Lords Sitting of 4 December 1967

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

BRITAIN AND THE EUROPEAN COMMUNITIES
2.35 p.m.
LORD BLYTON: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether they will now withdraw their application to the Common Market in order to save Britain further humiliation; and whether they will now concentrate on the policy as announced in the 1964 and 1966 Election Manifestos.]
THE MINISTER OF STATE FOR FOREIGN AFFAIRS (LORD CHALFONT): My Lords, Her Majesty's Government have no intention of withdrawing their application for membership of the European Communities, which is fully in accordance with the policy set out in the Manifesto on which they were elected.
LORD BLYTON: My Lords, is my noble friend aware that the present policy is in contradistinction to the speech made by the Prime Minister at Bristol in 1966? Is he further aware that by de Gaulle's veto we cannot now expect anything but humiliation, and we cannot expect the Five to save us because they are mixed up in this economic "omelette"? Is it not now time for us to sit up and seek our livelihood in the world without the Common Market?
LORD CHALFONT: My Lords, I take leave to differ with my noble friend that the Prime Minister has ever said anything that has contradicted our present policy of seeking entry into the Common Market. As my noble friend mentioned the 1966 Manifesto in his original Question I would remind him that this stated:
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"Labour believes that Britain, in consultation with her EFTA partners, should be ready to enter the European Economic Communities provided essential British and Commonwealth interests are safeguarded."
This is the policy by which Her Majesty's Government stand. My noble friend referred to a veto by the President of the French Republic, but all we have had so far is a Press Conference given by President de Gaulle. We now await the answer of the Six of the European Communities to the application which we have made under Article 237 of the Treaty of Rome.
LORD BLYTON: My Lords, is my noble friend aware that when we were vetoed in 1963 it was preceded by the same kind of speech by General de Gaulle?
LORD CHALFONT: My Lords, of course we are aware of what happened in 1963. There are, however, a number of differences between the situation in 1963 and the situation now. The major difference is that the previous Administration had not applied for membership under Article 237 of the Treaty. Their approach to the Common Market was of a slightly different kind. I make the point again: we have made application under Article 237 of the Treaty of Rome This Article says that any European country may apply for membership and it goes on to say that the opinion of the Commission should be given on such an application. The opinion of the Commission has now been given. But it says that there shall be a unanimous 'decision by the Six members of the Community. We await that unanimous decision.
LORD BLYTON: By Lords, would my noble friend assure me that, whenever we are humiliated again, we will not stand at the door of the Common Market kicking our heels, but with some dignity will try to seek our livelihood in the rest of the world?
LORD CHALFONT: My Lords, I cannot agree with the implication in my noble friend's question, that there is any humiliation involved in this. Her Majesty's Government are involved in a major act of foreign policy concerning the unity, the strength and the future of Europe. We do not regard anything that

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has happened so far as being a humiliation. We do not contemplate anything that might happen in the future as being a humiliation. We shall continue this policy until we are members of the European Communities.
LORD ST. OSWALD: My Lords, by way of agreeing with what the noble Lord has now said, may I ask whether he could possibly persuade his noble friends behind him, such as the noble Lord, Lord Blyton, that the real humiliation for Britain would be to admit, quite erroneously, that we had lost the campaign for entry into Europe, whereas we have merely lost a skirmish at the present moment?
LORD CHALFONT: My Lords, I take the point of what the noble Lord has said. Of course, my noble friend Lord Blyton is entirely entitled to his views, and I respect his views, which he holds very sincerely. I can only agree with what the noble Lord, Lord St. Oswald, has said, that the Press Conference of the President of the French Republic is not a humiliation. It is not a defeat. It might, perhaps, be regarded as a temporary reverse. We shall see on December 18 when the Council of Ministers meets.
LORD HANKEY: My Lords, would the Minister agree that if we were to withdraw our application we should let down our friends in Europe and give great encouragement to the General?
LORD CHALFONT: My Lords, of course I should agree with this. We have no intention of withdrawing our application. It is there, and there it remains.

BAC 2–11 AIRCRAFT AND B.E.A. REQUEST
2.40 p.m.
LORD BALFOUR OF INCHRYE: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether they have decided that Government support is to be given to the development of the BAC 2–11 asked for by British European Airways; or whether support is to be given for the development of some alternative type.]
LORD BESWICK: My Lords, devaluation has necessitated a reappraisal of the relevant financial data, and I am sorry that it is not yet possible to reach a decision.
LORD BALFOUR OF INCHRYE: My Lords, arising out of that reply, and while quite understanding the complications involved in a reappraisal, would the Minister be so good as to say how long he thinks will still be needed before a decision is reached, in view of the increasing degree of damage to British civil aviation prospects in the future through these unfortunate delays?
LORD BESWICK: My Lords, may I first of all say that the noble Lord is very kind to me. I thought he was going to quote the forecast I gave the last time he asked the question; namely, that I anticipated a decision within the last month. But after that experience I am reluctant to say anything more except that the decision will be given as soon as possible.
LORD BALFOUR OF INCHRYE: My Lords, if I put down a Question in a fortnight's time, does the Minister feel that there would be a positive and definite response then?
LORD BESWICK: My Lords, I really refuse to be drawn. Having been bitten once, I am shy about a second time. But let me put it this way to the noble Lord. I should have thought that the delay was a good sign, so far as he was concerned, knowing as I do that he favours the purchase of the 2–11.
EARL AMHERST: My Lords, may I ask the Minister this question, of which I have not given him prior notice? In view of the changed circumstances, both the devaluation and the fact that Lufthansa is reported not to be in favour of buying the air bus, is there any news which the noble Lord can give us about the development of that aircraft?
LORD BESWICK: No, my Lords. The position about the air bus remains as before. There has been an agreement between the three Governments, and although I know of the statement to which the noble Lord refers, that of course was not a statement by representatives of the German Government, and the joint study is proceeding.

EUROPEAN POLITICAL UNITY
2.42 p.m.
LORD MERRIVALE: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government, in view of the statement in this House by the Minister of State for Foreign Affairs that the first and most important reasons for applying for Membership of the E.E.C. are political, whether they have any plan for a political rapprochement with the Six towards a common political destiny, and what initiatives have so far been taken to that end.]
LORD CHALFONT: My Lords, I would refer the noble Lord to a subsequent passage in the same speech, in which I said:
"The Government therefore see the widening of the Common Market, to include ourselves and other Western European countries, as the means of bringing about this closer political unity".
I would only add to that to-day that the essential first step is to join the European Communities.
LORD MERRIVALE: My Lords, I thank the noble Lord for his remarks, but in view of the state of things at the moment does he not think that Her Majesty's Government could take a greater initiative in this matter; that is, in the political field? In other words, could they not take a lead with regard to political consultations with the Six to see whether common guidelines could be achieved in, say, the field of defence, the field of aid to under-developed countries and the field of military construction and procurement; and, as a long-term aim, could not efforts be made to start political discussions with the Six with a view to ultimately achieving a common foreign policy?
LORD CHALFONT: My Lords, the noble Lord referred to the situation as it is now. The situation as it is now is that we have applied to join the European Communities, and the European Commission has delivered its opinion on that application and has said that negotiations should open. We now await the decision of the Council of Ministers, and
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the Council of Ministers has a meeting on December 18. I therefore think the position is quite simple: we await their decision. In the meantime, perhaps I could refer the noble Lord to the words of my right honourable friend the Foreign Secretary in the opening statement in this approach to the Common Market, which he made in The Hague on July 4. In that, he said among other things:
"We believe that Europe can emerge as a community expressing its own point of view and exercising influence in world affairs, not only in the commercial and economic but also in the political and defence fields."
I do not believe there can be anything clearer or more unequivocal than that.
LORD MERRIVALE: Yes, my Lords, I would agree. Indeed, I thank the noble Lord for reminding me of those remarks, which he sent me in reply to a Written Question I put to him earlier. But does he not think that Her Majesty's Government could show a greater lead, as we are not yet in the Community, in the light of of the fact that M. Jean Rey is here in London at the moment seeking arguments to support the Commission's claim that negotiations should start at the earliest possible moment, and also in light of M. Lipkowski's proposal last week in Strasbourg that this country should have a pre-membership status? In the light of those considerations, does the noble Lord not feel that Her Majesty's Government could take a lead in this matter?
Finally, may I ask the noble Lord why it is that the Prime Minister, in his sixteen-point reply last Wednesday to the remarks made the previous Monday by General de Gaulle, made no reference whatsoever to the contention or statement by the President of France that it was obvious that a complete transformation in this country was necessary before we could join the Continental countries?
SEVERAL NOBLE LORDS: Speech!
LORD CHALFONT: My Lords, it has always been the view of Her Majesty's Government that before becoming an effective member of the European Economic Communities we should have to be in a healthy economic position. That view has not changed. What we are talking about now is the possibility of entering into negotiations to join the Communities. We have made it clear to

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our partners in the Communities that we should be prepared—indeed, we should like—to be associated with any discussion on political unity at the earliest possible moment, instead of waiting until the formal negotiations to join are complete. But we believe that all this kind of discussion ought to take place in the context of negotiations to join the Community on the application that now lies on the table with the Council of Ministers of the Six. Certainly we are prepared to discuss all these things in the context of those negotiations. I know that the noble Lord's intentions here are to be helpful, but I suggest to all noble Lords that we should wait until we have an answer from the Six on our application and for negotiations to begin. All these other things can then be discussed in the context of those negotiations.
LORD MITCHISON: My Lords, could my noble friend tell me whether a pre-member is a candidate who has been "blackballed"?
LORD CHALFONT: My Lords, I do not want to get into any discussion about that sort of semantic definition. I can only say that we have applied according to Article 237 of the Treaty of Rome. It now requires a unanimous decision of the Six on our application. Whatever has happened in the meantime, that decision has not yet been given.
LORD BLYTON: My Lords, could my noble friend say whether, in seeking the objective of political unity in the context of his own speech and that of the Foreign Secretary, it means that we hand over the sovereignty of our Parliament to a Federal Parliament of Europe?
LORD CHALFONT: My Lords, the extent to which political integration will eventually arrive in Europe is a matter for speculation, and long-term speculation at that. I would only remind my noble friend and your Lordships' House that in many respects already we accept a diminution of our national sovereignty—in our membership of NATO and in our membership of the United Nations. I believe it would be wrong to be too emotional about this issue. But certainly when we talk about handing over the sovereignty of our Parliament to some supranational Parliament we are talking
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in very hypothetical and speculative terms indeed.
LORD BLYTON: Would not my noble friend agree that we can leave NATO at six months' notice, whereas we cannot leave the Common Market—it is for ever?
LORD CHALFONT: My Lords, I am not aware that we can leave NATO at six months' notice, and I believe that my noble friend, when he has checked his reference, will find that that is not so.
LORD BLYTON: General de Gaulle did.

