PROTECTION OF CONSUMERS (TRADE DESCRIPTIONS) BILL [H.L.]

HL Deb 24 February 1966 vol 273 cc414-52

8.30 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 Rhodes.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD GRENFELL in the Chair.]

Clause 7 [Definition orders]:

LORD CAWLEY

I have been asked by my noble friend the Duke of Atholl to apologise for his inability to be present here to-night. I am therefore moving on his behalf the first Amendment on the Paper. I beg to move.

Amendment moved— Page 4, line 24, leave out (" the ") and insert (" those particulars ")—(Lord Cawley.)

THE JOINT PARLIAMENTARY SECRETARY, MINISTRY OF LAND AND NATURAL RESOURCES (LORD MITCHISON)

I find some difficulty in seeing what addition this Amendment makes to the sense of the clause. Clause 4 says: The following provisions of this section shall have effect with respect to a trade description used in an advertisement in relation to any particular class of goods. The trade description shall be taken as referring to all goods of the class … I should welcome any explanation, but it seems to me that the addition of these words does not really add to the Bill in any way.

LORD CAWLEY

I am grateful to the noble Lord for his explanation, and beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD DRUMALBYN moved, after subsection (1), to insert: ( ) Without prejudice to Section 5 of this Act, any expression which so closely resembles an expression in relation to which the Board has by order assigned a definite meaning in accordance with the foregoing subsection as to be likely to mislead shall be deemed to be a false trade description; provided that this subsection shall not affect any expression commonly applied to any goods before the making of such an order.

The noble Lord said: We are here dealing with definition orders, and the purpose of this Amendment is to make certain that if a description or a name is so close to a name which is defined as to be capable of deceiving, then it should be an offence, and should be deemed to be a false description. I have here a list of previous examples, and it is remarkable how frequently they have occurred in the past, to the point where one would almost think that if one item has a name very similar to the name of another item that is the surest way of distinguishing it. You can take satin and sateen; suede and suedex; peccary, peccarie and peccarette; [...]lannel and flannelette; velvet and velveteen; plush and plushette, and the rest. This in the past has been the practice.

I do not know what view the Government take of this practice for the future, but I should have thought that if you are going to define in cases like this, it is as well to ensure for the future that this should not be done. It was obviously impracticable to make a rule of this kind that would cover words which were defined, and to say that any similar words should not be permitted if they were already in common usage. Although I do not pretend that the Amendment is properly drafted, my purpose is to enable words like "flannelette", "suedex" and the rest, that already exist, to be exempted from the main purpose of this Amendment, which is to prevent future descriptions where a definition order is introduced. I beg to move.

Amendment moved— Page 4. line 35 at end insert the said subsection.—(Lord Drumalbyn.)

LORD CAWLEY

I must support this Amendment. It follows similar lines to the provisions in the Trade Marks Act, whereby you can infringe a trade mark by taking the exact trade mark, or one so nearly resembling it as to be likely to cause confusion. If such provisions are not already contained in this Bill, they should certainly be put in.

BARONESS ELLIOT OF HARWOOD

I, too, should like to support this Amendment for the same reasons. If a mark closely resembles a mark publicised even by the Board of Trade, it should be an offence if it is likely to mislead. I think this would be a useful addition to the Bill and a protection to many people.

THE PARLIAMENTARY SECRE-TARY, BOARD OF TRADE (LORD RHODES)

If I have correctly interpreted the intention underlying this Amendment, I do not think that it is necessary. The only thing it appears to add to the Bill as drafted is to put an outright ban on terms closely resembling a defined term, if they are introduced into common use after the definition order has been made. Might I ask the noble Lord whether that is what he is seeking?

LORD DRUMALBYN

Yes.

LORD RHODES

If that is the case, I understand that it is well looked after. The ban would apply even if the goods conformed to the defined term. The Molony Committee considered this suggestion, and rejected it in their paragraph headed, "Express ban unnecessary". That is paragraph 650 of the Report. It is unnecessary, because if the new term is likely to be mistaken for the defined term, it would be penalized, I understand, under Clause 5. If it is not likely to be mistaken for a defined term, the question is: why penalise it? I must therefore ask your Lordships not to press the Amendment. If, however, I have mistaken the noble Lord's intention in any way, I am quite ready to consider the point again at the next stage.

LORD DRUMALBYN

I am much obliged to the noble Lord. He has quite correctly interpreted my intention, and as he will see from the drafting of this Amendment I was not sure that Clause 5 covered the matter. That is why I put the Amendment down in this form. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

8.38 p.m.

BARONESS BURTON OF COVENTRY moved to add to the clause: ( ) The proposal to make an order under this section shall be published in the Board of Trade journal and anyone aggrieved by it shall be entitled to request within a period of one month from the said publication reconsideration of the proposal and to state a case to and be heard by a judicial officer appointed by the Board of Trade and when making the order the Board of Trade shall take account of the conclusions arrived at by such officer.

The noble Baroness said: As the Committee know, Clause 7 follows paragraphs 641 and 651 of the Molony Report. It empowers the Board of Trade, after consultation with interests affected, to issue definitions of expressions used in relation to the goods in trade or business. As we realise, once an expression has been so defined, it will be taken for the purposes of the Act to have the meaning so given to it. I feel that this clause and the power given to it should be useful, not only to trade and industry but to consumers as well. But it seemed to me that we should all wish that definitions of expressions used are sensible ones, and my own feeling is that it is undesirable that the final decision should be left to an official of the Board of Trade. I thought that possibly the Board would welcome the help of an independent person. I should furthermore like to submit to the Committee the point that there should be provision for an appeal by anyone aggrieved, and that is the purpose of this Amendment. I may say that, as the Committee will realise, if this Amendment were accepted it would mean that any such appeal on this point would be on the same lines as the case of an appeal against a decision of the Registrar of Trade Marks. I beg to move.

Amendment moved— Page 4, line 39, at end insert the said subsection.—(Baroness Burton of Coventry.)

LORD DRUMALBYN

I am in sympathy with the purpose of the noble Lady's Amendment. I am not altogether certain that the judicial officer is necessary, but I am very much in support of the idea of publication in the Board of Trade Journal of the proposal to make such an order. If the Board of Trade would prefer that a judicial officer should examine this, rather than do it them- selves I should be quite happy, but otherwise I should be prepared to trust the Board of Trade.

BARONESS PHILLIPS

We are in sympathy with my noble friend in her intention, but the Government feel that under subsection (2) of the clause, which I know she has studied very carefully, the Board of Trade have a positive duty to consult all organisations which appear to them to be representative of interests substantially affected by the order; and this is to be interpreted as consulting manufacturers and distributive bodies concerned with the goods, as well as consumer bodies. Unless such consultations had been carried out, a valid order could not be made. We feel that this meets the point, and to have a judicial officer to advise the Board as to whether or not an order should be made, and if so what the definition should be, is unnecessary. It is felt that this is a matter on which the Board are themselves well able to weigh up all the arguments. I hope the noble Lady will accept that the subsection in fact makes provision for all interests to be consulted.

BARONESS BURTON OF COVENTRY

I am sorry, but I do not, because I was not saying anything about all the interests being consulted. My Amendment dealt with the suggestion that there should be a judicial officer appointed by the Board of Trade. With respect to my noble friend, with whom I should like to agree, that has nothing to do with consulting all interests. Obviously I do not want to divide the Committee, but I am wondering whether, in view of what the noble Lord, Lord Drumalbyn said, we could strike a bargain. It is rather late in the night and perhaps the Front Bench might be a little more helpful. If it was thought that publication in the Board of Trade Journalmight be acceptable, though my noble friend could not give an answer on that to-night, would it be possible to consider it at the next stage?

BARONESS PHILLIPS

In the circumstances I can give the undertaking that the Government will consider that.

BARONESS BURTON OF COVENTRY

May I say what a welcome addition the noble Lady is to the Front Bench. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 7 shall stand part of the Bill?

