PROTECTION OF CONSUMERS (TRADE DESCRIPTIONS) BILL [H.L.] (Hansard, 21 February 1966)

HL Deb 21 February 1966 vol 273 cc11-81 11

§ 3.2 p.m.

§ Order of the Day for the House to be put into Committee read.

§ Moved, That the House do now resolve itself into Committee.—(Lord Rhodes.)

§ On Question, Motion agreed to.

§ House in Committee accordingly.

§ [The EARL OF LISTOWEL in the Chair.]

§ Clause 1:

§ Prohibition of false trade descriptions.

§ 1.—(1) Any person who, in the course of a trade or business,—

(a)applies a false trade description to any goods; or
(b) supplies or offers to supply any goods to which a false trade description is applied;

shall, subject to the provisions of this Act, be guilty of an offence.

§ (2) In this Act expressions used in this section shall be construed in accordance with sections 2 to 6 of this Act.

§ LORD AIREDALE moved, in subsection (1), to leave out paragraphs (a) and (b) and to insert:

"(a) applies to any goods a trade description which is false or misleading in a material respect; or
(b) supplies or offers to supply any goods to which such a trade description is applied ".

§ The noble Lord said: I believe that we have before us a lengthy and possibly arduous Committee stage, and I propose, therefore, to try to set a good example by moving the first Amendment as shortly as I can. This clause creates a criminal offence—the offence of applying a false trade description to any goods. Be it noted that it is an offence which does 12 not necessarly involve any criminal intent at all. It will be perfectly possible to commit this offence without having any criminal intention of any kind.

§ The Molony Committee, in their wisdom, at paragraph 610 of their Report, said this: We think, however, that legislation affectting transactions of everyday occurrence and touching the interests of everybody, as shoppers or traders, should be contained in a single enactment and stated in language as plain and simple as modern draftsmanship can provide. At first sight, no doubt Clause 1 looks plain, simple and straightforward, but it was pointed out in our Second Reading debate by the noble Lord, Lord Drumalbyn, that this Bill is by no means as plain and straightforward as it at first sight appears. Clause 1 says that a person commits an offence who applies a false trade description to any goods. But look at Clause 5. Clause 5 begins: A trade description which, though not false, is misleading … shall be deemed to be a false trade description. I should have thought that the first rule to be observed by the Parliamentary draftsmen would be: never deem anything to be something else. The moment you start doing that you begin to involve people in mental gymnastics, which many of us are no better able to perform than we are physical gymnastics.

§ I do not believe that most Government Departments would have been able to get away with anything like subsection (1) of Clause 5. If the Ministry of Transport had brought before your Lordships a Bill which said in Clause 1: "It shall be an offence to drive a car without being in possession of a driving licence", and then Clauses 2, 3 and 4 had gone on to talk about something else, and Clause 5 had said: "A motor bicycle, though not a motor car, shall be deemed to be a motor car", I believe your Lordships would have said: "Take this Bill away and amend it, and put the motor bicycle in Clause 1 alongside the motor car, and then people will be able to understand what this offence is that we are creating ". If one Government Department could not get away with that, I do not see why another Government Department should.

§ This Amendment is designed to take the "meat" out of Clause 5(1) and to put 13 it into Clause 1 so that there shall be no "deeming" of something to be somethings else. If Parliament wants to make a misleading trade description, as distinct from a false trade description, a criminal offence, the place to do so is in Clause 1, and then people who have to keep themselves clear on the criminal law will know where they stand. I beg to move.

§ Amendment moved— Page 1, line 7, leave out paragraphs (a) and (b) and insert the said new paragraphs.—(Lord Airedale.)

§ LORD CAWLEY
I rise to support this Amendment very strongly, and for another reason. A retrograde step has been taken here, because in the Merchandise Marks Acts 1887 to 1953, which are now in force, a false trade description is defined, in Section 3(1), in just the same way as my noble friend is seeking to put the definition into this Bill. I can see no reason at all why we should take this retrograde step and separate false from misleading trade descriptions. They certainly ought to be together.
There is another point which my noble friend did not note, which was that the Bill, as drafted, has omitted the words, "in a material respect." Whether that adds anything, I do not know. I feel that lawyers, seeing that it has been omitted, may easily say, "It was in the 1887 to 1953 Acts, and it has now been omitted. That must mean something." I should like to know whether the noble Lord can tell me if the omission does mean anything.

§ THE JOINT PARLIAMENTARY SECRETARY, MINISTRY OF LAND AND NATURAL RESOURCES (LORD MITCHISON)
As the two noble Lords who have spoken have indicated, there are three points in this Amendment. The first of them is purely a drafting point. It is no doubt high draftsmanship, but it is no more than draftsmanship, because what the noble Lord, Lord Airedale, said was that he wished to move what is now Clause 5(1) up to what I may call this end of the Bill. He thinks that it is clearer that way. I do not, and I will tell your Lordships why.
Clause 1 sets out in the shortest possible language what is the main object of the Bill, and that is to deal with false trade descriptions. Clauses 2, 3, 4, 5 14 and 6 are all explanations of parts of Clause 1. Therefore, this whole Part of the Bill is rightly headed "Prohibition of false trade descriptions." With great respect to the noble Lord, I believe that that is a much clearer way of doing it than the way in which he wishes to do it. Without unduly relying on authority, I feel that, when this question has been carefully considered by the draftsmen who have advised us in these matters (not only when the original Bill was drafted but, of course, in the light of the comments the noble Lord made on Second Reading), and they come to the conclusion that they find it very much clearer this way, there is something to be said for heeding their advice. In fact I do not think there is as much difficulty here as the noble Lord, Lord Airedale, sought to persuade us.
When we come to Clause 5, we see that the rubric is "Misleading indications treated as false trade descriptions", and in fact if one looks at the substance of the clause it will be seen that it goes a little beyond that. Surely when one comes to administer an Act of this kind the vast majority of cases will be false trade descriptions. We have to cover some misleading descriptions as well, but the main object is to deal with false trade descriptions. The effect of putting in here the words "or misleading" is, of course, to make two offences. A person can be charged with uttering a false trade description or a misleading trade description. I think that is a slightly unnecessary complication. It was curious that the noble Lord mentioned the case of the Ministry of Transport because exactly the same thing has occurred in connection with motoring. I will not trouble your Lordships with the detail, but there is a clause which refers to something or something else, and the justices have recently decided that these were two alternative offences. Therefore, on the drafting point, with great respect, I do not agree with the noble Lord. These remarks are not just off the cuff; we have been thinking about this point. Since the noble Lord made his observations on Second Reading we had a look at the point again and came to the conclusion I have indicated. The effect will be that the Amendment moved to leave out Clause 5(1) will fall, too, unless this Amendment is carried, and I am glad to have the noble Lord's agreement on that.
15 The third point is not a drafting point; it is a question whether the words "in a material respect" should be added. With great respect to the noble Lord, I do not think he has quite appreciated what might be called the structure of the Bill. The material respects are defined in Clause 2(1). They consist of paragraphs (a) to (i) and there are some additions relating to a particular case. Any false description relating to those matters is, by the terms of this Bill material, and a false description relating to another matter is not material. I think that is the right way to do it. After all, "in a material respect" is not a clear phrase; it may mean one of two things. It may mean "in a respect which is substantial"—in which case the courts have the burden of deciding what is and what is not "substantial", or it may mean "in a respect that is material", that is in point, as it were. The latter matter we have dealt with in the way I have described. I think the latter is the more natural meaning, and it is the one I understood the Molony Committee to have in mind. It is perfectly true that the Molony Committee used this phrase, though I do not think they considered this point in any detail, and certainly they did not have before them what we have sought to insert in Clause 2(1). Of course, if you add the words "in a material respect" and you then proceed to define a number of material respects, you will cause quite a considerable confusion.
As the noble Lord quite rightly indicated at the beginning of his speech, by and large this Bill proceeds on the principle that if you do certain things it is an offence and it is not a question of your intention in doing them. That is similar to the provisions of the Food and Drugs Act and, incidentally, the Weights and Measures Act; and the reason the principle was adopted in these Acts was that they are intended to do what this Bill is intended to do; namely, to protect the consumer. We suggest that the right way to protect the consumer is, as in the Food and Drugs Act, to make the actual doing, and not the intention, the offence. For that reason, we think it very much better that the material respects should be clearly defined as they are here and not left to what, in the last resort, might become questions of intention and of great 16 variety in different circumstances. Therefore, I regret to say that so far as the Government are concerned, we are unable to accept this Amendment, or any part of it.

§ BARONESS ELLIOT OF HARWOOD
I should like to say one word about this Amendment in support of what the noble Lord, Lord Mitchison, has just said. I am not in favour of this Amendment, and what I have to say applies to Nos. 1, 2, 4 and 29, all of which deal with the question of "in a material respect". I think there are quite a number of Amendments down with the intention of qualifying the meaning of a "false trade description" under this Bill. This reverts to the phraseology of the existing Merchandise Marks Act, which defines a false trade description as one which is false or misleading in a material respect as regards the goods to which it is applied. The addition of the words "in a material respect" have in the past merely added to the difficulty of the courts, because one has a double qualification. First, the court must decide whether or not a statement is false, and it is then thrown back on the rather philosophical consideration of what is or is not a "material respect". I think perhaps the addition of these words is an attempt to evade the fact that assessing the falseness or otherwise of a statement can only be done subjectively. I think we should admit this and leave the Bill as it is, for, as my right honourable friend Lord Rhodes said in his Second Reading speech, the courts are well able to decide whether a statement is true or false. The addition of the words "in a material respect" is surely tautologous.
My right honourable friend went on to deal with the ambiguous nature of this phrase, and in this I entirely support him. If I may bring in a Scottish legal note, the question of what is or what is not a material term of a contract must have wasted many learned man-hours in the Scottish courts over the centuries. It is indeed ambiguous. I know that when this Bill was drafted serious consideration was given to this phrase before it was thrown overboard and the Consumer Council, for which I speak, endorses the view of the Government. If the noble Lords who are proposing this Amendment are afraid that some insignificant error will bring the whole weight of the 17 courts down upon a seller, it seems to me that they have less faith in the courts than I have. I think the courts are perfectly capable of deciding whether a statement is true or false, and the purpose of the courts to test such matters. I hope that the noble Lord who moved this Amendment will withdraw it.

§ 3.19 p.m.

§ LORD DRUMALBYN
There are two aspects of this matter which are of great importance and my noble friend Lord Airedale referred to them both. I am not sure that he was quite correct in saying that this clause creates a criminal offence, if by that he means that it creates a criminal offence which did not exist before; but the danger is, as my noble friend, Lord Cawley, said, that the omission of these words may be taken by the courts to be significant. In other words, it may be taken by the courts to mean that the scope of the Bill is wider than the present legislation. That was a point with which I thought the noble Lord did not deal; or, at any rate, if I may say so with respect, he did not deal with it sufficiently.
I think the Committee would wish to be assured that the omission of these words will not mean that there is going to be a wide range of new offences created by this Bill I do not think this was the intention. At the present time a trade description applied to goods which is false in a material respect is already an offence. It is true that this Bill changes the meaning of application of a trade description, but to the extent that these words are omitted it would certainly look as if the interpretation of the Bill might be very much wider than the existing legislation.
I think it is as well to remind your Lordships of what the Molony Committee said: To support a charge under present law a trade description applied must be false or misleading in a material respect as regards the goods to which it is applied"— this is the important thing— that is to say, broadly the error must be of such substance that it could fairly be regarded as capable of inducing a purchase. In other words the falsehood or falsity must be something which can do positive harm. Unless it does harm, or unless it is capable of doing harm, there is no point whatsoever in making it an offence. 18 Yet the wording in the Bill at the present time omits these material words. It is not reference to material respect detailed in Clause 2, where what is meant by trade description is listed; it is the fact that as the law is at present, in Molony's view, a "material respect" means that it must be capable of inducing a purchase. If you remove those words you are removing the sense in which a trade description is considered false at the moment.
And of course it is not true that words which are false in their literal sense necessarily do any harm at all. For example, if you go to your tailor he may very well tell you that a particular cloth will "last forever". It is a very common phrase in the trade. It is not true; it is false. As such it would be a false trade description of performance under the Bill. Yet this ought not to be caught up. It is not material. Everybody knows what it means. Therefore it is not going to do anybody harm. One could multiply this kind of qualification. There is no doubt that unless we put in this "material" qualification there is a real risk of offences being widened and of prosecutions being brought in very marginal cases where they would not have been brought before, to no purpose whatsoever. I think this is one of the points my noble friend had in mind.
I do not think I would go so far as to support the noble Lord, Lord Airedale, in joining together "false or misleading", because, with respect, I think different considerations, which I hope will be dealt with later, may be applied, and it may be that different ways of dealing with the matters will have to be looked into. But I think that on the major point here the noble Lord has not yet sufficiently answered the point made in the Molony Committee, and I hope he will be able to give us a little more guidance on it, so that we may be able to proceed with the Bill; because this is the governing clause.
If it would be for the convenience of the Committee, I would explain what I and my noble friends meant in Amendment No. 2, where the qualification is to "false". The subsection would read like this: In this Act the word ' false' shall be construed as meaning false in a material respect as regards the goods to which it is applied, 19 and the other expressions used in this section shall be construed in accordance with sections 2 to 6 of this Act. It is essentially very much the same point as the noble Lord, Lord Airedale, is making. The reason why I drafted it in this way is because frequently throughout the Bill the word "false" comes all by itself; for example, in Clause 5. One wants an interpretation of what "false" means rather than "false trade description" in the governing clause. The effect is entirely the same, and I think my noble friends feel this would be right.

§ BARONESS BURTON OF COVENTRY
I, too, join with what the noble Lord, Lord Drumalbyn, has been saying. I listened with great care to the noble Lord, Lord Airedale, and I think I accepted the points that the noble Lord, Lord Mitchison, made with regard to draftsmanship. I had been trying to find out what was the objection to inserting "material respect", which I think was one of the points made by the noble Lord, Lord Airedale, and really what the noble Lord, Lord Drumalbyn, has been talking about. Doubtless the Minister will be able to reassure us, but I think we are all very anxious that there shall not be a lot of small prosecutions—I use that for want of a better term—resulting from this Bill. My only purpose is to support what the noble Lord, Lord Drumalbyn, has said, and I should like to be told why "material respect" is not considered important by the Government.

