§ 3.58 p.m.
§ Debate resumed.
§ LORD AIREDALE
My Lords, continuing the debate on this Bill, I join with the noble Lord, Lord Drumalbyn, in congratulating the noble Baroness, Lady Phillips, on her lucid explanation of the Bill. It is not rare for the Explanatory Memorandum to a Bill to shed more light than the Bill itself does, but it is not always the case that the Minister succeeds in shedding more light on the Bill than the Explanatory Memorandum does. I think the noble Baroness this afternoon surmounted that hurdle very comfortably indeed. Having said that, I should like to say further that in my copy of to-morrow's Hansard I shall certainly underline that part of the speech of the noble Lord, Lord Drumalbyn, in which he said that this Bill is not as clear as at first sight appears.
I should like to preface the few remarks I have to make upon this part of the Bill by referring to one sentence—an admirable sentence, I think—in. paragraph 610 of the Report of the Molony Committee, where they say:We think, however, that legislation affecting transactions of everyday occurrence and touching the interests of everybody, as shoppers 668 or traders, should be contained in a single enactment and stated in language as plain and simple as modern draftsmanship can provide.I would venture to go further, and say that particularly is this important in cases where a Statute is creating an offence which does not depend upon guilty intent in the mind of the person committing it. Where guilty intent is involved in an offence, one has the valuable guide that one's mind directs one to the problem; you may, of course, have a situation in which you know that you are doing something which is not morally right but you think that the law, which is in rather a state of confusion, is on your side, and you may find when you are prosecuted that you were wrong. Well, you have not a great deal to complain about in that case. But where the Statute is creating an offence which depends not at all upon criminal intent, it is, in my submission, fundamentally necessary that the Statute should be as clear and precise as modern draftsmanship can make it. I do not believe—I am not convinced so far, at any rate—that the early clauses of this Bill pass that test.
The clauses with which I have a quarrel are Clauses 5 and 6. If your Lordships look at them, you will find that they do absolutely nothing except employ the device of saying that something shall be deemed to be something else. The way in which it operates is this. If you are wondering whether you will come within the mischief of this Bill, you naturally start by looking at Clause 1. That clause seems to say quite clearly, "If you do this you commit an offence." When you get to Clause 5, that does not say, "If you do that you commit an offence"; it says, "If you do that you will be deemed to have done this, and this is an offence under Clause 1 and, therefore, you have committed an offence." In my submission, that is not the way to make for absolute clarity so far as modern draftsmanship can devise. Subsection (1) of Clause 5 says:A trade description which, though not false, is misleading…shall be deemed to be a false trade description.Why not put that in Clause 1 where it refers to "a false trade description"? Why not refer to "a false or misleading trade description", and then people will know where they are before they get to to the end of Clause 1: they do not have to search for hidden snags in Clause 5?
669 The same sort of thing applies to subsection (2) of Clause 5, but it is a little technical and complicated, and I do not think it is suitable for discussion on Second Reading. If your Lordships study it, I think you will agree that the "meat" out of Clause 5(2) could well be put into Clause 2, and then there would be no need for this "deeming" in subsection (2) of Clause 5. Subsection (3) of Clause 5 says:A false indication…that any goods comply with a standard specified…shall be deemed to be a false trade description…There would not have been any need for that if the Molony Committee's recommendation upon this point had been followed, because in paragraph 638 they took the trouble to draft some wording to be inserted in Clause 2 which would have made this "deeming" in Clause 5 quite unnecessary. The words that the Molony Committee drafted—and they are in italics in paragraph 638—are:as to any goods conforming to a standard specified by any person or authority.Why not include those words in the definitions of Clause 2, for that would do away with the need for Clause 5(3)?
I am not going at this pace through the whole Bill, but I think these matters are fundamental and important. Clause 6 says:A person exposing goods for sale or having goods in his possession for sale shall be deemed to offer them for sale…Instead of that, where Clause 1 says "offers to supply any goods", why not add the words, "or exposes goods for supply or has goods for supply in his possession"? If that were done, people would know where they were by looking at Clause 1, without having to look at Clause 6. We have heard about there being a great deal of "meat" in this Bill, and about its being an appetising dish. My complaint is that all the "meat" in Clauses 5 and 6 ought to be taken out of those clauses and put in Clauses 1 and 2; and Clauses 5 and 6 should be thrown into the dustbin.
I could not agree more with the noble Lord, Lord Drumalbyn, and the Molony Committee about this word "calculated", which in almost every case in which it appears in this Bill means "likely". This Bill is absolutely peppered with the word "calculated", and in practically every case it means "likely". "Calculated" 670 and "likely" are not the same word, and they do not have the same meaning. If you watch people playing roulette, you see a great number of them with pencils and paper busily calculating what number will come up next. Quite apart from the fact that they do not all arrive at the same answer, if their efforts made it any more likely that the number selected would come up next, I imagine that others besides Mr. Charles Coborn would have broken the bank at Monte Carlo. So if the Minister at the Board of Trade, when he comes to reply to this debate, refers to nothing else that I have said except this, will he please answer me this question: Will it be all right if, at the Committee stage, I put down about 50 Amendments, all of which say "Leave out 'calculated' and insert 'likely'"? Because if there is a convincing argument why I should not do so, I will reconsider it, and it may save those who prepare Marshalled Lists of Amendments a great deal of unnecessary labour.
I listened very carefully to the noble Baroness when she was explaining the difference between Clause 1 and Clause 13, which deals with services, and why it was that, when it conies to services, the offence has to be committed either "knowingly" or "recklessly", whereas those words do not appear in Clause 1, which deals with the supply of goods. I listened carefully, but I am afraid I was not convinced, and I am sure that this distinction will lead to considerable anomalies.
Take the case of somebody in the furniture trade who both sells goods and has an upholstery department. Suppose he has received in good faith from a manufacturer some upholstering material which is described to him as being, shall we say, 70 per cent. Terylene, and he labels it in good faith "70 per cent. Terylene". If I buy some and take it home and make up my own loose covers, that is a sale of goods. Presumably, although he is quite innocent, he is guilty of an offence under Clause 1, because that clause says nothing about knowingly or recklessly. But if I take my old chair to his upholstery department and say, "I will have it done in that material", and he says, "That is 70 per cent. Terylene", and in good faith upholsters the chair in that material, he will not be guilty of an offence; because although the material 671 is not as described, he has not done anything dishonest either knowingly or recklessly, and no offence is committed. I should have thought that anomalies like that would arise, and that it was better that Clauses 1 and 13, in relation to both the supply of goods and services, should sing the same tune, so far as criminal intent is concerned.
When we come to's the matter of defences, there is something in Clause 23 to which I should like briefly to draw your Lordships' attention. This clause allows a person prosecuted who is an innocent agent, but who can supply the name and address of the person who is in default, to escape liability. But the trouble is that, under the terms of subsection (2) of Clause 23, he has only seven days in which to furnish the name and address of the person in default, if he is himself to escape prosecution under this Bill. The Molony Committee pointed out that there are numerous instances of goods passing from hand to hand in the trade a great many times before they reach the ultimate consumer. It is inconceivable that the shop which sold the goods to the person complaining could in every case discover the name and address of the manufacturer within seven days. Therefore, I hope that fourteen days or more will be substituted there. I will not say any more about that, because it is perhaps rather a Committee point.
Coming to Clause 25, I think this is a curiosity, in that there seems to be no correlation between the clause itself and the marginal note. The marginal note refers to the "Innocent publication of advertisements" by advertising agencies, but on reading the clause I, at least, can find nothing that conveys the impression of innocence. It would seem that Clause 25, as drafted, is a charter for advertising agents to be as callous and reckless as they choose in the submission of advertisements for publication, and enables them to snap their fingers in the face of this Bill. I think something will have to be done about Clause 25.
On the subject of advertisements—and this is the last matter with which I need detain your Lordships—there is one curious advertising practice which I hope will be caught by the Bill. I hope the Board of Trade will watch it and will see that, if necessary, it is caught by an 672 Amendment to this Bill. It is something which I can best explain by reference to a back number of the magazine Which?, which is published by the Consumers Association. In passing, may I say that if this Bill does half as much as the Consumers Association and its magazine Which? have done to make this a better world for people who go shopping, then the Bill will not be doing at all badly.
In the issue of June, 1964, this magazine referred to a certain detergent. This is not the particular detergent about which the noble Lord, Lord Rhodes, and I had an interchange some little time ago; it is another one. I will not advertise it this afternoon, but we will say it is called "Super White". The situation in June, 1964, was that if one went into a shop and asked for "Super White", in most cases one got a soap powder, but if one lived in Colchester or in Barrow-in-Furness one was a guinea-pig without knowing it and was liable to be given, not a soap powder but a non-soap synthetic detergent product which had exactly the same name on the packet. That was not all, because if one lived in the Isle of Wight one was a third sort of guinea-pig and received neither soap nor non-soap but a mixture of soap and non-soap, although from the appearance of the packet one was getting the good old "Super White" which had been advertised in the national Press for years. The Consumers Association thought it was a perfectly sensible plan for manufacturers to have trial runs of new products in small localities, but they considered that there was something fundamentally wrong in selling three different products under one name and using people as guinea-pigs without their knowing it, in places that were arbitrarily selected by the manufacturer concerned.
I had intended to say something on the subject of enforcement, but I think what I had to say was covered fairly well by the noble Lord, Lord Drumalbyn, and I have spoken for long enough. So with those few rather discursive observations I, on the whole, welcome this Bill. I dare say it will be called by some people unnecessarily grandmotherly, but I think in these days, when scientific terms are being bandied about on the outsides of packets of products and housewives do not really know what those terms mean, 673 a bit of grandmotherly legislation is probably, on the whole, a good thing. So I welcome the Bill—but I hope we can get rid of Clause 5.
§ 4.15 p.m.
THE EARL OF WOOLTON
My Lords, as this is the first occasion upon which I have had the honour to address your Lordships' House I hope that I may be granted the usual indulgence which is so generously given by your Lordships to those in my somewhat unfortunate position. I feel I should declare a non-interest, if I may use that phrase, in this debate. For the last twenty years—until, let us say, about two months ago—I have been actively engaged in retail trading. In that time I did most jobs that can be done in that trade, and I worked in most of the principal cities in this country. Therefore I think I can say that I have some experience in this field. Last November I severed all connection, both financially and managerially, with the trade, and I can now say that if I have any bias at all it does not come from either of those two factors. Therefore, my Lords, though I cannot claim to speak for the trade, perhaps I may be allowed for a moment to speak about it, and this Bill.
Any Bill which helps to bring about more trust between the shopper and the shopkeeper should be welcomed. Most of the shopping done in this country is inevitably done by women, and in most cases by women who are working to a very tight budget, which is a worrying thing for them. However many prices may be shown to have come down during any given period, it is the ones that go up that stick in the mind; and regardless of what may be the real reasons for the increase in these prices, it is the shop which gets the instinctive blame. If, in addition to this, the shopper becomes aware of any slight, or major, irregularity in the description of goods, then what may have been a normal love—hate relationship before can become one of bitterness. It is precisely that situation which all shopkeepers want to avoid. They are in business to make a profit, and 90 per cent. of them know that their goodwill is everything. If once they lose the confidence of the public, they are as good as bankrupt. Therefore, as I have said, anything which can help in this direction is a good thing; and in general 674 terms, and speaking as an ex-shopkeeper, I welcome this Bill wholeheartedly.
There is, however, the other side of the coin. The trend in recent years has been for the public to demand a wider range of goods from which to chose, and, with certain exceptions, the days when people accepted the principle that "You can have any colour you want, so long as it is black" are fast dying. This means, of course, that shops have to stock a far greater range of varieties, with the consequent additional labour involved in the ticketing of prices and descriptions, and in the greater risks of quite natural and unintentional mistakes. This trade has not escaped the general labour shortage, and a relatively unskilled trade is subject to a high labour turnover. All this adds to the problem of seeing that the very proper rules are carried out in the enormous detail which is demanded. I make this point, not out of hostility to Acts or Bills of this kind but in order to point out that there are difficulties involved which the shopkeeper, of all people, wants to overcome.