LORD DRUMALBYN

I should like to raise a point here. In subsection (1) there is a reference to any expressions used in relation to the goods which is a good deal wider than trade descriptions, and then under subparagraph (ii) we have these words: to those expressions when so used in such circumstances as may be specified in the order … I think it is reasonable to ask the Government what they intend here, for these words go a good deal wider than the question of trade descriptions. I should expect that they would be able to give an example or two to cover this.

LORD MITCHISON

I am told that I have to answer this. Looking at it, I confess somewhat off the cuff, I see that the Board may assign such meanings either to those expressions when used in the course of a trade or business as a trade description or to those expressions when so used in such circumstances as may be specified in the order. I agree that that is an extension and I agree it leaves fairly wide ground open to the Board of Trade. On the other hand, I should have thought in dealing with these definition orders that it was reasonable to have a fairly wide ground and therefore one needed some extension of this kind. It is quite obvious that if it had to be so applied the Board would have to be careful what they specified in the order, but I think that in this sort of case one has to leave it to the enforcing authority to exercise common sense in the interests of the consumer. No one is going to be oppressed by a provision of this sort.

LORD DRUMALBYN

I thank the noble Lord for his explanation. Of course there are many expressions used in relation to goods, especially those of which you do not approve. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 8:

Power to define terms and to require display, etc. of information

Marking orders.

8.—

(3) An order under this section may make different provision for different circumstances and may, in the case of goods supplied in circumstances where the information or instruction required by the order would not be conveyed until after delivery, require the whole or part thereof to be also displayed near the goods.

LORD AIREDALE

This subsection at the end of line 17 uses the expression "until after delivery". It does not say specifically delivery of what, and you have to search back in the subsection to find what it is the delivery refers to. The first thing you come across is in line 16, "information or instruction". You could have delivery of information; it might be that. But that does not appear to be what is meant; and if you go back further to line 15 you come to the word "goods", so perhaps it is delivery of the goods. I think that is what is meant. I think it is slightly ambiguous and no harm would be done by inserting the words "of the goods" after "delivery" so as to make it abundantly clear. I beg to move.

Amendment moved— Page 5, line 18, after (" delivery ") insert (" of the goods ").—(Lord Airedale.)

LORD MITCHISON

Speaking for myself, I cannot see that it can refer to anything but delivery of the goods. Delivery of information or instruction in this context would surely be very curious— where the information or instruction …would not be conveyed until after delivery of the information or instruction. I think that makes rather an unreality of the clause. Looking at it, I should simply have thought that delivery must refer to the goods and could not conceivably refer to anything else. And if you dotted your "i's" and crossed your "t's" to the extent suggested by the Amendment, you would make people wonder why on earth you did it. I regard the Amendment as quite unnecessary and likely to lead to a certain confusion if one tried to ascertain why it had been put in.

LORD AIREDALE

I am much obliged, and I will not take much longer with this Amendment. But I think that you can have delivery of information. You could have the imparting of information before delivery. The noble Baroness, Lady Burton of Coventry, just now referred to the Board of Trade Journal. Information could be published in the Board of Trade Journal and that same information delivered by Board of Trade memorandum to persons on their mailing list. So you could have them made aware before delivery of the memorandum, or not before the delivery of the memorandum. Speaking for myself, I think that an ambiguity still exists and that no harm could possibly be done by saying "delivery of the goods", if delivery of the goods is what you mean. However, I do not think it is worth pursuing the matter any further if the Government wish it that way, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

8.52 p.m.

On Question, Whether Clause 8 shall stand part of the Bill?

LORD DRUMALBYN

May I again ask the Government about their intentions in regard to this clause? We know from the activities of the Consumer Council and of the noble Baroness, Lady Burton of Coventry, of quite a number of things that can be done under this clause. I would ask whether the Minister who is going to reply can tell us of any goods in regard to which they have it in mind to make marking orders. For instance, I know that there is a good deal of pressure for marking orders in regard to boots and shoes. I wonder whether they have that in mind. Then, of course, there is the whole "Teltag" range—whether this is to be done on the voluntary basis, or whether it is proposed to do it under this clause if and when this Bill becomes law.

On the other hand, there are certain possibilities of overlap here; and, as the noble Lord will know, the food industry is anxious for an assurance that this will not apply to labelling and packaging of food where provisions already exist under the Food and Drugs Act. I wonder whether the noble Lord can deal with those two points: what the Board of Trade have under contemplation to make marking orders about, on the one hand; and for an assurance that there will not be duplication, and that in particular this will not apply to the labelling and packaging of goods on the other hand?

LORD RHODES

I am afraid I cannot give the noble Lord any definite examples in this context. We have to keep an open mind on this and on the exercise of the powers. I could give instances out of my own experience, but they might lead me into trouble. I should like to say, on the question of overlapping, that I think there will be no difficulty there. It can be taken under one or the other. I hope that what I have said will satisfy the noble Lord.

LORD DRUMALBYN

I am hound to say that I am not entirely satisfied with that, because, in my experience, if a power is taken it is taken with examples in mind of things going wrong—the kind of thing that the Board of Trade intends to deal with. I was hoping that the noble Lord would be able to give examples of what the Board of Trade had in mind to justify the introduction of this clause. Personally, based on my experience—and I am sure the noble Baroness, the Chairman of the Consumer Council, would also say this, based on her experience—I feel that if they are not able to get results by voluntary methods. it might be necessary to have a marking order. I should be inclined to support the clause, but at the same time it is always right, when powers are sought, to ask what the powers are aimed at. I am disappointed that the noble Lord has not at this stage been able to give us a little more explanation. I do not know whether, on second thoughts, he is able to say a little more about it.

LORD RHODES

Very little. I do not want to tie the hands of the Board of Trade, or to let people he led into thinking, if I gave examples involving particular goods, that certain goods were likely to be involved. We certainly hope that much will be clone on a voluntary basis. We do not want to make any more orders than is absolutely necessary. I think that most will be done on a voluntary basis, but if it is necessary at some time to bring orders in, we shall.

LORD LUKE

May we have a little more information in regard to the second question which my noble friend raised: that is to say, the question of overlapping in relation to the enabling order? There would appear to be a little uncertainty on this point.

LORD RHODES

I think the noble Lord is quite right; there will be overlapping; but I do not think it needs to be serious. There will be close contact between the Departments concerned.

Clause 8 agreed to.

Clause 9 [Information, etc. to be given in advertisements]:

LORD STRABOLGI moved in subsection (1), after the first "goods" to insert: of a class which. if unaccompanied by information or instruction, might prove dangerous".

The noble Lord said: As your Lordships are aware, this clause refers to the compulsory inclusion of information in advertisements. I agree that according to Clause 10(2) the Board of Trade will consult with trade interests, but I would submit that these are very sweeping powers and show an intended intrusion into a field where Governments have, I think wisely, not attempted to venture before. Hitherto the authorities have been content to leave this matter to the British Code of Advertising Practice, which is administered by a three-tier structure consisting of the Advertising Standards Authority, under the distinguished chairmanship of the noble Lord, Lord Drumalbyn, the Code of Advertising Practice Committee, and the Advertisement Investigation Department of the Advertising Association and, in the case of television, of the I.T.A. It seems to be a rather dangerous curtailment of creative freedom.

Further, it has also great practical difficulties. According to Clause 9(2) an order under this section may specify the form and manner in which any such information, instruction or indication is to be included in advertisements of any description and may make different provision for different circumstances.

In other words, the regulations would have to deal with the question of the relative prominence of the required information in relation to the layout and also to other copy in the advertisements. This question was considered and rejected by the Molony Committee. The Molony Report, in paragraph 758, includes this statement which I should like to read to the Committee: We have made proposals elsewhere designed to ensure that certain goods are sold with helpful labelling, but it would be patently impossible to attach a corresponding obligation to advertisements bearing in mind that they range in form from the fleeting television commercial to the more permanent, but highly condensed, newspaper `small ad '.