§ LORD MITCHISON
It is undoubtedly my fault if I did not make myself clear; it is always one's own fault if one does not make oneself clear. The reason why there is no need to put in the words "in a material respect" is that the material respects are listed in Clause 2. The Molony Committee were not considering that; they were considering something different. The effect of listing them in Clause 2 is to make these the respects on which a charge under Clause 1 can be founded. It is perfectly true that there is no qualification at all, and in these cases we leave it to the courts. as we do in the other Acts I mentioned—the Food and Drugs Act, for instance—to decide which cases are really too trivial to bother about. They apply 20 their rule of not caring about very little matters.
It is said that this clause creates new offences. With respect, it does nothing of the sort. The 1887 Act also started by making one offence, that is, the offence of false description, and the introduction of the word "misleading" in that Act, as in this Act, occurred later on. There is only one offence under this Part of this Bill, and therefore to suggest that we are adding a whole lot of others is quite wrong. But if I have the substance of what the noble Lords and my noble friend were saying, it is really this: they would like "in a material respect" put in, in order that cases which were not covered by Clause 2 might be introduced; because if they are covered by Clause 2 they would add nothing whatever, so far as I can see, to the content of the Bill. Therefore, with respect to them, what they are really seeking to do is to bring in a new category of false trade descriptions; that is to say, false trade descriptions which are false in a material respect not being one of the respects listed in Clause 2. That is what this amounts to.
The only other way of looking at it—I try this one again—is this. Somebody has to decide what matters (I do not use the words "in a material respect") in a false trade description. Our view (and it is the view which follows earlier legislation on other matters) is that the right body to do this is Parliament; and of course, on the motion and advice of the Department which is concerned with the enforcement of this Bill, Parliament will be concerned with it and with the protection of the consumer, which is the broad object of the Bill. We think that that is the right way to do it, and we do not think that it is right to leave to the courts a question which would, I suppose, be one of fact on which evidence might be adduced. One is always reluctant to deprive the Bar of any properly earned emoluments, but this would, I think, complicate the matter a good deal.
I suggest that the whole sense of this is really clear enough. We have said what the material respects are. They are all listed in Clause 2. If any noble Lord thinks that they are wrong there are opportunities for amendment. Indeed, there are some Amendments on the Marshalled List. I suggest that we in Parliament are the right people to decide 21 what are the things that matter in a question of protecting the consumer, and that to leave it in the Bill in vague and general terms, in the form in which the noble Lord, Lord Airedale, would seek to insert it, is really not protecting the consumer at all; it is only going to lead him or her into quite a lot of trouble. It is much better that when we are dealing with a criminal offence we should state quite clearly what matters and what does not matter when it is being committed. For those reasons, I respectfully suggest that the Consumer Council and I are perfectly right over this, and that the best way to protect the consumer is to keep to the list in Clause 2, and not to introduce a little bit of legal "wool", if I may so call it.

§ LORD AIREDALE
I purposely omitted to mention initially the words "in a material respect", which appear in this Amendment, because I thought it probable that other noble Lords would take up this point, and indeed I was not disappointed. Whether the Minister has satisfied your Lordships about the other aspects of this Amendment, I do not know. But I feel quite sure that the Minister has not yet satisfied your Lordships about omitting the words "in a material respect". The Minister told us three times (I wrote it down once) that the words "in a material respect" are covered by the list in Clause 2. In my submission, that does not dispose of the matter, and I do not believe that the rest of your Lordships and the Minister are ad unum on this.
The noble Lord, Lord Drumalbyn, gave an excellent example of the cloth which is boasted of as being everlasting. Let us take another instance. A food canner labels a can "Exclusively the produce of the United Kingdom", and you find that in fact the food has been spiced with oriental spices. Under Clause 2(1)(c), "composition", unquestionably a technical offence of a false description has been committed because that food with that oriental spice is not "exclusively the produce of the United Kingdom". But most of us would say that it is not a misdescription in a material respect. So, notwithstanding that you have here a technical offence covered by the word "composition" in Clause 2, nevertheless it is but a technical offence and is not 22 the sort of offence for which Parliament would wish people to be prosecuted; and, notwithstanding anything the Minister has to say about Clause 2, in my submission it would be useful to add the words "in a material respect". So much for that.
As regards the main purpose of this Amendment, which was to try to get rid of the business of deeming something to be something else and getting the word "misleading" alongside the word "false" in Clause 1, I believe that if I tried to take this Amendment to a Division now I should lose it. But, I am sorry to say, we are going to be with this problem until we get right to the end of Amendment No. 39, because your Lordships may have noticed that the whole of Clause 5, which consists of three subsections, and Clause 6, do absolutely nothing except deem something to be something else; and until we get to the end of the Amendments to Clause 6 we are going to be up against this problem. I believe that if it were possible for me to postpone the vote on this Amendment, which I know it is not, until we get to the end of discussing Clause 6, opinion would by then have swung round in my favour. Certainly I feel at the moment that opinion will probably have swung round in my favour by the time we get to the next stage of the Bill. So, in the meantime, I will ask leave to withdraw this Amendment.
However, before doing so, I would say just this to the Minister. Perhaps we could strike a bargain of some kind. The Minister referred to the side note to Clause 5 and said how clear it is when it says misleading indications treated as false trade descriptions. My counter to that is that the side note to Clause 1 is correspondingly not clear, because it says prohibition of false trade descriptions. If the Minister will have the side note to Clause 1 amended so that it says "prohibition of false and misleading trade descriptions", it may well be that I shall not have to pursue this matter further at the next stage of the Bill. Of course, we are not allowed to seek to amend side notes, because officially they are not part of the Bill. I beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ 3.38 p.m.

§ LORD DRUMALBYN moved, in subsection (2), after the first "Act" to insert: the word ' false ' shall be construed as meaning false in a material respect as regards the goods to which it is applied, and the other The noble Lord said: I feel that I should say a word about this Amendment, because the noble Lord opposite has argued the previous Amendment purely in the terms of that Amendment. He has told us that what is meant by in a material respect ", so far as a trade description is concerned, is the material respects listed in Clause 2. This is a different point altogether.

§ This particular Amendment says that the word "false" shall be construed as meaning false in a material respect. It relates to a trade description about, let us say, the fitness for purpose, or the person by whom manufactured, which is false in a material respect. Again I say that Molony understood "in a material respect" in this connection to mean capable of inducing a purchase. Does the noble Lord dissent from that interpretation of "in a material respect" when applied to the word "false", and saying what we are going to mean by "false" in this Bill? It has nothing now to do with trade description; it is the word "false" alone: whether it is to be false in a material respect. Is he going to say that the present meaning of "in a material respect" is what the Molony Committee supposed it to be? If so, why should this not be written into the Bill again'? This is the point, because we come to it again and again, as the noble Lord, Lord Airedale, has said, throughout the Bill.

§ Take Clause 5—I read the material words: A trade description which, though not false, is misleading, that is to say, calculated to be taken for such an indication of any of the matters specified in Section 2 of this Act as would be false"— I repeat "the matters specified in Section 2 … as would he false." We are saying that the word "false" there must mean false in a material respect, or no prosecution should be brought and no conviction should be obtained. This is all that is involved in it. If Molony is right in saying that "in a material respect" means of such substance that 24 it could be fairly regarded as capable of inducing a purchase, that seems to be a sensible interpretation. If we are going to protect the consumer, we must protect him from harm. It is no good protecting him where no harm is being done. "In a material respect", in this way, means in a respect which may harm him. If it is not going to harm him, it should not come within the purview of the Bill at all. I beg to move.

§ Amendment moved— Page 1, line 11, after (" Act ") insert the said words.—(Lord Drumalbyn.)

§ LORD STRABOLGI
I should like to support the noble Lord, Lord Drumalbyn. I had put down a similar Amendment to Clause 5, but when I saw that Lord Drumalbyn and other noble Lords had put down the same Amendment to Clause 1, I felt, on reflection, that it would be more appropriate here. I should like to thank the noble Lord, Lord Auckland, whose name originally appeared in support of the Amendment, for kindly agreeing to withdraw it so that I could attach my name to this Amendment and ensure that it received some support from this side of the House and so was made an inter-Party matter. This is one of the most important Amendments in the whole Bill. With respect to the noble Lord, Lord Mitchison, I am afraid I am still not convinced that what he has said about the various descriptions in Clause 2 covers the point. There is, of course, a definition of a trade description, but, so far as I can see, there is no designation of a false trade description, as was recommended by the Molony Committee. At present if we do not amend the Bill in this way, a description is either true or it is false. That precisely is the difficulty.
I should like to declare an interest by stating that for some years I worked in advertising. I wonder if Lord Mitchison realises some of the problems facing a copywriter. It is perfectly possible to make a trade description which is false in a literal sense. When I was working for one of the larger women's magazines we faced this sort of difficulty over premium offers. We often had trouble over the description "gold plastic", which Lord Rhodes mentioned on Second Reading. Two or three lipsticks were offered for a few shillings in a gold plastic 25 pochette—and an attractive pochette it was. What was one to do? In the end we used to say "A golden pochette", but under this Bill that would be a false statement. On the other hand, nobody in his senses would expect to get three lipsticks in a pochette made of gold for 3s. 6d. Therefore, the phrase "in a material respect", as I read it, must be taken in the context of common sense. I agree that that is a matter which the court will decide, but under the Bill as at present drafted there is not sufficient protection afforded to the retailer or advertiser. I hope your Lordships will support this Amendment, which is so important, and if the noble Lord cares to press it to a Division it will certainly have my support.

LORD HAWKE
I hope the noble Lord is not going to ride off on his last explanation as to this being a matter that is de minimis. One of the things we dislike very much, is the creating of offences right, left and centre, with the explanation, "Do not worry; they will all be too small, and nobody will worry about them." The trouble is that one day people may worry about them, and all sorts of prosecutions may be brought—prosecutions which at best are an inconvenience and at worst a considerable hardship on the unfortunate person who is taken to court over something which is trivial, and over which, we are told by Lord Mitchison, he should never be taken to court. The fact that the noble Lord has made those promises will be of little avail in years to come. I hope he will approach the matter more realistically, in the way adumbrated by Lord Strabolgi.

§ LORD CAWLEY
There is an alteration as between the Act of 1887 and 1953 and the present Bill. Under the 1953 Act the magistrates could award costs to the prosecution or the defence, regardless of the results of the case. That was a very salutary method of preventing this sort of thing from occurring. That provision does not occur in this Bill, and I feel that that fact ought to be taken into account in considering the words "in a material respect."

§ LORD RHODES
In that case I would suggest to the noble Lord, Lord Cawley, that he puts down an Amendment to cover that particular point. In reply to the noble Lord, Lord Strabolgi, and his 26 mention of a Division, may I say that I should not mind if he did ask for a Division on this particular item. This point, however, has been adequately discussed on the previous Amendment; it is fundamentally and substantially the same for the same theme runs through it on the question of "in a material respect". I was trying to think what would constitute something in an immaterial respect. I heard Lord Strabolgi talking about whether this is a question of something being false or not being false; surely that is a straightforward matter. The phrase "in a material respect" was discarded from our considerations, despite the suggestions of the Molony Committee, which we do not take exactly 100 per cent. as our "bible." The noble Lord, Lord Drumalbyn is arguing on the lines of Molony, and our answer is that this is unnecessary. The courts, without any question whatever, can disregard any trivial inaccuracy and make their own reasonable tolerances on it.
The noble Baroness, Lady Elliot of Harwood, was absolutely right in confirming what I had to say about this point on Second Reading. There is no question about it, these words are ambiguous. There is nothing in them which can give clarity to the clause or assist the consumer in any shape or form. They are ambiguous; they could mean anything. They increase the permutations of what could be read into it. It is a lawyers' beanfeast. It is all very well, but besides lawyers there are simple people who need to be considered. There is no question about it that "in a material respect" does not express the matter in a very straightforward way.
It has been pointed out that in Clause 2(1) the trade descriptions are clearly laid out. Every one of those trade descriptions is an ascertainable fact. If anybody cares to go through them, the facts are ascertainable. As regards the statement about facts being absolutely true or false, I come back here to what was said by the noble Lord, Lord Strabolgi, who put the words into my mouth. They either are, or they are not. Secondly, as I have already said, the term is ambiguous, and can mean either that the matter about which the false statement is made is important in relation to the goods in question, which may be only a personal opinion; or that there is a 27 degree of falseness which is acceptable in particular circumstances.
How are you going to assess what is a material respect in the mind of one man or another, or between different benches all over the country? There is no question here of a lack of clarity. It is false or it is not false, and I am perfectly certain that the courts who will be dealing with this kind of thing are well practised in distinguishing between trifling inaccuracies and others. I am certain that nobody in the Committee would wish them to go further than that. This Amendment is on the same lines as the previous one, and I hope that your Lordships will now say that "material respect" is quite unnecessary, and that the manner in which the Government have framed the Bill is good enough.

§ LORD DOUGLAS OF BARLOCH
I do not think that this matter is quite so simple as my noble friend has made out. He appears to think that all the matters enumerated in Clause 2(1) are things to which you can give the answer Yes or No; it is false, or it is not false. That is very far from being the case. For example paragraph (g) says: place or date of manufacture, production, processing or reconditioning". A complex article may have dozens of different pieces incorporated in it, which have been manufactured at different times, by different persons, in different places, in different countries. If something is put upon this piece of apparatus, which says that it has been manufactured by so-and-so, who, no doubt, is the person who is the principal manufacturer and vendor of it, but it is comprised of parts of that nature, is that a true or a false description? This is not at all a simple question.
Exactly the same applies with regard to paragraph (h) and, also, to paragraph (i) which says: other history, including previous ownership or use". What on earth does that mean? What is the history of a piece of apparatus which has been manufactured out of numerous parts like that? I am sure that this is going to be quite a headache for the courts, if it is going to be said that the whole matter is governed by Clause 2, and that you must say whether a statement is true or false. It is not at all 28 simple like that. The real question is whether or not it is calculated to mislead, but the Bill does not say that at all.