The final point I should like to make concerns the inspectors of weights and measures, who are the officers involved in the enforcement of this and similar regulations. Theirs is not a particularly easy job, having to act, as they do on many occasions, almost as examining magistrates before deciding whether or not a prosecution should take place. I personally, in my years in the trade, have always found them most helpful and sympathetic people, and I hope that their lives are not going to be made more onerous by too many new regulations. I also hope that the cost of these operations will not leapfrog out of all sensible proportions, because in the end, in one way or another, it is the shopping public who pay for it.
§ 4.21 p.m.
§ BARONESS BURTON OF COVENTRY
My Lords, it is the first time that I have ever had the pleasure of congratulating a maiden speaker, and I feel sure that there is nobody in your Lordships' House who does not envy me my task; and perhaps I might say to the noble Earl, Lord Woolton, that I come from Yorkshire, where we do not bandy compliments lightly. First of all, as I am 675 sure the noble Earl must know, we welcome him because of his father; and if this sounds rather odd to the Opposition Benches, I might perhaps explain it by remembering that in the mid-1950s, when I was in another place, I always very much hoped that the then Government would not take too much notice of the advice tendered by his father on these matters, because I felt it was first-class advice.
Therefore, having made that clear, I might say to the noble Earl that all of us here, particularly those who have not been here a long time, do know the ordeals of any maiden speech, however competent. We have greatly enjoyed what he had to say. It had the two major virtues of any maiden speech in that it was brief and informed. We always say that we hope we shall have the pleasure of hearing a noble Lord on future occasions, but in this case I personally hope, as one very much interested in this matter, that we shall have the opportunity of hearing the noble Earl during the Committee stage of this Bill, because he so obviously has a great deal to contribute.
Perhaps I might pay tribute to a second maiden speech to-day, but one that came from the Dispatch Box. May I say to the noble Baroness, Lady Phillips, how very much all of us who have worked in consumer affairs for many years welcomed her appearance in this House, her appearance on the Front Bench, and her speech to-day? I would enter a caveat, and say that I hope that my words will not be held against me when I venture to differ from something she has had to say. But we certainly greatly enjoyed the speech she made.
I noted in the Economist of January 29 that this particular Bill had been a best-seller; or, if we wish to be more concise, we learn thatBy 11.30 a.m. on Thursday"—the 27ththe Stationery Office had sold out of copies of the new Protection of Consumers Bill that had gone on sale that morning; customers were taking away five dozen copies at a time and it is going to be Top Reading among shops for a good many years yet.I hope, as I know your Lordships will, that it will not be only among shops that this Bill will be "top reading". Perhaps at the beginning of my remarks on the 676 Bill it would be fitting that I should declare the general interest that I have in matters of this sort. As I think the House knows, I am a consultant to Courtaulds; I am the director of a firm engaged in the direct selling of domestic appliances, and a member of the Independent Television Authority. I would hope, as the noble Lord, Lord Drumalbyn, said when speaking of the Advertising Standards Authority, that these opportunities might help me to make a more informed contribution, as he does; and I am quite sure, in common with him, that neither of us would use this to advance sectional interests.
I welcome this Bill and in common with other Members of your Lordships' House, not least my noble friend on the Front Bench who is to reply, our thoughts go back to 1953 in another place. I thought that the Merchandise Marks Act 1953 was a useful piece of legislation. To my mind, its main weakness was that it was not enforced. For that I blame the Government of the day. This time I think that everyone in this House, from all sides, will agree that we must not have provisions in a Bill that cannot and will not be enforced. I would suggest that responsibility for the "cannot" rests with us in Parliament, while responsibility for the "will not" rests ultimately with the Government of the day. I think that if we allow either of these conditions to come about we shall only bring ourselves and our discussions into contempt.
So we come to the title of the Bill that we are discussing, "Protection of Consumers (Trade Descriptions) Bill". I hope that this will be the last measure that will have to be under the heading of "consumer protection". Reluctantly I would agree that this must be the title, in view of the type of clause included in the Bill. But I believe that everyone here would agree that education of all concerned is the stage on which we should now be operating. I want to see, as I said in the House a year ago, industry in its widest sense, trade and consumer organisations, retailers, consumers, working together on consumer affairs rather than discussing consumer protection, and I am glad that the Bill emphasises this aspect of consultation.
677 Therefore, I feel (and I think the noble Lord, Lord Drumalbyn, also made reference to this) that with this reference in the title to consumer protection we must at the same time emphasise consumer responsibility—the responsibility of the shopper. I believe that we should be rendering a disservice to ourselves, and to everyone else, if we conveyed a false sense of security, a feeling that everything will be taken care of even if we shoppers do nothing about it at all. In these discussions, and in the implementation of what is finally decided, the local authority figures more largely than ever before. I welcome this development, as I think will most Members of your Lordships' House. All I would say, in passing, is that I hope local authorities will use authorised testing houses in their work. The House does not need me to tell them that we have many excellent ones in existence, and it would be a waste to ignore their skill.
Later, I should like to make some general comment on Clause 3 ("Applying a trade description to goods"); Clause 9 ("Information, etc., to be given in advertisements"); Clause 11 ("False or misleading indications as to price of goods"). But before doing so there are four particular points that I wish to raise. Three of them, I hope and believe, are taken care of in this Bill; the fourth I should like to be, but at the moment I am not sure about it. I believe that performance-labelling is essential for shoppers, particularly in carpets. If we had a division into only two grades in this merchandise, the customer would be greatly helped. Labels stating "heavy duty" and "light duty" would speak for themselves: they would give guidance as to which carpets were suitable for where. The price range would be a wide one—and here I would emphasise something which I think is not always understood. That is that in this range we should find that some carpets at the lower end of the top category were cheaper than some of the carpets at the top of the second category. As those of us with experience know, it is proving difficult to devise tests giving an accurate guide to performance. But I am quite convinced that in this respect industry is doing all it can.
My second point is that I think care-labelling should be obligatory; but I 678 should like it to be obligatory by customers' demand, rather than by legislation. In both these cases performance-labelling on carpets and care-labelling for garments or textiles, I believe very strongly, and have done for years, that fibre content is only a secondary point.
Thirdly, in common with many shoppers, and possibly with many of your Lordships, if you do this sort of shopping, I have frequently been completely misled by the term "stock pattern" displayed so prominently in the china departments of shops and stores. I have been misled, because I assumed that this meant that if I bought china under such a heading and subsequently broke some of the pieces, if I went back to the shop I should be able to replace it. It appears obvious that some noble Lords have found out what I did—that it did not mean what I thought. I say to my noble friend on the Front Bench that when we are considering statutory definition of trade terms, perhaps we can discover exactly what this term "stock pattern" really stands for.
The fourth point I should like to raise is that of guarantees. The Molony Committee were most disappointing in their conclusions on this matter. In the section dealing with guarantees which is contained from page 131 onwards in their Report, no inquiry could have spoken in stronger terms of the ills of the present system; but their conclusion was a defeatist one. I said that in this House in November, 1962, and I still believe it to be the case. The noble and learned Lord the Lord Chancellor gave us his opinion on one aspect of this matter at columns 3 and 4 in Hansard of January 25 last, and I appreciate what he said, but I am wondering whether my noble friend could give us some information on this point when he comes to wind up. Are we to take it in the context of those remarks by the Lord Chancellor that what I will call the ordinary type of guarantee can have nothing done for it by this Government until Parliament comes to deal with the Sale of Goods Act? Does the Minister feel that the Bill we are discussing to-day will get us any further on this particular problem?
Now I come to advertising or, as Clause 9 states specifically,Information etc., to be given in advertisements.679 Several times in your Lordships' House I have quoted the ruling given by the United States Supreme Court, and I have still to find a better one—namely:Advertising as a whole must not create a misleading impression, even though every statement separately considered is literally truthful.Obviously, this is what we should all wish to bring about, not least the reputable and vast majority of the advertising profession. But when disputes arise, it seems to me that frequently the argument is conducted on matters of opinion and not of fact. This has already been referred to. Obviously, it is difficult to decide what is a correct impression and what is not. Is it ours or that of the other person? Are we biased or are they? Are we stupid or are they? And for whom are the courts to legislate?
I wonder, when my noble friend comes to reply, whether we can have some elucidation of Clause 9(3), which reads:Where an advertisement fails to comply with any requirement imposed under this section, any person who publishes the advertisement shall, subject to the provisions of this Act, be guilty of an offence.I should like to know, who is "any person"? Is it, for example, the newspaper, the television company, the advertising agency or the manufacturer? I feel it would be useful to all of us if we could know the thinking of the Government on this general aspect before we reach the Committee stage. I believe that no reputable advertising agency would put out any advertisement that was wrong or misleading. Certainly, some advertising is placed direct and not through agencies.
I should like to come back to the agencies, if I may. During the last two or three years I have given a great deal of thought to this subject, and it seems to me that advertising agencies, through obtaining the whole, rather than a part, of their income from advertising, are in a determining position. As I see it, they are the only body solely concerned with this aspect of commercial life; and I submit to your Lordships that this power must bring its inevitable responsibility. Hence I would suggest that the onus of proof in an advertisement should rest with the advertiser, and not with the consumer; and, furthermore, that the advertising agency is the advertiser in this respect.
680 When I put forward this viewpoint in the United States some eighteen months ago, the argument advanced against it by the majority of advertising people who heard me concerned the untenable position in which advertising agencies as well as media might be put if they were to be held accountable for factual misstatements about products which they were in no position to check. But I say to my noble friend on the Front Bench, I believe, quite simply, that agencies must be in a position to check, or accept the responsibility for not checking. Where a firm or a manufacturer places the advertisement direct, then responsibility lies with them, or rather should lie with them. Industry and many other people would be glad to know the thinking of the Government here. I know that the noble Lord, Lord Drumalbyn, has already spoken, but at some time I should be most interested to know his opinion on this matter. If he would not think I was being fulsome, might I say to him that it seems to many of us in the consumer world that, since he became Chairman of the Advertising Standards Authority, the channels of communication have greatly improved.
I come, finally, to Clauses 3 and 11. It is certainly time, and more than time, that these offences were dealt with. Comment has been made that penalties will be severe. I think they should be. There has been comment also that perhaps publicity about these penalties might have a deterrent effect so that large numbers of prosecutions could be avoided. I am quite convinced that what will be the greatest deterrent of all will be the realisation that we now have a Government determined to take action on these matters.
Clause 3 refers to applying a false trade description to goods. I am sorry, but I am still not happy about subsection (2)an oral statement may amount to the use of a trade description".Your Lordships know that I have raised this matter several times in this House, and I should like immediately to make clear where I stand. I support completely the wish behind this subsection and I should like to see it effective, but I want nothing in this Bill that cannot be enforced. The Lord Chancellor told me on November 17 last, at Columns 676 and 677 of the OFFICIAL REPORT, that he 681 did not share my doubts. If I may paraphrase what he said, it was that this was being dealt with all the time in oral contract cases. I should have thought that in general such cases were limited to fairly expensive goods, perhaps a car, where the assistant concerned is easily identifiable. I just do not see this being satisfactory where a small purchase is being made over a shop counter and where no independent witnesses are available.
At one time I worked for five years in a large retail organisation. One of my jobs there was to set up a Department of Merchandise Information. This obviously was aimed at giving the assistants the best type of information to pass on to customers over the counter. A real difficulty that I see in this particular aspect is that even the best intentioned of employers may well feel wary of assistants giving information to shoppers. I say to my noble friend that we might get less, rather than more, help when we ask questions about merchandise. Certainly there is no need for me to tell the House of the considerable turnover of staff in the retail trade, which obviously adds to the problem of staff training.
