Bill something should be done so that a proprietor could ring up the police station and check on these inspectors. There is nothing in the Bill about checking people who come in and say they are inspectors.

LORD BROWN

When the noble Lord, Lord Strabolgi, withdrew his Amendment, my noble friend was about to agree that we would look at this point of insisting that inspectors should show their credentials when they entered premises, because we felt that this point was one of value. Perhaps this will go some way to satisfying the noble Lord.

LORD STRANGE

I agree, but it is not just the showing of credentials. They will have them faked before they go in. There should be some way of ringing up the police station, if these inspectors are suspected, to see whether they are genuine.

LORD BROWN

May I point out that there is no law that prohibits a criminal from breaking the law. The point is that the law enables you to arrest and to prosecute him after he has broken the law. You cannot prevent people making themselves out to be detectives, and so on. You cannot ask us to safeguard in that way, because this cannot be done by Statute.

LORD CHAMPION

Would there not be a safeguard in the case of credentials? If someone came to my premises and I thought that his credentials were phoney, I should get in touch with the authority which appeared to have issued the credentials and check with them whether the man was in fact the man represented on the document produced to me. I have listened to this argument carefully, and it seems to me that these officers ought to have the power to make a spot check. I do not feel anything like as doubtful about this as the noble Viscount, Lord Colville of Culross. I think he was particularly drawing attention to (d)—

VISCOUNT COLVILLE OF CULROSS

No; to paragraph (c).

LORD CHAMPION

I am mistaken. On paragraph (d) he must have reasonable grounds and cause to believe that the goods are such as to be liable to forfeiture, and so on. That would appear to me to be ample in that case. On paragraph (c) it might perhaps be slightly different, but I must say I feel that these powers will be carried out and used by people who are responsible, and we have to recognise that they are responsible. They will be doing this check on behalf of the community. We want to stop many of the things that are going on, and it is right that we should use this Bill and any powers that we grant under it to prevent some of the abuses on honesty and decent dealing which are taking place.

VISCOUNT COLVILLE OF CULROSS

Is the noble Lord, Lord Brown, going to answer the point about paragraph (c)? I believe that this is the point which really crystallises the argument. I think it is accepted that under (a) and (b) the inspector will have got in perfectly properly under the jurisdiction of the other Act. But here is paragraph (c), which is a novel power, as I am sure the noble Lord appreciates. Paragraph (d) is a novel power for the purposes of this particular jurisdiction: and on that paragraph, as the noble Lord, Lord Champion, has said, he has to have a reasonable cause.

I would suggest that the Government might consider whether they would not use some formula on (c) as they have on (d), and leave (a) and (b) as they are. This is, at any rate, a compromise. It does not seem to me to do any great harm to the power to carry out a spot check of the sort the noble Lord, Lord Brown, is talking about, but it might in some way mitigate the extremity of the power that I fear is being given by the clause as it is now.

LORD BROWN

I have used these arguments before on other portions of this Bill, because other attempts have been made to limit the authority of those who will police this Bill. This Bill is much wider than other Acts that have been referred to, and it covers a vast variety of goods. I believe it is better to have fewer criminal offences, and more authority to enforce the law in respect of those offences rather than to have more criminal offences with less authority to see that criminal prosecutions follow offences against the law.

We are getting into the other position. I have used the argument that from inside the Board of Trade, over a fairly short experience, I have encountered a number of cases where events are reported to us which would appear to people like me to be serious offences, though we are informed by the Solicitor's Department: "We cannot act in these circumstances. It would be a risk. We have taken counsel's opinion. We might get an injunction against us." Every time the powers of officers to enforce are limited in cases of this sort there is the risk of a growing number of cases of serious offences against the law and of damage to individuals concerned.

In my experience the Board of Trade is very careful indeed in regard to the use of its powers. It is hesitant to use them, and if it is limited in this way and the word "reasonable" is introduced, then the officer concerned must have reasonable grounds before he acts. He would not be able to act on suspicion, and I think he should be able to. Likewise he would not be able to act on hearsay evidence from somebody. He has to be able to demonstrate later to some authority that he has had reasonable grounds. This is an awkward position to put him in if you want him to do the job with zeal in order to cut out these malefactors. I ask the Committee not to interfere with this clause.

LORD DRUMALBYN

The more I look at this the less I think is in the noble Lord's contentions in this case. He referred to one or two of the clauses here; Clause 11 for example. If there are only one or two clauses to which this applies, then the Bill should be drafted so that it is directed to offences under those clauses and is not so wide as it is now. I say in all sincerity to the noble Lord that it is nonsense to contend that because this Bill goes wider therefore there must be much wider powers of entry. The particular powers required are related to the particular offences. Surely what emerges from this discussion is that these powers are far too widely drawn. If you have to see what prices were charged in the last six months no doubt you have to look at the books, but surely you should not do that unless you are acting on suspicion.