§ LORD DRUMALBYN
I do not think that the noble Lord has really directed his mind properly to this question. He says that the words "in a material respect" may mean one of two things. I put to him an absolutely straight question. Does he agree with the words which Molony has used as a description? If he does agree that that is sufficient, we can quite easily put in a definition of the words. There need not be any grounds for thinking that there is any dubiety at all about the words. We could then put down a definition of the meaning of "in a material respect" in the Interpretation Clause. This would get rid of any trouble whatsoever, if this is what the noble Lord thinks. What we have not heard is whether or not he thinks that this interpretation is desirable.
What I feel in this connection is that it is so easy to go on multiplying offences, creating more and more offences, for this is what this Bill does if these words are left out. The words "in a material respect" must mean something at the present time, and if you cut them out then you have a wide range of offences. All you are doing is leaving it to the administration, to the bureaucracy if you like, and those who may prosecute, to decide whether to bring a prosecution in a particular case. But they are all offences. Any falsehood, anything that is not actually true, then becomes an offence. Why should it? There are all kinds of things that are not really either true or false. They may not be literally true, but they are true in effect. Good heavens! I believe that Keats said that poetry "should surprise by a fine excess", and yet poetry expresses truths. The same thing applies, for example, in advertising. The essential truth is expressed, although what is said may not be literally true. This is what the noble Lord, Lord Strabolgi, was trying to make clear to the Committee.
On the other side, it may be equally true that statements are false in the sense of being misleading, although they are true—a point which I developed on the Second Reading. They may be literally true, but they may in effect be false because they are misleading. They give a wrong impression if taken out of context. 29 Therefore, it will not do to try to make this clear distinction between false and true. One cannot get away from the fact that the scope of the offences is being enormously widened, unless these limiting words are put in. Therefore, I see no option but to divide the House.

§ BARONESS BURTON OF COVENTRY
I do wish my noble friend would think about this again. I really and truly do not think that we want to see unnecessary cases going to the courts, with the courts deciding that a case is too trivial to be heard. We do not want them even to reach there in the first place. I do not see why my noble friend cannot say, as the noble Lord, Lord Drumalbyn, has just asked him, whether he stands by the Molony definition in this particular case. I do not think it is enough, as my noble friend Lord Mitchison did on a previous Amendment, to get up and say that there is a list of what the Government consider to be these cases. I am most dissatisfied—

§ LORD MITCHISON
With great respect to my noble friend, that is not what I said. What I said was that Molony's comments were in a different context.

§ BARONESS BURTON OF COVENTRY
I am so sorry. We shall obviously know when we look atHansard to-morrow. I accept what my noble friend has said. But I understood him to say that we do not require the words "material respect" in this Bill, because if we look at Clause 2 we can see listed there what is regarded as being a material respect. I am dissatisfied with what the Government have said in this respect, and I wonder whether, as this seems to be the majority opinion, at any rate of those of us who have spoken on this matter, my noble friend could take pity on our lack of understanding and explain a little more clearly why these words should not be in the Bill.

§ LORD CONESFORD
May I put one point? I apologise for having been away for the main part of this discussion. The difficulty seems to me to arise from the fact that a change in the wording from

§ what has appeared in previous Statutes would be liable to make the courts think that something different must be intended. On the other hand, I can follow some of the objections raised by Ministers to putting into this very simple, introductory clause, so to speak, something which, in itself, appears to be vague and even to introduce some uncertainties.

§ A possible compromise occurs to me. What this first clause does is to say: Any person who, in the course of a trade of business, applies a false trade description to any goods … shall, subject to the provisions of this Act, be guilty of an offence". Now I see no great objection to the words as they now stand provided that subsequent provisions of the Bill avoid the sort of dangers to which my noble friends have called attention. At this stage, it seems to me, we cannot possibly know. I think the point was raised just as I came into the Committee by the noble Lord, Lord Airedale, in withdrawing his own Amendment. I have a great deal of sympathy with what he said about the possible necessity to come back to this matter if, at a later stage, we have not put into the Bill provisions which meet the points raised by my noble friends. I rather hope that my noble friend does not press his Amendment at this stage, because I see no great objection to these words as they stand in this first introductory clause, provided that subsequent provisions of the Bill guard against the dangers to which my noble friends have called attention.

§ I apologise for having given less study to the Bill than I know many of my noble friends have, but I should have thought that the words "subject to the provisions of this Act" would enable the Government to insert provisions which would avoid the dangers that my noble friends have in mind in a happier way than the Amendment which my noble friend has at the moment before the Committee.

§ 4.6 p.m.

§ On Question, Whether the said Amendment (No. 2) shall be agreed to?

§ Their Lordships divided: Contents, 52; Not-Contents, 28.

CONTENTS
Airedale, L.	Baldwin of Bewdley, E.	Burton of Coventry, Bs.
Amulree, L.	Birdwood, L.	Carrington, L.
Atholl, D.	Blackford, L.	Cawley, L.
Auckland, L.	Brooke of Ystradfellte, Bs.	Chesham, L.
Clwyd, L.	Goschen, V. [Teller.]	Moynihan, L.
Coleraine, L.	Grenfell, L.	Oakshott, L.
Colwyn, L.	Hawke, L.	Ogmore, L.
Croft, L.	Howard of Glossop, L.	Rea, L.
Dilhorne, V.	Ilford, L.	St. Helens, L.
Douglas of Barloch, L.	Lincoln, Bp.	St. Just, L.
Drumalbyn, L.	Luke, L.	Strabolgi, L.
Ebbisham, L.	Margadale, L.	Strang, L.
Effingham, E.	Merrivale, L.	Strange of Knokin, Bs.
Falkland, V.	Meston, L.	Swinton, E.
Ferrers, E. [Teller.]	Monsell, V.	Thurlow, L.
Forster of Harraby, L.	Morrison, L.	Wade, L.
Fortescue, E.	Mowbray and Stourton, L.	Woolton, E.
Gaitskell, Bs.
NOT-CONTENTS
Archibald, L.	Gardiner, L. (L. Chancellor.)	Phillips, Bs. [Teller.]
Arwyn, L.	Greenway, L.	Plummer, Bs.
Blyton, L.	Henderson, L.	Rhodes, L.
Bowles, L.	King-Hall, L.	Royle, L.
Burden, L.	Latham, L.	St. Davids, V.
Champion, L.	Leatherland, L.	Shepherd, L.
Chorley, L.	Listowel, E.	Sorensen, L. [Teller.]
Citrine, L.	Macpherson of Drumoehter, L.	Summerskill, Bs.
Elliot of Harwood, Bs.	Mitchison, L.	Wells-Pestell, L.
Emmet of Amberley, Bs.

On Question, Amendment agreed to.

§ Resolved in the affirmative, and Amendment agreed to accordingly.

§ 4.11 p.m.

§ On Question, Whether Clause 1, as amended, shall be agreed to?

§ LORD DRUMALBYN
May I ask a question on Clause 1? I am wondering whether the words … in the course of a trade or business are really necessary. The effect of leaving them out, of course, would be to include sales by private persons, whether advertised or not, and one doubts whether this discrimination is really desirable. People can be just as easily deceived in sales between private people, particularly through the advertisement columns of newspapers, as they can in the ordinary course of trade or business. If a private person puts an advertisement into a newspaper to sell, say, a motor-cycle, I am not sure whether that is done "in the course of a trade or business ". I should have thought not, unless he made a habit of it. But I cannot see any reason why he should be allowed to get away with falsehoods and misrepresentations any more than any other person. I wonder whether the noble Lord could explain this.

THE DUKE OF ATHOLL
Surely if these words were not included, anyone who applied a false description to any goods, even if he were not intending to 32 sell them, might—I say only "might" be liable to prosecution. I should have thought that this is perhaps why these words have to be included.

§ LORD DRUMALBYN
May I just intervene to say that we have moved the words "in a material respect" so far as falsity is concerned.

LORD HAWKE
I think there is a very large volume of business going on in this country in the way of advertisements in local newspapers and in such papers as Exchange and Mart and so on; and if sauce for the goose is sauce for the gander, if there is going to be an onus on people engaged in trade or business, I think we also ought to put a similar onus on owners of goods advertised for sale in papers to see that they are properly described.

§ LORD MITCHISON
I think that the omission of these words would open the door too widely and would involve a large number of people whom it is not the intention of the Bill to make guilty of any offence. As between the noble Duke, the Duke of Atholl, and the noble Lord, Lord Drumalbyn, I think I prefer the former. On the last point, I suggest that questions about advertisement would perhaps be better considered when we come to the clause dealing with advertisements.

§ Clause 1, as amended, agreed to.

§ Clause 2:

§ Trade description

§ 2.—(1) A trade description is an indication or anything commonly taken as an indication, direct or indirect, and by whatever means given, of any of the following matters with respect to any goods or parts of goods, that is to say—

(a) quantity, size or gauge;
(b) method of manufacture, production, processing or reconditioning;
(c) composition;

§ (i) other history, including previous ownership or use.

§ (4) Notwithstanding anything in the preceding provisions of this section, the following shall be deemed not to be trade descriptions, that is to say, any description or mark applied in pursuance of—

(a) the Fertilisers and Feeding Stuffs Act 1926;
(b) section 2 of the Agricultural Produce (Grading and Marking) Act 1928 (as amended by the Agricultural Produce (Grading and Marking) Amendment Act 1931) or any corresponding enactment of the Parliament of Northern Ireland;
(c) the Plant Varieties and Seeds Act 1964;
(d) the Agriculture and Horticulture Act 1964 or any corresponding enactment of the Parliament of Northern Ireland;
(e) the Seeds Act (Northern Ireland) 1965;

and any mark prescribed by a system of classification compiled under section 5 of the Agriculture Act 1966.

§ 4.16 p.m.

§ LORD DRUMALBYN moved, in sub-section (1), to leave out" or anything commonly taken as an indication ". The noble Lord said: The effect of this Amendment is to leave out certain words so that the clause will read: A trade description is an indication, direct or indirect, and by whatever means given, of any of the following matters with respect to any goods. … I understood the noble Lord, Lord Mitchison, to say at an earlier stage that all the matters specified in Clause 2 were matters of fact, and that the important point was whether descriptions were true or false. If we add the words "or anything commonly taken as an indication" we bring in an element of vagueness, whereas if we leave them out we have complete certainty. I think it is important that Clause 2 should be, so to speak, the rock on which this Bill is built, something that is absolutely sure and certain and in which there should be no room for 34 dispute on any of the matters concerned. They should be matters of fact so far as it is humanly possible for them to be made so.

§ I agree that in regard to "performance" and "behaviour" there might be a certain amount of elasticity—this is bound to be so, especially when you are dealing with animals, for one cannot predict exactly how they are going to behave or perform. But, apart from that, I would hope that it would be possible to be absolutely precise here. I feel that the words "anything commonly taken as an indication" introduce an element of vagueness which is undesirable.

§ LORD CAWLEY
I think that the words that my noble friend seeks to exclude should be excluded for the reason that the point happens to be covered by Clause 5(2). That subsection reads: Anything which, though not a trade description, is calculated to be taken for an indication of any of those matters and, as such an indication, would be false, shall be deemed to be a false trade description". I should have said that the words: or anything commonly taken as an indication which are new in. this Bill and were not found in the old Acts, would fall within the meaning of Clause 5(2).

§ LORD MITCHISON
These words, of course, come from the 1887 Act and have been in force for a very long time. They are intended to deal with trade descriptions and matters of that sort. I think that to leave them out altogether would open the door rather wide to people who would be using a trade description falsely and yet could not be caught. That is the kind of case they are intended to cover. I appreciate the force of what the noble Lord said: that one wants to be absolutely clear in this case. On the other hand, what one wants to be clear about is the impression on the mind of the purchaser or victim, or whatever he should be called. If we are not going to cover what is "commonly taken as an indication", we are not really dealing with the true impression made on his mind. I said (I hope rightly, and I still think so) that in a Bill of this kind you ought, so far as you can, to rule out questions of intention, because the object of the Bill is to make certain things 35 absolutely prohibited and to provide defences in the case of proceedings. But I think that we had to consider the impression on the mind of the purchaser.
For that reason, these words, which are well understood and have been in force for a long time, ought to remain. To remove them would allow people to get away with offences by saying that something which was commonly taken as an indication but which on the face of it was obviously false, would not seem so to outsiders because they are not in a position to "commonly take". I hope I have explained the intention of the clause sufficiently on this point. I understood from the noble Lord that this was a probing Amendment to find out what we have in mind, and if there is anything more I can add to what I have said, I will willingly do so. But my own feeling is that the Amendment ought not to be passed.

§ LORD CAWLEY
I do not know whether the noble Lord is aware that in the 1887 Act the words: "according to the custom of the trade" came before "is commonly to be taken to be an indication". Surely that is better than merely "commonly".

§ LORD MITCHISON
Yes, but we are not discussing an Amendment to insert these words. Taking the Amendment as it now stands, I hope that the noble Lord will agree that the substance of the matter is that if these words were removed, there would be cases which could not be dealt with but which ought to be dealt with.

§ LORD DRUMALBYN
I am grateful to the noble Lord for his explanation, but I should feel happier if he had been able to give one or two examples of what is meant.

§ LORD MITCHISON
I can give one fairly obvious example—that is, the title of a standard issued by the British Standards Institution. If someone puts "BSM 999", or whatever the number may be, on a commodity, it is not false on the face of it, but it is commonly taken as in indication that it is a first-class commodity.

§ LORD CONESFORD
May I point out that the Minister seems to be wrong 36 on this? In the example he has given, it would be an indication. I think that his best point, which is a good reason why my noble friend should not press this Amendment to a Division, is that the very argument that was used against the Government on the previous Amendment, which went to a Division, is available to the Government on this occasion—namely, the precedent of previous Acts. What I should like, as would my noble friend, is an example of something that will be caught by these words but would not be caught by the clause as it would stand without them. I really think that in the example he has given of the British Standards, the noble Lord is making a false point, because, whatever one may think of a particular mark being obscure to many people, there is no doubt whatever that it is an indication.

§ LORD MITCHISON
As there are 127 Amendments on the Marshalled List and we are all agreed that this Amendment ought not to be pressed, perhaps the Committee will allow me to tell the noble Lord opposite that in this instance I was quoting from the papers that had been given me by the Board of Trade, and however impeccable his logic may or may not be, I feel that on the substance of the matter we stand together.

§ LORD DRUMALBYN
I certainly do not wish to press this matter any further, but I would ask the noble Lord to have a further look at it. It looks, especially in view of what my noble friend Lord Conesford has said, as if the omission of the words to which my noble friend Lord Cawley referred changes the meaning of "commonly". An indication is an indication, whether it is commonly taken as an indication or not. If we use the words that were in the Merchandise Marks Act relating to customs of the trade, we get a different interpretation of "commonly", because it goes much wider and is not restricted to the trade, in a manner which the general public cannot understand. I hope that the noble Lord will look at this point again, and I beg leave to withdraw my Amendment.

§ Amendment, by leave, withdrawn.

§ 4.26 p.m.

§ LORD AIREDALE moved, in subsection (1), to leave out "or anything 37 commonly taken as an indication" and to substitute of a material kind, or anything commonly taken or likely to be taken for such an indication".

