§ 5.54 p.m.
§ Order of the Day for the House to be again in Committee read.
§ Moved, That the House do now resolve itself into Committee.—(Lord Champion.)
§ House in Committee accordingly.
§ [The LORD AILWYN in the Chair.]
§ Clause 4:
§ Trade descriptions used in advertisements
§
4.—(1) The following provisions of this section shall have effect with respect to a trade description used in an advertisement in relation to any class of goods.
(2) The trade description shall be taken as referring to all goods of the class, whether or not in existence at the time the advertisement is published—
(3) In determining for the purposes of this section whether any goods are of a class to which an advertisement relates regard shall be had not only to the form and content of the advertisement but to the time, place, manner and frequency of its publication and all other matters making it likely or unlikely that a person to whom the goods are supplied would associate the advertisement with the goods.
§ LORD AIREDALE moved, in subsection (1), to leave out "any class of".
§ The noble Lord said: Clause 4, which deals with trade descriptions used in advertisements, uses the expression "any class of goods ". I cannot help feeling that this expression may give rise to difficulties. How does one define a class of goods, or to what class particular goods belong? Take, for instance, lemonade. Does lemonade belong to the class of goods known as beverages? I suppose it does. If so, that puts it in the same class as tea. But does one expect tea and lemonade to be within the same class of goods? I do not know. I should have thought that if we could get rid of the expression "a class of goods" without doing mortal injury to the Bill, we should be doing a good service.
154§ I must not anticipate what is going to be said later, but I observe that the very next Amendment seeks to remove the expression "any class" and insert, "any brand or specific description" of goods. At the moment I cannot see that that is very much better. When we consider branded goods, there is a well-known brand "St. Michael ". There are "St. Michael" shirts and "St. Michael ginger biscuits and "St. Michael "all sorts of things. I should think that if we adopted this alternative to "any class" we might then have an enormously wide-ranging variety of goods under one heading. My Amendment, taken in conjunction with Nos. 18 and 23, seeks to remove the necessity for talking about a "class of goods" at all without, in my submission, doing any damage to the Bill. I hope that this will be acceptable to your Lordships. I beg to move.
§
Amendment moved—
Page 3, line 23, leave out (" any class of ").—(Lord Airedale.)
§ LORD CAWLEYI would support my noble friend Lord Airedale. I think that the word "class" is somewhat misleading because in Section 3 of the Trade Marks Act it is provided that
A trade mark must be registered in respect of particular goods or classes of goods …Then, in the Trade Mark Rules, there is a schedule, laid down by the Registrar of Trade Marks, of the names of classes. For example, Class 8 is "Hand tools and instruments, cutlery, forks and spoons and side arms ". I am certain that that type of class is not intended in this Bill, and I believe that the word "class" will cause some confusion. What should replace it, I do not know.I wish to raise one other matter. I inadvertently misled the Committee yesterday, when I said (col. 25):
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 in Section 14 of the 1887 Act, but I am afraid that I did not notice that it had been repealed and is not in force at present.
§ THE JOINT PARLIAMENTARY SECRETARY, MINISTRY OF LAND AND NATURAL RESOURCES (LORD MITCHISON)May I thank the noble Lord, on behalf of the Committee, for 155 correcting a minor matter which, indeed, but for his frankness, we may never have noticed. I am sure that he is right, though, and we are all grateful to him. On the Amendment, we have to consider the mischief this clause is aimed at—namely, that in the past we have had advertisements referring to classes of goods. For instance, if we take mineral waters, some misguided person may say that mineral waters are always better than beer and then proceed to sum up their commendatory words in a way which may contain a mis-statement. The difficulty has been to link up a general advertisement with particular cases and the clause tries to do just that. It is literally referring to a class of goods and using the broadest and simplest term to indicate that it is not a reference to specific goods but to a class of goods. It goes on to attach, as it were, in certain circumstances, that general statement in the advertisement to particular cases. That is the whole object of the clause.
If it were made to refer to goods in general, I am afraid that it would miss the point, and miss the mischief (I do not use that word in any vicious sense, of course) it is intended to cover. One can think of a number of cases, but, broadly speaking, it is intended to relate statements in advertisements about a class of goods to particular cases. For instance, if somebody comes in and says "I want the kind of tea which was recommended in a paper the other day", and the paper contained laudatory references to tea in general (tea merchants are a bit more shy about doing it than brewers, as a rule) and there was an irrelevant mis-statement in it, this would provide in subsection (3) the link between the two things. Subsection (3) says:
In determining for the purposes of this section whether any goods are of a class to which an advertisement relates "—and it then goes on to say what you have to look at for the purpose. Therefore, the whole object of the clause is this one particular mischief or difficulty, and the removal of "class" here is not just a simplification and shortening; it avoids the whole purpose of the clause. I hope that I have made myself clear.
§ LORD DRUMALBYNI am grateful to the noble Lord. I think this is a difficult question. I wonder whether he 156 has covered the whole intended meaning of the clause, because, if he has, I fail to see what "class" means in subsection (2). That subsection says:
The trade description shall be taken as re-referring to all goods of the class…".Most advertisements do not refer to all goods of the class. They refer to a particular brand, one of the groups of goods under a particular brand in a class. Some, of course, advertise the product as a whole, whatever it may be— "Beer is best" or Drinka Pinta Milka Day "and that sort of thing. But, generally speaking, the class of goods is not the subject of most advertisements; it is a particular brand within the class. I thought that the words "class of goods" meant the particular brand with in the class. In other words, if somebody is advertising a particular brand of shirts, let us say, what this means is that all the shirts of that brand, or of that specification or designation, as the case may be, are treated as a class. In the particular case which the noble Lord, Lord Airedale, had in mind, it would be true that the "St. Michael" brand covered many different classes of goods. But the alternative or special designation was designed in our Amendment to get over that.What I have difficulty in seeing, if the noble Lord's explanation is correct, is what possible meaning can be attached to the words in subsection (2):
The trade description shall be taken as referring to all goods of the class …",when obviously a trade description, if it is a false trade description, is a false trade description in relation to a particular brand within that class. There seem to be at least two separate meanings of the word "class" here. If the noble Lord will have another "shot" at it, I should be grateful, because it is perplexing.
§ LORD MITCHISONBy all means. Not all advertisements are specific. They do not always refer to "St. Michael" brand. But if I may take beer as an instance, let us suppose that the Brewers' Association put in a general advertisement that beer never contains arsenic—and I remember a reported case of a brewer who put too much arsenic in his beer. I think the evidence was that there was always a little, but that he put in too much. But the sort of thing that is 157 intended to he covered can be illustrated in this way. If a man comes in, and says: "I want to have some beer, but I am very susceptible to arsenic, and I want to be sure that this beer has no arsenic in it"; and he goes on: "I saw an advertisement the other day saying that beer never has arsenic in it. Does that relate to this beer? ", that is the kind of thing it is intended to cover.
The word "class" is a very broad word. No doubt you could seek to apply it in narrower cases, but I am taking those to which it obviously applies. This is not an unreal difficulty; it has happened before. The difficulty has been to link the general advertisement to the particular sale. That is what this clause intends to do. When we come to subsection (2) (and I am as anxious as the noble Lord not to anticipate too much), he will see that it is taken as referring to "all goods of the class", but "for the purpose", which is in paragraph (a), and for a second purpose, in certain circumstances, which is in paragraph b). It is only for those purposes that subsection (2) must be brought in. I hope that I have made it clear. The Amendment we have to consider now is to take out the words "any class", and to do that would miss the point completely. In saying that, I do not intend to be discourteous to the noble Lord, and perhaps I should say that it would miss the point we intended to deal with.
LORD HAWKEThis is an extremely difficult matter to understand. I do not want to embarrass the noble Lord while his divisional reserves do not seem to be in their usual place, but who is commiting an offence? Is it the person who says, "Beer is best", or is it the person who sells the brand that does not conform to the general advertisement? If the particular advertiser is to be made responsible for any advertisement conducted by somebody else, it seems rather difficult.
§ LORD MITCHISONI do not think it is as difficult as all that. The only person who can commit an offence under the first six clauses of this Bill is the person who applies a false trade description to goods, or supplies or offers to supply any goods to which a false trade description is applied. If you take the instance that I gave just now (I have no doubt that I could even improve on it), obviously the 158 man who sells the beer in such circumstances—and those are stated here—has to connect it with the trade advertisement, "There is no arsenic in beer", as describing it falsely, because he is saying, by reference to the advertisement, that it contains no arsenic, when in fact it does contain arsenic.
This trouble, I repeat, is not just an ingenious difficulty invented by a perverse Government; it is one that has occurred time and time again in the enforcement of the Merchandise Marks Act. There will not be, I should have thought, an enormous number of cases under this provision, but it is intended to link up the general advertisement of a class of goods to a particular sale in circumstances which are described in subsections (2) and (3).
LORD HAWKEAm I right in thinking that if a big egg producer advertised on television, "Eggs, two days old only", and a single producer then put an advertisement in the Press to say, "As advertised on television", and his eggs were five days old, he would be committing an offence under this clause?
§ LORD MITCHISONI am not sure whether one would need this clause for that case. But supposing somebody said, "No hen's egg is ever sold if it is more than two days old ", that would be a bit of a whopper! If you could link up a particular sale to that in the way described in Clauses 2 and 3, then obviously there would in common sense have been a misdescription, a misstatement. The difficulty has been to link them; that is to say, to know in what circumstances you should be entitled to rely in prosecuting on some general advertisement of a class of goods.
§ LORD CAWLEYI am not quite certain whether eggs are a class of goods. This worries me a little, because as I pointed out, in the other Statute, "class of goods" has been a mixed hag, and I am not certain that you will achieve your object.
§ LORD MITCHISONI hope the noble Lord will not press me too far on this matter. I should have thought they were, but we need not argue it now.
§ LORD SOMERSI wonder whether I could ask the noble Lord if there are not 159 some goods which it is rather difficult to define as to whether they come into the class or not. For instance, no doubt the noble Lord is familiar with the statement, "There is no substitute for wool." There are many fabrics which contain wool, but which are not 100 per cent wool. Do they come into that class or not?
§ LORD MITCHISONI should have thought that the class there was wool in general. It is not for me to say whether they are wool or whether the are not, and this is the kind of case where you might have to have recourse to descriptions, standards, and questions of that kind. But, broadly speaking, the object of this is simply—this is rather a limited object, but one which has caused difficulty—to link up particular cases with a general statement. I can think of cases where you could link it up with, "There is no substitute for wool", but perhaps that is such a general path, if I may so put it, that it might be a little difficult to avoid.
THE DUKE OF ATHOLLAm I to understand from the noble Lord that an individual manufacturer or producer of goods is responsible under this clause for the advertising of an organisation such as the Egg Marketing Board or the Newspaper Society, according to which particular trade we are considering, even if he is not a member of this employers' organisation, and may thoroughly disapprove of their line of advertising? Because it seems to me to be going too far if these manufacturers or producers would be caught under this clause.
§ LORD MITCHISONIt is a very interesting question, but I am not sure that it arises on this rather more limited clause. All one is trying to do here is to state the circumstances in which a trade description used in an advertisement in relation to a class of goods shall apply to instances of that class, if I may so put it.
§ LORD AIREDALEI think we have had a very interesting discussion. I was not alone in not understanding, until the Minister explained, what was the mischief which this clause is designed to prevent. Now that the Minister has explained it, it may well be that the clause as it stands is better than it would be as amended by 160 me, and I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 6.15 p.m.
§
LORD DRUMALBYN moved, in subsection (1), to leave out "any class" and insert "any brand or specific designation". The noble Lord said: With this Amendment I think the direction of attack, if I may put it in that way, changes somewhat. The rubric is:
Trade descriptions used in advertisements ".