VIETNAM AND THE UNITED NATIONS
2.50 p.m.
LORD ROWLEY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether it is their policy to welcome the consideration of the Vietnam situation by the Security Council of the United Nations with a view to the convening of a Peace Conference.]
LORD CHALFONT: My Lords, we should naturally welcome any consideration of the Vietnam problem, in the Security Council or elsewhere, that seemed to offer a chance of progress towards peace.
LORD ROWLEY: My Lords, in view of the failure, through no fault of Her Majesty's Government, to reconvene the 1954 Geneva Conference, is it not time that the Security Council should at least discuss the Vietnam situation with a view to ending the present deadlock and bringing about peace negotiations? Is my noble friend aware of the resolution passed unanimously last Thursday by the United States Senate asking the Security Council to take this course; and should not their proposal be strongly supported by Her Majesty's Government?
LORD CHALFONT: My Lords, I am aware of a report that the American Senate has asked for action in the Security Council; but, of course, the American Senate is not the American Administration. I

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think it would be wrong of me, as a Minister of Government, to comment on this matter until we know what, if anything, the American Government propose to do. When we know that, then, as I said in my earlier reply, we should be delighted to discuss, and support, anything that offers the slightest chance of bringing about peace in Vietnam.
LORD ROWLEY: I thank the noble Lord for that reply; but may I, with respect, request an answer to the first part of my supplementary question? Do the Government not agree that because of the failure to reconvene the 1954 Geneva Conference we have had five years of bloody warfare? Is it not possible for the Security Council to discuss—if only discuss—the problem?
LORD CHALFONT: My Lords, while I respect the passion and sincerity of my noble friend in this matter—and no one agrees with him more than I—I can only say again that we should all like to see an end to the war in Vietnam. But what happens in the Security Council is a matter for the Security Council. I can only repeat that Her Majesty's Government would welcome any consideration of that problem in this Council or elsewhere that would offer a chance of progress towards peace.
LORD CHAMPION: My Lords, is not our position, as a member of a Security Council, such that we could ourselves initiate this discussion?
LORD CHALFONT: My Lords, this is a matter for decision by Her Majesty's Government in the light of all the considerations that apply in New York. I will bear in mind the questions that have been asked. I can only say again—and I ask my noble friend to believe me when I say so—that we shall welcome any consideration of this problem in the Security Council. I ask my noble friend to note that word "welcome"; for it has, as he will know, a certain United Nations connotation.
LORD SILKIN: My Lords, cannot we take the initiative in this matter? Why are we not in a position, like anyone else, to take the initiative?
LORD CHALFONT: My Lords, I think my noble friend will know that for a Government to take an initiative it is usually better for them to know that that
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initiative will have some profitable end. An initiative that is unlikely to arrive at a profitable end has only a sort of moral impact and moral content. We should like to take the initiative when we know that it will be successful.
LORD BROCKWAY: My Lords, while welcoming the spirit of the reply of the Minister, may I ask this? Is not the difficulty that the Government of neither North Vietnam nor China is represented in the Security Council? And is not the road towards peace the suggestion that U Thant, who has wide acceptance in this matter, should take the initiative in bringing about a peace conference in which both China and North Vietnam would be represented?
LORD CHALFONT: My Lords, perhaps I had better answer my noble friend by saying that in so far as the North Vietnamese are concerned—for we all realise that the People's Republic of China is not represented in the United Nations—their co-operation is essential to the eventual success of any move designed to end the war. But I would make the point that the North Vietnamese have consistently rejected any consideration that the United Nations should concern itself with the affairs of Vietnam.
LORD BROCKWAY: Is my noble friend aware that that is why I have made the alternative suggestion that U Thant, who himself is so widely accepted, should be given the responsibility of seeking a peace conference which would include both the Government of North Vietnam and that of China?
LORD CHALFONT: My Lords, that is a constructive suggestion from my noble friend; but I think we must realise that U Thant, as Secretary-General of the United Nations, is a man closely identified with the United Nations and its organisation; and I repeat that the North Vietnamese have rejected any suggestion that the United Nations should be involved in their affairs.
LORD ROWLEY: My Lords, may I put a last supplementary question? Would my noble friend reply to Lord Brockway by reminding him that in the 1954 Geneva Conference both the Viet Cong (now North Vietnam) and the People's Republic of North China were

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represented although neither was a member of the United Nations? And will he not be aware that, although it is true that the Conference was not actually under the ægis of the United Nations, it was organised by members of the United Nations?
LORD CHALFONT: My Lords, I think my noble friend has performed that task more effectively than I could have done myself.

GOVERNMENT STATEMENTS
LORD NUGENT OF GUILDFORD: My Lords, I beg leave to ask a Question of which I have already given Private Notice. The Question is:
To ask Her Majesty's Government what effect the "work to rule" by members of the Associated Society of Locomotive Engineers and Firemen has had on the services provided by British Railways and what plans they have to minimise the hardship and inconvenience which passengers and industry will experience as a result of this dispute.
LORD BESWICK: My Lords, my noble friend Lord Shepherd will answer this Question in the form of a Statement at a convenient moment after 3.30 p.m. My noble friend Lord Shackleton will then make a Statement on the Nonproliferation of Nuclear Weapons. It may be for the convenience of the House if I inform your Lordships that it is intended to adjourn the Committee stage of the Consumer Protection Bill for one hour this evening, from 7.30 p.m. to 8.30 p.m., when a buffet dinner will be available in the Dining Room.

CONSUMER PROTECTION BILL [H.L.]
2.58 p.m.
THE PARLIAMENTARY SECRETARY, MINISTRY OF PUBLIC BUILDING AND WORKS (LORD WINTERBOTTOM): My Lords, I beg to move that the House do again resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Winter-bottom.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD MERTHYR in the Chair.]
Clause 11:
False or misleading indications as to price of goods
11.—(1) If any person offering to supply goods of any description gives, by whatever means, any false indication to the effect that the price at which the goods are offered is equal to or less than—

(a) a recommended price; or

(b) the price at which the goods or goods of the same description were previously offered by him or are being offered by others;

or is less than such a price by a specified amount, he shall, subject to the provisions of this Act, be guilty of an offence.
(3) For the purposes of this section—

(a) an indication that goods were previously offered at a higher price or at a particular price shall be taken, unless the contrary is expressed, as an indication that they were so offered for a substantial period within the preceding six months;

(b) anything likely to be taken as an indication as to a recommended price or as to the price at which goods are being or were previously offered shall be treated as such an indication; and

LORD DRUMALBYNmoved, in subsection (1), to leave out paragraph (a). The noble Lord said: In introducing this Amendment, the first to Clause 11, perhaps I may be allowed to say first of all that this is one of the most difficult clauses, and that I have a later Amendment down—so has my noble friend Lady Elliot of Harwood—dealing with the whole of the clause. But because those Amendments are dealing with the generality of the principle, and because that clause to some extent incorporates the Amendment that I am now about to

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move, it seems appropriate that we should discuss, rather paradoxically, the details first. In so doing, we can clear out of the way the details, and when we get to the Question, That the clause stand part, deal with the principle. I hope that will be agreeable to the Committee.
The purpose of this particular Amendment is to leave out the words "a recommended price; or". The effect of that is that it removes from the clause the provision as regards a false indication to the effect that the price at which the goods are offered is equal to or less than a recommended price. Apart from pharmaceutical products, comparatively few goods can be said to be normally or usually sold at a recommended price; although food products of low unit values are an exception. In fact it is not really clear what is meant by "a recommended price"—it is not defined in the Bill or anywhere else.
The nearest to a definition is that contained in Section 1(4) of the Resale Prices Act 1964, which refers to prices recommended as:
"appropriate for the resale of goods supplied or to be supplied by the supplier."
In fact, it is in some cases impossible to find any resale transactions taking place at the recommended price. There are certain branded products where there are no transactions which take place at the recommended price so far as anybody can find out. In other cases the list price, as has been found in the United States of America, is sometimes not taken, and is quoted purely in order to enable dealers to attract buyers by pretending that they are getting a bargain. Experience shows that it is not difficult for a dealer to get the person who supplies him to recommend a fictitious price. It is also found that prices are sometimes quoted, by way of comparison with list prices or recommended prices, from lists which are quite out of date. For that reason my Amendment seeks to exclude recommended prices altogether. I would only add that, if they are to be included, I would ask whether it would not have been desirable that they should be qualified by the words with which I qualified them on Second Reading, that is, "genuine and current". I beg to move.
Amendment moved—
Page 6, leave out line 30.—(Lord Drumalbyn.)
LORD WINTERBOTTOM: I am grateful to the noble Lord, Lord Drumalbyn, for his explanation of the way he proposes that we should tackle this clause, which everybody agrees is complex and at the moment unsatisfactory. I make the following proposal to the noble Lord. As my noble friend intimated during the Second Reading debate, we are very conscious that we have not achieved the most satisfactory formulation of the clause as it stands at present. It may be it would be better to consider the approach then suggested by the noble Lord, Lord Drumalbyn, of barring comparative pricing altogether, except in defined circumstances. This would be quite a drastic step, but if it is desired to cover all the great variety of misleading claims involving imprecise and often meaningless comparisons, such as the usual retail price, or the price charged for comparable goods, direct prohibition may be the only effective way. What we should now like to do is consider the alternatives again, in consultation with the noble Lord and with others, with a view to putting forward a remodelled Clause 11 in another place.
The noble Lord has attempted to remodel the clause, as has the noble Baroness, Lady Elliot of Harwood, and I can give an undertaking that we shall, in the light of to-day's discussions, try to recast this clause in a more acceptable form. This may be a somewhat lengthy piece of work. I hope your Lordships noticed that I said that we propose to table a remodelled clause in another place. We must obviously have conversations with people interested in the subject, which will take time, so I do not see that we shall be able to do anything with this clause in this House. This is not necessarily true of, for instance, Amendment No. 14 which I undertook to have another look at. I hope that we shall be able to produce an Amendment at a later stage in the passage of the Bill in this House, but this clause is so complex an affair that we shall have to give time for discussion, and so on. But as the noble Lord suggested let us take the various Amendments to the clause as part of the business of remoulding it.
The noble Lord has, in fact, drawn on the American practice to argue that we should leave out the words "a recommended price". I presume we can argue

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that in marketing matters we tend to follow the United States and that what we are afraid of is that the practice will grow in which unrealistic price lists will be issued so that retailers can say that they are selling at below the recommended price, and thus get "phoney" publicity for what they are trying to do. The noble Lord says that because this is an extremely uncommon practice it is unnecessary that we should alter this clause, but since this form of mis-statement exists, and can grow in this country, we are anxious that we should have the power to control a mis-statement of this type. There are two positive reasons for retaining this provision. In the first place, there are cases in which a false claim to be undercutting the recommended price is a serious mischief in itself and ought to be penalised; and secondly, even where a false claim to be undercutting the recommended price is also the means of giving a false indication that the prices of others are being undercut, it is going to be much easier to bring home the offence of undercutting the recommended price. I think we all realise that it is not always going to be easy to prove the offence of making a false claim to be undercutting the prices of others. For this reason, I think that Clause 11 will be seriously weakened if the reference to a recommended price were omitted.
BARONESS BURTON OF COVENTRY: With regard to the general statement of my noble friend, I should like to offer my humble congratulations to the Government for the course of action which they propose. I have never been happy about Clause 11, and while very strongly supporting the principle of what it is endeavouring to do, I said on Second Reading that I had had discussions with people who were knowledgeable in this matter and that they felt that this clause needed re-writing. I should like to congratulate my noble friend very much on what he has decided to do.
LORD SAINSBURY: If it is in order to do so, I should like to support what has been said by the noble Lord, Lord Drumalbyn, about recommended prices. As a retailer, I think that to-day there is a tremendous lot of unreality about recommended prices, when in towns there is not a single retailer selling at the recommended price. This is a Consumer
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Protection Bill, and to talk in this connection about recommended prices is, to my way of thinking, of no great aid or help to the consumer.
LORD HAWKE: I greatly welcome the statement of the Minister that he intends to withdraw this clause, because this is one clause which I thought to be rather sillier than most in a Bill which, as the noble Lord knows, I think a rather silly Bill. I am not quite sure that what the noble Lord, Lord Sainsbury, has said applies universally. It definitely applies, of course, in his line of retailing, but if I am going to buy, say, a bottle of whisky, or something of that sort, I cannot carry in my head what is the full price; and I like to be able to be told that the full price was so-and-so, and that the price asked was a reduction of so much on that figure. So I do not think there is much in that point.
When we get on to some of the rest of the phrases in the clause I think we shall have the greatest difficulty in producing a clause which is in the least workable. I can quite see the object of the exercise, but when I suggested to the female element of my entourage that this was one of the objects of the Bill they were all rather pleased, until I pointed out (which made them have serious thoughts) that it was a "spoil-sport" clause; because if there is one thing that the female sex really enjoys it is sallying off to the sales, and using knees and elbows, and possibly hatpins. They derive great pleasure from bringing back an armful of spoils which have been heavily marked down from a fictitious price, probably, to the proper price. But if the noble Lord is going to make that sort of thing completely illegal, he will be killing one of the joys of life for a great many of very harmless respectable ladies. That would be a very great pity, and, I think, a quite impracticable thing to try to do.
LORD WINTERBOTTOM: I would make only one point in reply to the noble Lord, Lord Hawke. I did not wish to withdraw the clause, but was undertaking to make certain that it was remodelled before it reached another place. I believe that for technical reasons we have to let the clause stand part, otherwise we have nothing to talk about.
LORD DRUMALBYN: I certainly welcome the noble Lord's intention of

