§ Mr. Goodhart
I beg to move Amendment No. 12, in page 8, line 1, after 'nature', add 'or location'.
Clause 13, dealing with the provision of services and facilities, covers when, how, what and by whom services are to be provided, but there is no mention of where they will be provided, except, in subsection (1,v), in respect of accommodation. Location can also be important. For example, coloured television sets, which often go wrong, might be sold under the wholly inaccurate statement that service and repair were available in a certain place, when they were available only at some much less convenient place.
It could be argued that Clause 13 would already catch that, under subsection (1,ii) but a lawyer in my locality with considerable experience of prosecuting in similar cases has told me that the courts rightly take a very narrow interpretation of such words as "nature" in a criminal offence. The defence could argue that, if the time at which the service is provided and those providing it are specificially mentioned, the omission of reference to location must be deliberate and therefore that it was not intended that this sort of case should be caught.
I suggest that location is as important as time and that the Amendment could do no harm.
§ Mrs. Gwyneth Dunwoody
I have some sympathy with the hon. Gentleman, but Clause 13 already covers all the examples of false statements about the place where a service is to be performed which he has in mind. We cannot think of any which would not be covered without the Amendment. He argued that, 504 since paragraph (iii) of subsection (1) refers specifically to the time and manner of the service, it might be contended that the omission of location was deliberate. I cannot agree. Time and manner were expressly mentioned because there was a doubt whether all such statements would otherwise be covered. I am advised that there is no such doubt in respect of the place where a service is to be performed.
I know that the House will not want unnecessary words included in the Bill and I hope that the hon. Member will agree to withdraw his Amendment.
§ Mr. Michael Shaw
Do I understand that, if a visitor were attracted to a hotel in Scarborough by an advertisement that it was within two minutes of the sand when it was a quarter of an hour away, such representations would be caught?
§ Mrs. Gwyneth Dunwoody
The sort of statement described by the hon. Gentleman as to the nature of the services or facilities provided would be caught under the Bill as drafted.
§ Amendment negatived.
§ Mr. Kenneth Lewis
I beg to move Amendment No. 13, in page 8, line 26, at end insert'and fundamental to any contract that there may be'.The words of this Amendment might appear at first sight to apply to the Divorce Reform Bill, from the discussion of which I have just come. It deals, however, with a quite different form of contract. "False" is defined in the Clause as meaning…false to a material degree…That, I suppose, means false to a substantial degree. In other words, it is not a trivial matter.
I am advised that this may not be adequate for the foundation of a prosecution. Although I am not an expert in these matters, the legal advice I have received has led me to table the Amendment, since it seems desirable, in the circumstances of that advice, to discover what the Department considers to be the position. One could state all sorts of falsities which would be…false to a material degree…but which are not fundamental to a contract. This seems a relevant point and one must consider the side effects that might flow in respect of a contract.
505 I suggest, therefore, that the Amendment would strengthen the Clause and assist the courts in this respect.
§ Mrs. Gwyneth Dunwoody
I am grateful to the hon. Member for Rutland and Stamford (Mr. Kenneth Lewis) for his explanation of the Amendment. Clause 13(4) defines the word "false". The Amendment seeks to provide that one of the ingredients in the definition shall be…fundamental to any contract that there may be".This concept is meaningless in relation to a definition of the adjective "false", though it could have some meaning in relation to a false statement and, as I understand it, this is what the hon. Gentleman has in mind.
I am advised that the question of what is fundamental to a contract is not always easy to decide and, indeed, has on a number of occasions exercised the best legal brains in the country. It can only be determined by taking into account all the factors relevant to a particular contract. As the Clause stands, it creates the straightforward offence of knowingly or recklessly making a statement about the specified matters which is false to a material degree. The courts are perfectly well able to determine what degree of falsity is material in a particular case. I am sure that nothing but disadvantages would result from complicating the interpretation of the provisions by importing difficult concepts from the law of contract.
I am also advised that the Amendment would narrow the scope of the Clause severely. Not every statement made prior to the formation of a contract becomes a term of the contract, however much it may influence one of the parties to enter into it; and not every term of a contract is fundamental in the legal sense, even though it may be very important to one of the parties. I can see no justification for limiting the Clause to those statements which would be fundamental to any contract that might exist for the performance of the service in question.
As it is, we have restricted the Clause to cases where a person makes a false statement knowingly or recklessly, and it is hard to see why the commission of an offence by such a person should de- 506 pend upon the legal analysis of the terms of any contract that he may have with persons whom he has deceived.
There are other anomalous aspects to the Amendment. The possibility of a rogue drafting his contract so as to narrow the scope of the fundamental terms to the smallest possible area is one example. We are familiar with the ingenuity which is shown in the framing of exemption Clauses, and the Amendment would give rise to further efforts in this field. Another effect might be that a false statement would be an offence only if the person who made the statement knowing it to be false also knew that it would be a fundamental term of any contract that resulted.
All the arguments seem to be against making the Amendment, and I must ask the House to reject it.
§ Amendment, by leave, withdrawn.