Lords Sitting of 12 December 1960

Preamble
The House met at half past two of the clock. The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Leicester

DEVELOPMENT OF MALTA
2.35 p.m.
LORD OGMORE: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government what progress is being made with the economic development of Malta, how many existing industries are being expanded, whether any new industries are being started and what is the present position with reference to the proposed reconstruction and re-constitution of the dockyard by Messrs. C. H. Bailey & Co. Ltd.]
THE MINISTER OF STATE FOR COLONIAL AFFAIRS (THE EARL OF PERTH): My Lords, a good start has been made on the implementation of the five-year Development Plan for 1959–64, which envisages a total programme of over £32 million capital investment. The programme of industrial development includes the modernisation of the port (and the now deep-water quay and silo will come into operation next year) and extension of the power station: the first extension has already been completed and the second is being planned. Furthermore, the expansion of industrial capacity is going ahead at an encouraging pace. The Government are very grateful for the help they are receiving in this from the Aids to Industry Board, under the chairmanship of Sir George Dowty.
Inducements to the establishment of new industry, which compare favourably with those in other countries are producing results. Already capital and fiscal assistance has been approved for the expansion of five existing firms and one hotel, and for the establishment of nine new firms and three new hotels. The
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new industries range from car assembly to textiles, from light engineering to the propagation of flower cuttings. Work is in hand on all the expansions and on five of the new projects, and many other applications are being studied. The total capital investment in the new projects and extensions so far approved is expected to be nearly £3 million—towards which the Government's assistance is over £¾ million—and the estimated prospective employment is between two and three thousand people.
As my right honourable friend said in another place last Thursday, the slow progress with the conversion of the Dockyard for commercial use is a cause of concern and the Government hope to be in a position to make a statement before the Recess.
LORD OGMORE: My Lords, while thanking the noble Earl for that statement and realising the difficulties of these matters in a small island, may I ask him, first of all, what plans he is making for the development of the tourist trade on a big scale; and, secondly, whether he is aware that there is some concern in Malta at the pace of development?
THE EARL OF PERTH: My Lords, in answer to the first part of the Question, as I said in my general reply, one new hotel is being extended, and plans have been approved for three new hotels. That. plus an energetic advertising programme drawing attention to Malta as a tourist centre is, I think, a good start in connection with that matter. As regards the anxiety about the pace of the general programme for economic: development, I think that, as I have shown in my earlier Answer, there really is little ground for anxiety—indeed, the progress up to date is very satisfactory.
LORD SHEPHERD: My Lords, am I to understand that in the five-year programme the total capital to be invested will be approximately £32 million, and that up to the present only £3 million has been invested? Cart the noble Earl say when the bigger flow of capital will arrive in Malta?
THE EARL OF PERTH: No, my Lords. The noble Lord is right in that the programme is expected to be £32 million, but certainly more than £3 million has already been expended. What I said in my answer was that on the

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new projects the capital investment was likely to be £3 million, of which the Government have supplied about £750,000. But that is a different figure. I am afraid I have not in front of me the total of investment that has already been made out of the capital programme, but it is certainly more than £3 million.
LORD GIFFORD: My Lords, can the noble Earl say whether all or any of the hotels are to be down by the seashore, because Malta is completely lacking in proper holiday hotels?
THE EARL OF PERTH: My Lords, if my memory is right, the answer to that is, Yes; one if not two will be. But if I am wrong about that, I will write to the noble Lord.
LORD OGMORE: My Lords, may I ask the noble Earl whether he will look into this question of the tourist trade himself; because as the noble Lord, Lord Gifford, has said, there is this problem of hotels? May I ask him whether it is possible to have the chalet type of hotel in Malta, catering for the not quite so wealthy type of tourist; and whether he can make arrangements with the charter air companies, and so on, to provide cheap flights to Malta?
THE EARL OF PERTH: My Lords, I have looked before, and I certainly will continue to look, into the question of the hotels and tourist trade. I know that one scheme was examined in regard to the chalet type of hotel. I do not think that was furthered, and it certainly would not be for me to try to influence the hotelier against his better judgment on things of this sort. I appreciate the importance of being able to have cheap flights if one wants to encourage the tourist industry.

NATIONAL ASSISTANCE (DETER- MINATION OF NEED) AMEND- MENT REGULATIONS, 1960
2.42 p.m.
THE MINISTER WITHOUT PORTFOLIO (THE EARL OF DUNDEE): My Lords, the changes which are proposed by these Regulations were included in the statement of the Minister of Pensions which I read to your Lordships on November 2, and probably your Lordships will not wish me to explain them
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in any detail. As I think your Lordships know, the rate for a married couple is increased from 85s. to 90s., and for the single householder from 50s. to 53s. 6d. Comparable changes are made in adult and child dependants' allowances, going up to 49s. 6d. for an adult dependant and to 17s. for the child under five. The full changes are contained in the Explanatory Memorandum issued by the National Assistance Board which accompanies these Regulations. I beg to move.
Moved, That the Draft National Assistance (Determination of Need) Amendment Regulations, 1960, be approved.—(The Earl of Dundee.)
LORD SILKIN: The noble Earl said, "90s." for a married couple. Was that a slip for 92s. 6d.?
THE EARL OF DUNDEE: My Lords, I believe the noble Lord is thinking of the contributory pension. My statement —90s.—was right.
On Question, Motion agreed to.

ADMINISTRATION OF JUSTICE (JUDGES AND PENSIONS) BILL
2.43 p.m.
Order of the Day for the Third Reading read.
THE LORD CHANCELLOR (VISCOUNT KILMUIR): My Lords, I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read 3a. —(The Lord Chancellor.)
LORD SILKIN: My Lords, there are one or two points, relating to the remuneration of the Masters of the Supreme Court, that I should like to raise on this Bill. I have not put down any Amendments because I felt that this was a matter which ought to be considered by Her Majesty's Government rather more leisurely than it would be in having to come to a definite decision on this Bill.
Those noble Lords who have any experience of the courts will know that the function of a Master of the Supreme Court is a very important one indeed. It is a little difficult to make any comparison. The nearest I can find is that of a county court judge, although I should not wish to press the analogy too hard. The

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fact is that Masters take High Court cases by consent and deal with a wide variety of matters which come before the courts; and their duties are of the utmost importance in connection with the expedition of: he work of the various sections of the Law Courts. The qualifications are normally that they have had ten years in practice as barristers or a similar period as solicitors; and I may say, in passing, that this is a more stringent qualification than is required for county court judges, for whom the qualification is only seven years in practice.
Masters are normally recruited at about the age of 50 or more, and therefore they would expect to have something of the order of 20 years' service. In another place the question of their pension rights was discussed. It was suggested that they ought to be in a position to receive their maximum pension—which is one-half of their salary—after 15 years' service. This Bill provides that they should receive a pension at the end of 20 years' service. At the moment the period is 25 years, so the Bill provides an improve-merit of five years in the position with regard to their pension. Nevertheless, it was felt that the period should be 15 years, which would put them on a parallel basis with county court judges. However, this was discussed in another place and I do not want to ask the noble and learned Viscount to deal with that particular aspect.
There are two other aspects. One is the question of their eligibility for pensions at all. As matters stand at the moment, they have to serve for five years before they become eligible for any kind of pension. There is a feeling among the Masters that that is a hardship. They are in actual practice as barristers or solicitors when they are appointed and they give up their practice; and should anything happen to them soon after their appointment, their dependants are left high and dry, with no provision whatever. There is a strong feeling among them that eligibility for pension should begin on their appointment. Naturally, if they had served a shorter period than five years they would not qualify for a very large pension, but they would get something; and so would their dependants.
The other point concerns the speed with which they reach their maximum.
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They are appointed at a salary of £3,650 and go to a maximum of £4,100. They feel, again, that they should not be subject to a sliding scale at all but should be appointed at the remuneration of £4,100—or whatever is the maximum figure; I believe it is that. Their case is, again, that they are men in a senior position in their profession. Normally, as I have said, they are of fairly advanced age, 50 or over, on their appointment; and having regard to the responsibilities of their duties, their remuneration is not abnormally high. In my view it is, if anything, on the low side, and they should not be required to wait until they are possibly 55 or 56 before they reach that scale of remuneration. I put these points to the noble and learned Viscount because they are matters which are rather worrying the Masters. I think there have been some forty of them in the courts, and they render a very high standard of service under great pressure. As everyone knows who has had to appear before them, they work at extremely great pressure and I think that anything we can do to improve the conditions of the Masters, and therefore the quality of those who are available, we should do willingly.
As I have said, I have no Amendment down on the Order Paper and all I can ask the noble and learned Viscount is to give their pleas sympathetic consideration at the earlest time when it becomes possible to review their remuneration and conditions. I am aware that at the present time both their remuneration and their conditions of service are linked up with those of senior civil servants—I think it is by the Administration of Justice Act, 1925. I have no objection to their pay being linked up, but I think it is time we had second thoughts about their conditions of service. Civil Servants are normally appointed at a much younger age. The people with whom we compare the Masters of the Court are people who are appointed normally in their fairly early twenties, after they leave university, whereas these men are appointed at the age of 50 or thereabouts and that makes a big difference. I think, therefore, that we ought not to link up too closely their conditions of service with those of the Civil Service. These are all factors which I hope will be considered at an early date, and I should be

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grateful if the noble and learned Viscount would see his way to give some assurance that these matters will be considered at some early appropriate time.
2.53 p.m.
THE LORD CHANCELLOR: My Lords, I am grateful to the noble Lord, Lord Silkin, for raising these points and also for giving me notice of one or two of the points which were worrying him in this regard. I want at once to join with his tribute to the work which the Masters do. Like the noble Lord, I can look back to cases that I have done in front of them when a complicated and detailed matter Chas been referred to them and handled with the greatest skill, courtesy and care; and I heartily underwrite everything he has said in praise of their work. He has exonerated me from dealing with one of the points because that was dealt with fairly fully by my right honourable and learned friend the Solicitor General in another place. But with regard to the points which the noble Lord mentioned to-day, the first is the qualifying period of five years. It is true that Judges, High Court Judges and County Court Judges, have not a qualifying period. They have always been treated as a special case and, so far as I know, there is no other case where that occurs in public employment. But I will certainly have regard to that point and consider it carefully, as fie asked.
On the second point, I think that that again is a very important one and I should like to reconsider it. I was impressed by what he said. Although. I suppose, everyone improves after a year or two in a particular job, they come to this work with high qualifications and there obviously is a case for their not being on a sliding scale, which the noble Lord implied. Again, I should like to look at that point. On the general point of relation to the Civil Service I take the noble Lord's view that one must always remember that the Judiciary, of all kinds, are in a special position. On the other hand, without going into details, I would remind the noble Lord that another section in which he is also interested gained an improvement the other day because of their relationship to branches of the Civil Service, and therefore it cuts both ways. But I am assured that a number of other people
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who are in a sort of analogous position for—example. the Chief Charity Commissioner, the Chief Land Registrar, the Public Trustee and the Chancery Registrar—do not receive as favourable terms as do those whom we are now discussing; and so I have to bear that in mind because they hold Civil Service appointments.
I have mentioned that only in order to show the noble Lord that I have looked into these points and considered them; but that does not mean, I assure him at once, that I shall not look into them again. It is a difficult task, as he knows—he has shown great interest in it in the last six or seven years while I have been Lord Chancellor—to keep all the different sections in step and in an equitable relationship one to the other. But I regard it as a serious and important part of my duties and I will certainly give it further consideration as he has asked.
On Question, Bill read 3a, and passed.

TRUSTEE INVESTMENTS BILL [H.L.]
2.57 p.m.
Order of the Day for the House to be put into Committee read.
Moved, That the House do now resolve itself into Committee.—(The Earl of Dundee.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD AILWYN in the Chair.]
Clause 1:
New powers of investment of trustees
1.—
(3) No provision of any Act or instrument relating to the powers of the trustee which was passed or made before the passing of this Act shall limit the powers conferred by this section, but those powers are exerciseable only in so far as a contrary intention is not expressed in any Act or instrument so relating which is passed or made after the passing of this Act.
LORD HAWKE LORD HAWKE moved, in subsection (3), to leave out all words after "expressed" and to insert instead:
"in any Act. will or other instrument so relating which in case of an Act is passed, in the case of a will is made or in the case of any other instrument takes effect, after the passing of this Act"
The noble Lord said: In the dusty boxes in solicitors' offices there exist wills with narrow Victorian trust clauses. Humanity, as regards wills, is divided into changers and non-changers. The changers we all know: they send for their lawyer and their will at very frequent intervals, as and when their relatives go up and down in their estimation. But among the non-changers the will tends to lie, unknown and forgotten, in these boxes. My point is one which I think is probably covered in the Bill, but there is no harm in making certain.
I want to make sure of the position in the case of a testator who has one of these old-fashioned clauses. If he dies before this Bill becomes an Act, quite clearly his trustees will get the benefit of the Act. But suppose he dies after the Act has become operative and leaves the same will. Will it be supposed that he had the opportunity of changing his will but did not do so, and thus signified his wish, in his narrow clause, to override the greater freedom given by the Bill? I want to ensure that the relevant date on which he is held to have made his decision is the date of his will and not the date of his death or the coming into force of his trust provisions. As I said before, I hope and believe that this is covered in the Bill, but I should like the assurance of my noble friend. I beg to move.
Amendment moved—
Page 1, line 18, leave out from ("expressed") to end of line 19 and insert the said new words.—(Lord Hawke.)
THE LORD CHANCELLOR: I am glad to be able to assure my noble friend that his hope and belief are right, and that his doubts are wrong. The clause as drafted specifically provides that the date on which the instrument (which would include a will) is made is the date which determines whether or not a contrary intention should be recognised. The vital time is when the instrument is made. If I may say so with respect, I do not think that my noble friend's Amendment would help on the matter, but can certainly give him that assurance, which I think deals with the possible difficulty that he has in mind. That difficulty does not exist, and the only case where the contrary intention comes up is in the case of a will or other
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instrument made after this Bill comes into force.
LORD COHEN: May I, with great hesitation, express some doubt as to whether the matter is entirely clear? I agree with everything that the noble and learned Viscount the Lord Chancellor has said, but there seems to me to be a casus omissus. The case in which I feel there may be difficulty is this. If somebody makes a will before the passing of this Act, that will be covered because it has been made. But suppose that, after the coming into force of the Act, the testator adds a codicil in which he confirms his will. Surely in that case he ought to he entitled to override the Act: because the usual form of a codicil, as my noble and learned friend knows, is that it ends by saying, "In all other respects I hereby confirm my will". Now that would be a deliberate act, done after the coming into force of the Act; a deliberate act adopting a restrictive clause. SO I wondered whether that ought not to be allowed to stand, and I thought that was probably covered by the words in the Amendment of my noble friend Lord Hawke,
"… in the case of any other instrument…"
A codicil would be another instrument and, if it confirmed the will, I think that might be the thing. I think that perhaps it might be clearer if the subsection said something to this effect,
"Provided that, if the will is made before the passing of this Act but is confirmed by a codicil made after the passing of this Act, the will shall be deemed to have been made after the passing of the Act."
I am not moving an Amendment, but I would ask that my noble and learned friend the Lord Chancellor might consider that before we come to the Report stage.
THE LORD CHANCELLOR: I will certainly consider that. I should have thought that the codicil was an "instrument…made after the passing of the Act". I think my noble and learned friend Lord Cohen is inclined to that view.
LORD COHEN: Certainly.
THE LORD CHANCELLOR: Therefore the effect would be as he suggested. But I should like to consider it. I think my noble friend Lord Hawke was really

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on the point of whether the critical date was the making of the will or other instrument or the death, and on that I am quite sure that I am right—and I am glad to see that confirmed by my noble and learned friend Lord Cohen. I will willingly have another look at the codicil point, although, as I say, with all reservations as to forms, which I am sure my noble and learned friend would like me to make, I am inclined to agree with him as to the effect.
LORD HAWKE: I thank my noble and learned friend very much for his assurance. Before withdrawing my Amendment, may I say that I forgot to mention that my Amendments are purely home-made drafting and, therefore, if accepted as they stand, would have the most devastating effect on the Bill. Therefore, I hope that will save him the trouble of saying, on future Amendments, what evil consequences will ensue if they are accepted. They are worded only to express, as clearly as I can, what I am trying to get at. I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
Clause 1 agreed to.
Clause 2:
Restrictions on wider-range investment
2.—(1) A trustee shall not have power by virtue of the foregoing section to make or retain any wider-range investment unless the trust fund has been divided into two parts (hereinafter referred to as the narrower-range part and the wider-range part), the parts being, subject to the provisions of this section. equal in value at the time of the division; and where such a division has been made no subsequent division of the same fund shall he made for the purposes of this section, and except as hereinafter provided no property shall be transferred from one part of the fund to the other.
(3) Where any property accrues to a trust fund after the fund has been divided in pursuance of subsection (1) of this section, then—

(a) if the property accrues by reason of the exercise of any right or remedy arising from ownership of property comprised in either part of the fund, it shall be treated as belonging to that part of the fund;

(b) in any other case, the trustee shall secure, by apportionment of the accruing property or the transfer of property from one part of the fund to the other, or both, that the value of each part of the fund is increased by the same amount.

(4) Where after any such division as aforesaid property is taken out of a trust fund, the trustee shall secure, by an appropriate selection of property to be taken out from each part of the fund or by the transfer of property from one part to the other, or both, that the value of the narrower-range part of the fund is not decreased by more than the decrease in the value of the wider-range part nor, in so far as the value of the property belonging to the narrower-range part permits, by less:
Provided that where property is taken out of a fund by way of appropriation to form a separate fund.—

(a) the trustee shall secure, by an appropriate selection of property to be taken out from each part of the fund or by the transfer of property from one part to the other, or both, that if the fund continues to subsist after the appropriation the proportion which the value of one part bears to the other is the same immediately after the appropriation as it was before:

(b) if any such separate fund is divided in pursuance of subsection (1) of this section, the two parts of that fund shall be so constituted as to bear to each other the same proportion as the corresponding parts of the fund out of which the separate fund was created bore to each other before the appropriation.