The particular aspect of advertisements on television, which the Lord Chancellor also mentioned in column 676 of Hansard of November 17 last, would seem to be in a different category. Here enforcement and proof would be helped by the fact that there would be available not only oral evidence but visual evidence, too. Like everyone in the House, I see the value of the deterrent, but I am not convinced that a deterrent which cannot be enforced is a good one ultimately. As a layman, I ask what may well be a stupid question, but would it be possible to take out of the clause any reference to purchases where the Act would clearly not be enforceable, and leave us with a first-class clause, necessary and enforceable in all its aspects?
With regard to Clause 11 in relation to false or misleading indications as to the price of goods, I think that the words "4d. Off!" have almost passed into the English language. We all know exactly what it means. I should like to give an example of what happened to me some years ago when a type of coffee that I normally bought suddenly shot up 8d. per lb., and within a few weeks that company had the impudence to put up labels "4d. Off".
682 We shoppers, of course, were really paying 4d. more than we paid originally and were under the delusion that we were paying 4d. less. Also, as many of us know, cartons for detergents with the words "4d. Off" printed on them are made in factories long before they are used—they are just sitting there. I do not call these selling gimmicks; I think they are dishonest. I would ask my noble friend whether I am correct in assuming that when this Bill becomes an Act a cut-price article will also have to be marked with the true price that has prevailed for the previous six months. In other words, reverting back to my coffee, if it had gone up 8d. and had stayed at 8d. for six months presumably they could have put "4d. Off", but it would prevent the "fly by night" merchants doing this for a week or so and then changing it. And it would, of course, mean that cartons made up for detergents in factories would not now just be able to have so many pence off; they would have to show the previous price as well. At least, that is my reading of it, and perhaps my noble friend would confirm it.
I now wish to deal with the matter of the eyesore presented by many shop windows in many of our main streets; "Closing Down", "Final Reduction", "Everything must be sold", "Sale". This in Oxford Street in London is not something one sees occasionally; one sees it in the same shops every day. I suggest that this is completely misleading the public, because it is quite impossible, I should have thought, to have had "Closing Down", "Final Reductions", and so on, every day of every week. I should like to ask my noble friend whether that will come within the category of misleading advertising.
This sort of thing has brought into great disrepute what I would call sales proper. I think the noble Lord, Lord Airedale, spoke about grandmotherly legislation, not in a derogatory sense, but I know exactly what he means. I should not like it to be thought that I was being grandmotherly, or suggesting that we should protect shoppers all the time. Obviously, we cannot and should not wish to do so. Anybody with any sense knows that goods sold in a sale may not be as good as goods sold out of sale time. They may be soiled, or damaged, or they may have been a bad buy by the shop.
683 But what has damaged reputable shops and reputable sales for a long time now has been the buying of job lots, the buying of "seconds", neither of them stated on the sales cards inside the shop, while the supposed marking down of prices has become so flagrant that the reductions merely bring the whole system into contempt. I am glad the Bill proposes to deal with this, and particular tribute should be paid to the Retail Trading Standards Association which has campaigned for so long on this issue.
In the recent January sales I went to look for myself to see how we were getting along. In several shops I saw cards in the windows stating membership of the R.T.S.A. and inside cards also for the R.T.S.A., explaining why the sale was being held. They made the position crystal clear. I would quote just three sentences for the information of customers from that notice:Where a previous price is shown, that price is the price at which these goods or genuinely similar goods were offered prior to the sale here or elsewhere. Where goods are seconds or imperfect or sub-standard, the fact is made known on all sale tickets. Where we offer a Special Purchase, this will be a line of goods provided at bargain prices because we buy outstanding offers especially for the sale and pass on the savings to our customers.As the House knows, many shops which are not members of the R.T.S.A. are taking similar action. But we all realise the trouble into which a trade association may run when it pushes ideas like this before they are popular. That is why I wanted to mention the R.T.S.A.
This Bill is a determined effort by the Government to deal with and stamp out practices that offend us all. Practices engaged in by a small minority bringing into contempt the reputable majority. I believe the Bill will be welcomed by industry, trade and consumer organisations, retailers, consumers and local authorities. It seems to me to be non-Party, and I am particularly glad that the Bill has commenced its journey in your Lordships' House for this reason as much as any other. I wish it well, and I hope that its passage into law will not be delayed.
§ 4.48 p.m.
§ BARONESS ELLIOT OF HARWOOD
My Lords, in taking part in this very 684 important debate, I should like first to congratulate the noble Baroness, Lady Phillips, on the charming way she introduced the Bill; it was very skilfully and admirably done, and I enjoyed her speech tremendously. May I also add my congratulations to the noble Earl, Lord Woolton, on his maiden speech. I thought back many years to the time when I had the great honour and pleasure of working with his father—not in the retail trade, but in political organisation. I had the greatest possible admiration for him and for his wonderful knowledge and skill in the undertakings in which he was engaged at that time. I am sure his son will be as knowledgeable and as skilful in his work as a shopkeeper, as he said, as anybody in this House. We will welcome his help on the Committee stage of this Bill.
I take part in this debate to-day as Chairman of the Consumer Council. We welcome this Bill, which is a consumers' Bill. The noble Baroness, Lady Phillips, likes to talk of shoppers rather than consumers, and I agree with her, for the Bill will help shoppers very much indeed. We know that the Bill has now been in the Board of Trade for a long time. Even before the General Election, in earlier years, when my noble friend Lord Drumalbyn was one of the Ministers there this Bill was under discussion. It has now been carried forward and brought to fruition by the present Government, but the very fact that it has been for so long discussed by both Parties makes it to some extent a non-Party-political Bill. I approach the Bill in that spirit, and I want to make what contribution I can to the clauses which we have been discussing.
I look upon myself as free to say either things in favour of or things against the Bill because I am, I hope, representing the interests of the consumer and of my Council. We were very pleased because the Bill includes major recommendations made by the Consumer Council, although there are some proposals which perhaps we should have liked to see strengthened, and I will refer to them as I go through the Bill. I should like to congratulate the authors of the Bill—the noble Baroness, Lady Burton of Coventry, also referred to this matter—on the fact that this is now a Bill in which it is mandatory upon local authorities to 685 take proceedings and the duty of enforcement is not, as in the Merchandise Marks legislation, only permissive. The result of the old system, as we all know, was that for many reasons few prosecutions were taken under the Merchandise Marks legislation, so that, in effect, offences went by default. But I agree with the noble Baroness that it is very important that on this occasion we should have a different approach to these problems.
In this Bill the enforcement will be undertaken by the local authorities, who must notify the Board of Trade fourteen days before instituting prosecutions: this is mentioned in Clause 30(2) of the Bill. It is important that the Board of Trade will take prosecutions themselves, and this should be expressly provided for, for the following reasons. If a magistrates' court decided that there was a charge which referred to an advertisement or a trade description used throughout the country which constituted an offence, there is a possibility that in another court, in another part of the country, there might be a conflicting decision. Although local authorities are given power to combine for the purposes of prosecution, this does not rule out the possibility of conflicting decisions. We believe, therefore, that offences committed on a national scale should be prosecuted by a central authority. To do otherwise would leave a considerable area of doubt, which might well become a hazard to national advertising and trade, without necessarily being in the interests of the consumer. I think that the noble Lord, Lord Drumalbyn, made this point in his speech, and I hope that the Government will look at it.
One provision which my Council regards as particularly important is to be found in Clause 3(2), which states:An oral statement may amount to the use of a trade description.This question has been discussed in this debate, and obviously it is a matter which will receive a great deal more discussion. But it follows for us that, if the oral description is incorrect, then the salesman is breaking the law. This means that a lie is a lie if it is spoken, just as much as if it is written. Why should we have to endure the false statements of assistants who assure us that they are selling us a shrink-resistant, all-cotton, colour- 686 fast blouse, which, when we get it home, shrinks, pours out colour, and turns out to be a mixture of fibres?
The provision about oral statements has been represented as an innovation, but in fact it is nothing of the sort. There are other examples in the consumer protection field where oral misdescription is an offence. For instance, Section 3 of the Sale of Food (Weights and Measures) Act 1926 makes it an offence for a person to make any misrepresentation as to the weight or measure, either by word of mouth or otherwise, in connection with the sale of any article of food. Under Section 24 of the Weights and Measures Act 1963, the seller commits an offence if he makes a misrepresentation, by word of mouth or otherwise, as to the weight, measure or number of the articles exposed or offered for sale. Again, Section 2(1) of the Food and Drugs Act 1955 has also been successfully used in prosecutions for oral misrepresentations in the sale of foods. I therefore cannot agree with the argument, produced by certain sections of the retail trade, that this principle is an innovation.
I know it has been said, and it has been said here to-day, that oral misdescription is difficult to prove, and that the retailer may be at the mercy of spiteful or mendacious customers. If it is to the advantage of anybody to be deceitful, in the first instance at any rate, it is the person trying to make a sale who is most likely to be tempted to make a false statement. As a matter of proof, the need for corroboration is shared equally by the customer and the seller. Customers do not have built-in lie detectors, and the inclusion of this provision would ensure that consumers who could prove that they had been induced to buy goods on the strength of false statements would have a remedy. I should like to stress the words, "customers who could prove". My Council hopes that all reputable traders will welcome this measure as a check on the abuse of an admitted minority—but nevertheless a minority which diminishes customers' trust in suppliers. We have heard it suggested that to make telling a tale an offence will mean that shop assistants will be afraid to open their mouths and say anything. My answer is that it would be no worse for the customer if the shop assistants kept silent, than if they made 687 false statements about the goods which they were trying to sell the customer.
The great majority of trading in this country is carried out in all honesty, and in recommending the inclusion of an oral misdescription clause the Council does not consider that it goes further than expecting that in everyday buying and selling one's fellow men and women are telling the truth. It will be very chastening to find that this assumption is so false that attempts to bring into line the unscrupulous minority are regarded with fear by the majority engaged in daily commerce.
We should also pay regard to the people most familiar with abuses stemming from misdescription. I refer to the local authority weights and measures inspectors. I understand that they are strongly in favour of oral misdescriptions being made a general offence, rather than provisions being scattered piecemeal through the legislation they are asked to enforce. I shall say a word later about the part of the weights and measures inspectors in the Bill.
In Clause 8 there are reserve powers for the compulsory labelling of certain goods, and I welcome this particularly where matters of safety are concerned. We should, for instance, like to see compulsory warning labels on flammable nightwear for adults. Your Lordships will remember that we were successful in getting legislation on flammable nightwear for children. We have always hoped that manufacturers would also agree to take part voluntarily in labelling schemes. We are ourselves launching our Teltag scheme, to which the noble Baroness referred, which is an informative labelling scheme, on a voluntary basis, sponsored by the Consumer Council in cooperation with the British Standards Institution. This labelling scheme gives information at the point of sale about the goods that we, the shoppers, are buying.
I can give your Lordships one or two examples. If textiles, for instance, were included, the label would show whether they were colour-fast and whether they were shrink-resistant. If carpets were included—and the noble Baroness has referred to carpets and knows a great deal about them—the label would show whether they were suitable for stairs or 688 for a living room, rather than for a bedroom which requires a less hard-wearing carpet. If we were dealing with floor coverings, such as linoleum or other material, the label would show whether they would stand up to stiletto heels or heavy boots. If the goods were electrical equipment, the label would show the time a kettle would take to boil or how much water it held. In the case of food mixers, the label would show whether they would mix large quantities or small, or what other things they would do. We feel that this will be helpful to people in choosing the product most suited to their pockets and to their needs.