§ That is extremely wide. As the noble Lord, Lord Airedale, said on the last Amendment, he had not understood what was in the Government's mind on this, and he did not think that many other people had either. I have discussed this clause with a great many people, and I can assure the noble Lord that no one has interpreted it in the very narrow way in which the noble Lord has done. I think he will probably understand how it was, in those circumstances, that my Amendment came to be put down, which would immensely widen the scope of the clause. It would take in the trade description made in regard to any brand of goods, any special designation of goods, and a special designation, of course, would include a particular type of goods under a brand name, where the name is used for several types, or it would take a special designation of goods in general, whatever it might be—brown ale or something of that sort. You can make the class narrow or you can make it wide. I am not quite certain that I agree entirely with my noble friend here that the clause was intended to be related to the Trade Marks Act, though whether it is desirable that it should be is another matter. I am sure the noble Lord will argue that at greater length.
§ Surely, it cannot be the case that, where you have as wide a rubric as this, and the whole of Clause 2, dealing with paragraphs (a) to (i), and several headings within those of various trade descriptions, it is to be concerned merely with the class of goods and nothing else; not with the trade description in relation to the class which the clause says. The noble Lord has been arguing as if it were a trade description of the class of goods. I do not believe that that is so. I do not see how it can possibly be interpreted in that way. He has given one narrow interpretation of it, but is not the problem this? 161 So far as advertisements are concerned, what has happened, as I understand it, is that there has been difficulty in the conception of applying the trade description to particular goods, because it has been possible for the advertiser, or, rather, the supplier, to say, "the goods advertised are not the goods that are sold in this particular transaction."
§ It has been difficult to relate the advertisement to the goods. It has been difficult to say that the trade description applied in the advertisement is applied to the goods. As I understand it, that is got over in subsection (3). But I thought the purpose of Clause 4 was to ensure that the trade description applied to all the goods of the class, or brand or special designation, irrespective of the fact that the goods being sold over the counter were not in existence at the time when the advertisement was made. This has been one of the arguments in the past, regarding the application of trade descriptions in advertisements and where it has fallen short and has proved impossible to link the advertisement with the actual goods sold in the shop. I thought this was the purpose of this clause, and that is why I put down "brand or specific designation of the goods ".
§ I do not for one moment say that that is the best alternative one could possibly find. I dare say that other noble Lords could put down a better Amendment. But it is something different from "the class of goods ", because it brings it to a much narrower range, without releasing the cover over the wider range. This is what I thought the clause was intended to do, and I thought that the word "class" was used, not only in relation to a generic name of goods, taking that as the class, or possibly to the class as defined in the Trade Marks Act, but in regard to a class of goods in a different sense.
§ Again, I have had recourse to the dictionary on this because I was not at all clear what was meant. I found one definition to be "division according to quality"; another was "a number of individuals having a common name", and "like in any respect". That, of course, is not the same as "class" according to the interpretation given by the noble Lord. What I thought was only a drafting Amendment has now become a substan- 162 tive Amendment, because of the narrow interpretation which the noble Lord has placed on "class".
§ LORD MITCHISONMay I ask which Amendment we are discussing, because the last I heard was an application to withdraw No. 16 and I do not think that that was ever put.
§ LORD MITCHISONI see; I am sorry.
§ LORD DRUMALBYNI hope that I have not to start all over again for the benefit of the noble Lord. I quite understand his difficulty, but the point I am trying to make is that in view of the narrow interpretation that he has given of the word "class" the Amendment, which I thought was merely a drafting Amendment, has become a substantive Amendment because this will greatly widen the scope. It will not only be the question of the misrepresenting of a class—which I take it means the description of flannelette as flannel, or something like that—but will relate to any of the trade descriptions in subsection (2) in relation to the particular goods advertised.
When a man advertises his goods he advertises all the goods in that class, if one can put it in that way. That is to say, to take the example we had before (though I do not think it happens in fact), if "St. Michael" brand shirts were advertised as such, then the advertisement would relate to the brand and the particular designation; in this case it would be the special designation of shirts supplied by the suppliers who own the "St. Michael" brand. This was what I thought the clause was intended to do, and that is why I thought the word "class" was not apposite. But if the interpretation of "class" is as narrow as the noble Lord has said it is, then I think we are on a point of substance, since, as I say, the words I have put down will greatly widen the application of the clause. I beg to move.
§
Amendment moved—
Page 3, line 23, leave out (" any class") and insert (" any brand or specific designation").—(Lord Drumalbyn.)
§ BARONESS ELLIOT OF HARWOODI wonder if I may make one comment. 163 Obviously, this is rather difficult. I thought that Lord Drumalbyn's Amendment was one which was going to narrow the operation of this clause, and I think I can prove that it would in fact narrow it, if I understood him aright, he thinks that it would widen the application of this clause. I understood from the noble Lord, Lord Mitchison, that the Bill, in using the words "any class of ", was using them in a wide sense. In my view the Amendment moved by the noble Lord, Lord Drumalbyn, would be of a more restricting kind than he perhaps imagines.
§ LORD DRUMALBYNMay I interrupt the noble Lady for a moment I wonder whether, when she thought of this before, she was not thinking of it in terms of a class in a much wider sense than the noble Lord opposite has indicated it was expected to be taken? I think that is the difficulty.
§ BARONESS ELLIOT OF HARWOODPerhaps I am misinterpreting the noble Lord. I thought he was saying that the word "class" was an umbrella word which covered a great many things. If Lord Drumalbyn's view is right, then I have not understood what he has said. Perhaps I may put my point and then, when the noble Lord replies, he can say which of us is giving the right interpretation. My feeling is that if we put in the words "any brand or specific designation" it would mean that an advertisement would not be an offence unless it could be clearly linked to a particular brand of goods or to goods which are fairly clearly defined. I will give two examples of what I mean. If a secondhand motor car dealer made a general claim, such as "All our vehicles have reconditioned engines", he would not be caught because he would be selling a number of different makes of cars, Land-rovers, lorries and motor bicycles, and the words "All our vehicles have reconditioned engines" would not come under "brand or specific designation". That is not something he would be using.
Again, if one were to put a notice in the window of a general dealer saying "2s. in the £ off all goods" that would not be caught because the claim does not refer to any particular brand or named article—
§ LORD DRUMALBYNOr class.
§ BARONESS ELLIOT OF HARWOOD—which it would need to do if this Amendment were passed, and my interpretation of Lord Drumalbyn's Amendment is that it would narrow the clause, because in fact people who make a general advertisement could not be caught unless they mentioned a brand or specific designation. Therefore I think it would seriously weaken the application of the Bill to advertisements if we put in something of the nature of these words. However, I think we are interpreting the Minister's speech in two different ways. I look upon the Minister's speech as saying, "This is an all-embracing clause" and the noble Lord, Lord Drumalbyn, thinks otherwise. I do not know which is right, but I want it to be as wide as possible in order that people shall not escape by producing advertisements which can be used in a different sense.
§ BARONESS PHILLIPSMay I just reply to the noble Lady? The way she has taken it is the interpretation taken by my noble friend. Does the noble Lord, Lord Drumalbyn, want me to reply?
§ LORD DRUMALBYNYes, I should be grateful if the noble Lady would reply.
§ BARONESS PHILLIPSI am not quite used to this confused procedure, but no doubt I shall get used to it in time. I think the important point is that we are searching for a word. The noble Lord, Lord Drumalbyn, feels that the word "class" is probably not going to give us the correct definition.
§ LORD DRUMALBYNWould the noble Lady forgive me? I do not think we are yet clear what it is that the Government want to achieve by this clause. As I understood the noble Lord, Lord Mitchison, he was limiting this only to classes of goods and not to specific things, which would exclude specific brands and designations, which are certainly not a class of goods.
§ BARONESS PHILLIPSThe point is that if we look at subsection (3) the class of goods is determined very much by the terms of the advertisement. This is the important point. One cannot look at one subsection without the other. The example which I have, which is similar to that given by the noble Lady and 165 which may provide the answer, is that if John Smith advertises "My handbags are pure leather" then all John Smith's handbags must be leather, But it does not mean that Tom Jones's handbags have to be leather. In other words, the advertisement in this particular context is the determining factor of the class of goods in the words of the advertisement. Am I further confusing the point, or clarifying it? We hope the Committee will accept this, because we take it that this is—or at any rate was—in the nature of a probing Amendment. I hope your Lordships will accept that subsection (3) will clarify the point.
§ LORD DRUMALBYNI should like to study more closely what the noble Lady has said. I am very grateful for her explanation. I hope that it will clarify the matter. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 6.31 p.m.
§ LORD DRUMALBYN moved, in subsection (2), after "not" to insert "all the goods were ". The noble Lord said: This Amendment may be barking right up the wrong tree; I am not sure. It was put down according to the interpretation that I had placed on the clause, and it may therefore be right out, but I do not think it is. I was not sure even as I put it down that it was quite right; I think it should have been "or any of the goods were ". I am prepared to move a manuscript Amendment if it makes it clearer.
§ There is a second point, which is a very minor one, and that is that on the most pedantic interpretation the words "whether or not in existence" ought to relate to "class" and not "goods". The major point was really to make it plain that we were dealing with the case where some of the goods were not in existence at all at the time that the advertisement was made, but the person who had read the advertisement came to get goods which were not in existence at the time the advertisement was made. It was intended to cover that. I beg to move.
§
Amendment moved—
Page 3, line 25, after (" not ") insert (" all the goods were ").—(Lord Drumalbyn.)
§ LORD MITCHISONI think that when one considers the meaning of "class", it is fairly clear what we have here. It is 166
The trade description shall be taken as referring to all goods of the class…and if it refers to all goods of the class, it refers to any goods of the class, too; it must. If it is taken to refer to all, it must be taken to include any. When it sayswhether or not in existence at the time the advertisement is published ",I think, as a matter of sense and construction, having decided what "class" means, that cannot refer to" class." The "class" is the class in the advertisement, as my noble friend said just now. It is a very broad phrase. But it is the goods which are in existence, and the kind of case we have in mind is the preliminary advertisement of a class of goods some of which come to be manufactured afterwards.They were then linked up with the advertisement by the circumstances of the sale. But you might object in a somewhat critical spirit that the description could not have referred to that particular thing because that particular thing was not in existence at the time of the publication of the advertisment. I hope the noble Lord will feel that the language is reasonably clear. I am bound to say it did not cause me too much difficulty, but that is probably because I received guidance on the wording. I thought "class" was a nice broad word and its application must depend on the terms of the advertisement. I hope the noble Lord will feel it is reasonably clear and would not be elucidated any further by the addition he suggests.
LORD HAWKEI am a little puzzled by the impact of the words "whether or not in existence ". I understand what is intended, but I am wondering if it might not do a bit more. Suppose someone put an advertisement in a Saturday column of the Daily Telegraph, for goods, some of which he had in stock while some were on order. If that advertisement lapsed or was withdrawn and two months later somebody came to buy from him, and he had in stock the nearest thing he had been able to get to the terms of the original specification and yet it was not the same as was originally advertised, would that clause not bite on that particular person, who in all innocence was supplying two months later the best he could get, perhaps having forgotten that he had advertised at all?
§ LORD MITCHISONWhat we are trying to do is to protect the consumer. Let us say that there is advertisement of some sort relating to a class of goods and the class of goods, goods in stock or immediately after manufacture, are disposed of. Then two months later, there having been no fresh advertisment, something rather like that comes on sale. What the noble Lord is saying is that it it not really right to relate that to the original advertisement. I think my answer is that one has got to look at subsection (3); you have got to look among other things to
all other matters making it likely or unlikely that a person to whom the goods are supplied would associate the advertisement with the goods ".If you said to the buyer, "Do you read the Daily Telegraph?", and he replied "No, I cannot stand the paper; I always read the Sun", it would be that much more unlikely he had ever seen the Daily Telegraph advertisement. It might be that he might say, "I saw something of this kind advertised a couple months ago, and I meant to come at the time but I have been busy ". In that case I think it is right he should be protected by the provision of the clause because the advertisement had been made. It would be quite easy for the seller to say that related to another lot of goods, not this one. But unless he did so, I think the buyer would be entitled to protection. He would probably say, "That was the last consignment; nothing to do with this lot," and then everybody would be all right, and nobody would have committed any offence.