3.5 p.m.
LORD CONESFORD LORD CONESFORD moved, in subsection (1), to leave out "the parts being, subject to the provisions of this section, equal in value" and insert:
"the value of the former being one eighth of the value of the latter".
The noble Lord said: Your Lordships will remember that, if advantage is to be taken of the new powers conferred by this Bill, a division has to be made of the trust fund. It has to be divided into two parts: the narrower-range part and the wider-range par; and the Bill provides that these shall be equal at the time of the division. My Amendment would make the value of the narrower-range part one-eighth of that of the wider-range part; that is to say, its value would be one-ninth of the trust fund. This does not mean, of course, that I think that only one-ninth of a trust fund ought to be invested in fixed-interest bearing securities, and that the rest should be invested in equities. It may often be advisable to invest a far larger proportion (at times, even the whole) of the trust fund in fixed-interest bearing securities. That will be possible if my Amendment is accepted, just as it is possible under the Bill as now drafted.
I would ask all noble Lords to bear in mind two facts, one of which has been

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sometimes overlooked even in contributions to financial papers. The first is that the whole or any part of the wider-range part can at any time be invested in gilt-edged and other fixed-interest bearing securities set out in Parts I and II of the First Schedule. This results from the very first subsection of Clause 1 of the Bill. The second fact to bear in mind is that nothing in the narrower-range part can be invested in equities. This: results from Clause 2, subsection (2), of the Bill. The purpose of my Amendment is to limit to one-ninth of the trust fund at the time of the division the amount that must for ever remain in fixed-interest bearing securities, no matter how undesirable, or even disastrous, such a course may appear to be to the trustees and their advisers. Of course, as I indicated in my speech on Second Reading, I should prefer the abolition of the division altogether, but I have not much hope of revising the Bill in that manner. My Amendment would, at least, make the division far less harmful than under the Bill as it stands, and possibly, for reasons which I shall later give, would cause the harm done to be almost negligible.
I say that the provision in the Bill as it stands might be disastrous—because that is what an obligation confining a trustee to fixed-interest bearing securities becomes in a period of great inflation. In such a period, the real value of a fixed-interest bearing security declines with the real value of the currency, until the value may disappear altogether. This, as your Lordships know, has happened in other countries. Noble Lords may well hold the view that that will never happen to our currency. I certainly hope that they are right, but I would ask them to bear this in mind. The investing powers of trustees may depend in substance on the Trustee Act, 1925. If the present: Bill becomes law in 1961, it will have taken 36 years to obtain a new Act. Is there any noble Lord in this Committee, no matter what his political allegiance, who is quite certain that no British Government in the next 36 years will adopt a policy that will depreciate the value of the pound? Of course, there is nobody who believes any such thing.
But what does the Bill say if my Amendment is rejected? It lays down this: that at a time of threatened inflation the trustees must not even make
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an attempt to save the narrower-range part; that is to say, what was half the total of the trust fund at the time of the division. The provisions of Section 1 of the Trustee Act, 1925, were unenlightened and obsolete even in the year in which that measure was passed. Even at that date some people must have heard of Keynes. That Act of 1925 has caused appalling and quite unnecessary losses to innumerable beneficiaries. If we insist on this equal division in 1961, we shall certainly be sinning against the light.
There is no risk, whatever, if my Amendment is accepted, that there will be a rush by trustees away from fixed-interest bearing securities. What is, I believe, known as the reverse yield gap will prevent that.
Most trustees are familiar with the problem of reconciling the need of the tenant for life for immediate income and the interest of the remainderman that the property shall not be unduly depreciated. The needs of the tenant for life will generally make a considerable investment in fixed-interest investments necessary, because at the present time, of course, good equity investments, such as trustees, if well advised, wish to invest in, give a much smaller immediate return than fixed-interest bearing securities. Accordingly the interest of the tenant for life alone would almost certainly render a considerable investment in fixed-interest securities necessary. Apart from that, of course, it may sometimes be desirable even to invest the whole of the trust funds in fixed-interest bearing securities. But I think, if we are honest with ourselves, we shall all agree that the best investment will be made if you have good trustees taking competent advice and varying the proportion between fixed-interest bearing securities and other investments from time time time, as the best advice may indicate. What we should not do is to compel trustees to leave a large proportion of the trust funds—a half at the time of the division —in fixed-interest bearing securities at a time when to do so threatens disaster.
No explanation of the 50 per cent. limitation appears in paragraph 289 of the Nathan Report from which I have no doubt this limitation is derived. It is there referred to as a possible safeguard, though a safeguard that can cause such

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irreparable disaster should not, I think, be termed a safeguard. But there is another explanation which has been advanced to me in conversation by various people who have been trying to find some explanation and defence of the provision in the Bill. It is said, and said truly, that in this Bill we are interfering with the express wishes of testators and seniors, and it is implied that, if we interfere in this way, our interference should not go too far.
The answer, I submit, is quite simple. This basis and justification for our interference with the express wishes of testators and settlors is this: that at present the effect of the Statute Law is to bring about the precise opposite of the result which they themselves intended. The justification for the present measure is that we are intending to substitute for the terms that they laid down in their wills or trusts what they themselves would substitute if they were alive and were free to do so to-day. To some extent, of course, what they would do to-day may be a matter of doubt, but we can get a fairly good idea from observing what settlors do at the present time when competently advised. They give the maximum possible discretion to trustees, and do not—or do only in the rarest possible cases—prescribe this limitation of 50 per cent. at present laid down in the Bill.
Not only is this greater freedom being given in every modern settlement and will. The Court of Chancery is giving it at the present moment when applications are made to it under the Variation of Trusts Act, 1958. More than a year has passed since Mr. Justice Vaisey announced that, in future, no expert evidence need be filed in support of these applications for more appropriate investment powers. The Court of Chancery has taken judicial notice of the economic facts of life. Why not Her Majesty's Government? I beg to move.
Amendment moved—
Page 2, line 5, leave out ("the parts being, subject to the provisions of this section, equal in value") and insert ("the value of the former being one eighth of the value of the latter")—(Lord Conesford.)
3.18 p.m.
LORD COHEN: I had not intended to intervene, but may I just correct something which I think might create a false
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impression as to the attitude at the Court of Chancery. I do not remember a case in which the Court of Chancery has gone much beyond what the Bill proposes. The cases in which they grant complete discretion must, I think, be few and far between. I have some experience personally as trustee of a charity. I know or advise that we should be lucky to get more than one-half, though we might have asked for two-thirds. Therefore, I should not like this Amendment to be discussed on the basis that the Court of Chancery was giving unlimited powers to invest in anything trustees like, notwithstanding the views of the testator.
3.19 p.m.
LORD SALTOUN: I should like to give some qualified support to this Amendment, because this Bill arouses in me a considerable amount of uneasiness. Anyone who has had any experience of some of the many vicissitudes that trustees have to meet must feel that this Bill is a very artificial way of extending their powers. The point that troubles me most is the duty that is laid on them, if they have to realise a large sum to meet a new set of death duties or for any necessary expense, to raise it from both funds equally.
This Bill seeks to give an extension to trustees to invest in equities as a guard against inflation and undue depreciation of their trust funds. Investing in equities gives a certain guard against the effects of inflation, but it entails one disadvantage. If trustees invest in equities, they must not be compelled at any given moment to realise those equities, because, although they fluctuate a great deal, in the end they share in the prosperity of the country and gradually appreciate. If, at any given moment, the trustees have to give a sum of money and are not allowed to realise it on the narrower-range securities but have to spread it over the wider range as well, they may be in an unfortunate position. They may be either compelled to sell equities at the bottom of the market or to go to their banker and ask him to advance them money in the hope that later on their equities will recover and they will be able to sell them at better advantage. I do not know whether that would be debarred by the Bill. But, whether or

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not it be debarred, I submit that it is not a proper activity for trustees. Trustees are put into an unfortunate position, and it seems to me that in that way the Bill is giving with one hand and withdrawing with another, by reason of the artificiality of conditions.
I should like to comment on one other matter. Equities are always supposed to be—and they are to a great extent—a security against inflation; but I would remind your Lordships of what happened in Germany in 1924. People who thought that equities were a safeguard against inflation of that kind were deceived because, as one person who had a great deal of experience put it to me, fixed-interest securities fell to nothing, but the others "went through the roof", because working expenses and replacements were so enormously expensive that in the end all securities whichever brand they were lost their value. I should be pleased to have some answer to this point.
THE EARL OF DUNDEE: My noble friend's argument on his Amendment does not go quite so far as that which I have already answered—namely, that trustees should not be permitted to invest any Of their funds in any trustee securities, for which an argument could be made out. My noble friend's Amendment would enable trustees to invest up to 87½ per cent. of their funds in equities, and be has repeatedly suggested that to have a large proportion of trust funds in trustee stocks may be disastrous. He used the phrase "irreparably" disastrous. We shall all agree that sometimes it might be highly disadvantageous, but it can be even more disadvantageous to have trust funds in contain kinds of equities. It is conceivable that equity shares, instead of going down from 100 to 60, or whatever it may be, may go down from 100 to nil and may never recover.
While I agree with what my noble friend said, that a good trustee, with competent advisers will do better if he has freedom to put everything into equities this Bill is designed to cater primarily for smaller trusts and the many trustees whom it affects will not have access to expert advice of high quality. Therefore, we think that it is wiser to place a limit on the extent to which in
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vestments can be made in these risk-bearing securities.
The figure of 50 per cent., as my noble friend said, was originally taken from the recommendations of the Nathan Committee. Here I should say that the noble Lord, Lord Nathan, has been kind enough to write and apologise for not being here this afternoon. We should all have been very glad if he had been able to come and help us. If your Lordships should think that the view of the Nathan Committee is out of date, I would point out that much more recently various Acts of Parliament enabling local authorities to invest part of their funds in equities have usually fixed the ratio at 50 per cent. We thought that on the whole a "fifty-fifty" basis provided a ratio which seems to be most in accordance with the present state of opinion on this matter and with such expert recommendations as we have at our disposal. At the same time, your Lordships will remember that so far as the narrower-range half of investments is concerned, the First Schedule List in this Bill very considerably widens the dist of trustee securities under the 1925 Act. So that, besides giving power to invest in equities in the wider-range half, we are considerably liberalising the narrower-range part of investments as well.
My noble friend mentioned the Variation of Trusts Act, 1958. I had intended in any case to say a word on this Amendment about Section 57 of the Trustee Act, 1925, which I think is really the operative niece of legislation, enabling trustees to go to the courts and have their trust limitations set aside or widened. In some cases, the courts give power to invest more than 50 per cent., although, as your Lordships were interested to hear from the noble and learned Lord, Lord Cohen, often they do not go so far as the noble Lord, Lord Conesford, suggested that they might go.
I should like to make it clear that this Bill is intended to appeal to the generality of trusts, and is not intended in any way to provide a suggestion to the courts that they should not go beyond 50 per cent. when cases are brought to them under Section 57 of the 1925 Act. What the courts have to do is to judge every case on its merits. Normally it is not to be expected that anything but fairly

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exceptional cases would go to the courts, although, as I argued on Second Reading, the fact that the cases which do go are so greatly increasing in number is an argument for changing the law on the subject. But the courts have to consider exceptional cases whereas this Bill is intended to apply to all trusts and particularly the smaller trusts. I agree with my noble friend that there are some trusts in which it might be right to have a larger proportion in equities, and it is not our intention that the practice of the courts should in any way be made uniform or changed or modified by the provisions of this Bill. I hope the Court of Chancery will continue to judge the merits of each case without regard to this Bill, as they have done before.
LORD SALTOUN: I should like to say that I think: the noble Earl's own argument reinforces what I said. There are these people to whom he especially refers as being without experience and not having expert advice, and they are going to receive this Bill with joy. They are going to invest 50 per cent. of their securities in equities,.and when the time for realisation comes, and they find they have to provide half the funds they are badly in need of by realising equities at the bottom of the market—not perhaps having fallen to nil, because they could not do that—then they will feel that they have been "sold" by this Government and will feel resentment at the position they are in. The bigger trusts will realise the situation much better, and they may or may not make full use of the Act. But it is the smaller people who really deserve consideration because of the realisation clauses coming into operation later on.
LORD CONESFORD: I find my noble friend's reply extremely disappointing. Under this Bill itself there is a later clause making it obligatory on trustees to obtain advice. At any time, almost. since 1925 even moderately good advice would have ensured that a substantial part of the trust fund was placed in equities and not left in fixed-interest bearing securities which have led to such appalling loss. What I find so distressing in the speech of a person for whose intelligence I have such respect as i have for that of my noble friend is the assumption that there is something safer
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about a fixed-interest bearing security than an equity. My noble friend Lord Saltoun talked about the risk of difficulty in selling the equity. I can only say that in my experience as a trustee I have never found it so hard to sell an equity at a decent price as to sell some of the fixed-interest bearing securities at a real value anywhere near that which they bore at the time of the investment.
The fact is that the reverse interest gap (as I think it is termed) is the market's estimate of the danger of investing in fixed-interest bearing securities. It is not only the fact that equities yield rather less because there is a hope that they will rise; there is the fear that nobody would be so mad as to leave money permanently in fixed-interest bearing securities unless they were rewarded by a substantial yield for the risks they were taking. I regard this idea of the Government that there is something intrinsically safe in a fixed-interest bearing security as a view that was obsolete in 1925 and is prehistoric to-day. I deplore the reply.
LORD DOUGLAS OF BARLOCH: I want to support this Amendment. I listened carefully to what the noble Earl. Lord Dundee, said, but I did not find in his speech any reasoned argument founded upon facts in support of the division "fifty-fifty" between fixed-interest securities and others. The only argument in favour of it was that the Nathan Committee had recommended it. But I do not know that the Nathan Committee gave any reasoned argument founded upon economic facts in favour of that recommendation; and I do not see how any economic argument can be brought forward in favour of it. The facts of history are only too apparent, and they show conclusively that it is disastrous to leave a fund over any long period invested in fixed-interest securities, and especially in those which are irredeemable. That is a fact which cannot possibly be denied.
The only argument which has been brought forward is that it may be possible by investment in equities to make investments which lose their value completely, and that that is not likely to happen in the case of fixed-interest, securities. I agree that that is a possibility. But this Bill makes an express provision for the purpose of dealing with and endeavouring to avoid that: namely,

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that the trustee is to seek advice of a competent character before he makes the investment; and, indeed, that provision in the Bill applies not only to the investments in Part III, but also to the investments in Part II of the First Schedule. The only investments which the trustee in future will be allowed to make without taking any expert advice are those in Part I of the First Schedule—namely, savings certificates and savings bonds or deposits in trustee savings banks, or other hank deposits which carry interest. That is the entire range of the trustee's unguided freedom in the future.
For all other investments, of whichever class they may be, he is required under this Bill to take advice. When he lakes that advice he will presumably submit to his adviser the terms of the: trust instrument, so that the adviser will know what the provisions of the trust, are and will bear in mind, in advising about the investments, the possibilities of the dates at which it may be necessary to realise the investments and to turn them into money. That, I think, helps to meet part of the point which !was raised by the noble Lord, Lord Saltoun, as to the difficulties which might arise during a period in which equities were suffering some temporary recession in value. So that, by and large do not see that there is any necessity Whatever for this purely arbitrary provision of "fifty-fifty" between the two classes of securities.
May I now refer to the point which was raised by the noble and learned Lord, Lord Cohen? I have no statistics as to what the Court of Chancery has done in the oases in Which it has decided to vary the investment powers of trustees. I can speak with regard to only a few casein of which I happen to have personal knowledge. In all those cases the Court has, without any hesitation, given the trustees a wide power of investment upon the lines comprised in Parts I, II and III of the First Schedule, and without imposing any condition that 50 per cent. shall be invested in one class and 50 per cont. in. another. If this Bill is carried in the form in which it now stands, I fear that the Court of Chancery thereafter might well be more hesitant in giving wider powers to trustees than it is at the present moment, because it might conceivably say that when Parliament has so recently considered this matter and given
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general directions as to what are permissible trustee investments, the Court would not be inclined to give wider powers unless an extremely cogent case was made out upon the facts of the particular instrument.
Therefore, as far as instruments made in the past are concerned, this Bill might have the effect of lessening the opportunity to get power for the trustees to make investments in a reasonable fashion, and might confine them entirely to what is here contained, as compared with the greater freedom which they can get at the present moment by applying to the Court to get the terms of the trust deed varied. I sincerely hope that the Government will give this matter some further thought before sticking doggedly to this division of "fifty-fifty".
LORD SILKIN: I feel that perhaps a word from this side might be opportune, if only to say that we are sorry we do not see altogether eye to eye with my noble friend who has just spoken. I hope that that will not be regarded on the same plane as some of the other differences which exist in my Party at this moment. We feel that this Amendment is misconceived. It really is an attack against the principle of the Bill—indeed, the noble Lord, Lord Conesford, made no secret of it. The basis of this Bill is that the trustees are to be given a discretion to invest as to 50 per cent., broadly speaking, in equities. If the noble Lord, Lord Conesford, had his way and, I imagine, the noble Lord, Lord Douglas of Barloch, as well, they would give the trustees complete freedom. That is exactly what this Bill is designed to prevent. If they had wanted to pursue that objection, their logical course, it seems to me, would have been to have voted against the Second Reading.
LORD DOUGLAS OF BARLOCH: Would my noble friend excuse me? I did not suggest that trustees should have complete freedom. All I was suggesting was that they should have freedom within the range of investments which are specified in Parts I, II and III of the First Schedule of this Bill, but not that they should be empowered to go outside into securities which are not even mentioned there.
LORD SILKIN: When I said, "complete freedom", I really meant that.

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That is what I had in mind. Both noble Lords complained that there was no logical basis, and no explanation, for the 50 per cent. If there is no logical basis for that, I really do not understand what can be the logical basis for dividing the fund into 87½ per cent. and 12½ per cent. The noble Lord gave no answer for suggesting 8 to 1 or 9 to 1. On the speech that he made it might equally have been 20 to 1.
LORD CONESFORD: I am grateful to the noble Lord for allowing me to intervene. The reason why I did not vote, or urge anybody to vote, against the Second Reading, was that the Bill improves the position that at present exists. As we have had to wait since 1925 for that, naturally I was in favour of the measure. I should have regarded any attempt to abolish the division altogether as hopeless. But I cannot see anything illogical in trying to a minimum that part in which the trustees cannot do anything at all to save trust fund in the event of inflation. The reason why I think one-ninth of the trust fund will not do harm is that it is almost impossible to imagine a case where something will not have to be done to provide enough current income for the life tenant.
LORD SILKIN: I do not know whether the noble Lord feels that he has answered the question as to his suggested division of the trust fund of 9 to 1. I do not feel that he has answered it to my satisfaction. I think we have to remember that, in the normal case, the creator of the fund will have complete discretion as to how his fund should be dealt with and he can say so in his trust instrument. This is designed for those who have not the knowledge or experience to speak for themselves. I think it would be presumptuous on the part of the Government to say to those people, "You must invest nine parts in equities against one part in fixed securities." That is the Amendment which the noble Lord is suggesting. I know the trustees can invest more if they choose. But this is what the noble Lord wants us to put in the Bill, and I think it would be presumptuous to do so.
In the vast majority of cases, people who make wills or create trusts get advice before they do so. The mere fact
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that they normally have to go to a solicitor to get the instrument drawn is an indication that they would normally it I cannot imagine any solicitor sitting down and merely drawing up an instrument exactly as he is told, without expressing some view on it if it seemed to be absurd. So we are dealing with a really exceptional case. In that exceptional case I think the indication of the Government that the fund should be divided equally between fixed-interests and equities is reasonable.
One need only look at what has happened in the past twelve months with equities to see that an investment in equities is not necessarily such a safe thing—even equities which would be included in the Schedules. I have had a look at the high and lower figures for 1960 in the Economist, as I suppose most noble Lords have done. The variation in one of the securities which would be covered in the Schedule is enormous. The variation is between 30s. and 19s. That is not exceptional by any means. I know others which are even worse. Therefore, you are not really safeguarding the trust by giving them the wider powers which the Amendment requires. It is very difficult to find a balance. Certainly 9 to 1 does not strike me as being any balance at all. On the whole, I think both the Government and the Nathan Committee have been wise in suggesting that it should be "fifty-fifty" as between fixed-interest securities and equities.
3.50 p.m.
THE LORD CHANCELLOR: I hope my noble friend Lord Conesford and the noble Lord, Lord Douglas of Barloch, will feel on reflection that there is a great deal more to be said for the provisions of the Bill than their speeches suggested. It has been put in the speech of the noble Lord, Lord Silkin, a moment ago. I should just like to sum up the matter, and I hope that my Amendment. I think the first thing we ought to do is to look at the difference which this Bill makes and compare the proposals in the Bill with the present range of authorized trustee investments. Hitherto a trustee confined to the trustee list has been compelled to invest in a comparatively narrow range of fixed-interests stocks, and of course this

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applies, as the last Amendment emphasised, to trustees who at present are limited in this way. After the Bill, apart from the 50 per cent. in equities they are able to select other investments from a wider range of securities, including, in particular, company debentures. I do not think either of the noble Lords have paid enough attention to that extension of powers on the narrow-range side. In view of that, I do not think that the first charge, that we have not followed an enlightened policy, is really a fair one.
,LORD CONESFORD: May I ask one thing of my noble and learned friend? The thing that worries me most is that there is nothing in the narrower range part as far as I can see—if I am wrong perhaps he can point it out—which is any protection against the depreciation of the pound. Is there anything in Part I or Part II of the First Schedule in which a trustee can invest the narrower part, which would not be threatened by the depreciation of the pound?
THE LORD CHANCELLOR: In the sense that it will have a fixed interest which is paid in pounds, then of course if the value of the pound goes down the true value to you of that amount goes dawn. But I should have thought, in the broader sense as to whether these securities would stand up against subsequent inflation, one could not give as easy an answer as that. One would have to consider the strength of the securities, but it must always have the first point which I made.
I have dealt with the matter from the point of view of the changes, which are great changes. Then I was going to look at it from the point of view of precedents. First of all, we have the Nathan Report. Up to to-day we have, or most of us have—I certainly have—paid great tributes to that Committee for the work they have done in this sphere; and I do not think it is a bad beginning, when you are looking for what are the precedents, to say that this is recommended by the Nathan Report. But it does not step there. As my noble friend Lord Dundee pointed out, and there has been no answer to this, it is the figure that has been chosen by Parliament itself in recent Sessions in adopting a limit on the investment of equities for local authority funds; they have adopted 50 per cent.
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I am sure that our colleagues and the Members of another place who deal with local legislation would not make too high claims for themselves, but I think we make fairly high claims for them; we are not bound by their modesty—at any rate those of us who do not sit on these Committees—and I think that is a very good test.
Then we have the third test of the Court of Chancery; the evidence on that point was that of my noble and learned friend Lord Cohen, and I think we shall all agree we could not have better evidence than that. My noble friend Lord Dundee made the point, which I am not sure if the noble Lord, Lord Douglas of Barloch, had appreciated, that it is not the desire of the Bill to limit, and there is nothing in the Bill which will in any way limit, the rights of the Court of Chancery or lay down a code of guidance to them. The Court of Chancery can deal with every case on its merits. As far as the precedents go. the Government are following them. Then I come to the point raised by my noble friend Lord Saltoun. With the greatest respect to him, I would say that his argument was really in favour of the Bill, because the more you increase the equities as the noble Lord., Lord Conesford, would suggest, the more you run into the difficulties Lord Saltoun has put up.
On the general question, of course, it remains a matter for the trustees. They must take and consider the advice and eventually they must do their duty within the framework of the Bill. But again I repeat—I apologise for repeating what my noble friend Lord Dundee said—that this is designed to cater primarily for the smaller trusts. They will, of course, have advice, but not advice of the same sort as is open to the larger ones. After all, we are by this Bill making a very big experiment and taking a very big step forward, and in those circumstances I think we ought to set a limit on the amount that they can invest in the risk-bearing securities.
I am very conscious that I have not added much to what has been said before, but I would ask my noble friend Lord Conesford to look back over the crisis difficulties, the tragedies of the past in investment, and to bear that in mind from this point of view. I do not