In addition to sale-labelling, giving information that can be verified by measurement, demonstrated by proof and certified nationally, we should like to see manufacturers take on more responsibility for labelling their products with information about care and use. The more care-labelling there is, the better. This would also help the shop assistants, who would not need to invent things in an effort to sell us their goods, thus invoking the oral misdescription clause which I mentioned earlier. The noble Baroness, Lady Burton of Coventry, has stressed care-labelling, and I agree with her wholeheartedly.
Prices have been mentioned in the debate, and Clause 11, which refers to misstatements other than false trade descriptions, is of very great importance to shoppers. It means that at last cut-price notices will be checked, unless there has been a genuine reduction. We know that this recommendation is opposed in some quarters, because with the abolition of resale price maintenance it is difficult to establish a single selling price. However, statements about previous prices can be fixed to a period during the preceding months, and to the prices on offer in similar shops. The Retail Trading Standards Association and the Retail Distributors' Association, which have been referred to by the noble Baroness, have willingly produced voluntary codes of conduct on this basis for their members to observe, and many traders have found it possible to use this code when they have sales, and to explain the methods that have led them to justify price reductions—for example, to say that goods offered in sales for 7s. 6d., reduced from 10s. 6d., are identical to articles that the shop itself 689 has stocked and sold at the higher price. It is important that checks on dual pricing should see that the article that is reduced in price is the same in size and quality. We have all been "had" by offers which say, "3d. off—special bargain", only to discover that what is meant is, "3d. off and, although the package looks the same, it weighs three ounces less."
We are also glad that Clause 11 appears to stop the practice of using the size of print for lettering in a way to suggest that a larger quantity is being offered for the price shown than is in fact the case. There must be quite an industry in producing price tickets with the price of, for example, 2s. 6d. written in letters as big as a banner headline in a newspaper, while side by side a special type, legible only to those with exceptional eyesight, states that this relates to half a pound and not, as might be supposed, to a larger quantity.
Coming to Clause 13, dealing with false or misleading statements as to services, one of my Council's particular recommendations was that misleading statements about services are as important as those relating to goods, and we are therefore delighted to see that services, which are the cause of many consumer complaints, are included by new provisions relating to services, accommodation or facilities. These would cover, for example, some of the misleading descriptions used in travel brochures. I referred to this problem when we were discussing travel in your Lordships' House last week. I hope that the inclusion of Clause 13 will make people who supply services (whether accommodation, travel or whatever it may be) particularly accurate in their descriptions.
In connection with Clause 13 of the Bill, I understand that the word "statement" includes statements relating to services in advertisements appearing in the Press or on television. We are very anxious that there should be some check on advertisements (although again I would say that I am referring only to a minority of advertisements), and I should be grateful for the Minister's assurance that Clause 13 will, in fact, cover advertisements in the Press or on television.
Clause 26 refers to the weights and measures authorities, who are the 690 enforcing authorities under the Bill. I should like to say a word about the work of the weights and measures authorities throughout the country. Few people among the general public, I think, appreciate the devoted service and the meticulous care which the weights and measures officers take in administering Acts of Parliament. The responsibilities placed upon them are very great. Their offices are often understaffed, and their officers sometimes underpaid, and we are very glad that, under this Bill, the Government are to afford further funds to increase the numbers of men and women who are engaged in this important service. I should like to stress women here, as on one occasion I was invited to address the annual meeting of a weights and measures authority—and a very delightful meeting it was! At that meeting I urged them to train and employ women, as well as men, for I discovered that the number of women in responsible posts in weights and measures administration was almost negligible. I am sure that women would be just as careful and conscientious as men in their duties.
My Lords, this Bill has many authors, not least those who, in the 1950s, fought for the interests of consumers in another place; many M.P.s, some of whom are in your Lordships' House to-day; quite a number of former Presidents of the Board of Trade, including the noble Viscount, Lord Eccles, who set up the Molony Committee when he was at the Board, and Mr. Molony himself and his Committee, from whose Report came the Consumer Council and this Bill. If it were a racehorse, it would have a distinguished and varied parentage difficult to describe in a single name. We are grateful to all those people who struggled to bring the Bill to reality. We acknowledge their enterprise and tenacity of purpose. The Bill will provide real safeguards for the shopper; it will alert people to possible dishonest behaviour; and it will assist those who are trying by every means to raise the standards of manufacture and distribution and the services upon which we all depend.
My noble friend Lord Peddie, who is also a member of my Council, will deal, after me, with clauses of this Bill which I have not mentioned. Together we shall help the passage of this Bill through the House, reserving the right to propose 691 Amendments in Committee. My Council, my Lords, welcomes this Bill, and I beg to support its Second Reading.
§ 5.5 p.m.
§ LORD PEDDIE
My Lords, may I also take the opportunity of congratulating the noble Earl, Lord Woolton, on his maiden speech—and, by repetition, my congratulations lose nothing in their sincerity. I thought that his contribution had the twin attributes that make for a good speech in this House—at least in my opinion. The first is that of brevity, and the second is that of talking on a subject about which one knows something—and the noble Earl certainly did that. I also congratulate my noble friend Lady Phillips for the really remarkable way in which she handled, in a maiden speech from the Front Bench, all the complexities of this Bill.
Having said that, I turn to a consideration of the Bill itself. On the whole, I would think that all the speeches that have been made so far have been in congratulatory terms. All have indicated the belief that this is a good Bill. I share that view, and I think that all responsible, the Minister in particular, deserve congratulations for producing this Bill. I think we have moved well away from the time when the dominating principle that determined all retail sanctions was that of, "Let the buyer beware"; and it is true that to-day there are many organisations, many people of good will, who make it their business to see that there is some protection for the consumer.
However, protection cannot be limited exclusively to the activities of consumer associations: the Consumer Council, the Co-operative Movement and bodies of that kind which seek to achieve a measure of protection. Legislation is needed; and here, I think, we have a Bill which marks a further milestone along the road of what one might almost describe as the emancipation of the consumer, although I accept the point of view that was so well expressed by my noble friend, that something must be left to the intelligence of the consumer. One cannot erect a barrier so that it is impossible for an individual consumer to exercise some measure of independence and self-determination.
As to my comments on this Bill, after expressing this congratulation there is 692 very little comment of a critical kind that I can make. Therefore, any comments that appear to be critical are expressed in a mood of inquiry rather than of criticism. I am glad that the definition of "trade descriptions" has been greatly extended. Any statements that relate to one or more of a number of characteristics of goods are trade descriptions for the purposes of this Bill, and the listing of such characteristics has now been greatly extended in the present Bill beyond the limits set by the Merchandise Marks Acts.
As I think has already been stated by my noble friend on the Front Bench, the new elements include naming of the place, date and manner of manufacture and the person by whom the goods are manufactured; claims about testing by any person; history of previous ownership; quantitative properties of goods and so on—apparently covering the whole range of elements bearing upon this particular matter. Indeed, the provision goes a little further and includes a useful general phrase covering any physical characteristics not otherwise included.
The Consumer Council, of which I am a member and of which the noble Baroness, Lady Elliot of Harwood, is so distinguished and capable a chairman, has the satisfaction of being able to recognise that most, if not all, of the recommendations which the Council has made have been incorporated in this Bill. But there is one small exception on which I wish to comment, not in a critical sense, but in order that my noble friend who is to reply can indicate why the point of view advanced by the Consumer Council has not been accepted. It is this. Here we have in this Bill the tying down of the definition of "trade description" to a specific number of characteristics. They are clearly indicated. Therefore any misrepresentations, even by inference, which fall outside the list of characteristics mentioned in the Bill are not covered by the Bill. The Consumer Council, rightly, I believe, has advocated a different approach for which there is a precedent in the legislation of other countries. Even in a country like Spain, which one does not usually consider as having a great reputation for consumer protection, one finds that there has been the possibility of legislation dealing with this matter.
We, the Consumer Council, believe that the real test of a false statement must be 693 its effect on the buyer. That is the real test. It is not merely a matter of a list of characteristics but more a matter of where it can be proved that the buyer himself has been misled. We believe there is no difficulty in applying the test of the "reasonable man", who is a familiar figure in legislation. Therefore we envisage a clause which would allow the courts to determine, in the usual way, whether a false statement has led a buyer to make a purchase which he would not have made but for this falsity. This would deal with the types of false description in advertisements which have become rife to-day and which are particularly popular in television advertising. I want to make it clear, as other noble Lords have done, that the overwhelming majority of advertising put out to-day by reputable agencies is sound and honest. But there are other types of advertisement which, even by inference or omission, tend to mislead. Sometimes we find that a man buys an article, in good faith, on the strength of a description in advertisement which achieves its effect by an element of suppression, omission, implication or half-truth.
While it is true that Clause 5(2) allows a statement which is calculated to be an indication of any of the listed characteristics to be tantamount to a trade description—and this admittedly goes some way beyond previous legislation—any such indication is still limited to the specific characteristics listed in Clause 2. It could be argued that the words "any physical characteristics" give a pretty wide ambit; but there are subtle inferences, and particularly omissions, which ought to be caught but where we have nothing to hang on to, so far as the list of characteristics is concerned.
For instance, one might see in television advertising a white-coated gentleman making reference to a certain product, and there may be a fleeting caption referring to a substance as being "used by most doctors" or "used by most hospitals", and so on. As a result, the viewer may form the impression that some kind of professional blessing has been given to that commodity—indeed, perhaps that is intended by the advertising. Is that misleading? Is it deliberately misleading? If it is, it is of such a character that it would not come within the ambit of this Bill.
§ LORD DRUMALBYN
Would the noble Lord allow me to intervene at this point? I think the particular practice of which he speaks has been discontinued.
§ LORD PEDDIE
I am very pleased to hear that. But even if that is the case, there are many indications whereby it is implied that a particular product has been given the blessing of, say, a doctor when, in fact, it has not. I quote that merely as an example of the kind of wrong emphasis which may be given in advertising and which is not dealt with in this Bill. These examples would not be caught by Clauses 4 or 2, for I doubt whether it can be said positively that they relate to "performance" or to "any physical characteristics" (these seem to be the phrases coming nearest to the circumstances) as set out in Clause 2.
I am sure there are many other examples of persuasion by means of omission or half-truth which cannot be clearly related to the characterstics listed in Clause 2. I would ask whether Clause 2, in so far as those statements of particular characteristics are concerned, is, in the opinion of the Minister, adequate. It has been said that if a general misdescription clause, on the lines proposed by the Consumer Council, were to be included it would be too much to expect that the courts would give consistent decisions on such a subjective matter. Yet we have already accepted this process of subjective judgment in many fields of law. Magistrates are required, for instance, to decide what constitutes dangerous driving. That cannot precisely be defined. Even in the present Bill (in Clause 4, I think) the courts must decide whether a person to whom goods are supplied is likely or unlikely to associate an advertisement with those goods. Admittedly, this is a confined use of the principle, because it is linked with the definition of a trade description; nevertheless, it is there.
I have already indicated that foreign Legislatures have had no difficulty in applying the broad rule. West German law strikes at such incorrect data or other material as might produce that effect. Since 1953, France has prohibited any information which, although essentially correct, results in misleading the buyer. The United States Federal Trade Commission, which has already been referred to in this debate, demands that 695 an honest advertisement must be so clear that it cannot mislead the more ignorant or the least suspicious buyer; so that mere omission can in certain cases be considered as deceit: an omission is as much deceit as a statement that is deliberately deceitful.
The type of clause the Consumer Council would like to apply to all false statements occurs in our own food and drugs legislation. It occurs in the Labelling of Food Order 1953, Section 8; and, again, in the Bread and Flour Regulations 1963, Section 23. It is an offence for any person to publish an advertisement which indicates, or is calculated to indicate, by—and I quote:words, advice or description …either directly or by ambiguity, omission or inferencethat a food is an aid to slimming. By analogy with foreign legislation, we should like this formula to apply to the likely effect of any statement upon the buyer.