§ LORD DRUMALBYNI beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 6.39 p.m.
§ LORD AIREDALEThis is a drafting Amendment which I put forward with some trepidation. I always put forward any drafting Amendment with some trepidation. This is an Amendment to subsection (2), which is divided into paragraphs (a) and (b). Paragraphs (a) and (b) contain eleven words which are common to both of them. Those words are
for the purpose of determining whether an offence has been committed ".I should have thought it was good draftsmanship to state first the words which are common to the two paragraphs and then 168 to divide off to paragraph (a) and paragraph (b). I should have thought that was very much clearer than having a paragraph (a) and a paragraph (b) both of which contain the expression I have referred to. I beg to move.
§
Amendment moved—
Page 3, line 26, leave out from (" published ") to end of line 34 and insert (" for the purpose of determining whether an offence has been committed
§ 6.40 p.m.
§ LORD MITCHISONThis is a tempting drafting Amendment, but it does not do quite the same thing as does the original text. The original text applies for the purpose of determining an offence under paragraph (a) of Clause 1(1) in general. That is the general purpose. If one looks back at paragraph (a) one finds it covers those who apply a false trade description to any goods. It applies in all cases. When one comes to paragraph(b)of Clause 4(2) one gets to the other cases where the goods are supplied (I summarise) in connection with advertisements,
also for the purpose of determining whether an offence has been committed under paragraph(b)".—of Clause 1(1). I think the noble Lord sees the point. The original text is rather wider than his Amendment.
§ LORD AIREDALEI should not like to spend time on a purely drafting Amendment. I think the Minister has got something here, and I am pleased to withdraw this Amendment.
§ Amendment, by leave, withdrawn.
§ 6.42 p.m.
§
LORD STRABOLGI moved, in subsection (3), after "advertisement" (where that word occurs a second time) to insert "and other advertisements in relation to such goods." The noble Lord said: Arising out of the discussion that we had on the Amendment of the noble Lord, Lord Drumalbyn, in respect of "class", it appears from what my noble friend Lord Mitchison said that Clause 4(3) is of immense importance, because it is through this subsection that we are going
169
to determine the meaning of the words "class of goods". My Amendment seeks to add the words
and other advertisements in relation to such goods.
§ I am rather surprised that when the whole case is going to be based on advertisements this is put into the singular, although I admit that there will also be taken into consideration the time, place, manner and frequency of its publication. I agree that that is possible with an advertisement with the same selling slant which is repeated in different forms in different media, either in the Press or "on the air ". But I suggest that it would be well worth adding other advertisements as well which may be selling the same goods in a different way, and which should be taken into account. In fact, I think that the whole campaign should be taken into account—every facet of it—when deciding whether the goods which are advertised have a false description or not; otherwise it would be possible to base a prosecution on a quite small advertisement, perhaps in a trade paper into which it has been inserted for quite a different purpose, not being meant to be seen at all by the general consumer but by the stockist. It would be possible to base a prosecution upon that without taking into account other advertisements of the same kind which are put out for the purpose of selling to the consumer. I beg to move.
§
Amendment moved—
Page 3, line 38, after (" advertisement ") insert (" and other advertisements in relation to such goods ").—(Lord Strabolgi.)
§ LORD DRUMALBYNI should like to support this Amendment. I think it is a point that is relevant to that which was raised, I think, by my noble friend Lord Hawke. It is a fact, of course, that circumstances in commerical affairs change quickly and it may well be that another advertisement has been published which entirely supersedes the series, or supersedes the state of affairs so far as the consumer is concerned. Therefore it would seem entirely right and proper that there should be considered not only the particular advertisement, together with the time, which may have been some time ago, and the frequency of publication, but also whether there have been any further advertise 170 ments which say something different, which change the offer, possibly withdraw the offer and so on. I think the noble Lord opposite has made this point quite clearly, and I would support it.
§ BARONESS PHILLIPSIn replying to this Amendment, I hope that both noble Lords will accept that the same observations apply to this Amendment and to Amendment No. 27. Since both noble Lords are concerned, I think that in a way they have answered the point—certainly the noble Lord, Lord Drumalbyn, has. Line 39 says:
and all other matters making it likely or unlikely that a person to whom the goods are supplied would associate the advertisement with the goods ".We feel that this covers the point which has been made. Before an advertisement is held to relate to any particular goods, naturally regard would have to be taken of any other advertisement which was relevant. These words in fact cover that situation.
§ LORD STRABOLGIWith respect to the noble Baroness, I really cannot agree with her. I quite understand what she means. I know it is clear in her mind, and her explanation has now made it clear in mine. But we are legislating for a great many years, and whether it will be clear to the courts or even to members of the public who are bringing cases, or appeals, or are defending cases, I do not know. I should have thought that this was a perfectly harmless and rather helpful Amendment. I cannot see what objection there is to adding this wording. The noble Baroness could keep the Government's wording in as well. The term "all other matters" merely makes it all the more embracing. I suggest to the noble Baroness that it may well be worth the Government's while to have another look at this matter, to try to make the provision as wide as possible. If the noble Baroness would give me the undertaking that perhaps on Report stage she will let the House know what is the Government's considered view, I should be prepared to withdraw the Amendment.
§ BARONESS BURTON OF COVENTRYI should like to ask the noble Baroness whether she would be willing to look at this matter again. I have listened carefully, and I cannot understand—I quite accept that it may be me and not the 171 noble Baroness—these words cannot be included. If the noble Baroness does not feel able to look at it again, I wonder whether she would spell out simply, for me anyway, the reasons of the Government for feeling that these words should not be included?
§ LORD DRUMALBYNMay I say another word about this? I think it is perhaps a more important Amendment than the noble Lord, Lord Strabolgi, thinks. Of course the point is included in the words in the Bill as it stands; but this is a question really of priorities. My own view is that this is a matter which is at least as important as the time, place, manner and frequency of publication, and probably more important, particularly in relation to the words that follow. The words that follow mention
other matters making it likely or unlikely that a person to whom the goods are supplied would associate the advertisement with the goods.It is extremely important that this particular matter should be placed in the forefront of those points which could reasonably be expected to make a person associate the advertisement which is superseded with the goods. It is most important that a supplier should not be deemed to have committed an offence when he has completely changed the copy of his advertisement, has changed the offer, the price, and so on, and when this has been completely superseded by a new advertisement. This is as important as any other consideration. It ought to be put in, and I hope that the noble Lord will not turn it down out of hand but will consider it further before the next stage.
LORD HAWKEWe are not only legislating for the poor, innocent consumer. We have also to deal with the sea-lawyers and the smart-Alecks who may bring before the Weights and Measures people complaints based on the slight dubiety of the wording of the Bill and use this as a form of blackmail. We want to make certain that they cannot do that.
§ LORD MITCHISONIf on consideration, noble Lords want us to look at this point, we will, but I cannot hold out much hope in the matter. It seems to me to be perfectly clear from the language of the subsection: 172
In determining…whether any goods are of a class to which an advertisement relates regard shall be had not only to the form and content of the advertisement …"—that is the first thing to look at, and then the subsection goes on to mention the other things. We are being asked to include not only "the form and content of the advertisement ", but also "and other advertisements in relation to such goods ". It must depend on the circumstances, whether there are any other advertisements, and so on. In some places the matter would be clear; in others it would not be clear. The right way to bring in a question of this sort—which is only one of many questions—is to see whether it islikely or unlikely that a person would associate the advertisement with the goods.Those general words clearly cover this point I should find the subsection much more obscure if it said that not only had one to look at "the form and content of the advertisement" but at "other advertisements in relation to such goods" and to a number of other things, including all the circumstances of the case. It would be a much more difficult clause to construe if those words were included, and it would not add one whit to the subsection.
§ LORD DRUMALBYNIt is quite plain from what the noble Lord has said that the words themselves will not do. But the purpose of the Amendment, and what we are asking him to look at, is that other subsequent advertisements by the same advertiser should also be taken into account.
§ LORD MITCHISONI suggest that one must consider the circumstances of the case. If they are relevant, by all means consider them; but one does not want to enjoin people to consider a whole lot of other advertisements which may have nothing whatever to do with the matter. Surely the right way to bring in this kind of consideration is to say
all other matters making it likely or unlikely that a person…would associate the advertisement with the goods ".That really is the point. If one is enjoined to bring in other advertisements in relation to such goods, they may have nothing whatever to do with it. They may be advertisements which the buyer never sees. They may be advertisements 173 which are years old. The Amendment seeks to put in the forefront of the picture something which may or may not deserve to be put there The way to discover whether it deserves to be put there is to see whether the person to whom the goods are supplied would be likely to associate the advertisement in question with the goods.I speak with some confidence about this. While I appreciate what the noble Lord has in mind, I am quite sure that this point is already covered and that the inclusion of these words would make the matter far more difficult. I hope that in the light of what I have said, the noble Lord, Lord Strabolgi, will withdraw the Amendment. I assure him that the inclusion of the words of his Amendment would do nothing but obscure the issue. In some cases it would be obliging the courts to look at matters which might have nothing to do with the question which they were deciding. I do not really know what further consideration one could give to a point of construction, but if it will make my noble friend any happier I will say that will look at it to see whether I might be wrong. I remember the injunction given by Cromwell to his soldiers on one occasion, that in circumstances which it would be un-Parliamentary to quote they should examine whether they might not be mistaken. I will gladly do that much. I rather hope my noble friend will withdraw it.
§ LORD STRABOLGII do not know whether my noble friend is going to try to redraft this subsection or not. He says he is going to look at it, but he cannot give any promise or undertaking except to look at it and think about it. I do not know whether there is any hope of getting this subsection amended in a clear manner by Report stage.
§ LORD MITCHISONLet me make it perfectly clear. I will invite my noble friend to withdraw the Amendment. I am saying to him that if he or any other noble Lord wants me to look at it again, I will gladly try to find whether I am wrong. This happens to be a case where I feel confident that I am dead right. Therefore I cannot hold out any hope. In these drafting matters, one sometimes feels that there may be a point in them, and sometimes one feels the other way. Frankly, 174 I do not think there is anything in this whatever, except the possibility of causing a certain amount of confusion. Having said that, I have offered—and I offer again, if the noble Lord tells me he wants me to do so—to try to find if I was mistaken in some way.
§ LORD DRUMALBYNMay I assist the noble Lord opposite and the noble Lord, Lord Mitchison? Could I suggest to Lord Strabolgi that he and I discuss the wording of this Amendment and put the matter down again at the next stage'? That will give the noble Lord an opportunity to reconsider it.
§ LORD STRABOLGIIn view of what my noble friend has said, and having regard to the remarks of the noble Lord, Lord Drumalbyn, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§
THE DUKE OF ATHOLL moved, in subsection (3), after "manner" to insert "style". The noble Duke said: It is with a certain amount of trepidation, after all the discussion which we have had on this subsection, that I rise to move this Amendment. The word "style", which I should like to see inserted in line 38, is obviously covered by
all other matters making it likely or unlikely that a person to whom the goods are supplied would associate the advertisement with the goods.
§ I feel that if we include in the more specific considerations the time, place, manner and frequency of the advertisement, we also ought to take into account the style of the advertisement. Advertisements vary considerably in style, usually according to the quality of the goods they are selling.