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want to arouse unhappy memories by mentioning names, but I am sure he must have in mind, as I have and other noble Lords have, examples of investments in which people invested on the best advice but the thing went wrong. I am sure that we are right in starting in this balanced way, and I hope that my noble friend on reflection will see fit to withdraw the Amendment to-day.
On Question, Amendment negatived.
4.0 p.m.
THE EARL OF DUNDEE THE EARL OF DUNDEE had given Notice of two Amendments to subsection (1), the first being to leave out "except as hereinafter provided The noble Earl said: This and the next two Amendments on the Paper have as their object to give a trustee more flexibility by allowing him to make compensating transfers between the two parts of the fund. May I just give your Lordships an example of how this power of transfer might be used? Suppose the trustee has divided the fund and has constituted the two parts, half in the narrower range consisting of £5,000 worth of Consols, and, in the wider range, £3,000 worth of equities and £2,000 worth of Colonial stocks which could be put into the narrower range. Suppose that some time later he decides that he would like to convert into equities £2,000 of his holding in gilts. He wants to do this by selling Consols, not by selling Colonial stocks; and as the Bill is at present drafted, he is precluded from doing this. The effect of the Amendment would be to allow him to transfer the £2,000 worth of Colonial stocks to the narrower-range part of the fund provided that he transferred £2,000 worth of Consols in the opposite direction. He could then sell the Consols which he transferred to the wider-range half of the fund and reinvest the proceeds in equities, thus achieving his objective.
Another reason for this Amendment is that it makes it easier to accept a later Amendment in the name of my noble friend Lord Hawke on the subject of debentures, as it will give a trustee an opportunity of transferring to the wider-range part of the fund any shares which he receives when the debenture has been converted. I beg to move.
Amendment moved—
Page 2, line 8, leave out ("except as hereinafter provided").—(The Earl of Dundee.)
LORD PETHICK-LAWRENCE: I should like just to ask one question. The word "value" seems to be one which is a little uncertain in its meaning. At the time when the two sets of shares were bought, the meaning, of course, would be perfectly clear; but as that time has gone by, when a transfer is made, is "value" to be taken at the face value, or at the purchase price, or at the price at the moment when it is proposed to make the transfer? It seems to me to be somewhat difficult, without some interpretive words, to know what is intended by the Amendment.
THE EARL OF DUNDEE: The position is that when you make your division, to begin with the two halves must be of equal value. After that, if one half goes up and the other half goes down it is not necessary to adjust them. But if an exchange is made an equal amount of value must be transferred from each side to the other at the time when the exchange is made.
LORD PETHICK-LAWRENCE: What I am anxious about is this: that the wording of the Amendment is not fully adequate to express that, because the value might be misunderstood. It may be taken at the market price at the time the transaction takes place. Perhaps the noble and learned Viscount the Lord Chancellor will help. I should have thought that the words were ambiguous.
THE EARL OF DUNDEE: We will certainly look into the matter and make sure that the words of the Amendment give effect to our intetntion. I think they do, but we will look into it.
LORD SILKIN: If it merely said "equal value at the time of the transfer" or words like that, would that not do?
THE EARL OF DUNDEE: That is certainly our intention. So far as I know, the present wording would give effect to that, but I will make sure that it does.
LORD HAWKE: May I say that this is the type of phraseology which is causing great puzzlement among all the people who will eventually have to compete with the Bill? That is why there

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are so many doubts expressed as to what the Bill really means.
On Question, Amendment agreed to.
THE EARL OF DUNDEE: I beg to move this Amendment.
Amendment moved—
Page 2, line 10, at end insert ("unless either—

(a) the transfer is authorised or required by the following provisions of this Act, or

(b) a compensating transfer is made.

In this section 'compensating transfer ', in relation to any transferred property, means a transfer in the opposite direction of property of equal value.")—(The Earl of Dundee.)
On Question, Amendment agreed to.
THE EARL OF DUNDEE: I beg to move this Amendment.
Amendment moved—
Page 2, line 15, after ("shall") insert ("either be transferred to the wider-range part of the fund, with a compensating transfer, or").—(The Earl of Dundee.)
On Question, Amendment agreed to.
4.5 p.m.
LORD HAWKE LORD HAWKE moved, in subsection (3) (a), to leave out "that part of the fund" and to insert:
"whichever part of the fund its nature would entitle it to belong".
The noble Lord said: This Amendment deals with a particular small point of which I think the authors of the Bill may well have been legitimately in ignorance. It deals with the question of certain types of rights issues which are offered to the shareholders of some investment trusts. Very often, these rights consist of a parcel of preference shares and ordinary shares offered in one block, and the purpose is not so much to upset the gearing of the trust as to keep the fixed-interest and the equity in line. But sometimes, in the case of one or two trusts, they habitually make to the holders of the ordinaries an offer of a parcel of debenture stock and ordinary shares. As the Bill stands, if the holder of the ordinary shares takes up his rights which consist partly of debentures, so far as I can see he will have to put the debentures in the wider part of his trust, thus taking up space in the wider part which could legitimately be used to help equities. If the principle of my Amendment is accepted, then the combined parcel of rights will be divided between
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the two parts of the trust according to the nature of the two investments accepted. Again, I am quite sure that my wording is wrong; but that is the principle I should like to see embodied in the Bill, and I shall be interested to hear whether my noble friend is prepared to accept that principle. I beg to move.
Amendment moved—
Page 2, line 23, leave out ("that part of the fund") and insert the said new words.—(Lord Hawke.)
THE EARL OF DUNDEE: I think that subsection (1) (a) of this clause as it stands is consistent with the basic principle of a once-for-all division of the fund. Property which is generated internally as from a rights issue accrues to that part of the fund which generates it, and the rights issue is not an exercise of right or remedy out of the shares. In the case of an issue which was not a free issue, if a certain amount of cash had to be paid—possibly a good deal less than the market value of the shares which were being given for it in order to take up an issue—then, so far as additional cash is concerned, that would be regarded as a new investment altogether, and it would have to be treated in exactly the same way as if the investment had been made from funds which were added to the trust. Of course, the trustees might decide to sell part of their rights in order to give them enough credit to take up the remainder without paying anything at all. If the Amendment were accepted a trustee would be able to invest some of the narrower-range part of his fund in, say, convertible debentures, in the certain knowledge that at some later date this would result in a transfer of property from the narrower-range to the wider-range part of the fund, and in this way the wider-range pant of the fund could be progressively augmented at the expense of the narrower-range part of the fund, and the principle of the division of the fund into two equal parts would be undermined. I hope, therefore, that my noble friend will not press his Amendment.
I know that it is a matter which is not immediately easy to understand, but I believe that the Bill as it stands now carries out the principles of division on which it is based; and I do not think that any addition to one part, of the fund which was entirely generated from

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funds held in that division would in any way prejudice the ability of trustees to hold the full amount on the wider-range half of the fund in equities. If desired, the debentures could be sold and converted into equities and would not have to be transferred to the narrower-range part of the fund.
LORD SILKIN: I do not know whether the noble Lord, Lord Hawke, had in mind the kind of case where, a decision having been made and the fund having been divided into two equal parts, the fund of the wider range comprises perhaps certain stock on which rights are given to acquire further stock at a very favourable price. Trustees would be precluded from taking advantage of that, once the division is made, because they would have no funds with which to acquire those rights, however favourable, except by disposing of stock in the narrower range—and that they would be precluded from doing, having made their choice. I imagine it was that kind of case, among others, that the noble Lord. Lord Hawke, had in mind, and if so I have considerable sympathy with him. I do not know whether the noble Earl would consider that kind of case. It would arise strictly in the narrow case of rights becoming available and being offered to holders of existing stock; and that is usually on advantageous terms. Thinking aloud, I suppose one could sell those rights—
THE EARL OF WOOLTON: One could sell half of those rights.
LORD SILKIN: —but I do not know whether or not the noble Earl can say whether an exception could be made there.
THE EARL OF DUNDEE: I will gladly do what the noble Lord wishes me to do, because the possible permutations and combinations of changes of investment in circumstances of that kind are so numerous that I do not think one ought to say straight off that we should be unwilling to consider the hypothetical case which the noble Lord has just put. What I imagine would usually happen where there was a very favourable rights issue would be that, if the trustees had no cash available to take up those rights, they could sell other securities in the
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wider-range part of the trust to get funds with which to take up those rights. I believe the noble Lord, Lord Silkin, envisaged a possible case where trustees might not even be able to do that, and he wanted to know whether it would be possible to find some other way of getting funds temporarily out of the other half of the trust. I will certainly look into that and see whether it is possible.
THE EARL OF WOOLTON: Surely the trustees would sell half the rights and take up the rest.
THE EARL OF DUNDEE: I believe I mentioned in my original reply that selling half the rights was a course trustees would be likely to follow. It is one very obvious possibility. I thought the noble Lord, Lord Silkin, had in mind the possibility that the new rights issue might be so favourable that it would not be right for trustees to sell half the rights. I thought he wanted the Government to look into the possibility that trustees might be deprived of the power to do something which was much more favourable to the beneficiaries of the trust than selling half the rights.
LORD SALTOUN: There is a lot in the Bill about division of the funds. but I cannot find any provision which deals directly with the case where trustees have to realise funds to meet either taxation or some charge put upon them by the instrument under which they act. What I should like to see in the Bill—and perhaps the Government would consider it—is a provision that where such a case occurred the trustees should have absolute discretion as to the fund, whether wider-range or narrower-range, from which they raised the money. provided that if it was raised from the narrower-range securities only, the trustees should be bound within five years to reimburse that fund from the wider-range fund. That would avoid the trouble of which I spoke on the previous Amendment, and it would. I think satisfy me.
THE EARL OF SWINTON: I hope that my noble friend will look at this point again. The wise investor naturally goes for sound investments where he believes there is likely to be capital appreciation; and that is just the kind of company one

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wants to encourage people to invest in—companies which do not distribute a large proportion of their profits but plough back a large proportion into reserves. In the ordinary course of events those reserves are capitalised and distributed. Supposing a trustee holds 1,000 ordinary shares in a company which offers a very generous bonus issue with no payment at all—perhaps of another 500 shares. I take it that the trustee could take that up because there is no cash involved. That is a very sensible thing to do. The issue of rights shares to shareholders on generous terms enables. more capital to be raised while, at the same time, giving what is really a generous cash bonus. It seems to me that quite a lot is involved here. In the case of a free issue of bonus shares, I think the: trustees would be able to take them up. In the case of the rights issue on very 'generous terms the trustee will not be allowed to do so unless he can borrow from the bank, which he is unlikely to be able to do, or sell shares from that particular section of the trust.
THE EARL OF DUNDEE: I do not think this is illogical because trustees can do what has been suggested by many of us—that is, sell part of their rights, leaving themselves with enough to take up what is left of the new shares, which would be the equivalent of their accepting the benefit of the rights. The balance which they may have to pay in order to take up the whole of the new rights ought properly, I think, to be regarded as an entirely new investment, and it should be legally regarded as such under this Bill. The situation I promised to look into was whether, if the trustee thought this new investment (which must be treated as an investment) was so exceptionally good that it was the duty of a prudent trustee to do everything be could to take it up) that could, or should, be made a little easier, without undermining the principles of the Bill.
LORD HAWKE: I started off on a very particular point which, so far as know. applies only to the issue of one or two particular investment trusts, and it seems to have developed into a wider argument which is yet another argument for my case that the Bill is so obscurely drafted that no one really knows what happens under it. We have rather lost
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sight of my particular case, which, is the parcel of ordinary shares plus debentures—in other words, what would normally be held, the former in the wider half and the latter in the narrower half—offered as a right to holders of shares held in the wider half. Wherever the cash comes from to take it up a matter which I should have thought was to some degree relevant—it seems to me anomalous if, when the cash conies from the wider half, we are going to end up with a situation in which debentures have to he held in the wider half. I thought the wider half was entirely for equity securities. But I am in very deep waters indeed on a rather minor point, and I hope that the noble Earl will have a really good look at it, because if he could work the thing in connection with convertible debentures I am sure he could work it with this particular type of case. I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
4.21 p.m.
THE EARL OF DUNDEE: The object of lines 29 to 36 on page 2 is to ensure that as far as possible when property is taken out of a trust fund half should come from the narrower-range part and half from the wider-range part. That. of course. may not always be possible. For instance, if you have to take £8,000 out of a trust whose total value is £10,000, and if the value of the narrower-range part was only £3,000 and the value of the wider-range part £7,000, it would clearly be impossible to withdraw £4,000 from each part. This Amendment allows a trustee to withdraw a lesser amount from the narrower-range part. In the example which I quoted. the trustee could withdraw £3,000 from the narrower-range part and £5,000 from the wider-range part. But suppose the value of the narrower-range part was £7,000 and that of the wider-range part only £3,000. Then, in order to get £8,000 from the fund the trustee would have to take more from the narrower-range part than out of the wider-range part. That is what the clause as at present drafted prohibits. The Amendment rectifies this deficiency and allows the trustee latitude if the amounts standing in either the narrower-range part or the wider-range part of the fund are insufficient to permit of the withdrawal being apportioned equally between the two parts.
Amendment moved—
Page 2, line 33. leave out from ("that") to end of line 36 and insert ("so far as the value of the property belonging to each part of the funds permits. the decrease in the value of the fund due to the taking out of the property is divided equally between the two parts of the fund").—(The Earl of Dundee.)
On Question, Amendment agreed to.
LORD HAWKE LORD HAWKE moved to leave out subsection (4) and to insert:
"(4) Where after any such division as aforesaid property is taken out of a trust fund and the value of the narrower range part of the fund is thereby decreased by more than that of the wider range part of the fund then no further property shall be taken out of the narrower range part of the fund until by transfer of property from the wider to the narrower range part of the fund or by other means the value of the narrower range part of the fund hears the same ratio to the value of the wider range fund as it did before the property was taken out of the fund".
The noble Lord said: We now come on to a point which is a matter of some importance and principle. My noble friend's Amendment No. 7 makes clear the intention that whenever money has to be found from a trust fund, liquidation should take place equally from the narrow and wider parts. The intention of my Amendment is to deal particularly with the question of death duties. I want to make it possible for trustees to take the money from either side of the fund as they think fit, provided it is replaced under some arrangement. The trustees who have powers to hold equities, in some cases to-day hold gilt-edged as well, particularly with a view to this death duty problem.
Nobody knows when the time of death is going to arrive and it is very often important to get probate, and something that can be sold quickly and easily is desirable in many trusts. Nobody will know what markets will be like. There are some cases of fortunes which have melted away while selling was taking place for probate. Sometimes, of course, the equity market will be very bad and, equally, on occasions the gilt-edged market is very bad. Sometimes it will be difficult to sell some of the wider-range investments, particularly if there is rather a lot in one company. It is essential, I believe, that trustees should have some freedom for manœuvre.
I do not suggest that trustees should use it as a method of removing securities out of the narrower-range part of the
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fund for ever, but that there should be an arrangement whereby they can overrun on the narrower range and replace in due course. I am not wedded to any particular method of replacement but I believe that they must have temporary freedom. This business of having to sell "half and half" could be extremely embarrassing at times, and I hope that my noble friend is going to give a sympathetic reply to this point; even though, of course, I realise that my Amendment as drafted obviously could not be accepted.
Amendment moved—
Page 2, line 29, leave out subsection (4) and insert the said new subsection.—(Lord Hawke.)
LORD SALTOUN: This is really in essence what I asked for before, and I apologise for having mentioned it before. What my noble friend Lord Hawke said would completely satisfy me. There is, however, another case which might possibly occur and for which I think the Government have some sympathy. There may be cases (I have not sufficiently thought one out) where the wider division consists largely, or almost entirely, of shares in a family business. In a case like that it would be very inequitable to force the family to sell its business rather than to sell securities which probably have been accumulated with a view to paying death duties. That point also should be considered.
THE EARL OF DUNDEE: This Amendment does not set any specific limit to the period during which a trustee would be required to restore the balance between the two parts of the fund. Unless the need arose to make a further payment, the state of unbalance might continue for a good many years. Moreover, the Amendment visualises that the balance between the narrower-range and wider-range parts could be restored or partially restored by means other than a transfer. That might, indeed, happen if, after a preponderance of equities had been withdrawn, the property remaining in the wider-range part of the fund appreciated. But in that case the debt due from the wider-range to the narrower-range part of the fund would never be discharged.
As the clause is drafted it is not so entirely inflexible as one might think at first sight. For example, if a payment

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fell due at a time which was not propitious for selling fixed-interest investments, then there is nothing in the Bill which would prevent the trustee from raising the whole of the money by selling equities provided he made an appropriate transfer of fixed-interest stocks to the wider-range part of the fund as required by Clause 2. Admittedly, there is not the same flexibility if the trustee wishes to raise all the money by selling fixed-interest securities, but this could not be achieved without giving trustees a degree of latitude which might jeopardise the whole basis of the Bill. And, while we entirely sympathise with the feelings of my noble friends who wish to give more latitude in this respect, it is very difficult to see how it can be done without enabling the trustees to dispense entirely with the narrower-range half of the fund and to keep whatever may be left in the wider-range half only. I hope, therefore, that my noble friend will not press this Amendment. I entirely understand the reasons why he has moved it, but I do not think his object could be achieved without destroying the "fifty-fifty" basis of the Bill.
LORD SALTOUN: May I ask the noble Earl to consider this case rather carefully? Take the case of a manufacturer who owns a family business, who has accumulated a large fund in Government stocks to meet death duties, and who dies intestate. There arises precisely the case that I am envisaging. In that case, according to this Bill, it seems to me that the family will have to part with a large proportion of their own shares in the family business in order to meet death duties, instead of meeting the death duties out of the Government stocks which have been accumulated for that purpose. Believe me, that is the kind of situation which arouses really deep and bitter resentment and gives rise to very strong feelings. And one can understand it when a man and his family have built up a successful business which is prospering.
THE EARL OF DUNDEE: That would arise only if he had placed the family business, or a pant of it, in trust before he died. If he merely died intestate, without having made a trust, Ms executors could sell everything except the family business, and would not be affected by this Bill at all. This Bill applies only
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to trusts which have been made under the Trustee Act, 1925.
LORD SALTOUN: I am much obliged.
EARL FORTESCUE: I was concerned some years ago with a case which I think is rather apposite to this discussion. There was a very large trust in which I was concerned, amounting to something over £1 million. The policy was to have it built up for grandchildren. The life tenant was extremely elderly; and the investments consisted of a big block of town property, with the remainder largely invested in investment trust company ordinary funds. The town property had to be sold, though I cannot remember exactly why. Anyhow, there was an enormous amount of money derived from investments in the trust and, in view of the life 'tenant's age (he was over 90), the trustees, very rightly, decided to put the money into Victory Bonds, which, as your Lordships probably know, can be used for paying death duties at 100 if they have been held for six months. Anyhow, the trustees put the whole of this new money into Victory Bonds. The life tenant died within a year, and the Victory Bonds were tendered en bloc and paid the entire death duties of the trust, thereby leaving the investment trust company ordinary stocks, which it had been the policy to buy for [the grandchildren, intact. If that trust bad been subject to what we are now discussing—"fifty-fifty", or equal portions—only half the Victory Bonds could have been used for death duties, and the remainder would have had to come out of the proceeds of sale of the investment trust company ordinary stocks, which would have defeated the whole object of the trust.
THE EARL OF DUNDEE: I am most interested in what my noble friend has just said. To begin with, I think that if this trust held real town property, and also a large number of equities, it must surely have been a trust instrument which was not confined to the trustee investment list of 1925. Therefore, it would seem to me that this Bill would not affect it, because the object of this Bill is to release trusts whose instruments hind them to the trustee investment list of 1925 to the extent contained in the Bill. Of course, there are a great many trusts—and, in the opinion of many of your Lordships, much wiser ones—which

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do not limit the trustees' powers of investment to the trustee investment list of 1925.
LORD HAWKE: I thank the noble Earl for his explanation, and I am glad to hear that, in that part of the Bill which I am afraid I still do not understand, there is some slight relief. His explanation was to a large extent a technical one setting out the dire consequences of my Amendment, and for that reason, of course, I could not possibly try to force its inclusion in the Bill, particularly as this Bill is starting in your Lordships' House and this is the first time the Government have had an opportunity of seeing what people think about it. But I would seriously suggest to him that, if the Government wish to find a method by which trustees can have some flexibility in taking money out of a fund for the payment of death duties, it is not beyond the wit of the draftsmen to devise such a method with appropriate safeguards—for instance, that the money must be restored to the other side of the fund within a certain period, or something of that sort. I feel that this is a very important point for all trustees who have to meet death duties. I think the Government will find that the point will be discussed (certainly on Committee stage) in another place as well, and therefore it will be an advantage to everybody if, by the Report stage, they can devise some method for providing this extra degree of flexibility. I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
THE EARL OF DUNDEE: I understand that one or two of your Lordships would like to say a word on the Question, That the clause stand part. As I think it has been arranged through the usual channels that we should interrupt the Committee stage of this Bill at about half past four and proceed with the Weights and Measures Bill, perhaps your Lordships will be agreeable to leaving, until we next meet, the Question, That the clause stand part. I would then now beg to move that the House be now resumed.
Moved, That the House do now resume.—(The Earl of Dundee.)
On Question, Motion agreed to.
House resumed accordingly.