My Lords, I turn now to Clause 34 of the Bill which gives the buyer of goods an implied warranty that trade description is not false, with the proviso that the warranty may be excluded by a statement in writing delivered and accepted by the buyer at the time the contract for the sale of goods is made. This, of course, follows Section 17 of the Merchandise Marks Act 1887. But there is one slight difference in this Bill—and again I should like to know the reason for it. The latter required the seller's written exclusion to be signed by him before the implied warranty could be excluded. As noble Lords are aware, to-day most printed guarantees offered with goods are not signed by the seller. Therefore, the mere handing out of a guarantee may kill the effect of Clause 34, since most of the guarantees take pains to exclude liability for any statutory warranties.
But there is an even more important issue raised by this clause. Both Section 17 of existing legislation and Clause 34, in my opinion, are something of an anomaly in Acts dealing with criminal offences, and belong more properly to Sale of Goods law. However that may be, the clause has been retained in its old form apart from the exception I have mentioned. As many of us know from past experience, whenever the question of 696 the reform of the Sale of Goods Act 1893 has been broached, the stock reply of the Government of the day has been, "Let us wait for the new Act before meddling piecemeal with this or that section". We know that since 1938 hire purchase legislation has prohibited owners or sellers from excluding the liability for statutory implied warranties concerning the quality and performance of goods, under certain limited provisos; yet we have waited nearly thirty years for similar legislation in the field of cash sales and credit sales not covered by hire purchase legislation—that is, of goods worth £30 or less.
This argument has been seriously weakened by the Misrepresentation Bill, already introduced in another place. Clause 4 of this Bill has sensibly amended two archaic sections of the Sale of Goods Act relating to the definition of acceptance of goods by the buyer. These subtleties of law do not concern us to-day, but I mention them merely to show that where there is a will there is a way, if there is a desire to make a change. The Sale of Goods Act, as an entity, is not sacrosanct. Why, then, must we perpetuate in Clause 34 this freedom to exclude liability for an implied warranty, when this provision has already been excluded in hire purchase law and when it has already been sentenced to death in the shape of a new Sale of Goods Act?
I suggest that we should take the opportunity to grasp this nettle now. The only sensible course would be to strike out the last part of Clause 34, which reads:Unless the warranty is excluded by a statement in writing delivered to and accepted by the buyer at the time the contract was made.I would ask: How can a trader be free to exclude his civil liability while, at the same time, by the operation of the Bill, he cannot exclude his liability for the criminal offence of applying a false trade description? The only answer apparently for this irrationality is that it already exists in Section 17 of the 1887 Act.
I mention these two points, though it would appear almost churlish for me to do so, in view of the fact that all the recommendations made by the Consumer Council have been accepted. Yet I feel it is necessary to get an answer to these 697 particular points. Having said that, I would join with other noble Lords in expressing praise of this Bill. I repeat what I said at the opening of my speech. It is a good Bill and one which will make a considerable contribution to the welfare of the consumer. It is a Bill which, I am confident, will be welcomed equally by the trade and by the consumer.
§ 5.25 p.m.
§ LORD CAWLEY
My Lords, I must first congratulate the noble Baroness, Lady Phillips, on the able way in which she moved the Second Reading of this Bill. Then I must declare an interest. For the last twenty years or so, it has been part of my job to explain to people what merchandise marks mean, and, when it becomes law, I shall have to explain to people what this Bill means. Therefore, it is of considerable interest to me that this Bill should be as simple and as clear as possible—and I will say, to start with, that I do not think it is. As I go on, I shall mention the various matters which I do not consider are very clear.
For a great mercantile country not to have clear merchandise mark laws has been a scandal for many years. The noble and learned Lord, Lord Goddard, when he was Lord Chief Justice, in the case of Slatcherv.Mence Smith in, June, 1951, said:We"—that is, the Divisional Court—have considerable sympathy with the lay justices who have to administer the Merchandise Marks Act 1887. It is a most difficult Act to construe and has given rise to many appeals. Those who are responsible might well consider whether new legislation should not be introduced to set out the law on this matter in clear language which the lay justices and others concerned with its administration could understand".I think that the noble and learned Lord ought to have added to that "and the general public".
I am glad to see that the Merchandise Marks Acts of 1887, 1891,1894,1911,1926 and 1953 are to be repealed, and I congratulate Her Majesty's Government on having grasped the nettle at last. These Acts were full of nearly unintelligible and, in many cases, ludicrous provisions. I am glad that the offence of forging a trade mark has been abolished. This was defined in a former Act as a "registered trade mark". The question of registered trade marks involves civil 698 rights alone, which should give rise to actions in tort and not to prosecutions. I think that the Government very wisely did not accept the recommendation of the Molony Committee on this point, but accepted the advice of the late Mr. Hugh Fletcher Moulton, a great expert in this branch of the law, whose evidence, in my opinion, was brushed aside in a cavalier manner by the Committee.
I welcome the general provisions of the Bill, but like most such Bills, it needs a good deal of attention, which I am sure it will get. I do not dissent from the introduction of oral statements in Clause 3(1). They are difficult to prove, but so is perjury if no shorthand note has been taken in court, and I do not think that that ought to deter the Government from persisting with this form of offence. I think, however, that it ought to be extended to smells and tastes. I am not being facetious, and will give your Lordships an example of what I mean. In a supermarket there is a pile of cakes of soap in plain wrappers with, let me say, the words "Excelsior Soap" written on them. It is perfectly plain soap, not scented at all. The dishonest proprietor of the store might scatter a few drops of rare perfume on this pile, thereby inducing the purchasers to think—and, of course, in these stores there are no assistants about—that they are purchasing a finely scented soap, when they are not. The same condition would apply if a shopkeeper were to scent a pile of bottles of cheap and nasty scent with some drops of rare perfume. This would be deceiving the public and I think that the Bill ought to extend to practices of this kind, which are just as important as oral misdescription.
In my view, Clause 12 as it stands is much too narrow. The rubric says:False representations as to royal approval or award, etc.The clause provides that no person shall falsely represent himself as a supplier of goods to Her Majesty, to members of the Royal Family and, surprisingly, to any Government Department. Under this clause it would be an offence to state falsely that one was a supplier of briar pipes to the Treasury or to the Department of Education and Science, but it would not be an offence to say falsely that one was a supplier of briar 699 pipes to the Prime Minister, the Archbishop of Canterbury or the National Coal Board, or any other body. In my submission, this provision ought to be extended to a false statement that you are the supplier of goods to any identifiable person. The advantage of saying one was a supplier of briar pipes to the Prime Minister would be infinitely greater than saying one was a supplier of briar pipes to the Treasury, and I think such false statements ought to be stopped. It would also stop another practice, which it may be that the code of advertising does not allow, which is that you use a picture of Mary X, a television star, who says that she attributes her girlish complexion to using "Snibbo" every day. In fact, she has never touched the beastly stuff; the nearest she has got to dealing with "Snibbo" is that she has handled a fat cheque on "Snibbo's" bankers. I think that this should be stopped, and it could easily be done by extending the scope of this clause.
Then I come to Clause 17. There may be a technical reason for this—and I do not require an answer now—but it appears that, compared with the Merchandise Marks Act 1953, the period of imprisonment for an offence prosecuted summarily has been reduced from four to three months. I appreciate that there may be a good reason for this. Also, there is no provision now for larger penalties for subsequent offences. It is true that in both cases there is a provision which allows for indictment, but presumably that would be involved in only very serious cases.
Clause 20 is, I must say, a very weird clause. This morning I consulted Queen's Counsel who is accustomed to dealing in this branch of the law, and we argued for about a quarter of an hour about what the first part of the clause meant, without coming to any consistent conclusion. It appears, if one reads the clause (I will not read it now), that an offence under Clause 1 of the Bill may depend on the state of mind, the intention, of the offender. That would lead to most extraordinary circumstances. Let us say that a man has a roll of black cloth with the word "Black" written on it. That is a perfectly true description, and is not false. Let us say that in Ruritanian language the word "black" means white. That 700 is false. It appears from this clause that if the man intends to export the goods to Ruritania, then he is committing an offence, but if he intends to sell them in this country, he is all right. I can see nothing in Clause 1 which deals with that, but Clause 20 does suggest that that is the law, and I think it should be looked into carefully.
A little later in the clause there is the most astonishing phrase, which does not occur anywhere else in the Bill:being an indication which could not on any reasonable view be regarded as true.I do not know what that means. I should have said that, if that were so, it was a false indication. It could not on any reasonable view be regarded as being true. We seem now to have a gentleman who is a reasonable viewer and who has come in. I really feel that the Government ought to consider taking this phrase out altogether. It adds nothing to the Bill, and to me it only creates confusion.
I am glad that in Clause 23 the provisions of the Food and Drugs Act have been incorporated in order to catch the proper criminals. Up to now, if a wretched little shopkeeper was prosecuted, he could not bring in, under the Merchandise Marks Act, the proper criminals. He can do that under the Food and Drugs Act, and I have been in a case where my client was acquitted on those very grounds: he brought in the proper person and proved that he himself had taken all reasonable steps.
The noble Baroness, Lady Burton of Coventry, told us about crimes under Clause 9(3) in which she suggested that advertising agents might be in danger. I think that Clause 25 gives them a defence—and the noble Lord, Lord Airedale, referred to this. But it does not give anybody except advertising agents a defence. It might be convenient to include newspaper proprietors, printers and so on.
§ LORD CAWLEY
The noble Lord, Lord Airedale, says that it gives advertising agents too much of a defence. But it does not give printers and newspaper proprietors any defence at all.
The question of enforcement is a very vexed one. I feel that the unfortunate state of affairs in which it is possible to 701 go around the country and into various magistrates' courts to try to get decisions which are not binding is a serious defect. I know that it follows the precedent of the Merchandise Marks Act, the famous case of Katv.Diment, which dealt with a product known as a non-brewed vinegar—which, incidentally, the Board of Trade had recognised. But still the vinegar producers went round the country trying to get a decision in their favour that it was a false description. They finally reached one court, after three or four efforts, which said that it was a false description. I do not think it should be possible to go around the country in this way in order to get a decision. I think that in matters like this there should be some authoritative decision on these trade descriptions, and not merely a decision of fact in a small magistrates' court. I would support an Amendment that allowed for this.
Are the Government satisfied that the weights and measures authorities have large enough staffs? Are they satisfied that, if they have not large enough staffs, these can be recruited? I was talking to a civil servant the other day who has a small department, and he suddenly received a large increase in the amount of work he had to do. He went to his superiors and said: "I must have some more staff." They said: "It is quite all right, old boy, you have an establishment." His reply was: "Yes, I have an establishment; but I have not got the bodies. Could you get me the bodies?" I am afraid that we shall find that the recruitment of bodies to these local authorities will be difficult. I hope that this will not be so, but I rather think it will, particularly as recently every Act of this Government and the last Government has showered new duties on local authorities.
Then I feel these new forms of trade descriptions could lead to expensive litigation. I was once engaged in a case at Aylesbury under the 1953 Merchandise Marks Act which concerned a medicine for cows—it was a homœopathic medicine. We set out on this case, and it became a slanging match between fully qualified medical practitioners who practised homoœpathy and fully qualified medical practitioners who practised alopathy or orthodox medicine. They all gave evidence, and in the end the Appeals 702 Committee said: "We have heard a lot of medical opinion given on both sides quite honestly"—obviously they were honest witnesses—"and as there has been a complete conflict of evidence, and the onus is on the prosecution, the prosecution fails". The defendants were then awarded £500 costs. That may not be a great sum, but obviously their own costs were considerable, and that was a great drain on the funds of the local authority.
I feel that litigation under this Bill might be most expensive. If you say a thing is black when it is white, anybody can prove in ten minutes whether that is or is not true. But if it comes to these complicated matters of opinion, the problem is much more difficult. There is another point. If the local weights and measures authority does not do its duty, the only sanction appears to be that the Board of Trade can hold an inquiry and "give it a rocket". I do not think it can do anything else. It may be that certain of these authorities would rather receive a "rocket" from the Board of Trade than from their ratepayers, who would say that they have been spending too much money.