§ Thus if you are selling something which costs £100, you tend to have an advertisement which most people would regard as of a rather better style and less flashy, than if you are selling something which costs Is. Therefore, I should have thought that one of the considerations which ought to be enumerated was the style. The noble Lord, Lord Mitchison, may say that "manner" already includes style, but I can assure him that to me manner and style are quite different. However, if he does say that, I am quite prepared to accept his word for it.
175§ LORD MITCHISONWhat I am going to say is that "form and content" cover it.
§
Amendment moved—
Page 3, line 38, after (" manner ") insert (" style ").—(The Duke of Atholl.)
§ BARONESS PHILLIPSI am sorry to disappoint the noble Duke, but I am replying this time. We are trying to divide policy and law, in order to avoid wasting the time of the Committee. I take it that in this connection the noble Duke means literary style, as otherwise the word "manner" would cover this point. I see exactly what he means when he describes the advertisements—I believe this comes in the law of defamation, also—but we feel, as we have said before, that "and all other matters making it likely or unlikely" would in fact cover the point that he is making. I hope he will appreciate that.
§ LORD AIREDALEMay I just ask out of curiosity why the "not only but also" form of construction is used here, when the subsection says
not only to the form and content…but to the time place, manner and frequency "?Why not string them all together and sayregard shall be had to the form, content, time, place, manner and frequency "?Why "not only but also "?
§ LORD MITCHISONIf I may answer, I think the reason is that, obviously, you must look at the form and content of the advertisement. You might stop there, if it were not for this indication of other points which you would also have to consider. Therefore, you take the obvious thing and say, "Now judge, but do not stop at that point. Go on and look at the others, too ".
LORD HAWKEMay I suggest that this is a wonderful chance for the noble Baroness to hit her first four by accepting this Amendment, because it cannot do the slightest harm to the Bill and it can certainly emphasise a slight difference of opinion. Unfortunately, we do not have the noble Lord, Lord Rhodes, here to argue about nuances of the English language, but let us take the comic advertisements for, say, Guinness. Somebody 176 might go, with his tongue in his cheek, to a seriously minded inspector of weights and measures, and say, "It is not really true that I can carry an iron girder after a glass of this beverage". That would certainly be covered by the style of the advertisement, which would be regarded as comic, and it might be covered to some extent by "other matters making it likely or unlikely". But "style" would do no harm, so why should the noble Baroness not get a good mark by accepting something?
§ LORD MITCHISONI am awfully sorry to interject. I was told by someone well versed in these matters that, if you put unnecessary words into an Act of Parliament, they tend to fester, and think I that really is the short way of putting it. I think it is quite clear that this point is covered. As the noble Duke himself said, it does not make any difference, but if you take to accepting things because they do not make any difference, you are rather apt to find that their insertion makes rather more difference than you supposed. Any discrepancy between my noble friend and myself arises from the fact that "style" has various meanings. Advertisements can be snappy or weighty, and I can think of other descriptions, too. I think this is all covered in the clause as it is, and if one goes on adding, one runs a risk with every unnecessary word that is put in.
§ LORD AUCKLANDWhether or not "style" is the right word, I think there is substance in this Amendment. I am reminded, for example, of an advertisement for lager beer where one sees a beautiful blonde on the poster, with no relevancy at all to what is advertised. I may be barking up the wrong tree here, but I assume that this Amendment really refers to that kind of advertisement. Whether or not "relevancy" would be a better word I do not know, but I think that "style" is quite relevant to the example which I have quoted. I hope that the Government will at least consider this Amendment before the next stage of the Bill.
§ LORD MITCHISONI feel inclined to say that one is always ready to consider anything. I think that is a very proper way in which to approach a Bill. But I agree with the noble Lord, Lord Hawke, as 177 distinct from the noble Lord, Lord Auckland, that this point is already covered. I do not know about barking up the wrong tree at the blonde, but I should have said that the lady was a "matter making it likely or unlikely that a person to whom the goods are supplied would associate the advertisement with the goods", and if she was not that she would not matter.
THE DUKE OF ATHOLLI think we have had an interesting discussion on this Amendment. I quite agree with the noble Lord, Lord Mitchison, that we want to have as few words as possible in this Bill. It is already quite long enough, and I should not wish to press this Amendment. But I want to warn the noble Lord that at the Report stage I shall probably move to delete "time, place, manner and frequency ", as those words would also appear to be covered by "all other matters". I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 7.7 p.m.
§
BARONESS ELLIOT OF HARWOOD moved to add to the clause:
( )—(a) Where it is proved that any statement or advertisement is false in so far that it induces a person to accept an offer for goods, services or facilities, which but for such false statement or advertisement the offer would not otherwise have been accepted, such false statement or advertisements shall be deemed to be a false trade description for the purposes of the Act.
(b) In determining whether or not a statement or advertisement is false for the purposes of this subsection, a court shall have regard not only to the express words contained in the statement or advertisement but also to false indications arising from ambiguity, omission or inference.
§ The noble Baroness said: I rise to move this Amendment—and I speak here on behalf of my Consumer Council—because I think it is known to the noble Lord opposite that we are not entirely satisfied with Clause 4 as it stands, and I am suggesting adding another clause. The reason for doing this is that, unless a description in an advertisement can be brought within one of the heads in Clause 2, it is not a trade description for the purposes of the Bill, as however false it may be its application to goods does not constitute an offence.
178§ My noble friend Lord Peddie has already discussed this shortcoming during the Second Reading of the Bill, and although I am very glad that we have in the course of our discussions extended the ambit of Clause 2, it would still not catch the effect of false advertising, whether that is brought about by ambiguity, omission or inference, unless it is clearly linked to one or other of the heads in Clause 2. This is really a philosophical difference, because we believe that the criterion of falseness should be judged by its effect on the buyer. This is the method adopted in many foreign countries, and indeed in America an advertisement must reach a very high standard of accuracy, for advertisements there must not mislead even the most ignorant or least suspicious buyer. This may be setting a rather high standard. None the less, the principle of judging a false statement by its effect on the buyer is, I believe, the only realistic one.
§ In the Second Reading debate, my noble friend Lord Peddie gave two examples of this formula which have already been adopted in British law. I refer to the Labelling of Food Order 1963, Section 8, and the Bread and Flour Regulations 1963, Section 23. This is, I think, the right course, for whatever the length of the list of heads under Clause 2, it can never be truly comprehensive and will not catch the subtle inferences and significant omissions in advertisements which are so common in modern advertising practice, particularly on the television screen. What we want to be quite sure about is that a misrepresentation by omission is also caught under this Bill, and this new paragraph which we are proposing, brings an advertisement which gives a false impression by an omission into the same position as those covered by the existing categories in Clause 4, which we have been discussing. It adds one more group to those already in the clause. I hope very much that the Government will be able to see their way clear to accept this Amendment, if not as I have drafted it then in a way that puts into Clause 4 a subsection which will catch those advertisers who achieve results in ways which are not now designated in Clause 4. I beg to move.
§
Amendment moved—
Page 3, line 41, at end insert the said subsection.—(Baroness Elliot of Harwood.)
§ LORD PEDDIEI hope the Committee will support this Amendment. I think that, in the first place, we should recognise the basic purpose of this Bill, which is to penalise the person who is trying, by misrepresentation of his products, to mislead a buyer. It is quite true that the Bill lays down a series of characteristics by which one will be able to judge misrepresentation, but I think it has been indicated quite clearly that the characteristics, physical or otherwise, do not include all the means by which it is possible for a customer to be misled. Indeed, as the noble Baroness has indicated, I quoted on Second Reading instances in which legislation already in existence recognises the fact that people can be misled by omission or by inference; and, in indicating that on the last occasion, I actually quoted a case where it was possible, in a television advertisement, for a white-coated person to represent himself as a doctor, and by that means, of course, obviously, to create the impression that the product advertised was backed by the medical profession.
§ BARONESS BURTON OF COVENTRYIf my noble friend—
§ LORD PEDDIEThe noble Lord, Lord Drumalbyn, intervened at that point, quite rightly, and pointed out that no longer were such advertisements in existence. I accepted that correction; but, at the same time, I would remind the Committee that, whilst doctors are not represented in such a way, as recently as about two or three weeks ago there was an advertisement for a very well known medical product in which a person in a white coat was demonstrating the effects of a particular commodity. It is true that he was not a doctor, but the white coat itself is a symbol of the medical profession—and one could go on.
LORD HAWKEMay I correct the noble Lord there? I happen to be a director of a company which hires out many tens of thousands of white coats, and remarkably few of them are worn by doctors.
§ LORD PEDDIEBut I am quite certain that the persons to whom the noble Lord refers are not handling and demonstrating these particular pills. You can use white coats for all sorts of purposes, 180 which clearly indicates that a white coat can be used for a purpose other than the one with which you are concerned; but in this particular one it was used to demonstrate a medical product. The mere fact that the noble Lord has intervened and has indicated that a white coat can be used for another purpose strengthens my point, because when it is associated with a medical product, as here, it has an entirely different meaning.
In consequence of that, we are suggesting in this Amendment, which is quite a reasonable one—there is nothing new about it; it merely recognises the fact that a list of physical characteristics cannot itself include all forms of misrepresentation; no more than that—that, where it is possible to prove that a person has, by omission or by inference, in any way caused a person to be wrongly influenced to purchase a commodity, then he should be penalised—and that, after all, is the sole purpose of the Bill. The sole purpose of the Bill is to penalise individuals who indulge in misrepresentation to sell their goods. It is contended through this Amendment that this misrepresentation can be effected by means other than those classified in the list of physical characteristics, and I therefore hope that the Committee will support the Amendment moved by the noble Lady.
§ BARONESS BURTON OF COVENTRYI should like to make a comment here. I find myself in some difficulty, and I should like to tell the Committee why. I am a member of the Independent Television Authority, and, whether we call it the Addison Rule or not, we obviously do not in either House take part in debates connected with the work of a board or authority of which we are a member. I do not of course, propose to do so, but what has really brought me to my feet is the noble Lady opposite. I may have remembered her words incorrectly, but I think the gist of what she implied was this: that the type of advertisement of which she was complaining here was to be found—I do not know if she used the word "particularly", but, anyway, was to be found—among television advertisements.
§ BARONESS ELLIOT OF HARWOODI did not use the word "particularly"; I merely added television advertisements 181 to other advertisements. I am not pressing television as opposed to any other medium.
§ BARONESS BURTON OF COVENTRYI know, but unfortunately that is what has brought me to my feet. Before I became a member of the Independent Television Authority, and when I was in another place and was pursuing the question of advertisements—in that case it happened to be dental advertisements—I said then, and I still say now, that I think the type of advertisement on our television screens is. if I may use the word, better (which is always a bad word to use) than the type of advertisement used in other media; and I thought then that this was because the control exercised by the Independent Television Authority, as a result of what is laid upon it by Parliament, was very much better. That, as I say, was long before I came to this House.
I was about to rise and correct the noble Lord, Lord Peddie, who saw me out of the corner of his eye and made it very evident that he did not require any correction, because I knew what the noble Lord, Lord Drumalbyn, had said during the previous debate. But I want to raise this point. I have sympathy, even if she does not think it, with what the noble Lady is after, but I am very concerned over these words "ambiguity, omission or inference ". I think this is almost impossible to decide. We can obviously decide whether or not an advertisement is factually correct. That is something we can ascertain; and, if the noble Lady would not think I was being unfair—I am sure she will not—I should like to remind her that, of the considerable list of advertisements (I think some 36 in number) about which her Council complained to the Independent Television Authority some little time ago, one had some substance and the others were found not to have. I think that, in that respect—and it is difficult for other Members of the Committee, who, unlike the noble Lady and myself, do not know in detail what we are talking about—
§ LORD CHAMPIONHear, hear!