§ The noble Lord said: The purpose of this Amendment is rather difficult to follow, and the best way of explaining it, I think, is to say that it is an Amendment to page 2, line 1. But if your Lordships will look at page 4, line 1, to which the noble Lord, Lord Cawley, referred, you will see that it says: Anything which, though not a trade description, …"— I leave out some words— shall be deemed to be a false trade description. The purpose of this Amendment is to take the words I have left out of Clause 5(2), which I have quoted, and put them into Clause 2, which deals with trade descriptions and explains fully what they are. Then we should have a more satisfactory situation, whereby Clause 2 would deal with everything about what trade descriptions are, and there would no longer be any need to have in Clause 5(2) words which, in effect, say that something not in Clause 2 shall be deemed to be a false trade description. I think that this unsatisfactory way of legislating should be avoided, if we possibly can. I beg to move.

§ Amendment moved— Page 2, line 1, leave out from (" indication ") to (" direct ") in line 2, and insert (" of a material kind, or anything commonly taken or likely to be taken for such an indication ") —(Lord Airedale.)

§ LORD RHODES
The noble Lord, in his Second Reading speech, brought up this point about bringing the words from Clause 5(2) into Clause 2. However, the noble Lord's Amendment qualifies the matter by the words "of a material kind". The arguments have been put against this qualification. May I say to the noble Lord that in a Bill of this kind—and I am sure he will agree—we do not want to overload the early clauses. There is really no point in it, when it can be split up and the matter caught under Clause 5. I think Amendment No. 33 comes into consideration here. We have already discussed the pros and cons of "in a material respect ". We feel that they are in the same vein as those on of a material kind", and we 38 cannot accept this Amendment. I am afraid that if we accept "likely", which may be substituted for "calculated", it would make for complication rather than simplicity. We could not agree to include in Clause 2 the rather special type of idea which Clause 5(2) is designed to cover, for the same reason that we put up when we were considering the previous Amendment.

§ LORD AIREDALE
I am obliged to the noble Lord for his explanation. This is not a matter that I want to take to a Division, and I beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ 4.32 p.m.

§ LORD DRUMALBYN moved, in subsection (1), to add to paragraph (c): "in whole or in part". The noble Lord said: This is a small Amendment, merely to ask why the Government have not followed the recommendation of the Molony Committee. The Molony Committee, in paragraph 636, on page 210 of the Report, say: Our recommendation is that ' trade description ' should be re-defined to mean any description, statement, or other indication, direct or indirect. Then in sub-paragraph (6) they say: as to the material of which any goods are composed"— to add the existing sub-paragraph (d) in the Merchandise Marks Act— in whole or in part". Then they add: The intention here is to establish that misstatement of the composition of an accessory or subsidiary feature of the article is an objectionable"— I think there is a misprint there — as misstatement of the composition of the main fabric, casing, or other principal constituent.

§ I merely ask the Government why they have not accepted this. The intention, of course, is to make it clear and simplify it for the public, so that they may know that "composition" means "in whole or in part". I am sure it is the intention of the Government that "composition" should include "in whole or in part", but I think that in legislation of this kind we want to make the matter as clear as we possibly can to the general public. I beg to move.

§ Amendment moved— Page 2, line 8, after (" composition ") insert (" in whole or in part ").—(Lord Drumalbyn.)

§ LORD MITCHISON
In this case I agree entirely with what the Molony Report said: I did, in fact, agree in the other case. In both cases it is a question of context. Here, if the noble Lord looks in line 4, he will see, the following matters with respect to any goods or parts of goods … We took the view that this covers a good deal more, because it relates to other paragraphs in the subsection, as well. I find it difficult to see any case that would be covered by this Amendment which would not be covered by "any goods or part of goods". I would say that, as always, I did a bit of head searching about it, but I failed to find any. Perhaps the noble Lord has one.

§ LORD DRUMALBYN
I am quite prepared to rest on the guidance that the noble Lord has obviously had on this matter. If he is not prepared to accept the Amendment for the good reason that he thinks this point is wholly covered and sufficiently explicit, I beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ LORD PEDDIE moved, in subsection (1), after paragraph (f) to insert: ( ) conformity with a type approved by any person ". The noble Lord said: I think it would be as well if I first explained the purpose, as well as the effect, of this Amendment. Its purpose is to bring within the definition of "trade description" an indication, direct or indirect, or by whatever means may be given, that any goods or parts of any goods conform with a type approved by any person. In short, the effect of the Amendment would be to make it an offence to apply such an indication to any goods, or to sell goods to which it was applied, if it were false; that is to say, if the goods did not conform to an approved type.

§ It is true that the definition of a trade description in Clause 2(1) is already comprehensive, but it contains, perhaps, a small but significant omission. I think noble Lords studying this will appreciate that as it reads at present it would not 40 be an offence for a manufacturer to make a false claim that his goods were approved by a body, such as the Council of Industrial Design, or some similar body, or that they were selected by some celebrity. Your Lordships know that many goods advertised indicate that they have been approved by some celebrity or other. My Amendment would remedy this omission, and I hope that it will commend itself to your Lordships. I beg to move.

§ Amendment moved— Page 2, line 13, at end insert the said subsection.—(Lord Peddle.)

§ BARONESS PHILLIPS
Your Lordships will be pleased to know that the Government are happy to accept this Amendment. This is a small omission, and the noble Lord's Amendment would remedy it. I hope I am not being too simple in suggesting to the noble Lord, Lord Airedale, that if we accept this Amendment we cannot accept Amendment No. 7. I know that I cannot anticipate, but I am used to a slightly different form of discussion of Amendments—namely, that if one Amendment is carried, another automatically falls. We have considered both Amendments, and the Government are willing to accept this one.

§ LORD PEDDIE
I thank my noble friend for the acceptance of this Amendment.

§ LORD DRUMALBYN
The noble Lord, Lord Peddie, in introducing the Amendment, said (I think these were his words), "approved by any body or selected by any celebrity".

§ LORD PEDDIE
Approved by.

§ LORD DRUMALBYN
I heard the noble Lord use the word "selected".

§ LORD PEDDIE
Indicated as having been approved by.

§ LORD DRUMALBYN
Approved by a celebrity. Will this cover the case of selections by any body as the "best buy"?

§ LORD PEDDIE
This is merely an indication of the accuracy of the statement that is made: that if the statement is made that it is approved, say, by the Council of Industrial Design, or selected 41 or approved by any celebrity, the statement is true.

§ LORD DRUMALBYN
That does not quite cover the point. It is known that there are certain bodies of various descriptions which select "best buys". I am merely asking—and perhaps the noble Lord can tell me—whether this is covered by this paragraph.

§ LORD MITCHISON
I am not sup-posed to be here, but I should have thought that it could not cover anything but what is specifically stated; that is, a type approved by any person.
If you say that it is much better to buy Mitchison cough drops, approved by Mitchison, then "approved by Mitchison" is all right, but to say that they are the "best buy" is quite another proposition. I hope I have made myself clear. It seemed to me to be quite different.

§ LORD AIREDALE
May I suggest that if the advertisement said that Mitchison's cough drops were approved by Drumalbyn, that would lead people to say that they really must he marvellous?

§ 4.40 p.m.

§ LORD AIRDALE had given Notice of an Amendment, in subsection (1), after paragraph (f) to insert: ( ) conforming with a statement specified or recognised by any person or implied by the approval of any person". The noble Lord said: Undeterred by what I was told was going to be the fate of this Amendment, I hereby move it. I must apologise for a mistake. In this Amendment the word "statement" is intended to be "standard", and I hope that, with the leave of the Committee, I may move it in that form so as to read: conforming with a standard specified or recognised by any person or implied by the approval of any person. I should say that this Amendment and No. 34 will stand or fall together. I am sure that, if the noble Baroness has anything to do with it, they will fall together; nevertheless, I shall press on.

§ Your Lordships will see that subsection (3) of Clause 5 says: A false indication … that any goods comply with a standard specified or recognised by any person or implied by the approval of any person shall be deemed to be a false trade description …". 42 The operative words in that subsection are almost identical with words recommended by the Molony Committee, which were drafted by them and included in italics in paragraph 638 of their Report. The Molony Committee suggested—and I am seeking to agree with them here—that those words should be incorporated in what has become Clause 2 of the Bill, and should take their place as some of the matters explaining the expression "trade description" in Clause 2. I hope that your Lordships will accept the advice of the Molony Committee, and will agree to this Amendment, which includes those words in Clause 2 as part of the definition of a trade description, when there will be no need whatever for subsection (3) of Clause 5, which deems something to be a false trade description which otherwise it would not be. I beg to move.

§ Amendment moved— Page 2, line 13, at end insert the said paragraph.—(Lord Airedale.)

§ LORD RHODES
I am grateful to the noble Lord for mentioning the mistake of "statement" for "standard" in the Amendment. Although there were a spate of Amendments put down on the Order Paper which caused the Board of Trade to do a little overtime at the weekend, the mistake of "statement" for "standard" did not cause any extra time to be spent. Had it not been a mistake, I could not have made any sense out of the Amendment. I am obliged to the noble Lord for having referred to the fact that this Amendment can be taken with the Amendment to Clause 5, to leave out subsection (3), and perhaps the noble Lady will agree. I think that if one goes, the other also goes. Even with this change, and this assumption, I cannot advise your Lordships to accept the Amendment.
Claims to conformity with a standard which contains specifications relating to any of the matters listed in Clause 2(1), paragraphs (a) to (i) (those are the trade descriptions we have mentioned so often this afternoon), are already embraced in the definition of a trade description. This has been established by the courts in relation to the existing legislation, and to this extent the Amendment is unnecessary. As to claims to comply with standards which do not 43 relate to any of the matters listed in Clause 2(1), paragraphs (a) to (i), such standards, which ex hypothesi cannot relate to any physical characteristic—otherwise they would relate to one or more of the matters listed in the same trade descriptions in Clause 2—are not very common, and are normally signified by the approval of a person or body. For instance, compliance with a standard of good design may be signified by the Council of Industrial Design's approval of a particular type or model. My noble friend Lord Peddie moved an Amendment which was acceptable to your Lordships which covers this type of claim more aptly than the Amendment which we are discussing at the present time.
I come now to the most important point which I want to make on this Amendment; namely, that it does not cover claims to comply with a fictitious standard. The Molony Committee thought, and we agree, that we ought to catch the abuse of marking goods with a British or other standard which simply does not exist. There have been examples of people being bamboozled by claims of this sort, and I am sure that this kind of trickery ought not to be left uncovered by the law. For all these reasons, I must ask your Lordships to reject this Amendment.

§ LORD AIREDALE
I am much obliged to the noble Lord, but if his last words were the most important—that this Amendment does not include fictitious persons—then why not accept it, and add to it the words which are used in subsection (3) of Clause 5 notwithstanding that there is no such person or no such standard so specified, recognised or implied and then put the whole thing into Clause 2 and do away with this unnecessary deeming of something to be a false trade description which otherwise is not?

§ LORD RHODES
I sympathise with the idea for this concertina process, but we do not agree. We think that Clause 5 should remain as it is, and that we should not concentrate everything on Clause 1. On the best experience, we believe that this is the best way of doing it. If I went a little far on the important point I raised, all I can 44 say is that the noble Lord's point is adequately covered by the Amendment which was moved so well by my noble friend Lord Peddie.

§ LORD AIREDALE
I am much obliged. I will study with great care the noble Lord's words in Hansard, and meantime I beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ 4.50 p.m.

§ THE DUKE OF ATHOLL moved, in subsection (1), after paragraph (f), to insert: ( ) use by any person, company or organisation; ". The noble Duke said: This Amendment is somewhat on the same lines as that proposed by the noble Lord, Lord Peddie, which has just been accepted. However, it covers a slightly different point and one which I do not think is covered by any of the other paragraphs in Clause 2(1). If it is so covered, I shall, of course, be perfectly happy with that. But if it is not, I should like the Government to consider the two examples I am about to give.

§ There are types of advertisements claiming that a particular Member of your Lordships' House "always uses such-and-such a soap". If this is true, well and good. If it is false, is it covered by any of the other paragraphs of Clause 2(1)? In parenthesis, I cannot quite understand why the great British public should regard Members of your Lordships' House as being good buyers in any way at all. I would take the opposite view, but some advertisers appear to consider that as a body we are good buyers. I have also tried to cover the case where there might be an advertisement of this type: "' Hi-Fi' helicopters are always equipped with 'With-It ' washers ". One may discover that either "Hi-Fi" helicopters do not exist or, if they do exist, that the only washers they have in them are on the taps of the wash-hand basins with which, presumably, they would be equipped; and that in any event they were supplied by a sub-contractor. This seems to me to be misleading, because I think a member of the general public would be led to believe that "Hi-Fi" helicopters were absolutely stiff with "With-It" washers in every direction, 45 and therefore the washers would be a good product.

§ I should like to know whether these two examples would be covered by Clause 2(1) as amended or whether something on the lines I have suggested should be inserted to cover them. I beg to move—

§ Amendment moved— Page 2, line 13, at end insert the said paragraph.— (The Duke of Atholl.)

§ BARONESS ELLIOT OF HARWOOD
I wonder if I may ask a question on this Amendment. On studying it I was under the impression that it might cover testimonials. The Amendment says, "any person, company or organisation ". Testimonials can be very persuasive at times, and unless they are true (and sometimes they are not), could badly mislead. In this clause we are discussing various descriptions which could be false but there does not seem to be a provision dealing with the question of testimonials. If that is so, and if the noble Duke's Amendment would cover this, it seems to me it would strengthen the Bill.

§ LORD CAWLEY
I think that Clause 12 covers some of these things, but as at present drafted it is confined to Her Majesty, any member of the Royal family, or any Government Department". Why arty Government Department should be placed in that company, I do not know, but one would have thought it would be better to put this Amendment into Clause 12:, indeed, I have put down Amendment No. 66 to widen the scope of Clause 12 to cover Her Majesty and any other person. I think that if the noble Duke's Amendment is accepted, it will to some extent be duplicated in Clause 12.

§ LORD B1RDWOOD
May I ask my noble friend the Duke of Atholl why the makers of "With-it" washers should not be allowed to say that they are used in "Hi-Fi" Helicopters? I work in advertising every day of my life it is my business arid I use these devices daily. I use testimonials. Any responsible advertiser will say that a testimonial is a valid machanism of advertising. It must be accurate; it has no purpose unless it is accurate and valid, and every possible 46 care is taken to ensure that this is so.

THE DUKE OF ATHOLL
I think the point here is that, although in the particular example which I gave the wording would be perfectly accurate, none the less it would mislead the public. The fact that "Hi-Fi" helicopters have virtually no "With-It" washers in them is not made clear in the advertisement. I think these attempts to mislead the public should be covered by this Bill, as the whole Bill is an attempt to protect the public.

