§ 3.53 p.m.
§ House again in Committee.
THE LORD CHANCELLORMay I add one word? I think that the matter has been fully explored but the noble Lord, Lord Lucas, did make a special plea for favourable treatment to be meted out to trade protection associations, which undoubtedly perform a useful work. With great respect to the noble Lord, this is not a proper Amendment to give them that sort of relief. We are dealing with a penalty section which provides that:
Every person guilty of an offence against this Act shall be liable (1) on conviction on indictment, to imprisonment with or without hard labour, or to a fine…or to both imprisonment and fine; (2) on summary conviction, to imprisonment…and so on. The noble Lord proposes to add to that something in the nature of 857 a penalty which is yet not a penalty: namely, that there shall be something in the nature of damages—compensation awarded to the person who has presumably been deceived.I take it that it is intended to be a condition of that relief that the person so deceived should have successfully prosecuted. If that is so, surely there is no difference between a protection association, a trader who is a member of that association and any member of the public who has been deceived. If you are to award compensation to one, so you must to all; but it is unnecessary for all alike, for this reason: that they have their civil remedy. If they have been deceived, they can claim, under Section 17 of the principal Act, in the simplest possible way in a county court or, if the sum is sufficiently large, in the High Court, for damages for breach of warranty. I respectfully submit to your Lordships that it is quite a wrong principle to mix up the two things in a Bill of this kind—the civil remedy to the man who has been deceived and the criminal penalty for breach of a Statute which lays down what is an offence and what shall be the penalty for it. Therefore I could not advise your Lordships to accept an Amendment of this kind which would, in fact, be a grave departure from precedent.
§ LORD CHORLEYI may be mistaken, but did I hear the noble and learned Lord say that it lays down the punishment of "hard labour"?
§ LORD CHORLEYBecause I understood that "hard labour" had been removed.
§ LORD CHORLEYI thought I caught the words "hard labour."
THE LORD CHANCELLOREither my voice is flabby or the noble Lord begins to suffer from what so many of us suffer from.
§ LORD CHORLEYI am glad to have the noble and learned Lord's assurance that "hard labour" is no longer a possible penalty to be administered under the Act.
§ LORD LUCAS OF CHILWORTHI am grateful to the noble and learned Lord for making the statement he has, which I think will be most helpful.
THE LORD CHANCELLORI hope your Lordships will forgive me. There is no doubt that the noble Lord's hearing is perfect and that I fell into error. I apologise to the noble Lord. I should have said "with or without a fine," but I said "with or without hard labour."
§ LORD CHORLEYI am consoled.
§ LORD LLEWELLINI must say, if I may perhaps come in aid, that I think the noble and learned Lord, the Lord Chancellor, was reading the terms of the Statute of 1887 which, of course, still has the words "with or without hard labour" in it. Although since then "hard labour" has been done away with, that fact does not appear in the Act of 1887. I think that is how this slight error in wording arose in this instance.
§ LORD CHORLEYThe noble Lord is undoubtedly right. I am sorry to have taken up your Lordships' time.
§ LORD LUCAS OF CHILWORTHI am grateful to the noble and learned Lord. What he has said will be very helpful to everybody concerned, and in view of his remarks I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 1:
§ Extension of definitions of "trade description" and "false trade description"
§
1.—(1) In section three of the Merchandise Marks Act, 1887 (which, among other things, defines "trade description" as any description, statement, or other indication, direct or indirect, as to any of the matters mentioned in paragraphs (a) to (e) of the definition), that definition shall be amended by inserting after paragraph (a)—
(aa) as to the quality, fitness for purpose, strength, accuracy, performance or behaviour of any goods, or".
§ 3.58 p.m.
§
LORD LUCAS OF CHILWORTH moved, in subsection (1) to omit the proposed new paragraph (aa) and insert:
as to the strength, accuracy, fitness for purpose, performance or behaviour or other physically ascertainable and definable characteristic of any goods,".
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The noble Lord said: On this Amendment I feel on very safe ground because, in short, what this Amendment seeks to do is to remove from the new definition the word "quality." By the Bill it is proposed to insert in the Act of 1887 this paragraph (aa), containing the words:
as to the quality, fitness for purpose, strength, accuracy, performance or behaviour of any goods, or".
Eminent lawyers (I cannot mention their names, for then I should be guilty of giving them an advertisement, and, if I did, that might come under the heading of a misleading description) who advise such bodies as the Trade Marks, Patents and Designs Federation, and those who advise that very eminent body, the British Standards Institution, inform me that they think it highly undesirable to have in a Statute the word "quality." The word is highly subjective and it is absolutely impossible to define it adequately in a court of law for the purpose for which it is here.
§
What is "quality"? As I say, it is a subjective term. A person advertises something of first-grade quality. What is it? Where is the comparison? "High quality," "best quality"—what is it? The thought that comes into my head is "jam." What is high-quality jam? I do not know. So it is suggested by these legal advisers that, if you are going to cover "quality," it must be in precise terms; and the precise terms are laid down in this Amendment, for which I take no credit whatever. It is far beyond my powers to have devised this Amendment. In fact, it is devised by eminent lawyers practising at the Bar in these particular subjects. Instead of the word "quality," these words appear in the Amendment:
or other physically ascertainable and definable characteristic.…
Reverting to the question of jam, if it were described as "full fruit standard" of quality that would be different. If you can detect one whole strawberry in the jam of to-day, that is a "physically ascertainable characteristic." I am notgoing to say anything more on this Amendment. It is something that these people have devised, and if the noble Lord has a good answer to it perhaps he will be good enough to give it. If he cannot accept this Amendment (I have no
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great hope of his doing so, because I do not suppose he will agree with the eminent lawyers), at least it will give those lawyers the reasons why the Government want to adhere to the word "quality," which they say it will be practically impossible to determine and interpret in the courts of summary jurisdiction. I beg to move.