WEIGHTS AND MEASURES BILL [H.L.]
4.38 p.m.
Order of the Day for the House to be again in Committee read.
Moved, That the House do now resolve itself into Committee.—(The Earl of Dundee.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD AILWYN in the Chair.]
Clause 19:
Keepers of public equipment to hold certificate of competence
19.—(1) No person shall attend to any weighing or measuring by means of equipment available for use by the public, being a weighing or measuring demanded by a member of the public and for which a charge is made, other than a weighing or measuring of a person, unless he holds a certificate from a chief inspector that he has sufficient knowledge for the proper performance of his duties; and any such certificate shall cease to have effect at the expiration of two years from the date when it was granted.
(2) Any person refused such a certificate as aforesaid by a chief inspector may appeal against the refusal to the local weights and measures authority for the area for which the chief inspector was appointed.
LORD LATHAM LORD LATHAM had given Notice of four Amendments to subsections (1) and (2), the first being, in subsection (1), after the first "certificate" to insert "of competence". The noble Lord said: The four Amendments standing in my name and in the name of my noble friend Lord Silkin really run together. I seek to substitute the words "of competence" for the words appearing in the clause—namely, that the person in question
"has sufficient knowledge for the proper performance of his duties…"
This is not a mere question of nicety of language: the rubric already uses the words, "certificate of competence". Knowledge, of course, is not necessarily synonymous with competence. A person may be full of knowledge, yet not necessarily competent to apply it to the exercise of the duties cast upon him. I suggest, therefore, that the rubric is more comprehensive and more correct than the words appearing in the clause.
Amendment No. 41 is intended to bring into consideration not only the

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competence of the person in question but also his character. A chief inspector, it is submitted, should not be compelled to issue a certificate to a person of known bad character, however competent and with whatever knowledge he may be endowed. Similarly, it is considered that he should have authority to revoke an existing certificate. Under the terms of the clause as drafted, the only test which a chief inspector can apply is whether the applicant "has sufficient knowledge for the proper performance of his duties". There are circumstances, and there are Persons, who not only have sufficient knowledge but have too much knowledge; and it is that excess of knowledge which is dangerous. Provided that there is a right of appeal to the weights and measures authority, it is submitted that a chief inspector should be entitled to refuse or revoke a certificate for the reasons specified in the Amendment Which I have put down.
There is a precedent, I am informed, for the phrase "any sufficient reason relating to the applicant person". That is to be found in Section 21 (1) of the Pharmacy and Poisons Act, 1933, which empowers a local authority, on similar grounds, to refuse to enter an applicant's name on the poisons list entitling him to sell poisons. It is submitted that the power to refuse or to revoke should reside in the chief inspector for reasons other than the narrow reasons of insufficient knowledge for the proper performance of duties. Surely, the question of character and of personal status is important in connection with the work of the chief inspector and the grant of a certificate by him to any person who is to use that certificate, and the powers under that certificate, in his dealings with the public. In those circumstances, I hope that the Government may see the justice of the proposal and find themselves able to accept. I beg to move the first Amendment.
Amendment moved—
Page 18, line 12, after ("certificate") insert "of competence").—(Lord Latham.)
4.44 p.m.
THE EARL OF DUNDEE: As the noble Lord pointed out in moving his Amendment the distinction between the word "competence" and the phrase proposed to be left out is not entirely a verbal one. especially as it has some
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bearing on what may happen afterwards under the noble Lord's further proposals. Possibly the word "fitness" might be more appropriate here—I do not know. It seems to me that, taking the noble Lord's various Amendments together, he and his friends think it is desirable to make it possible for the chief inspector both to refuse and to revoke a certificate if a person has already perpetrated a fraud. I think the noble Lord desires to give anyone who is refused a certificate, or at any rate, anyone refused a certificate on grounds other than fraud. a right of appeal to someone on some tribunal other than the local authority employing the chief inspector whose decision is being appealed against.
This present Amendment is connected with that problem in so far as it widens the basis of the certificate. If the words now in the Bill were left in, it would be difficult to revoke the certificate later. Noble Lords want to widen the basis of the certificate so as to enable a chief inspector to refuse a certificate on grounds other than the applicant's actual knowledge of his duties. I think these problems are inter-connected, and it seems to me they are also connected with the last two Amendments to Clause 21. I have considered the content, and what I understand to be the purpose, of these Amendments, and the Government would be glad to think about them, consider them afresh, and bring their proposals forward at a later stage of the Bill. I hope that the noble Lord will agree to this and that he will not press the present Amendment, and that similarly the last Amendment to Clause 21, in the view of the assurance which I have given of consideration of the whole matter, will not be pressed.
LORD LATHAM: In those circumstances, I beg leave to withdraw the Amendment standing in the name of my noble friend Lord Silkin and myself to Clause 19. I will not move Amendments Nos. 40, 41 and 42.
Amendment, by leave, withdrawn.
4.48 p.m.
LORD BURDEN LORD BURDEN moved, in subsection (2), to leave out all words after "refusal to" and to substitute:
"a magistrates' court as defined in the, Magistrates' Courts Act, 1952".
The noble Lord said: This Amendment, and others standing in my name on the

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Marshalled List, had been put down following a detailed examination of the Bill by a committee of weights and measures inspectors, and in the opinion of these officers (who will, after all, have to give effect to the provisions of the Act) the Amendments will help them considerably in their day-to-day work.
Dealing with the first Amendment, in Section 124 of the Magistrates' Courts Act, 1952, a magistrates' court is defined as meaning:
"…any justice or justices of the peace acting under any enactment or by virtue of his or their commission or under the common law".
Under subsection (2) of Clause 19 of the Bill as it stands at present, the only appeal available to a person who is refused a certificate from a chief inspector of weights and measures as to his "sufficient knowledge for the proper performance of his duties" is to the local weights and measures authority. Thus, the local weights and measures authority would, in effect, sit in judgment on a dispute between one of their own officers and a private individual. I respectfully submit that such a method of appeal does not give persons seeking certificates of competence a sufficient measure of protection against what they may consider bias. The Amendment proposes to substitute an appeal to the magistrates' court.
Just one further point. At goods stations, British Railways have weighbridges which are used by the public. It is not at all unusual for the weighbridge man to have been one who has been injured in the service of British Railways in the performance of other duties. He may have lost an arm or a leg or an eye. If he were refused a certificate and my Amendment were accepted by the noble Earl, he would be helped in the magistrates' court by his trade union. It is obvious, too, that the reasons for a certificate of non-competence would have to be stated in court. I think that the old saying, that justice must not only be done but be seen to be done, will not be met if in effect a council is judge in its own case. While I would not reflect for one moment on the ability and wisdom of the over-
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whelming majority of our local councillors, yet I think it is quite wrong to put them in a position where they would have to decide between a private individual, and may be that individual's livelihood, and one of their own officers. I beg to move.
Amendment moved—
Page 18, line 18, leave out from ("to") to the end of sub-clause (2) and insert ("a magistrates' court as defined in the Magistrates' Courts Act, 1952").—(Lord Burden.)
THE EARL OF DUNDEE: As the Bill now stands, in Clause 19 it is provided that any person refused a certificate by a chief inspector may appeal against the refusal to the local weights and measures authority for the area for which the chief inspector is appointed. This Amendment seeks to replace appeal to the local authority by appeal to the magistrates' court. It is a difficult point. It may be true that a local authority may not be fully competent properly to determine a case of this kind, but the same argument may apply to a magistrates' court. There are not magistrates' courts in all parts of Great Britain, so that in its present form the Amendment would not be effective. I agree that the merit of appeals to the court would be in the fact that the courts are clearly seen to be impartial. Probably the alternative might be an appeal to the Board of Trade, who would be the only expert authority superior to the chief inspector; but that again may put the appellant to unnecessary trouble and expense. As the Government have undertaken to consider the last four Amendments in the name of the noble Lord, Lord Latham, what we should like to do is to consider this matter together with them and see whether we cannot draft something which would be more acceptable to all reasonable points of view. If the noble Lord will agree to that course, we will do our best to see what can be done.
LORD BURDEN: In view of that assurance, for which I am grateful, I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
Clause 19 agreed to.
Clause 20 agreed to.
Clause 21:
Offences in connection with public equipment
21.—
(2) If any person appointed to attend to weighing or measuring by means of the equipment in question—

(a) without reasonable cause fails to carry out the weighing or measuring on demand; or

(d) fails to make a record of the weighing or measuring, including the time and date thereof and, in the case of the weighing of a vehicle, such particulars of any load on the vehicle as will identify that load,

he shall be guilty of an offence.
(4) If the person bringing the article, vehicle or animal for weighing or measuring, on being required by the person attending to the weighing or measuring to give his name and address, fails to do so or gives a name or address which is incorrect, he shall be guilty of an offence.
4.55 p.m.
LORD SHEPHERD: This is a relatively simple Amendment, which seeks, in my judgment, to make the provisions of paragraph (d) a little clearer. The clause lays down the offences that a person may commit by failing to carry out his duty. Under paragraph (d), he commits an offence if he fails to take a record of the weighing or measuring of a load, including the time and date of the measurement or weighing. As the words are in the Bill, it appears that the person weighing need take particulars only of the load. I have been approached by a number of authorities, who say it is essential that the person weighing or measuring a load should take a record of the number of the vehicle loaded. On many occasions a local authority has been approached months after the actual weighing or measuring and asked for details, and unless it is laid down that the person who is performing this duty has in his records the vehicle number, so that not only the load but also the vehicle can be traced, it is difficult to proceed. I beg to move
Amendment moved—
Page 19, line 7, leave out ("any load on the vehicle as will identify that load") and insert ("the vehicle and of any load on such vehicle as will identify that vehicle and that load")—(Lord Shepherd.)
THE EARL OF DUNDEE: Clause 21 (2) (d) makes it an offence for a duly appointed public weighing-machine keeper to fail to keep a record of weighing of vehicles, including the time, date and particulars of the load. I think it is not likely that a person charged with the responsibility of keeping records of weighing would fail to note particulars sufficient to identify the vehicle, but it seems to me that the Amendment of the noble Lord, Lord Shepherd, makes what is intended more clear. If the noble Lord would agree to substitute the word "thereon" for the words "on such vehicle", which is purely a matter of drafting, we should be willing to accept his Amendment.
LORD SHEPHERD: I am most happy to accept the noble Earl's suggestion.
Amendment, by leave, withdrawn.
Amendment moved—
Page 19, line 7, leave out ("any load on the vehicle as will identify that load") and insert ("the vehicle and of any load thereon as will identify that vehicle and that load").—(Lord Shepherd.)
On Question, Amendment agreed to.
LORD LATHAM: This Amendment seeks to tighten up the provisions of this clause. As drafted, the clause requires the making of a record (net, as the noble Earl said, "the keeping" of a record) of all weighings or measurings by public equipment. It makes no provision for keeping such records,. This seems to us to be a serious omission. There is nothing to prevent a person responsible from destroying the records as soon as he made them. Once the record is made, he has complied with the. Act. If the records are to be of any value, they should be available for examination, and the period of six months suggested in the Amendment is thought not to be unreasonable. I hope that, in the circumstances, the noble Earl will be able to accept this Amendment as he has done the previous one. I beg to move.
Amendment moved—
Page 19, line 8, at end insert ("or fails to keep such record or particulars for a period of at least six months from the date of the weighing or measuring").—(Lord Latham.)
THE EARL OF DUNDEE: The Amendment which the noble Lord proposes would follow on from subsection (2) (d) of Clause 21, which makes it an offence

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if a person in charge of public weighing or measuring equipment fails to make a record of all weighings or measurings carried out by his equipment, or if he fails, when weighing the vehicle, to record such particulars of the load on the vehicle as will serve to identify that load. The noble Lord's Amendment proposes that it should also be an offence for that person to fail to keep such record or particulars for a period of at least six months from the date of weighing or measuring. I think it is desirable that records should be kept We do not think it would be fair or right in principle to impose the obligation upon that particular person, because the keeper of the record will be only an employee, whose responsibilities may be terminated at a date much earlier than six months after conducting, a particular weighing or measuring operation.
I am, however, grateful to the noble Lord for drawing our attention to the deficiency in subsection (2) (d) as at present drafted. The provision for keeping such records has been found under many local Acts to be useful in tracing back the perpetration of frauds—for example, where the driver of a vehicle has falsified the public weighing ticket after his vehicle has been weighed. I agree with the noble Lord that this subsection really needs to be rounded off by specifying the period during which such records must be preserved. I think the responsibility must obviously be placed upon the persons who are responsible for providing and maintaining the equipment. and not upon those who are merely operating the equipment. If the noble Lord is disposed to withdraw the present Amendment, I will undertake to move an appropriate Amendment giving effect to that at a later stage.
LORD SILKIN: I am sure my noble friend will be willing to do that, but when the noble Earl looks at this matter again, will he look at the period? On further consideration, I feel that six months is perhaps not long enough for the records to be kept, especially if they are going to be kept by the local authority and the responsibility is going to be upon them. Disputes arise long after six months. I am thinking not so much of offences as of disputes between individuals. If the noble Earl would
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consider whether there should not be a longer period, I should be grateful.
THE EARL OF DUNDEE: In drafting the Amendment I will certainly take account of the new consideration which the noble Lord has just put forward.
LORD LATHAM: I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD LATHAM: I understood the noble Earl to say that Amendment No. 44 was one of the two Amendments to Clause 21 which the Government were proposing to reconsider.
THE EARL OF DUNDEE: I was thinking of Amendments Nos. 45 and 45A; but if the noble Lord wishes to relate the two things, I should be glad to listen to what he has to say.
LORD LATHAM: In those circumstances, I think it is necessary for me to say something on Amendment No. 44. This Amendment has for its purpose the strengthening of the clause and to ensure that it will be an offence to issue a weigh ticket unless the weighings described therein have been carried out by or under the supervision of the person issuing the ticket. It is considered to be most desirable in the interests of ensuring that public weighing and measuring equipment is not used by unauthorised persons, and in preventing the issue of fictitious tickets in respect of weighs which have not in fact been made. Those submissions of abuse and the facilities for abuse are by no means an exaggeration. Anyone who has had anything to do with the operation of weighing machines knows the abuses which have taken place and the facilities which exist for such. I hope, therefore, that the Government may be able, in the consideration generally of offences, to accept this Amendment. I beg to move.
Amendment moved—
Page 19, line 17, at end insert ("or (c) any person appointed to attend to weighing or measuring by means of the equipment in question delivers a statement in writing of any weight or other measurement not being the result of a weighing or measuring carried out by him or under his supervision").—(Lord Latham.)
THE EARL OF DUNDEE: I have considered the purpose of this Amendment carefully and sympathetically, but I do not think its practical effect would be

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helpful. It seems to me to involve an interference that is not really warranted in the internal running of a public weighbridge or similar type of equipment. Clause 19 ensures that whoever carries out the weighing must be a qualified person holding a certificate from a chief inspector, so that no question can arise of: he keeper wrongfully delegating his duties to an unqualified person. I he only practical effect. which the Amendment would seem to have would be to prevent one qualified keeper who had carried out the weighing but whose spell of duty had just come to an end from asking the other qualified keeper who was taking over from him to deliver the weigh ticket to the person whose goods had been weighed. I think it would be unfair and unnecessary to render the first keeper liable to a fine of £20 for having done so. I hope that the noble Lord will agree that this would not be an improvement to the Bill.
LORD LATHAM: The noble Earl has suggested an easy method of trafficking in these certificates or in the weighing notes on the ground that one person's turn of duty is about to end and, therefore, he hands over to somebody else who takes his place. I should have thought also that the fact that that person has a certificate, if he were—I do not say evil-minded but (shall I say?) ill-minded, would enable him to carry out the abuse with much more facility and much less risk of being caught. It seems to me that what the noble Earl has said is in the complete terms the Amendment, and I hope he will reconsider the matter, at all events, and not dismiss it, if I may say so with respect, in a somewhat cavalier fashion.
THE EARL OF DUNDEE: I certainly do not wish to dismiss any of the noble Lord's Amendments either in a cavalier fashion or in any other fashion which is derogatory to the noble Lord, but I still feel that all that would happen would be to prevent the perfectly innocent and legitimate action of one qualified keeper handing over to the man who was relieving for the next spell of duty and asking him to deliver the weigh ticket to the person whose goods had been weighed. They are both qualified keepers under this Bill, and I think it would be an unnecessary interference on these proceedings to levy a fine of £20 on the one who had
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the certificate handed over to him, when both of them knew it was perfectly all right. I will certainly look at it again. but I do not feel it is necessary in order to protect the public.
VISCOUNT ALEXANDER OF HILLSBOROUGH: I want to look at this point carefully, because as the noble Earl knows, later on in the Bill we come to the Schedules, and they have a great many details in (them. In the Seventh Schedule, dealing with the solid fuel regulations, the question is bound to arise as to how, when and to whom tickets of the public measurement shall be issued. I hope that the noble Earl will again give early consideration to this matter, because it might tally in with the matters in the Schedule to which we are likely to object if they are left as they are now. I cannot see that his answer, that this possible action lies only between the period of handing over from one official to another, is really a final statement on the matter. Later on in the Schedules you are, in certain circumstances, giving exemption from issuing a ticket to whoever is in charge of the weighing instrument, and you are throwing the responsibility upon a carter or a transport driver or something of that sort. All these things must be looked at. I am sure the noble Earl's Department is doing that, but I want the noble Earl to know that I am not satisfied, and that I will certainly raise the matter again on the Seventh Schedule.
THE EARL OF DUNDEE: We are trying to improve the Bill, and I will consider what the noble Viscount has said with special reference to the Schedule.
LORD LATHAM: May I say, in that connection, that the noble Earl and the Government should not decide on the merits or otherwise of this Amendment by reference to the fact that, if it were accepted, then the person guilty of an abuse would be liable to a fine of £20. The measure of the punishment for the abuse or the offence is not important; it is the offence which is important. When you have decided that it is an offence, then the question as to what should be the penalty for that offence is an entirely different matter. I hope the Government will not decide this on the fact, as the noble Earl twice said, that if this Amendment were accepted the person would be liable to a fine of £20. That may