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remodelling the clause. I am not quite so happy about his broad suggestion that comparative prices should be banned, except in defined circumstances, because the difficulty will be to define the circumstances in which they are permitted. I am not clear about the reasons why the noble Lord is rejecting this proposition. If it is because he is of the opinion that it may be permissible to give a false indication of a price in relation to a recommended price if we take out the words "recommended price". I had formed the impression that this would not be so in the light of subsection (2). I go further and say to him that if this is his objection, then I think that a much easier way of avoiding that difficulty could be found. If the noble Lord makes a specific reference to a recommended price here, I think he is asking for trouble. I will not put it higher than that just now. But if he wants to avoid a false indication in relation to recommended price, then he could do it in another way. I thought that this was already done in the clause, without a specific reference to recommended price, but if that is not so, I would ask leave to withdraw my Amendment on the supposition that this will be one of the matters that will be looked at generally in connection with the remodelling of the clause.
Amendment, by leave, withdrawn.
3.15 p.m.
LORD DRUMALBYNmoved, in subsection (1)(b), to leave out "goods or goods of the same description" and insert "same or comparable goods". The noble Lord said: This Amendment seeks to leave out the words "goods of any description" and insert "same or comparable goods". This is a good deal more than a drafting Amendment, though it has a drafting aspect. The heading of the clause is: "Misstatements other than false trade descriptions". In the very next line are the words "any description", which clearly have a different meaning from "false trade description". That itself seems a little undesirable. The description on line 26 is likely to be taken as meaning the same as the words in line 25, although I doubt whether it is intended to be so taken. But in this Bill we are not dealing with what the person who supplies the goods or the Government intend; we are deal-
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ing with the way in which the Bill is going to be construed. The same word is used in line 31 and presumably refers back to line 26, but whatever it may be I suggest that it is not appropriate. It seems to me that the word can only mean the sum of the trade descriptions—that is to say, all the physical characteristics and other things mentioned in Clause 2.
There are three kinds of price comparison. There is price comparison between two sets of goods which are identical—that is, of the same brand or quality. Secondly, there is price comparison between two sets which are not identical but similar enough to be comparable. Thirdly, there is price comparison between two sets of goods similar but not comparable. If the comparison were false in the third case it would be because the rival goods were mis-described, because to say they were comparable was, by implication, to apply a false description to them, and if I understand the Bill correctly it is equally wrong to apply a false description to somebody else's goods as to apply it to one's own. If I am right in that, this would be caught under Clause 3, even under Clause 2. The reason for putting in "same or comparable" is that there does not seem to be any reason why comparisons should not be caught by the clause if, in fact, they were false. As the clause is drafted at the moment, that would not be so, unless there was a very wide and woolly interpretation of the word "descriptions", which I cannot believe is intended in this connection. I beg to move.
Amendment moved—
Page 6, line 31, leave out from second ("the") to ("were") in line 32 and insert ("same or comparable goods").—(Lord Drumalbyn.)
LORD CAWLEY: I support my noble friend fully on this Amendment, but I have another reason for doing so. The words "goods of the same description" are taken from the Trade Marks Act 1938 and are possibly some of the most obscure words in that "fuliginous" Act, to Use a word used by Lord Justice Mackinnon about one of its sections. To define "goods of the same description" is a matter which usually takes one to the Courts of Appeal of the House of Lords. I can give your Lordships some

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examples. Shoes and shoe polish were held to be goods of a different description. Mustard and semolina were held to be goods of a different description. On the other hand, ice-cream and jelly were held to be of the same description and so were wines and spirits. Strange to relate, by a recent description rum and rum cocktails were held to be goods of a different description. I hope that my noble friend will not retain this phrase in the Bill because I am sure that lay magistrates are going to have a lot of trouble with it. Otherwise, I am glad that my noble friend is going to withdraw his clause and that it will be remodelled, and I hope that note will be taken of the point. I beg to support my noble friend.
LORD WINTERBOTTOM: I am certain that the lucid explanation of his point of view by the noble Lord, Lord Drumalbyn, will be helpful to the Parliamentary draftsmen who will have to work on this clause. I agree with him that the problem is to get the Bill drafted in such a way that it is easy to construe. It is the construction that we put on these clauses that will be important when the Bill is turned into an Act. If I may give the point of view of the Department concerned, it may be helpful to the noble Lord to understand what we are driving at. The word "description" does not frighten us unduly. It has been used as a perfectly common word equivalent to "class" or "kind", and has no technical meaning in this clause. In the opinion of the Government, the Amendment as drafted would unduly extend the scope of this clause. In subsection (1) the expression "goods of the same description" means goods that are identical in all respects. To replace it by the expression "comparable goods" would mean that a retailer would be liable to prosecution in a much wider range of cases.
There is much room for argument about when goods are comparable, as the noble Lord, Lord Cawley, has reminded us. Indeed, the effect of the Amendment might well be to bring in claims which are not really claims to reduce prices, but claims to be offering better value for money and, as we know, this is impossible to define. In the view of Her Majesty's Government, the result would be a wider, vaguer and less easily enforced provision.
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For this reason, I should be grateful to the noble Lord if he would withdraw his Amendment.
LORD HAWKE: If we are giving hints and tips to the draftsmen on how to draft the replacement clause, would they look at this phrase "or are being offered by others". I think that by trying to bring in that particular concession he is landing himself in a lot of unnecessary difficulty, because, presumably, subsection (3)(a) qualifies that the same as everything else. It means that if a trader—and I believe it is rather unethical, and is not usually done—puts up a notice saying that something is two guineas cheaper than the one sold by the chap up the road, he has not only to satisfy himself that that is so to-day, but also that it is two guineas cheaper than the one the chap up the road has been offering for a substantial period. The whole conception has become so complicated that I should be inclined to leave it out.
LORD DRUMALBYN: I find it a little difficult to understand exactly what the noble Lord, Lord Winterbottom, has in mind, because he has said two things. At one time he was saying that "description" was understood as "class"—in fact, I think at one time he said it did not have a meaning.
LORD WINTERBOTTOM: If it will help the noble Lord, I will say again what I said. "Description" is a perfectly common word equivalent to "class" or "kind" and has no technical meaning in this clause.
LORD DRUMALBYN: I see: it has no technical meaning. It is a general word like "class" or "kind".
LORD WINTERBOTTOM: Yes.
LORD DRUMALBYN: The trouble is that "class" or "kind" is much wider than the words "the same goods". If you take in the class or kind that is bound to comprise goods of different size and different in quality. "Class" is not a very narrow thing: it is wider than "same". "Class" is really considered as being more than goods absolutely identical. Yet the noble Lord said that the comparison here is intended to catch only goods that are absolutely identical. The noble Lord has now understood what the clause is intended to mean, and we

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have to consider whether it is right to have a class confined so narrowly as that. All I can say is that a great many of the abuses concern comparisons of price as between comparable goods, and if this is not to be caught, it will mean that it is left outside the legal prohibitions altogether. I think this is something that has to be carefully considered in its implications. Again, I do not think it would be right to pursue it at this stage, but, for my part, I shall certainly be pleased to accept the invitation of the Government to discuss this matter with them further. On that understanding, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
3.24 p.m.
LORD DRUMALBYNmoved, after subsection (2), to insert:
"( ) A person shall not be convicted of an offence under this section if an indication appears on any goods which he supplies or offers to supply for re-sale or any container or advertisement for those goods that the price has been reduced by a specified amount, if he has reduced his price by an amount sufficient to allow the goods to be re-sold at a price reduced by the specified amount."
The noble Lord said: This is an attempt to deal with what some people regard as an abuse that is certainly widespread; that is, the technique of marking goods "3d. off", or anything of that sort. People are inclined to say that it tells them nothing, and they ask, "Off what?". I have always felt that a moment's thought would tell them the answer. If we may just occupy a moment or so, let us see what it is.
It seems to me that "3d. off" is an indication put on by the manufacturer, and not by the retailer. Furthermore, as everybody knows, the manufacturer can no longer dictate to the retailer the price at which he must sell. The words, therefore, can mean only that the manufacturer is claiming that he has reduced his price by enough to make it possible for the retailer to reduce his price by 3d. If that claim is true, then the manufacturer ought not, in my view, to be taken to court and convicted simply because the retailer may have pocketed the difference—not that that is likely to happen very often. But the retailer is perfectly entitled to vary his price, and could, for example, offer the goods for more than the 3d. reduction one day and then return to the 3d. reduction
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the next. Every shopper knows that, or ought to know it, by now. All the manufacturer is doing is to say what he has done with his price, as a rule for a limited period, and sometimes in a limited area.
At a time when it is important that prices should not rise in the shops, and when manufacturers are expected to cut their prices if they can, to me it makes sense to allow manufacturers to continue this practice, because it pretty well forces retailers to pass on to their customers any reductions made by manufacturers. That being so, it seems to me to be against the public interest that manufacturers should be forced to discontinue this practice for fear of falling foul of this clause. Of course, if the retailer did pocket the difference, and did not reduce his price, he might well be prosecuted. If he does not choose to run the risk he has his own remedy, in that he need not accept goods marked in this way. But at least the manufacturer ought not to be prosecuted if he has played his part and done enough to justify the claim. The point in moving this Amendment is to find out what is the Government's attitude and their intention by this Bill in regard to what is a widespread and, I would almost say, established practice. I beg to move.
Amendment moved—
Page 6, line 40, at end insert the said subsection.—(Lord Drumalbyn.)
LORD STRABOLGI: I should like to support the noble Lord, Lord Drumalbyn, on this Amendment for the reasons that he has given, and also for an additional reason: that this method of reducing prices, to which the noble Lord referred as "3d. off", is a useful form of manufacturers' promotion in introducing customers to new lines, and is used extensively and quite openly in respect of fast-moving consumer goods. As the noble Lord has said, there is grave danger that the clause as at present drawn may put such promotions as I have indicated at considerable risk. Following the noble Lord, I, too, shall be interested to know what my noble friend has to say, and what form of interpretation he puts on to this clause and the implications which the noble Lord, Lord Drumalbyn, and I have raised.
LORD WINTERBOTTOM: My noble friend has asked me what interpretation I put upon this clause, and I will say at once that it happens to be completely the opposite interpretation put upon it by the noble Lord, Lord Drumalbyn. As I see the situation, no retailer would display in his shop a packet with "3d. off" printed on the packet in large letters unless it was part of a promotion campaign agreed between himself and the manufacturer.
It is the view of the Government that the noble Lord's view is based on a misconception. Take the case of a manufacturer of soap powder who makes up his product in the packets in which they will ultimately reach the consumer, and marks those packets "3d. off". We believe that when the manufacturer sells such packets to the retailer he is not indicating that his price to the retailer is 3d. less than that at which he previously supplied him with soap powder—
LORD DRUMALBYN: I did not say that. I said that he cut the price sufficiently to enable the retailer to take 3d. off.
LORD WINTERBOTTOM: I am saying the contrary. He is saying in this statement that he is not indicating that he has reduced his price to the retailer.
LORD DRUMALBYN: Not at all.
LORD WINTERBOTTOM: Not at all. It is the same as before, but it is part of the promotion campaign. The retailer is taking a lower margin than before. Therefore, there is no question, in those circumstances, of the manufacturer's committing an offence under Clause 11. The same is true where the manufacturer advertises a price reduction and it is clear that the price referred to is the price to the consumer and not the price to the retailer. In so far, therefore, as the Amendment seeks to protect the manufacturer or wholesaler in such cases, it is unnecessary. It is for this reason that I ask your Lordships to reject this Amendment.
LORD HAWKE: I was glad to hear the noble Lord, Lord Winterbottom, disagree with the interpretation put on this by my noble friend Lord Drumalbyn, because I could not make head or tail
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of the clause. As expounded by the Minister it certainly makes slightly more sense to me than it did when explained from this side. Could we have a distinguished neutral on the subject? Could the noble Lord, Lord Sainsbury, say how he interpretes it, because I imagine that he has spent much of his waking hours on it.
LORD DRUMALBYN: I am grateful to the noble Lord. I think his particular interpretation might well be something that happens occasionally. My information is that it is not something that happens normally. This illustrates how very wide is the spectrum we have to cover in cases of this kind. I am afraid the upshot of this is that very little guidance is given as to the legality or otherwise of this sort of practice. All the noble Lord has said, in effect, if I understood him correctly, is that it will depend on the circumstances; and the circumstances he indicated, he said, would be legal. He did not pronounce on the circumstances I indicated. But again I think we have done enough in airing this problem to enable the Government to continue studying it. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD DRUMALBYNmoved, in subsection (3)(a), to leave out "the contrary" and insert "a different meaning". The noble Lord said: This Amendment is very nearly a drafting Amendment. The words that appear in the context are "the contrary", and the clause at present states that an indication that goods are being offered at a higher price by others shall be taken, unless the contrary is expressed, as an indication that they are being so offered by others carrying on a business which is comparable as respects prices at which goods are offered in the course thereof. It seems that what is intended is that it will be perfectly lawful for the person offering the goods to attach to the price comparison any different meaning from the meaning that is implied here; and, as that appears to be the intention, it seems to us that "a different meaning" would be the right words to use, rather than "the contrary". There is no contrary of "a substantial period within the preceding six months". There might be a contradiction, but not a contrary. I think the present wording is wrong in