§ Amendment moved—
§ Page 1, line 11 leave out from ("(aa)") to the second ("or") in line 12 and insert the said new words.—(Lord Lucas of Chilworth.)
§ 4.3 pm.
§ LORD MANCROFTQuite frankly, this is a difficult matter. The noble Lord started by criticising the word "quality"—and I think he is fully entitled to do so. Nobody would pretend that the word is perfect for the purposes of this Bill. One hears of such phrases as "Quality Street" and "a man of quality." Admittedly, this is a word which is open to a wide interpretation. The noble Lord asked me how I would define the quality of jam. Before he actually launched on his definition I assumed that he would describe it to us as "the jam we get to-morrow, but never to-day," but he has attempted a more accurate description. I can tell him that I spent a considerable time this morning trying to make up my mind whether the description "new laid eggs" would come within the Bill as it stands at the moment.
I am going to ask the Committee to accept the word "quality" and to reject the noble Lord's very carefully and skilfully drafted wording—for two reasons. The first, quite frankly, is that in the opinion of Her Majesty's Government, "quality" sets the whole tone for this Bill. That is one of the reasons why Her Majesty's Government are affectionately disposed towards the word, without stating categorically that it is perfect in any way, or, again, without stating categorically that they will not look at any other better wording that can possibly be produced. But for the reasons which I will now try to explain to the Committee, we do not think that the actual words, skilful though they are, which the noble Lord and his undoubtedly skilful advisers have put before the Committee in this Amendment, will be of much assistance.
The trouble lies in the definition of the noble Lord's words. "Quality" is admittedly a vague term; in any event, few 861 trade descriptions relate solely to it: most of them fall more appropriately, I think, under one of the other headings in Clause 1 of the Bill as it now stands. The noble Lord's wording is this:
or other physically ascertainable and definable characteristic of any goods.Despite its superficial precision (if I may so describe it) this description is undesirable in itself and is not a good substitute for "quality." In any prosecution relating to false trade description, whether in respect of quality or any other characteristics which are described in the Act, it is necessary to prove what characteristic it is which is described. If it is quality, the evidence must be there to enable the prosecution to show what "quality" is in the particular case. Unless the facts are there to enable the prosecution to do this, not only can no conviction result but probably no prosecution could begin. For this reason, therefore, the vagueness of the word "quality" which the noble Lord has quite fairly referred to, is more apparent than real, in the sense that "physically ascertainable and definable" represents no more than a statement of what the prosecution has to do in any event to prove "quality."Now let me, if I can, try to point out what I think is the inherent difficulty of the noble Lord's wording. His Amendment widens the range of characteristics in that what I might call the residuary characteristics are not described. If I have understood his argument aright, they can be any characteristics, provided they are ascertainable and definable That is going to bring within the ambit of the Act an entirely new range of goods. It it going to bring in colour, taste, smell, temperature and other things. Let me ask the noble Lord this question—I do so with a certain amount of anxiety, because I remember that once before I threw out a challenge to him in the matter of refreshment and we were both in serious trouble about it. Suppose that he goes to a coffee stall and asks for a "hot dog," and it is cold. Under his Amendment that would be a criminal offence. We are going to get into tremendous trouble over the question of colour—with paint and with ladies' clothes. He knows, probably, as well as I do the enormous range of colour that can be applied to materials for 862 ladies' clothing. I am advised by this individual industry that adoption of this Amendment would lead to immense difficulties and confusion. We should also get into very great trouble in regard to the question of cosmetics. I remember this being mentioned in the course of the Second Reading. This Amendment would lead to enormous confusion, because the colour and smell of cosmetics is an "ascertainable characteristic within the meaning of his wording. The noble Lord, Lord Balfour of Inchrye, is not in his place. It was he who raised the question of antiques. They also would come within the scope of the noble Lord's Amendment.
I presume that the underlying purpose of the Amendment is to ensure that goods falsely described as complying with a British standard, but not bearing the Institution's certification mark, are caught; but I should have thought that this was not a good means of achieving that object. I believe that the object is probably better achieved by the clause as it stands. British standards usually relate to characteristics already within the definition of trade description in the Act of 1887 or being brought within that definition by Clause 1 of this Bill. The extension by Clause 1 of the range of characteristics which can be the subject of "trade descriptions" for the purpose of the principal Act will tend to bring within the scope of the Merchandise Marks Acts most of the characteristics described in British Standards. This is a complicated matter. It is not a definitive matter, and I suppose there can be no final word on it other than that given by the courts—and of course that is not what this Bill sets out to encourage. I do not hold out "quality" as being the final and perfect word. I have given, to the best of my ability, the reasons why I think it is better than the ingenious wording which the noble Lord has laid before us this afternoon, and, therefore, unless I can hear put before me something which is better than the noble Lord's wording, I prefer the word "quality." I feel that it sets the whole tone of this Bill. It achieves what it sets out to achieve. It does not give rise to a vague number of possible offences such as, I suspect, the noble Lord's Amendment would do. On the whole, with confidence, I ask the Committee to prefer the word "quality" to the wording which 863 the noble Lord has so persuasively put before us.