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be the case or it may not. Provision can be made in the Bill for the appropriate fine for the offence, if found to have been committed. It ought not to determine acceptance of the Amendment itself.
THE EARL OF DUNDEE: I quite agree that the amount of the fine is not the final consideration. What I meant to suggest to the noble Lord was that the circumstances which I have described are not an offence, and ought not to be an offence.
LORD LATHAM: I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
LORD LATHAM: This Amendment, if I may say so with respect, is to improve and make more comprehensive the provisions of the clause. It seeks to insert the words:
"or knowingly makes any false statement or pretence touching the weighing or measuring".
It is also to improve the subsection which deals only with the specific offence of failing to give a correct name and address. There is nothing about what happens if the man gives an incorrect one, or knowingly makes any false statement other than the incorrect name and address—for example, a statement in connection with the weighing or measuring; a false statement as to the tare weight. It is in order to improve and strengthen the provisions of Clause 21 that I have put down Amendments Nos. 45 and 45A. I beg leave to move the first of these Amendments.
Amendment moved—
Page 19, line 22, after ("incorrect") insert ("or knowingly makes any false statement or pretence touching the weighing or measuring"). —(Lord Latham.)
THE EARL OF DUNDEE: I think this Amendment is unnecessary, in view of the provision in subsection (3) (b) of this clause, which provides that
"any person who commits any fraud in connection with the weighing or measuring…shall be guilty of an offence."
This applies to the user of the equipment as well as to the keeper who operates it, and it will cover any case in which the user knowingly makes a false statement or pretence in connection with the weighing or measuring which enables a
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fraud to be committed. I think the language of subsection (3) (b) is perhaps more precise, and that it covers the case sufficiently.
LORD LATHAM: If I may say so, subsection (4) of Clause 21 specifically mentions "a name or address which is incorrect". It says nothing about any other statement, so far as I can see.
THE EARL OF DUNDEE: I am sorry. I was referring to a few lines higher up. Subsection (3) (b) says:
"any person commits any fraud in connection with the weighing or measuring…shall be guilty of an offence".
LORD LATHAM: Is it held that the words "any fraud" comprehend giving the wrong name or address?
THE EARL OF DUNDEE: Yes.
LORD LATHAM: We will look at the point between now and Report stage. In those circumstances, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
5.17 p.m.
LORD SILKIN LORD SILKIN moved to add to the clause:
"(5) In addition to any penalty which may be imposed in respect of any offence under subsection (2) or subsection (3) of this section. it shall be competent for the Court if they think fit to suspend or revoke the certificate granted, pursuant to section nineteen of this Act, to the person convicted of such offence."
The noble Lord said: this Amendment is almost self-explanatory, and I will not insult the intelligence of the noble Earl by trying to explain it. But I think it is desirable to give one or two instances of the kind of frauds that have been committed, and which I am advised have been duly punished, where the inspector is still employed as an inspector. It will be obvious from the nature of these offences that such a person ought at any rate to have his certificate brought under consideration, with a view to his being deprived of a certificate by the court if that were thought desirable. One was falsifying weigh tickets on behalf of a seller of coal so that a hospital was defrauded of ten tons of coal per week for two years. How that could happen I do not know, but that is what I am told. Another is giving weigh tickets for goods which have never been weighed and also giving

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blank tickets to a coal merchant to be used in delivering coal short-weight to farmers. I have a list of other types of offences. In all these cases, the person has been convicted, but under the clause as it stands it would not be possible to take away his certificate. The purpose of this Amendment is to enable the court in a proper case to do so. I beg to move.
Amendment moved—
Page 19, line 23, at end insert the said subsection.—(Lord Silkin.)
THE EARL OF DUNDEE: This is an Amendment to which I referred when I was replying to Amendments Nos. 39 to 42 of the noble Lord, Lord Latham. I think it is connected with the general question of the grant and revocation of certificates, of appeal and of penalties which we should like to reconsider together, and to which I have already spoken. We will include in our reconsideration this Amendment, together with the first four on to-day's Marshalled List, if that is agreeable to the noble Lord.
LORD SILKEN: I beg leave to withdraw the Amendment
Amendment, by leave, withdrawn.
Clause 21, as amended, agreed to.
Clause 22:
Transactions in particular goods
22.—
(4) The Board may make regulations—
(5) The following are exempted from all requirements imposed by or under this section, that is to say—

(d) any assortment of articles of food pre-packed together for consumption together as a meal and ready for such consumption without being cooked, heated or otherwise prepared;

THE EARL OF DUNDEE: This is one of a series of corresponding Amendments, some of which I have already moved, beginning with that to Clause 15 at page 16, line 9. The effect of this Amendment is to enable the Board of Trade, by order, to make provisions for a document containing a statement of the quantity of goods expressed in such a manner as may be specified, to be associated with those goods when they are
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exposed for sale as well as when they are offered for sale. I beg to move.
Amendment moved—
Page 20, line 9, after ("offered") insert ("or exposed").—(The Earl of Dundee.)
On Question, Amendment agreed to.
THE EARL OF DUNDEE: This is a drafting point. The term "the buyer" has no specific connotation here, and "a buyer" is all that is meant. I beg to move.
Amendment moved—
Page 20, line 10, leave put ("the") and insert ("a").—(The Earl of Dundee.)
On Question, Amendment agreed to.
5.21 p.m.
LORD SHEPHERD LORD SHEPHERD moved, in subsection (4), after paragraph (a) to insert:
"(b) as to the size, shape, material, colour or quantity, in any particular, of the container, wrapping or packaging material associated with any goods sold, exposed or offered for sale, or in possession for sale, or in possession for a purpose of trade; and for prohibiting the use of deceptive containers or wrappings on or with any such goods. 'Deceptive' for these purposes being such containers or wrappers which falsely or misleadingly suggest that the quantity of the goods which they contain or with which they are associated is substantially greater than in fact it is;
(c) as to the marking, or oral disclosure to a prospective buyer, or the price per unit or weight or measure, as the case may be. in conjunction with any goods sold, exposed or offered for sale, or in possession for a purpose or trade. and as to the manner of such marking".
The noble Lord said: On behalf of my noble friend Lord Chorley and my noble Leader, I beg to move this Amendment. Clause 22 covers the goods of the Fifth, Sixth, Seventh and Eighth Schedules. Subsection (4) gives the Board power to make regulations, and paragraph (a) states that these may require containers to be identified by the stamping of their weight or capacity. My noble friends feel that this should be strengthened by giving the Board of Trade a power to lay down regulations on the size, shape and material of containers that may be used on certain items. It has been felt that as we are now going to make it possible legally for one-third of a pint of milk to be sold, this might well be confused with the half-pint bottle or container. If the Board should feel that there is confusion in the public

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mind, the Board could make regulations requiring the one-third pint or the half-pint to be contained in a clearly identified container. The same would apply to any item sold In packages of various sizes. That is covered by the first part of paragraph (b) of our Amendment.
The second part of our paragraph (b) is perhaps the more important. It widens the Bill to some degree, but I think it has very great merits. We are seeking that the Board of Trade should have definite powers whereby they can prohibit the use of deceptive containers. The actual wording is:
"Deceptive 'for these purposes being such containers or wrappers which falsely or misleadingly suggest that the quantity of the goods which they contain or with which they are associated is substantially greater than in fact it is."
I understand there are many items on sale to-day, particularly in the supermarkets, where a customer has to buy the package and is well misled as to the quantity of merchandise that is in the container. In fact I have in my pocket (I regret that the Rules of the House do not make it possible for me to pass it round) a plastic container very nicely made up for ladies' face creams. This container has been cut away to expose the inner part, and you will find that the container in fact would contain only half the amount of face cream that the person who was buying the article in the shop would be led to believe. In my judgment this is grossly misleading; it almost amounts to deceit. I believe that the Government, if they wish, should have powers—and remember that we are asking only that they should be given permissive powers—where they believe there are clear cases where the public are being misled by the presentation of an article, to stop it.
Paragraph (c) of our Amendment states that when an article is on offer in a shop the price per weight—say, 1s. per 1b., or 5s. per 1b.—should be clearly stated. Even if the article says that the package has 5 oz. in it and the price on it, that price should clearly have some relation to the weight and value of the article. I believe that if the Government will see fit to accept this Amendment, which I now move, it will seriously strengthen the Bill and give greater consumer protection, which I
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think is the desire of all Members of your Lordships' House. I beg to move.
Amendment moved—
Page 20, line 45, at end insert the said paragraphs.—(Lord Shepherd.)
LORD ST. OSWALD: Even after the explanation by the noble Lord, there are some details of this very extensive Amendment that I do not yet understand. What containers are substantially greater than the goods, and what containers are insubstantially greater? Noble Lords may have noticed that at a later stage of the Bill three noble Lords are moving another Amendment to delete the word "substantially", although in this other context its meaning is a good deal easier to interpret than I find it in this Amendment. Nor do I find it easy to see why the words, "or in possession for a purpose of trade" have been added. But those are details and I should not wish to cloud the real issue. I mention them at the beginning to show how hard I have found it to get to grips with certain parts of the noble Lord's Amendment. With regard to the parts that are clear, this would go further than the war-time and post-war controls on packaging which were introduced and retained to save imports of raw materials. Under the terms of this Amendment, these very tough and sweeping regulations could be brought in without reference to Parliament and would merely be subject to annulment.
There are two main weapons the Bill wields against deception in packaged goods. The more general one is the requirement to mark the containers with the quantity of the contents. The special one, which is most useful with some of the goods which the consumer is constantly buying, is the requirement to make up the goods in specified weights. With these safeguards, it seems to me that only the dullest witted housewife could be deceived. We all have at least one housewife in our lives and I assume they do command our respect. I am sure it is not the purpose of the three noble Lords opposite to suggest that the average housewife is in any degree moronic, but I feel that any Government which accepted this Amendment would be open to that charge. I hope that is not the Machiavellian purpose behind it.

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On reading this Amendment through, I naturally had to take into account the possibility of some hidden danger to the consumer ignored by the Bill and invisible to me, but the noble Lord seemed to concentrate on pointing out the danger of make-up cream, which I am bound to say I had not considered. I am not sure whether ladies are more easily confused in buying make-up than in buying groceries; I should not have thought so. He mentioned milk, which had not occurred to me either; that I must look into as an example. Certainly it is no good quoting detergents and flake breakfast cereals, which are now required to be made up in specified weights or fixed quantities. Subsection 2 (a) of this clause accomplishes all the Amendment could achieve against the selling of short weight. As to loose sales, wherever goods are required to be sold by weight, the seller can price his goods only in terms of the lawful units, which are familiar to the housewife. It may be argued that with the packaged goods it is open to him to sell in terms of unfamiliar units, say, of 12 oz. But I suggest that the unexpectedness of all that would put the consumer on the alert.
The noble Lord suggested mentioning the price per unit, the price per lb. for for instance—he put it at the simple example of 1s. per 1b. At first sight this has a certain attraction for the consumer. One imagines that on the day these regulations became law the packer would be standing by and would have packaged his goods into nice, neat and descriptive weights at convenient prices—let us say, packages of 7¾ oz. selling at lid. That is a rather more likely arrangement than a package selling at 1s. per 1b. The packets would be, say, 7¾ oz. at 11d., and 6 oz. at 9d. The price per 1b. would not then be 1s. but would be 22 22/31d. for the first product and 24d. or 2s. per 1b. in the second. These prices would be duly marked on the, package. The customer would be happy in the knowledge that he or she could judge the cost at a glance to the last: thirty-first of a penny. But three months later there might be a reduction of price. The 9d. packet might be increased in weight from 6½ oz., by the packer wishing to squeeze competitive advantage while continuing to sell his goods at a round price. Attention would be drawn to this magnanimity by the packers' placards in the shop
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window. But the price per 1b. would now be 23 1 /25d. and his packets would be misleadingly marked, and he would be committing an offence under this regulation.
Noble Lords may say that this is too much of a refinement of mathematics; they will almost certainly say that it is too fine to be attributable to me. In that they will be right. But i4 is a fact that competition and precise costing is of growing importance in British industry and is something to be commended. We want to encourage the manufacturer to pass on the effect of economies to the consumer. We do not want him to say that, much as he would like to do this, the Weights and Measures Bill, 1961, has made it too difficult to do so. This has been a lengthy Amendment, rather lengthily argued against. Regulations about the minutia of trading are proposed which would give almost unlimited scope for small technical offences, thereby driving honest traders "round the bend". It might create one corner of a bureaucrat's paradise but a purgatory for nearly everyone else. The multiplicity of harmless offences which would come into being would have little bearing on consumer protection generally, let alone the weights and measures aspect of consumer protection. I cannot advise the Committee to accept it, and perhaps the noble Lords concerned would see their way to withdraw the Amendment.
VISCOUNT ALEXANDER OF HILLSBOROUGH: I must say that, having listened to that most rapid, lengthy brief-reading that the Minister has given, I am utterly unimpressed by the generality of the arguments used. but I promise him that I will read them very carefully in print. It is quite impossible to follow all these details in a reading from a brief at such a pace that one could not follow with any sort of consecutive thought each of the arguments used. However, having had a word with one or two of my colleagues, the general impression upon these Benches is that the type of argument used in this official brief seems to be just the type of argument which has always been used for decades, and even centuries, against the introduction of any real and necessary reform, and I do not think that the Government are going to be able to stand firmly for very long on the stand that apparently they have been

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taking this afternoon. Certainly, when the Bill gets to another place a great deal more will be said about it.
There seems to be an assumption that the housewife as a purchaser is such an intelligent and well-trained person in all these matters that she is not likely to be misled about this, that or the other. But of course, all housewives are misled in these days; and in regard to the item mentioned by my noble friend Lord Shepherd, namely, cosmetics, face cream and the like, how easily they can be misled! I have here a small fancy box which is beautifully prepared, with a nice lot of gilt all down the side, and it is labelled "Skin food". What would any ordinary housewife think? The ordinary housewife uses this sort of thing to-day. These things are much more in general use than they were years ago. What would they think they are likely to find inside this container? You see the height of it. It has been cut down so as to show the level of the bottom of the container. Inside there is a paper enclosure which reduces the total volume of the cosmetic contained to little more than half of the cubic capacity which, from a visual examination, one would have assumed would be contained in it. Is it not a basic cause for such an Amendment as has been proposed by my noble friend?
Let me say that this is not just an idiosyncrasy produced by Socialist Members of these Benches in the House of Peers—not at all. There is no idiosyncrasy in this. It is the considered view of the Consumer Council of the British Standards Institute. If I am correctly informed, the British Standards Institute is of Government origin. It is much approved of by the Government. It is known to operate with the help of nearly all the traders concerned, who now go to them for advice and for measurement and qualities, and that kind of thing. It is they who are really briefing us upon this Amendment. I should have thought, therefore, that instead of having that long list of official equivocation that has been read out to us this afternoon, the Government would have paid some attention to an Amendment which comes with such force from the Consumer Council emanating from the British Standards Institute, a Government
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appointed authority. I suggest that unless the Government begin to change their attitude on this matter they are in for a pretty bad time on this particular clause.
As to the point about milk mentioned by my noble friend Lord Shepherd, we shall, of course, be dealing with certain Amendments on one-third pint, a half pint and all the rest of the volumes of milk; but I am not aware of any real case against the seller of milk at the present time on the basis that we are arguing to-day, except perhaps that there might be some variation in the new type of automatic machine-selling in regard to certain types of containers. Nevertheless, while that is being sold, and however it is offered or exposed for sale, there ought to be proper safeguards for consumers. We can argue details about external markings and the like when we come to it; but in the meantime I want the noble Lord the Minister who answered just now to know that we are totally dissatisfied with the kind of answer that has been given, and I hope my colleague will continue to press the point.
LORD AMWELL: While I am in general agreement with the terms of the Amendment, I wonder whether it would not be wise for it to be withdrawn for further consideration until the Report stage. The question of protecting the housewife, or any consumer, for that matter, is a very complicated one. I have some knowledge of one industry—the tobacco industry—where there is in course of the selling and stocking in shops a tremendous amount of dehydration. One can buy a one-ounce packet of tobacco in which a tremendous quantity of that one ounce is simply non est—it does not exist.
I am wondering whether within the compass of an Amendment of this character something can be done on the possibility of certain firms—and it is a possibility—over-watering their stock for the purpose of being able to sell it at a normal state of moisture, and gaining the advantage of having the moisture in at the beginning. I do not know whether it is possible in the case of tobacco, for instance, to compel the firms to find out the general average of dehydration. I know that dehydration occurs in that

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commodity and it must occur in many others, too. The warmth of the shop and changes in atmospheric conditions and the rest of it reduce the real quantity and weight of the article that is sold, although there is supposed to be one ounce, or one pound, or whatever is the specified quantity. I put that point to those responsible for this Amendment and I rather think it might be as well if it were just withdrawn until the Report stage for a little further consideration.
LORD STONHAM: Whilst I entirely agree that many commodities lose weight by evaporation, I hardly think that that is relevant to this particular Amendment, although we shall be discussing that particular point at great length later on. I was glad to hear, when the noble Lord the Minister started speaking, some evidence that he had done his homework on the Amendment. I am not in a position to dispute his sums, although am quite sure he got his arithmetic right. But I did snatch out of the air one or two phrases he uttered, and I should like him to have further regard to one or two of the points raised if this matter is to he considered further, as it must be.
The noble Lord started by complaining that my noble friend Lord Shepherd, who moved the Amendment, had not explained exactly what he meant in saying that containers were substantially greater than their contents. The noble Lord complained about the use of the word "substantial", but Her Majesty's Government can hardly complain if we on this side use in our Amendment exactly the same words as are used in the Bill nor can they then invite us to explain them. It is certainly true that at a later stage we are proposing to insert "50 per cent." instead of "substantial", but the Government are not entitled to complain about our use of terms which they have in the Bill which they put forward.
LORD ST. OSWALD: I hope I did not suggest I was making any complaint. I was just describing my perplexity, no more. On the use of a word such as "substantial", I would suggest that in some contexts its meaning is clear and easy to interpret, and in others not; and I was suggesting that in this context we found it hard to interpret.
LORD STONHAM: if the noble Lord is puzzled by our use of the word "substantial" he can well understand that we are still more puzzled by his. But no doubt the explanations will come later. Then he put forward as a reason for rejecting the Amendment that only the dullest-witted housewife would be deceived. I believe that even the brightest-witted housewife would be deceived by the kind of package which my noble Leader produced and these manufacturers intentionally deceive. They sell a large pot at perhaps double the price of a small pot; but that does not mean that the net contents of the large pot are any greater. The manufacturers of detergents sell a "giant" size but when one opens the "giant" size package and, with a ruler, measures from the top of the package to the top level of the contents, one finds perhaps 1¼ in. or 1½ in. of space. That is a deliberate intention to deceive the housewife.
The noble Lord said that later in the Bill there will be a provision requiring soap powders, scouring powders and presumably detergents to have the net weight marked on the package. What if one manufacturer is selling a half-pound net weight of detergent in a package 6 in. by 2 in. by 7 in. tall while another manufacturer is selling exactly the same weight in a package 6 in. by 2 in. by 9 in. tall? The second manufacturer is attempting to deceive the housewife by offering what is apparently bigger value—a larger packet. It is precisely that sort of thing that my noble friend's Amendment seeks to deal with. It does not attempt merely to stop it but to give the Board of Trade power to make regulations which will make that kind of thing an offence. The noble Lord suggested that we were asking in this Amendment for powers greater than any given during the war. I am not specifying the powers at all. I am merely asking that the Board of Trade should have power to look at this matter and not merely to specify weights but to lay down that these deceptive packages, these grossly inflated outer coverings, should not be used in order to deceive the public. That seems to me a most natural, fair and proper thing to do; and I hope that when the noble Lord again comes to deal with the subject he will deal with those points, because we regard this as a very serious and very necessary Amendment.
LORD MANCROFT: This is not quite so easy a matter as it seems. I believe there is a good deal in what the noble Viscount, Lord Alexander of Hillsborough, has said on the specific example he has brought before the Committee—the cosmetics box. This is particularly well known at the moment because it has been much in the general and technical Press in the last few days. I believe the noble and learned Viscount slightly underestimates the cunning of the housewife. I do not believe there were many housewives who did not previously know that cosmetic pots had a false bottom, because there is hardly one alive who has not at some stage dropped one through the washbasin, broken the washbasin and the pot and made the discovery of the noble Viscount. What worries me about the Amendment is the word "deceptive" and that is why I could not possibly vote for such an Amendment. I quite agree that there are occasions when obvious and blatant deception is practised. Equally, there are many cases—and as a practising shopkeeper I could give you many if I so wished—in which containers, particularly in the pharmaceutical and medical world, have of necessity to be considerably bigger than their contents, because of shrinkage and other perfectly genuine reasons. For example, large blocks of cotton wool have of necessity to be put at the top of some containers to prevent technical deterioration. One would not call that deception, and in many cases the containers carry a perfectly obvious explanation of that fact. That is the other extreme. Somewhere in between the two should lie, I should have thought, a happy medium on which we could agree.
I sympathise with the point of view that my noble friend has put forward in resisting this Amendment, but perhaps if he is looking at the matter again he will see whether there may be some compromise whereby the genuine disparity between a container and its contents for perfectly legitimate reasons is considered on a different basis from the obvious "fiddle" to which the noble Viscount, Lord Alexander of Hillsborough, has quite rightly drawn attention. I am sure that, somewhere, there is a compromise that can be reached.
5.50 p.m.
THE DUKE OF ATHOLL: Everyone so far has spoken of the housewife. I should like to say a word for children, who, after all, are probably not quite so intelligent as the experienced housewife shopper. I remember when I used to buy, as I still buy, boxes of chocolates. When I bought pre-packed, mass-produced boxes of chocolates I had enormous disappointment when I found, first, a layer of shavings between the top and bottom layers; and half the bottom layer was invariably shavings as well. It seems to me that this is an absolute attempt on the part of manufacturers to sell their particular brand by making the contents look much bigger than they are. The fact that they weigh a pound I regard as immaterial. At the age of seven one has no more idea what a pound in weight of chocolates is than one has now; but at seven one is much more disappointed when there are not so many chocolates in the box as it seems there should be. Therefore I think there is something in the substance of this Amendment. I feel, however, like other noble Lords who have spoken, that probably it does not quite hold water. I therefore wonder whether the Government could reconsider the matter and try to find some form of words which would both satisfy noble Lords opposite and enable them to achieve the desired effect.
LORD HAWKE: I think that the Government would get a good deal of support from this side of the House if they could manage to find some sort of Amendment which would produce the right compromise. I feel that my noble friend's reply and undertaking "to see" was a very valid one. I think also that the second half of the Amendment looks at first glance, at any rate, widely impracticable. But I should have thought it was possible to find some sort of wording which would catch the people who are producing the false containers. If they are not committing a fraud in the sight of the law, they certainly have fraud in their hearts and commit it in the sight of God. As for the housewife, she may be very clever, but some of these devices can match any cleverness she could possibly have. And, after all, there is a limit to the intelligence of any housewife, otherwise why would she pay