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logic, and in the English language, and I think my words are simpler. I beg to move.
Amendment moved—
Page 6, line 44, leave out ("the contrary") and insert ("a different meaning").—(Lord Drumalbyn.)
LORD WINTERBOTTOM: Her Majesty's Government in fact agree that the noble Lord's wording is somewhat superior to their own, though equally complex. It is not certain that the Amendment would alter significantly the practical effect of subsection (3)(a). Nevertheless, if the noble Lord is willing to withdraw it, we will certainly consider his Amendment in the context of our proposed further examination of the clause as a whole.
LORD DRUMALBYN: I am much obliged to the noble Lord. On that understanding, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD DRUMALBYNmoved, in subsection (3)(a), after "period" to insert "appropriate to the goods". The noble Lord said: This Amendment deals purely with the interpretation of the word "substantial". Some misgiving has been expressed that the courts will tend to give a rather fixed meaning to the word "substantial" in relation to the period of six months. I think it is intended by the Government that it should be a relative and not an absolute term. What is a substantial period in relation to some kinds of goods may not be substantial in relation to others. It is not the same, for example, for cabbages as for motor cars; not the same for ladies' ready-made fashion goods as for gentlemen's bespoke suits. It seems desirable, therefore, that the wording of the clause should draw the attention of the courts to the relative character of the word "substantial", and that is the purpose of this Amendment. I beg to move.
Amendment moved—
Page 6, line 45, after ("period") insert ("appropriate to the goods").—(Lord Drumalbyn.)
LORD HAWKE: I am not sure that this is the essence of the "spoil-sportness" of this particular clause, because it means that if the goods have had to be at a certain place for a "substantial period",
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in the preceding six or eight months, or some period as defined by my noble friend, they will have had to be there in fact. As your Lordships are well aware, most goods in sales, in shops that have sales, have never been there before. In fact, I have often made the department manager of a certain store blush when I have walked into his department in the middle of a sale and asked him, "Are there any goods here not brought in specially for this sale?". He has generally had to confess that there were not; or at any rate that there were remarkably few. Therefore, this is the clause which, so far as I can see, is going to "kill" the idea of having a sale at all.
LORD WINTERBOTTOM: When I listen to the noble Lord, Lord Hawke, I have the greatest possible sympathy with him. When I tried to study my share of this Bill, I felt that much the best thing to do would be to pass a single clause which enforced all retail establishments to put over their doors a notice, "Let the buyer beware", and leave it at that; and I think we should get just as good results. Nevertheless, we must do our duty.
In reply to the noble Lord, Lord Drumalbyn, I think there is something in what he says. Clause 11(3)(a) provides that an indication that goods were previously offered at a higher price, or at a particular price, shall be taken as an indication that they were offered at that higher or particular price for a substantial period within the preceding six months. I agree, of course, that what amounts to a "substantial period" must be affected by the nature of the goods concerned—the noble Lord referred to the difference between cabbages and cars—and this is obviously relevant. I suggest, however, that the Amendment is unnecessary. What amounts to a "substantial period" in this context must depend on al] the relevant factors, of which the nature of the goods is only one. It is undesirable and unnecessary to specify just one of the factors to be taken into account—this limits things unnecessarily—and for this reason I ask your Lordships to reject the Amendment.
BARONESS BURTON OF COVENTRY: I wish to comment on what the noble Lord, Lord Hawke, said. I do not dissent in general from his remarks about

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sales, but I think it would be good to place on the Record that, certainly in London, and I imagine in some provincial cities, there are stores which take a contrary and very reputable view. I should like to pay tribute to the Retail Trading Standards Association, which has asked its members, when they hold sales, to put on their price tickets, "Member of the Retail Trading Standards Association", which carries with it a guarantee that the price crossed out is the real price of the goods sold in that store prior to the sale, and that the cheaper price is a real sale price. I can think of one large organisation in this connection—there may be others. I can remember seeing in the stores of the John Lewis Partnership, when the sales were on last autumn, cards in the various departments which explained to customers how goods for sales were obtained. They explained that they were goods held in the stores which, for some reason or other, had not been sold. Or perhaps it was that the buyer wanted to get a new range. It explained the whole system of reductions. While I am not dissenting from the fact that, I think, there are many fraudulent practices in sales, I believe that some reputable stores do a very good job in this respect, and I think we should pay a tribute to them.
LORD DRUMALBYN: I agree with the tribute the noble Baroness has just paid to the majority of stores. So far as what my noble friend Lord Hawke has stated is concerned, of course if the goods are brought in particularly for the occasion, then the question of the comparison with the price at which those goods were sold previously can scarcely arise. That is not what we are talking about on this particular Amendment. In view of what the noble Lord has said, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
3.40 p.m.
LORD DRUMALBYNmoved, to leave out Clause 11 and insert the following new clause:
"11.—(1) If any person offering to supply goods of any description gives, by whatever means, any false indication, direct or indirect, of the price at which he was previously supplying the goods or at which any other person is offering the same or comparable goods he
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shall, subject to the provisions of this Act, be guilty of an offence.
(2) For the purposes of this section—

(a) any such indication that goods were previously offered at a higher price shall be taken, unless a different meaning is expressed, as an indication that they were so offered for a substantial period within the preceding six months;

(b) a person advertising goods as available for supply shall be taken as offering to supply them;

(c) in considering whether or not the period is substantial in relation to the goods, regard shall be had to their nature."

The noble Lord said: We now come to consider the clause as a whole, and I am afraid at this stage I must trouble your Lordships with a wider consideration of the clause. I think it is important to recognise, and it is of course emphasised by the heading, that it differs in character from the previous clauses. We have been dealing with the attributes of goods, characteristics which are ascertainable as a matter of analysis or historical inquiry, and what is said or implied about them. Goods are offered for sale by description or by brand name, which is a shorthand way of describing them. It is assumed that all cartons of a particular pack of washing powder have identical characteristics. It is assumed that all cars of a particular type are the same, except possibly for colour—or as nearly the same as the limits of man-made machinery and human error will permit.
But price varies from time to time, from town to town, and from shop to shop—and even from transaction to transaction. Indeed, this is what the Resale Prices Act sought to achieve. The price marked on the goods is the price at which they are being offered for sale. It is always open to the purchaser to make a counter-offer. Of course, if one made an offer at a self-service store one would probably get a dusty answer, unless the goods were obviously damaged; and in the same way if one wrote and offered a lower price for goods that were advertised in a bargain space advertisement one might wait for ever for a reply. But the fact remains that the price tag is an offer to sell at a price not higher than that marked, and it is no argument to say that most consumers will either buy at that price or go elsewhere. Of course they will; but that does not alter the nature of price, which must be agreed, even if under duress

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on the part either of the seller or of the buyer.
It is perfectly legitimate for the supplier to tell the public that his price is lower than it was, or is lower than the price at which the public can buy elsewhere, and it was on this point that I was slightly concerned with what the noble Lord said about banning comparative prices except in certain defined cases. It is, after all, in the interests of the public to be told when they can get a good "buy". The difficulty is that a statement made at nine o'clock in the morning may be falsified at five minutes past nine when the shop down the street brings its price into line. What happens if a weights and measures inspector comes along at ten minutes past nine? It so often happens that the price from which an article was originally reduced, and which is used to compare the price at which it is now being offered with the price at which it is sold elsewhere by other persons, is reduced also in the other shop, and so a false statement is being made, the statement having been falsified by the fact of the shop next door altering its price.
The clause as drafted implicitly admits the difficulty. What is meant by the price at which goods "are being offered by others"? Even if the goods are identical—a particular brand of goods of the same vintage, so to speak—how many others must there be? Does the plural include the singular? Are two others enough? All this is vital to the interpretation of the clause. I suspect that the Board of Trade would have liked the clause to refer to the normal or usual price. But how do you establish the normal or usual price—even in a particular locality? The object of the Resale Prices Act was to ensure that there would be no normal price. In a competitive market, prices do, and should, vary from day to day, and from hour to hour.
It might be possible for the Board of Trade to define by order what is meant by a normal or usual price under Clause 7, so that the public would know that the "normal" or "usual" price meant the price at which the supplier himself usually sells, and nothing else. Is not what is said about price an "expression used in relation to goods"? Perhaps the Bill should make clear that this
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applies to prices but, if it did so, it could relate only to identical goods and not to similar or comparable goods, although I recognise that the Government do not intend that it should relate to comparable goods.
I do not want to give the impression hat I am in any way opposed to steps which will protect the consumer from being misled as to price. Far from it. Nor do I differ from organisations which seek to protect traders from other traders who try to obtain an unfair advantage by misrepresenting their prices in relation to those charged by others. What I want is that any legislation should be both rational and enforceable, and I have serious doubts whether the clause as it now stands is either. At present the voluntary control requires that price claims, like all other claims, should be capable of substantiation. Admittedly, the voluntary system does not work perfectly, any more than any statutory system does or could, but it is gradually becoming more effective. Its strength lies in the fact that it has the support of decent traders. I think the noble Lord and I are at one in seeing the voluntary system and statutory controls not as alternatives but as complementary to each other.
In the matter of price—and I am here talking only of price and value—there is a serious risk in the field of advertising that if the law proved unenforceable the consumer would be worse off than he is now, because there would be an opportunity for dishonest traders (and there are some, though they are proportionately few) and even for honest traders who had made an honest error of judgment, to refuse to comply with the rules of the voluntary system and the decisions of the Advertising Standards Authority as to their application, and to say, "I am doing nothing against the law. If you disagree, prosecute me". Therefore, if the law proved unenforceable—and there is a strong body of opinion which says that as at present drafted Clause 11 would prove unenforceable—the last case would be worse than the first. The voluntary system would also be weakened and dishonesty would increase. I think that is the great difficulty of this clause.
To summarise, I hope the Government will look at this clause again and will consider these points. I think there are good grounds for believing that the clause