In general, of course, inspectors will not be able to go round all the time at large; they must direct their attention to where a complaint has arisen. Spot checks are just not possible. They have great difficulty in getting round the whole of their area once a year, and now they will have further responsibilities. They will have to work on complaints. If there is a complaint then they can look at the books; but what is the point of doing that if there is a false trade description? If there has been a complaint, let that complaint be investigated. You can seize goods if necessary, if they are related to the proving of an offence, and nobody would deny that power. I think my noble friend is right about this. It is a sweeping power and it should be strictly limited to the purpose for which it is required.

LORD AUCKLAND

There is one passage in subsection (1)(c) which seems to me to be extremely dangerous. That is where it says: relating to the trade or business and take copies of them or extracts from them;". If one takes extracts from the sales register, or something of that kind, it is very easy to get them out of context. Either you must take the whole thing, which is often eminently undesirable, or you must take nothing at all. If you take extracts you are subjecting the whole matter to extreme dangers.

LORD AIREDALE

First of all, I must apologise to the noble Lord, Lord Drumalbyn, for appearing to fail to give him support on his last Amendment. I can assure him that I was strongly inclined to do so, but was curbing the number of speeches I was going to make to the Committee. I am sorry about that, in view of the very strong support he has given me on my Amendment, and I am enormously indebted to the noble Viscount, Lord Colville of Culross, for the very strong speech in support he has made.

May I once more make absolutely clear, clearer than I did before, to the Minister the consequences of subsection (3) if we are going to allow these spot checks? I am tired of that expression; I am going to change it and talk about random checking, because it is a nicer expression. Look at subsection (3); look at line 20; you find that a justice of the peace on a sworn information may authorise an officer "to enter the premises, if need be by force". Imagine this situation: a local government officer goes before a justice of the peace and says, "Will you give me a warrant to go into Mr. Green's grocer's shop and make an inspection under the Consumer Protection Act?" The magistrate says, "I do not know about that. What suspicions have you against Mr. Green?" The inspector says, "I have no suspicions whatever against Mr. Green, but I think it would be a good thing if I went and inspected his grocery store." The magistrate says, "I very much doubt whether I have power to give you authority to enter by force into Mr. Green's grocery store." The official says, "Pardon me, you have; it is here, in subsection (3) of Section 27 of the Act. It authorises you to empower me to enter Mr. Green's premises by force, and I do not have to have any suspicion: I only have to exercise my power under subsection (1), and it does not say anything about my having to have any suspicions." The magistrate may say, "Well I do not like this very much"—a sort of Pontius Pilate attitude; he may say "All right, there is your warrant." Does the Minister want that situation to be allowed to eventuate? That is what I should like to know.

I am going to say one or two more words and then sit down. I think I now understand from the speech of the noble Lord, Lord Drumalbyn, why the power to make random checking is given under the Weights and Measures Acts and the Food and Drugs Acts but should not be given under this Act. If we take the case of the Weights and Measures Acts, I do not suppose that any honest trader resents the arrival at random of the inspector. He is as pleased as his customers that a check should be made on his scales, because everybody knows that scales get out of adjustment from time to time. So there is no sort of resentment about the sudden arrival of the official in that case. When we come to the Food and Drugs Acts, this very often is a matter of public health, and although I dare say there might be a certain amount of resentment at the sudden arrival of officials acting under these Acts, if it is a case of public health it is probably worth while in the public interest. But I have heard nothing from the Minister which convinces me that random checking under this Trade Descriptions Bill, as it ought to be called, ought to be justified at all, particularly having regard to the powers of magistrates to issue warrants to enter by force. I hope that the Minister will think about this again, and very seriously.

LORD CAWLEY

I see no objection to subsection (3). A justice of the peace has to have sworn information put before him, and that is what a policeman does when he has reasonable ground to believe something nefarious is going on in the house.

VISCOUNT COLVILLE OF CULROSS

With great respect, that is just what the justice does not have to be satisfied of. All he has to be satisfied of is that there is reasonable ground to believe that there are—let me take one example—books which a duly authorised officer has power to inspect on the premises. It does not say "and that any offence under this Act … is being committed"; it says "or that any offence under this Act … is being committed". So that all that the justice of the peace has to be satisfied about is that there are books on the premises; that under subsection (1) he has power to inspect them, which he has whether or not he has any grounds to suspect that there is anything going on at all. Further, he then has to satisfy the justice that (to take the noble Lord's example) Mr. Green is not going to let him in unless he has a warrant. That is all he has to do, and it seems to me, to take the noble Lord's example to its logical conclusion, that any policeman ought to be allowed to get a warrant to enter any premises by force to see whether anybody inside is committing any criminal act. That is I think what is going on here.

LORD BROWN

It is quite clear that we could go on with this discussion all night, and I do not think any of us wants to do that. I am prepared to say this. I will undertake to read carefully all that has been said about this clause this evening, and if the conviction which it brings to me, that a change is necessary, is stronger than the conviction that has been brought by listening to it—I admit I have been a little confused at times about what has been said—I will take measures to see whether a change can be made. I am not committing myself too much, as I am at pains to make clear, because I firmly believe that the clause is perfectly correctly drafted. But I open the door one-tenth of an inch in an effort to get the withdrawal of these Amendments so that we can proceed with our business.

LORD AIREDALE

I do not think that that is at all a handsome offer. I weigh in the scales whether I will take this to a Division now or withdraw the Amendment. By one-tenth of a dram I decide that I will ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

10.7 p.m.

