§ 6.40 p.m.
§ Order of the Day for the Third Reading read.
§ LORD MANCROFTMy Lords, after the Homeric struggles of the last four days I had hoped that I should be able to ask your Lordships to give this Bill a Third Reading without the infliction of a speech from me. But there were two or three major points raised at the Committee stage to which I undertook to give further consideration, and I feel that I should be lacking in courtesy to the House and to noble Lords who raised those points if I did not, as briefly as I possibly could, return to these matters, which are fundamental to the principle of the Bill.
The first matter was this vexed question of the word "quality." Your Lordships will remember that the noble Lord, Lord Lucas of Chilworth, drafted an Amendment to try to meet certain difficulties which he and his noble friends found inherent in the use in the Bill of the word "quality." The arguments in favour of this particular term are, I admit, stronger in theory than in practice since few trade descriptions are likely to emerge which relate specifically to "quality" whilst excluding the other terms of the clause—namely, "fitness for purpose, strength, accuracy, performance or behaviour." One important weakness of the existing law is that it does not deal with mis-description of quality at all. The Bill ought, therefore, to include a term which quite clearly mirrors the intention to check this particular malpractice in future.
The other words in the clause to which the noble Lord took exception—"fitness for purpose, strength, accuracy, performance or behaviour" are, broadly speaking, aspects of quality. "Quality" itself is the sum of them. That is why we regret that we are unable to accede to the noble Lord's request to remove those words, and that is why we think that, taken by and large, "quality" is the word best suited to the end which we are seeking to attain. It is part of the purpose of the Bill to strengthen the legal position of standards laid down by the British Standards Institution to replace the degree of protection of quality inherent in the utility scheme. Another point raised was that "quality" would be difficult to de- 1540 fine. I would remind your Lordships that the use of the word "quality" in a Bill of this kind is not new. The word "quality," for instance, appears in the Trade Marks Act, 1938. It also appears in the Agricultural Produce (Grading and Marking)Act, 1928, and in the Food and Drugs Act, 1938, and it has not, so far as I know, given rise to any particular difficulties.
I should like to add this about the word "quality." It appears to me to be a good "sweeping-up" word. It is more limited in its meaning—as it should be in an Act involving criminal penalties—than some phrases such as "other like characteristics" or the phrase which Lord Lucas and his advisers thought out, "other physically ascertainable and definable characteristics," but it does cover some mis-descripitions capable of deceiving the purchasing public. The word "quality" has been criticised—the noble Lord, Lord Llewellin, criticised it—on the grounds that it is too vague and difficult to define, and that courts will be unable to deal with it. But false description of the word "quality" is a matter for judgment in the light of the evidence and of the arguments. The evidence must be there before the case can be proved. There is no reason to suppose that magistrates will be any less capable of assessing this evidence and deciding the case than they are of deciding the provisions of the existing Statute. So, I regret, I must inform Lord Lucas, in his absence, that we are still unable to accept his Amendment, though we are grateful to him for the care with which he went into the matter and for the ingenuity with which he sought to produce a better result.
May I now turn briefly to the question of the trade "puff" and advertising boost which also worried the noble Lord, Lord Llewellin?—what we might term the "Beer is best" type of trade "puff." I think some anxiety was felt lest some such slogans as—"Beer is best," "Guinness is good for you," "Rolls-Royce, the best car in the world," and other similar expressions, might come within the ambit of this Bill. It is not the intention of Her Majesty's Government to make it a criminal offence to assert that "Beer is best." I should like to make it clear at once that it is not the intention of the Bill to interfere with legitimate trade "puff"; and, generally speaking, 1541 it will not do so, because such matter, even if false, will not be caught by the Bill, and it would be very difficult to get a prosecution going at all. In a prosecution for false trade description, three things must be proved. First, the description must be trade description within the definition; that is to say, it must relate to quality, fitness for purpose and so on. Secondly, the trade description must be applied to the goods. Thirdly, the trade description must be false in a material respect as regards the goods to which it is applied. A trade "puff" such as "Beer is best" will fail on one or more of these counts. The slogan, "Beer is best" actually fails on all three.
§ LORD LLEWELLINSucceeds on all three.
§ LORD MANCROFTFrom the noble Lord's point of view it succeeds. It is scarcely a description at all. Moreover, in the first place, it is impossible to prove that it relates to the quality of beer or to any of the other characteristics within the statutory definition. Generally, so far as I know, it appears in poster form, and I think it would be very difficult to show that it had been applied to a particular bottle or a particular glass of beer. It is not, therefore, "false in a material respect" as regards the beer to which it is applied, because it is immaterial to the purchaser of beer whether beer in general is best or whether or not the particular bottle on which he has his eye is the best.