That was the view of the Molony Committee and, if I may say so with respect, when the Bill deviates from Molony the clause usually receives a great many Amendments.

In my view, this clause should be restricted to goods which, if unaccompanied by certain information, might prove dangerous. An example which I have in mind is polythene bags which, as your Lordships know, can be used for packing clothes. But they are extremely dangerous if they get into the hands of a small child who puts one over his head, and they can cause suffocation and death. There is also, of course, the question of inflammable nightdresses over which my noble friend Lord Auckland has fought so long and so nobly. I therefore hope that Her Majesty's Government will be able to accept this Amendment. I am somewhat encouraged in this hope, by the speech which my noble friend Lady Phillips made on the Second Reading on February 8. In fairness to the noble Lady, I am going to read the whole passage: As a corollary to the marking and definition powers, we are proposing a power to require advertisements for goods to carry specified information, whether or not there is a marking order in force in relation to the goods advertised. This could serve, for instance, to give the public information or warnings where it was impracticable to do this on the goods themselves."—[OFFICIAL RE-PORT, Vol. 272 (No. 32) col. 647; 8/2/66.]

I hope that Her Majesty's Government will be able to accept this Amendment. If not, I submit that they owe it to the Committee to say what classes of goods are to be made subject to this provision. I beg to move.

Amendment moved— Page 5, line 21, after (" goods") insert the said words.—(Lord Strabolgi.)

9.3 p.m.

BARONESS ELLIOT OF HARWOOD

I rise only to add a very few words. My Council would not be in favour of the Amendment, because it seems to us that it would limit the effect of the Board of Trade and their compulsory labelling and marking powers solely to those goods which were dangerous. Those goods which are clearly dangerous must be marked "Dangerous", but they are not the only ones which can be dangerous, and I do not think that the Amendment will really help the general picture of the consumer and advertising. I should be sorry if this Amendment were to get through, because it would not be in the interests of the consumer or the ordinary general public. It would also weaken the powers of the Board of Trade on what we consider to be something of great importance to the public.

LORD AUCKLAND

I am grateful to the noble Lord, Lord Strabolgi, for his references to myself. I am in general sympathy with his Amendment, but I wonder whether the word "dangerous" is not a little too narrow. There are articles which are dangerous, such as oil heaters and polythene bags, as the noble Lord has suggested, but there are other articles which are of a rather complicated nature to use and which are not necessarily dangerous unless the instructions are not followed. The manufacturer often has a warranty which says that, if falsely used, the articles are not covered by any guarantee, but in some cases there may be misuse which is covered by guarantee, and legal action may follow.

I have been searching my brain at this late hour to think of a better word. I do not know whether "complicated", or some such similar word, would do as well; but I am in general sympathy with the noble Lord's Amendment, and I think I can understand what he is getting at. But I am a little worried—and here I rather agree with my noble friend Lady Elliot of Harwood—and I do not think "dangerous" does go far enough. In any case, I think one would probably have to make the expression "dangerous to the consumer" rather than just "dangerous". That may be splitting hairs, but in legal terms it may be necessary to add those words.

LORD DRUMALBYN

Before the noble Lady replies to this, I suggest that it might be convenient if she responded to her noble friend's request that she should at this stage give a fairly clear idea of what this clause is intended to achieve, because I think this clause has given rise to a very great deal of doubt as to what is intended. It is not altogether clear in what circumstances the Government have it in mind that information and instructions may be given in advertisements and, where they may, in what kind of advertisements.

BARONESS PHILLIPS

I am rather interested in the way we are quoting Molony. This seems to have become the "Bible". If one noble Lord quotes a short passage, another noble Lord finds another passage to quote back. But, in fact, if the noble Lord looks back to the Second Reading debate he will find that we did say that we were going further than Molony—and surely that is right at this point of time. This is now a little "old hat". After all, Molony was published two or three years ago, and things have changed.

LORD MITCHISON

You must not say that to Lady Burton of Coventry.

BARONESS PHILLIPS

I am sorry if I offend any noble Lord on this account. But I do appreciate the thought about safety. Like the noble Lord, I have done a great deal of voluntary work on the question of safety. But I think noble Lords would agree (indeed, I think the noble Baroness, Lady Elliot of Harwood, has already agreed)that it would be most unfortunate to narrow the clause —and this, of course, would be the effect of the Amendment. If the words were merely, "goods which, if unaccompanied by information, might prove dangerous", that would in fact limit it very seriously.

In fact, of course, it will be used in just the way the noble Lord has described —for goods which are dangerous if unaccompanied by information. No comparable power exists under the Consumer Protection Act 1961, but there are many other examples. I could give your Lordships a number from my own files, but perhaps your Lordships will think it sufficient if I quote the example of a washing machine, for which you would need information about plumbing and connections. There have been many examples of unsatisfactory buys as a result of buyers not having such information. Of course, the power operates only in this sense—if I may remind your Lordships of the words: Where it appears to the Board of Trade necessary or expedient …". In other words, this is not going to be lightly used, or probably used very often.

I thought that in discussing the previous Amendment we were perhaps tending to think that the Government were setting up instruments which were going to be used all the time and everywhere. This is certainly not the case. This would be so only in the case of an advertisement about which it was felt desirable that the consumer should have more vital information than he was getting. A requirement for the information to be included would ensure, for instance, that those who shoe by post—a form of shopping of which there is now a considerable volume in the retail trade—would also get full information. At the moment, this is not always the case. This does not mean that every postal advertisement will be subject to this requirement; but this was the kind of thing we had in mind when we included this clause. I hope that the noble Lord will recognise that we must not narrow the clause, and that he will withdraw his Amendment. Certainly dangerous articles would be our first consideration; but we cannot limit the provision.

LORD STRABOLGI

I am grateful to the noble Lady for her explanation. I am glad to hear that these powers will be used in only a limited way—

BARONESS PHILLIPS

Could be used in a limited way.

LORD STRABOLGI

—could be used in a limited way. But I do not understand why the Government need to come in on this matter. Are the Government setting themselves up as a kind of centre of tuition for the advertising industry and for manufacturers? Why can this not be left to the manufacturers? If a manufacturer does not advertise his product properly, he goes out of business. I also feel that the noble Lady did not answer my question as fully as she might. She has mentioned heating apparatus. For what other kind of goods is it necessary? Is this a drive against inefficiency of employers, or what is it? I feel that the noble Lady owes the Committee a rather fuller answer of the second part of my question.

BARONESS PHILLIPS

I should very much like to engage in a debate on this subject with the noble Lord at some other place. I have done a lot of consumer protection work and I would emphasise that the words "Consumer protection" in fact appear in the name of the Bill. I will certainly bring plenty of examples to the next stage. I did not realise that it was always necessary in government to produce a whole host of examples in order to institute legislation. But I can assure the noble Lord that I have plenty of examples from my own experience of "bad buys" (that is the term I use) as a result of a lack of information which could easily have been remedied. Certainly the Government are not setting themselves up as tutors in this matter; but these are powers that they could use. If the noble Lord would care to withdraw his Amendment, I should be happy to bring some examples—not the actual goods—between now and the next stage, or I could perhaps write to him. I would certainly have brought them if I had known they were wanted.