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drafted as loosely as it now is would seldom prove enforceable. It could be argued that it would be better to leave it out altogether. That is not my view. But I do submit that it should be confined to misstatements of ascertainable fact and not extended to matters of opinion.
To some extent this is a matter of degree. If the clause is to cover comparable goods, it may be difficult to say that a price comparison is false if the differences are small. On the other hand, there may be no doubt at all if the trader states that his price is 25 per cent. below that at which comparable goods can be obtained elsewhere. There is an element of opinion here, but it lies within the range of trade description, not price. As the Bill is drafted, a person commits an offence if he applies a false trade description to any goods, not merely to goods which he himself is supplying or offering to supply. The range of prices for goods of different quality can be ascertained as a fact, though not easily; but to ascertain the normal or usual price would require a full survey. Opinion, then, may enter into a comparison of quality, but on price I hope that the Government will confine the clause to what can be ascertained as facts. It will be difficult enough even then.
Finally, is the clause intended to catch statements as to value or worth? I ask this because if it does not, its effect will undoubtedly be that less scrupulous traders will cease to compare the prices of their goods with the prices charged elsewhere and will rely on statements such as "Worth £50; our price £30". It is difficult to see that if anyone were prosecuted for such a statement under Clause 11 (3)(b) he could possibly be convicted. But doubts have been expressed. Therefore, I hope the noble Lord will give an answer to that particular question and will make clear the intention of the Government. I beg to move.
Amendment moved—
Leave out Clause 11 and insert the said new clause.—(Lord Drumalbyn.)
LORD WINTERBOTTOM: I think the value of the noble Lord's speech on his Amendment is his statement of his view of the problems of drafting such a clause and his approach to it. May I
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get one point out of the way before replying to that Amendment? It is on this question of value and worth: statements like "Value £4 for 35s."; or "Worth £5". As of now, we do not believe we can catch this mis-statement. As of now, "value" and "worth" used in this way are outside the scope of the Bill, as drafted. If the noble Lord can think of any way of overcoming this difficulty we shall, I know, be grateful; but it is difficult. I agree with him completely that legislation of this sort must be rational and enforceable, and that it should be based only on cases where there has been a mis-statement of an ascertainable fact. I would say that these are very important principles which should lie behind the drafting of this or any similar clause.
One point made by the noble Lord which struck me as being extremely important was the point about a claim which may be correct at 9 o'clock in the morning but may be falsified, and therefore false, by 9.15. If a statement is made saying, "10 per cent. cheaper than any shop in this street", this can, of course, be corrected very quickly by the neighbouring shopkeepers. It is obviously a state of affairs for which the actual shopkeeper cannot be blamed. I think I have stated Her Majesty's Government's attitude to this clause. We are asking for the help of this House to study and comment upon it, and we shall be turning to the noble Lord opposite and other interested parties in the light of to-day's discussion to provide a new clause which we hope will be a better clause by the time the Bill reaches another place.
House resumed.

RAIL SERVICES: THE A.S.L.E.F. DISPUTE
3.53 p.m.
THE MINISTER OF STATE FOR COMMONWEALTH AFFAIRS (LORD SHEPHERD): My Lords, with permission I will now answer the Private Notice Question that was put earlier this afternoon in terms of the ASLEF work-to-rule.
It is too early to make a full assessment. The situation this morning was that over 100 passenger trains were cancelled on Southern Region, and there was some late running. In other regions the effect has not so far become serious.

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In London and other conurbations a series of special arrangements was made in advance to facilitate the inflow and outflow of rush-hour car traffic such as freeways for tidal flows. Extra car parking space was made available and many parking meter restrictions were relaxed. Any necessary relaxations of licensing and other restrictions on freight and passenger traffic by road will be introduced as demanded by the situation as it develops.
LORD NUGENT OF GUILDFORD: My Lords, may I thank the noble Lord for his statement about the ASLEF work-to-rule. Whilst I am sorry to hear of the dislocation in the Southern Region this morning, may I welcome the news that most ASLEF members are evidently continuing to work and serve the public, and ignoring the unwise advice of their union. Is the noble Lord aware that there is a growing awareness that continuous concessions by British Railways management in the face of union pressures eventually lead to worsening service and higher cost; and even if greater hardship and inconvenience are temporarily involved, the Government should avoid the line taken in earlier disputes and firmly support the management in taking a stand this time?
There are two other small points that I should like to put. Would the noble Lord tell us what the traffic conditions were in London to-day in the light of the emergency arrangements? Secondly, have the Government asked employers for any special arrangements for the staggering of hours in order to ease peak-time movements? Finally, would the noble Lord tell us whether he can give any prediction as to the future course of the dispute?
LORD AMULREE: My Lords, I, too, should like to thank the noble Lord for the statement he has just made. There is one minor question that I would put. Are the Government considering urging some kind of relaxation of the "no-standing" rule in buses?
LORD SHEPHERD: My Lords, I am not quite sure whether the earlier remarks of the noble Lord, Lord Nugent of Guildford, were meant to be helpful. This is one of those difficult industries, in the sense that it is contracting and there has naturally been concern amongst the workers. Efforts have been made in
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the past by Governments—Governments before the present Government—to find ways of seeking a solution. But at least I agree with the noble Lord to this extent; that it is argued that the present dispute is unnecessary, and the sooner it is over the better, not only in the interests of the commuters but in the interests of the country as a whole.
In regard to traffic conditions, I understand that in London the traffic flow was no greater than on a normal Monday. This is perhaps due to the increased car-parking facilities and the very strict rule about off-loading of vehicles. In regard to what employers can do in London, clearly if we could get an increase in the staggering of working hours, particularly in terms of the evening, so taking the pressure off the railways at peak period, this would be of very great assistance.
The noble Lord, Lord Amulree, asked me about the "no-standing" rule on buses. I am sorry that is a piece of information I did not seek, but I will find out what I can on it. As to predictions, I only hope that the workers who are involved will see that a solution can be obtained fairly and honourably across the table and that there is no need to hold the country to ransom.
LORD RATHCAVAN: My Lords, can the noble Lords say whether these drivers who are working to rule are entitled to receive full wages all the time?
LORD SHEPHERD: My Lords, the problems involved, as I understand it, arise basically at the moment from exercising what are called rest days. It is interesting to note that 20 to 25 per cent. of our present service is carried out by drivers who work on their rest days. A driver who refuses to take out a freight train, and is sent home for the shift, clearly does not receive the pay for that shift. He will have an opportunity of reporting to-morrow, and if he then wishes to take the train out he may so do; but there is no question of his receiving pay for duty not carried out.
VISCOUNT MASSEREENE AND FERRARD: My Lords, I came up from East Kent this morning and the train was completely on time, but almost empty.

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I am wondering whether perhaps the papers, in all good faith, have rather caused unnecessary panic over this matter, because, so far as I could ascertain, the Ashford—London line trains are apparently running on schedule.
LORD SHEPHERD: My Lords, I am rather like the noble Viscount. I came up by car at 6 o'clock this morning in order to miss the rush hour, and found I could get across London Bridge a good deal easier than on any day last week. The noble Viscount may be right. While there may have been some wild speculation, I think one must not assume that what have been relatively easy conditions will be the same later in the week when the full effects of the work-to-rule are felt.
LORD ROBERTSON OF OAKRIDGE: My Lords, in view of the Minister's statement that the railway industry is a difficult industry, and indeed one that is riddled by industrial disputes at the present time, can he assure us that something will be done soon to end the present state of uncertainty and disarray that surrounds leadership in the industry?
LORD SHEPHERD: My Lords, I would think that that goes well beyond the Question that I was asked earlier this afternoon.
LORD NUGENT OF GUILDFORD: My Lords, I am grateful to the noble Lord for his replies to my questions. Is he aware that the first part of my question was entirely intended to be helpful, and that of course I am aware of the complexities of a shrinking industry? Is he also aware that it really is in the interests not only of the national economy, but also of the majority of; the workers themselves, if management can stand firm and be backed by the Government in doing so?
LORD SHEPHERD: My Lords, it has been this Government's intention, and particularly that of my right honourable friend the Minister of Labour, who is a railway man, to see that the railways are put on to a economic basis; and the sooner that can be done the sooner we can get the true standard of labour which this industry so desperately requires.

NUCLEAR WEAPONS TREATY: INSPECTION SAFEGUARDS
4.2 p.m.
THE MINISTER WITHOUT PORTFOLIO (LORD SHACKLETON): My Lords, with permission I should like to repeat a Statement which my right honourable friend the Minister of State For Foreign Affairs is making in another place on the subject of non-proliferation of nuclear weapons.
As the House will know, a key issue in the negotiations at present taking place in Geneva to secure a non-proliferation treaty has been the safeguards to be applied in order to ensure that there is no diversion by the non-nuclear weapon signatories of the treaty of materials from their civil nuclear programmes to nuclear weapon purposes.
In order to assist these negotiations Her Majesty's Government have decided that, at such time as international safeguards are put into effect in the non-nuclear weapon States in implementation of the provisions of a treaty, they will be prepared to offer an opportunity for the application of similar safeguards in the United Kingdom subject to exclusions for national security reasons only. Her Majesty's Government welcome the similar decision announced by President Johnson on behalf of the United States.
LORD ST. OSWALD: My Lords, while thanking the noble Lord for repeating the Statement of his right honourable friend, I should like to congratulate him on his mastery of Sanskrit in which language his Statement apparently is couched. His right honourable friend in another place might as well have been speaking in his native Welsh. What I did understand enables me to be happy for once at the guarded phraseology of the terms of the undertaking at this stage. Her Majesty's Government, we understand,
"will be prepared to offer an opportunity for the application of similar safeguards in the United Kingdom subject to exclusions for national security reasons only."
Most of the implied italics are mine, although I noticed one that I shared with the noble Lord. But none of them will be repeated in Hansard. But since "the key issue", as the noble Lord called it, has been the safeguards, I would ask: what