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such an enormous price for what I often believe to be little more than scented butter pats.
LORD SILKIN: I think that enough has been said from both sides of the House to justify the noble Lord in undertaking to look at this thing again. I want to say only one or two things. First, of course, it is possible to criticise the terms of this Amendment, and the noble Lord took up some time in criticising the wording and saying it was unintelligible. I do not think it is unintelligible if one reads it carefully. But even if it were—I have had to say this so many times on other Bills—we on this side are handicapped in preparing Amendments. We have not the skill and services of Parliamentary draftsmen; and even Parliamentary draftsmen go astray. as is evidenced by the fact that the noble Earl has put down quite a number of Amendments to his own draftings because on second thoughts they have been found defective. I hope we shall never be accused on an Amendment of had drafting. I think we shall be judged by the substance of what we are after, and I do not think there can be any doubt, from all the speeches we have heard, as to what is the substance in this case.
Secondly, the noble Lord, Lord St. Oswald, referred to the "dullest-witted housewife". If there are such people, those are the people who need most protection. The shrewd housewife who knows exactly what she is doing, who examines everything and investigates everything, can probably look after herself. But there are housewives who cannot; who do not know how to look after themselves. We are looking after them and also the children; and the noble Duke., the Duke of Atholl, is quite right to put in a word for the younger members of our population.
There are two other things I want to say. This Amendment is not mandatory on the Government; it seeks merely to confer upon them powers, if they should think it necessary, as I am sure they will, to make regulations. If they do not take these powers they will find later that they will need to make regulations and that they have not the powers. I think that as a precautionary measure it is wise to have them. Lastly, the noble Lord spoke in rather derogatory terms of the Negative Resolution: that
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even if we had these regulations they could be dealt with only by a Negative Resolution. Will he kindly have a word with his noble friend who spent a good deal of time on another measure in justifying the Negative Resolution and saying that that was just as effective as the other type of Resolution? I am referring, of course, to the Patents Bill. The Negative Resolution, of course, is not as effective as an Affirmative one. But, in a case like this, if the regulations were not satisfactory then somebody would stand up in this place or another place and raise a debate on it, and at least we should have a discussion on it. For all these reasons I hope that, without committing themselves as to the wording, or even as to its sense, if they cannot make sense out of this Amendment, the Government will undertake to look at the whole question of making this kind of regulation.
LORD SHEPHERD: May I thank my noble friends and noble Lords opposite who have spoken on this Amendment? I beg the Government this evening to say that they will seriously look at this question. I am sure they must realise the feeling of the House in this matter. We have talked this evening only about the protection of the consumer. The noble Duke spoke of children, and we all sympathise with him. But there is somebody else we must also sympathise with and protect, and that is the decent manufacturer who tries to trade honestly. If we allow people to trade by deceit we are weakening the position of the decent manufacturer. Therefore I think that the Government should take powers in this Bill so that they are able to stop any infringement of decent, honest trade.
LORD BURDEN: I hope that the Government will look at this matter very carefully and that, if they do not accept the Amendment, at a later stage we shall have something further before us. I hope. too, that they will cover a case which I have in mind, which is particularly related to the sale of canned fruit. It is quite possible for two tins of canned fruit—say, apricots, or any other fruit one cares to mention—each to weigh 1 1b or 2 1b. But when one tin is opened (to deal with 1 1b. tins) one may find in it 16 oz., or thereabouts, of fruit, while in the other tin there will be 14 oz.

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of fruit and 2 oz. of juice. Obviously, the manufacturer who tins a quantity of juice as against a quantity of fruit is taking an unfair advantage over his competitors and is able to sell at a slightly lower price. I was hoping that the word "deceptive" would cover that particular point. If one hopes to buy 16 oz. of tinned apricots one does not want 14 oz. of apricots and 2 oz. of juice. So I hope that the Government will give this matter very careful consideration.
6.0 p.m.
LORD ST. OSWALD: To go back some time in this small debate, I am extremely sorry that I spoke too fast. When I stand up, I always speak on the assumption that the House is waiting for me to sit down again as soon as possible; and I am very grateful indeed to my noble friend Lord Stonham (as I always regard him) for noticing the fact that I have in fact taken quite a lot of trouble over this matter. I spent most of my week-end reducing the great wealth of information given to me by my advisers into something which I hoped was a lucid description of our attitude on the Amendment.
Regarding cosmetics, the Bill does not in fact cover cosmetics, but the clause does enable the pots of cosmetics to be marked with their weight by Order, and will even enable the Board, by Order, to require face cream to be pre-packed in specified weights—an ounce or two ounces. Still on the subject of face cream, in the unlikely event of either the noble Viscount the Leader of the Opposition or myself buying such a thing for ourselves (I do not think he looked any more at home with it than I should, if I may say so), I feel quite certain that, although we might buy one pot, we should not buy another pot unless we were satisfied that the contents of that pot, and not merely the size, were satisfactory to us; and the fact is that ladies who use cosmetics go on buying these pots, having discovered what is inside them.
Several noble Lords have spoken on this Amendment, all of them very kindly and some of them more critically than others. I will certainly undertake to look at all that has been said and, with my colleagues, will see if something can
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be done, taking into account powers which exist in the Bill and which possibly have not been taken into account by those who have spoken so far. But I will look into it, and will do what I can about it with that in view.
LORD SHEPHERD: On that promise, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
6.3 p.m.
LORD LATHAM LORD LATHAM moved, in subsection (5). to leave out paragraph (d). The noble Lord said: Clause 22 relates to transactions in particular goods, and subsection (5) provides for exemption. Paragraph (d) reads as follows:
"any assortment of articles of food pre-packed together for consumption together as a meal and ready for such consumption without being cooked, heated or otherwise prepared;"
The purpose of the Amendment is to leave out that exemption. I think it was the late A. J. Balfour who once said that the resources of civilisation are inexhaustible; and, having regard to the debate which has taken place on the previous Amendment, the need for this Amendment would seem to me to be very strong and almost unanswerable. For instance, are potato crisps with salt an "assortment of articles of food" exempt from the clause? Or butter and biscuits? Or cereal with a small packet of sugar? All these, and infinite variations and varieties and, shall we say, permutations can be imagined in which goods which otherwise should be subject to the provisions of Clause 22 will be exempt.
Now I hope we shall hear nothing about the housewife being able to protect herself. I was struck by the last remark made by the noble Lord. It seemed to me that he was saying that because the cheated continue to be cheated it was proper that they should go on being cheated. This Amendment is designed to strengthen the position of the Board, which has powers to exempt any specified goods which it is thought may properly be exempted; but the words of paragraph (d) as presently drafted are such as afford almost limitless possibilities of deception and abuse. I beg to move.
Amendment moved—
Page 21, line 26, leave out paragraph (d).—(Lord Latham.)
LORD STONHAM: Before the noble Lord replies, could I add to the list given by my noble friend in moving the Amendment by asking whether this paragraph would apply to strawberries and cream or strawberries and sugar? I do not want to anticipate a later Amendment, but it will be extremely important to the soft fruit trade if such combinations can be regarded as a meal that does not require cooking or anything else and if to add a packet of sugar would thereby exempt them from the purposes of the Bill.
LORD ST. OSWALD: This Amendment seeks to delete paragraph (d) of subsection (5), which exempts from the requirements of Clause 22 any assortment of articles prepared as a meal. I had visualised that as a packed meal. I am slightly at a loss as a result of the question by the noble Lord, Lord Stonham, because I do not see how you can pre-pack strawberries and cream.
LORD STONHAM: If the noble Lord will allow me, I would point out that strawberries are already in punnets. You have merely to put in a little cardboard carton of cream and put a little polythene cover over the top, and they are pre-packed and ready for consumption.
LORD ST. OSWALD: I am not trying to argue with the noble Lord. It strikes me as a bit messy; but I am not quite sure where we stand on that particular idea. I had not visualised strawberries and cream as coming under this Amendment, and I am telling the noble Lord now that I shall not be able to answer him. I am trying to answer the noble Lord, Lord Latham.
It seems to us that this Amendment, if carried into law, will put a most unfair burden on the packers of such an assortment. I will ask the noble Lord to consider, for example. a luncheon pack comprising a good helping of meat sandwiches, some biscuits, a portion of cheddar cheese and some tomatoes. By virtue of the relevant requirements of the Fifth Schedule, this pack might have to be marked with the net weight of the meat in the sandwiches, the net weight of the slices of bread if there are more than 10 oz. of bread and the net weight of biscuits. Also, in some way the quantity of cheese might have to be known to the buyer, as well as the net weight or
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number of the tomatoes. In that case, the only ray of hope for the wretched packer would be that he could offer the pack for sale in such a way that it fell within the dispensation afforded by the Ninth Schedule, in which case he could escape with the relatively easy requirement of marking the pack with the total net weight or the measure of its contents. This Amendment seems to us to be carrying consumer protection to the point at which it would give an annoyance to the consumer and a serious inducement to the trader to give up business altogether. Avoiding any further mention of simple-minded housewives, I would say that in this case we think that it carries the provisions further than they need be carried, and I would ask the noble Lord if he could see his way to withdrawing his Amendment.
LORD AIREDALE: Might I ask the noble Lord whether his paragraph (d) ought not to be amended to read,
"…for such consumption after purchase without being cooked…"
The noble Lord mentioned the sale of a luncheon pack consisting of, among other things, biscuits and meat. Biscuits and meat have to be cooked by somebody before they are consumed, and I think that paragraph (d) really means that the meal, in order lo fall into this paragraph, must be ready for consumption without being cooked by the purchaser before being consumed. I wonder if that point could be looked at.
LORD ST. OSWALD: Certainly it can be looked at, but I cannot go further than that today. I find it very unexpected.
LORD LATHAM: Would the noble Lord agree that this Amendment will be looked at in conjunction with the previous Amendment? It does go to the question of honesty—of honest trading.
LORD ST. OSWALD: The question is slightly different, I think, because I said that we could look at the first one to see if the various evils of the details were not covered by other powers incorporated in the Bill. In this case we think that it really is carrying the protection of the consumer to a far and impracticable point.
LORD LATHAM: That is precisely what the noble Lord said when he made his first speech in opposition to the previous Amendment. But after listening to argument, the Government have now agreed to reconsider the terms of the clause and of Amendment No. 48. I am suggesting that the next Amendment, No. 48AA, should be considered at the same time. It touches a similar question, honest trading, the opportunity for evasion, the opportunity for abuse. I do not believe that consumers are annoyed when the State, quite properly, takes steps to prevent their being cheated. I do not think they are annoyed; I think they appreciate it. Indeed, I think they expect it, and they are entitled to expect that the Government, representing society, should take such steps.
LORD HAWKE: I am lost in admiration for the ingenuity of the noble Lord, Lord Latham. This particular phrase certainly connoted to me more the railway luncheon basket or the office pack. To stretch it to cover all these other things leaves me lost in admiration at the noble Lord's ingenuity. As Dr. Watson said, "A great criminal was lost when Holmes was enlisted on the side of the law."
LORD ST. OSWALD: All I can say to the noble Lord, Lord Latham, is that I will willingly undertake to look at it again, but not because I am convinced by his argument. What I am hoping to do is to convince noble Lords who may bring up this point again that in fact powers do exist in other parts of the Bill to cover the fears they have about it. In face of the questions asked, I am anything but prepared to be didactic about it, but I still feel, with my noble friend behind me, that this includes only a relatively limited and restricted form of pre-packed luncheon. Possibly I am too narrow-minded about it, but on the principle of the thing I am bound to say that, although we are all out to protect the housewife and to protect the consumer, the fact is that we must stop short of "nursemaiding" and short of irritating the packer and the retailer.
THE EARL OF IDDESLEIGH: May I ask whether the noble Lord's advisers have gone carefully into the question of the meaning of "meal" in this sub-paragraph? The term "meal" has, I believe,
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given rise to quite a lot of litigation in respect of the sale of alcoholic drinks. It may be, of course, that I am quite ignorant, and that the term "meal" is now perfectly well understood; but I think that is a point on which the Committee might have some reassurance.
LORD ST. OSWALD: My noble and learned friend beside me tells me, to my great relief, that that is a point which should rightly be left to the courts.
LORD LATHAM: In conclusion, I must make it clear that I am not suggesting, as the noble Lord, Lord Hawke, apparently thinks is the case, the inclusion of any particular article within my Amendment. I am suggesting that the exemption granted under paragraph (d) should be removed because of the danger of its abuse.
LORD ST. OSWALD: Yes; I know that is what the noble Lord is seeking; but what I am saying—and perhaps I have not said it clearly enough—is that we are not satisfied that it should be removed.
LORD SILKIN: The noble Lord says that he is going to look at this point to see whether it is covered. I think it may be a reasonable compromise to require not only that the weight of the package should be set out, but also its contents. It must carry the Bill to an absurd conclusion to say that there might be a requirement to weigh the tomato, to weigh the meat, to weigh the bread, and everything else; but it would go a good way toward satisfying me, at any rate, if the contents of the package, as well as its net weight, were stated. Perhaps the noble Lord, in his consideration, will consider that possibility.
LORD ST. OSWALD: Yes, I will certainly consider that. But I think, if we could find the place, that we should find that the requirement, from which this particular paragraph exempts pre-packaged meals, is not simply the requirement to mention the contents; it also requires the mentioning of weight.
LORD SILKIN: But not the contents.
LORD ST. OSWALD: In that case I do not think the Amendment would achieve what the noble Lord, Lord Silkin, tells us is required. I did not want to suggest at any point that I was reluctant to look into this; nor did I

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want to suggest that the noble Lord, Lord Latham, had got me over on to his side. But we will certainly look at it again.
LORD SILKIN: The particular provision in which pre-packed goods are referred to is in the Fifth Schedule, at page 70. So far as I can see, there is nothing there about stating the contents and the net weight—the quantity.
LORD LATHAM: Then on the understanding that the matter will be looked into, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
6.18 p.m.
LORD DERWENT LORD DERWENT moved, in subsection (5), after paragraph (d) to insert:
"() the conveyance in a vehicle along any part of a highway of goods not in pursuance of a sale or agreement for the sale or carriage thereof."
The noble Lord said: Unfortunately, my noble friend Lord Jessel. whose name is down for this Amendment, was taken ill this morning, so for to-day and tomorrow, at any rate, I shall be dealing with his Amendments As I had a look at them for the first time only after luncheon to-day, I hope your Lordships will be indulgent with me if I am not very clear in my explanations.
This Amendment is exactly the opposite of the last Amendment moved by the noble Lord, Lord Latham: I want to put in another exemption. The powers which under this Bill are given to the Board of Trade to make orders and regulations are enormously wide; and Clause 22, in particular, is an extreme example of delegated legislation. It is right, therefore, that we should look at the purposes for which these regulations could be made. May I refer your Lordships to subsection (2) (h), under which the Board may provide that goods
"when carried in a road vehicle along a highway are accompanied by a document containing such particulars determined in such manner as may be so specified as to the weight of the vehicle and its load apart from any such goods."
The terms of this subsection are pretty wide when it comes to making regulations, but paragraph (h) could apply even to goods carried from one part of a firm's premises, across the road to another part of the same firm's premises, in its own
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vehicles. That would mean needless delivery costs and extra weighing appliances. The object of the Amendment is to exempt from the requirements of this clause movements of goods not involving any transactions in those goods. I hope that I have made it clear to your Lordships. I beg to move.
Amendment moved—
Page 21, line 29, at end insert—
("() the conveyance in a vehicle along any part of a highway of goods not in pursuance of a sale or agreement for the sale or carriage thereof.")—(Lord Derwent.)
LORD ST. OSWALD: The noble Lord's Amendment seeks to exempt the carriage of goods from the requirements of Clause 22 where the carriage is not in pursuance of a sale of those goods or an agreement to sell or carry. It is, however, only in an extremely limited field that the requirements of this clause would "bite" on such carriage. The great majority of the requirements relate, as your Lordships will know, to actual sales, or agreements for sale. The Bill does not "bite" upon the person moving goods, for example, from a factory to a depot, or from one depot to another.
There are, however, two special cases in the Schedules where obligations to carry a document are imposed upon a person carrying goods other than in pursuance of a sale or agreement to sell or carry. The first arises under paragraph 8 of the Sixth Schedule, which relates to sand and other ballast and, by virtue of Parts II and III of the Eighth Schedule, to other types of bulk commodities listed in those Parts. The reason for this provision is that the effective enforcement of the requirements relating to these goods which are being carried in pursuance of a sale is dependent on a somewhat elaborate procedure. Paragraph 8 requires that the person in charge of the vehicle shall be given a document containing a number of particulars, including the names and addresses of the seller and of the buyer. This enables the inspector who detects what he believes to be a fraudulent transaction to contact the principal parties involved and to ascertain all the facts of the case. It would be a serious loophole if, where a fraudulent lorry driver simply said to the inspector that no sale was involved, the inspector was not able to ascertain from such a document the name of the principal whose goods were being