Then take the slogan: "There is no substitute for wool," which was referred to by several noble Lords. This is slightly more definite than "Beer is best," but it is not really a description of wool or of anything else. It would be virtually impossible to Show that it was a trade description applied to a particular garment. Similarly, when goods claim to be of "best quality"—an expression familiar, particularly, in suburban shops—if the implication were that a particular line of goods had been selected as being of best quality, that description would be caught by the Bill—and properly so, since it implies a definite claim going to quality. But a mere placard in a shop-window to the effect that the goods in the shop were of best quality would probably not be caught, for the reasons which I have stated. In short, a genuine trade "puff" is seldom a description, still more 1542 rarely a trade description, applied to goods within the meaning of the Bill.
Assume a case in which a form of words is applied, to the effect that goods are of the finest possible quality—for example, the finest in the world. There still remains the question whether the court would say that the words were not a description, but mere "puff," commendation or exaggerated praise, which, by analogy with the law of false pretences and fraud, should not be treated as an offence. A Statute must always be interpreted in accordance with existing Common Law principles—as I am sure the noble Lord, Lord Llewellin, would be the first to agree—and by analogy with them, unless it very clearly provides otherwise. I apologise for having gone into this matter in some detail, but it has caused some little doubt in trade circles: and in the advertising world, doubts raised by Lord Llewellin have found some echo. I hope that I have said enough to put my noble friend's doubts at rest.
I would next, with the permission of your Lordships, like to speak of the application of the Bill to the Dominions and to the Colonies. This matter was raised by Lord Balfour of Inchrye and Lord Hawke. The Bill applies, of course, only to the United Kingdom, but merchandise marks legislation in the Colonies is based on, and is to a large extent a verbatim reproduction of, our Act of 1887. I give an undertaking that this latest amendment of our Act will be brought to the attention of the Colonial Governments. They are Governments, however, which are largely autonomous in such matters, and the decision whether or not they adopt a similar amendment rests with them. Similarly, the suggestion that this legislation might be of interest to the independent Commonwealth countries will be transmitted to the appropriate quarters.
The question of Japan was raised by many noble Lords. The Bill does not and cannot prevent the copying of United Kingdom designs abroad, a matter which is altogether outside its scope, but the Board of Trade are aware of this practice and take what steps are open to them to combat it. I can assure the House that the matter will be brought to the attention of the Japanese authorities, who, I am glad to say, have shown a very marked improvement in their readiness 1543 to take up any cases of malpractice referred to them—malpractice that used to be so prevalent before the war and on which there was such marked room for improvement. In that respect the minds of noble Lords may be set at rest.
The last point raised concerned consolidation. Several noble Lords asked whether it was possible to consolidate this Bill and the two Acts which it seeks to amend and the other Acts which touch on this subject. Before giving any undertaking on that, there are two things we shall have to do. The first is to see how the 1926 Act works in a post-war world, and whether that Act requires any amendment; and, secondly, to get some experience of how this Bill will work when it becomes an Act. We do not want to consolidate before it is clear that no further amendments are required. I have never pretended that this Bill is foolproof. I can console your Lordships by saying that consolidation is not so necessary as it would appear at first sight. There are six Acts, admittedly, but two, the Acts of 1891 and 1894, are purely procedural, dealing with small matters of procedure not of general interest to traders. The Act of 1926 stands alone. The Act of1938 amends the principal Act in one minor particular. Only the present Bill, therefore, substantially amends the principal Act of 1887. But we are keeping a careful watch upon this and in due course we may be able to reconsider the matter again. I apologise for having been so long on this matter but, as I say, I felt that I should be lacking in courtesy, as some doubt was expressed on all sides on these matters, if I had not attempted to clear them up. With these words, I hope that have persuaded your Lordships to send the Bill on its way to another place rejoicing. I beg to move.
§ Moved, That the Bill be now read 3a—(Lord Mancroft.)
§ LORD HADEN-GUESTMy Lords, we are grateful to the noble Lord, Lord Mancroft, for giving such a clear account of the various matters into which he has looked, and for the way in which he has tried to meet us. Though he did not completely satisfy us about what was asked for from this side, obviously in the opinion of the noble Lord it was the best that could be done at the present time. I was particularly interested in the question of consolidation and how it would work. The noble Lord has set out a vade mecum of how the Act is going to work. Noble Lords on this side support the Motion.
§ LORD LLEWELLINMy Lords, may I add that we are all grateful to my noble friend for the trouble he has taken in answering the questions raised on Committee stage? As we had no Amendments on Committee stage, we had no Report stage, and this is the only occasion on which the noble Lord could deal with them. I am much obliged to him, and to the Government, for the trouble they have taken in going into the points raised and giving us such a full explanation to-day. I have not the slightest doubt that the courts will be able to construe this matter and will do it with a considerable amount of common sense. I am not completely convinced that the word "quality" ought to go in, because it is a very wide word, but I have no doubt that in all cases of this sort that come before the courts, they will give the defendant the benefit of the doubt. I am prepared to give the Government the benefit of the doubt to-day and hope that the kind of events I visualise will not take place.
§ On Question, Bill read 3a, and passed, and sent to the Commons.