§ BARONESS BURTON OF COVENTRYI am trying to be clear, and I think I am being as clear as anything, after what went on before—I mean earlier this after 182 noon, not during the remarks of the previous speaker. But what is very difficult, it seems to me, is to decide what somebody thinks as a result of what he has seen. This is a matter of opinion, and that creates a difficulty. Is it the noble Lady's opinion or mine if we each see an advertisement and arrive at different conclusions? And for whom are the courts to find in this particular respect? I also feel that the noble Lady is on a very sticky wicket when she gets on to the question of omission. The essence of good advertising is to be able to use a succinct phrase which exactly puts the point. This you cannot do without omitting something. You cannot have an essay; it would then cease to be an advertisement. These are the only remarks I wish to make. I have sympathy with this; but I do not think it practicable because I think a court cannot decide between different opinions. But I was drawn to my feet by the fact that I believe that the control of advertising on television is better than that on other media—and I do not think I am alone in that opinion.
§ LORD STRABOLGII should like to support everything that my noble friend Lady Burton of Coventry has said, and also to suggest to the critics of television commercials that they might try to see how difficult it would be to get the whole information into some fifteen seconds, or less.
§ LORD PEDDIEThe trend of the debate is tending to go along in the wrong direction. We are not expressing any criticism of television as such. It may be—I think it is—that the measure of control over television advertising is better than, say, that of the newspapers. I concede that. All that has been stated in this Amendment is that it is possible to mislead a potential buyer in a manner that does not come within the list of characteristics. There is no doubt about that. That is all that is being stated. If we want a precedent for what is now being suggested—and I appreciate the difficulty mentioned by my noble friend—I would refer to the precedent which I quoted on a previous occasion, and which is to be found in the Labelling of Food Order 1953, and again in the Bread and Flour Regulations 1963. I quote:
It is an offence for any person to publish an advertisement which indicates or is calculated to indicate by words device or description 183 either directly or by ambiguity, omission or inference that a food is an aid to slimming.So there is a precedent in that legislation. The only point now is, if the true purpose of the Bill is to protect the consumer against any misrepresentation, what is the difficulty about accepting this Amendment, which would tighten it a little more?
§ 7.25 p.m.
§ BARONESS PHILLIPSI should like, first of all, to assure both the noble Lady and the noble Lord that certainly the purpose of the Bill is as he has outlined. But, having said that, I would emphasise that if the range of matters which can be treated as trade descriptions were to be extended in this way, it would include a number of highly subjective elements. We have very carefully constructed the "misdescription" parts of the Bill to make them workable and not to expose the courts to the difficulty—or even, as we have already heard, the impossibility—of reaching decisions on the basis of these subjective factors. In Clause 2 we have provided a virtually all—embracing list of objective matters as to which false statements might be made and which could be relatively easily assessed for the purpose of determining whether or not a false trade description had been used.
The noble Lord, Lord Peddie, referred to other legislation; but I think he would agree that particular matters connected with health were dealt with in that legislation. They could not be taken as a pattern for a general Bill of this kind, which ranges over goods and advertisements of every possible kind. I should like particularly to quote the noble Lord, Lord Drumalbyn, who I think has some marvellous quotes, which I use on frequent occasions. I believe he said yesterday that it is undesirable to extend the scope of criminal law to an undefined extent. This is the thinking behind the Government's request to the noble Lady to withdraw her Amendment.
§ BARONESS ELLIOT OF HARWOODI rise to thank the noble Lady for her answer, which I am afraid I do not find very satisfactory. It is a curious thing that this question of omission, false interpretation or ambiguity or inference does in fact exist in the legislation of a number of other countries. It exists, I understand, in West Germany, France, America and in Spain. Their advertising laws all 184 employ this principle which I am advocating. They have done this successfully; and I cannot see why, as it is one of the necessary protections for the public, our Government should not discover that it could also be put into this Bill. I do not want to argue with the noble Baroness, Lady Burton of Coventry, about the Independent Television Authority and advertising that is complained of. The figures she gave I do not think were correct. I do not carry them in my head, but I will write to her on this matter from my office. We have had a lot of discussion with them and, as the noble Lady knows, the Independent Television Authority advertising is governed by a code, and that code is the important thing. But this does not really apply to the discussion here to-day.
However, I still feel that this is something that this Bill lacks. I shall not press this Amendment to a Division at this moment. I shall withdraw it, but I shall put something down at Report stage. I hope very much that in the meantime the Board of Trade and the Ministers concerned will be able to look again at this matter. It may be that I have not the right phraseology. It may be that something better could be put in; but if it can be done in other countries, I do not see why it cannot it done in this country. I think it is of some importance. I beg leave to withdraw this Amendment now, but reserve the right to put something down on Report.
§ LORD DRUMALBYNBefore my noble friend withdraws her Amendment, I wonder whether when she considers what to put down at the Report stage, she will have regard to the framework of this Bill, because we must get a Bill which is workable within this framework. She has quoted the experience of other countries where the framework of the law is different; it may be that we may have to meet the kind of point she has in mind by a different method.
§ BARONESS PHILLIPSWhile accepting what the noble Lady has to say, I would ask that she should look at Clause 2, because I feel there is a statement there,
an indication direct or indirect by whatever means givenwhich might go a long way to cover ambiguity, omission or inference.
§ Amendment, by leave, withdrawn.
185§ [The Sitting was suspended at twenty-eight minutes past seven o'clock, and resumed at half past eight.]
§ On Question, Whether Clause 4 shall be agreed to?
§ LORD AIREDALEBefore we leave Clause 4, there is one matter I should like to mention, which was put into my mind by something said earlier by the noble Duke, the Duke of Atholl. Clause 4 deals with trade descriptions used in advertisements relating to any class of goods, and it operates, according to subsection (2)
for the purpose of determining whether an offence has been committed ".What worries me is this. Suppose an organisation whose job is the marketing of milk find they have more milk than they can sell in liquid form and decide to sell the milk in the form of milk chocolate. They have a campaign to, "Eat more milk chocolate—every half-pound contains a pint of milk!" If that statement is false, no doubt that organisation would deserve to be prosecuted.However, suppose a shopper goes into a shop and buys half a pound of some brand of milk chocolate, which is analysed and found not to contain so much as a pint of milk, I think it would be monstrous if the shopkeeper or his supplier or the manufacturer of the chocolate were to be prosecuted for something amounting to a misdescription under an advertisement published by an organisation which had nothing whatever to do with them. I am not quite satisfied that under the Bill as it stands that shopkeeper or supplier or manufacturer may not be prosecuted. This is not a matter I can expect a reply to from the Minister this evening, but it might be worth looking at before the next stage of the Bill.
§ LORD DRUMALBYNMay I make one comment here? If this clause deals only with trade descriptions in relation to a class of goods, may I respectfully submit to the noble Lord that the rubric is misleading? If it had not been so, I would not have fallen into the error which I apparently did in my interpretation of this clause. I wonder whether we could not have a more restricted rubric to make clear what the clause is really dealing with.
§ LORD MITCHISONI hesitate to take responsibility for rubrics. If we make them too long, they often appear to be misleading. I think that this is a good general description, but I will gladly look at the rubric to see whether we can think of some words that will cover it a little better.
On the point raised by the noble Lord, Lord Airedale, clearly the people who issued the advertisement would have done nothing wrong, because they would not have sold any goods or supplied or offered to supply any goods, or applied a trade description to them. No doubt they are out of the wood. The only circumstances in which anyone else may be liable would be those in which one could charge that the person who was buying associated the advertisement with the goods. I think that one could get out of this on the common sense of the courts or on the de minimis rule. If one could prove that the half pound did not contain a pint but eleven ounces of milk, nobody would be likely to prosecute. But if there was a gross error, I am inclined to think that the person who sold the goods ought to be liable, because he had in one way or another represented to the buyer that these were goods which contained a quantity of milk that was much larger than the actual quantity of milk in them. That is what we do not want people to do, whether by reference to advertisements or in any other way.
There is no injustice here that I can see, and it does not really turn on this clause. It turns, I should have thought, on the matters one has to take into account as regards the trade description in Clause 2, particularly in this case, perhaps, of composition, or possibly method of manufacture. I think that if a trader effects a sale on the footing that there is a given quantity of milk, then, subject to de minimis, he ought to be liable; and the whole tenor of this Bill is, like the food and drugs legislation, to make people liable for letting the consumer in on a point of this sort, irrespective of intention. I think one has to do it that way—I see the difficulties, of course—otherwise one becomes involved in subjective considerations which are not, I think, appropriate to this form of legislation, or indeed, so far as one can avoid them, to criminal matters at all.
§ Clause 4 agreed to.
187§ 8.38 p.m.
§ LORD DRUMALBYN moved, after Clause 4, to insert the following new clause:
§ Definition of False Trade Description
§ " . The expression ' false trade description ' means a trade description which is likely to be taken as true but is false in a material respect as regards the goods to which it is applied, that is to say, in a respect of such substance that it is capable of inducing a purchase."
§ The noble Lord said: I hope I shall not be out of order if I start by saying that, while in discussion we are bound to quote illustrations that come to mind, I hope it will not be thought that in doing so we are referring (as they say at the beginning of novels) to any living persons.
§ I can explain this Amendment quite simply. The reason why we have put it down is that when we come to Clause 5 we are dealing with statements deemed to be "false trade descriptions ". That seems to me to be a new kind of beast, the "false trade description". In view of the way in which it is treated in Clause 5 we thought that the term ought to be defined. What we have done here is to attempt to reproduce the Molony recommendation in words as close to Molony's own words as possible, with one addition which I shall explain. It would have been possible to define a false trade description in Clause 1, but that we have not done: what we have done is to say what we mean by "false". A definition could, I think, come in here, or after Clause 5, or in the Interpretation Clause. But I think this is the right place to put it, in view of the fact that you then read on to Clause 5. In any case, from the point of view of debating Clause 5, I think it is a good idea to get clear in our minds what we mean by a false trade description, even if the Government are unable to accept this Amendment at the present time.
§ The basic offence is in applying a false trade description. We have been discussing trade descriptions in Clause 2, and we have been discussing applying them in Clauses 3 and 4. Now we come to this false trade description. The first leg of this clause deals with the point of whether or not the description is likely to be taken as true. This is something I mentioned at an earlier stage. It seems to me that unless the thing is likely to be 188 taken as true, it is not deceptive; it does not deceive anybody, and it does no harm. Therefore, this seems to be a good leg to start on.
§ Then it goes on to introduce once again the words "in a material respect", and to define their meaning in the terms which Molony himself used as indicating what he, at any rate, thought was meant; that is to say, is "capable of inducing a purchase" of the goods to which the description is applied. This is really the crux of the matter. I think it covers the point which my noble friend Lady Elliot of Harwood was raising earlier; that, to do any harm, this false description must be capable of inducing a purchase. I thought this was a good place to put it in, and I thought it was a good idea to define what we meant by a "false trade description ". I beg to move.
§
Amendment moved—
After Clause 4 insert the said new clause—(Lord Drumalbyn.)
§ BARONESS ELLIOT OF HARWOODI should like to support this clause. It has for me only one disadvantage, which is that I was not in favour, and still am not in favour, of the phrase "in a material respect ". As that is now in the Bill, I have to swallow that one, but I think it is a good idea that we should have something in the Bill which makes the point I made when moving my Amendment: that in some respects people are being induced to make a purchase which might or might not be what they think it is—in other words, that there might be a false emphasis which would be wrong and which would induce someone to make a purchase when he did not know what he was purchasing. I think it is an advantage to have a description of this kind, and I would support the noble Lord.