§ LORD RHODES
The Government have some sympathy with the intention underlying this Amendment. But what is important is not whether goods are used by any particular person but whether they are approved by any person and, further, it is not the goods on offer in the shops which are used, or even approved. The noble Duke said that Members of this House were not better buyers than anybody else. I would not know about that—since I came here nobody has asked me to give any testimonials in any shape or form. It may be because I am a Life Peer. I shall have to get some advice on this.
The Amendments relate to goods which are of a type used or approved: is it really of significance whether it is true or not that, say, Mrs. Smith or Mrs. Bloggs, or a housewife in Acton, uses a particular baby food? She may use it for want of any better, and the same argument may apply in regard to the illustrations that the noble Duke has given about the washers in the helicopters. The housewife may use the baby food only occasionally, and she may strongly disapprove of it. Therefore, I think the Amendment which has been moved by my noble friend Lord Peddie goes as far as we should go in that direction. I would add that the word "person" in my noble friend Lord Peddie's Amendment covers, as it does throughout the Bill, "company or organisation". These words are therefore unnecessary, and on this basis I would ask your Lordships not to accept the Amendment.

§ LORD AIREDALE
Can the Minister give us some indication whether the Government will look favourably on the Amendment to Clause 12 standing in the name of the noble Lord, Lord Cawley? 47 It might well be that some of us would not be unhappy that this Amendment is not being accepted if we thought there was a good chance that Amendment No. 66 would be accepted. The noble Baroness did not mind, if I may use a colloquialism, "jumping the gun" about an Amendment which I had down. May we know whether 66 is going to be favoured?

§ LORD RHODES
Yes, indeed you may. We are not proposing to accept it.

§ LORD AIREDALE
In that case, I shall be very strongly disposed to vote with the noble Duke on this Amendment, if the noble Duke takes it to a Division. It seems to me that this Amendment deals with a particular, if perhaps not widespread, mischief. We have the situation where some Test cricketer who never has a hair out of place is alleged to use a certain kind of hair preparation, though this may be quite untrue. If that is so, it is quite wrong that that sort of allegation should be made in an advertisement. This Amendment would, I think, stop that sort of thing, and if No. 66 is not going to be accepted either, I think we ought to have a Division upon this one.

§ LORD DRUMALBYN
May I suggest to my noble friends that in this Clause 2 we do not want to get too far away from the basic characteristics of the goods. It seems to me this is what Clause 2 is about and we do not want to get too far away from it. I was a little concerned, for this reason, about Lord Peddie's Amendment. It was marginal; it was just acceptable. But when we get into the history of particular goods, the other history of goods in general, while I suppose that use might come into that, I do not really think it would. I do not think that is what is intended. The general purpose here, surely, is to deal with the attributes of goods. It is difficult to describe a statement that goods have been used by somebody as a "trade description" of those goods. I am in sympathy with my noble friend's idea, but I do not think this ought to come into Clause 2.

LORD HAWKE
Arising out of the noble Lord's reply about Amendment No. 66, may we take it that he is approaching this Bill as having been brought from the 48 Board of Trade to be improved and modified and licked into shape in this House and in another place, or has he climbed up the stairs at Great George Street and brought it down, engraved in tablets of stone, with the intention of sticking to every word of it?

§ LORD RHODES
Of course not. I never climb the stairs at Great George Street for any purpose whatsoever. I do not climb stairs as a matter of principle. Neither do I carry tablets of stone about. We are desperate for some improvements that can be put into this Bill, because it was acceptable on all hands when we debated it, at length, on Second Reading. It was a good Bill, everybody said; it was what was needed, and this was another step towards protecting the consumers' rights and everything that went with that. We absolutely agree. We are agog to listen to anything that will improve the Bill, but I must politely say that up till now we have not been able to see anything that comes into that category.

THE DUKE OF ATHOLL
I am very pleased to hear that "person" also means company or organisation. I feel that Lord Peddie's Amendment goes some way towards what I was trying to get at. I should be grateful if the Government would look at this particular point between now and the next stage of the Bill, because it seems to me that some of these examples we have heard are misleading. But T quite agree with my noble friend that Clause 2 is probably not the place for this sort of Amendment, and therefore I beg leave to withdraw it.

§ Amendment, by leave, withdrawn.

§ 5.6 p.m.

§ LORD DRUMALBYN moved, in sub-section (1), at the beginning of paragraph (j) to insert: "newness or". The noble Lord said: This is a very simple Amendment to put in "newness or" before history. If a thing is new, it has not got a history. I wanted also to give a direction to the word "history" to cover the past usage and so forth of the goods, which I presume is what is meant. For example, if one represents, let us say, that a car has done only 2,000 miles, when it actual fact it has done 50,000 miles, is that the past history of the car? Is that covered by the "history, including previous ownership"? It seems to me that newness should come in here so 49 that if a person falsely represents a thing as new and it is not new but reconditioned, then he should be caught. I beg to move.

§ Amendment moved— Page 2, line 18, at beginning insert (" newness or ").—(Lord Drumalbyn.)

§ LORD MITCHISON
I think this Amendment is unnecessary. The matters included are under paragraph (g)—the date of manufacture and so on, and other history under paragraph (i). If the Amendment were put in, it would read "newness or other history, including previous ownership or use". It would therefore imply, I think quite rightly, that newness was a matter of history. We agree it is, and we therefore think the Amendment unnecessary.

LORD HAWKE
While the noble Lord is on this point, could he tell me whether the following is a false trade description? Certain goods are to be found labelled with the two letters "US". I have bought some, imagining them to be United States army stores, but I believe in practice the "US" stands for unserviceable. In this particular instance is that a false trade description or not?

§ LORD MITCHISON
I think the right answer is to say that I can hardly give opinions on particular cases in the course of discussing a Bill. I am sure the Board of Trade will consider the question the noble Lord has raised and let him have any comments they think necessary.

§ LORD DRUMALBYN
If the noble Lord is quite satisfied and can give us an assurance that what has no history because it is new is covered by "other history", I am quite willing to withdraw the Amendment.

§ LORD MITCHISON
Before that happens I must remind the noble Lord, who has held distinguished office himself, that it is not the duty or business of Ministers to give assurances on the construction of the Bill. All I can say is 'that that is what it appears to me to be. It is for the courts finally.

§ LORD DRUMALBYN
Surely it is for the Government to say what they intend.

§ LORD MITCHISON
It is what we intend all right, but the noble Lord did not quite ask that.

§ Amendment, by leave, withdrawn.

§ LORD DRUMALBYN moved to leave out subsection (4). The noble Lord said. This, again, is a probing Amendment, to ask why the Molony Committee's recommendation was not accepted in regard to these Acts. The Molony Committee, in effect, recommended that there should be no exclusions, and here we have these exclusions. I recognise that we have had legislation since the Molony Committee reported, in the Plant Varieties and Seeds Act and the Agriculture and Horticulture Act, both of which make provision for prosecution in the event of misgrading or misrepresentation of a grade, and so forth. All the same, I merely ask in this Amendment why it is that it has been decided not to follow the Molony recommendation in this respect. It is, of course, the fact that there is overlapping jurisdiction as between this Bill, the Food and Drugs Act, the Weights and Measures Act, as well as the drugs that are here listed; so the mere fact that there is overlapping would not be a sufficient answer. I beg to move.

§ Amendment moved—

§ Page 2, line 28, leave out subsection (4).—(Lord Drumalbyn.)

§ BARONESS PHILLIPS
I am grateful that the noble Lord has virtually answered his own question. He said that this was a probing Amendment. Therefore, I am hopeful that the reply will satisfy him. As he so rightly said, the Molony Committee sat some little time ago and the legislation brought about by the various Acts referred to has changed the situation, inasmuch as the penalties are no longer trivial. This was the point of the Molony Committee. There is another rather important point: that the effect of these exemptions is to remove the possibility that marks applied correctly under the requirements of one Statute might technically offend against another. I hope that the noble Lord will accept this as the reason for the exemptions in this Bill.

§ LORD DRUMALBYN
I hope that marks will not be applied in the Acts that are mentioned here which would offend against this Bill. But I quite agree that this is rather outside the scope of the Bill. Having asked for the explanation, and having got the explanation which I—

LORD HAWKE
Before my noble friend withdraws, may I ask the noble 51 Baroness whether all varieties of animals, plants and so on are covered by this? My reasoning is based on the fact that sex has no place in subsection (1). Therefore, I presume that all animals, pets of all kinds, are excluded by subsection (4). Is that correct or not?

§ BARONESS PHILLIPS
No, I think not. It refers rather specifically to these Acts, and they are not necessarily covering all animals.

LORD HAWKE
When we come back to this Bill, should we not insert sex in subsection (1), because the question of sex in buying pets and animals, and so on, is apt to be rather important?

§ BARONESS PHILLIPS
Would the noble Lord accept that as other history"?

LORD HAWKE
I am not sure that sex is history; but history is sex, certainly.

§ LORD DRUMALBYN
With respect, I am not certain that my noble friend's point is not covered by line 21. Is that not so? In any case, I am quite satisfied with the explanation of the noble Baroness, and am quite happy to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ Clause 2, as amended, agreed to.

§ Clause 3:

§ Applying a trade description to goods

§ 3.—(1) A person applies a trade description to goods if he— (c) uses the trade description in any manner calculated to be taken as referring to the goods. (2) An oral statement may amount to the use of a trade description.

§ 5.15 p.m.

§ LORD DRUMALBYN moved, in sub-section (1)(c), to leave out "calculated" and insert "likely". The noble Lord said: This is a point which was referred to by a number of noble Lords in the course of the Second Reading debate. I think it is a point that is mentioned, as it were, obiter in paragraph 650 of the Molony Report where it mentions the word "calculated" and then in brackets afterwards "(that is to say, likely)". The fact is that, although the 52 word "calculated" has appeared in other Statutes, as my noble friend Lord Cawley mentioned in the course of his Second Reading speech, there has been a recommendation, I think by the Goschen Committee, that this word should not be used because it is itself misleading.

§ It is shown that it can mean either "intended" or "likely". Which is it to mean? We ought to make quite clear what it is to mean. Therefore, in view of the fact that there seems to be a common measure of agreement on this particular matter, I hope that at last the Government may be able to say that here is a constructive Amendment which they are prepared to accept. I beg to move.

§ Amendment moved— Page 3, line 11, leave out ("calculated") and insert ("likely")—(Lord Drumalbyn.)

§ LORD STRABOLGI
Perhaps with the permission of the Committee we might now consider my Amendment as well, because that refers to the word "likely". I do not know whether the word "calculated" is one that is graven on the stone tablets, but I am holding out some hope, in view of what my noble friend Lord Rhodes said on Second Reading, that any Amendment would be received sympathetically. I do not like "calculated"; I think it is rather a loaded word. I appreciate that several hundred years ago—I have looked this up in a dictionary—it was an alternative for "likely". With respect to the noble Lord, Lord Drumalbyn, I prefer my word "intended" to "likely" although I prefer his word to "calculated".
The reason for that is that, in my view, the word "intended", which is in the Bill, means that the intention of a defendant is something which should be proved in the courts and is for the court to decide. Furthermore, another disadvantage about "likely" is, as I am advised, that goods could be likely to deceive when this was not intended but was merely unconscious. I think the word "intended" makes it clear, and that is the word that I submit to the Committee.

§ LORD CAWLEY
I must strongly support my noble friend Lord Drumalbyn on this point. The introduction of the word "intended" rather shows how calculated the word "calculated" was 53 to deceive, because for the last fifty years or so it has been clear law and graven on tablets of stone in the law reports that the word "calculated", at any rate when found in the Trade Marks Act and, I believe, in a number of other Acts, means "likely"; and that particularly was so decided by Mr. Justice Sargant in the case of Egg Products application. That is the meaning that has been given to it, and that is the meaning that I think your Lordships intended that it should have in this Bill.
If the meaning that has been put on it by the noble Lord, Lord Strabolgi, were inserted—that is to say, the word "intended"—the whole meaning of the Act would be altered, and it would put an intolerable burden on the prosecution if they had to prove intention in each case. It is for the defence, if the defendant puts a false trade description on goods, to prove that the defence is laid down in the Bill, and it is not for the prosecution to prove that the defendant intended to deceive.

§ LORD RHODES
I have been looking forward to this Amendment. In the whole of my twenty years in Parliament I have never really had a chance to spend some time on a pernickety argument, until this afternoon, and now I welcome it with open arms. As to the terms "calculated and likely" and "calculated and intended", I am afraid we cannot take these two Amendments together, because the effect would be precisely as the noble Lord, Lord Cawley, said—to make a mess of the lot; and I think the noble Lord, Lord Strabolgi, should think again. The "calculated" and "likely" saga and the reference to the tablets of stone with which I have been accused of staggering in and out of various offices in Whitehall have now culminated in this Amendment No. 11.
It was obvious that a good deal of homework was done by noble Lords in preparation for the Second Reading debate. They searched the dictionaries, they searched Sir Ernest Gowers' Plain Words and all that sort of thing. I spent part of the week-end on this, and got quite engrossed in looking at all these sources. I have even gone to the length of bringing the book along with me, and hope to quote something from it—which is something people like to do. The noble Lord, Lord Drumalbyn, referred to an 54 entry in the Concise Oxford Dictionary defining "calculated" as "deliberately planned". If for no other reason, he objected to this phrase "deliberately planned", on the ground that it brings in the dogma of his Party. They cannot abide to think of anything that is planned—and anything that is deliberately planned is even worse.
I do not doubt for a moment the noble Lord's words, but if he will look at the Oxford English Dictionary he will find quoted, as an illustration of the difference between "calculated", used as an adjective, and "intended", this passage: These transparent disguises were not calculated, and probably were not intended, to, deceive. The noble Lord, Lord Cawley, who is an expert on these fine nuances, also inspired me to go to Sir Ernest Gowers' little book. Perhaps I might quote rather fully from it, and the entry is as follows: … likely, liable, apt, prone and calculated, are all used as words denoting probability, They have their different nuances, which should be respected by those who care about treating words in a discriminating way. I think it is absolutely wonderful that this House is so careful about its words, and about the way in which they are used, and the nuances that go with that use, when we think about the way in which words are used in other contexts in other places and know how we deprecate them.
The word "likely", according to Sir Ernest Gowers, is colourless. He goes on: The suggestion in ' calculated ' is of judgment in the light of a full knowledge". This is powerful. In our part of the world, "likely" is used in a different context again. For instance, if we were looking at the Opposition and saw the noble Lord, Lord Airedale, the noble Lord, Lord Cawley, and the noble Lord, Lord Drumalbyn, in the context of being able to spin words and split hairs, there is no question about it, half the men in my district would call them" likely lads "—in fact very likely lads. They would say, "These are the sort of men who are calculated to be able to do this particular job of playing about with words."
I like Sir Ernest Gowers' interpretation of "likely" as "colourless", and his statement that "the suggestion in ' calculated ' is of judgment in the light 55 of a full knowledge." That last interpretation is a sound one. It has guts in it. This is exactly what we have in mind in the Bill, and in fact in all we do: judgment in the light of full knowledge—that is, judgment from the outside, and not, in this case, by the person applying the trade description. I hope I have said enough to explain to noble Lords why we have included "calculated". If they do not think I have said enough, I will tell them a lot more about what people in my own locality think about "likely" or "calculated", but I do not think it is necessary. I think I have said quite enough.
I should like to draw attention to the fact that we use these words in their proper context. If your Lordships would look at Clause 4(3) and Clause 28(3)(b)(i), you will see the word "likely" used in its accepted general sense of "probable". If you will then compare it with the use of "calculated" in Clause 3, you will see that "calculated" is used in circumstances where a certain amount of appraisal might be expected. Of course, a certain amount of appraisal is expected, and in this context it would be given. I think your Lordships will find that this is true of the other ten instances in the Bill where the word "calculated" is used. When we have an opportunity of seriously considering new legislation coming into Parliament, and where this House can play its part, do not let it go out from this House that all we can do, when we get a valuable Bill of this sort, is to split hairs, if not infinitives. I think you will find that this is true of the ten other instances of the Bill where the word "calculated" is used. If I may put it very shortly, we think that "likely", although perhaps having a clearer meaning for the ordinary person, is a weaker term. Therefore, I must ask your Lordships to reject the Amendment.