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conveyed and to check with him whether or not the carriage was in pursuance of a sale.
The second case arises under paragraph 11 of the Seventh Schedule, and the reasons for it are much the same. It prevents fraud in the carriage or movement of fuel by providing that similar documents are required to be carried. Again, there would be a serious loophole if the lorry driver did not have to carry, when goods were being conveyed otherwise than in pursuance of a sale, a document which would enable the inspector to verify that there was in fact no sale involved. The effect of the Amendment would be to render inoperative these rather exceptional provisions and open up the loophole to which I have referred and thus weaken the process of enforcement. The Amendment would make it not only more difficult to protect buyers of these goods but also for the seller to safeguard himself against the action of a lorry driver, who might fraudulently dispose of the goods to his own advantage while they were being carried to the buyer. The Government hope that noble Lords will not press for the deletion of safeguards which will be most useful in the special cases to which they apply.
LORD DERWENT: If I understand the noble Lord aright—and I hope I shall be corrected if I am wrong—in most cases the regulations would not be made in these circumstances and it would not be necessary to carry a document. One of the cases where it would be necessary is sand, I notice. Suppose that sand extraction is going on and a road runs through the extracting site, does the noble Lord mean to say that every time a lorry is loaded and is taken over the road to the other part of the extracting site, a document must be carried and the material weighed? That is what I understood him to say.
LORD ST. OSWALD: So far as I know, that particular operation is not exempted at all, though I do not imagine that every journey across the road would require a special document. As I explained, these provisions are for the protection of honest people against the fraudulent carrying or transfer of goods by road by preventing the driver from being able to say to an inspector that they were not for sale.
LORD HAWKE: I am not sure whether I am right in this interpretation, but solid fuel would seem to include wood fuel. Suppose a general order was made that lorries containing wood fuel going on roads in the country must carry a "chit" of some sort, does this mean that when the owner of a wood is moving cordwood out of his wood to his own saw mill, his lorrymen will have to carry a "chit".
LORD ST. OSWALD: Quite clearly, it does not. When anyone is moving his wood from the wood to his own sawmill, he is certainly not required to carry a document of this nature.
LORD DERWENT: In view of this rather long statement, for which I am grateful to the noble Lord, and which I will read carefully in the hope that it is all right, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
6.28 p.m.
LORD STONHANI LORD STONHANI moved in subsection (5) to add after paragraph (d) the following new paragraph:
"() produce of any one or more of the following descriptions, that is to say, bilberries, blackberries, blackcurrants, brambles, cherries, cranberries, gooseberries, loganberries, mulberries, raspberries, redcurrants, strawberries and whitecurrants."
The noble Lord said: In moving this amendment, I am greatly heartened by the statement by the noble Lord, Lord St. Oswald, with which I was in full agreement, that the Government do not wish to go to such a length in protecting the consumer that it becomes an annoyance to the trader to the extent of forcing him to give up his business altogether. The soft-fruit growing industry will be precisely in that condition, if the terms of the Bill as they apply to soft-fruit growers are not amended.
I appreciate that the Amendment I am now proposing takes the soft fruit industry out of the Bill, but from my consideration of the matter there is no way whereby producers can stay in business and observe the conditions of the Bill. I do not see that the deletion of the soft-fruit industry from the effects of this Bill is going to harm the consumers in any way. The Bill as drafted appears to place on growers who pack soft fruit in punnets obligations which are extremely onerous, and indeed impracticable,

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having; regard to present practices in the industry and the many and extremely varied circumstances in which deficiencies in weight can occur after the produce leaves the grower. Fifty years ago soft fruit was packed in 8 rim peck strikes and containers of that weight, and it suffered seriously in condition: transport was slower; it came to the market in those large packages, and thence from market to retailer, was tipped out into the scale pan and sold in quantities of ½lb. and 1 lb., and by that time, particularly in some seasons, it was just a sticky, dirty mess.
Perforce through hardship, horticulturists have been compelled to improve their marketing conditions. Unfortunately, they have not reaped the benefit because, expressed as a proportion of the total output of agriculture, horticulture now is less than at any time in this century—it is now only some 9 per cent, of the total agricultural output—and they are in a difficult position. I am sure your Lordships will agree with me that we should not lightly do anything that is going to add: to their difficulties. To-day most growers pack soft fruit in punnets in the field. They just fill them up with fruit without weighing the contents; the punnets are then packed into market containers and they go straight to market. Although they are not weighed, the punnets in which they are packed are called in the trade, and even by the manufacturers of the punnets, ½ lb., 1 lb. and 2 lb. size, and the grower fills them. They are, of course, uncovered containers, but I am assuming that they will be regarded by the Government as pre-packed—and that is a point on which perhaps the noble Lord can enlighten me.
LORD ST. OSWALD: Would the noble Lord repeat that?
LORD STONFIAM: I am assuming that soft fruit picked in the field and filled into punnets in the field is regarded as pre-packed, although it is uncovered and it is just an open-top container. Since the fruit is harvested in that way, it would be quite impracticable to mark the weight on each individual punnet, because of the vast quantities which have to be handled. Any of your Lordships who knows the Wisbech area, where large quantities of strawberries are grown, will know that there is field after
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field with no buildings close by and no kind of convenience for what we normally understand by pre-packing. So it would be quite impossible to mark the weight on each individual punnet, and particularly in a short harvesting season, lasting perhaps only three or four weeks, and with the difficulties always encountered over getting sufficient labour for packing.
It is equally impracticable to weigh these punnets in the markets individually. For a single salesman sells perhaps tens of thousands of: punnets in two or three hours. It is no use suggesting that they can be properly weighed at the growing end; and equally, even if it were possible, it is idle to suggest that they will reach the market or the final retail point of sale in anything like the same weight. First of all, there is considerable evaporation. Soft fruit is 70 or 80 per cent. water, and 48 hours after it is picked it has lost 8 per cent. of weight. I do not want to deal with that particular point now, because it will come up on later Amendments, and I am not stressing it. What I am stressing is that the position in regard to soft fruit is not only different from that of any other commodity dealt with in the Bill, but is different from that of any other fruit or vegetable dealt with in the Bill. It is quite impracticable to weigh it in the market, because after it has left the grower deficiencies in weight can occur in all sorts of ways. Some of the fruit can be jolted out of one punnet into another; in certain kinds of weather some of the berries get mould over them, and they have to be picked out before the punnets become saleable; and loss occurs not only through spillage, but through pilferage from these open containers. So that the wholesaler or the salesman finds it, if not impossible, impracticable to weigh these punnets again.
Paragraph 3 (3) of Part VII of the Fifth Schedule requires the grower to weigh the contents of punnets and to mark net weight on them if the tare weight of the punnet exceeds the permitted weight specified in Table C of Part XIII of that Schedule. The practical difficulties of doing this are such as to make it almost impossible. In addition, growers themselves will be in difficulties in regard to the weight of the punnets, because, even if they buy

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them with a warranty or specification that they are within the packed weight laid down in this Bill, they can become considerably overweight if the atmosphere is damp or it is in a wet season, due to the fact that these punnets are virtually pithwood and the fruit is absorbent of moisture. In the circumstances of field-packing for market, so many things can happen that the grower is never sure where he stands.
One unfortunate result if the Government should persist in their demand that the Bill as it now stands should apply to soft fruit would be that the growers would have to play for safety by packing this easily damaged fruit in bulk—that is to say, in 12 lb. chip baskets or packs—and would thereby be reverting to the conditions of 50 years ago, out of which we have climbed; and there would be no advantage to the consumer, because the condition of the fruit would be nothing like as good as it is now.
Therefore, the growers themselves—and they have carefully considered the matter—are of the opinion that the only solution is the total exclusion of soft fruit from the pre-packing requirements of the Bill. One way in which I am seeking to achieve this is through the Amendment I am now moving. But I should be quite happy if the Government could find any practical way of ensuring that the consumer was able to buy by net weight without crippling this industry, as it will be crippled unless the provisions of the Bill are substantially amended. I would mention that in this particular case the consumers are not misled, because they can actually see what they are buying. There is a small punnet of strawberries, and they can see almost every berry they are buying and know what they are getting. There is no comparison with the deceptive containers about which we were talking, because, as I say, you can see what you are getting.
I am sure it will be obvious that this matter requires considerable thought, and your Lordships will agree that soft fruit in punnets cannot be treated in the same way as other pre-packed fruit and vegetables. All other produce of this type is, packed under cover in packing stations where there is no difficulty about weighing or marking with net weight at the time of packing. It would be a severe
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hardship to soft-fruit growers if there were a requirement to mark the punnet with weight; the retailer would be in an impossible position; and the consumer, for the reasons I have given, would be no better off, since nothing would guard against the risk of spillage or pilferage. I hope, therefore, that the Government will be able to take this all into consideration and will accept the Amendment. I beg to move.
Amendment moved—
Page 21, line 29, at end insert—
("() produce of any one or more of the following descriptions, that is to say, bilberries, blackberries, blackcurrants, brambles, cherries, cranberries, gooseberries, loganberries, mulberries, raspberries, redcurrants, strawberries and whitecurrants.")—(Lord Stonham.)
6.40 p.m.
LORD ST. OSWALD: This Amendment would exempt all soft fruits to which it refers from the requirements of Clause 22. The noble Lord fired his opening gun on this in his Second Reading speech, so I was prepared for it. He sets about his task with this Amendment which would make any provision in the Fifth Schedule about these soft fruits inoperative. If the noble Lord does not wish the requirements to apply to these fruits, the obvious course is to amend the Fifth Schedule. The noble Lord might perhaps agree that this aspect of this Amendment might more conveniently be discussed under the Amendment to the Fifth Schedule represented by his third gun, if I may call it so, standing in his name at page 66, line 18, to leave out sub-paragraph (b).
The noble Lord has associated his name with certain Amendments designed to make the requirements in the Fifth Schedule affecting soft fruits considerably more stringent, so we are aware that he feels strongly about it. He may not realise, however, that his Amendment as drafted would strike out not only the fresh fruits of these descriptions, but also the marking requirements when these fruits are bottled, canned, processed or packed in any other way, and thus deprive consumers of the protection which they have had for many years as far as these canned goods are concerned.
When the noble Lord relates his Amendment to the second purpose in Clause 22, I would point out that this purpose is to empower the Board of

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Trade by order to apply to goods which are not at present listed in the Schedules various types of requirement or to amend the requirements in the Schedule. This confers the flexibility for the future to which the Hodgson Committee attached so much importance. But the effect of the Amendment would be to freeze the application of any of these requirements to soft fruit until some amending Act could be passed. This is merely giving a hostage to fortune. Even if one believes there is no need at the present time for the Bill to be concerned with the sale of soft fruits, conditions might change in the future and it might come to be generally accepted that there was some need for change in the interests either of the suppliers or of the consumers. But with the present Amendment, the Government of the day would be powerless to act, and fresh legislation would be necessary. This would be a curious commentary upon a Bill which should be dealing with weights and measures adequately for some considerable time to come.
The order-making power given under this clause is not one that can be exercised lightly or arbitrarily. Subsection (2) of Clause 55 requires the orders to be preceded by consultation with the interests affected, and under subsection (3) of that clause the orders have to be laid in draft before, and approved by Resolution of, each House of Parliament. This seems to the Government to be an adequate safeguard, and, despite the noble Lord's wealth of technical expertise, based upon a real knowledge which I cannot match, I hope that he will now think so, too, and withdraw his Amendment. I should have told him that he was quite right in thinking that strawberries in punnets, whether covered or uncovered, are regarded as pre-packed.
LORD STONHAM: I am grateful to the noble Lord for his reply which, despite my alleged expertise, I found completely convincing. It is the case that the Amendment I moved was drastic and, as the noble Lord noticed, I reserved a second shot in the locker in the Fifth Schedule. I am not interpreting his remarks that he will regard that as any more favourable, but certainly I think I can get nearer to the point in moving it, now that the large gun, as it were, has been fired and I have had an opportunity of a reply
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which I can consider before I move the other Amendment. With that, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 22, as amended, shall stand part of the Bill?
LORD SHEPHERD: Before the clause is put to the House for approval, may I ask the noble Lord whether he can give me some information? The clause as it stands covers a fairly wide range of goods which will require either to be stamped or made up in a special way before they are sold on the retail market. However, the noble Lord will notice that under subsection 5 (a) and (b) there are certain exemptions: in the case of (a) goods specially pre-packed for the use of Her Majesty's Forces or a visiting force, and in the case of (b) goods which are for export or for consumption on a ship or aircraft departing from this country.
The question I want to put to the noble Lord is this. If these goods, for some reason or another, are not consumed by Her Majesty's Forces, we know that from time to time they are disposed of. If they do not come within the regulations for the normal retail trade, does it mean that those goods could not be sold and disposed of through the retail trade? I think we want to get this clear because it should be taken into account whether in the future the goods being supplied to Her Majesty's Forces should be stamped to comply with retail requirements.
LORD ST. OSWALD: I am well aware of the existence of the transactions the noble Lord has described, because on my way back from the Korean campaign I was informed that bottles of whisky for the officers' mess were disposed of at the price of 35 dollars to members of the American forces. But I cannot tell him here and now what would govern the perfectly honest disposal of goods shipped out to Forces overseas under these regulations.
LORD SHEPHERD: I think the noble Lord has not got my meaning quite right. If goods which have been supplied to Her Majesty's Forces—and we know they have to be eaten by a certain time —are disposed of through the retail trade, and those goods have not been stamped or made up as required, under

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the words of sub-paragraph (a) it is possible that these goods, although not complying with the regulations, could be disposed of, because in the initial instance they were made up for the Services.
LORD ST. OSWALD: I have not got the answer to the noble Lord's point. I thank him for putting it, but I still cannot answer at the moment. I am grateful to him for raising it.
LORD LATHAM: As I understand it, the point is: Does the exemption follow the goods?
Clause 22, as amended, agreed to.
Clause 23:
Offences in transactions in particular goods
23.—
(2) Subject to the provisions of this Part of this Act, in the case of any goods required by or under this Act to be pre-packed, or to be otherwise made up in containers for sale, or to be made for sale, only in a particular manner or quantity, any person shall be guilty of an offence who—

(a)whether on his own behalf or on behalf of another person. has in his possession for sale, sells or agrees to sell, or

any such goods pre-packed, made up in containers or made, as the case may be, otherwise than in that manner or quantity, whether the sale is, or is to be, by wholesale or by retail.
THE EARL OF DUNDEE: Amendments Nos. 49 and 50 go together. The first of these is to secure that where any goods are required under the Bill to be sold only by quantity expressed in a particular manner, or only in a particular quantity, and they are found to be packed otherwise than as required under the Bill, it will be an offence not only for those goods to be sold or offered for sale but also to be exposed for sale. The effect of the second Amendment is to secure that it will be an offence for anyone to cause or allow any other person to expose for sale, as well as selling, offering or agreeing to sell goods which do not comply with these pre-packing requirements. I beg to move.
Amendment moved—
Page 22, line 4, after ("offers") insert ("or exposes").—(The Earl of Dundee.)
On Question Amendment agreed to.
THE EARL OF DUNDEE: I beg to move.
Amendment moved—
Page 22, line 5, after ("offer") insert ("or expos").—(The Earl of Dundee.)
On Question, Amendment agreed to.
6.50 p.m.
LORD SHACKLETON LORD SHACKLETON moved, in subsection 2 (a), to leave out "has in his possession" and insert "offers". The noble Lord said: This Amendment also goes with the following Amendment, No. 50B. As I am connected with the retail trade I think I should declare a small interest in this matter. The reason I have put down this Amendment is partly to clarify the position and partly, if it is unsatisfactory, depending on how the Government interpret this part of the Bill, to rectify the position. As the clause is drafted at the moment a person is guilty of an offence—or so it appears to me—if he "has in his possession for sale" pre-packed goods not in conformity with the requirements of the Act. It is feared that these particular words would have the effect of making a retailer commit a technical offence where none is intended, or commit an offence unwittingly; and it may also cause difficulties of proof.
I would give two examples which illustrate my doubts. A retailer receiving a consignment may find, when he comes to check it, that for some reason or other the goods are not in conformity with the Act, and before he can return them he obviously has to keep them somewhere. In many oases they will go in his stockroom, although it may not always be possible to put them immediately in the stockroom. But it might be very difficult for him to establish conclusively when there was an inspection that that merchandise was, so to speak, segregated from the remaining merchandise in the stockroom and was not in his possession for sale. Equally, pending inspection subsequent to delivery merchandise in the retailer's stockroom could technically be considered to be in possession for sale; that is, before the retailer found out it was not in conformity with the Act. Here again he might appear to be committing an offence. The Amendment would. I hope, achieve what we all want to achieve that is, that a person who has goods in his possession and actually puts them or exposes them for sale can be dealt with, but that he shall not be caught on a technical offence. Here I

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would say that there is some uncertainty with regard to the drafting of my Amendment, and it may well be that the Government would have a better form of words such as "where having in his possession on his own behalf or on behalf of another sells or agrees to sell". But I am putting forward an Amendment in this form in the hope of receiving an explanation from the Government on this point. I beg to move.
Amendment moved—
Page 22, line 15, leave out ("has in his possession") and insert ("offers").—(Lord Shackleton.)
THE EARL OF DUNDEE: I hope I shall be able to persuade the noble Lord that there is no danger under this clause of an innocent or unwitting retailer being prosecuted for an offence which he has not really committed. As it is drafted, subsection (2) which the noble Lord is seeking to amend makes it an offence for any person to have in his possession for sale, to sell or to agree to sell any goods subject to these requirements which do not in fact comply with them; and it also makes it an offence for him to cause or suffer any other person to be in a similar position on his behalf. The noble Lord's two Amendments propose that it should not be an offence to have such defective goods in possession for sale, or to cause or suffer another person to have them in possession for sale; and the effect would be to confine the offences in this field to the exact point at which the goods were offered for sale, sold or agreed to be sold.
I should like to explain, a little fully, the reasons why we cannot accept this Amendment, because I think it might clarify other Amendments which may come up later on in the course of the Bill. The concept of an offence arising when goods are in possession for sate has applied under weights and measures law to coal since 1889; to a range of pre-packed goods since 1926, and to nearly all pre-packed foods since 1944. There is no convincing evidence that this has imposed an unfair burden on traders in these commodities. In fact, the offence has been coupled with specific defences to traders—for example, in the way of warranty and the default of a third person, such as are reproduced in Clauses 26 and 28 of this
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Bill, which ensure that the retailer will be free from penalty if the deficiency in any pre-packed goods is due to the action of the packer or the wholesaler. The concept of an offence for having defective goods in possession for sale and these defences for the retailer go together, both in widening the protection to the public and in enabling responsibility for defective goods to be traced back to the person who is actually the guilty party, and who, in the assumption of the noble Lord, in the cases which he has put forward, would not be the retailer.
From the point of view of consumer protection, if we were to delete the provision that it is an offence to have defective goods in your possession for sale, that would gravely undermine the value of the requirements in the Bill about marking of pre-packed goods and other goods which are to be made up for sale in some particular quantity. All through the Fifth to Ninth Schedules these requirements are applied directly to the person who is the only one able to ensure proper compliance with them; that is to say, the packer or the person making up the goods; and the intention is that the goods shall conform to these requirements all the way down the line of distribution, from the factory or packing plant to the retail shop. By this means there is the least possible opportunity for neglect or fraud by the persons who are distributing the goods. The inspector can, by spot checks at the factory despatch department, at the wholesaler's premises and on the shelves of the ordinary shop, see that the requirements are met, and, on occasion, can detect irregularities at an early stage before the goods have passed into the public's hands.
These checks, I would submit to your Lordships, can be effective only if they have behind, them a provision that it is an offence to have defective goods in possession for sale; without this provision the inspector's power would be very drastically reduced. What. would happen if we were to accept the Amendment would be to confine the offence to the actual moment at which the shopkeeper put the goods in the front window of the shop or sold them over the counter to the public; because no inspector could hope to time his arrival at the factory