Now I return to the word "calculated". I have been through the Bill, and I can tell the noble Lord, Lord Airedale, that he is wrong; the word "calculated" appears only ten times. But there will be ten Amendments from three of us, unless something is done before the Committee stage.
I think I ought to refer to the Report of the Departmental Committee on Trade Marks, under the chairmanship of the late Lord Goschen, which was placed before Parliament in April, 1934. It contains the following paragraphs, referring to the Trade Marks Act 1905. In paragraph 64 the recommendation on Section 11 is as follows:It shall not be lawful to register as a trade mark any matter the use of which would by reason of its being calculated to deceive or otherwise be disentitled to protection in a court of justice or would be contrary to law or morality or any scandalous design.On Section 55, the recommendation was:The word 'calculated' has been held to mean 'likely' and might be replaced by that word.That was based on the decision of Mr. Justice Sargent, as he then was, in the Egg Products application. Parliament embodied this recommendation in the 703 Trade Marks Act 1938, which is still in force—that is to say, it altered the words "calculated to deceive" to "likely to deceive." The words "calculated to deceive" occur in this Bill in Clause 12(2). At any rate, the word "calculated" surely must have the same meaning all the way through the Bill. I wonder whether the draftsman has ever read Sir Ernest Gower's little book,Plain Words? I think this is a clear case where "calculated" does mean "likely". "Likely" is an ordinary simple, English word, and should be substituted for "calculated" in this Bill.
There is one thing that I would ask. In the 1926 Act it was not necessary for goods originating in a Colony to be marked with the actual name of the Colony from which they came; the word "Empire" was sufficient. I do not know whether the noble Lord who is to reply will be able to say whether the word "Empire" will now be a false trade description for goods coming from Hong Kong, now that the Empire has been liquidated. This was a special provision in the 1926 Act which does not appear to have been reproduced in this Bill. Although at first sight one can welcome this Bill—and I do so without reservation, because certainly this Bill is better than the Merchandise Marks Act, which it replaces—I believe that, like the recent ill-fated Patents (Employees' Inventions) Bill, it needs careful scrutiny, which I have no doubt your Lordships will give it. I give it my blessing, and I do not wish it the fate of the Patents Bill.
§ 5.44 p.m.
§ LORD GIFFORD
My Lords, I rise to speak with considerable trepidation, and I must start by offering the House an apology, because, unlike all noble Lords who have spoken so far, I must confess that I have no specialised knowledge or experience of this problem. My specialised knowledge is limited to a reading of the Molony Report and to a comparison of that Report with the present Bill. My speech will be brief, but I hope it will be the speech of an ordinary unbiased consumer.
We must continually be aware that the Bill with which we are dealing concerns a real human problem: the housewife who has been taken in by the extrava- 704 gant claims of the door-to-door salesman or the bargain offers in the local Press, and finds herself having paid precious money for a shoddy article. She is not only unhappy, not only seriously out of pocket, but feels that sense of anger and frustration which any noble Lord must feel who has been taken in and who feels he has had a bad buy. She may try to fight back, and it may well be that she is no match for the smooth talking salesman, or that her case is not covered by the law. Even if she succeeds in getting her money back, she knows that the man who has tried to hoodwink her will go on to hoodwink hundreds of others.
Our answer to this must be twofold. On the one hand, by such methods as consumer education, by the work of the Consumer Council, of the British Standards Institution and of the voluntary trade associations, we must try to direct the shopper towards the reputable tested goods. But this is not enough, and this legislation provides the other side of the coin. It starts at the other end, and tries to prevent and cut down the likelihood of unscrupulous and irresponsible suppliers being able to have their way. The fact that consumer education does not go very far I believe is shown, if I may have your Lordships' permission, by an example from my own business. Here I declare a small interest. I have for a year been director of a newly established travel agency. For the last six months, because this is a newly established company, we have not had the membership of the Association of British Travel Agents. During those six months there has been considerable publicity to encourage people to book through members of the Association. But the number of clients who have asked why we are not members, or whether we shall be members, or who have drawn attention to this fact in any way, has been minimal—just one or two.
The trouble with this kind of consumer education is twofold. First, as I have tried to show, the public do not always listen, and, secondly, voluntary efforts of this kind have the support of only the reputable suppliers and manufacturers. The irresponsible and unscrupulous are kept outside, and they still have every opportunity to try as hard as they can, because the more irresponsible they are in their claims the more persuasive and 705 forceful they are likely to be, and the greater danger they constitute to the housewife.
As many noble Lords have said, the Bill follows closely the recommendations of the Molony Committee. I should like to draw attention to two aspects of the Bill where it does not follow those recommendations or, in my opinion, falls a little short. The first has been dealt with by many noble Lords this afternoon—the question of oral misdescription. I think it is essential that this paragraph should remain in the Bill. In particular, I think this is so because it will be the only way of dealing with the menace of the door-to-door salesman. I was horrified to read—and I should like, if I may, to quote to your Lordships a small part—paragraph 742 of the Molony Committee Report, which says:We are told that they"—that is, the door-to-door salesmen—are known literally to force their way over the doorstep, to remain in the house for as long as six hours at a time —sometimes until midnight or later—keeping up a hypnotic flow of persuasive sales talk.It may well be that in the course of that six hours of conversation the salesman will make extravagant oral claims for the product which he is selling, and there must be a remedy, a sanction, of the Criminal Law against what is in effect dishonest conduct.
There are two small points upon which I should like to ask questions of the Minister. They are points upon which I do not think the Bill goes quite far enough in implementing the recommendations of the Committee. First of all, in Clause 2(1) there is the definition of a trade description. I should like to ask the Minister whether he is sure that the paragraphs in that clause, and particularly paragraph (i), really cover the case where goods are offered, usually by implication, as new goods when in fact they are not new. Paragraph (i) refers to their history, including previous ownership or use. It might well be that a false representation as to the lack of history or previous ownership might be interpreted as being outside this clause. I should like to have the opinion of my noble friend on that.
My second question concerns Clause 7. I think it is important that this clause should eventually contain a pro- 706 vision that where the Board of Trade has made definitions of certain expressions, similar expressions should also come within the sanctions which are contemplated. In other words, I think it is certain that if the Board of Trade defines the word "shrinkproof" and makes the definition compulsory, the unscrupulous suppliers—and as all your Lordships have said, they are in a minority, but it is this minority with which we are dealing—will immediately change the term and use "shrink resistant", or something like that.
Subject to those two points I welcome the Bill. As my noble friend Lady Phillips rightly said, it is a measure of major importance dealing with a human problem, and I am pleased that it has come to Second Reading in your Lordships' House. Although your Lordships may know that I do not entirely agree with the composition of your Lordships' House, I think this is a very fine place in which this Bill should be initiated.
§ 5.52 p.m.
§ LORD MILVERTON
My Lords, in rising to make a brief contribution to this debate, perhaps I ought to begin by saying that I fully join in the general welcome which this Bill has received, and therefore I am confining my remarks to inquiries which I have made as to the attitude of local authorities which are going to be entrusted with the responsibility of carrying out the provisions of the Bill. The general reaction is one of welcome for these further measures of consumer protection, coupled, of course, with a welcome for the choosing of local authorities as the responsible bodies for enforcement.
Under Clause 26 the local weights and measures authorities—that is, county boroughs and county councils and many non-county boroughs and some urban districts with a population of 60,000 or more—will have this duty. A different local government pattern of local administration might have been chosen—for example, public health authorities and food and drugs authorities—but the choice made seems to me, and to the authorities, to be reasonable. After all, the weights and measures authority has a ready-made inspectorate, trained and experienced in administrative and investigational techniques, and one that is in continuous contact with all kinds of trading activities. It is true that at present 707 there is a shortage of qualified inspectors of weights and measures, but steps are being taken to overcome this, and much of the work contemplated by the Bill could be undertaken by persons without technical qualifications. Where support is required for the testing, for instance, of particular kinds of goods, it can be found in the specialist testing stations established by various agencies, such as, for instance, the Department of Scientific and Industrial Research.
May I say that the Association of Municipal Corporations is confident that its members will perform their new functions under this Bill to the general satisfaction of the public and the trade, Therefore I have no criticisms to make of the Bill. But there are one or two points that I would suggest need some clarification. For instance, one apparently strange provision appears in Clause 30, subsections (2) and (3). It is not clear why the enforcing authorities should have to give notice to the Board of Trade, accompanied by a summary of the facts, at least fourteen days before they take proceedings for any offence under the proposed Act. It is right that the alleged offender should be given notice and information concerning the results of the tests, as proposed by subsection (1), but the Bill nowhere expressly requires the consent of the Board of Trade to the taking of proceedings, and its consent is not required to proceedings under the Merchandise Marks Act.
If the purpose of the notice to the Board is to enable the Board to reserve to itself the power to control prosecutions, then one feels this displays an unfortunate lack of confidence in the ability of local authorities and the courts to distinguish between a frivolous and a justifiable prosecution. Subject to anything which the noble Lord opposite may have to say, one would like to see this proposal dropped. On the question of the cost of administering these new provisions I think one can anticipate that no objection would be raised by local authorities to the increased financial burden; because the costs would not be too great for any one authority.
There are one or two final small comments that I should like to make. They are perhaps comments which would be better reserved in many respects for the 708 next stage of the Bill, but I will just mention them now. Clause 3, by including oral misdescription as a relevant use of a trade description, goes beyond the recommendations of the Committee on Consumer Protection, but I may say that the Association of Municipal Corporations fully supports the proposal, because the need to establish that there has been a written declaration is a limitation on the effectiveness of merchandise marks law. Oral misdescription is an offence under the weights and measures and food and drugs law, and local authorities are well aware of the need to obtain such evidence as would satisfy the courts.
The Bill is not clear, I suggest, as to the place where offences of misdescription are committed. For example, a misdescription which forms part of the packing of an article is applied at the place of manufacturing or packing, and is presumably caught by Clause 3 (1) (a), but is unlikely to be discovered until the goods are actually displayed at sonic later stage and almost certainly in a different place. The place of the commission of the offence is, of course, of importance, as it governs the venue of the hearing of the case. There seems to be no provision in the Bill to the effect that proceedings may be taken either at the place where the offence was committed or where it is detected. One feels that such a provision should be included in order to ease administration of the measure.
Clauses 7 (2) and 10 (2) provide that before making orders defining the meaning of certain expressions and the information to be given regarding certain goods, the Board shall consult representative organisations. Clause 10 (3), however, permits the Board to relax or discontinue the requirements of such orders without such consultation. This, offhand, seems to me to be wrong. Clause 11 may be another controversial clause; it is an attempt to regulate the "3d. off" and "Bargain offer" sales gimmicks. But there may be enforcement difficulties: for example, the accumulation of evidence as to what previous prices had been. But perhaps for experienced officers these may not prove insurmountable.
Clause 23, dealing with offences due to the fault of a third person, differs from the corresponding provisions of the weights and measures legislation; it is 709 not immediately clear how this procedure will work, and an explanation would certainly be helpful. For instance, can the person whom the local authority intend to prosecute, by merely notifying the local authority of his intention to invoke the defence provided by this clause, put the local authority in the dilemma of proceeding against a third person as well as against the apparent offender, or awaiting a decision against the apparent offender and, if necessary, starting proceedings a second time, risking, however, that they may be out of time? With these few comments on the Bill, I wish to support the Second Reading
§ 6.5 p.m.
§ LORD AUCKLAND
My Lords, during the past few years there have been a number of Bills to give the consumer increased protection, and this latest Bill is another important measure in this cycle. In many ways it incorporates provisions from all the other Bills, the Weights and Measures Bill, the Consumer Protection Bill; and, of course, it follows closely on the Molony Report. There was, I know, for some time criticism that the Molony Report was not produced quickly enough. But it is a formidable document, one might say; and if this Bill really does justice to the Report—as it does—I think it can be said that the delay in the production of the Report was to a large extent justified.