LORD AIREDALE

moved, in subsection (1), to leave out paragraphs (a), (b) and (c), and insert: ( ) inspect any goods; ( ) enter any premises, other than premises used only as a dwelling; ( ) require any person carrying on a trade or business or employed in connection with a trade or business to produce any books or documents relating to the trade or business; ( ) take copies of such books or documents; and

The noble Lord said: I move this Amendment only for the purpose of explaining the last paragraph, which says: take copies of such books or documents; and I have put this into a separate paragraph, because the Committee will notice that the words in the Bill come at the end of paragraph (c). In my submission, a possible construction of paragraph (c) is that the words, "take copies of them or extracts from them" may apply to the preceding words, "require any person"; that is to say, that under paragraph (c) as drawn the officer would have power to require the shopkeeper, or whoever it may be, to take copies of documents for the officer. I do not believe that that is what is intended and I believe it would put it beyond doubt if the power to take copies of books or documents were put into a separate paragraph, which would make it abundantly clear that the power to do this was vested in the officer himself and that he had no power to require the other person to provide these copies.

The other point is simply this. The Act says, "take copies of them or extracts from them". In my Amendment I have left out the words "take extracts from them". The reason is that I do not understand the difference between "copies" and "extracts" in this connection. I should have thought that they meant the same thing. There is a possible meaning in the words "taking extracts", that is to say, tearing pages out of books or out of a bundle of documents. If the Government do not intend to give to officials the rather ruthless power to tear out pages, I should have thought that the words "take copies" were sufficient, and that by leaving out the words "take extracts" it would make it clear that the officials were not being given power to tear out pages, but only to take copies. I beg to move.

Amendment moved— Page 14, leave out lines 13–24 and insert the said new paragraphs.—(Lord Airedale.)

LORD BROWN

My noble friend and I split up the clauses of this Bill and it fell to my lot that I had no clause on which I could be gracious. But half-a-loaf is better than no bread, and this part of the Amendment which we are now taking is one which I can assure the noble Lord we will be prepared to consider very seriously indeed—in fact, we almost like it! With those enticing words, I hope that the noble Lord will be prepared to withdraw his Amendment.

LORD AIREDALE

Now that the door is only one tenth of an inch closed instead of being only one tenth of an inch open I, with positive pleasure, beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD CAWLEY

moved, in subsection (1)(d), after "goods" to insert "which are reasonably required for purposes of testing or prosecution under this Act and". The noble Lord said: The subsection as at present drafted gives very wide powers indeed. In fact, in the case of a large consignment of goods it would give power to the officer to seize the whole consignment, and if they were perishable goods they would be completely destroyed. He would have a right to seize them, and if they were destroyed it would be too bad. This Amendment seeks to reduce that power merely to taking samples necessary for the purposes of testing or prosecution under the Act. I think that this is very reasonable, and would avoid the possibility of a bogus inspector running off with the whole consignment in a van and never being heard of again. I feel that in order to prosecute one requires only an adequate amount of goods, and that this is the power which ought to be given. I beg to move.

Amendment moved— Page 14, line 25, after ("goods") insert the said new words.—(Lord Cawley.)

LORD WINTERBOTTOM

The noble Lord may remember that a little earlier the noble Viscount, Lord Massereene and Ferrard, moved Amendment No. 39, which is similar in intention to this Amendment, No. 57. It provided that one should forfeit only goods which are reasonably required for the purpose of testing or prosecution under the Act—which roughly coincides with what the noble Lord has said on this Amendment. The undertaking which I gave to the noble Viscount I would repeat to the noble Lord: that we are sympathetic to this particular Amendment, but I should like to consider it together with my undertaking to reconsider Clause 17(2), Amendment No. 39, in order to get the definition as equally satisfactory on the noble Lord's Amendment as on the noble Viscount's. If he would agree to allow me to treat it on an equal footing with the noble Viscount's Amendment, I should be grateful if he would withdraw his Amendment.

LORD CAWLEY

I am grateful to the noble Lord, and beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD AIREDALE

This is a very small point, indeed. Line 27 refers to "any document", and I am moving to insert the words "book or" so as to make the paragraph read "any book or document". I am quite prepared to be told in reply that this is unnecessary, because "document" includes "book", but if I am to be told that I am going to say, "In that case, why does the previous paragraph refer to 'books or documents'"? I do not understand this. I beg to move.

Amendment moved— Page 14, line 27, after ("any") insert ("book or").—(Lord Airedale.)

LORD WINTERBOTTOM

Would the noble Lord accept our undertaking to consider this rather interesting point?

LORD AIREDALE

Certainly.

LORD DRUMALBYN

Before the noble Lord withdraws his Amendment, may I say that surely there is a very distinct difference between "book" and "document" here. You cannot get on in your business if you do not have your books there. You do not want to have the books taken away—I think this is a common form—but a particular document may well be taken away. I should have thought it would be very sad indeed for a firm if the whole of the books went.

LORD WINTERBOTTOM

May I go a little further? We accept this Amendment.