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or the wholesaler's premises at the precise moment at which an offer to sell or a sale was overtly taking place. It would be almost asking the inspector to shut the stable door when 90 per cent. of the horses had bolted. I am sure the noble Lord would also want to look at the position from the point of view of the honest retailer, who is not responsible for the deficiency in the goods he is offering for sale; and I would put it to him that this Amendment might seriously distort the equitable process of enforcement.
The Bill envisages that if an inspector finds one or more defective articles offered for sale in a shop he will test other similar articles in the shopkeeper's possession, in order to see whether the defective goods which he has detected are an exceptional case or whether the defectiveness is on a large scale. The shopkeeper may plead that he did not know about the defectiveness and that the responsibility lies with his suppliers. Then the inspector would want to arrange for inquiries to be made about similar articles which were still in the possession of the wholesaler, and even perhaps in the manufacturer's possession, before deciding whether there was ground for prosecuting, and whether proceedings could justifiably be taken; and, if so, against whom they should be taken.
All this process turns upon the application of an unbroken chain of requirements affecting those goods from the moment they leave the packer's hands and upon the sanction of its being an offence to have defective goods in possession for sale from that moment on. If this chain is broken, the only effective power left to the inspector will be to institute proceedings against every shopkeeper every time a defective article is found at the point of sale, irrespective of the circumstances of the case. This would undoubtedly mean that the retailer would in future be placed in a position of jeopardy against which the existing law relating to possession for sale has helped to protect him. I hope that the noble Lord will agree that the provisions in Clause 28 are sufficient protection for the innocent retailer whose case he has put to your Lordships.
7.3 p.m.
LORD STONHAM: Although I listened to the noble Earl's speech with great care, I am afraid that I am not satisfied that the innocent retailer is in all circumstances protected when he has defective goods in his possession. May I give an example? The noble Earl said that the retailer has a complete defence if deficiency in any pre-packed goods is the fault of the wholesaler or the packer, because the fault can then be traced back to the guilty party. If those are not his exact words, I think they are a fairly accurate paraphrase. If the noble Earl will assume the possession of packages of pre-packed vegetables, branded and marked, it is utterly impossible for the packer, the wholesaler or the retailer to ensure that, 48 hours after they were packed, they are their marked weight. Therefore, if the inspector comes in the day after the retailer has them there is a fault; and it is quite useless, as the noble Earl is aware, for the retailer to plead that it is the fault of the packer, because it is known not to be. It is known that the packer packed the marked weight, but it is the retailer who has them in his possession. I am citing the case of marked, branded packs which fall below the marked weight in the retailer's possession.
In such circumstances what is he to do? He cannot return them to the packer; and it is undesirable, perhaps even illegal, for him to open the packet, tamper with somebody else's goods and perhaps add extra goods, possibly inferior goods, to the pack in order to make it up to the required weight. This is a real and actual case. Of course, we shall be dealing with it in detail in later Amendments. But where you have an example of produce where there can be a considerable weight loss (everybody knows it: and no one, the retailer, the packer, or the wholesaler can deny this fact), and it is not possible to take any precaution against it other than excessive over-weight packing, the only thing the retailer can do in fact is to dip the packet in water, which might make up the weight and satisfy the law, thought it would, in my view, be dishonest. Therefore, I think the noble Earl must agree that there are cases—and I have cited them—where the retailer who had these goods in his possession, even though he wanted

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to return them, might be found to be at fault, and would have no defence at all under the Case Law which has been cited. I hope that the noble Earl will look at that particular example and see whether, if my noble friend's Amendment cannot be accepted, he will at least see some other way of meeting this particular point.
LORD HAWKE: I believe that the Amendment in the name of my noble friend Lord Barnby (in his absence, he has asked me to move the Amendment, perhaps at the next session of this Committee stage) is most relevant to this particular situation, because it deals with laying down a standard of normal moisture content before any question of an offence can be considered to have taken place.
THE EARL OF DUNDEE: The cases of possible hardship which the noble Lord, Lord Stonham has in mind are, I think, all concerned with goods which lose weight rapidly. We discussed—or at least I tried to discuss—this problem at some little length, on Second Reading. We had already considered other possible alternatives, such as allowing a fixed measure of deficiency or requiring that the weight of the goods should be ascertained at the time when they were packed. We felt that neither of these procedures would give effective protection to the consumer, and that the only way of protecting the consumer effectively was that the weight or measure should be that at the time when the goods were actually sold. We recognise that in those circumstances there may be some difficulty for the retailer. What ought normally to happen is that a reasonable allowance for loss of weight should be made by the packer; and whether, in any particular case, it is the packer or the retailer who is found to be the guilty party perhaps we had better leave until we get to the later clauses, which concern the defences which can be pleaded. If the noble Lord has any particularly interesting or important cases or classes of case which he wants your Lordships to consider, he can raise them then. I said on Second Reading, and I still think, that the inspectors will be reasonable about this. It is a difficulty which cannot be avoided 100 per cent., and I think that we have taken the best available course
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to which there are fewest objections and which will give the greatest amount of protection to the consumer.
LORD SHACKLETON: I do not want to press this Amendment, but II am not sure how far the noble Earl is satisfied that the defences in Clauses 26 and 27 are adequate to the words "having in their possession". Under Clause 26 it has to be shown that he has taken all reasonable steps to check. He may not at one stage even have had time to check; or it may well be that it was not, on his system, due for checking. The fact that this has worked well in regard to the past with other types of goods does not necessarily mean that it will be true of this much wider expansion and. will be wholly applicable to the sort of cases that might come up under Clause 25. The fact that the noble Earl wishes to maintain the chain is a powerful argument, but equally we do not want to hang in the middle of the chain some innocent party who otherwise might not be in any way guilty. I would ask the noble Earl, although I am sure he has considered this matter carefully, whether he would not again consider if some improvement is necessary. But I certainly will not press it now and I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
Clause 23, as amended, agreed to.
Clause 24:
Quantity to be stated in writing in certain cases
24.—
(3) Where any liquid goods are sold by capacity measurement and the quantity sold is measured at the premises of the buyer, the last foregoing subsection shall not apply but, unless She quantity of the goods sold is measured in the presence of the buyer, the person by whom the goods are delivered at those premises shall immediately after the delivery hand to the buyer, or if the buyer is not present leave at some suitable place at those premises, a statement in writing of the quantity delivered, and if without reasonable cause he fails so to do he shall be guilty of an offence.
(4) Nothing in this section shall apply to—

(a)a sale of a single article offered for sale by number;

(b)a sale by retail from a vehicle of—

(i) solid fuel within the meaning of the Seventh Schedule to this Act in a quantity not exceeding two hundredweight; or

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(ii) any of the following in a quantity not exceeding five gallons, that is to say, liquid fuel, lubricating oil, and any mixture of such fuel and oil;

LORD LATHAM: Clause 24 (2) (a)says that
"a statement in writing of, the quantity of the goods—

(a)In the case of a sale by retail, shall accompany the goods during and at their delivery to the buyer;"

My Amendment proposes that there shall be inserted after the word "during" the words "the course of transit to". This Amendment is put down in order to clarify the position in regard to delivery journeys. I am advised that as drafted the provisions of the clause apply during and at delivery, but it can well be argued that "delivery" means the actual point of delivery; and if that be the case, then the clause does not cover the period when the goods are in transit to the buyer. It is a question of adequate provision, and no doubt the Government would be willing to look into the matter. I beg to move.
Amendment moved—
Page 23, line 20, after ("during") insert ("the course of transit to").—(Lord Latham.)
LORD ST. OSWALD: As the noble Lord has explained, the Amendment is based on the belief that the words in the Bill as drafted, "during…their delivery" do not cover the period when the goods are in course of transit to the customer. In the view of Her Majesty's Government, the words do cover that period and mean what they say, and a statement in writing must accompany the goods at all times while they are being delivered to the buyer. I hope that on this assurance the noble Lord will agree that his Amendment Js unnecessary.
LORD LATHAM: I am very pleased to know that words mean what they say, and in those circumstances I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
LORD DERWENT: This Amendment refers to the delivery of liquid goods. It is sometimes convenient to give what is, in fact, an invoice before the goods are actually delivered, but this clause pro-
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vides that an invoice must be given only immediately after the delivery to the buyer. The important word here is "immediately"—not "after". I personally should have preferred it if the wording had been "during the delivery" but sometimes a piece of paper is handed immediately before delivery, where, for example, a petrol pump or oil tank is being filled; and there seems no point in leaving that out. I beg to move.
Amendment moved—
Page 23, line 32, after ("immediately") insert ("before or").—(Lord Dement.)
THE EARL OF DUNDEE: My noble friend's Amendment relates to subsection (3) of Clause 24 which exempts a certain class of transaction from the requirement of the preceding subsection (2) that a statement in writing shall accompany certain goods when sold by retail, during and at their delivery to the buyer, or to be delivered to the buyer at or before the delivery of the goods when they are sold by wholesale. The exemption is to take account of cases where a buyer of liquid goods like petrol or oil asks the supplier to come along and top up his storage tank. Until the tank is actually topped up, the supplier cannot know the actual measure he is delivering; and subsection (3) accordingly requires no statement in writing to be given except where the measuring is not carried out in the presence of the purchaser. In that case a written statement is required to be given to the buyer, or to be left upon his premises immediately after the delivery is completed.
With this type of transaction I do not think my noble friend's Amendment could be operative, because the seller would necessarily be unable to give the written statement to the buyer before delivery. But if my noble friend is thinking of deliveries whose quantity has been agreed between buyer and seller before delivery of the goods begins, then that would fall within the scope of subsection (2) of this clause, which I would suggest to my noble friend fully meets his desire for the written statement to be given before delivery—indeed, it requires that such a statement should be given.
LORD DERWENT: I am still in some doubt, because as I understand it the statement has to be given even when the

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amount is agreed, if the delivery is not made in the presence of the buyer; and it is just in the case where it is not delivered in the presence of the buyer that it is sometimes more convenient to hand the statement to the buyer before delivery. The buyer may be at a garage and just going off to a breakdown. I understand that if the delivery is not measured in the presence of the buyer the: statement has to be given.
THE EARL OF DUNDEE: Yes, it has, but after delivery. It cannot be given before, because until the delivery is complete, the supplier cannot know the amount that is given.
LORD DERWENT: Not even where a definite number of gallons is ordered?
THE EARL OF DUNDEE: I tried to explain that point at the end of my remarks. If a previously agreed definite quantity has been ordered and is to be delivered, that comes under subsection (2), which I hope will satisfy my noble friend because it requires the statement to be given before delivery.
LORD DERWENT: I had not realised that that comes under subsection (2).
THE EARL OF DUNDEE: It does, if the amount is agreed before delivery.
LORD DERWENT: I thank the noble Earl and beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
THE EARL OF DUNDEE: This is one of the series of corresponding Amendments beginning with that to Clause 15 at page 16. Its effect is to secure that the exemption provided by the subsection for the sale of a single article by number is to apply, not only where that article is being offered for sale, but also where it is being exposed for sale. I beg to move.
Amendment moved—
Page 23, line 37, after ("offered") insert ("or exposed").—(The Earl of Dundee.)
On Question, Amendment agreed to.
LORD LATHAM: Clause 24 (4) (b)has the purpose of exempting solid fuel in a quantity not exceeding 2 cwt. or
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liquid fuel lubricating oil or any mixture of such fuel oil not exceeding 5 gallons. The purpose of my Amendment is to remove those from the exemptions intended under the clause. There seems to be no logical reason for the exemption of these items from the scope of the clause. The distinction between the sale of coal in quantities not exceeding 2 cwt. and In quantities exceeding that weight which appears in current legislation has for many years been regarded as being wholly illogical. Moreover, one must agree that the purchasers of quantities not exceeding 2 cwt. are at least as deserving of as much protection as people who buy in larger quantities. Indeed, judged by the references to dull housewives earlier in the proceedings, they may well be in greater need of protection; and in my submission the need of protection arises also in connection with liquid fuels. In those circumstances it is to be hoped that the exemption intended will be removed. I beg to move.
Amendment moved—
Page 23, line 38, leave out paragraph (b).—(Lord Latham.)
7.20 p.m.
THE EARL OF DUNDEE: As the noble Lord has said, the Amendment relates to subsection (2) (b), which exempts two classes of transaction from the requirement in this clause that a statement in writing as to the quantity of goods shall be delivered to the buyer unless he himself takes delivery of the goods at the premises of the seller. These two exemptions cover the sale of solid fuel in quantities not exceeding 2 cwt. and the sale of liquid fuel in quantities not exceeding 5 gallons. The noble Lord's Amendment would delete these exemptions and he wants to know what the reasons are for having them. The reasons in the case of solid fuel are the same as those which underlie the similar exemptions for such sales from the more comprehensive requirements later on in the Seventh Schedule relating to carriage of documents during deliveries of solid fuel.
These small sales are nearly always made by hawkers who do not know before they start their journey what sales they are going to make. Therefore, they cannot make out the delivery notes in

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advance. They have to make out the delivery notes at the time they hand over the amount agreed on with the purchaser at very short notice. When the hawker makes a sale of 2 cwt. or less it will be to meet a request from the householder for a specific amount. The Seventh Schedule ensures that fuel must be made up in specific quantities only, that the sacks must be marked with the quantity they contain, and that the giving of short weight will be an offence. I think that that gives the public considerable protection, and I do not think it would add much to the protection to require that the hawker should write out, possibly outside the front door, a delivery note with dirty hands and possibly in pouring rain. I think that the protection afforded by the provisions of the Seventh Schedule is fairly considerable.
LORD LATHAM: The rain might even descend on 2½ cwt.
THE EARL OF DUNDEE: The rain might perhaps add to the amount of liquid fuel. As regards the sale of small quantities of liquid fuel, here again the exemption applies predominantly to the person who goes round the streets taking paraffin for sale, to be measured out in quantities requested ad hoc by the householder.
The noble Lord will see that subsection (3) of this clause will, in any event, exempt the hawker from the delivery note required if the measurement is carried out in the presence of the purchaser. But, in practice, very likely some householders will not be bothered to go out to the van to watch the measuring Nevertheless, the measuring instrument the hawker uses will have to be tested and stamped by an inspector; and it will be an offence for him to deliver short measure. It is very easy for a householder who thinks he may have been given short measure to call the inspector in to check the quantity easier, in fact, than in the case of bulk deliveries into a storage tank which may already have contained some liquid fuel before the new delivery in question. And here again, in our view, the other requirement in the Bill gives adequate protection to the public without the necessity of requiring the hawker to write out a whole shower of delivery notes on the spot in the course of his daily round.
LORD HAWKE: My noble friend's frequent reference to hawkers has raised a query in my mind. Precisely what is
"a sale by retail from a vehicle"?
As the noble Earl well knows, a very large number of consumers, probably the bulk, in this country buy their coal one cwt. at a time, occasionally waylaying the coalman on his round because he comes on a particular day to a particular part of the country, but quite often calling at what they call the coal office and saying, "Please deliver me one cwt. of grade 5 when you come round on Saturday". And, of course, they pay cash to the vanman. Is that a sale of solid fuel "by retail from a vehicle", or is it not? It would be a great mistake to bring all these sales within the scope of the Bill, because it is difficult enough now for a coalman to get his round done. The people who are prepared to hump coal these days are very strong and are very dirty at the end of the day: they have to be paid very high wages indeed to do it, and time is extremely valuable. So if they are to be employed as itinerant book-keepers as well, undoubtedy the cost of running a coal round will go up. But I should like an answer to my question as to what is meant by
"a sale by retail from a vehicle".
THE EARL OF DUNDEE: Whether it was classified in any particular instance as a sale from a vehicle or not, the quantity delivered would have to be packed in specified quantities and marked with its weight.
VISCOUNT ALEXANDER of HILLSBOROUGH: I think that perhaps on the Report stage we shall have to think about this term, especially in view of what the noble Lord, Lord Hawke, says. Of course, it used to be the case that the majority of customers buying hard fuel retail would waylay, as he said, the coalman. I think there is still some waylaying done. But in modern practice there is much more regular ordering from the merchant of what has to be delivered. It is often delivered in 1 cwt. and 2 cwt. quantities, but nearly all the bulk deliveries are also weighed up in sacks and delivered in bulk. There may therefore be something in the case submitted by my noble friend Lord Latham. On the other hand, where we have small quantities of 1 cwt. or 2 cwt. delivered.

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under other provisions of the law the person delivering has, if required by the customer, to weigh it in his presence. I should have thought that, on the whole, this is a fairly reasonable statement of the case; but whilst I should want to withdraw the Amendment I think I should like to take some further counsel on it. But I do not think the Bill as it stands in this particular case is too bad.
LORD LATHAM: I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
7.28 p.m.
LORD SHACKLETON LORD SHACKLETON moved to add to subsection (4):
"goods which have been, at the customer's instruction and before delivery, subjected to a manufacturing process which has altered their character."
The noble Lord said: This clause requires that in. sales of various kinds there shall be a written statement of the quantity of goods, and under this particular subsection there are excluded certain categories of transaction. The purpose of my Amendment is really to clarify the position with regard to goods of a particular kind which may be subjected to some form of manufacturing purpose, or process so as to alter their character before they are delivered. The kind of example I have in mind would be some piece goods which the customer may give instructions about, to the effect that they are to be made up into an end-use article. An obvious example of this would be the making up of curtains or furniture or loose covers and, to a lesser degree, even carpets. I am not sure that in certain circumstances it might not be applied to clothes, but I do not press that.
I do not really understand how it is intended that the requirements of Clause 24 shall apply to goods of this type. The material will very likely have been sold by the yard, but what is delivered is an end-use article. Is it in fact the intention that the delivery note should quote the length of the material sold? The length of this material is, of course, no longer relevant, and small parts of it may even have been lost in the process. Or will the requirements of the section be satisfied if the delivery note merely
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specifies the end-use product which is in fact delivered—namely, two pairs of curtains, or whatever it may be? I beg to move.
Amendment moved—
Page 24, line 13, at end insert the said paragraph.—(Lord Shackleton.)
THE EARL OF DUNDEE: The noble Lord has told your Lordships that he has moved this Amendment for the purpose of clarification, and he has greatly helped me by the example which he has given—the example of fabric which the purchaser may want to make, or have made, into a curtain. If the buyer wants to buy some curtain material, and if the retailer agrees to sell it to him by the yard, and if that is all that happens, then a statement in writing as to the length sold must, under Clause 24, be delivered to the householder, unless he takes possession of the material at the shop immediately after the retailer has measured it out. Bur if the householder asks the retailer (because the householder can take the material away and make the curtain herself, or get some other workman to do it) to make the material up into individual curtains and to attach linings with a tape, with hooks or with rings, then the eventual sale is not a sale of so many yards of material; it is a sale of goods by retail of the made-up curtains, if it is a sale at all.
On the other hand, it may well in law be held to be a contract for work done and materials supplied, in which case the subsection would not apply at all. Accordingly, if the retailer delivers finished goods to the house of the buyer, under this clause he is under no obligation to give a statement in writing as to the quantity of the curtain material. I hope the example has been more illuminating than trying to put the thing in more general terms.
LORD SHACKLETON: I hope it is all right. I am still not quite clear where the sale ceases to be a sale of material and becomes a sale of a made-up curtain. It is just possible that a purchaser may start off buying twelve yards of a particular material. There is, I think, a certain amount of borderline in this. I am sure the noble Earl and I are not in disagreement on it, but I should be grateful if he would consider on what

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side it falls down. The buyer may even start buying the material and then change his mind and say, "You had better make it up, too". At any rate, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 24, as amended, shall stand part of the Bill?
LORD DERWENT: May I just say one word on the Question, That the clause stand part? I want to ask my noble friend whether he will have a look at the whole clause before the Report stage. I am doubtful about the practicability of the provisions in this clause in relation to the sale in bulk of materials such as bitumen, grease and heavy fuel oil. These, of course, are all materials delivered in tankers, and the tankers cannot be emptied completely. What happens, therefore, is that, when delivering these materials, the delivered quantity is not measured at the premises of the seller; nor is it measured at the premises of the buyer. What happens is that the vehicle is weighed when full before delivery, and the vehicle is weighed again after delivery. Although I am quite certain that these materials are meant to be included under the provisions of this clause, I am in doubt as to whether in fact they are properly covered. I am merely asking at this stage if my noble friend would have a look at this clause with that in mind.
THE EARL OF DUNDEE: Certainly.
LORD HAWKE: Will he also look at this clause with another point in mind—that is, the effect (which looks to me rather devastating) on the market stall-keeper? People selling late on a Saturday night, with a milling crowd around them, cannot be expected to give little bits of paper out to everybody who buys two yards of calico at 2s. 11¾d. It would spoil their business completely. I believe there is a great deal in this clause that wants taking care of, because there is no point in saddling the retail trade with a lot more work to do. Half the overheads of the retail trade is caused by the time taken in weighing out and selling things: so if you want more expensive goods in the shops, the best way to get them is to put statutory obligations on shopkeepers to carry out more and more work when
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they are selling their goods. I think this clause should be looked at again with that point in mind.
THE EARL OF DUNDEE: We certainly want to keep that sort of thing down to a reasonable minimum, consistent with consumer protection, and a great deal of what we have been lately discussing has been concerned with the Government's desire not to insist on people writing out little statements where it is not really necessary for the protection of the consumer; but I will look into that more carefully.
Clause 24, as amended, agreed to.
THE EARL OF DUNDEE: The next Amendments, on Clause 25, are perhaps on a slightly different point from those which we have been discussing, and perhaps your Lordships will agree that, having got to the end of Clause 24, this might be a convenient moment to adjourn. I beg to move that the House be now resumed.
Moved, That the House do now resume.—(The Earl of Dundee.)
On Question, Motion agreed to, and House resumed accordingly.