LORD STRABOLGI

I thank the noble Lady for that further statement. I hope that the Government, if they use these powers and if they requisition space in advertisements, will pay some contribution towards the cost of this very expensive space; and, also, if the advertisement is made ineffective through this sort of interference, that they will also compensate the manufacturer for the loss of sales resulting from it. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

LORD DRUMALBYN moved, in subsection (I), to leave out "supplied" and insert "offered for sale". The noble Lord said: I think I might say to the noble Lady that when one is venturing on new spheres, it is not perhaps unreasonable to ask the Government to tell us what they have in mind as to the way in which they are going to use the powers for which they ask. This Amendment is a simple one. It is to change the expression person to whom any goods are supplied to person to whom any goods are offered for sale. This is undoubtedly a limiting Amendment. I should like to ask the Government one or two questions about this subject. First of all, I wonder what they have in mind as the purpose of information or instruction in an advertisement. I should have thought that information or instructions in an advertisement were intended to enable the prospective purchaser to judge whether the goods are suitable for the purpose he has in mind, and not to enable a person to whom goods are supplied to handle the goods properly. That is dealt with in information or instructions given with the goods, and not in an advertisement for the goods. I hope that the Government will make plain what they have in mind about the meaning of the word "advertisement", because we are not talking about information given with the goods when sold or supplied, but about what happens in an advertisement intended to achieve a sale. That is why I think the word "supplied" should be replaced by "offered for sale".

Broadly speaking, there are two kinds of advertisement—the advertisement which attempts to get people to look for goods or inspect goods, and the advertisement which seeks to sell goods directly. I noticed one in a paper the other day for sun-ray treatment, which said that "This treatment is only sold direct ". There is also a whole range of direct mail order goods, to which the noble Lady referred. These are two entirely distinct ways of advertising and this clause can relate only to the second. It may be that the only explanation of the goods is the advertisement, which is the point of sale. I consider this an important point, because the Government ought not to ask for powers that are not required. I think it would be reasonable to limit powers to circumstances of offering for sale and not to any person to whom goods are supplied. I think this would make the intention clearer and I beg to move.

Amendment moved— Page 5, line 22. leave out (" supplied ") and insert (" offered for sale ").—(Lord Drumalbyn.)

9.18 p.m.

LORD MITCHISON

I think that this is exactly the same point as was raised last night, and could have been raised on Clause 7.

LORD DRUMALBYN

It was raised on Clause 7, and not on Clause 8.

LORD MITCHISON

Clause 8 is about marking orders, and begins: Where it appears to the Board of Trade necessary or expedient in the interest of persons to whom any goods are supplied … That is exactly the same language as the beginning of Clause 9, and I thought that it was accepted yesterday that these were the right persons to be considered.

LORD DRUMALBYN

Will the noble Lord forgive me? I do not think that he should get off on the wrong point. Last night, we were discussing definition orders, and we accepted that the expression "persons to whom any goods are supplied", as a general expression in definition orders, was all right. We did not object to that. But I hope the noble Lord has my point on this. Here we are talking about advertisement, which is quite a different thing from a definition order of a term used in trade or commerce. That is why I suggested that the right word for advertisement is "offer", and because I want to limit the advertisements to a certain type of offer, I am saying "offered for sale".

LORD MITCHISON

With respect, I do not see the distinction. In both cases the interest with which the Board of Trade is concerned is the interest of persons to whom any goods are supplied. Whether it is the case of a marking order or of information to be given in advertisements, the object of each of these clauses is to provide that sufficient information be given in both these cases. With great respect to the noble Lord, I cannot in the least see what the difference is. What interest has the Board of Trade to consider? It is to be the interest of persons to whom any goods are offered.

LORD DRUMALBYN

Offered for sale.

LORD MITCHISON

Offered for sale. What really is the difference between the two things? I simply cannot see it. It seems to me that you must look at these two clauses together, and if you are going to have a different form of words in Clause 9, you must justify it in regard to the interest you are considering. The interests you are considering are the interests of the persons to whom the goods are supplied, not the interests of the persons to whom the goods are offered and not supplied. I can see the noble Lord shaking his head. All I can say is that I utterly fail to see the distinction between the criterion to be applied in the one case and that to be applied in the other. I should have thought that the object of both of them was, broadly, to secure that sufficient information was given, and that if you put in a different phrase on each occasion you would immediately start people asking why. I listened to the noble Lord, and I did not, and do not, appreciate why.

Of course, "supplied" does cover other cases which do not end in a sale. For instance, hire-purchase is an obvious case. You may supply goods to a person on hire-purchase, and there has been no offer for sale. I do not quite see why that particular case should not be protected. I think the test is the simple test of the interests of the persons to whom the goods are to be supplied. I can only suggest that, having accepted this as the right phrasing for the purposes of Clause 8, there is no reason why it should be altered in Clause 9.

LORD TANGLEY

I am not in any way concerned with the merits of this clause, but I hope that in their own interests the Government will take this clause back and redraft it, because, in my judgment, as it stands no valid Order could be made under the clause, which I am sure is not what the Government want. You presuppose here, before anything can be done, that goods are supplied—not that goods will be or shall be or may be or can be supplied, but that goods are supplied. Unless those goods are supplied, nothing can appear to the Board of Trade to be necessary or expedient. Then the necessity or expediency having become apparent to the Board of Trade, they can do something about an advertisement in respect of which goods are supplied. All they can do is to make some retrospective amendment in regard to an advertisement in respect of which goods have passed, be- cause unless they have passed they cannot have been supplied.

As I have said, I am not concerned with the particular merits, but I am asking that the poor lawyer should be given something that he can understand. It is entirely different from Clause 7, because in Clause 7 you can do something about the goods which have been or are supplied. Under Clause 9 you can do nothing about the goods that are supplied, except make a retrospective amendment in an advertisement under which those goods were sold. As it stands at the moment, I submit that Clause 9 is pure nonsense, and must be redrafted.

LORD MITCHISON

I beg leave to disagree totally with my noble friend. What we are considering here is in what circumstances the Board of Trade can make an Order. They can do so where it appears to them necessary or expedient in the interest of persons to whom any goods are supplied … You have to wait for the goods to be offered or supplied to make an Order. You do not make it in respect of a particular set of goods which has or has not been offered for sale or supply. You consider in the broadest terms the interest of persons to whom any goods are supplied. For instance, you might consider the interests of people who drink beer, and you might therefore make some provision about beer and the advertisement of beer. That would be a proper thing to do under this clause.

With respect to my noble friend, I do not think he has put sufficient weight on the place in the clause where this phrase appears. It is only a phrase which governs the cases in which the Board of Trade can act. It does not refer to any special goods. It refers broadly to any goods in general, and it seems to me perfectly plain English. I suppose that lawyers must be the kind of people who find perfectly plain something which puzzles my noble friend, whereas no doubt he would say that I made it only more puzzling. All I can say about it is that it seems plain English to me, and I do not agree with the criticism he made. With great respect to him, I do not think it is so.

LORD SOMERS

Surely the noble Lord will agree that the advertisements concern the goods before they are supplied. The noble Lord said that you have to wait until the goods are offered for sale but, as the clause stands, you have to wait even longer—you have to wait until they have been supplied. Surely, the whole question of advertisements concerns the goods before they have been supplied.

LORD MITCHISON

No, with respect. Supposing you advertise (what shall we say?) golden perambulators. Some golden perambulators may be supplied after advertisement, and others may be supplied before. The question you have to consider is this: to what people are these goods habitually supplied? Let us say that in this case they are well-to-do mothers. You have to consider whether it is in the interests of well-to-do mothers that golden perambulators should be rather more fully described in an advertisement than the mere words signify. You might, for instance, find that one golden perambulator, contrary to one's first impressions, was not solid gold, but merely plated with gold, or even brass. It would be advisable, in those circumstances, in the interests of mothers who may be occupied with other things than the precise composition of a perambulator, to make it fairly clear to them what they are buying. That is all that this is for.

I repeat for the last time that I do not think Clause 7 has much to do with this. Clauses 8 and 9 must be read together. One of them is a way of providing information by labelling the goods, as it were, and Clause 9 is a way of seeing that the advertisers do not use language which, without being misleading, may well be insufficient. The question of whether it is insufficient or not must be judged, I should have thought, on ordinary plain English, in the interests of the persons to whom the goods are supplied.