In general, in company, I think, with most noble Lords, I welcome this Bill enthusiastically. I regard it as a genuine effort to give both the consumer and the honest and scrupulous retailer the greatest possible protection; and the only people who need fear this Bill are those who are out to break the law. Having said that, I would add that the really big test of the Bill will be over its enforcement.
Reference has already been made to oral misrepresentation, and this kind of thing is very bad. One used to hear it to quite a large extent in television advertisements, but this situation has been considerably cleaned up. But one still finds on television advertisements for various kinds of shampoos which are said to contain all kinds of products; for toothpastes, all of which claim to clean one's teeth whiter than the other. I am not clear whether this Bill will cover that kind of advertising. I should 710 welcome from the noble Lord some assurance that the more pernicious of this type of advertising is covered. I am certainly not against advertising, because any firm must make its products sell by revealing their good points to the general public. I believe that standards of advertising to-day have improved tremendously, and there are very few instances where the public are being deliberately duped. But that makes it the more important that these instances are brought to light.
I should like to refer to Clause 3, which has already been mentioned. I myself have already had representations from shopkeepers fearing this clause. The usual excuse is that they cannot get sufficient trained staff. They have to have students on holiday and such-like, who are very hard-working people but naturally have not had much experience of the retail trade. But my interpretation of this clause is that it refers primarily to deliberately misleading advertising. Quite clearly, if a young shop assistant does not know the correct answer, he or she can normally contact the departmental manager, particularly if it is a large store; and it is frequently in the larger stores that this misrepresentation so often occurs. I particularly welcome Clause 12. I do not know how many producers are claiming the Royal Warrant to-day. It seems to me that there are a great many—I would suspect many too many; and while I would support the claim of the genuine claimants I feel that this Bill does a good service by exposing manufacturers who deliberately misrepresent the Royal Warrant.
Clause 8, too, I greatly welcome, having had quite a considerable hand in the regulations damning flammable nightwear for children. Of course, labelling certain articles presents a problem. It is the more important that a label is properly sewn on or attached so that it does not come off, than that there should be any claim at all. Frequently one sees paper or cloth labels tacked on to goods which will come off in the first wash. I think it is important, too, that labels should go into some detail, particularly labels on fabrics (as my noble friend Lady Elliot of Harwood has said), to ensure that it is quite clearly stated if they will lose their effectiveness if they are bleached or boiled incorrectly.
711 One suspects that the advertising of some other products—for example, pet foods—is suspect. When advertised, each one seems to claim that it has an equal amount of liver in it. I would hope that this Bill will compel manufacturers to prove this kind of statement. I do not doubt that the reputable manufacturers of these products do their utmost to make sure that their claims are true. But, as I understand it, the present laws provide rather a loophole for the less scrupulous firms to peddle their wares without sufficient check.
Quite clearly, there will have to be lengthy discussions in Committee, particularly on the legal aspects of this Bill. But I believe that the main political Parties can be complimented by the general public for getting for the consumer and the retailer measures such as this, which are designed to give the maximum protection.
§ 6.13 p.m.
§ THE EARL OF DUNDEE
My Lords, there are no further questions, beyond those which have already been put by my noble friend Lord Drumalbyn, which I want to ask about this Bill. I should not have risen at all had I not felt that it might be a little discourteous that the Bill should conclude without a final word from this Bench, particularly in congratulating the noble Baroness, Lady Phillips, on the most charming and graceful manner in which she has moved her first Bill in this House. I have seldom heard so long a Bill as well explained in so short a time. I think she set a good example, both of clarity and of brevity.
I should also like to congratulate the noble Earl, Lord Woolton, on a maiden speech which was all the more welcome because of the deep affection in which his late father was held in all parts of this House. All of us have many delightful recollections of our dealings with the late Lord Woolton. The noble Earl spoke. I think, with equal knowledge of, and equal sympathy for, the anxieties of the shopper, often working, as he said, on a tight budget, and also the difficulties which the shopkeeper often finds in trying to comply with all the new regulations, and demands by his customers, which are necessary in modern trade. The noble Earl told us that two months ago he had sold his business. I am sure that 712 will be a matter of deep regret to all the numerous housewives who have been fascinated by his salesmanship in so many cities all over the United Kingdom; but their loss will be our gain, and I hope that he will now come here often and give us the benefit of his great knowledge and experience by speaking often again.
As for the Bill, I think we all welcome it in all parts of the House with very few reservations. Five or six years ago I had the duty of moving and managing in this House the first Weights and Measures Bill which covered rather similar ground. That Bill was much longer than this. It was generally agreed to in all parts of the House. The Party opposite, who were then in opposition, were most helpful in the progress of the Bill. They were so helpful that they put down no fewer than 530 Amendments to the Bill. I do not think that our gratitude will respond to their generosity quite so munificently as that, although we have already been promised by the noble Lord, Lord Airedale, no fewer than 50 Amendments of his own, with which he managed to acquaint us without going through each of them seriatim. I thought perhaps they might all be justified. But our Amendments will all be moved in helpful, and not in hostile, spirit.
I think we must be careful to see that the Bill is not likely to inflict any injustice, particularly in regard to oral misrepresentation, which may be quite involuntary, and particularly also in regard to advertisements, which is a difficult subject. Many of your Lordships have given other examples where it needs close examination, and where it might possibly lead to injustice, which we must do our best to avoid.
In our debates on the Weights and Measures Bill I had to reply to a great many of the Amendments which were moved by saying that they were matters which would be dealt with later when the Molony Report was published. I think, in general, we on this side of the House would say that we think that the Molony Report is a good Report. On the whole, I think that this Bill is better the closer it keeps to the Molony Report; and although the Molony Report is by no means perfect, I think the more dubious parts of this Bill which need the closest examination are those which stray 713 furthest from the Molony Report. But we shall do our best to make our help in Committee as brief as we can.
It is of course a little difficult to have the Second Reading of a Bill only nine or ten days after its publication. I do not complain about that, because it is very much to the convenience of Parliament as a whole, both of your Lordships' House and of the other place, that some major Bills like this should be introduced fairly early in the Session in your Lordships' House. It makes for far greater efficiency of the Parliamentary machine as a whole, and I do not think we ought to complain that in seeking to do this it has been necessary to have the Second Reading rather soon after the publication of the Bill.
The noble Baroness, Lady Phillips, said that she thinks housewives will be delighted with this Bill; and the noble Baroness, Lady Burton of Coventry, claimed that the Bill is a best seller and that the Stationery Office was cleaned out of copies of the Bill on the first day of publication. I do not know whether this was because all the trade associations were in such a hurry to find out what they were being made liable for, or whether it was due to the tremendous boost given to the Bill by Mr. Crossman in a television speech the night before the Bill was published, which also happened to be the night before the North Hull by-election. When I listened to that speech I could not help feeling that it might he a good thing that the penal provisions of this Bill do not apply to political speeches which, although not false, may sometimes be misleading, and which, although not deliberately calculated to deceive, may nevertheless be likely to create an incorrect impression. I wish that all the Government's measures and all their policies, instead of causing prices to rise, were as likely to benefit the housewife as this Bill may be expected to do.
§ 6.22 p.m.
§ THE PARLIAMENTARY SECRETARY, BOARD of TRADE (LORD RHODES)
My Lords, I would begin by congratulating my noble friend Lady Phillips. She presented the Bill with a felicity that warmed our hearts. I hope she will have many more chances during the Committee stage to answer many of 714 the points that will be raised. In regard to the maiden contribution by the noble Earl, Lord Woolton, I entirely agree with my noble friend Lady Burton of Coventry that we on this side of the House used to respect his father, but for different reasons from those for which the other side used to respect him. He was, I think, the finest Chairman the Tory Party ever had.
Many questions have been asked during the course of the debate, I calculate that there must have been about 80 of them—far more than I thought likely at the time when I set out on this Bill. I do not pretend to know the answers to all, but I have the answers to many. A good many of them are Committee points, but I will do my best. We have had a full debate, which has shown the vast interest of many noble Lords in these matters. Some of the doughty campaigners who, through the years, have worked for this legislation have expressed satisfaction this afternoon—which of itself is something. There has been general agreement on many of the Bill's provisions. Some have been criticised, but not so deeply as to move anybody to say that they are antagonistic in any way to the Bill. A number of interesting points have been raised, and I will try to deal with as many as possible.
Before doing so, I should like to turn to a point which was made by my noble friend in her opening speech. Speaking of the structure of the Bill and the problems of marking, she told your Lordships that we intended to repeal the Merchandise Marks Act 1926, on which I have been asked a number of questions, with the rest of the merchandise marks legislation, and to assimilate origin marking requirements with the other labelling requirements for which the Bill provides powers. This would appear to be logical. It helps to bring our origin marking legislation up to date and to remove from it the slur of "protectionism" which has been levelled against it. Under the Bill, the requirement to mark the goods with origin will apply not only to imported goods but also to those produced in the United Kingdom. This should be a matter of satisfaction to all our trading partners to whom we have obligations not to operate such regulations in a way which affords protection to domestic producers.
715 Secondly, although this does not appear on the face of the Bill, any requirements to mark imported goods with origin will be made only under the power provided by the Bill unless they are made either wholly or partly for agricultural reasons, where special considerations apply and for which the criteria in the Bill are not wholly appropriate, as, for example, in the case of seeds. Under whatever legislation they were made, requirements would not be made except in accordance with our international obligations. The noble Lord, Lord Drumalbyn, will understand that situation perfectly when one remembers all the negotiations which he and his Department had with EFTA in earlier years. Any orders made under the Bill would be made jointly with the Agricultural Ministers in appropriate cases as provided by Clause 36. For the next three years, the orders made under the 1926 Act will remain in operation unless, in the meantime, they are superseded by orders made under the criteria in the Bill. At the end of that time they will cease to have effect.
I should like to say a word about the amendment of definition of trade description which has exercised the minds of many people in the House this afternoon. The noble Lord, Lord Drumalbyn, would like us to provide that a trade description should be false or misleading "in a material respect". We gave some consideration to this point when drafting the Bill, and we omitted it for very sound reasons. The term is ambiguous. It could mean "as to some matter which is important". In this sense the term, if added to "false or misleading", is both unnecessary and confusing, in our opinion. In Clause 2 the Bill lays down those matters which are important in describing goods. If a description is false as to one of these matters it is an offence. We want to avoid any suggestion that the court must discriminate between such matters and to say, for example, that for plastic goods to be described as "gold", to take that as an example, is an offence because this is important, but to describe the same goods as "brass" is not an offence because, although this is false, it is not important. This is the sort of confusing distinction which we want to avoid. This is the kind of matter we can hammer out during the Committee stage.
716 "In a material respect" could mean "to a substantial degree". In this sense, too, it is really unnecessary in the context of the Bill. The courts are well able to disregard trifling inaccuracies in deciding whether a statement is true or false. I can see that on matters of this sort the noble Lord, Lord Cawley, cannot wait for the Committee stage; I think we shall have a very entertaining time. On the other hand, we have had a plea from my noble friend Lord Peddie for the definition of trade descriptions to be extended so as to include descriptions which are misleading by ambiguity or omission and which rely for their effect not so much on the stated fact as on the impression formed in the mind of the recipient. I think that if my noble friend will look carefully at Clauses 2 and 5 he will find that this criticism is not altogether justified. Their combined effect is to penalise anything which creates a false impression as to any of the matters which constitute a trade description.