§ LORD CONESFORD
It would be a pity if the speech of the noble Lord who has just sat down were read by those who follow our proceedings and they thought that this House in general believed the word "calculated" to be an adjective. I rise only to point out that, of course, it is not.

§ LORD AIREDALE
I intended to put my name down to this Amendment. The only reason why my name is not on it 56 is because there was a rush to support it, and by the time I arrived no more names could be added. I did not understand why it was that the noble Lord, Lord Strabolgi, earned a rebuke from his own Front Bench for venturing into this debate. I do not think the noble Lord was under any impression that two Amendments could be put at the same time.

§ LORD RHODES
May I interrupt? It was not a rebuke; it was just a little advice.

§ LORD AIREDALE
I thought it was most apposite and appropriate that the noble Lord, Lord Strabolgi, should enter this debate. What he said absolutely pinpointed the whole purpose of this discussion, which is to discover whether the word "calculated" used in this place in the Bill means "likely", as the noble Lord, Lord Drumalbyn, wishes it to mean, or whether it means "intended" which the noble Lord, Lord Strabolgi, wishes it to mean. The Minister cannot possibly suggest that the words "intended" and "likely" mean the same thing. The word "calculated" can mean either of those things. The definitions which the Minister himself read out to us supported the contention that "calculated" can mean either. Which is it to mean here; one or the other? Whatever word we have in this line of the Bill, it had better not be "calculated". It had better be either "intended" or "likely", and then we shall know what the clause means.

LORD HAWKE
It would clear my mind to some extent if the noble Lord could tell me: calculated by whom? Is it calculated by the gentleman who puts the trade description on the goods, or calculated by some third party? I assure the noble Lord that these are very important questions, and I was deeply shocked at the way he spoke to the Committee about splitting hairs, because it is only on the precise nuances and meanings of words that men are going to come up into court and be convicted or not convicted later.

LORD NITCHISON
I am so shocked by the noble Lord, Lord Hawke, being shocked that I feel I ought to intervene and remind him that his noble friend Lord Cawley quite rightly said that the courts had long held "calculated" to 57 mean "likely" in the Merchandise Marks Act, from which this phrase comes. I see nothing in our discussions which is likely to upset that long established conclusion. We are therefore discussing whether we should use a word which has been held by the courts to mean "likely" in this context, or whether we should use the word "likely". Your Lordships are so particular about what is and what is not a material respect that I should have thought this discussion might have been shorter.

LORD HAWKE
May I, with due respect, say that whatever the courts may say on the Merchandise Marks Act, this particular phrase can be interpreted to mean that the person who puts the trade description on the goods is doing the calculating.

§ LORD DOUGLAS OF BARLOCH
I understand my noble friend Lord Mitchison to adopt the view expressed by the noble Lord, Lord Cawley, that the word "calculated" in this particular clause means "likely". But I am under the impression that his noble friend Lord Rhodes said exactly the opposite, and rejected the interpretation that the word "calculated" meant "likely". Which is it that we are intended to have in this legislation?

§ LORD MITCHISON
If I may just intervene to correct a misapprehension, may I say that my noble friend Lord Rhodes and I said exactly the same thing. We said that it did not matter two pins whether you put in "calculated" or "likely", but on the whole we thought that "calculated" was a slightly better word because it had been used in a similar context before. We still think so.

§ LORD CONESFORD
There are so many Statutes—

§ LORD MITCHISON
May I, by leave of the House, just add one thing? It was not merely that I adopted the opinion of the noble Lord, Lord Cawley; I took the trouble to look it up first.

§ LORD CONESFORD
I think every lawyer would adopt the opinion of the noble Lord, Lord Cawley, because there are innumerable Statutes which have the words "intended or calculated", where there is always the contrast between "intended", which involves purpose, and 58 "calculated", which the courts have interpreted as meaning simply "likely".
The point about the choice between "calculated" and "likely" is that the word "likely" would not have deceived the noble Lord, Lord Strabolgi, and the word "calculated" did.
If the object of the Statute is to be understood by plain and ordinary people, it would appear that there is something to be said in favour of the word "likely", because nobody would be deceived by "likely" and some people have been deceived by "calculated". This was made the more obvious when the noble Lord the Minister referred to it as an adjective. He obviously treated it as an adjective, but in fact it is not, and that was the point of my noble friend Lord Hawke who asked: "Who is doing the calculating?". It is a very strange thing that these two words have acquired these contrasted meanings. I may say that the only long speech made on this Amendment, so far as I am aware, was that made by the noble Lord who is in charge of the Bill.

§ LORD RHODES
May I say that I have been very impressed with the argument of the noble Lord who has just finished. It may be that "calculated", as an adjective, is not as strong as it might be. It might be that whether we use "calculated" or "likely" is not a point of such great importance after all. If we say that we will have a look at this before—

SEVERAL NOBLE LORDS
Hear, hear!

§ LORD RHODES
Let me finish; do not jump your fences—before the Report stage, not with any idea of giving way on this (and that is not said through obstinacy), we could perhaps use a bit of discretion, if there were any instances where "likely" would be better than "calculated", and take the most appropriate word. May we do that, if the Amendment is withdrawn?

§ LORD AIREDALE
I would not be agreeable to that course. I would intend to press this matter to a Division now.

§ LORD RHODES
No, that would be silly.

§ LORD DRUMALBYN
I am afraid that the noble Lord should really approach these matters in a more adult way than he has done to-day.

§ LORD RHODES
I beg the noble Lord's pardon.

§ LORD DRUMALBYN
It is not good enough to come along and talk about splitting hairs in a matter of this kind. His noble friend Lord Mitchison gets up and says, "This is a matter which lawyers understand perfectly." But it is a fact that when this Bill was first published it was sold out in almost no time at all, and it was not all lawyers who were buying it. This Bill ought to be comprehensible to the ordinary person, and the ordinary person understands that the word "calculated" means planned and intended. As my noble friend has said, it has acquired an artificial meaning at law. Surely, we ought to put in the natural meaning. We do not want a colourful word here. We want a word which says exactly what it means, and "likely" is what we want to be in. With respect, we do not agree with the noble Lord, Lord Strabolgi—and this is a point of very great substance which the noble Lord missed entirely—that the onus of proof should be on the prosecution to show that the person who is brought to court intended to commit the offence. We do not agree that this should be the criterion. We consider that the test here should be whether there is harm to the public or not.

§ LORD RHODES
Hear, hear!

§ LORD DRUMALBYN
That is why we want "likely" in, and not calculated", because the word "calculated" can be misunderstood by the people who who are concerned, and read as meaning what it means in its ordinary sense, as "intended". Surely the Government are not so hidebound that they must stick to precedent in this matter and go on using a word which in fact misleads? This Bill is about misleading people, so surely they ought not to do that. I do not know what my noble friends wish to do. I think noble Lords opposite deserve to be defeated on this matter, for the way in which they have dealt with it, and I leave it to my noble friends to decide.

§ LORD RHODES
In answer to that, may I say that what I said was that, if

§ the Committee so wish, we will give it further consideration before the Report stage. In my experience, what is usual in those circumstances is that the Amendment is withdrawn. If that is not good enough, then there is only one course left. Surely that should be sufficient.

LORD HAWKE
Will the noble Lord at the same time withdraw his statement that he has no intention of giving way, even if the Amendment is withdrawn? What is the point?

§ LORD RHODES
No. I did not say that.

LORD HAWKE
You did.

§ LORD RHODES
If I did, I withdraw it.

§ BARONESS ELLIOT OF HARWOOD
I think that almost everybody who has spoken on this matter has been a lawyer or someone who has been dealing with it from the point of view of the courts. When I first read the Bill, and when this proposal was first put forward by the noble Lord, Lord Drumalbyn, I thought that" likely was just the word we wanted—a simple word which people who are not lawyers would understand—and that it expressed what we wanted to say at this particular point in the Bill. I have noted down that, from our point of view—I speak now from the point of view of the ordinary person—the word "likely" is a very much happier one than the word "calculated", and I will support the proposal that the word "likely" should be put into the Bill at this point.

§ BARONESS BURTON OF COVENTRY
I would follow the noble Lady by saying exactly the same. It seems to me that an ordinary shopper understands the word "likely"; and I can see no reason why the Minister cannot accept it to-day. I will certainly support this Amendment if the matter is pressed to a Division.

§ 5.44 p.m.

§ On Question, Whether the said Amendment (No. 11) shall be agreed to?

§ Their Lordships divided: Contents 51; Not-Contents 16.

CONTENTS
Aberdare, L.	Alport, L.	Birdwood, L.
Ailwyn, L.	Archibald, L.	Brooke of Ystradfellte, Bs.
Airedale, L.	Atholl, D.	Burton of Coventry, Bs.
Cawley, L.	Fortescue, E.	Mountevans, L.
Chesham, L.	Goschen, V. [Teller.]	Mowbray and Stourton, L.
Colville of Culross, V.	Greenway, L.	Oakshott, L.
Conesford, L.	Grenfell, L.	Peddie, L.
Croft, L.	Hawke, L.	Plummer, Bs.
Drumalbyn, L.	Henderson, L.	St. Helens, L.
Dudley, L.	Iddesleigh, E.	St. Just, L.
Effingham, E.	Ilford, L.	Somers, L.
Elliot of Harwood, Bs.	Killearn, L.	Strabolgi, L.
Emmet of Amberley, Bs.	King-Hall, L.	Strang, L.
Falkland, V.	Mancroft, L.	Strange, L.
Faringdon, L.	Margadale, L.	Strange of Knokin, Bs.
Ferrers, E. [Teller.]	Monsell, V.	Wells-Pestell, L.
Forster of Harraby, L.	Morrison, L.	Woolton, E.
NOT-CONTENTS
Arwyn, L.	Latham, L.	Rhodes, L.
Blyton, L.	Leatherland, L.	Shepherd, L.
Burden, L.	Lindgren, L.	Silkin, L.
Champion, L.	Mitchison, L.	Sorensen, L. [Teller.]
Gardiner, L.(L. Chancellor.)	Phillips, Bs. [Teller.]	Summerskill, Bs.
Haire of Whiteabbey, L.

Moved accordingly, and, on Question, Motion agreed to.

§ Resolved in the affirmative, and Amendment agreed to accordingly.

THE DEPUTY CHAIRMAN OF COMMITTEES
The Committee will see that the next Amendments, Nos. 13 and 14, pre-empt No. 15. Unless the noble Lord who is moving No. 15 wishes to call No. 15, I will call No. 13.

§ LORD MITCHISON
I am sorry to intervene. I did not catch what we are doing. We were discussing No. 13. Shall we then take No. 14 or No. 15.

THE DEPUTY CHAIRMAN OF COMMITTEES
That is so. I gave the opportunity to the noble Lord who is moving No. 15 to move it first. He does not wish to do so. So I will go through the ordinary routine.

§ LORD MITCHISON
I am sorry to press this. I am new to this House, and I do not yet understand all its ways. The Committee will then have decided either to leave out subsection (2), or not; it would then discuss a further Amendment which raises the question of whether we leave out subsection (2).

THE DEPUTY CHAIRMAN OF COMMITTEES
Yes.

§ LORD DRUMALBYN
Further to that, Lord Cawley's Amendment reads: after 'statement ' insert 'or other sensory indication'. Would it not be possible for him to move that if the second Amendment were accepted or carried?

THE DEPUTY CHAIRMAN OF COMMITTEES
Yes, that is so.

§ 5.53 p.m.

§ LORD STRABOLGI moved to leave out subsection (2). The noble Lord said: My Amendment, seeking to delete Clause 3(2), relates to oral statements. I agree with the intentions behind this part of the Bill—they are good and one welcomes them—but I do not think that the clause as drafted is on the right lines. Indeed, I am informed that it would be very difficult to bring a prosecution under this subsection as it is worded at present. I feel that the Government should have another look at this. I think it requires much more thought than would appear to have been given to it up to the moment, in spite of work at the weekend. If the noble Lord would say that he is prepared to reconsider it, and would perhaps let the House know on the Report stage what are the Government's views, I should be prepared to withdraw the Amendment.

§ I think the whole question of oral statements is one of very great difficulty. Indeed, the Molony Committee recognised this, and that is why, while being sympathetic to the idea, they did not recommend that anything should be done about it legally. I think we should be very careful before we pass this part of the Bill. At present it is likely to put the retail trader in a very difficult position. A shopkeeper might be in danger from a cantankerous customer or even some "stooge" customer sent in by a rival shopkeeper and trader. There is always, also, the danger of the customer who 63 buys, perhaps, a mock Persian lamb coat that she cannot afford or does not really want and after a time, perhaps after it has grown out of fashion—and the customer has anything up to three years, under the Bill, to find that she does not like it any more, or maybe has not the money to pay for it after she has bought it—she takes it back and says, This was sold to me as a real Persian lamb coat. It is only mock Persian lamb. Therefore, I have been sold something under false pretences."