§ LORD OGMOREI have listened with interest to the argument on this particular Amendment which has taken place between the two noble Lords on the Front Benches. Sitting here, it seems to me that one of the main bones of contention is as to whether the word "quality" is a proper word to have in a Bill of this kind. The Minister's argument seems to be that, although the word "quality" is a vague and not very desirable term in such a Bill, it should go in because it might refer to some particular class of goods which he wants to bring within the scope of the clause. Like many of your Lordships, I am both a legislator and a practitioner. At the moment, I am a legislator, wondering what I, as a practitioner, will have to do about this particular word. I am sure that the noble Lord, Lord Mancroft, who has considerable experience of these matters, will appreciate that the Bill will have to be considered, immediately it is passed, by merchants, and by their legal advisers if necessary. I think that unless this word is defined in some way—I understand from my noble friend Lord Lucas that it is not defined—its insertion will mean that a heavy burden will be thrown on merchants and their legal advisers who may have to ascertain exactly what the word "quality" means. I would ask the noble Lord, if possible, if the word has not been defined, to have a definition clause inserted which will clear up this doubt to which the noble Lord has referred. Shakespeare, we know, has written about "the quality of mercy." Obviously, "mercy" is not within this Bill, but "quality" is. Could the noble Lord give us any help in the matter in order to relieve our anxieties?
§ LORD LLEWELLINI am not sure that I like the last two phrases of Lord Lucas's Amendment. I think that they would bring in more difficulties than would arise from leaving in the word "quality." I should like to ask the Minister this. A large number of highly respectable shops up and down the country are now advertising that they sell "best quality goods." I personally see nothing very offensive in that. But if by any chance, although they are very high-class goods indeed, it should be 864 found that in some other shops still better goods are on sale, would that mean that the people running the shop which has advertised "Best quality goods" would have been guilty of a false description? They might have done it quite honestly not knowing that there were better goods somewhere else. It would seem that it is going to be very risky, if this word is left in, to say anything like that about the quality of any goods which are being sold.
LORD SALTOUNI do not wish to take up much time in what to me is a perfectly delightful and most interesting discussion, but I should like to tell Lord Lucas that while "strawberry" may be a perfectly accurate and definable quality, to my knowledge "raspberry" may not; and it may not even be physically ascertainable. All that may be known about it is that it has no quality.
§ LORD LUCAS OF CHILWORTHPerhaps it may save time if I say that I think both Lord Llewellin and Lord Ogmore are quite right. I am not wedded to these words, as the noble Lord, Lord Mancroft, knows. Would he agree to accept this Amendment, and then to amend it as he thinks it should be amended? Or, alternatively, will he accept the suggestion of Lord Ogmore and define "quality"?—because the noble Lord's point was precisely the argument which all the legal advisers who have advised me in this matter raised. They have said that it will lead to endless trouble if there is left in this Bill something which makes a trader guilty of using a false or misleading description if he does what Lord Llewellin has described. After all, lay benches of magistrates will have to adjudicate on these matters. If the noble and learned Lord who sits on the Woolsack disagrees with all the other arguments which I have used, I am sure he will at least agree with this: that an Act of Parliament should at least be intelligible. This Bill is not intelligible at the present time. It may bring untold income to barristers and solicitors, but that is not our purpose. I can imagine lawyers arguing over this matter for quite a long time. Will the noble Lord, therefore, accept this Amendment and alter it—even if he wishes to leave out altogether the word "quality"? I see no reason why the word "quality" should be left in, if it 865 is going to cause all this trouble. Or will he, at the next stage of the Bill, insert a definition clause to define "quality," in order to help those who, as my noble friend Lord Ogmore said, will have to adjudicate on matters that will come before them arising out of the operation of this measure. When the noble Lord tempts me into other spheres, and asks me the question: Do I think that a man who serves me with a cold "hot dog," when he says that it is a hot "hot dog," should be liable to criminal proceedings?, I say that anyone who purports to sell me a hot meal and delivers to me a cold meal should be put in prison forthwith.
§ LORD MANCROFTThis has been a very interesting discussion. I think it is clear that there is no hard and fast rule or doctrine on either side. There are shades of opinion, and it is clear that there must obviously be give and take when subjects like this are discussed. If I may, I will at once answer the question which was raised by the noble Lord, Lord Llewellin, as to a shop selling goods which were described as of "best quality." That, I think, clearly comes into the category of a legitimate trade "puff," and should not render the shopkeeper liable to be penalised under the Bill when it becomes law. It is a matter which comes into the same category as the "Beer is Best" type of advertisements. If you should actually find something which is better than beer you would not be able to bring an action against the brewers. As regards the last request of the noble Lord, Lord Lucas, I am afraid that I cannot accept the Amendment as it stands. But I will do this. Since he has put forward reasoned and reasonable arguments, I promise him that they shall be most carefully considered. His criticism of the word "quality" shall be most carefully looked at. If I can possibly do anything at a future stage of the Bill to assist the noble Lord, I will. The noble Lord will understand that in saying this I am not holding out any promise, because, as he realises, I am not entirely my own master in this matter, and I know that my right honourable friend the President of the Board of Trade attaches much importance to the actual word "quality," for it is the keynote of the whole Bill. As I have said, I will do my best to reconsider this matter; and, while I do not 866 hold out any promise, I will see that the noble Lord's views are fully represented in the appropriate quarter. Having said that, I must add that I am afraid that I cannot accept the Amendment.
§ LORD LUCAS OF CHILWORTHOn that assurance, for which I am very grateful, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 4.18 p.m.
§
LORD LUCAS OF CHILWORTH moved, to add to subsection (1):
and by inserting after the word 'copyright' in paragraph (e) the words 'or being of a standard defined in a British standard'.
§ The noble Lord said: This Amendment is really put down with a view to getting an assurance such as the noble Lord, Lord Mancroft, gave me when he was replying to my last Amendment. What we are trying to do in this country to-day—and I take it for granted that I shall have the agreement of the noble Lord in this—is to lift the standards of our manufactures. The British Standards Institution is doing great work in this connection. As I say, I put this Amendment down really to get from the noble Lord an assurance such as he has already given me, and if he will repeat it I shall be reasonably happy. I must apologise for a printer's error which has crept into the Amendment as it is printed; the small "s" should be a capital "S."