LORD AIREDALE

I am so impressed by what the noble Lord, Lord Drumalbyn, has said that I am going to throw another spanner into the works and beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

10.17 p.m.

LORD AIREDALE

moved, in subsection (1), to leave out "break". The noble Lord said: I think my course on the last Amendment was probably foolish, because I am sure I shall not get any more sympathy from Her Majesty's Government. I am now dealing with line 32, which says that an officer may require any person to break open any container or open any vending machine. The first question which I should like to ask is: is not a vending machine a container? I should have thought it clearly was. And if it is, since there is power to require a person to break open any container, it surely follows that there is power for him to break open any vending machine. But if he does have power to order someone to break open a vending machine, why go on to say that he may order him to open any vending machine? This does not seem to make sense.

The gravamen of this is that it is rather a savage power to require a person to break open a container. Why should he? I can quite see that if there is a locked box a person may be required to open it, and I can quite see that if he does not get the keys he may eventually be told, "You will have to break it open." But why should an official have power in the first instance to require somebody to break open a container? I should have thought this was an unnecessary and rather savage power to give, and that the subsection would be much better without the word "break". Accordingly, I move to leave it out. I beg to move.

Amendment moved— Page 14, line 32, leave out ("break").—(Lord Airedale.)

LORD WINTERBOTTOM

The word "break", which so upsets the noble Lord, is present in a precisely similar context in the Weights and Measures Act 1963. I agree with the noble Lord that there is not a great deal of difference generally between a power to require someone to open a container and one to require him to break it open. This is charging emotionally something which is really simple. I break open a box of chocolates which is wrapped in cellophane. I do not open it; I break it open, as that is the only way of opening it. I am not quite certain what impelled the draftsmen of this Bill to strengthen the word "open". If I have the power to open anything, I open it in the best and simplest way that I can. I lift the latch, I turn the key, or I take an axe and hit it hard; but if I have the power to open it, I open it, whatever the state of the container. I think the noble Lord has become rather sensitive in trying to distinguish between opening a container and breaking it open. I realise that there is a literal difference, but in point of fact I should have thought that in lay, the power to open something, without defining how, and actually defining breaking it open, is different.

LORD AUCKLAND

Surely there is a very important point here. If it is a container of an expensive kind, which may have quite an expensive look on it, and he breaks it open and it is subsequently found that the container has perfectly genuine documents, who pays the compensation? This may be a trivial point taken in isolation, but if there are a number of cases here it could prove very expensive, and very burdensome for the courts.

VISCOUNT COLVILLE OF CULROSS

It must be a principle of some significance that a word is not used in a Statute unless it is intended to mean something. As I understand the answer of the noble Lord, Lord Winterbottom, this adds nothing to the meaning of the clause, and I should therefore have thought there must be everything to be said for leaving it out, because otherwise the only way a court can construe this part of subsection (1) is to say that there is a difference between "break open" and "open" because Parliament has said so; it has used two different phrases, and it must have meant something different. I do not understand there to be any difference intended, and I should therefore have thought we must leave it out.

LORD WINTERBOTTOM

I must refrain from trying to attempt a little light relief at this late hour of the night. I think the noble Lord will agree that there is a difference between the two situations. The power to require a container to be broken open is necessary where breaking is the only way of opening the container. We do not want someone who is in some way or other committing an offence under this Bill to be able to get away with it simply by saying, "No, you cannot open this container, this vending machine"—or whatever it is—"because it is expensive". The officer undertaking this duty is presumably a responsible official. He operates in a democracy, and he knows that he will get his knuckles rapped heavily if he oversteps his powers. If he finds it necessary to break open a container, he will doubtless do so bearing in mind the fact that he is in fact running a risk of having his knuckles rapped if he oversteps his powers.

I think that in certain circumstances your Lordships will see that the officer can exercise his power only if and to the extent that it is reasonably necessary to secure the observance of the Act and the orders made under it. He is not going to do this wantonly; he is not going to take a sledgehammer and have a smashing time. He is going to do it only if he thinks it is reasonably necessary to do so. If the officer were challenged, he would have to prove, by reference to objective criteria rather than simply to his own views, that it was necessary to have the container broken open. This is saying in "officialese" what I was saying in simple terms, that he will not make a fool of himself. He knows he will get his knuckles rapped if he oversteps the mark; but I am sure the Committee will realise that in certain circumstances it is reasonable that he will break open a container, whatever its shape or size or system of closure, if he believes it to be necessary. We want him to have this power.

LORD AIREDALE

The Minister has not dealt with my first point, and I do not blame him, because it was raised some time ago. Why is there power only to "open" a vending machine, specifically given, and not to "break open" a vending machine? And what is the point of that, because is not a vending machine a container? And if there is power to break open a container, surely there is power to break open a vending machine. And, if so, what is the point of going on to say that he may open the vending machine?

LORD BROWN

The noble Lord is basing his case on the idea that the word "container" and the words "vending machine" have very little between them; that the word "container" embraces a vending machine. I think this is a wrong construction to put on the words. They are two quite separate descriptions, and the case he is building up based on that construction of these words is, in my submission, not correct.