§ It is only her word. She might have taken in a friend or a relative who could be a witness. But it is only her word against that of the shopkeeper or even of his assistant who might by then have left his employment, for there is, of course, a very rapid staff turnover on that side of the retail trade. Therefore, I would submit that this subsection needs very careful attention, and I should be glad to hear from the Government what is their view about it. I beg to move.

§ Amendment moved— Page 3, line 13, leave out subsection (2)—(Lord Strabolgi.)

§ BARONESS BURTON OF COVENTRY
I do not know whether to say that I feel very strongly about this clause or that I feel very strongly about not having succeeded in getting any answers to the points that I raised on this clause. I am hoping that whichever Minister is going to reply will give me these answers; because I do not know what action to take with regard to the Amendment put forward by my noble friend, Lord Strabolgi. As I think he said he is, I too am in sympathy with the aims of this subsection. What I have tried to elicit from my Front Bench, so far without success, is whether or not this subsection is feasible.
As I see it, the Bill ignores the practical difficulties and dangers in this subsection and does nothing at all to deal with them. Neither did my noble friend, Lord Rhodes, on Second Reading. It will be within the recollection of the Committee that both the noble Lord, Lord Rhodes, and the noble Baroness, Lady Elliot of Harwood, asked if it were not better for the customer to be given no information than to be given wrong information. Of course it is; but 64 then nobody ever suggested anything to the contrary. Equally, I want to suggest that surely it is better for the customer to be given good information and accurate information than to be given none at all.
I am afraid that that might come about if this clause and subsection went through as they are. The noble Lord, Lord Rhodes, will remember that, on Second Reading, he referred to a letter in The Times from the Director of the Consumer Council; and the Director made the point that it made no difference to the customer whether the lie was a spoken or a written one. Of course, it does not; but nobody has suggested that it did. I always find it very trying when people who refute, or who try to refute, an argument are not dealing with the points made. I hope that I am not unduly suspicious, but it does make me suspicious, and the question I ask myself is: "Have they got an answer to the points I am making?" I hope that tonight, without any shadow of doubt, I shall get an answer to these points.
I did tell my noble friend that my noble and learned friend the Lord Chancellor told me on November 17 last [OFFICIAL REPORT, cols. 676–7] that he did not share my doubts on this aspect, and that this sort of thing was being dealt with all the time in oral contract cases. The point on which I wished to elicit information from my noble friend was this. I should have thought that such cases were limited in general to those concerning fairly expensive goods, and I cited the possibility of a car, where the assistant concerned was easily identifiable. I tried to explain to my noble friend, obviously without success, that I just did not see how this subsection could be satisfactory where a small purchase was made over a shop-counter and no independent witnesses were available. I should be glad if I could have his comments on that point.
The next point I raised was this. A very real difficulty that I see is that even the best intentioned of employers may well feel wary of assistants giving information to shoppers, and I am afraid that we may get less, rather than more, help on questions about merchandise. I do not wish to bore the Committee, but for several years I worked in a large retail organisation as head of a department of 65 merchandise information. My job was to see that the people behind the counter had the right sort of information to give to shoppers. I would point out to the noble Lord that it is even more difficult to-day than it was in those days—during the war years—because the turnover of staff in the retail trade adds very much to the problem of staff training.
My third point is this. In his reply to me on Second Reading, the noble Lord said that oral misdescription was applied to goods under the Food and Drugs Act. My noble friend is quite correct. But may I quote the Molony Report, paragraph 658, on page 218: The Weights and Measures and Food and Drugs legislation and, additionally, the Fabrics (Misdescription) Act 1913, do not hesitate to put the shopkeeper at risk for oral statements. On the whole, however, the utterances giving rise to complaint under these Acts are simpler and not so open to factual dispute as under Merchandise Marks law. I should like to say to the Committee, before I sit down, that, like every member of the Committee, I appreciate the value of a deterrent, but I am not convinced of the value of a deterrent which cannot be enforced ultimately. And the last question I would ask my noble friend—I think this is the fourth—is one which legal Members may regard as very much a layman's question: would it not be possible in law to take out of this clause purchases which would clearly not be enforceable, and leave us with a clause which is necessary and enforceable in all its aspects? A minute ago my noble friend said that the Government were agog to improve the Bill. I am agog to get some answers, and I hope that I shall be able to get them from my noble friend.

THE EARL OF WOOLTON
I rise to support the noble Lord, Lord Strabolgi, in all he has said about this subsection. I think, first of all, that it is not enforceable so far as the retail trade is concerned, and, secondly, that it is not fair to shopkeepers. May I expand this for a moment? in the main shopping streets in this country something like 30 per cent. of trade is done on Saturday, when the shopkeepers are short of staff. Extra staff—and often not very much of that—is brought in to help. That staff cannot be trained in all the details of all the merchandise they are selling. The temporary staff will go round and work in 66 different shops in different places every Saturday, and there is not the time to teach them. In this subsection, we are putting an intolerable burden on the shopkeeper who is responsible, naturally enough, for anything that any assistant in his employment, perhaps just for that day, says. These assistants find themselves faced with leading questions such as, "It will wash, won't it?" What do they say, if they do not know? The odds are that they will guess. They may be wrong—but that is human nature. Therefore, I submit that this subsection should be left out.

§ 6.6 p.m.

§ LORD MITCHISON
Whatever doubts I have have had about the importance of some of the previous Amendments, I have no doubt about the importance of this one—or rather of these two, because obviously the two Amendments must be considered together, though they are different in intention. The object of leaving out subsection (2) and putting nothing in its place is to remove the offence relating to oral statements. The object of putting something in its place is to give the subsection a misdescriptive character. I hope that I am doing the noble Lord justice, because I feel that it could be better expressed.
I think I had better begin by making clear what is happening in the Bill. The offending subsection says that "an oral statement may amount to the use of a trade description" and this follows directly on the only place where using a trade description is referred to in the Bill—that is, at the end of subsection (1). A person applies a trade description to goods if he— ߪ uses the trade description in any manner calculated to be taken as referring to the goods. Without for a moment coming to the misdescription point, the next subsection, which we are now considering, says: An oral statement may amount to the use of a trade descripion. If there is any question of an offence here, the offence must be using the trade description, which in this case is given by way of oral statement, in a manner calculated to be taken as referring to the goods.
I hope that the Committee will be quite clear as to what we do if we leave that 67 out, as suggested by one of the Amendments. We then say that if a person puts a misdescription on paper it amounts to an offence, but if he says exactly the same thing verbally it does not amount to an offence. I agree with my noble friend Lady Burton of Coventry and the noble Earl, Lord Woolton, that this is not an easy matter. We depart from the Molony Report on this point. In effect, the Report says that there is legislation on these lines already in the Food and Drugs Act and the Weights and Measures Act; making an oral misstatement (if I may use a convenient word) about food and drugs is an offence; however, we ought not to extend it to goods generally, as is done by this clause, because the transactions are more complicated. These things in themselves, of course, shift from time to time, and buying food nowadays is not always so simple. There are all kinds of products in tins, and so on, which to-day have descriptions printed on the outside, and shopping is not as simple as it was some time ago. Be that as it may, we have to balance the real difficulty.
I am not going to answer the questions my noble friend put in the form in which she put them, but I hope I am answering the substance; and, if I am not, then my noble friend must hold me to ransom. The substance of it is that we appreciate the difficulty. And of course there is a difficulty. You will have people acting, say, as assistants. They may be temporary assistants in a busy season, and you do not know what they are going to say. They may say all kinds of things which if they had considered them a little further they would not have said. Or they may, in innocent ignorance—or even in not quite so innocent ignorance—say things for which it is very hard to hold the seller responsible. We have not yet reached the clauses dealing with this sort of thing. However, as I say, we appreciate the real practical difficulties.
We have had to choose between two things. We are trying in this Bill to protect consumers. If you take out of the Bill the offence of oral misdescription (this is not an accurate term, and I use it for convenience), then you are opening a very wide door indeed. There will be people who will say something that is undoubtedly an offence—it may 68 be a very bad case indeed; but because they have said it, instead of writing it, they will get off. To open the door as wide as that is a heavy responsibility for this Committee to take.
The Amendment which replaces subsection (2) by a differently drafted subsection does not suggest anything of that sort. It is only the Amendment that proposes to leave out subsection (2), that makes this suggestion. I hope that I have the Committee with me in saying that we think it is the business of Parliament and the business of the Government to weigh up these two considerations. Having weighed them up, we say that as a matter of policy we believe it to be right, in the interests of the consumer, to cause a certain amount of inconvenience—and, if you like, a certain amount of difficulty—to shopkeepers and to others who employ people. We are fortified in that by the fact that this has already been done, not only as regards food and drugs, but as regards weights and measures. I agree with the Molony Committee that it was not quite the same question, but we do not think the difference is sufficiently wide to justify refusing the consumer the protection in one case when he gets it in another.
One could, of course, think of instances—I can think of some, and I am sure your Lordships can, too—about food and drugs. But the food and drugs legislation is a pretty stiff piece of legislation in favour of the consumer. We are quite deliberately being a bit stiff in favour of the consumer here. We are extending this protection, and we are doing it for the reason that this Bill has been brought in. We think that, as our society develops, the need for protection of the consumer tends to grow rather greater. There, I believe, we have the support of noble Lords opposite. We therefore ask your Lordships to accept our opinion, that if we are going to give the consumer adequate protection, we must face up to causing a certain amount of inconvenience, and to causing me to give what my noble friend behind me will undoubtedly regard as a highly unsatisfactory answer. I cannot help it. One has to choose in this matter, and I am sure my noble friend will see that. In the long run, we feel that we are not only choosing 69 what is right at the moment, but what is getting increasingly right as the business of retail commerce grows.
I agree that the matter raised by the first Amendment is a serious one. We treat it as a serious matter. We think it is a matter where we have to choose between two courses of action, neither of which is all we wish it to be. We should like to protect the consumer without in any way inconveniencing the shopkeeper, or whoever it may be, but we feel that as things are it is inevitable as a choice, and that is the choice we make.
I turn now to what is, as I think the noble Lord will agree, the rather minor matter of the second Amendment.

§ LORD DRUMALBYN
Might it not be convenient to take this separately?

§ LORD MITCHISON
Certainly.

§ BARONESS BURTON OF COVENTRY
If I am in order in speaking again, I would say to my noble friend that it is not a question of regarding his answer as unsatisfactory; I do not think I have had an answer. I can only conclude that I did not make my case clear. I am not arguing on the matter of affording protection to the consumer. I am trying to impress on my noble friends on the Front Bench that I do not think that this provision is capable of being enforced, which is something entirely different. It seems to me to be a point that I cannot get over. I am not trying to protect anybody. But if you have something which cannot be proved, and you have no independent witness, you are not going to get any further. With respect to my noble friend, who is also entitled to speak again, printed labels on a tin of food have nothing to do with oral misdescription.

§ LORD MITCHISON
They may have a great deal to do with misdescription. I thought I was answering my noble friend by referring to the Food and Drugs Act and the Weights and Measures Act, where the difficulties of enforcement also occur and are, in practice, met. I am not pretending that it will not be more difficult in this case, because rather wider ground is covered. I can only say that, looking at the matter, as we all must, as something that will be dealt with in the future—and about the future there is little certainty—and judging by these two 70 pieces of legisation, my answer is that we think we are right.
I can only say that attempts on the lines suggested by my noble friend to limit the clause to offences which would be punishable (I cannot remember the exact expression) do not seem to me to be the right way to do it. The difficulties that are going to occur—and certainly there will be difficulties—have to be met by the courts, who have to decide the kind of question that was raised by both members of the Committee who spoke in support of the Amendment originally. That is the court's headache. It has to be the court's headache. They are the only people who can judge about the reliability of witnesses, the extent of authority, and points of that sort, which must arise in these cases.

§ 6.20 p.m.

§ LORD CONESFORD
I share one view with the noble Baroness, Lady Burton of Coventry: I start with no hostility at all to the subsection or to what I believe to be the Government's intention. I have, however, great doubts about how this will work out in practice. The noble Baroness has put some pointed questions, and I want to put a few from a slightly different point of view. What the noble Baroness had in mind was a consumer who ought to have a remedy and, she feared, might not have a remedy. She gave some cogent accounts of possible difficulties, but I want to put a few difficulties from another point of view, where an owner of a business may be a perfectly innocent man, wanting to do the right thing, but where an assistant, possibly against strict orders, says something false or even deliberately false. What is to be the result? There may be later clauses which throw great light on this, but so long as we are dealing with written documents there is some possibility of attaching responsibility to the vendor, whether the vendor is a natural person or an artificial person, a limited company.
If any oral statement can amount to a trade description, what is to be the position of an employee—his oral statement may contribute to the sale of a particular article—who may possibly make a statement that he has been actually forbidden to make? Is the vendor then still to be responsible? I hope that the Government will give an 71 indication of what is the answer to some of these problems. I hope that I have the same respect for the courts as the noble Lord, Lord Mitchison, but this Bill is passing through Parliament. Parliament must try to ascertain what is the meaning of what it is passing, and how it is proposed that it shall work. It cannot simply throw the thing on the courts without knowing what is to be the result.
I dare say there are all sorts of things in the Bill in later clauses (I admit that I have not had a great deal of time to study it) which may answer some of my problems. But they have not, I think, been answered yet; and I think some of the difficulties pointed out by the noble Baroness, Lady Burton of Coventry, also have not been answered. Does the Minister wish to call my attention to something I have completely overlooked?

§ LORD MITCHISON
I will do it when the noble Lord has finished.

§ LORD CONESFORD
That may be the most convenient course. I would say that as at present advised, in common, I imagine, with my noble friend Lord Drumalbyn—to judge from his later Amendment—I should not be prepared to support the present Amendment, and in common with the noble Baroness I wish to know a great deal more about how this is going to work out in practice.

§ LORD MITCHISON
It may be convenient if I deal with that point rather quickly. If the noble Lord had had an opportunity of studying the Bill at greater length I think he might have considered the matter a little differently. What we are doing here is talking about a person who applies a trade description to goods—if he uses the trade description so as to refer to the goods—and that trade description may be in the form of an oral statement. I find it difficult to see how any employee making an unauthorised oral statement would be bringing in his employer. I find it the more difficult when I look towards the end of the Bill and I find some clauses about offences (I have mentioned them, but I do not want to come to them at this stage), particularly Clause 23: "Offences due to fault of third person." They involve a good deal besides this.
72 If I may put the matter quite generally, how can it be said that Mr. Jones, shopkeeper, has applied a trade description to goods so as to commit an offence if all that has happened is that his employee has made a statement which Mr. Jones has forbidden him to make? I can see difficulties but I should have thought they were best left to the operation of the ordinary law. May I repeat, with great respect to the noble Lord, that this is no new kind of provision? I have said several times, and I say it again, that we have for some years had such provision in respect of food and drugs, and for a little longer in respect of weights and measures. I quite appreciate that the question raises difficulties, but we have had such provisions; they have worked. They have, of course, inconvenienced shopkeepers. It would be much simpler if there were not the Food and Drugs Act. We are agreed, I hope, that we must have a Food and Drugs Act, and we must have this provision, in a rather tight and rough form, because of the nature of the case.