I cannot see why everybody gets so excited about the difference between "offered for sale" and "supplied". I think there is a good reason for having "supplied" instead of "offered for sale", and I gave an instance over hire-purchase. This is a very minimal point indeed, and having accepted it in the case of Clause 8, I find no sufficient reason for refusing it in the case of Clause 9. That is unless, of course, one adopts the assumption that the advertisers can always look after themselves and never need any special attention.

LORD TANGLEY

I hope the noble Lord will not be too obstinate about this matter, because I am only asking him to take another look and to make his own clause effective for the purposes for which he is putting it forward. I have noticed in everything the noble Lord has said that he has had to add some qualifying words to the word "supply". I earnestly suggest that in the matter of drafting this clause will not do for the purpose for which it is put forward, and I beg the Government to take it back and make sense of it before we are asked to pass it.

LORD MITCHISON

I totally disagree still with my noble friend. We will gladly look at the clause again in the light of what he has said, but the suggestions he has made seem to me to obscure the issue and not clarify it, and I see no reason to alter the language since it has already been accepted in the parallel case in the preceding clause.

LORD BIRDWOOD

As I understand it, using the noble Lord's analogy of the golden perambulator, surely the only people whose interests this could protect would be well-to-do mothers who had already bought the perambulators before they had seen the advertisement.

LORD MITCHISON

Let me do my best to help the noble Lord, Suppose I ask him this question: To whom are golden perambulators usually supplied? Would he answer me by saying, "They are not usually supplied to anybody: they are offered for sale to well-to-do mothers"? What is the difference between the two? Having adopted the phrase in one case and not in another, and I think rightly adopted it because of the hire purchase case, and having offered to consider what was, after all, a similar point (or something uncommonly like it) which was discussed the other day, why do we now go on discussing this? The noble Lord will not convince me of the necessity to alter this, but he will convince me that he wishes it to be looked at. All well and good: I have offered to do so if the Amendment is withdrawn.

LORD AIREDALE

I would have restrained myself from taking part in this debate had it not been for the Minister continuing to say that there was a parallel to be drawn between Clause 8 and Clause 9. It is because the Minister persists in this alleged parallel that I do not believe he has yet really got the point of this Amendment. Clause 8 deals with marking orders; that is to say, things marked on the goods. Those marks are obviously of interest to people to whom the goods are supplied. Surely the essence of an advertisement, which is what we are talking about in Clause 9, is that an advertisement is addressed to people to whom the goods are offered, and the moment the goods offered in the advertisement are bought, the advertisement is functus officio; it has done its job. So what we want to refer to when we are discussing advertisements for goods, is goods which are offered by these advertisements.

LORD MITCHISON

With great respect to the noble Lord, I hope I do not overrate my own intelligence—I always rate it as very small indeed—but I have understood the points which have been made.

LORD DRUMALBYN

I wish I could agree with the noble Lord that he had understood the point I have been trying to make. He has treated this Amendment as a question of pure semantics. We argued the point of semantics on Clause 7. I am trying to say something totally different this time. I do not know whether the noble Lord, Lord Tangley, was here the other night, but I think it became fairly clear that, as I put it, the phrase, "persons to whom goods are supplied" is longhand for "customers". I do not want to say that here; I want to say what I mean to say—that is, persons to whom any goods are offered for sale. That is a totally different matter. The noble Lord has offered to consider this point, and I do not want to pursue it any further. All I want to make quite clear to him is that I am not on a point of pure language: I am on a point of meaning.

LORD MITCHISON

With great respect to the noble Lord, he has made his point not once but about four times, and on each occasion I have understood it. I quite see it. When one comes to questions of this sort, there is something to be said on both sides. I would agree that at once. I have offered to look at the clause. It is not, after all, a matter of vital importance. I still think as at present advised this is the better wording. But when one offers to look at something, one obviously intends to take into account what has been said in the course of the debate. I do not know how long we have been on this point, but I would suggest there is not very much more we can say about it.

LORD DRUMALBYN

I agree, but I had hoped that we should not be discussing purely a question of language, but should be elucidating the intentions of the Government in regard to this clause. The noble Lord, I think, in his last speech has shown the first glimmerings of understanding that he has yet shown. In those circumstances I am glad to withdraw the Amendment, so as to allow that process to go on.

Amendment, by leave, withdrawn.

9.37 p.m.

LORD DRUMALBYN moved, in subsection (2), to leave out all words from "may" (where that word first occurs) to "make". The noble Lord said: It is clear that this Amendment seeks to elicit from the Government what they intend regarding specifying the "form and manner" in which "information instruction or indication is to be included in advertisements. In order to help to do that, I have put down Amendment 51, which seeks to make it quite plain that this kind of information, instruction or indication will not be required where quite obviously it cannot be given. This can quite easily be done in error, and we know that orders coming to this House cannot be amended. This is why I put the Amendment down in this form.

I hope that the noble Lord will be able to say a good deal about this form and manner because, as the noble Lord, Lord Strabolgi, said on his Amendment, we do not want to attempt to dictate, for example, the content of advertisements—what are known as display advertisements in the Press, for example. Nor do we want to say the size of type that certain kinds of information should be given in in the Press. We do not want to say that certain information should be given in the same size of type as certain other information, the sort of thing we quite properly have in the Hire-Purchase Act. It is not relevant here.

I hope that the noble Lord will assure us that advertisements in the Press are not going to be subjected to artificial limitations of the form and manner of presentation. I hope that he will be able to say that what I was envisaging in the last Amendment is really the fact: that the Board of Trade intend to deal with advertisements which seek to sell goods direct, because when you are merely advertising in order to invite people to go and inspect the goods, and to get information about them, that is a totally different matter. Where this kind of information and instruction is required is, for example, in direct mail advertising, and in advertisements in the papers, where people are offering to sell goods direct, and in circulars and the like that are sent round. In this type of advertisement I willingly concede that this should be done: that adequate information and instruction to enable people to choose should be given. But what I am trying to make clear to the noble Lord is that this is not appropriate in advertisements which are merely inviting people to go and inspect the goods and make their choice on the spot. I beg to move.

Amendment moved— Page 5, line 30. leave out from (" may ") to end of line 32.—(Lord Drumalbyn.)

LORD RHODES

I will do my best. The, noble Lord is far more expert in this than we probably are, having in mind the position he holds in the advertising world. But I want to draw attention to one or two things that apply here. These Amendments, taken together, stultify the whole purpose of the clause, which is to provide that advertisements may be required to carry particular information which it is to the consumer's interest to have. I think that is quite plain. That is in the consumer's interest. This is what we are talking about. This is what we are discussing at this time of night. It is not for the benefit of anybody else except the consumer. We do not want to forget that in the next few minutes.

This subsection would allow the Board of Trade to specify how the information was to be conveyed, the Board of Trade being able to make an order to do just that. If we were to agree that some types of advertisements should be let off this provision, the required information might be included in such a way as not to get across to the consumer at all. In the exception which has been skilfully put down in the Amendment, it could well be that it would not get across at all to the consumer, the person we want to reach.

I will give an example. It might, for instance, be tucked away in a corner, with the idea of distracting the eye by the main material in the advertisement. Who is there who has anything to do with business at all who has not seen this done many times? It has been before the noble Lord's Committee on many occasions, too, or else my information is incorrect. Or probably the information is in such small print as not to be legible to the naked eye. One would have to have some good "specs" on to see some of the tiny efforts to describe these things. I have seen them. If the situation were taken to extremes, we might find that all advertisements for which the requirement had been prescribed were suddenly adapted in order to fall into the exempted class. The noble Lord knows that better than I. I know that there are aesthetic considerations involved here. There might be a very beautiful advertisement—and some of them are superb—and people might think that it would be spoilt by something which draws attention to some mundane and prosaic kind of information. I am certain that the noble Lords who sponsored this Amendment have no base, ulterior motives in doing so. There is nobody in this House better able to judge than the noble Lord, Lord Drumalbyn, who has the respect of everybody in his present job. This is well known. But if it is important that the consumers should have particular information, we must be enabled to see that they get it. That is all that this is about. Therefore, I must ask your Lordships to reject the Amendment.