§
If the noble Lord will look at the 1887 Act, he will see that I am seeking to add the words in this Amendment to Section 3 (1) (e), which reads:
as to any goods being the subject of an existing patent, privilege or copyright"—
and then follow the words in my Amendment. My contention is that a standard promulgated by a private body like the British Standards Institution should have the same protection as goods which are the subject of a patent, privilege or copyright. I do not think that is to ask for too much. The section as it stands protects an existing patent and privilege. We know of the acceptable and honoured privilege of a trader being able to say "Purveyor to Her Majesty"—a very old custom held in high esteem by all traders. A provision for the protection of standards laid down by a recognised standards institute in this country would adorn the noble Lord's Bill and not
867
detract from it. Surely he can accept this Amendment. I beg to move.
§ Amendment moved—
§ Page 1, line 12, at end insert ("and by inserting after the word 'copyright' in paragraph (e) the words or being of a standard defined in a British standard'.")—(Lord Lucas of Chilworth.)
LORD GIFFORDI should like to raise one point which I have mentioned to my noble friend Lord Mancroft. It is the question of whether this Bill will give greater protection against infringements of the Royal Warrant. I am a member of the Royal Warrant Holders Association and we are sometimes troubled by advertisements being published with colourful imitations of the Royal Arms. If the Royal Arms themselves are used in an unauthorised manner, that is easily dealt with; but we may have something like the Royal Arms with two unicorns being used and we find it difficult to deal with that. When remonstrated with, the advertiser will say, "These are not the Royal Arms. It is just a little crest that we thought looked pretty on our advertisements." It seems to me that this Bill may help us in some way, and I should be glad to have the noble Lord's opinion about it.
§ LORD MANCROFTIf I may, I will address myself first to my noble friend, Lord Gifford, who has raised the important question about the unauthorised use of the Royal Arms and its embarrassment to Royal Warrant holders. I have looked into this matter carefully and in my opinion his fears will be completely met by the combination of this Bill, the principal Act, which it seeks to amend, and section 61 of the Trade Marks Act, 1938. I think that ought to cover all the cases he has mentioned. May I now address myself to Lord Lucas's Amendment, the purpose of which, if I understand his argument correctly, is to ensure that goods falsely described as complying with the British standard, but not necessarily bearing the Institution's certification mark, are caught. I do not think his Amendment is a good way of achieving that object, which I believe is already achieved by the clause as it stands. British standards usually relate to characteristics within the definition of "trade description" in the Act of 1887, or which are being brought within that definition 868 by Clause 1 of the Bill. The extension by Clause 1 of the range of characteristics which can be the subject of trade description for the purpose of the principal Act will tend to bring within the scope of the Acts, I imagine, most of the kinds of descriptions which relate to British standards. As the noble Lord hinted, this Amendment reinforces his previous Amendment attempting to delete the word "quality" from Clause 1 (1), because, if the word "quality" is retained, there is less strength in this Amendment.
There is one other matter which rather troubles me about this Amendment. The wording the noble Lord proposes is not quite suitable. Any standard produced in this country by anybody can be described as British. As the noble Lord knows quite well, a large number of firms, particularly the larger ones of high repute, produce standards of their own—and very high they are. Anybody who cared to publish a standard could claim the protection of this Amendment if the standard were used to describe goods. Apart from this point, "British standard" would require definition, either by specific mention of the British Standards Institution or by a form of words which pointed to them and to no other body. The Institution, of high repute though it is, is not an official body, and I am not sure that it is really desirable that they should receive recognition, either expressed or implied, in this way. I doubt whether this Amendment would redound to the ultimate benefit of the Institution—it might conceivably discourage the honest use of British standards. But that is a matter of opinion. I am grateful to the noble Lord for raising this important and interesting matter, but I can assure your Lordships that the danger he sees and the good he seeks to promote are already covered by and provided for in this Bill
§ On Question, Amendment negatived
§ Clause 1 agreed to.
§ Clause 2 agreed to.
§ LORD LUCAS OF CHILWORTH moved, after Clause 2, to insert the following new clause:
§ Amendment of section ten of 16 & 17 Geo. 5. c. 53
§ ".In paragraph (a) of the definition of 'Indication of origin' in subsection (1) of section ten of the Merchandise Marks Act, 1926, the word 'Commonwealth' shall be substituted for the word 'Empire.' "
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§
The noble Lord said: This Amendment raises a technical point. In Section 10 of the Merchandise Marks Act of 1926 there is an obligation upon traders to indicate the place of origin of goods. Subsection (1) (a) says:
In the case of goods manufactured or produced in any foreign country the word 'Foreign' and in the case of goods manufactured or produced in part of His Majesty's Dominions outside the United Kingdom the word 'Empire';
The question has been raised whether in the circumstances of to-day that is a correct description. There have been cases of traders putting "British Empire" as a mark of origin on imported goods and they have been advised that they can put only the word "Empire." Then there is the question of whether, for instance, Australia as a country of origin is technically within the Empire. Should not the word "Empire" be removed and the word "Commonwealth" put in? This is a constitutional point upon which I am not going to express any opinion whatsoever. The point is raised as one of accuracy of definition and I will leave the matter to the noble Lord and the noble and learned Lord the Lord Chancellor. I beg to move.
§ Amendment moved—
§ After Clause 2, insert the following new clause—
§ Amendment of section ten of 16&17 Geo. 5. c. 53
§ (".In paragraph (a) of the definition of 'Indication of origin' in subsection (1) of section ten of the Merchandise Marks Act, 1926, the word 'Commonwealth' shall be substituted for the word 'Empire.'")—(Lord Lucas of Chilworth.)