LORD AIREDALE

We are not getting along very fast, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

10.25 p.m.

LORD AIREDALE

We now come to the odd expression that the officer may require any person to do this breaking open or permit the officer to do so. How do you require a person to permit you to do something? This surely is not ordinary English at all. I know that behind the Iron Curtain people get brain-washed into permitting things to be done, but we do not do that sort of thing in this country. Surely the object is to say that the officer himself may do so if the person required to do so does not. You cannot require a person to permit you to do something. It makes nonsense. I beg to move.

Amendment moved— Page 14, line 33, leave out "or permit the officer to "and insert" otherwise the officer may".—(Lord Airedale.)

LORD WINTERBOTTOM

The noble Lord has made a point which we must consider. As in the case of suggestions of other noble Lords, the Government are in sympathy with the point he made. I do not think the Amendment is quite acceptable as it stands; but if the noble Lord is willing to withdraw it we shall try to put down a Government Amendment at a later date which will have the same effect in slightly different words.

LORD AIREDALE

I am much obliged.

LORD DRUMALBYN

I have an Amendment which overlaps that of the noble Lord. In my view there is no point in having those words there at all; for the reason that either the person has authority to do so or he has not. If he has not, then you send for the person who has and require him to do so. There seems to be no reason whatever why you should proceed to open a vending machine—if you can; for there is this big distinction between "breaking open" and "opening"—if you cannot open it in such a way as to be able to restore it. If you open a door then after you have opened it it is still the same door. But in the case of a vending machine it is no longer the same and may need repair. There seems no reason for breaking if you can get the person with authority to open it properly. In any case, as the clause is drafted, you have to get his permission. I am not sure that there is any reason at all to break into a vending machine; you can always wait until somebody comes with the key.

THE DEPUTY CHAIRMAN OF COMMITTEES

Perhaps I should have informed the Committee that if Amendment 60 is carried this will partly preempt Amendment No. 61 and I shall have to put it in a different way.

LORD WINTERBOTTOM

Since the two Amendments are relating to the same matter perhaps we could consider them together. We have given an undertaking to the noble Lord, Lord Airedale, to try to find something better. Can we consider the noble Lord's Amendment in relation to Amendment No. 60?

LORD DRUMALBYN

Willingly.

LORD AIREDALE

I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

LORD AIREDALE

moved, in subsection (1), to leave out all words after "permit the officer to do so" to the end of the subsection, and insert: ( ) An officer may act in accordance with subsection (1) of this section only if and to the extent that it is reasonably necessary in order to secure that the provisions of this Act and of any order made thereunder are duly observed.

The noble Lord said: The purpose of this Amendment is to make it possible to remove the ponderous phrase which I will not read out, and which is common to paragraphs (a), (b) and (c) of subsection (1). I am not quite accurate in saying that. I would point out, in case the Government have not already noticed it, what I think is a printing error here, because whereas paragraphs (a) and (b) refer in this lengthy phrase to "any offence", paragraph (c) refers to "an offence". I cannot but think the word "any" is intended in all three cases. That is the purpose of the Amendment. Probably I shall have to withdraw it, but I have explained its purpose as best I can. I beg to move.

Amendment moved— Page 14, line 33, leave out from ("so") to the end of line 36 and insert the said subsection.—(Lord Airedale.)

LORD WINTEREOTTOM

The noble Lord said he thought he might have to withdraw the Amendment because of a printing error. May I consider it in relation to the other points?

LORD AIREDALE

In that case, I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

10.31 p.m.

LORD AIREDALE

moved, in subsection (2), to leave out "the person whose name and address are stated on the machine as being the proprietor's", and to insert instead: any person whom he believes to be the owner of the goods'

The noble Lord said: Subsection (2) requires an officer in the case when goods are seized from a vending machine to inform the person whose name and address are stated on the machine as being the proprietor's". The question I ask is: does "proprietor" mean the proprietor of the machine or the proprietor of the goods? I imagine that what is intended is the proprietor of the goods; he is the gentleman with whom presumably the official wishes to get in touch, because the machine is probably on hire from a company hundreds of miles away who would have no interest in the goods in the machine. I should have thought that, as drafted, the subsection is genuinely ambiguous. "Proprietor" might mean the proprietor of the vending machine or the proprietor of the goods. I am moving this Amendment to make clear that what is intended is the person whom the officer believes to be the owner of the goods. I beg to move.

Amendment moved— Page 14, line 40, leave out from ("machine") to ("or") in line 41 and insert the said new words.—(Lord Airedale.)

LORD WINTERBOTTOM

May I explain to the noble Lord what we are trying to achieve? The noble Lord may have misunderstood the subsection. If goods are seized from a vending machine two persons must be informed. The first is the person from whom the goods are seized. He is the person described in subsection (1) as the person Who has authority to open the machine and give permission for it to be opened. If he controls the opening of the machine, the goods are in his custody, therefore he is the person from whom the goods are seized. His authority will come, directly or indirectly, from the owner of the goods, therefore the fact that he is informed will usually ensure that the owner of the goods is informed—indeed, in many cases he will be the owner.