9.46 p.m.

LORD DRUMALBYN

I regret to have to say that I am disappointed with the noble Lord's answer. When one is entering into a new field such as this, it is important that we should get some kind of concrete example of what the Government have in mind. I was sorry that the noble Lord was not able to deal with the distinction I made between the two classes of advertisements. For the life of me, I cannot see how it is going to be possible to sell direct in any of the ways indicated in Amendment No. 51. I do not see how one can do that by any advertisement in which no information about the goods is given other than the name or brand and nature of the goods, the name and address or location of the manufacturer and not more than one phrase or sentence descriptive of the purpose or effect of the goods. This is obviously related to the poster, the electric sign, the cinema flash, and possibly the T.V. flash, and that sort of thing. They are perfectly natural exceptions to make which are not capable of carrying any information or instruction. In general, they are only supporting advertising in any case; one cannot sell goods only on that. This is only reminder advertising of one kind and another, and this cannot possibly be envisaged in the clause.

I should have liked the noble Lord to have said, "At any rate we do not intend to include that sort of thing at all". Perhaps he did mean to say it, but in fact he did not; he left it out. I cannot see how this can possibly be brought into question here. What I tried to make plain was that my first Amendment was aimed merely at getting an explanation on this matter. The noble Lord said that he envisaged cases in which it may be necessary in the advertisements to specify the form and manner in great detail in which such information, instruction or indication is to be included.

LORD RHODES

I did not say "in great detail".

LORD DRUMALBYN

It must be in great detail if one is going to prevent things being shown in small print. If one is going to make regulations about it it has to be in great detail, as we found when drafting the hire-purchase regulations. I was saying that I can envisage the circumstances where it is necessary that that information, instruction or indication should be given in advertisements; I can envisage circumstances in which it is totally inappropriate that they should be given. What I was trying to elicit from the noble Lord were the kinds of ways in which they were going to exercise these powers. I would say that, by and large, in advertising in the Press by manufacturers who distribute their goods through ordinary trade channels, it would be quite inappropriate to lay down an order about this sort of thing.

Where, on the other hand, there is an organisation, a firm or whatever it may be, which is seeking to sell direct to the consumer, very often including a coupon of some kind in the advertisement by which the customer may send in an order or an application for information, that is of course quite a different matter. Where the advertisement is for goods which the advertiser is seeking to sell direct to the consumer by that advertisement, there is a very good case for this kind of information. I see that the noble Lord shakes his head. Is there not a case for information in those circumstances?

LORD RHODES

I was not shaking my head. I will tell the noble Lord when I get to it.

LORD DRUMALBYN

I think it is extremely important, when words put into a clause raise very serious misgivings in the trade, as these words have done, that we should make a correspondingly serious effort to dispel those misgivings. That is what I was inviting the noble Lord to do.

LORD MITCHISON

Could the noble Lord tell me which trade?

LORD DRUMALBYN

In many trades.

LORD MITCHISON

He said "the trade". Which did he mean?

LORD DRUMALBYN

I said "the trade", meaning trade in general.

LORD RHODES

I come back again to the question of whose Bill this is, and at whom it is directed. We are rapidly getting a kind of defensive society for a particular industry. Let me put this to the noble Lord, who was quite fair. He understands this subject from A to Z, and better than I do. Without any question, this power will be needed if the occasion arises. Let me give the noble Lord this categorical assurance. We should not use the power so as to make it impossible for advertisers to continue to issue the same type of advertisements as before. I cannot do any better than that. That is as far as I can go, and I hope that in those circumstances the noble Lord will withdraw his Amendment.

LORD DRUMALBYN

I am grateful to the noble Lord for the length to which he has gone. I am sure that this will be very reassuring. We all understand, of course, that this Bill, and this clause in particular, is intended to protect the consumer. But the noble Lord knows very well, as he has been on both sides in both Houses, that an Opposition is always reluctant to give a Government more powers than they really require for the purpose of giving the necessary protection. I have no desire whatever to attempt to deny to the Board of Trade the powers they need in this matter. What I was trying to do was to get some information as to how the powers were going to be exercised. I think the noble Lord has been able to give us something for the better on that, and we are grateful to him. This has been my purpose and, having achieved that purpose as far as we have done, I am quite content to leave the matter there for the time being. I beg leave to withdraw this Amendment.

Amendment, by leave, withdrawn.

9.55 p.m.

LORD AIREDALE moved to add to subsection (2): but such order may not require the publication of advertisements in any form or manner, or at all.

The noble Lord said: My Lords, this Amendment refers back to subsection (1), and it is obvious that subsection (1) is not quite clear to all those present. Perhaps I could say, in parenthesis, that this may be partly due to the fact that subsection (1) occupies nine lines in print, it is a single sentence and there is not even a semi-colon in it from beginning to end.

LORD MITCHISON

It has not got the word "deemed" in it.

LORD AIREDALE

I have not read it through to see whether it has the word "deemed" in it, but I accept the noble Lord's assurance that it has not. The gist of it, as conveyed by the side-note or rubric, is: "Information.…to be given in advertisements", and it empowers the Board of Trade, therefore, to require information about certain goods to be given in advertisements. The question that I raise is: does that imply a positive requirement on the part of the Board of Trade that certain goods shall be advertised for the purpose of conveying information in the advertisement? I hope that the subsection does not bear that construction, and it is to make quite certain that this is so that I have sought to move this Amendment, which seeks to make it abundantly plain that in every case the decision whether or not to advertise any goods shall always be entirely within the province of the person manufacturing or trading in the goods, or having an interest in selling the goods, and that it shall never in any circumstances be possible for the Board of Trade to say to the person interested in selling the goods, "You have got to advertise those goods in order that information about them shall be conveyed by means of advertisement". I hope I have made that clear, and I beg to move.

Amendment moved— Page 5, line 33, at end insert the said words.—(Lord Airedale.)

LORD MITCHISON

My Lords, I entirely agree with what the noble Lord says as to the purpose of the clause. There is no intention whatever to give the Board of Trade power to require advertisements to be published, and the only point upon which I differ from the noble Lord is that I cannot find any part of the clause which might be thought to contain such a power. I therefore hope he will accept my assurance that, so far as I am concerned, I do not see it, I do not think it ought to be there and, accordingly, I do not think it is there. In those circumstances, I am afraid I regard this Amendment as unnecessary. We all form our own opinions about clauses, but, having looked for this power in this criminal Statute—and this is substantially a criminal Statute, though this is not perhaps plain from the clause describing offences—I can only say to him I really cannot find it. Unless he can find it, perhaps we may leave the clause as it is.

LORD AIREDALE

I am much obliged to the noble Lord, but I think I can find it. Perhaps I can best explain it by quoting verbatim from subsection (1) the words which I submit are the gist of the subsection. The words are these—and I am not paraphrasing now; I am quoting from the subsection: …the Board may,…impose requirements as to the inclusion of that information…in advertisements… I hope that when the Minister considers those words he will agree that they can he taken as giving the Board power to require that advertisements be published for the purpose of conveying the information which the Board require to be conveyed. We will not discuss this any further this evening—at any rate, I will not; I cannot speak for the noble Lord. Perhaps if the Minister will look at this question in the light of what I said, after he sees it in print (which is easier than hearing me quoting) I hope he may be able to reconsider the matter. In the meantime, I am happy to withdraw the Amendment.

LORD MITCHISON

Before it is withdrawn, may I, just in courtesy to the noble Lord, say that we will, of course, look at what he said. I think one can pick a few words out of context and read more into them than is really there. I can assure him, with my hand on my heart, that there is no intention to do what he fears. I do not think there is power to do it in the clause.