§ LORD MANCROFTOne day this matter will have to be cleared up—the noble Lord, Lord Lucas, is perfectly right—but I most sincerely and devoutly trust, not to-day. This is a far-sweeping constitutional matter which, I imagine, in a fuller House would have kept the constitutional experts at work for many hours, and a change of this importance really must not be founded upon some obscure section in the Merchandise Marks Act, 1926, which is not even the principal Act we are seeking to amend. I admit the force of the noble Lord's argument that we shall have to consider it, but, before we do so, an enormous amount of preparation will be required. Consultations far and wide will be necessary. The whole of the stamping, 870 packing, merchandising and manufacturing of our opposite numbers overseas will have to be taken into consideration. We shall have to consult far and wide. Without in any way commenting on the use of the two words, "Commonwealth" and "Empire," save to say that the word "Empire" still appears in many respectable Acts of Parliament, and without prejudicing the noble Lord's right to raise the matter on an appropriate occasion, I should like to say, with great respect, that I do not think this is such an occasion.
§ LORD OGMOREAfter listening to the noble Lord, Lord Mancroft, I am not at all sure that his reply is quite satisfactory. After all, I should have thought that in a Bill dealing with merchandise marks an Amendment to a previous Merchandise Marks Act was appropriate. It may not have been the Act mainly concerned, but still it is a Merchandise Marks Act. The point of my noble friend's Amendment is this. Every day goods are coming in, manufactured in a part of Her Majesty's Dominions outside the United Kingdom. Those goods have to be stamped with this word "Empire." It is a purely factual matter: is that a correct description, or not? We have heard descriptions of Her Majesty's Dominions in recent years, in recent months and in recent weeks. In every one of those descriptions, whether by Her Majesty's Government or otherwise, the word "Commonwealth," and sometimes the words "Commonwealth and Empire", have been used. As I understand it, the practice in recent years in this country has been this. The word "Commonwealth" is used to denote the larger membership of the Commonwealth as a whole—the great Dominions, ourselves, and so on—and the word "Empire" has tended, in practice, I admit, and not by law, to be confined largely to the Colonial Empire, and does not, in practice, at all events, now apply to what used to be called the Great Dominions. We have, in fact, changed the title of the Empire Parliamentary Association to the Commonwealth Parliamentary Association.
It would be interesting to know what, say, Mr. Nehru, or the Premier of Pakistan, would think of this point: whether they would consider it correct that the word "Empire" should from day to day still be marked on goods 871 coming from their countries. I suggest that it does not matter What we think about it, whether we have any sentimental attraction to the word "Empire," or not, the point is, is it still an accurate description? If it is not an accurate description, in fact and in law, then I suggest that this is an appropriate occasion, while the Bill is going through its legislative process, for the Government to make this quite simple amendment—an amendment of one word in the subsection and one word in the proviso of Section 10 of the Merchandise Marks Act, 1926.
§ LORD LLEWELLINIt seems to me that although it may mean just the amendment of one word, it would mean also the alteration of a great number of stampings, dies, and things of that sort throughout the Commonwealth and Empire. The die used for marking these goods now bears the short, simple word "Empire." Whether that is completely accurate or not I do not know, but it has the advantage of being a shorter word than "Commonwealth." Surely this change could not be made on the spur of the moment, without giving traders and others overseas an opportunity of saying what complications it might involve for them in the way of changing all their methods of marking and stamping their goods. I believe the correct description now is "Commonwealth and Empire"; and eventually, if we have to do something about it—and it is only so that everybody may know what is the place of origin—it might be more appropriate to put "C. and E." on the goods, indicating that they come from the British Commonwealth and Empire. It would, after all, follow the line so often taken by the sergeant-major in the case of a new recruit. He asks: "What is your religion?" and if the recruit has not any particular religion "C. of E." is at once put down. I certainly do not think this is an Amendment that we should make, because by doing so we should cause everybody dealing in these goods to alter their dies, and other things, at very short notice.
§ LORD MATHERSIs not the matter that should concern us the question of accuracy? What is the accurate description? I quite agree that to take a chance 872 in a small Bill of this kind and make what is a considerable alteration is perhaps to go too far. Yet I feel we should have an assurance from the Government that this matter will be considered, and that an accurate description will be applied at the earliest possible moment.
THE LORD CHANCELLORI am always glad when the noble Lord, Lord Llewellin, gets up, because I expect him to say, in better words than mine, just what I wish to say, and he always does. I hope that the noble Lord, Lord Lucas, will not press this Amendment. It is, in fact, a practical matter. I do not think we could attend to this change in our law until after consultation with the Commonwealth Governments, who are obviously vitally concerned. I can assure the noble Lord, Lord Mathers, that the matter will have our consideration—in fact, I believe an inquiry has just begun in regard to certain matters arising between the Board of Trade and the Ministry of Agriculture and Fisheries upon representations from other quarters. If I may say so, I entirely concur with what fell from the noble Lord, Lord Mathers, that it would not be appropriate to make an alteration as far reaching as this one in this Bill. I would ask the noble Lord not to press the Amendment.
§ LORD LUCAS OF CHILWORTHI can assure the noble and learned Lord, the Lord Chancellor, that I have not the slightest intention of pressing this Amendment, but I thought it would do no harm to bring the matter up, because this description will have to be altered at some time. I accept fully what the noble and learned Lord has said. Obviously a change like this cannot be brought in on a side wind it will have to be done after proper consultation with members of the Commonwealth. I think the noble Lord, Lord Llewellin, has put forward the worst of all reasons in saying that we cannot make the alteration because somebody would have to alter a die. Why do we ever amend a Bill, when we know that we must get another one printed? I have never heard such a ridiculous suggestion, and that coming from a lawyer who, I suppose, has one eye on alterations in the law and new Acts being printed every day. I am grateful to the Lord Chancellor, but I wonder whether he would venture to be a little more helpful on this line. Suppose goods were marked 873 "Commonwealth and Empire": does he consider that that would be a breach of the Act? Does he think that that would be acceptable? Or have all the members of the Commonwealth, whether they like it or not, got to mark their goods with the word "Empire" until we have been able, after consultation, to make an alteration? If that is so, I think the consultations had better start as early as may be.