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sort of safeguards have the Government in mind? I think that is the only question I should like to put to him at this point.
LORD SHACKLETON: My Lords, I am sorry, but if the noble Lord would like it in Arabic I will supply it to him next time. I should have thought that because of the noble Lord's interest in national security the position would be clear. The safeguards relate to the diversion of particular materials to the making of weapons, and this statement relates particularly to fissile materials. These are the international safeguards. But clearly since we ourselves are a nuclear Power involved in making nuclear weapons, it is also necessary for us to reserve our position with regard to that nuclear weapon-making. The safeguards are to ensure that products which might be turned into nuclear weapons in States which sign these treaties do not go into that direction. Clearly, this imposes on them somewhat onerous obligations of inspection, and the United States and the United Kingdom have agreed that we are prepared to make our own facilities available for inspections of this sort.
LORD OGMORE: My Lords, while thanking the noble Lord for making this Statement, may I ask him how rigorous it is intended the inspection will be under the treaty, and who are the type of people who are to do the inspecting? Will they be, for instance, in this country, nationals of this country, or may we expect Russians to come here? Or who are likely to be the inspectors? Secondly, if this reservation is in the agreement on the part both of the United States and of the United Kingdom, how will the inspector be able to inspect if at any time one of these Powers tells him that a particular inspection is excluded because it is against the national interest of the party whose plants are to be inspected?
LORD SHACKLETON: My Lords, the noble Lord is raising one of the fundamental difficulties that arise in relation to the Non-Proliferation Treaty, the difficulty of the position of those who are nuclear Powers, and have nuclear weapons, and those who are non-nuclear Powers and accept the limitations of the Non-Proliferation Treaty. It is hoped, none the less, that it will be regarded as in the international interest, and indeed
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in the interests of the countries concerned themselves, to accept that general proliferation would be a dangerous thing for the world and that they will accept that limitation.
As for the safeguards, it is a little early for me to attempt to describe them. Obviously, they involve a most technical and detailed form of monitoring. It is likely that this will be carried out under the auspices of the International Atomic Energy Agency in Vienna. On the other hand, if we join Euratom, Euratom also has a system of safeguards, and that might be appropriate. But, of course, the Treaty is a little way off at the moment, I am afraid. This Statement is merely an indication of willingness on our part o accept the obligations, and indeed the disadvantages, because such inspection can be an expensive business.
LORD CARRINGTON: My Lords, I wonder whether I might ask the noble Lord a question. Perhaps I should have understood this, but it is a complicated subject. Does the exclusion for national security reasons apply only to the United States and to this country, or does it apply also to other countries who are participants in the Treaty?
LORD SHACKLETON: My Lords, this particular undertaking that I gave referred to the United Kingdom; and it relates, of course, to the production of nuclear weapons. The undertaking given so far by nuclear Powers has been given only by the United States and the United Kingdom. As I understand it, it is not relevant to other Powers, since they themselves, I presume, under the Non-Proliferation Treaty, will not be making nuclear weapons at all. But I think the noble Lord is on an interesting point. I hope that I have construed correctly for him the answer I have. But I should be happy to pursue that further.
LORD CARRINGTON: My Lords, I wonder whether I may pursue the matter to just this point? I quite understand what the Gvernment are trying to do, which is to put the nuclear Powers on the same footing as the non-nuclear Powers. But surely if you exclude from the operation of the safeguards the only reason whereby anybody would want to be excluded, while you may be trying to do some good, in practice you are not doing very much.
LORD SHACKLETON: My Lords, I take the noble Lord's point. We are back on the fundamental difficulties of all forms of disarmament negotiations. But, as I understand it, the particular exclusions to which I was referring were the exclusions which related to our own nuclear weapon system and, therefore, would not be relevant in the case of other countries which will be fully exposed so far as their nuclear activities are concerned. Their production and use of fissile material, for example, will be under continuous international check. But, clearly, so far as the United Kingdom is concerned, so far as we may be involved in producing fissile material for weapons, there is clearly a cut-off point where this inspection may no longer have effect.
LORD ROWLEY: My Lords, may I ask whether there is any reason to expect that the Soviet Government will give a similar undertaking, or is this matter tied up with the discussions which are taking place on Article 3 of the Treaty in regard to general inspection? Is it not a fact that this undertaking is relevant to the Russian position?
LORD SHACKLETON: Yes, it is, my Lords. I am afraid that I cannot make any statement on the Russian position. They may decide that it is not necessary for them. I should say—I do not want to mislead the House—that this is no protection against the making of nuclear weapons by a nuclear Power like the United States, ourselves, or Russia. I should have thought (again I would speak subject to ultimate correction) that the burden of the matter is the fact that commercial information may be derived. Where a non-nuclear Power is concerned, the problem is not related quite so much to national security. I should also add that every country has the right to refuse an inspector nominated by the Agency, and we should not be obliged to accept, say, an inspector from the Soviet Union.
LORD SOMERS: My Lords, I do not think that the noble Lord has yet told the House who will do the actual inspecting.
LORD SHACKLETON: My Lords, I thought that I did tell the House.
LORD SOMERS: I am sorry.

CONSUMER PROTECTION BILL [H.L.]
4.13 p.m.
Committee stage resumed.
LORD HAWKE: My noble friend's amended clause, Amendment 32, is obviously much better than the original, but to my mind it has one fatal drawback in that it will make a great number of sales impossible. That is why I call this new clause the "spoilsport" clause. The noble Baroness, Lady Burton of Coventry, is correct when she says that there are many genuine sales, particularly of women's wear which goes out of fashion and has to be got rid of. But when one comes to men's wear, and so on, the vast bulk of the goods in sales has been specially bought and specially manufactured to sell at a particular price in that sale. The reason why the goods go like "hot cakes" is because a—shall we say?—fictitious previous price is put on them. They are perfectly good value for the money paid for them, but the consumer flocks into the shop and scrambles to buy them because he thinks they have been marked down. I am inclined to think that that sort of sale will become impossible under a clause of this nature, and with it the standby orders for the mills which presumably make this sort of stuff in between fulfilling their more important orders. For that reason, I do not like this new clause.
LORD DRUMALBYN: I am grateful to the noble Lord, Lord Winter-bottom, for what he has said about this Amendment, but there were one or two points which he did not specifically answer. May I put them to him again? Can he tell us whether Clause 7 is intended to apply to price? Clause 7 says:
"Where it appears to the Board of Trade … that any expressions used in relation to the goods should be understood as having definite meanings, the Board may assign such meanings …"
and orders can be made to that effect. I was asking whether, as drafted, what is said about price is an expression in relation to the goods—it would certainly seem that in ordinary use of language it may be, although in strict drafting it may not be. If it is not intended to cover price, perhaps the noble Lord would

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have a look at this point, as it may prove to be a more convenient way of dealing with some matters of price.
My Amendment excluded subsection (2) of the present clause as drafted. I did this for two reasons. First, because I felt that this was a very small matter to put in conjunction with the whole difficult question of comparative prices and that comparative prices were sufficiently important to have a clause to themselves; and secondly, that I thought this was a matter which again could perhaps be conveniently dealt with in Clause 7. For example, presumably one of the things it is intended to cover is the practice of some barrowboys of put-, ting "½" in small letters and "lb." in big letters, which is obviously likely to be taken as an indication that the goods are being offered at a price less than that at which they are in fact being offered. But I realise that this also affects credit terms, and so on. Part of the object of this re-draft was to enable the question of comparative prices to be dealt with by themselves in one clause.
I do not share my noble friend's views on the "spoilsport" nature of this new clause. All it is intended to do is to prevent the consumer being misled by false statements. Surely that is a desirable object. There is nothing to prevent stores carrying out these sales, and many of them do. In fact, the Retail Standards Association lays down rules for this. When they offer "seconds" specially for sale, they have to be described as such, although you are at liberty to mark also what the goods in their perfect state would cost, so long as you say that they are not in their perfect state and make a comparison on that basis.
LORD HAWKE: I am not talking about "seconds", but orders which have been put with the mills for goods, specially made, of good value to sell at a special retail price.
LORD MITCHISON: Before this Amendment is withdrawn, may I ask one question?
LORD DRUMALBYN: I understood that my noble friend was interrupting me, and perhaps I may complete the point. I quite see the noble Lord's point. The only question is whether they ought to be allowed to make a comparison with a perfectly fictitious price. As
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he rightly said, the goods are made to be sold at a certain price, and it seems wrong that it should be implied that they have been sold or were being sold elsewhere at another price, if that is not so.
LORD MITCHISON: May I ask a question, both of the noble Lord opposite and also of the Government? I may have missed something in the course of the discussion, but why does this Amendment omit any reference to a recommended price? I should have thought that this was a question of fact. There is no great difficulty in finding out what is a recommended price, so perhaps a definition would be useful.
LORD DRUMALBYN: The short answer to the noble Lord's question is that this was the subject of a discussion on the first Amendment on the Order Paper, to leave out line 30.
LORD GRIMSTON OF WESTBURY: May I revert again to the point which my noble friend raised, because I am not quite happy about it? I think none of us is naïve enough to deny that for the summer and winter sales a great many of the goods are specially manufactured. The sales attract people, because they are supposed to be sales of some goods which were on sale earlier at a higher price. However, I have often heard it said, "We are going to the sales, but of course we know that half the stuff there has been specially manufactured for the sales." But the sales have their point. They keep the mills occupied at periods when otherwise they might not be fully occupied. There does not seem to be any harm so far as the public are concerned. Is it the intention of the Government that that sort of thing should definitely be stopped?
BARONESS BURTON OF COVENTRY: May I say that I find the attitude of the two noble Lords opposite quite incredible? They are condoning, and indeed supporting, a dishonest trade description. They are saying, in effect, that customers who go into shops and see perhaps "£6" crossed out and "£3" pet in are going to be deprived of something very valuable to them if that sort of labelling is not to be allowed to continue. I do not know whether the male sex is much weaker than the female sex, but listening to the noble Lord, Lord Hawke, one would imagine that this is

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the case, because we have heard about this practice being particularly valuable in men's wear and that the men are going to miss it if it does not continue.
What I find quite amazing is the argument that the mills which produce this type of merchandise are going to be deprived of their work if they are not allowed to make it. But, as I understand it, nobody is suggesting that they should not be allowed to make it. We are merely putting forward—at least, I think the noble Lord, Lord Drumalbyn, is patting forward when he is not interrupted so frequently—the proposal that goods shall be sold at a correct price. I really cannot see any argument, and I do not imagine any noble Lord in this House can see any argument, for a contention that the only way, and the best way, to sell goods is to mark them at a higher price, to cross it out and then to put on a lower price; and I hope that the Minister, when he comes to reply, will refute any such suggestion.
LORD MITCHISON: Before my noble friend replies, may I explain that though, no doubt, the question of leaving out a recommended price is being discussed, it is left out by this Amendment, and I can find no change in the Bill which has made it unnecessary. It seems to me quite wrong that it should be left out, and if this Amendment were to go to the vote, apart from any other consideration, I should vote against it on the ground that it did omit this. Having said that in fairly cordial support of the Government, I should like them to put in a definition. I think it is needed. I do not think "recommended price" would always be as clear as that. There may be a definition in the Bill, but I cannot see it.
THE MINISTER OF STATE, BOARD OF TRADE (LORD BROWN): I rose to deal with this matter, because it seemed to me that the time had come when it was necessary for me, on behalf of the Board of Trade, to make some sort of general statement of policy, for we are virtually debating the whole of the clause on the Amendments so far taken. The noble Lord, Lord Grimston of Westbury, has asked whether it is our intention to introduce the sort of legislation which would result in sales being stopped, and the answer
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is, "No, of course not". I do not necessarily see why sales with the dishonest connotation that many of them have at the moment should go on in the same form as now, but there is no reason why a sale should not be perfectly honest if goods are brought in at a lower price for that purpose, without being dishonest about it.
The noble Lord, Lord Drumalbyn, asked specifically whether Clause 7 was making any reference to price That is not the intention of the Government. I hope the clause is already clear on that point. If it is not, we shall have to look at it again. The noble Lord, Lord Hawke, referred with dismay to the prospect of mills being short of orders at a vital time, owing to the abolition of sales. As I have said, there is no need to abolish this special period of the year when goods are sold at lower prices than at others, merely because we are having a debate about dishonest practices on pricing.
The noble Lord, Lord Mitchison, drew attention to the omission of "recommended price". I think it is clear, and I am so informed, that the whole absoluteness of recommended prices is rapidly disappearing. A few years ago it might well have been something to which one could attach oneself for comparative purposes. It is rapidly becoming something that has less and less meaning as time goes by, and it would be difficult for the Government to use this term in a particularly meaningful way, although it is in the Bill at the moment.
LORD MITCHISON: Before my noble friend leaves that point, may I ask why it is in the Bill?
LORD BROWN: Perhaps I can answer that by coming to this point now. The debate that has taken place on this clause so far has been extremely useful. It has drawn attention to the fact that there are great difficulties. I think it would be true, in general, to say that in our discussions about this clause we are arguing not about aims but largely about means, and "means" means drafting. We really are faced with very peculiar difficulties in relation to this matter, and the use of the term "recommended" in the clause is just one of the difficulties.
There are various possibilities open. We can leave the Bill somewhat in its