On the other hand, the proprietor of the machine has an interest in knowing that the machine has been opened and the goods seized. The subsection therefore requires him to be told if his name is on the machine. If it is not, the customer must do the best he can in the circumstances by telling the occupier of the premises on which the machine is found. We believe that the noble Lord's Amendment is therefore unnecessary, in so far as it seeks to improve the protection given to the owner of the goods and unfair in so far as it would prejudice the interests of the owner of the machine.

LORD AIREDALE

I am obliged to the noble Lord. I had misunderstood the intention of the subsection. But since I misunderstood it, I suppose it is possible that others may do so, and therefore I should have thought it might be useful if at the next stage of the Bill the Government moved an Amendment making abundantly clear what they mean. I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 27 agreed to.

Clause 28 agreed to.

Clause 29:

Notice of test and intended prosecution

29.— (2) No proceedings for an offence under this Act shall be taken by a local weights and measures authority except after not less than twenty-eight days' notice to the Board of Trade of the intended proceedings, and any such notice shall be accompanied by a summary of the facts on which the charges are to be founded.

LORD DRUMALBYN

moved, after subsection (1), to insert: ( ) No proceedings for an offence under this Act shall be taken by a local weights and measures authority in respect of an advertisement other than an advertisement circulated mainly in the area of that authority except with the consent of the Board of Trade.

The noble Lord said: The purpose of this Amendment is to explore the intention of the Government as to how this Bill will operate with regard to national advertising. Clearly, with regard to local advertisements in the local Press or even on the local radio, the local weights and measures authority are the appropriate people to prosecute. Where there is national advertising, covering a wide area or the whole country, it seems incongruous that a particular weights and measures authority should prosecute. These are the two extremes. No doubt, if there was something wrong several authorities would suspect this and would give notice to the Board of Trade of their intention to prosecute.

The logic of this seems to me that in certain cases the Board of Trade should take on the prosecution. It may be going too far to say that a prosecution should not be undertaken by a weights and measures authority without the consent of the Board. I should hope that there would be the closest understanding between the authorities and the Board. I should think that if the Board had received 25 notices of intention to prosecute in a case, it would be sensible for the Board to say that it would pool all the evidence and prosecute, and that would be acceptable. Either the Board of Trade should not allow prosecutions by weights and measures authorities in regard to advertisements circulating over a wide area without its consent or the Board should be prepared to take on all prosecutions of national advertising where it is appropriate. I beg to move.

Amendment moved— Page 16, line 30, at end insert the said subsection.—(Lord Drumalbyn.)

LORD PARGITER

I should like to be clear on one point. Nowhere else in this Bill is a local authority prohibited from going forward with a prosecution. I appreciate what the noble Lord would like to do and I think it is sensible, but I do not think that there should be an absolute prohibition on a properly constituted local authority from undertaking its own prosecutions.

BARONESS PHILLIPS

This Amendment attacks the principle which we have adopted in this Bill, that the Board of Trade shall not interfere with the rights of local authorities to institute proceedings in respect of offences which they have discovered in their area. I know that the advertising industry are greatly worried about the possibility of proceedings in more than one place in respect of the same advertisement, as the noble Lord has told us. But if your Lordships will look at subsection (2) of this clause you will see that we have provided that the Board of Trade must be given notice of any intention to prosecute. This provision has been inserted specifically to enable the Board of Trade to act as a link between local authorities and to keep them informed where other authorities appear to have discovered, and wish to prosecute, offences which are identical or very similar.

We believe that this procedure will be perfectly adequate, in practice, to avoid unjustifiable multiple prosecutions for what is in effect the same offence. The similar procedure under the Food and Drugs Act has certainly proved to be so. But it must be left to the local authorities to decide in the last resort whether or not to prosecute. I am sure that your Lordships will agree that this is right. We must recognise that local authorities are responsible and reasonable bodies. They have also a great deal of work to do and must account for the money they spend. They are not going to want to rush into prosecutions just for the joy of it. In some cases they will be only too glad to feel relieved of the obligation to do so.

There is, of course, another aspect of the situation. The Board of Trade will also have a right to prosecute. It is very possible that if a number of local authorities were to report to the Board of Trade that they wished to prosecute in respect of the same advertisement, the Board of Trade would offer to bring a central prosecution. This would not always happen. But it would happen, particularly where the offence was one of national interest. I hope, therefore, that the noble Lord will feel able to withdraw his Amendment.

LORD DRUMALBYN

I think that what the noble Baroness has said is quite satisfactory. I accept that at the end of the day if the weights and measures authorities feel strongly about something they should be allowed to go on with the prosecution, provided that they are not doing it along with a lot of other authorities. But, on the other hand, I personally think that it would be a good idea if the Board of Trade took over prosecutions in the cases of the greatest importance. I think we can agree upon that and, in the circumstances, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

10.42 p.m.