§ LORD LLEWELLINBefore we leave this Amendment, I should like to inform the noble Lord, Lord Lucas, that I have not practised in the law for twenty years, or something like that time, and I am certainly not looking at these matters from any personal point of view. The only way in which I ever come into the law nowadays is when, from time to time, I sit on the Bench and wonder how one is to administer Acts of Parliament, especially those that have been altered by snap Amendments in either House of Parliament.
§ LORD LUCAS OF CHILWORTHOf course, I knew that. If the noble Lord had been in practice I should not have made the comment. I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ 4.41 p.m.
§ LORD LUCAS OF CHILWORTH moved, after Clause 2, to insert the following new clause:
§ Makers' names to be marked on certain classes of goods
§ ".Where the President of the Board of Trade is satisfied that it is in the public interest that the names of the makers shall be marked on certain goods, he shall make an order specifying the classes of goods to be marked in such manner; and it shall be an offence for any of the goods specified in such order to be sold or held for sale or for any purpose of trade or manufacture unless they bear the names of the makers."
§ The noble Lord said: This Amendment is again put down with the object of eliciting an expression of view from the noble Lord opposite, because I realise the many difficulties in this. But, as I said on moving one of the previous Amendments, something has to be done to bring before the notice of the buying public the need to beware of unbranded or unmarked articles. I think the noble Lord will agree with me that that is what we are trying to overcome. False 874 description, misleading description, and all those evils which this Bill is seeking to amend, come from the unmarked or unbranded article, and from the sellers of the article on which the manufacturer or the seller has not the courage to put his name. A thing without a name is always sold as being "just as good." I am seeking only to make it permissive for the President of the Board of Trade, on a limited range of goods, to say, after consultation, that they must be marked.
§ There is considerable difficulty in this matter because of the multiplicity of manufacturers. The case I can give immediately is one with which I have had a great deal of experience, and that is the motor car. Anybody who thinks that a Morris motor car is made by Morris, or that an Austin motor car is made by Austin, is, of course, entirely wrong, because it is made by fifty, sixty, or seventy manufacturers. I suppose that in any mass-produced car to-day about 60 or 70 per cent. of the components are manufactured outside the factory of the maker whose name is on the motor car. Therefore, so long as there is a name on an article—whether it is a brand name, or whether it is a manufacturer's name—it is some guarantee of quality. It may not be a very good guarantee, but at least it prevents the buyer from being, if I may use the expression, "had" twice. He may be 'had" the first time, but if he is ever "had" by buying the same goods with the same name a second time, with it is his own fault. I would warn the public, especially to-day, to confine their buying to goods that have a branded name on them. They will at least get some guarantee of quality, and if there is anything wrong with those goods the man who puts his name upon them is generally jealous of his reputation and will make some redress if anything goes wrong. Let us bear this in mind. In the world of commerce to-day there are far more honest men than dishonest men engaged in trade, and my reason for putting down this Amendment is to uphold the reputation of the honest trader, who will put his name on what he wants to sell. I know that the noble Lord is not going to accept this Amendment. It is far too progressive for the present Government to accept. They would rather go along on the present lines of conservatism with a small "c." But I have ventilated the matter. I know that the noble Lord agrees 875 with me; I think we all agree. But, of course, it is a difficult task, and Governments do not like difficult tasks. Perhaps one day we shall have a Government who will really go out and protect the British public—but that again, like the one raised on the last Amendment, is a very big issue, and one which cannot be brought in on a side wind upon an Amendment like this. I beg to move.
§ Amedment moved—
§ After Clause 2 insert the said new clause.—(Lord Lucas of Chilworth.)
§ LORD MANCROFTThe noble Lord made quite an attractive argument until he got to his peroration. He then produced several excellent reasons for rejecting this Amendment which I had intended to relegate to only a minor position. He says that this Tory Government is not progressive enough to accept this Amendment. Just consider what this Amendment does. It is superficially attractive that the President of the Board of Trade should nominate those who must place their name, mark or brand on their product. How can an honest manufacturer be ashamed of putting his name upon his products? Only a rogue or a vagabond is reluctant to put his name upon his products. We are not a sufficiently progressive Government to accept this Amendment! What I would say is that we on this side of the House do not believe in regimentation, and this, if ever I saw one, is a superb example of Socialist regimentation. The Government are asked to give the President of the Board of Trade powers in certain cases which he may never wish to exercise. That is not progress, as a Conservative Government sees it, if the noble Lord will forgive my saying so. How are we to enforce this?—an enormous number of enforcement officers; more and more rules and regulations, to see who has infringed the Act which the noble Lord, Lord Lucas supports; to see how it was being infringed; and where and why. That is not progress, as we on this side of the House understand it.
I was not going to reject the Amendment solely on those two grounds of regimentation and the difficulty of enforcement, but reject it I am afraid I am going to ask the House to do. Before I do so, may I apologise to the noble Lord, Lord Lucas, for the fact that we have not so far seen fit or been able to 876 accept any of his Amendments? When I addressed your Lordships on Second Reading I asked that there should be put before the House any improvements that any noble Lord could think of. The noble Lord, Lord Lucas, has genuinely sought to improve the Bill, and I should have liked to accept anything which I thought would improve the Bill. I ask him sincerely to believe that it is in no sense the division between us which has caused us to be so unfavourably disposed towards all his attempts to improve the Bill, but his failure to convince us that they were improvements.