What we have not done, and did not intend to do, is to include in these matters things which might be subjective, as an omission might be. It has been our aim to make this Bill workable in the courts, and to require them to give decisions on matters which cannot be objectively assessed is, in our view, placing too big a burden on the courts. If there are advertisements which err in this way, they are, I am sure, better left, for the time being at any rate, to the voluntary control which has been set up by the advertising industry and which they have entrusted to the able hands of its independent Chairman, the noble Lord, Lord Drumalbyn. May I say that he did not need to tell us this afternoon that he had experience in this field, as it was self-evident all the time he was speaking?
As your Lordships will see, on the one hand we have a request to limit the operation of the Bill by introducing the words "in a material respect". On the other hand, we are asked to widen its scope by including not only what is there in a trade description, but also what is not there. Given these pulls in two opposite directions, we feel that we have done very well to steer such a straightforward middle course.
I come now to oral misdescriptions. My noble friend, in her opening speech, can have left your Lordships in no doubt 717 that we are well aware that there is criticism of the introduction of oral misdescription as an offence. As she told your Lordships, this is no innovation in British consumer legislation. Oral misdescription is an offence under the food and drugs legislation, and it looks as if it may have proved a good deterrent. At any rate, there is no record of any prosecution having been brought in the last three years, and if there were any earlier they were extremely rare. Oral misdescription is also an offence under the Weights and Measures Act 1963. It is too soon after the coming into operation of that Act to draw any conclusions at this stage.
I know that the Molony Committee were hesitant about this question, and finally came down against making oral misdescription an offence. They thought that this might possibly inhibit retailers from giving information and advice, as was suggested by my noble friend Lady Burton of Coventry during the course of her speech. This may prove to be true in some cases, but is it not better for the consumer to be given no information than to be given the wrong information, which is precisely what the noble Baroness, Lady Elliot of Harwood, said in the course of her speech?
Many of your Lordships may have read the recent letter in The Times on this subject from the Director of the Consumer Council, in which he made the point that it makes no difference to the customer whether the lie is a spoken one or a written one. Mention was made of Clause 3(2), and of the position of employee and employer in regard to oral statements. An employee who makes a false oral statement about goods when serving a customer will commit an offence, unless one of the defences in Clauses 22 or 23 is available. If he or she can show that the misstatement was due to a genuine mistake, and that reasonable steps to avoid making the misstatement had been taken, that is sufficient to ensure acquittal under Clause 22. I will not go over the possibilities in this field. I think we can very well leave that until the Committee stage. Nor will I mention the aspect of safety at the moment, as that has been well covered. In the Consumer Protection Act 1961, the Home Office took adequate care of that, but this Bill may, I think, prove a 718 useful complement to that Act, because of the provisions under Clause 9 in regard to advertisements.
I should like to say a word about the new powers, because there have been a good many comments about enforcement. We do not know entirely how we are going to use these powers. We have been very careful in drafting these enabling powers, both to require marking of goods and the giving of information in advertisements, and to issue statutory definitions of terms very widely so that they can be used flexibly. We have deliberately not laid down any rules for initiating any requests for the use of the powers. It may be that the Board of Trade themselves will want, in a particular case, arising from their departmental experience, to introduce a marking regulation or to define a trade term, although I do not think this is very likely.
We are very much in the hands of the population in this field, and it is open to anybody to approach us for action. Perhaps we shall hear from the consumer organisations or from particular trades; but we must wait and see. The only way in which we have tied our hands, which answers one or two of the questions put this afternoon—and I am sure your Lordships will approve of this—is by making it clear that orders will be made under the new powers only after adequate consultation with all bodies has taken place. We shall not use the powers lightly or frivolously, and in making our orders we shall clearly find it necessary to draw on the experience of those who are already practised in the drawing up of requirements of this kind, such as the British Standards Institution. In fact, this is a case where no holds are barred and no doors are shut.
The question of false statements about travel and tourism was brought up, just as it was last week, only then it was in a more ample form. We had a long discussion last week, and I shall not go over all the ground I covered then, though I must say something about it. As I assured the noble Baroness, Lady Elliot of Harwood, on that occasion, we have tried in this Bill to provide some protection in this field for the consumer. My noble friend Lady Phillips explained in her speech that we have had to tread rather carefully in the field of services, of which this is one, because we must 719 not do anything to bring straightforward matters of contract within the scope of a criminal Statute. We have therefore tried to draw up, in the field of services and accommodation, and facilities, a set of offences which are analogous to those which the Bill provides in relation to goods. By this I mean that we are making false statements about services an offence, although, for the reasons my noble friend gave when she opened the debate, these statements must be made knowingly or recklessly where services are concerned. I should like to assure the noble Baroness, Lady Elliot of Harwood, now that Clause 13 would cover the question of advertisements with regard to travel and tourism.
Perhaps I could draw your Lordships' attention to the word "reckless", and to the paragraph in the clause about services which makes it clear that a statement made regardless of whether it is true or false shall be deemed to have been made recklessly. I think this should help to solve a good many of the problems arising from statements made about accommodation that is being offered. Your Lordships will also have noticed that in the clause about services we have not only specified "accommodation" but have also spoken about "location" and "amenities" of any accommodation. As I hope your Lordships will agree, we have given a lot of thought to the way in which the holidaymaker can be bamboozled in advance, and we have done our best to cover the position. Of course, this Bill cannot do everything.
My noble friend Lady Burton of Coventry spoke of guarantees and of exclusion clauses in contracts, and there may be something in what she said. We will look at this; and we shall have an opportunity of discussing it on the Committee stage, However, I must point out that this is not altogether a matter that is appropriate to this Bill. I must say that it has more to do with the Law Commission; and in their First Report they have recommended that a study be made of the question of exemption by contract from Common Law liabilities. I think we must leave this matter to be dealt with in this way.
As to enforcement, again I should like to make a few comments on this subject. There has been some suggestion this after- 720 noon that the Board of Trade should undertake the enforcement of the new legislation. My Lords, this is not really a practical proposition. The Molony Committee recognised that the Board of Trade did not possess the country-wide organisation or the large body of inspectors necessary to police the law, and they thought that this sort of task was unsuited for a Government Department. I must say that I agree with them. This is a job for the local authorities, whose weights and measures inspectors have been commended by many speakers today and who already have a great deal of experience in this field. I was happy to hear the noble Lord, Lord Milverton, expressing himself as he did, saying that they are ready, and that many of them are anxious, to take on this job.
This does not mean that the Board of Trade will lose interest in the matter with the Act on the Statute Book. I know that the advertising industry, although they welcome the Bill as a whole, are worried about the possibility of a number of prosecutions throughout the country arising from one advertisement. But the Board of Trade are going to be kept informed of pending prosecutions—this is the point that the noble Lord, Lord Milverton, made and we shall have power to call for reports from local authorities, as well as of instituting inquiries. So we shall be keeping an eye on things. The advertising industry have referred to the possibility of a wrong verdict of one local magistrates' court severely disrupting a national advertising campaign. That is quite a proper point to make, but I may say that this is a remote possibility, and the law of our country provides for appeals in such cases, anyway.
Moreover, the Board of Trade will also be able to prosecute, and we may well find ourselves doing this in cases of national interest—perhaps where a piece of national advertising is concerned, for instance, and where prosecution by the Board of Trade may not only help the consumer but avoid the wasting of a lot of time and money by a number of prosecutions up and down the country. I can give the noble Lord, Lord Drumalbyn, the assurance for which he asked on this point. But it would not, I think, be wise to go further than this at this stage and to make promises about how the Board 721 of Trade might use this power. However, we shall certainly be watching the position.
§ LORD DRUMALBYN
My Lords, the noble Lord has been very good, but I wonder whether I might ask him this point, because it is causing a good deal of anxiety in the country. Is it contemplated that the Board of Trade will ever take over cases from local weights and measures authorities? Also, can they stop a local weights and measures authority from taking proceedings where the Board of Trade think that such proceedings ought not to be taken, or in order that the Board of Trade may themselves conduct a prosecution?
§ LORD RHODES
Yes, I think that would be so. I think that that is implied. If it were on the scale that I have suggested, it would need a central organisation like the Board of Trade to take up a national prosecution. But we can come to that point on the Committee stage.
My Lords, one or two points were raised by the noble Lord, Lord Cawley, about the inclusion of scent or taste.
§ BARONESS BURTON OF COVENTRY
My Lords, may I interrupt my noble friend, if he is leaving the subject of advertising? Can he give any indication of the Government's thinking with regard to Clause 9(3)? He will remember that I asked him specifically what was meant by "any person"—whether this was the television company or the newspaper.
§ LORD RHODES
There again, I could go on all night answering specific questions, and we should never be finished. If the noble Lady does not mind, I will defer a reply to her until the Committee stage.
§ BARONESS BURTON OF COVENTRY
I do not wish to be unhelpful, my Lords, but I think this is a general question. The noble Lord got the point about guarantees wrong, because that really was not the point I asked, but I am leaving that until the Committee stage. But I would ask him whether he is aware that it is a matter of particular interest to industry and to the advertising profession who is the advertiser in respect of these advertisements about which he has been talking and about which prosecutions may arise. I did ask him quite specifically whether this was the television 722 company, the advertising agency or the manufacturer, and as to where the accusation would lie.
§ LORD RHODES
My Lords, if I mistook the gist of the question, I apologise. I have not got the answer, but I will get it.
The noble Lord, Lord Cawley, mentioned the inclusion of scent or taste. I do not want to go into that in detail. Perhaps that could be raised on the Committee stage, too. Then, as to the extension of Clause 12 and the Royal Warrants, that is a "continuing" provision which repeats Section 20 of the 1887 Act, but in a clearer form and one more appropriate to the general approach of the Bill, which is intended to protect the consumer against misrepresentation in the field of trade. The clause deals with those forms of misrepresentation based on prestige appeal which in our experience are most common and which are in any case capable of simple demarcation. I am not prepared to argue the case any further at the moment. If the noble Lord wants it to be brought out in more detail later, during the Committee stage, I shall be very pleased to deal with it further then.
The answer to the noble Baroness, Lady Burton of Coventry, which I have now got, is that the advertiser would be anyone who had responsibility for the contents of the advertisement. If the noble Lady thinks that she is going to pursue me on this point this evening, she is quite mistaken, because this, I contend, is a Committee point, and I hope that she will leave it there.
With regard to enforcement, which was mentioned by the noble Lord, Lord Cawley, I think that also is a Committee stage point, as is the replacement of the word "calculated" by "likely." "Calculated" is a widely used legal term with recognised connotations. We should, nevertheless, be ready to consider this suggestion sympathetically. This is the same point as that made by the noble Lord, Lord Airedale. The answer to the question of the noble Lord, Lord Gifford, about whether Clause 2(1) is sufficient to cover goods sold as new which are not new, is, Yes. With regard to the point about Clause 7(1) and whether a Board of Trade definition such as "shrinkproof" would cover similar expressions such as "shrink-resistant", the answer is that it 723 could do so if provision were made in the order. Each order will be adapted to meet the purpose for which it is made. The noble Lord, Lord Auckland, asked for an assurance that statements in advertisements —I think he mentioned toothpaste in this connection—would be caught by the Bill. I can assure the noble Lord that any statement made in an advertisement which would amount to a false trade description would certainly be caught.
My Lords, I apologise if in the time that I have allowed myself, I have not been able satisfactorily to answer every point in detail. I understand that we shall have ample time to discuss this Bill in Committee. I sincerely hope that every noble Lord who has made a contribution to the debate will assist us in the Committee stage to make it a better Bill, because there is no doubt that when this House sets its mind to improving a Bill it can and does improve it. My experience with any Bill that I have had to do with in this House is that it has been considerably improved by the attention of noble Lords during its progress through this House. This is an important Bill. I think it is a good Bill. It has had the commendation of every speaker in the House this afternoon, and I am sure that, with me, all noble Lords look forward to the opportunity that we shall have in later stages for its further consideration.
§ On Question, Bill read 2, and committed to a Committee of the Whole House.