LORD ILFORD

moved to leave out subsection (2). The noble Lord said: The significance of this Amendment has largely evaporated in the light of what was said by the noble Lord earlier in the evening, when he said, quite clearly and frankly, that the policy of the Bill was to permit prosecutions at the discretion of the local authority. Frankly, this proposal for 28 days' notice aroused a certain degree of uneasiness and suspicion. It was felt that this was really an attempt by the Board of Trade to drive from the back seat, and that it would be used for the purpose of controlling the discretion of the local authority in initiating proceedings. I think the noble Lord made it clear that that is not the case; indeed, I believe the noble Baroness a few moments ago repeated the same thing. It is a little puzzling to know why as much as 28 days' notice is required for prosecution. I see that the noble Lord, Lord Airedale, has an Amendment down to substitute 14 days, and I should have thought that this was an adequate number of days, and that 28 days errs on the excessive side.

May I say one more word about the freedom of discretion, which I think it is desirable that the local authorities should have? Your Lordships may recall that in the Report of the Commission presided over by Lord Redcliffe-Maud, on management in local government, which was published a short time ago, the attempt of central Departments to interfere in the discretion of local authorities in carrying out matters which were assigned to them was very firmly condemned. That would apply very much to this Bill. It would be quite wrong for the Board of Trade, either directly or indirectly, to attempt to interfere with the general discretion which local authorities are given. I understand from what the noble Lord said earlier that that is certainly not intended, and I was glad to hear him say it. I beg to move.

Amendment moved— Page 16, line 31, leave out subsection (2).—(Lord Ilford.)

LORD PARGITER

I wish to support this Amendment moved by the noble Lord, Lord Ilford. If I may say so, I think it was quite indefensible on the part of the Government to use the argument they did on Clause 2 to deal with a relatively simple and straightforward position with regard to national advertising. In other words, the noble Baroness said, "Yes, but we have covered this because they cannot do it without reference to the Board of Trade anyway." If it happens to be a matter of simple marking or misdirection by a barrow boy, it still has to go to the Board of Trade and it will still take 28 days. This is before they start work on it. Where the barrow boy will be in that time, goodness knows!

The only previous authority for this is Section 109(3) of the Food and Drugs Act, which requires 14 days' notice, but also in that Act the Board of Trade have the power to dispense with this notice, and in most of the Orders they have published they have done so. So in effect what the Government might rely on as a precedent is not a precedent at all, because so far as this Bill is concerned there is no question of discretion. Just imagine the sort of things that will have to be referred to the Board of Trade, with no discretion and a further 28 days' waiting. After all, it must go through the mill of the local authority, through the weights and measures department, to their solicitor, and then a case is built up and sent to the Board of Trade.

While there is to be no interference with the discretion of the local authority, what the Board of Trade are required to do under the next clause is to give a certificate which is required to be produced in the courts, and presumably if it is not so produced the prosecution would fail. So unquestionably there is a complete and deliberate interference with the local authorities on the part of the Board of Trade, whether or not they intend it. I hope the Government will take this back and look at it, with a view to leaving the position at least no worse than it is under the Food and Drugs Act—that is, 14 days' notice with discretion to dispense with it.

I agree it is desirable that there should be uniformity under the Food and Drugs Act, but to deal with the multiplicity of things which will come under the question of marking of goods, and so on, and say that willy-nilly they must all go to the Board of Trade, 28 days' notice must be given and a certificate produced in court, makes one wonder what sort of procedure we shall get into on quite simple matters. I really do not think that the Government can have thought this out, and I hope they will give an undertaking to look at it again.

LORD DRUMALBYN

I hope very much that the Government will not change this. My reason is that we obviously have to get co-ordination in this Bill, and I greatly deprecate the implication—which I think is somewhat contrary to what the noble Lord, Lord Pargiter, said earlier—that there will be a tremendous number of prosecutions. This is not the way the weights and measures authorities have worked so far. They go round to their advisers and to those to whom they are responsible in their area, and they bring prosecutions only against the real "shysters"—the people who really do something extremely negligent or who are obviously deceiving somebody.

The same will apply under this Bill. I do not say that the Board of Trade will be inundated with reports, but if they were they might need more than 28 days' notice. It seems to me that there must be some room for manœuvre, and 28 days seems to be a fair compromise. This will not just be a question of notification and receiving the certificate. The Board of Trade must look at this, if only to see whether there are other proposals to prosecute in the same case. It seems to me, with great respect, that the Board of Trade have given great thought to this. It was 14 days at the earlier stage and as a result of further thought they have come to the conclusion that administratively this would not work unless they had 28 days. If one accepts the principle of notification, I think that 28 days is needed.

BARONESS PHILLIPS

I think the noble Lord, Lord Drumalbyn, with his great skill and experience, as he has shown throughout the whole of this Bill, has rather effectively answered the noble Lord, Lord Pargiter, but as it falls to me to reply to this Amendment I will reinforce what he has said. I am sure the noble Lord, Lord Pargiter, will appreciate that if this subsection were omitted the authorities would not then be required to give notice, and it would not enable the Board of Trade to promote a uniform policy among enforcement authorities. This is a very important point. The establishment of a clearing house of this kind should go a long way towards preventing multiple prosecutions for identical offences in respect of widely distributed or advertised goods or services. The subsection would also enable the Board of Trade, in agreement with the local authorities, to take over the prosecution in cases of outstanding importance. This subsection would serve a very useful purpose, and I must ask your Lordships not to accept the Amendment.