Surely, this is the trouble. If you compulsorily force manufacturers to mark everything, there will be no distinction in the housewife's mind—the housewife to whom the noble Lord, Lord Lucas, has so sympathetically referred this afternoon—as to what is good and what is not. Everything will be branded. It will mean reducing the retailer to a purely automatic status. He is merely the man who handles 100 percent. branded goods. His reputation, his professional integrity, his knowledge and skill will be entirely wasted. He is merely purveying branded goods. Surely the noble Lord practically answered his own argument when he referred to his Austin and his Morris car. Whose name do you put on these goods—the manufacturers? Take a piece of material or cloth or a shirt. You have the buyers, the weavers, the processors, the finishers, the maker-up, the retailer—there are plenty of fields from which to choose. I think it is well to bear this in mind. Merely because a man does not mark his goods does not mean that they are shoddy. Some of the finest and most luxurious types of goods are unmarked. I am told that very high class ladies' clothes do not bear any mark. Equally, the fact that a brand of goods is marked does not necessarily mean that the goods are not shoddy. There have been cases where manufacturers of shoddy goods have changed their name, or the name of the firm or the trade mark, half a dozen times in a year, and have gone on deceiving the public with the same rubbish. Of course, it is desirable to catch such men if we can, but I am afraid that the old rule of caveat emptor must occasionally raise it head. We cannot always go on preserving fools against their folly. All we can do is to preserve them against something which they could 877 not reasonably have found out for themselves.
I do not think that the clause which the noble Lord seeks to have included in the Bill would achieve that. I think it would place great hardship on good and decent manufacturers. It would raise considerable difficulty in the matter of imported goods. It would be no use marking them, even if it were possible so to do, or there would be invidious comparisons between home-produced articles and imported goods; and it would do nothing, so far as I can see, to achieve the noble Lord's perfectly laudable object, of protecting the consumer and enhancing the reputation of the genuine and bona fide manufacturers. On the face of it, it looks an attractive argument, but I think that, if your Lordships look at it carefully, you will see that the provision suggested is one that is not possible of enforcement without an immense amount of trouble. It savours a little too much of regimentation, for my liking, at least, and it is one which I think (and this is the most powerful argument of the three which I wish to adduce) is practicably not workable. I hope that the noble Lord will not press his argument.
LORD SALTOUNMy Lords, before the noble Lord Lord Lucas, rises to reply, I should like to ask him whether he has not seen that those general stores which provide the widest range of unbranded goods are invariably the most crowded at all hours of the day.
§ LORD LUCAS OF CHILWORTHI have the greatest admiration for the noble Lord, Lord Mancroft, when he sticks to the rôle of lawyer. His adroitness on this Bill has been really engaging, and I envy him, as a craftsman in perhaps a different sphere from mine, that adroitness. When becomes to talk about trade he is not quite on such certain ground. I do not know whether what he has said is written into his brief, but I can tell the noble Lord that we are fast moving, with the consent and at the wish of the general public, into a world of branded goods. Soon we shall buy joints of meat pre-packed, cellophane wrapped and branded. We shall buy every mortal thing that the ordinary household needs with a brand on it. It is one of the evils that we have to face, because, while branding is, and will 878 always remain, the greatest guarantee that the ordinary purchaser has in buying the ordinary article, it brings one of the greatest evils in its train—that is, the fixed and maintained price. But that is another subject, which must be dealt with in another way.
However, when the noble Lord says that this Amendment means regimentation I maintain that it is not regimentation to enable the lower classes of this country to buy branded goods and to get value for the small amount of money they have. It is all very well to talk about high-class dresses which are branded, but you must remember also the ordinary housewife of this country, who goes out shopping with her purse in her hand and wants to buy, say, a tin of cocoa. And she has the baby in the pram—also with a brand, quite likely, because, after all, the noble Lord has the brand of his father upon him.
§ LORD MANCROFTI hope so.
§ LORD LUCAS OF CHILWORTHSo do I. So the noble Lord himself is a branded article, and he has been regimented. You see, one of the things which we have in order to safeguard the public is a guarantee, of quality. I do not intend to pursue this subject. I am sorry that the noble Lord has put up such weak arguments for the rejection of this Amendment. My Amendment was drawn so widely that it could have been accepted, but I am not going to press the matter. I will, however, give the noble Lord in a moment or two the chance of a deathbed repentance.
§ Amendment, by leave, withdrawn.
§ Clause 3 agreed to.
§ LORD LUCAS OF CHILWORTH moved, after Clause 3, to insert the following new clause:
§ Proceedings before court of summary jurisdiction
§ "The Board of Trade may in any case which appears to them to be of general interest to the community or to a section of the community take proceedings before a court of summary jurisdiction and may defray wholly or in part any costs or expenses incurred by any person or body of persons who may take such proceedings with the approval in writing of the Board of Trade."
§ The noble Lord said: This is the valedictory Amendment. I am sorry the noble Lord read the funeral rites before 879 the end. I knew he had made up his mind not to accept any of these Amendments.
§ LORD MANCROFTI carefully said "as yet."
§ LORD LUCAS OF CHILWORTHI did not hear the "as yet," but this is the noble Lord's chance to make a death-bed repentance. This is the one Amendment which I feel the noble Lord will accept, because all it does is to give the Board of Trade, when it appears to them to be of general interest to the community or to a section of the community, power to take proceedings before a court of summary jurisdiction or to defray wholly or in part any costs or expenses incurred by any person or body of persons who may take such proceedings with the approval in writing of the Board of Trade. I think that is a very sensible Amendment and it is one which I see no reason why the noble Lord cannot accept. The Board of Trade record of prosecutions under the 1887 Act does not show a high score. The noble Lord has come to your Lordships' House with Amendments to the Act to put teeth into the Act. Is it any good putting teeth into the Act unless the noble Lord is prepared to see it implemented?