§ LORD CONESFORD
I am most grateful to the noble Lord. It may be that Clause 23 may meet my point, or some Amendment of it may do so. I do not think he has quite met it yet, because the shop assistant may clearly be the agent of the shop owner for selling the goods, and he may, in the course of selling the goods, make a completely false statement. One of the things that worries me—and I think it also worried the noble Baroness—is this. If this provision is too onerous to the owner of the business, the effect may be an absolute prohibition of giving any oral information whatsoever. That will in many cases make the purchaser much worse off than he otherwise would have been. I will study Clause 23, but I am doubtful whether it meets the point altogether.

§ LORD MITCHISON
I was interrupted, and I rise only to add this. These are difficulties which we have had under the Food and Drugs Act. I do not pretend to my noble friend, to the noble Lord or to anyone else, that they do not and will not exist under this Bill. All I am saying to the Committee is that we have to choose, as I see it, between reducing the protection of the consumer and reducing the inconvenience to the trader. Our 73 recommendation is that, in those circumstances, we must give the maximum protection to the consumer up to a reasonable point. In the light of the existing legislation about food and drugs, and so on, we do not think that this goes beyond a reasonable point.
It is therefore in the interests of the consumer that we recommend that the first Amendment we are discussing be not accepted. We are heartened in that by seeing that several noble Lords opposite, including the noble Lord, Lord Drumalbyn, are also of the same opinion, because where they have suggested taking out Clause 2, it has been only for the purpose of introducing something very similar in a differently drafted form.

§ LORD BIRDWOOD
May I add one additional point which has not yet been brought out? I submit that this could prejudice the street markets, an ancient and honourable form of trading, which not only provide many people with wherewithal but are also places where many people shop almost exclusively. Street markets conduct their business in exaggerated and absurd terms, but they are largely understood. Should some authority decide that in this context a street market was a nuisance, or had a nuisance value, this clause would give it the right to tyrannise the market out of existence.

§ LORD PEDDIE
I think one can appreciate the difficulties there can be in curbing the licence of Petticoat Lane and I know it may lose something of its glamour and attraction if there are restrictions upon the ability to make oral misstatements. I think all noble Lords will appreciate, as has been indicated, the difficulties for the distributive trade in operating this clause. One has to consider the alternatives. It would be ridiculous to apply all kinds of protections to the consumer with regard to the misdescription of goods, and yet at the same time to permit an oral misdescription. I know there are difficulties, but nevertheless I think it is something we must accept.
The noble Lord, Lord Conesford, made reference to the difficulties created for the employer, who might have an assistant who consciously and deliberately made a mistake; but there are many other fields in which the employer is 74 responsible for the actions of his employees. It does not merely relate to these particular circumstances. In almost every regard the employer is responsible for the actions of his employees, and therefore I could not accept that argument against it. I believe a little more thought would have to be given to it, but at least I think there can be no argument at all as to the rightness of the Government's intention to deal with the question of oral misstatements, because the deletion of this clause would give full licence to individuals to express verbally gross misstatements of truth.

§ BARONESS ELLIOT OF HARWOOD
The noble Lord, Lord Peddie, has expressed what was in my mind, but I do not think your Lordships have stressed sufficiently the misdescriptions and the likely wickedness, so to speak, of a shop assistant. An enormous percentage, possibly as much as 80 or 90 per cent. of the business in this country, is conducted in the most reputable manner and the section which we are now discussing is a very small section indeed of the trade of the country.
We are anxious that people should not be able to get away with deceiving the public by oral misstatements, any more than they can get away with doing anything else which is not right. I entirely agree with the noble Baroness, Lady Burton of Coventry. She and I are both deeply concerned about consumer protection. This will be difficult to apply, but people have said that about almost all the protection Acts which have been passed, and yet a way has been found to apply them. I can think of a number of things which would help a shopper in regard to the selling of goods. For example, the noble Lady herself has done an enormous amount on the subject of labelling. If there was more labelling of a higher standard by the manufacturers, a great many misdescriptions would not be made because the label would say what in fact the goods could or could not do and what they were intended for.
I think there are ways in which these problems can be tackled. It may be rather a slow business, but we are engaged on a new and important Bill which will be of the greatest assistance for the protection of consumers, and it would 75 be unfortunate if we were to strike out subsection (2). I am sure that would be a retrograde step.

THE DUKE OF ATHOLL
I, too, hope that we shall not strike out subsection (2) entirely. But I feel that, if the Board of Trade and the Government really put their minds to it before the next stage of the Bill, they might produce something which would qualify subsection (2) so that it would never be used in cases such as those suggested by my noble friend Lord Woolton, where the sales assistant gave a wrong answer simply because she did not have the knowledge to answer a customer's question and did not wish to appear churlish. I do not feel that it would be beyond the Parliamentary draftsmen to find a way out of this difficulty.

§ LORD DRUMALBYN
I hope your Lordships will agree to reject this Amendment. I agree that this was an extremely difficult choice to make, and it was made against the advice of the Molony Committee, which said it would lead to a marked increase in prosecutions, which may or may not be so, and it also said that it would put a powerful weapon in the hands of disgruntled, disappointed shoppers and there might be some rather crooked prosecutions. This is a point which we shall have to examine when we deal with the question of enforcement. The Committee also said that it would impose restraint upon responsible retailers.
One of the points which influence me to agree with the Government on this is that we are on the verge of more systematic training of shop employees through the training councils. We also envisage the marking and ticketing of goods. There are further steps being taken towards more informative labelling and this is, to a large extent, a question of training. Of course, a wise employee will not say, "Look at the label. Why can't you read the instructions?" But he can say something to the same effect quite politely. If employees are well trained, they will be trained not to give snap answers. I think this provision in itself may tend towards the better training of employees and so result in the better protection of consumers.
76 This is an extremely difficult choice to make, but I am bound to say that my noble friends and I, when we drafted our Amendment, came to the conclusion that this was the right course to take, because it does not really make sense, when we are banning misdescriptions and misleading statements, to allow them to take place orally when they are not allowed in any other form. In the circumstances, I would advise my noble friends not to accept the Amendment, and I hope it will be withdrawn.

§ LORD MITCHISON
The support is in a somewhat unusual form of advice and all I should like to say to your Lordships is that we will consider what the noble Duke and the noble Lord have said. It is not easy to do this, and a good deal of it is met by the clause to which I referred, Clause 23(1).

§ LORD STRABOLGI
As I said at the beginning, I did not feel that this was an Amendment which should be pressed. I am grateful to the noble Lord, Lord Mitchison, for saying just now that he would have another look at it. I did not think initially that he was going to say this.

§ LORD MITCHISON
With respect, what I said was that I would look at the point raised by the noble Duke and the noble Lord, but I say that without any promise of introducing an Amendment. My own view is that it cannot be met.

§ LORD STRABOLGI
I am grateful to the noble Lord, and it is some comfort to know that at least it is being considered. I should also like to thank the noble Baroness and all the other noble Lords who have taken part in this short debate, and I beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ 6.40 p.m.

§ LORD DRUMALBYN moved to leave out subsection (2) and to substitute: (2) A trade description may be applied to goods by an oral statement.

§ The noble Lord said: This is a rather technical Amendment. The rubric says: Applying a trade description to goods ", 77 but I gather that this clause is about extending the application of trade descriptions from the ways in which they are already applied to other ways—namely, to advertising, oral statements, and the like. I should like the noble Lord to confirm, if he will, that paragraph (c) is the operative one so far as advertising is concerned, as well as oral misdescriptions. Even so, if it is necessary to say anything about trade descriptions at all, I should have thought it was necessary to say squarely that a trade description may be applied to goods by oral statement, because this is what, as I understand it, the Bill is doing: it is applying trade descriptions to goods in ways in which they were not applied before.

§ This says quite clearly that a trade description may be applied to goods by an oral statement. It is declaratory. I think it is rather clearer and less vague if an oral statement may amount to a trade description. But in the context of this particular clause I should prefer the wording we have to the wording in the Bill. I beg to move.

§ Amendment moved— Page 3, line 13, leave out subsection (2) and insert the said new subsection.—(Lord Drumalbyn.)

§ LORD MITCHISON
This is, as the noble Lord made perfectly clear, a drafting Amendment. This clause does not extend anything; it redefines applying a trade description. The phrase is an oldish one, and previous legislation is repeated. It may be taken, I think, as a comprehensive statement of what applying a trade description means for the purposes of this Bill, and it does it by these three methods. So great is the ingenuity of advertisers that I should be sorry to limit myself to paragraphs (a), (b) or (c) with reference to advertisers. Perhaps we had better consider that when we come to later parts of the Bill.
As I tried to make clear on the last Amendment, subsection (2) refers specifically to paragraph (c), which is directly above it. Therefore we get this situation: that anyone who uses a trade description, being a false one, in any manner calculated to be taken as referring to the goods, applies it and is therefore guilty of an offence. Then all we do is to 78 qualify that, in subsection (2), by saying that An oral statement may amount to the use of a trade description. That, I think, is pretty clear English, and it is a footnote or an explanation, whichever you like to call it, relating to Clause 3(1)(c) directly above it. For that the Amendment would substitute: A trade description may be applied to goods by an oral statement". My point, with great respect, is that you get into difficulties about this. You have said the circumstances in which the person applies a trade description to goods; you have said that in subsection (1). You now have a subsection (2) which says that a trade description may be applied to goods by an oral statement, but how or when or what? It makes it possible to include an oral statement, but it does not say in what circumstances. Is this a further category of application? Does it relate to the whole of Clause 3(1) above, or is it something new? And when you say "may be applied" you invite the question "in what circumstances?"
This is really a drafting point, as I see it, and no more. All I can say to the noble Lord is that I and those who advise us did look at this suggestion, and while we felt that it was rather attractive at first sight, when we looked at it closely we found that it was pretty difficult to see exactly what it meant. I recognise that the noble Lord may reply to me, "You might have made yourself clearer, too ". I think as a matter of fact I have been more successful in clarity, but that is a kind of pride I would not press too far. I hope that the noble Lord will accept my assurance that we have considered very carefully what he had in mind.

§ LORD AIREDALE
Would the noble Lord have been happier if the noble Lord, Lord Drumalbyn, had included the words "goods within the meaning of the previous subsection"?

§ LORD MITCHISON
We have 127 Amendments on the Order Paper, and I am sure the noble Lord would not wish me to consider the 128th until it arises.

§ LORD DRUMALBYN
I am quite happy with what the noble Lord has said. The way he has linked it to subsection (1)(c), of course, does show it in 79 rather a different light from the way in which we looked at it to start with. If I may say so, he has not covered another relevant point, and that is that subsection (1)(c) also applies to advertising; that advertising is one of the manners in which a trade description can be used as referring to goods. As I understand this, we are agreed that subsection (1)(c) is really declaratory of one of the ways in which a trade description can be used to be taken as referring to goods. If this is so, then subsection (2) is declaratory, and it is a question in which way you should declare the bringing in for the first time of the oral statement as a trade description. This is what it is doing, bringing in for the first time an oral statement for the use of a trade description. What I am asking about is this important question of advertising, because this has been one of the great difficulties of application of trade descriptions in the past. I have had difficulty in seeing where the trade description is being applied in advertising if it is not in subsection (1)(c), and I think the same must apply to the oral trade description. I wonder if the noble Lord would answer that point.

§ LORD MITCHISON
I quite agree with the noble Lord that most of the advertising cases will be under para-paragraph (c), but I can think of cases—and I am sure neither he nor the Committee would wish me to go into detail—in which paragraphs (a) or (b) could be applied. You can have advertisement, of course, of specific goods. You might have an advertisement placed on top of, let us say, a dead chicken saying "This bird was never reared in artificial conditions; it was a wild running chicken", or something of that sort, and it might be an advertisement, too. I think the difficulty is defining the word "advertisement". I do not think there is any real difference between the noble Lord and myself.

§ LORD DRUMALBYN
I am grateful to the noble Lord. I think this is very important, from the point of view of seeing how this Bill is to be interpreted. I beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ 6.49 p.m.

§ LORD CAWLEY moved in subsection (2), after "statement" to insert: "or other sensory indication". The noble 80 Lord said: This Amendment, which may not be drafted in acceptable form, is to deal with olfactory misdescriptions; that is to say, telling a lie with a scent or smell. This is an easy thing to do, if you scent a wrapper when the goods inside do not bear the scent. I realise that without subsection (2) this would most likely be covered, because in Clause 2(1) the words "and by whatever means given" have been introduced for the first time. So I imagine that to tell a lie with a smell would come within that, just as much as would telling a lie orally. But then we get subsection (2) which appears to limit the extent of Clause 2(1), and I myself think it would be a pity if misdescriptions were excluded simply by reference to the inclusion of oral statements. I beg to move.

§ Amendment moved— Page 3, line 13 after (" statement ") insert (" or other sensory indication").—(Lord Cawley.)

§ BARONESS PHILLIPS
I sympathise greatly with the noble Lord on this point, I having made unfortunate purchases of the nature he describes; but I think he will be happy when he realises that we consider that Clause 2(1) (e) which refers to "any physical characteristics" would cover this particular point When discussing this matter, we felt in any case that subsection (3) was not the proper place for it, and I think he himself recognised this. Subsection (3) deals rather with the method of using the trade description. In those circumstances, would the noble Lord accept that we are aware of this matter, and that we felt it was covered by the phrase "physical characteristics" with the preamble which he has just mentioned in Clause 2; and would he therefore be willing to withdraw the Amendment, taking that into account?

§ LORD CAWLEY
I do not really think that my point is covered by that, because it is a method of giving an indication. However, I quite realise that it is an extremely difficult matter to include in this Bill. I hope to give this more thought, because I realise that the way my Amendment is drafted is not acceptable. I therefore beg leave to withdraw my Amendment.

§ Amendment, by leave, withdrawn.

§ Clause 3, as amended, agreed to.

§ LORD RHODES
I beg to move that the House be now resumed.

§ House resumed.