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present form, probably improved a little as a result of discussion, but still leaving us in a situation where, when we come to consider price comparisons made by retailers with other prices, we shall find that many of the provisions are unenforceable. We have to recognise that the difficulty which we have in enforcing is also a difficulty for the retailer, because the man who says, "My prices are cheaper than others" is really saying something that he would have great difficulty in finding out, if he wanted to do so. So the general proposition which I put to the Committee is that, if this Amendment and, I hope, others which follow on this clause are withdrawn, we will look at the matter very seriously indeed to see what can be done. I do not want to commit the Government more than that at this stage, because we are in for a very difficult time in considering what to do about this whole issue; but we shall take full account of all that has been said in this debate.
LORD GRIMSTON OF WESTBURY: I do not wish to delay the Committee for very long, but the word "dishonest" has been bandied about. A shop which normally sells socks for 5s. a pair may have a sale at Christmas-time, or in the summer, where they are disposing of a lot of other things which have been in the shop at lower prices, and decide, "We have a lot of people in the shop. We can get rid of a lot of these 5s. socks if we sell them at 4s. 10d. or 4s. 6d." How would they have to label those socks which were being sold at a lower price during the sale, and which had been manufactured specially for the sale, but which would normally have sold at a higher price? I do not know whether I have made myself clear.
LORD BROWN: They would say, "Our price for the socks was 5s. We have now reduced it to 4s. 10d."
LORD GRIMSTON OF WESTBURY: That would still be all right?
LORD BROWN: It would be perfectly legal. There would be nothing at all illegal about it.
LORD GRIMSTON OF WESTBURY: Although the goods would have been specially manufactured for the sale?
LORD BROWN: I am sorry, but I misunderstood the noble Lord. I thought
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he was referring to socks which they had had in the shop and were selling at 5s. Would he please make his meaning clear, because I have misunderstood him?
LORD GRIMSTON OF WESTBURY: Let me put it this way. They normally sell the socks at 5s., but they put in a very much bigger order for the socks during the time of the sale and sell them at a lower price.
LORD BROWN: Are they virtually identical goods?
LORD GRIMSTON OF WESTBURY: Yes, the same.
LORD BROWN: Then the answer which I am given stands in that case. If they are identical goods, they may say, "These goods were sold at 5s. and we are now selling them at 4s. 6d." It is a perfectly honest, straightforward description, and there is everything to be recommended in it.
LORD FORSTER OF HARRABY: It is a common practice for traders to buy up bankrupt stock and to put it in their sales. How would a trader describe such bankrupt stock when he is reselling?
LORD BROWN: There is no necessity at all, in my view, for him to make any reference to a price comparison. He has bought up some goods at a very cheap price. He puts them on sale at a low p-ice, and says, "Here are these goods on sale at a low price. We think you will find the price rather lower." He can put in something like that, but he does not have to put in a comparison, and he cannot do it honestly, in any case.
LORD STRABOLGI: May I suggest, with great respect to the Committee, that as the Government have said that they me going to reconsider this whole clause with a view to redrafting it, and that they will consult with all interested parties before the Bill goes to another place, we should really not deal with these Amendments in any great detail but pass on to the next clause? Because it would appear to me that many of these discussions which we are having, interesting as they are, are mainly academic.
LORD DRUMALBYN: I am not so sure that I agree entirely with the noble Lord, Lord Strabolgi. It seems to me that the question raised by my noble

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friend behind me was a severely practical one; and, if I may say so, I think the noble Lord, Lord Brown, gave the wrong answer, because it would be perfectly possible for the person selling the goods to find out what the goods were being sold at (if they were being sold, as presumably they were) elsewhere, and it would be perfectly lawful under this Bill as drafted for him to say what they were being sold at elsewhere. One could get into great intricacies, but perhaps the noble Lord has unwittingly misled my noble friend about the possibilities open to the seller in those circumstances. I think there would be possibilities. On the more general point, I think the sense of the Committee is that we have discussed this very difficult clause enough. I hope that the discussion has been helpful to the Government, and I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
4.32 p.m.
BARONESS ELLIOT OF HARWOODhad given Notice of her intention to move to leave out Clause 11 and insert a new clause.
THE DEPUTY CHAIRMAN OF COMMITTEES (BARONESS WOOTTON OF ABINGER): I understand that the noble Baroness, Lady Elliot of Harwood, wishes to move her Amendment in a slightly different form from that which appears on the Paper. In lines 3 and 4 of her Amendment she wishes to leave out the words,
"whether by reason of ambiguity, omission, inference or otherwise".
BARONESS ELLIOT OF HARWOOD: I hesitate to talk any more about Clause 11, since the remarks made by Lord Strabolgi; and I quite appreciate that we have had a very long discussion. I was waiting, in fact, because the form in which my Amendment in respect of Clause 11 is drafted—and the noble Lord who has just left the Chamber encouraged us to help the Government with different kinds of drafting—is slightly different from that of my noble friend Lord Drumalbyn. However, I am in the hands of the Committee. If your Lordships feel that you would like to go on to the next Amendment, I should be happy to let my remarks go to the Board
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of Trade via the Minister; that is, such contribution as the Consumer Council—I am speaking for the Consumer Council on this matter—can make to the redrafting of this clause. I should be happy to let the Minister have that, provided I can be assured that the views that I represent in this debate are known to and considered by the Board of Trade. I beg to move.
Amendment moved—
Leave out Clause 11 and insert the following new clause:
(".—(1) It shall be an offence for any person supplying goods of any description to give, by whatever means, any indication or anything likely to be taken as an indication to the effect that the price at which the goods are offered is less than another price, unless the same or comparable goods

(i) are being sold at the other price or

(ii) have been sold at the other price for a substantial period within the preceding six months or

(iii) have been sold by him at the other price

in substantial quantities in relation to the total volume of such goods which are or have been offered.
(2) Where it is proved by any person that an article supplied by him is unique or custom-built, the provisions in the preceding subsection shall not apply.
(3) For the purposes of this section a person advertising goods as available for supply shall be taken as offering to supply them.")—(Baroness Elliot of Harwood.)
LORD WINTERBOTTOM: The noble Baroness is being extremely helpful. I gather that she is speaking at the moment not so much in her own capacity but as a member of the Consumer Council, and that this attempt to improve Clause 11 is in line with the thinking of the Consumer Council. The noble Baroness may remember that earlier on I said that the Government were only too willing to enter into discussions with the noble Lord, Lord Drumalbyn, or with any other noble Lord or organisation which could help us in improving this particular clause. I am certain that the Consumer Council has an important role to play in this process of improvement. I am certain I can commit my right honourable friend and the Board of Trade to discussions with the Consumer Council in the course of our attempt to improve Clause 11. I can make that commitment now.
BARONESS ELLIOT OF HARWOOD: I thank the noble Lord very much indeed. In those circumstances, I will spare the Committee my speech and the points I was going to make, and will make them to the Board of Trade instead. But I should like to say just one word on the general subject of sales. I am afraid I do not hold the same views as my noble friend Lord Hawke. I do not think that the speeches which have been made from this side on the subject are indeed correct. What we are seeking to do in Clause 11 is to protect the buyer from being cheated or tricked in any way by false prices. I think that what the noble Baroness, Lady Burton of Coventry, said is entirely correct; and I hope that, in the drafting of this clause, any idea that we are acting as a sort of spoil-sport, or whatever you like to call it, to shoppers is quite erroneous. This is not the fact at all. This clause is to encourage honest trading and to do what we can to help the consumer. The remarks I was going to make are of a technical and legal nature, and I should like to be sure that the arguments of the Consumer Council are considered by the Board of Trade. I beg to withdraw the Amendment.
LORD DRUMALBYN: Before the noble Lady withdraws it, may I say one word? Of course, it should never be overlooked that the prevention of dishonesty not only protects the consumer but protects other members of the trade who wish to be honest.
BARONESS ELLIOT OF HARWOOD: I shall not take it any further. On the understanding that we shall be consulted about this, I withdraw this Amendment now.
Amendment, by leave, withdrawn.
Clause 11 agreed to.
Clause 12:
False representations as to royal approval or award, etc.
12.—(1) If any person, in the course of any trade or business, gives, by whatever means, any false indication, direct or indirect, that any goods or services supplied by him or any methods adopted by him are, or are of a kind, supplied to or approved by Her Majesty, any member of the Royal Family, any Government department or any local authority, he shall, subject to the provisions of this Act, be guilty of an offence.
4.37 p.m.
LORD CAWLEYhad given Notice of two Amendments to subsection (1), the first being to omit "or", where that word last occurs. The noble Lord said: This Amendment is consequential upon the one that follows, No. 35, so I ask the Committee's permission to speak on both. This is not a drafting Amendment, and I spoke on this point during the Second Reading of this Bill and during the Second Reading of the former Bill. This clause deals with false indications that a trader supplies to, or is approved by, certain persons and bodies. At the present moment the words in the clause refer to goods supplied to or approved by:
"Her Majesty, any member of the Royal Family, any Government department or any local authority…"
My Amendment No. 35 seeks to go further and to include also:
"any person or institution, whether in existence or not."
I shall ask leave to exclude the words "or institution", because I understand that under the terms of the Interpretation Act those are unnecessary, since "person" covers an institution.
I think that the present wording is far too narrow, and my grounds are, first, that there are a great many other bodies, other than rural district councils, parish councils and Government Departments, that need protection—for example, the National Coal Board, British Railways, I.C.I., or even any person. At present traders may falsely say that they supply briar pipes to the Prime Minister, but they must not say, falsely, that they supply them to the Royal Mint. There is something wrong with this. The clause ought to be extended to cover "any person". A trader takes an unfair advantage by saying that he supplies something to a person to whom he does not supply it, or that he is approved by somebody when in fact he is not.
The second point concerns imaginary persons. I am not trying to cover, and I do not think this clause would cover, such frivolous statements as, "As approved by Old King Cole", or, "As supplied to the Queen of Hearts". They, quite obviously, would not be thought to be false indications of anything. But if, for example, a trader said, "As approved by the Ministry of Supply", the fact is

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that the Ministry of Supply does not exist; it is a non-existent Government Department. If a trader invents a Government Department, a local authority or some big company, then I think there should be some sanction against him: he ought not to get the advantage. Nor should he if he invents somebody holding some public office which does not exist. That is the reason why I desire to move these Amendments. I beg to move the first Amendment.
Amendment moved—
Page 7, line 12, leave out ("or").—(Lord Cawley.)
LORD MITCHISON: This is a very remarkable Amendment. You must not pretend that you have supplied goods to a non-existent person or institution. I just wonder how far this is meant to go. What about a non-existent Monarch? Is it all right for a person to say that he used to supply cheese to the late King William I? Is that all right? Would a more recent Monarch do? I feel this leads us into some very strange places indeed. The Amendment refers to non-existent people and non-existent institutions—though the non-existent institutions have now disappeared. I do not even know whether the Interpretation Act intends to include as a non-existent person a nonexistent institution. It seems to me to be a very nice philosophical question. I suggest that the purpose of the Amendment might have been carried forward better by omitting the reference to nonexistent persons and institutions.
LORD WINTERBOTTOM: The noble Lord, Lord Cawley, has raised one or two questions that came to my mind as I studied this clause. My noble friend Lord Mitchison has mentioned the claim to have supplied a Monarch with certain equipment. At many tailors' shops one finds a series of coats of arms (most of them related to Monarchs who have long since passed away) still on the walls, presumably to give one confidence in ordering a suit there. But this really is a little wide of the general intention of the Bill.
Clause 12 is intended to deal with a very special type of false claim; namely, that there is some special cachet attached to goods or services because they are
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supplied to or approved by Royalty or other specified classes of person. The assumption behind this is that before buying any person's goods or services, or approving his methods, the Royal Family, Government Departments and local authorities can be relied upon to have satisfied themselves that the person and his goods, services, or methods are sound; and that the ordinary consumer can reasonably expect similar satisfaction. This is obviously not the case with all other persons—although admittedly it may be with some—and to say that a product has been supplied to a non-existent person conveys nothing at all. For that reason the Amendments are not appropriate to the purpose of this subsection which is limited in its aim. I think we should be very slow to extend it any further, particularly since many false claims which the Amendments would bring in are already dealt with elsewhere in the Bill.
Clause 2(1) deals with indications that goods are in conformity with a type approved by any person, and that would cover genuine organisations outside this particular clause. Clause 3 deals with claims to comply with non-existent standards (a non-existent human being presumably has non-existent standards), and therefore we could get any statement of this type under Clause 3. Clause 13 deals with the examination or evaluation of services by any person. I think it would be best to leave the sort of case which the Amendments envisage to the general provisions of the Bill and not attach it to a very specialised subsection of this sort. The clause is designed to deal with these limited cases mentioned in the clause itself. The rest I believe we can catch elsewhere if there is intention to mislead.
LORD CAWLEY: The noble Lord believes that most of these matters can be dealt with under other clauses, but I myself am doubtful about that. For example, the Post Office is covered by the provisions of this clause; but what will be the position when the new Act removes its Government Department status?
LORD WINTERBOTTOM: Will the noble Lord permit me to give consideration to this point? There may be something in it. Perhaps we could consider