I am not going to waste your Lordships' time any longer on this point, because your Lordships have other business to transact this afternoon, but if the noble Lord wants a precedent for such a suggestion as this he has only to refer to Sections 9 and 4 of the 1926 Act by which local authorities are empowered to pay for prosecutions and to take proceedings in all cases; and in such cases presumably the expense comes out of the rates. If the noble Lord will turn to Section 9, subsection (1) of the Merchandise Marks Act, 1926, he will see that any expenses incurred by the local authority under that section:
shall be defrayed in the same manner as expenses incurred by the authority in executing the provisions of the said Acts.Under Section 4, committees may be set up which can be paid for out of public funds.
§ LORD LUCAS OF CHILWORTHNo. I said that that was a pity. This is a 880 perfectly reasonable Amendment. The President of the Board of Trade need not give permission for proceedings, but if he does he can defray the expense, partly or wholly. I cannot see that there can be any reply to that. If the noble Lord says that there is no power to spend money, I would remind him that there is power to spend money under the previous Merchandise Marks Acts. After all, this is a Bill to consolidate or amend them all. I will not take up your Lordships' time further except to ask the noble Lord to accept this Amendment. I am not tied to the wording. This is the last chance; he will not have another one. I am not sure that he will be anxious to seize it. I beg to move.
§ Amendment moved—
§ After Clause 3 insert said new clause.—(Lord Lucas of Chilworth.)
§ LORD MANCROFTI am afraid I am not on my deathbed and I am quite unrepentant. This Amendment arises out of the twitting which the noble Lord gave us on Second Reading about the Board of Trade's activities in prosecuting under these various Merchandise Marks Acts. The noble Lord asked me during the course of the Second Reading debate whether I had any idea how many prosecutions the Board of Trade had initiated in the history of the Acts. I told him that offhand I had no idea but I imagined it must be under one hundred: I understand that the noble Lord and I were not at one over that, but my figures were roughly correct. The figure has worked out at an average of about two a year. I thought that was quite high enough, but the noble Lord clearly thinks it is nothing like high enough. He thinks the Board of Trade should be much more active over this matter. I do not think they should, and for this reason. I think the noble Lord, Lord Lucas, has a completely wrong conception of the function of Government Departments in prosecutions. This new Bill, when it is an Act amending the previous ones, is there for all to use, including the Board of Trade. It is to the advantage of other, people professionally connected with this subject to use it.
That is so in the case of many other Acts, where the prosecution is frequently and deliberately left to private persons. For example, there is the Dentists Act, 1921, there is the Children's and Young 881 Persons Act, 1933, under which the National Society for the Prevention of Cruelty to Children bring a large number of prosecutions. There is the Protection of Animal Act, 1911, under which the Royal Society for the Prevention of Cruelty to Animals bring a large number of prosecutions. There is the Dramatic and Musical Performers Protection Act, 1925, under which the Performing Rights Society bring a large number of prosecutions. There is the Pharmacy and Poisons Act, and there is the Penicillin Act. I have picked out only two or three, but there are many Acts which empower a private body, a professional body or a private person to carry out prosecutions for the purpose for which the Act was originally passed.
That does not mean, of course, that the Board of Trade should not carry out prosecutions itself when it is a large matter of public policy and where the alleged offence is not necessarily confined to one person or to the interests of one body. Indeed, the Government prosecute in matters like taxation cases and National Insurance cases, where administration and the necessary information, much of it confidential, is concentrated in a Government Department. Under this Act, the Board of Trade will prosecute where it is in the national interest that it should do so. Outside bodies will prosecute in their own interests. Individual persons will, if they see so fit, prosecute in their own interests. There is no need that I can see for the Board of Trade to delegate its powers, and no reason whatever why public money should be spent to defray the costs of private prosecutions as the noble Lord suggests. I am sorry but I am still off my deathbed; I am still unrepentant.
§ LORD LUCAS OF CHILWORTHThis is the last Amendment, and unless the noble Lord can think of a suitable Amendment that he and I can discuss for the previous Amendment on the term "quality," this will be the last chance your Lordships will have of amending the Bill—unless, of course, it comes back.
§ LORD MANCROFTThere is the Third Reading. The noble Lord can move to amend on Third Reading, if he wishes to.
§ LORD LUCAS OF CHILWORTHI am not a betting mart, but I should not risk much money on my chance of amending the Bill.
§ LORD MANCROFTThat is a different matter.
§ LORD LUCAS OF CHILWORTHI sincerely congratulate the noble Lord on the performance he has put up. He has convinced your Lordships, himself and everybody else, except me, that an Act of Parliament passed in 1887 requires only two minor Amendments to fit it to the commercial conditions of 1953. I think that is a feat of which he should be proud. He and I are old antagonists. He and I have been on each side of this House. I have learnt many lessons from him, and I hope he has also learnt from me. I hope that his performance in defending the Government on this occasion has had some link with the past when I used to defend it, I hope, as successfully.
I am going to withdraw this Amendment. I trust we shall be able to do something on the Amendment which we shall discuss later on. Again, I hope that the housewife, the defrauded person, will study carefully what the noble Lord has said: that all she has to do is to wander through about six Acts or any other Act she likes and, if she cares to spend her life's savings in pursuing this matter in various courts under various Statutes, she may eventually be reimbursed for being defrauded by the misleading description of articles under the Merchandise Marks Act. With those words, I desire to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Remaining clauses agreed to.
§ Bill reported without Amendment.
§ House resumed.