§ LORD STRABOLGII should like to support this Amendment, to which I have added my name. As the noble Lord, Lord Drumalbyn, said, we have construed the word "false" in Clause 1, and without going over the arguments which were accepted by the Committee yesterday, I think the noble Lord is perfectly right in asking for this Amendment to be included. The effect would be that this construction would be put on "a false trade description" only if, as the noble Lady has said, it is of such substance that it is capable of inducing a purchase. It would 189 not be operative if it is false due to overenthusiastic belief in a product by a manufacturer or his advertiser. It is probably quite a good thing for people to feel enthusiastic about their goods, although sometimes they may stray from the strict frontiers of accuracy. In other words, the clause would only be operative if it were of such a nature that it would induce a purchase.
§ LORD AIREDALEI should like this Amendment to have all-Party support, but I must say that I wonder whether the expression "capable of inducing a purchase" has any limitation at all. I should not have thought that it was incapable of inducing a purchase if you took a 1s. 6d. packet of detergent and stuck a 3d. bit on the packet with a bit of adhesive tape, and sold the packet for 1s. 9d. So I wonder whether there is anything under the sun which can be said not to be capable of inducing a purchase. With that reservation I support the Amendment.
§ BARONESS PHILLIPSI am sure the noble Lord, Lord Drumalbyn, will be glad to have this news. Your Lordships will appreciate that he made some drastic alterations to his earlier Amendment. As it is clearly linked with a decision taken in Committee yesterday, we can assure the noble Lord that we will give due consideration to this point between now and the Report stage. I hope the noble Lord will accept this assurance and withdraw the Amendment.
§ LORD DRUMALBYNI most willingly accept it. I have no pretensions about being able to draft expertly, and I am most grateful for the undertaking the noble Lady has given. I willingly withdraw the Amendment.
§ LORD MITCHISONBefore the Amendment is withdrawn, I think I should point out that at some stage we shall have to consider the effect of the Amendment that was added the other day. When we read the two things together we come to some rather curious results, because according to the Amendment passed the other day the word "false "shall be construed as meaning" false in a material respect "as regards the goods to which it is applied. We now have added the expression 190
'false trade description ' means a trade description which is false in a material respect as regards the goods to which it is applied".That is exactly what was passed the other day, and the only addition to it is the wordsthat is to say, in a respect of such substance that it is capable of inducing a purchase ".I rather thought I heard the noble Lord, Lord Drumalbyn, commenting on an Amendment which was moved by the noble Baroness, Lady Elliot of Harwood, before the adjournment and pointing out, quite rightly, that this kind of consideration introduced subjective conditions which were possibly rather unworkable. I make that comment, not with a view to saying that we will not consider it, but in order to warn the noble Lord that the two things must be considered together and that, so considered, that is the only addition which they make.
§ LORD DRUMALBYNI am not quite certain whether the noble Lord has got the original version of this Amendment, but there is the other side of it which adds the words "likely to be taken as true". I fully take the noble Lord's point and I was aware of this. If I may say so, it was one of the reasons why I moved this Amendment fairly quickly and I got the answer that I expected from the noble Baroness, Lady Phillips.
§ LORD MITCHISONI did not want the noble Lord to be unduly disappointed.
§ Amendment, by leave, withdrawn.
§ Clause 5:
§ Misleading indications treated as false trade descriptions
§ 5.—(1) 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, shall be deemed to be a false trade description.
§ (2) 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 he false, shall be deemed to be a false trade description.
§ (3) A false indication, or anything calculated to be taken as an indication which would be false, 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, notwithstanding that there is no such person or no standard so specified, recognised or implied.
191§ 8.47 p.m.
§
LORD CAWLEY moved, in subsection (1), to leave out all words from "misleading" to "shall". The noble Lord said: I quite understand what subsection (1) is meant to achieve, but it is rather mysterious because it starts with the words "A trade description ". Clause 2 states:
A trade description is an indicationa…of any of the following matters with respect to any goods or parts of goods, that is to say "—
§
and then there is a series of different criteria. That is therefore an indication, but subsection (1) here says:
A trade description "—
§
that is an indication—
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 …"—
§
therefore it is an indication which is calculated to be taken as an indication—
shall be deemed to be a false trade description.
§
My Amendment is to delete all the surplus, as I consider it, in the middle, and to return to the form:
A trade description, which, though not false, is misleading, shall be deemed to be a false trade description.
§
In the 1953 Act the word "misleading" was introduced by saying simply:
after the word ' false' in the 1887 Act shall be added the words ' or misleading '.
§ I think the words in the middle of this subsection simply make matters more complicated. It is rather like the old riddle, "When is a door not a door?" and the answer is "When it is ajar ". I really cannot see the point of these words in the middle. I beg to move.
§
Amendment moved—
Page 3, line 43, leave out from (" misleading ") to (" shall ") in line 45.—(Lord Cawley.)
§ LORD MITCHISONI think that if we leave out the words it is proposed to omit we shall get an entirely different meaning. The words are limiting words, and what is intended is
A trade description which, though not false, is misleading "—then follow the words to be left out—shall be deemed to be a false trade description ".192 It is not intended to say that a trade description which, though not false, is misleading shall be deemed to be a false trade description, because that would mean it might be misleading in any respect and therefore be a false trade description, and it would enlarge very considerably the possibilities of what can be treated as a false trade description, though in fact it is a misleading trade description.The effect of the words which it is proposed to leave out is to limit this, because what they say is that it is to be
calculated to be taken for such an indication of any of the matters specified in section 2 of this Act as would be false ",and that is the whole point of the subsection. Clause 2 of the Bill lists the matters which must be misstated in order to constitute a false trade description, but of course without impinging on any matters of that kind you might have something which though not false was misleading in some other respect, and it would then have to be deemed to be a false trade description. That is enlarging very considerably what it intended by the subsection as regards the misleading false description. It would let in all kinds of things which would not be covered in the case of a simple false trade description but would be admitted by this clause as regards a misleading description and therefore be deemed to be a false trade description. It is really a drafting point.I suggest to the noble Lord that to omit these limiting words opens the door far wider than I fancy he or I would intend, and I hope therefore that the Amendment is not going to be pressed. If I may give an instance, the quality of goods is not included in Clause 2. If this clause were to be amended, a misleading indication of quality would in fact be caught though the false description of quality would not be, and that I think can hardly be anybody's intention. I hope, therefore, that the Amendment will not be pressed. I think it has been put forward under a slight misunderstanding of what we had in mind in the clause.
§ LORD DRUMALBYNI am not quite certain of this. Trade descriptions are carefully and fully defined in Clause 2. So you have to start from the point, as 193 this clause does, that it must be a trade description within the meaning of Clause 2.
§ LORD MITCHISONThat is right.
§ LORD DRUMALBYNSo that limits the grounds very much indeed. First of all, it must be a trade description and therefore we are limited to what are trade descriptions. That is point number one. Then the clause goes on, "though not false, is misleading ". I pointed out in my Second Reading speech that it was quite possible to have a trade description which was perfectly true but nevertheless misleading. I instanced the case of jewels in watches; one can advertise a fifteen-jewel watch to give the impression it is of very much better quality and workmanship than it really is. Some of these jewels—which are very cheap I understand; they are industrially produced—may play no effective part in the movement of the watch at all. It is a true description; the watch has got fifteen jewels; but it is misleading to the extent that it is intended to indicate that the watch is of very much better quality than it really is.
If you keep those words in, I am not certain that that would be covered. It might be said that in relation to performance, or something like that, it would be a false trade description, because it is making out that the performance is better than it really is. I am not sure. That is just an example that comes to mind. If you take out those words, I do not think it makes any difference. But certainly, if you take out the words there is no dubiety about it at all.
I am sure my noble friend does not want to press this Amendment, but one would like to have it thought of a little more. It may well be that the noble Lord is right and that to take out these words would extend the definition much further. I think it would extend it some distance, but it would always be within the compass of a trade description. At any rate, so long as it is within the compass of a trade description I should have thought it would not be objectionable to take out those words. I am sure my noble friend does not want to press this Amendment. I think we might leave it at that, and perhaps the noble Lord will be able to say a little more about it.
§ LORD MITCHISONI do not want to persuade people too often to put down the same Amendment again on Report. I have little doubt in this case. The point is this: that we may have a trade description which refers to, or even may include, one of the items in Clause 2(1). But it may also be misleading in another respect. It will still be a trade description, because it includes something referring to these things. You may have a mixed trade description, if I may put it that way; and if you do not define that a little more accurately, then you may get people "had" for a misleading description when that misleading description does not really refer to one of the Clause 2 matters. Therefore I think it is for the protection of the public to put these words in.
I agree it is arguable that if you take them out it might not make much difference. I think I go as far as that. But, it is advisable not to extend criminal legislation too far; and it is clear to me, at any rate, that in some cases you might be "had" for a misleading description, deemed to be false, when you would not be "had" for a false one. It is a rather fine point, I agree. I do not think there are many things in it. But when you are dealing with this kind of matter—" misleading deemed to be false "—it is better to be on the safe side.
I would recommend your Lordships, with respect, to leave the words in. I hope that the noble Lord who moved the Amendment will feel that he can withdraw it. I can assure him that we shall look through all these debates, irrespective of any particular promise that has been made, to see whether there is, in the course of argument, not necessarily on an Amendment, some point which we ought to have covered. But this has been a difficult Bill to draw. I think it has been remarkably well done. Alterations are sometimes rather difficult. I hope I am not being too discouraging.
§ LORD AIREDALEAll this cross-reference between Clause 5(1) and Clause 2(1) is most confusing. It seems a long time ago now, but I moved an Amendment to take the gist of Clause 5(1) and put it into Clause 1(1), where I still submit it properly belongs. I imagine that, by now, the Government are beginning to regret that they did not accept that Amendment.
§ LORD MITCHISON: I am afraid not.
§ LORD CAWLEYIt is quite obvious that the noble Lord and I construe this subsection differently. Although I shall not press this Amendment, I should like to read to the House the words of Lord Justice Goddard in the case of Statcherv. mence Smith when he said of the 1887 Act:
It is a most difficult Act to construe and has given rise to many appeals. Those who are responsible might well consider whether new legislation should not be introduced to set up the law on this matter in clear language which lay justices and others concerned in its administration could understand.The 1953 Act simply added, after "false", the words "or misleading", and things went along perfectly well. We did not require these extraordinary subsections such as subsections (1) and (2). I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ LORD DRUMALBYNI do not know whether it is necessary to move all the Amendments on this point as they come along. They are all consequential. I beg to move Amendment No. 32A.
§
Amendment moved—
Page 3, line 43, leave out (" calculated ") and insert (" likely ").—(Lord Drumalbyn.)
§ BARONESS PHILLIPSWhat the noble Lord has said is correct. The Government want to have the one word throughout the Bill and, as the noble Lord has said, the Amendment is consequential and can be accepted.
§ LORD DRUMALBYN: I beg to move Amendment 35A.
§
Amendment moved—
Page 4, line 5, leave out (" calculated ") and insert (" likely ").—(Lord Drumalbyn.)
§ On Question, Whether Clause 5, as amended, shall stand part of the Bill?
§ LORD DRUMALBYNAlthough the noble Lord, Lord Airedale, did not move his Amendment to leave out subsection (2), one would like to have a clearer idea as to its real scope. It says:
Anything which, though not a trade description, is likely 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.196 Any of those matters are, I presume, matters set out in Clause 2 of the Bill. As those matters all come within "trade description", I am not clear how it can be not a trade description. I am not clear what the scheme of this is, or what is intended by it. I should be grateful if the noble Lord could give some examples of this. The subsection has not been understood, and it would be an act of kindness if the noble Lord were to make this clear. Certainly the various trades would like to know what it really means.
§ LORD CAWLEYI think I can help the noble Lord. This provision came first in the 1953 Act. The example I have always taken of this is that of a retailer selling knives who puts in his advertisement: "They make good knives in Sheffield—Buy Smith's knives!" "They make good knives in Sheffield" is not a trade description as such. It is obviously meant to indicate to the purchasers that Smith's knives are made in Sheffield, contrary to the fact.