Amendment, by leave, withdrawn.

LORD DRUMALBYN

We have been discussing the subject matter of this Amendment, but the noble Lord did not say whether he was prepared to accept it. I therefore beg to move the Amendment.

Amendment moved—

Page 5, line 33, at end insert (" so, however, that no such order shall apply to any advertisement in which no information about the goods is given other than the name or brand and nature of the goods, the name and address or location of the manufacturer and not more than one phrase or sentence descriptive of the purpose or effect of the goods.")—(Lord Drumalbyn.)

LORD RHODES

No more than I did before; because I was replying as much to Amendment No. 51 as to Amendment No. 49.

LORD DRUMALBYN

But No. 51 stands on its own, if 49 falls.

LORD RHODES

When they are taken together, it is usual to give an answer covering both.

LORD DRUMALBYN

It might be possible to accept one and not the other. This point was not answered when the two Amendments were dealt with together. In fact, if the noble Lord would rather it were discussed on the next Amendment I will willingly withdraw this one.

Amendment, by leave, withdrawn.

LORD STRABOLGI moved to add to the clause: ( ) An order made under this section shall not relate to any advertisement which includes no more than the name of any product and the name and address of any manufacturer.

The noble Lord said: I am grateful to the noble Lord, Lord Drumalbyn. This Amendment, which stands in the name of the noble Lord, Lord Airedale, and myself (and I should like to thank Lord Airedale for the drafting, which is a vast improvement on my original Amendment), relates to reminder advertisements which are obviously not suitable for the inclusion of information that may be required by the Board of Trade. We have been discussing this point on a previous Amendment, but as the noble Lord, Lord Drumalbyn, said, rightly, the Government have still not stated how they propose to approach this matter.

If I may, I will give a fairly simple example of the type of goods mentioned by my noble friend Lady Phillips—the heater. One may imagine a poster of a heater which has on it merely a picture of the product and the name of the product—plus, possibly, the name of the manufacturer, if it differs from the name of the product. That is all there is. How do the Board of Trade, who seem to be now intending to enter the advertising industry, intend to put on to this poster the information which they require? For example, they may wish the advertiser to include some wording, such as, "If you leave this stove on when you go out on a winter's night, it may fall over and burn your house down." If they wish to put that in they should say how they intend it should be put it on a poster which includes only these simple details. I beg to move.

Amendment moved— Page 5, line 37, at end insert the said subsection.—(Lord Strabolgi.)

LORD AIREDALE

I am pleased to support this Amendment. The sort of illustration I have in mind is an advertisement for computers. Computers being a rather new product, and the general public, at any rate, not understanding very much about them, the Board of Trade, I imagine, might require that advertisements of computers should contain particular information so that people would not be misled. But there might be a situation where a firm making computers wishes to erect in Piccadilly Circus a flashing sign which says in large letters: "I.C.T. computers" and nothing else. It would be impracticable to include in an advertisement of that kind any information which the Board of Trade might wish to convey in advertisements generally. For one thing, it would cost thousands of pounds to construct a flashing sign which contained sentences of information. I am pausing because I am not certain whether I have the attention of the Minister.

I imagine that the answer to this question may be that the Board of Trade would always wish to make exemption for any flashing sign advertisement. I hope they would, and that this will be made clear because, if it is left to the advertiser on every occasion to go to the Board of Trade to seek special exemption for a particular advertisement to be stuck up in Piccadilly Circus, it may take so long to get special exemption from the Board of Trade that somebody else may have obtained the site where the advertisement was going to be placed. That is the sort of thing I have in mind. I may not be on the right track, but I do not know what is in the Government's mind in regard to this clause, and that is why I put this forward as relevant to what we are discussing.

10.7 p.m.

BARONESS BURTON OF COVENTRY

I am glad that we have reached Clause 9, because on Second Reading I asked for some elucidation of subsection (3) and tried to explain why this seemed an important matter of principle both to industry and to the advertising profession. I also stressed to the Front Bench that it would be helpful if we could know the thinking of the Government on this matter before we reached Committee stage. As noble Lords who were present on Second Reading will know, this plea produced no comment at all from my noble friend Lord Rhodes, and when he was pressed I got a rather dusty answer. One becomes accustomed to dusty answers in both Houses—less in your Lordships' House than in another place—and I am not complaining about getting a dusty answer, but because what was subsequently forthcoming was really worth nothing at all in serious discussion although I had raised with him what I thought was a serious point.

I disagreed with my noble friend that this was a Committee point. I thought then, and I think now, that it is a fundamental point of general principle, but, as my noble friend will know, he told me (in column 721 of the OFFICIAL REPORT) that the reply would be deferred until Committee stage. Therefore, I have no option but to raise the matter again. I want to know from my noble friend, with regard to subsection (3), who is "any person"? I do not mind who it is, but I should like an answer. I asked my noble friend whether it is the newspaper or the television company or the advertising agency or the manufacturer.

I repeat that it would be very useful to everyone to know the thinking of the Government on this general aspect. I said then, and would repeat now, that I do not think that any reputable advertising agency would put out advertisements which were wrong or misleading. I hope that my noble friends have got it settled now—it is most distracting to me, as it was for the noble Lord, Lord Airedale, not to have my noble friend's attention.

SEVERAL NOBLE LORDS

Hear, hear!

BARONESS BURTON OF COVENTRY

I will go back to where I was, and I apologise to the rest of the Committee. I do not believe that any reputable advertising agency would put out advertisements that were wrong or misleading. It seems to me—and this is the point on which I should be grateful for an answer subsequently—that advertising agencies are in a different position from the rest of the people in this particular field. I put forward the point that I thought that advertising agencies, through obtaining the whole rather than a part of their income from advertising, are in a determining position. As I see it, they are the only body solely concerned with this aspect. I think this must bring its inevitable responsibility.

I suggested to the noble Lord for his consideration that I thought the onus of proof in an advertisement rested with the advertiser, and I thought that in this case the advertiser was the advertising agency. I am sorry to go through this again, but if the noble Lord had given me an answer on Second Reading, I should not have had to burden him with it now. When I put forward this suggestion some eighteen months ago to an advertising congress, the advertising people who were listening and who disagreed with me did so on the argument that agencies would find themselves in an untenable position, as well as media, if they were held accountable for misstatements about products which they were in no position to check. I believe quite simply that agencies should be in a position to check or accept the responsibility for not checking. I think that where a manufacturer or a firm places advertising direct, then that manufacturer should accept the responsibility. I think it lies with them.

The only comment that I got from my noble friend (at column 721), after pressing him again on this, was: The advertiser would be anyone who had responsibility for the contents of the advertisement I am sorry, but I do not think that is any answer at all. That we all know. What we want to know from the Government is fundamentally who do they think has responsibility for advertisements? I hope that I shall get an answer to-night.

10.12 p.m.

LORD RHODES

Let me answer straight away. The answer that I gave the noble Lady just before the end of the Second Reading debate was really quite adequate. She did not think so, and she has pursued this matter since, and I will give her the answer now. She asks on Clause 9(3): What does "any person" mean? And I will tell her. "Any person" in this clause means, as it says, any person or body which publishes the advertisement. It could be, for example, a newspaper, a television company, the owner of a hoarding, an advertising agency, or a manufacturer. Clause 25 provides a special defence for media owners who do no more than arrange for the publication of the advertisement and have no responsibility for its contents. I do not think I can make it more explicit than that.

With regard to Amendment No. 52, I would say this. Here, again, this Amendment is in line with Lord Strabolgi's other Amendments, and is designed, I believe, to prevent, so far as possible, any intereference with the advertising industry. Let us get it quite clear what these interests are, and then we shall get it clear as to where the interests of the consumer lie. It could apply to the simple one or two line advertisement appearing in the classified advertisements columns of newspapers. In either case, there is no reason to provide a statutory exemption for this type of advertisement where the marking order had been exercised in respect of advertisements for particular goods.