With regard to the 14 days or 28 days, when the Protection of Consumers (Trade Descriptions) Bill was before the House in 1956 it was suggested it was advisable for the Board of Trade to have longer notice of intended prosecution than 14 days. It followed a similar provision in the Food and Drugs Act 1955. On consideration we came to the conclusion that a period of 14 days might prove too short, particularly for the purpose of ensuring that adequate guidance could be given to local authorities where numbers of them were pursuing identical offences. We have taken into account the very much wider field covered by this Bill as compared with the Food and Drugs Act, and the consequently greater number of cases which will arise, particularly in the case of a national advertising campaign or mass distribution of a manufactured product bearing a false trade description. I agree that it is important to avoid delay in bringing prosecutions, but on balance we feel that the advantage lies with having the longer period of 28 days' notice which this Bill now proposes. I must ask your Lordships to reject the Amendment.

LORD PARGITER

I am prepared to accept that in a national case something must be done to co-ordinate action, but there are a great many local cases where it is highly desirable to let the authority proceed. Could the Minister not look at the possibility of trying to frame the subsection so that matters of local interest—local barrow boys and stalls, and the like—can be dealt with expeditiously by the local authority, under its powers, without interfering with those matters which require co-ordination over a wider area?

BARONESS PHILLIPS

I cannot give that undertaking. The noble Lord seems to assume that the Board of Trade would of necessity work slowly. Surely, if it is a straightforward case there would be no need for any delay. I am afraid that to adopt this proposal would cut right across the whole subsection of the Bill.

LORD AIREDALE

I am bound to say that that reply did not seem to me satisfactorily to answer Lord Pargiter's point. I should have thought that the valid point the noble Lord was making could perhaps be dealt with by introducing wording to say that where the local authorities "have reasonable grounds to suppose that multiplicity of prosecutions might follow" (or something of that kind) they may themselves prosecute. That would avoid their bothering the Board of Trade on purely local matters in cases where they felt quite sure complications of that kind were not going to be involved.

I should like to say a word or two about my next Amendment in which I shall be moving to reduce the period horn 28 days to 14 days. I already have some support from noble Lords for this. To my mind, the paramount consideration is that the administration of criminal justice must be as swift as possible. In the case of animals it must be instant, otherwise it is of no use at all; and in the case of human beings it should be as quick as possible. I do not think that in all cases the Board of Trade need 28 days delay in which to consider the matter. In the first instance, I think some official in the Board of Trade can be primed to deal with these things with a 14-day programme. If the 14 days run out I do not think it will matter in these cases because all that the Board of Trade have to do is, towards the end of the fortnight, to write to the local authority saying "We have done our best, but we have not yet made all the inquiries that we wanted to make in this particular case, and we should be obliged if you would hold your hand a little longer and not proceed with this prosecution until we have made further inquiries. We shall be writing to you again as soon as possible".

I think that to take the general rule it would be quite sufficient to say that the Board of Trade should try to deal with their side of the matter within 14 days.

LORD ILFORD

If the purpose of this provision is to avoid a multiplicity of prosecutions, it is really not necessary. The local authorities are quite accustomed to dealing with nationally distributed pre-packed articles. They are doing it constantly. There is an effective cooperation between different local authorities. I think that the main purpose of this Amendment has really been met by what the noble Lord said earlier this afternoon, and what the noble Baroness has just repeated. In those circumstances, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

10.58 p.m.

LORD AIREDALE

I will not inflict another speech upon your Lordships, but I will formally move this Amendment just in case the Minister has anything further to say to the view I expressed just now about fourteen instead of twenty-eight days. I beg to move.

Amendment moved— Page 16, line 33, leave out ("twenty-eight") and insert ("fourteen").—(Lord Airedale.)

LORD BROWN

I would ask the Committee not to press us on this Amendment. Here, we are really between two fires of argument, one of them being that expounded by the noble Lord, Lord Drumalbyn. We want to prevent all sorts of sporadic prosecutions on the same issue all over the country. On the other hand, we have the perfectly reasonable argument that justice should be speedy and that a period of twenty-eight days is too long. This was deeply considered, and the 1966 Bill contained the fourteen-day provision. It was debated at great length by the experts inside the Board of Trade, and by others, who came to the conclusion that in the light of all the circumstances twenty-eight days would be necessary. So that this is in any case a compromise between the demands for something much longer and for something much shorter. Like all compromises, it satisfies nobody; but at least it does not leave anybody completely out in the cold. I beg the Committee not to press this Amendment on us now.

LORD AIREDALE

Very well. I beg leave to withdraw it.

Amendment, by leave, withdrawn.

LORD BROWN

In the light of the fact that it is quite clear that we shall not finish the Committee stage of the Bill tonight, I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

LORD BESWICK

My Lords, it may be for the convenience of the House if I say that it is the intention to resume consideration of the Committee stage of the Consumer Protection Bill to-morrow.

LORD DRUMALBYN

My Lords, may I ask the noble Lord at what hour we are likely to reach the Bill?

LORD BESWICK

I understand that it will be at an hour when noble Lords can return to the House; in other words, at about 6 o'clock.