§ LORD MITCHISONThere is really little that I can add. The noble Lord will remember that "those matters" here are not the matters specified in Clause 2 of this Bill, and in that form I think the subsection is tolerably clear. Perhaps, in view of the number of Amendments on the Marshalled List, I had better not say any more, as the more I say, the more questions I may be asked.
§ LORD DRUMALBYNMay I just express my gratitude to my noble friend for making this point? As I said, this is a matter which has given rise to a certain amount of difficulty, and I am grateful to him for his illustration.
§ Clause 5, as amended, agreed to.
§ Clause 6:
§ Offer to supply.
§ 6. A person exposing goods for sale or having goods in his possession for sale shall be deemed to offer them for sale, and similarly with respect to any manner of supplying goods otherwise than by sale.
§ 9.6 p.m.
§ LORD STRABOLGIWith this clause we seem to be venturing on new territory, and it seems to be very widely drawn. The purpose of my Amendment is to make clear that it has application only for the purposes of Clauses 1 to 6 of the Bill. I beg to move.
§
Amendment moved—
Page 4, line 11, at beginning insert (" For the purposes of sections 1 to 6 of this Act "). —(Lord Strabolgi.)
§ LORD DRUMALBYNIt might be convenient if we were to discuss Amendment No. 37 at the same time, which is simply to insert "For the purposes of this Act ". I am not sure whether the Amendment in my name would serve the purpose better than "For the purposes of sections 1 to 6 ". Those clauses create the offences and, after all, there are also the defences and the enforcement to consider. It is for that reason that my Amendment says "For the purposes of this Act ". I think the main point is that nobody wants this clause to alter the general law of contract. I thought that all that was intended was to deal with the situation under this particular Bill.
§ LORD MITCHISONThat is quite right: that is all that it is intended to do. I think the simplest way of dealing with the matter is to look at Clause 38, which is called "Interpretation" and says:
The following provisions shall have effect, in addition to sections 2 to 6 of this Act, with respect to expressions used in this Act.That quite clearly points out that Clauses 2 to 6 are, in fact, interpretation clauses. I agree that that is in a rather broad sense, but that is what they are.Earlier in the discussion I tried to indicate that Clause 1 was intended to cover in the simplest possible terms the offences that would be chargeable under this part of the Bill, and really all that Clauses 2 to 6 do is to interpret that in the broadest sense. That is the effect of Clause 6. Even if Clause 38 were not there, a reasonable interpretation of Clause 6 as it is must mean that it relates to Clauses 1 to 5 and to nothing else. This cannot represent a general amendment about the sale of goods or anything of that sort. This Bill has different objects and, therefore, there must be the limited effect which the noble Lord very rightly mentioned at the end of his speech. I think the intention is clear, and it is absolutely clear when you look at Clause 38.
We should not want to put in "For the purposes of this Act "or" For the purposes of sections 1 to 6 of this Act", not because it is not perfectly true, but because it would have to be inserted in 198 a number of other places, too, and there might be some very nice points as to where it should be inserted. I think it is better to take the five clauses (that is to say, Clauses 2 to 6) together, as they are, as interpretative clauses.
Clause 1 of course, is even clearer, because subsection (2) says:
In this Act expressions used in this section shall be construed in accordance with sections 2 to 6 of this Act ".It would be extraordinary if Clause 6 were dealing with something quite different and those words were inserted. I would suggest that in fact there is no doubt about it: these are interpretative sections, and this is one of them. It cannot be making an amendment of the general law; it is in truth "for the purposes of this Act," but it is inadvisable to insert the words in that form because you would have to spatter "Clauses 2 to 6" up and down the rest. I hope, therefore, that your Lordships will feel that that explanation meets the point that is raised, not only by these two Amendments but by Amendment No. 39 also which, although we have not come to it, is really the same point.
§ LORD STRABOLGII thank my noble friend for his explanation, and beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ LORD DRUMALBYN moved to leave out "or having goods in his possession for sale." The noble Lord said: I bee to move this Amendment. I am not certain that these words are applicable in all cases, and I think that to deem that they should be applicable in all cases may raise acute difficulties. It is perfectly clear that a person exposing goods for sale for the purposes of Clauses 1 to 5 should be deemed to be offering them for sale, but I can conceive of circumstances where merely having goods in one's possession would not be tantamount to offering them for sale, and I do not see why such a person should be deemed to be offering them for sale. For example, a man may have goods in his factory, having withdrawn them for the purpose of altering some false description, or something of that kind. So I am not sure that this wording would be appropriate in all cases. If the noble Lord can advise me on this, I shall be grateful. I beg to move.
199
§
Amendment moved—
Page 4, line 11, leave out from (" sale ") to (" shall ") in line 12.—(Lord Drumalbyn.)
§ BARONESS BURTON OF COVENTRYI should be grateful if my noble friend could explain this a little further, because representations have been made to me as to the possibility of these words rendering a person liable to be penalised when it was not right that he should be. I noted that on Second Reading Lord Drumalbyn said that he felt that Clause 6 went too far—and he has said it again to-night. I agree with him. Obviously, a person offering goods for sale should be penalised if he has offended against this point; but it was put to me that a person might have goods in his possession for sale or in stock without actually exposing them to sale, and I wanted to ask my noble friend whether this is so.
The person who discussed this with me —because I myself have no particular knowledge of this point—said that he felt someone might have goods in stock when they had just arrived and before he had had any opportunity to inspect them in order to see that any trade description they might have was accurate. That was the first point. The second point raised with me was the point which the noble Lord, Lord Drumalbyn, mentioned: the position where a person had noticed that the trade description was false and had withdrawn the goods from the shop. The third point put to me was that when a shopkeeper was perhaps holding them for export in circumstances in which, once he had received a specific order for them, a Board of Trade order under Clause 32 would apply. I had not the knowledge to give an answer to these questions, but I should be grateful if my noble friend could do so.
§ LORD MITCHISONI will do the best I can to help. I must confess that I asked a number of questions myself about this phrase. The phrase is:
a person exposing goods for sale or having goods in his possession for saleThat is what we have to consider. There are obvious cases to which, I am sure, we would all agree readily. A man in a small shop may get a case full of, say, gloves or cigarettes and there is a mis-description on them. He may have a quarter of the case in the shop window and the other three-quarters in a box at the back of the shop. One can draw no 200 distinction between the two; we could all agree about that. Then there is this kind of case where a man has noticed that the first half-dozen, say, contain a mis-description on them, and he says to himself, "Well, there are a lot more of these behind. I had better be careful about this." He might say, "I will go and see if they have the same description on them as have the lot I have got out." Or he might say, "I had better withdraw the lot and put them in the back of the shop." He might be intending to sell them if he came to the conclusion that it was all right; but not otherwise. I should have thought, and I am so advised, that in that case he would not be having those goods for sale. The most that could be said of him was that he had them for what I might call a contingency sale; that is, if it proved to be all right. That, I think, is the key to the clause. They must be in his possession for sale—and they must be for sale without his looking at them again or putting conditions on them. They must be in the same sort of position, otherwise than geographically, as the goods in the window, if I may put it that way. I hope I have answered what my noble friend asked me.I did not catch the point about Clause 32; but it looks to me to be a rather difficult one and I should like to look at it before I commit myself about it one way or another. I think that is the best one can do. If you start trying to give a definition you really make things worse rather than better. This is criminal legislation which one wants to be as clear as may be; but it remains the case that the prosecutor would have to show that the goods were in the accused's possession for sale. I think he would fail in the case the noble Lord, Lord Drumalbyn, stated and I think he would fail, too, in the case my noble friend stated. I must repeat that we can only say what we are advised and what we intend. We cannot vouch for what the courts may do. This is the right interpretation so far as I can see. I hope that will satisfy the noble Lord.
§ LORD AIREDALEWith great respect, that explanation really will not do at all. Take the most honest shopkeeper in England and presume that he gets a stock of corkscrews, each of them in a packet saying, "Made in Hong Kong ". That is wrong. The shopkeeper 201 finds out that it is wrong. He keeps the corkscrews in his warehouse at the back, and says to himself that he is going to sell them when he has had time to sort them out and throw all the boxes away. Then he puts the corkscrews in the window and sells them. But there will not be any trade description on them. To say that those corkscrews in that warehouse are not in the possession of the shopkeeper for sale really is mincing matters in the most extraordinary degree. Of course, he has the corkscrews for sale and that is what he always intended to do. The only question is about his throwing away the false description. I really think that we must divide on this.
§ BARONESS ELLIOT OF HARWOODI take a different point of view from my noble friend Lord Cawley. If we left out the words, "having goods in his possession for sale," it would mean that it would not be an offence to have falsely labelled goods in stock until the moment of exposing them for sale. This would hamper the weights and measures authorities, because, taking the case of one-day carpet sales (about which, your Lordships will remember, the Molony Report had a whole section) the huckster keeps most of the carpets he is selling in the back regions. When confronted by an inspector, he will say that they are not exposed for sale, although they may have been fraudulently advertised in the local paper the day before. The inspector is put to the very difficult task of witnessing an actual sale and trying to prove that the article relates to the false advertisement. This was one of the problems which the Molony Report mentioned as having been raised by many people. I think that it would be a mistake to take out these words, and in spite of what my noble friends Lord Cawley and Lord Drumalbyn have said, I hope that the Minister will not abandon this phrase.
§ LORD CAWLEYWith the greatest respect to the noble Lady, I have not said anything on this Amendment.
§ 9.23 p.m.
§ LORD DRUMALBYNI concede that there is a slight difference in interpretation between my noble friend and the noble Lord, Lord Mitchison. As I understand my noble friend, she assumes, as does the noble Lord, Lord Airedale 202 —and she may be right—that if a shopkeeper has goods on the premises the presumption is that he has them for sale. Certainly a retailer normally does not have goods there unless he has them for sale. But what we are getting at is where the onus of proof lies.
The noble Lord, Lord Mitchison, felt, no doubt correctly, that it would be for the prosecution to show that the retailer had the goods in his possession for sale. I wonder if the noble Lord would confirm that. It seems to me that the presumption would be that the shopkeeper had the goods for sale, and that, as the clause is drafted, it would be for him to prove that he had not got them for sale. This might be very difficult in many circumstances. I see my noble friend's point, but what I am anxious to do is to make certain that the man who had goods, not for sale but for some other purpose, was covered. He might have them but might not want to sell them at that time—perhaps because he wanted to sell off damaged goods before he sold the main consignment, or for some such reason. I am worried about this clause because there are no necessary limitations placed on it. I may be wrong, but it seems to me that in the ordinary way the onus of proof that the goods in a retail shop are not there for sale is very heavy. It was in order to alleviate this in appropriate cases that I put the Amendment down.
§ LORD MITCHISONThere is, of course, no doubt that the prosecution would have to prove that, if he had goods in his possession, he had them for sale. There is nothing in the Bill or in what I said about a shopkeeper with goods in the shop, or anything of that sort, or about the presumptions which might arise if he had them in the shop. The fact remains that in this, as in any other criminal procedure, the prosecution have to prove their case. Therefore it is the case—and there are many other instances of it—with regard to goods in the back of the shop, that if you want to prosecute by virtue of this clause you must show that the goods were in the shopkeeper's possession for the purpose of sale.
I am not sure that I agree with the noble Lord about the heaviness of the presumption. It must depend on the circumstances, and it is hard to generalise about it. But may I say this, in the 203 hope of appeasing the noble Lord, Lord Airedale, and other noble Lords who are uneasy about the matter? The Act of 1887 has these words:
or has in his possession for sale or any purpose of trade or manufacture …Those words have never caused any trouble.