Clause 9 provides a power whereby the Board of Trade may require the inclusion of information in advertisements. We have been pressed to say, "Yes that is what we would do", so that it can be said, "Ah, well, that is wrong". It is not at this moment clear in what circumstances we shall wish to exercise this power. As I said in the debate, we have been careful to draft these enabling powers widely, so that they can be used with the maximum flexibility. Nor am I altogether clear what the noble Lord has in mind. I can see little sense in deciding that certain information needs to be given to consumers in advertisements, and then providing a statutory exemption for one class of advertisement. Where are we getting with this? I can assure your Lordships that the Board of Trade have no desire whatever to impose unduly harsh restrictions oh advertisers, and will make use of their powers only where it can be shown that this is absolutely necessary in the interests of consumers and—listen to this, please, because it is very important—after consultation with those interests likely to be substantially affected.

What more can we say? The clause enables the Board to make the order relate only to certain descriptions of advertisements, and if they use the power to specify form and manner they can vary the requirements to suit different circumstances. The type of advertisement referred to in the Amendment could therefore be excluded from any order made under this clause, if this seemed a reasonable thing to do. We are dealing here with reasonable people. We must look at all these cases on their merits, and if the Board of Trade make unreasonable use of their powers—which they will not do, I am absolutely certain—ultimate control rests with Parliament by virtue of Clause 36(1). With that explanation, I ask your Lordships to reject the Amendment.

LORD PEDDLE

I would agree that this is intended to benefit the consumer, and I am anxious to see the full expression of this clause. But I did not quite follow my noble friend's definition in response to my noble friend's question, as to what is meant by "any person". It did not satisfy me completely. Do I take it from the explanation that has been given by my noble friend that where an advertisement fails to comply with any requirements imposed by this subsection, "any person" can mean the person paying for the advertisement, the manufacturer, the advertising agent, the newspaper proprietor—all three involved, or any particular one? I should like information as to who will be responsible. If it is to be all three, then let us know. According to the information that has been given to us, the person paying for the advertisement, the manufacturer, the advertising agent and the newspaper, would all three be directly involved. What is the position?

10.20 p.m.

LORD MITCHISON

If I may answer the last point very shortly, "any person" means "any person" and "publishes" means "publishes", and any person who publishes is liable in the circumstances stated in the Bill. If my noble friend wants more information as to who publishes I suggest that he might compare it with the publishers of a libel. In the case of a published libel it is the almost invariable practice to sue, as the people who have published, the printer; if it is a newspaper, usually the editor of that newspaper, and the composer of the article in question. I could add to the list, but what I think is the test is that they must be responsible in some way for it, and the printer is supposed to exercise a responsibility over libel which has a criminal aspect—as of course this Bill has a criminal aspect, too—and to supervise what is printed. That is why a person becomes liable. But the man who, for instance, in the course of his duties carries the libel from one place to another would hardly be "publishing" it. The shopkeeper who sells it may again be publishing, because he is supposed to exercise some care not to do an illegal thing; and, I repeat, in some cases a libel may be illegal.

As any lawyer here knows, this is really quite a long subject, and in the case of a libel, it is well established who publishes and who does not publish. I suggest that "publishes" here has exactly the same meaning, and if I may take the specific point of the advertising agency I should think that would depend on the degree of responsibility. I have not a close knowledge of the trade or profession (whichever we are to call it), but I imagine that there will be some cases where the advertising agency is a mere servant, with no responsibility whatever, although in the majority of cases it will take its share of the responsibility and, therefore, of the liability.

I have done my best to make this clear. I trust that at this hour of the evening we are not going to have a discussion of the law of libel. It would take us a considerable time. I can only say that the question of who publishes a libel has been ventilated for decades, if not for centuries, and by now it is tolerably clear. I t may be asked, why cannot we find some simpler phrase? The answer is that people have revised the law of libel lately and taken a good deal of trouble, and nobody has succeeded in finding a phrase which covers the fact.

LORD PEDDIE

Getting a clear answer in a short, sharp sentence is like catching a hare with a fishing net. A quite simple question was addressed and we got a long spiel about the law of libel and the like. We are not dealing with the law of libel. I was told that "any person" means "any person". Of course it does, but I want to know who the "any person" is. I was asking the simple, direct question, and it is a pity I am doing it in this manner because I am in complete agreement with this principle, but I do want to know who will be charged in the event of any contravention. Do I take it from the reply that has been given that if an advertisement fails to comply with the requirements, the person who pays for it—that is, the manufacturer—the advertising agent who handles it, the newspaper that publishes it, and the television company that projects it will all be liable? Do I take it that that is the answer?

LORD MITCHISON

Let us try four words—" any person who publishes ". I spent some time, I agree, trying to say what "publishes" meant, because I took the phrase in the context in which it usually appears. I must apologise to my noble friend for perhaps having tried to cover too much. Let me come back again—"any person who publishes". That is the answer.

LORD TANGLEY

With great respect to the noble Lord—I am sorry to intervene again, but I have tried to make the Bill effective—if Clause 9(3) stood by itself, I would accept what the noble Lord has said about what publication is, and I think it would be reasonably clear. But Clause 9(3) does not stand by itself. There is Clause 25, which says: In proceedings for an offence under this Act committed by the publication of an advertisement it shall be a defence to prove that the defendant is a person whose business it is to publish or arrange for the publication of advertisements and that he received the advertisement for publication in the ordinary course of business. It is not, therefore, sufficient merely to read Clause 9(3), with which I agree the noble Lord has dealt. The important thing is to say how much is subtracted by Clause 25, and it passes the wit of man to say.

LORD MITCHISON

I entirely agree, but perhaps we had better do it when we come to the clause.

LORD TANGLEY

I am sorry, but, with great respect, this really will not do. The Committee is being asked to create a new criminal offence, and it is really quite within the rules of procedure when we are dealing with the effect of one clause that we should see whether it is affected by another clause, in order to see whether we are or are not creating a criminal offence.

LORD MITCHISON

I can only say to the noble Lord, by all means, if he and the Committee wish it, let us proceed to Clause 25. I am bound to say I had not expected to have to discuss it at this stage. Let us turn to it and see what it is. I had better read it out.

LORD AIREDALE

Perhaps I may intervene on a point of order. I believe the question before the Committee is, That Amendment No. 52 standing in the name of the noble Lord, Lord Strabolgi, and myself be agreed to. We have long ago strayed from debating that question, but we must resolve that question either by the noble Lord pressing or withdrawing Amendment No. 52 before we discuss anything else. I think that is right.

LORD MITCHISON

I entirely agree. I am quite happy.

LORD STRABOLGI

I thank the noble Lord, Lord Airedale, for bringing us back to this Amendment. I would also thank the noble Lord, Lord Rhodes, for his explanation. Although I am still not convinced, I appreciated all he said about helping the consumer, but what he is trying to do in this respect, if this Amendment is not accepted, is something that just will not work. I will refer briefly again to the question of the heating stove. If he has an advertisement for a heating stove with just the product name on it, and wants to put some additional information about safety, it is going to become a safety advertisement and should be paid for by the British Safety Council or the Government or someone else. That is the kind of difficulty he is going to get. This only pinpoints the whole question of this clause, which is most unsatisfactory, as the noble Lord, Lord Tangley, and others have said, in every way, almost in every word. I see that the next Motion we shall be considering is the clause as a whole on its merits, such as they may be; and, with that in mind, I beg leave to withdraw my own Amendment.

Amendment, by leave, withdrawn.

LORD CHAMPION

As it might be necessary to discuss Clause 9 in greater detail, as well as the other clause that has been mentioned, it seems to me that this might be a convenient moment for the House to resume. I beg to move that the House be resumed.

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

House resumed.