§ LORD AIREDALEBut are there the following words, "shall be deemed to offer them for sale "?—because that is the trouble here. If the Government want to make it an offence for somebody to have in his possession for sale goods bearing a false trade description, then they should say so in Clause 1 of the Bill. But here we have the mischief of deeming something to be something else. This clause says that if he has the goods in his possession for sale he shall be deemed to offer them for sale. What is the honest shopkeeper to do when he discovers the false description on the packet? He says: "I must not offer these goods for sale, because I shall be committing an offence. I must keep them at the back of the warehouse where nobody will see them, othewise I shall be committing the offence of offering them for sale." This clause says that if he has them in his possession for sale he is deemed to offer them for sale. How is he to escape?
§ LORD MITCHISONThe answer is by not selling them. And it is the commonsense answer, too. As soon as he discovers that these goods contain a false trade description, and he hangs on to them, the shopkeeper is not necessarily committing an offence. He may have decided that he is not going to sell them until the description is taken off, and he may take it off in due course. This is really—I would not say the letter of the law—but it is pushing the language of the Statute much too far. It really is not sense. No court is going to accept that kind of case.
I assure the noble Lord, Lord Airedale, that we certainly intend that people who have goods in their possession for sale, if those goods have a false trade description, shall be liable; and the kind of case we intend to cover, and the obvious and common case, is the opened receptacle of some sort, half the contents of which is on the counter and the other half is in the back. Nobody would want us not to try to 204 cover the part for which there was not room on the counter. We are not penalising anyone here for having too small or too large counters. What we are dealing with is the question of selling goods.
I see Lord Airedale's point; but it is a strictly verbal one. If he chooses to divide the Committee on it, I cannot prevent him; but he will be dividing it on the finest piece of hair-splitting that I have met for a long time. I hope the noble Lord will not think that I am being rude —I do not intend to be—but I would say this to him. We had an original clause, Clause 1, that defined the offence, and now we are on the interpretative sections of the Bill. The noble Lord dislikes the word "deemed". I rather dislike it, too, but I think it is the best and most convenient way of doing what we are trying to do here.
I have thought about it and one can have differences of opinion. At the end of the day, I look at this passage in the Bill and I say, "This is reasonably clear ".On the point we are on now, I think the difficulty is that you must catch the man who has a lot of stuff at the back of the shop and is going to sell it in a short time without any reservation, just as much as the man who has it on the counter to sell it. This is not a distinction to found a difference of guilt or innocence on between two cases. If you wish to do that, I do not see how you can do it, except by this sort of language.
Of course, it is easy to think of hard cases, and cases which are rather doubtful. It is very much the case with a lot of criminal legislation. I think I am entitled to look back at the language of the Act of 1887, and say that nobody has ever got into trouble about the penalties that are covered by that sort of case. I repeat the language again:
Or has in his possession for sale or any purpose or trade or manufacture.That is a far more difficult thing to apply than what is in this Bill, and it has not caused any trouble. I think one must occasionally be guided by what has happened in the past, and one must not omit cases which clearly ought to be covered simply because one finds it a little difficult to go into sufficient detail in the wording of the clause, provided that the meaning is clear to a court—and I believe this meaning would be clear. 205 I cannot say any more than that, and if the noble Lord, Lord Airedale, or anybody else wants to divide the House, divide it they must.
§ LORD AIREDALEI was not referring to the case where a shopkeeper has half the goods on the counter, and half in the warehouse at the back. I am referring to the case where he has the whole lot in the warehouse at the back, and is desperately anxious not to sell any of them while they bear this false trade description. The Minister's reply to that—and he has just made it again—is that his answer is not to sell the goods. That is not the answer, because he still commits the offence under paragraph (b) which not only says:
Supplies goods bearing a false trade description ",but alsooffers to supply goods bearing a false trade description ".Clause 6 says that if he has goods in his warehouse at the back, though none in the shop, bearing a false trade description, he is deemed to offer them for sale.
§ LORD MITCHISONNo.
§ LORD AIREDALEHe is deemed to offer them for sale. That is an offence under paragraph (b). Whether we can get this right this evening, or at the next stage of the Bill, I do not mind, but we shall have to get it right.
§ LORD MITCHISONIf I may say so, I have so much respect for the noble Lord, Lord Airedale—I do not know whether it is permissible to add a bit of liking, too—that I should hope to try to make myself a little clearer. The operative words here are, "in his possession for sale ". That is the point. I quite agree that this involves drawing a line, and that it is therefore occasionally rather difficult to see what is on one side of it and what is on the other. But I think it is the right line to draw, and this is as near as you can get. It is not a question of where he has them, provided they are in his possession. It is a question of whether he has them for sale or not. That is the real test.
§ LORD DRUMALBYNI think this Amendment has been given a full hearing, and we are grateful to the noble Lord, Lord Airedale, for having ex- 206 plained it so much more fully. We are grateful to the noble Lord, Lord Mitchison, for having given the answers, and I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 9.35 p.m.
§
LORD STRABOLGI moved, to add to the clause:
Provided that the fact that any offer is deemed to have been made for the purpose of this section shall not of itself render such an offer capable of being accepted to form a contract
§
The noble Lord said: In my view this Amendment is necessary, since the clause as at present drafted would change the accepted principles of the law of contract that shop displays are not offers capable of being accepted to form a contract. Perhaps I might read a short passage from Modern Advertising Law, which puts the matter very simply:
From the legal point of view an advertisement is regarded, at any rate in the majority of cases, not as being a firm offer but simply as a statement of the terms on which the advertiser is prepared to do business, called technically a notice to treat. If goods are advertised for sale at a certain price, this does not mean that any person who informs the advertiser that he is willing to buy some of the goods at that price thereby acquires a contractual right to buy them. The advertisement is a mere announcement. It is the would-be purchaser who makes the offer which the advertiser may accept or reject as he wishes. This is so whether the advertisement is in a newspaper or a catalogue or attached to the goods in the window of a shop.
§ So I would submit that it does not really matter whether a shopkeeper has the goods in his possession for sale; under this clause as at present worded, he is deemed to offer them for sale, unless we add this Amendment to give him some protection, so that the mere fact of exposing goods for sale does not mean that he has got to sell them. They merely represent an offer to treat, and it has to be a two-way business between him and his purchaser. I beg to move.
§
Amendment moved—
Page 4, line 14 at end insert the said proviso —(Lord Strabolgi.)
§ LORD MITCHISONThis is the point with which we were dealing a few minutes ago. This is not a statement of the law about the sale of goods and, if I may respectfully say so, I agree entirely with what my noble friend read out on that subject. We are dealing here with 207 an interpretative clause: it is interpreting the offence in Clause 1 of the Bill, and it is not doing anything else. It has nothing to do with contracts, and although I would quite agree that if the only thing in the Bill were this clause one would require some proviso of this sort, in the context here that is shown by Clause 2 and by the passage, to which I referred previously in Clause 38. I must say to my noble friend that when I looked at this I thought to myself, "What are we in for here?" Then I began to look a little further, and I came to the conclusion that the judge who had listened to, and agreed with, the argument we have just heard would then say, "But where do we find this clause?" And we should reply, "That is there for another purpose, and in another context, and in another Act ". I hope that my noble friend will accept that explanation.
§ LORD DRUMALBYNI am sure the noble Lord was right to raise this point again, because it is one of extraordinary importance and one that has been widely misunderstood. I am personally quite prepared to rest on the interpretation given by the noble Lord, Lord Mitchison, which I am sure is that which is intended, and, speaking for myself, I would say that this is now quite satisfactory.
§ LORD STRABOLGII thank my noble friend for his explanation. Before withdrawing this Amendment, which of course I shall do, I should like to point out, with respect to the noble Lord, that while he has described many cases where the court would be on the side of the accused, because of the loopholes in the Bill, what we are trying to do with these Amendments is to ensure that prosecutions will be minimised, so that people do not even have to be taken to court; and that, even when they have got to court, they may be acquitted.
§ I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 6 agreed to.
§ Clause 7:
§ Definition orders
§ 7.—(1) Where it appears to the Board of Trade—
§ (a) that it would be in the interest of persons to whom any goods are supplied; or 208 that any expressions used in relation to the goods should be understood as having definite meanings, the Board may by order assign such meanings either—
§ 9.40 p.m.
§ LORD DRUMALBYN moved, in subsection (1)(a), to leave out "supplied" and insert "offered". The noble Lord said: Looking at this Bill, I take it that the phrase here used is, so to speak, longhand for "consumer", because no one can define "consumer"—" persons to whom any goods are supplied ". In the context of this clause it seems rather inapposite, because we are not concerned with the point at which the goods are supplied to people; we are concerned with the point at which they are offered. The whole purpose of a definition is to deal with the offering of goods so that people may know at the time they are offered that they are getting what they expect to get in accordance with the normal definitions. It seems to me that the word here, "supplied", is wrong. I see that this may be said to be a phrase to cover consumers or customers. I should have doubted in this context, or in the next clause, or the next, whether the phrase "persons to whom any goods are supplied" means very much. I suppose it just means customers. Why not just say "customers"? I beg to move.
§
Amendment moved—
Page 4. line 19, leave out (" supplied ") and insert (" offered ").—(Lord Drumulbyn.)
§ LORD MITCHISONIt is a choice between two words and I am not sure there is very much principle involved, but such as there is comes from the Short Title of the Bill, which is called The Protection of Consumers Bill. That is good electioneering advertisement, if I may say so. But when one comes to look at the Long Title, one finds it is rather wider. It is
… by fresh provisions prohibiting mis-descriptions of goods, services, accommodation and facilities provided in the course of trade ".There is no mention of consumers in the Long Title, and if one looks at the language of the Bill it could equally cover the case of a wholesaler supplying goods to a retailer, or some industrial user who perhaps ordered three tons of something or other every month for six months. The effective thing is really the supplying.209 I agree it also included offers to supply, but I think of the two words "supplying" really provides the meaning of the intention of the Bill rather better; and if one pushes it a little further one finds that we really want to protect the people to whom goods are supplied rather than people to whom they are offered and who then reject them. This is a clause giving the Board of Trade power in certain circumstances to issue a definition order. I think, therefore, it is appropriate in cases of actual supply rather than cases of offer.
One sees that in the industrial user instance, and one can think of a great many others where there would be supply without the kind of offer at which this Amendment is aimed. There might be something supplied, three tons of so-and-so, and nothing so far that would involve a trade description, and then the goods might arrive with a trade description on them which might be false. That would be where the act would relate to supplying, rather than offering. I quite agree that there will be cases where it would relate to offering. But I think that when the Board of Trade have got to act—and that is the point here; this is not a criminal clause or anything of that sort, but simply a consideration that the Board of Trade have to bear in mind—it is phrased
in the interests of persons to whom any goods are supplied.So I hope that the noble Lord, on what is perhaps rather a narrow point— 210 I quite see it—will feel that the language in the Bill is sufficient for the purpose.
§ LORD DRUMALBYNI do not want to press this matter. It seemed to me, and still seems to me, that the word "offered" would be more appropriate. But, as the noble Lord said, this is a matter for the Board of Trade to act on, and the only point on which I rather disagree with the noble Lord is that he was arguing as if the words were "any persons to whom any goods are supplied ". That is not what it says: it says "persons to whom ", and it is really a whole class. It means everybodyquacustomer; because goods are supplied to everybody. However, the Board of Trade is to look at this matter, as I understand it, in the interests of customers. It is not necessarily consumers in the ordinary sense, who might be manufacturers. It is in the interest of customers, and really at the point where the goods are being offered to them. However, I will not press this Amendment. I beg leave to withdraw it.
§ Amendment, by leave, withdrawn.
§ THE MINISTER WITHOUT PORTFOLIO (LORD CHAMPION)My Lords, I think that this would be a convenient moment to move that the House be resumed. I beg to move.
§ House resumed.
§ House adjourned at twelve minutes before ten o'clock.