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it later. That is where the thought behind the Coal Board, which the noble Lord mentioned as a parallel to the future of the Post Office, applies.
LORD DRUMALBYN: I hesitate to add to this discussion, but the noble Lord has referred to the point we considered before, on Clause 2(1)(g):
"a type approved by any person".
Surely the purpose of moving this Amendment, when it was originally moved by Lord Peddie, was to deal with types and the approval of types. This is quite different from the question of a particular article which may be approved by particular persons. Let me put it this way. Royalty does not approve of types of things: it approves of things themselves. You supply those things to Royalty. That is why, if a trader chose to say he was supplying to Royalty a particular thing, he would be caught by this clause. But surely the same thing applies, from the point of view of misleading the public, if a statement of this kind is made about any prominent person. This is what we had in mind in considering this Amendment. Partly it deals with persons, and partly, as originally drafted, it deals with institutions. This was the point which in an earlier stage the noble and learned Lord on the Woolsack specifically mentioned. I should have thought it was a point that should have been caught here.
There is also the other side of this Amendment which raises the question of whether the person is fictitious—not obviously fictitious, but where the public are misled by references to someone who appears to exist but who in fact does not exist. I hope that the noble Lord will look at this point again. I am confident that it is not even mainly covered by the Bill as it stands; it is hardly covered at all.
LORD WINTERBOTTOM: I can give the noble Lord that assurance. It may cause us to alter the scope of this clause somewhat, but our minds are not closed on the subject. I will give an undertaking to do that.
LORD CAWLEY: On the noble Lord's undertaking I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
4.48 p.m.
LORD CAWLEY: This Amendment is designed to discourage self-advertisers who might want to defend Her Majesty. We all know that there are a certain number of people who ought not to do so but who meddle in litigation. As private prosecutions can still take place under this Bill, this is a way of stopping that sort of thing. I have no doubt that the Lord Chamberlain would express an opinion on this, so I think I need say no more. I beg to move.
Amendment moved—
Page 7, line 19, at end insert—
("( ) Where the interests of Her Majesty in person are concerned no prosecution shall be commenced under this section without the consent in writing of the Lord Chamberlain.")— (Lord Cawley.)
LORD WINTERBOTTOM: This Amendment provides that the consent of the Lord Chamberlain would be required for prosecutions for offences relating to false indications of use or approval by the Queen herself of any goods, services or methods or to unauthorised use of an emblem signifying an award by the Queen. Under the clause as drafted, it is open to anyone, including a Government Department and the Lord Chamberlain, to take proceedings for any of the offences which it creates, including those to which this Amendment relates—as for offences under the rest of the Bill. This is no anomaly because the primary purpose of the clause, in common with that of the rest of the Bill, is to ensure that the consumer is not misled. It does, of course, also serve to protect the dignity of Her Majesty. In addition, the local authorities which are weights and measures authorities have a duty to enforce this provision, as well as all the other provisions of the Bill. In no case is anyone given a power to veto proceedings. This is as I think it should be.
As your Lordships will know, local authorities will be required under Clause 29(2) to give notice to the Board of Trade of any intended proceedings under the Bill. This would give the Board of Trade an opportunity to consult the Lord Chamberlain about any prospective cases of the kind referred to in the Amendment.
LORD CAWLEY: Does not the noble Lord realise that this is not aimed at

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local authorities? I am aiming it at private people who come in and make themselves a nuisance.
LORD WINTERBOTTOM: Yes, but surely the four groups, Her Majesty the Queen and the three other groups mentioned, are protected by this clause against the private dealer who is misusing the name of one of these groups. I am sorry, perhaps I have not grasped what concerns the noble Lord.
LORD CAWLEY: I am not concerned with weights and measures authorities in this case. I hope I am right in saying that any person, you or I, may prosecute any trader who uses what is thought to be a Royal emblem, without any semblance of reason for doing so, in order to advertise himself. That is what I am trying to keep out.
LORD WINTERBOTTOM: There are a whole range of people who may take action: a Government Department, the Board of Trade, the Lord Chamberlain and local authorities acting as weights and measures authorities.
LORD CAWLEY: It is true that all those people can take action, but this is to prevent quixotic people from taking action in defence of Her Majesty. Your Lordships may know that there is a gentleman who goes round trying to prosecute well-known people if they are involved in motor accidents and there would be nothing to prevent somebody advertising himself by prosecuting in the name of Her Majesty. By Section 61 of the Trade Marks Act 1938 the Lord Chamberlain's permission is required before civil proceedings are started, and I think it would be a good thing to apply that to this Bill, in order to protect Her Majesty from interfering busybodies.
LORD WINTERBOTTOM: I gather from my reading of the Bill that in cases such as have been mentioned by the noble Lord it would be normal procedure for the Government Department or the local authority first to consult the Lord Chamberlain about any prospective cases of the kind referred to in the Amendment. I think that is common ground between us. We do not want the average individual rushing to defend Her Majesty on entirely imaginary grounds. In the way in which the noble Lord has expressed it,
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I think the matter goes somewhat beyond his intention. We are at one on this, that the Lord Chamberlain will be consulted by any of the authorities who are responsible for taking action before a prosecution takes place in the matter of Her Majesty's Prerogative.
LORD STRABOLGI: The noble Lord, Lord Cawley, has raised a very important point which I do not think has been fully answered by my noble friend, Lord Winterbottom. We are not here talking about local authorities acting as weights and meaures authorities, or anybody else: we are talking about private persons bringing private prosecutions. Pursuing that line of thought, the noble Lord, Lord Cawley, has with great force put forward the idea that similar private prosecutions could be brought over the misuse of Royal emblems, coats of arms and Warrants of Her Majesty. The noble Lord, Lord Cawley, is seeking to amend the Bill so that in the case of these private prosecutions, some of which might be mischievous or brought for notoriety, the permission of the Lord Chamberlain should be obtained, and I think that is an important point. I suggest to my noble friend that the Government ought to take this back and have another look at it.
LORD MITCHISON: Why the Lord Chamberlain? What has he to do with it? We are passing a Statute to provide against the misuse of descriptions of a Royal Warrant. This is a Statute for the benefit of the public generally, and what is suggested is that where there has been such a misdescription the Statute is to provide specially that the Lord Chamberlain may have a veto on a prosecution. Why the Lord Chamberlain? The Trade Marks Act seems to me a good bit out of date. This is 1967 and it will soon be 1968, and I think we established in the 17th century that this country was governed by a Constitutional Monarchy—if we did not do it then, we did it a bit later. Why the Lord Chamberlain? I simply cannot understand this. If it is required to do anything of the the sort, the proper authority, I think, is the Attorney General. But I should have thought it was quite unnecessary. If the Lord Chamberlain does not consider that there is a case for prosecution, then it ought to be open to a citizen of a free country, which still has private prosecutions, to institute

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a prosecution—unless he is the kind of person who can be, and is, restrained by due process of law from starting that kind of thing. There are arrangements about this already, and I sit down saying once more that this is the year 1967 and, I repeat, why the Lord Chamberlain?
LORD ILFORD: My recollection is that under the Weights and Measures Act 1963 there is an express prohibition on private prosecutions. There does not appear to be anything of that sort in this Bill; and it may be that if it has been found desirable to have an express prohibition on private prosecutions under the Weights and Measures Act, there should be some restriction on private prosecutions in this Bill.
LORD WINTERBOTTOM: This is a rather abstruse point of law. I have considerable sympathy with what my noble friend Lord Mitchison has said. It strikes me as very difficult for us, when debating a subject in so narrow a field as this, to bring the Lord Chamberlain, shall we say, into the legal processes surrounding the misuse of symbols relating to the Royal Family. I think the noble Lord has done a service in pointing out the difficult situation which may arise from the actions of a private individual, but without due consideration by my Department of the point made by the noble, Lord, I feel that I cannot to-day agree to accept this Amendment. I will have it studied and will try to get an informed reply for the noble Lord. But as things stand, I cannot agree that this Amendment would improve the Bill.
LORD AUCKLAND: There is one additional difficulty which possibly relates to Clause 12(1) rather than to the Amendment we are now discussing. It is that there is a tendency now for Sunday newspaper supplements and the like to carry articles, often quite intimate articles, about the Royal Family. Recently, one newspaper supplement went so far as to show, in photographic form, a number of foodstuffs which the Royal Family eat. The question I would put to the Government, which relates to a point of law, is: would these particular firms who make the foodstuffs concerned be permitted to use the Royal Warrant for their foodstuffs because they are supplied to Buckingham Palace? And, if not, how would a prosecution be made within the ambit of
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this clause? I think this an important point, and with the growth of the practice of highlighting the Royal Family, it seems to me to be a relevant point.
LORD CAWLEY: On the undertaking that this will be looked at, and possibly the Lord Chamberlain might be consulted, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 12 agreed to.
Clause 13:
False or misleading statements as to services, etc.
13.—(1) It shall be an offence for any person in the course of any trade or business—
(a) to make a statement which he knows to be false; or
5.0 p.m.
LORD REDESDALEmoved, in subsection (1), after the first "business", to insert "with the intention to mislead". The noble Lord said: Despite the somewhat exotic number of my Amendment, it covers a simple point. I feel that the situation in regard to services is different from that applying to goods. Services are much more intangible and it is difficult to describe them satisfactorily. The clause covers a number of services. The one in which I have an interest is dry cleaning, which usually gives the public a service which is advertised in terms of speed—of "24-hour", "4-hour", "2-hour" or "1-hour" cleaning. These services are carried out adequately in 99 per cent. of cases, but on occasion something can go wrong. The service is dependent on people and machines. We know only too well that machines can break down, that sickness can affect staff and that, as often happens in the dry cleaning service, at certain times of the year there is a sudden influx of work which was not accounted for and the service may break down.
Any claim for a speedy service used in advertising or on the shop front is made in good faith. Despite the fact that Clause 23 gives protection, I feel that this comes a little after the fact and it would be as well to put in the beginning of the Bill a clause to protect those responsible for providing services by saving that the onus of proving that an offence has been committed should be on the basis that an intention to mislead

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existed as opposed to something going wrong. Furthermore, private prosecutions can be made, and if this is the case I feel that the 1967 Misrepresentation Act provides adequate remedies of a civil nature. This Bill deals with criminal offences. Therefore I would ask for some consideration to be given to amending this clause so that it turns on intention rather than on a breakdown of services. I beg to move.
Amendment moved—
Page 7, line 21, after ("business") insert ("with the intention to mislead").—(Lord Redesdale.)
LORD WINTERBOTTOM: The fears expressed by the noble Lord have been foreseen in drafting the Bill. If he will look at Clause 23(1)(a), he will find that an adequate defence exists for the situation described by him. It says that it shall be a defence
"that the commission of the offence was due to a mistake or to an accident or some other cause beyond his control;"
The dry cleaner mentioned by the noble Lord who provides a 24-hour service may have had a breakdown at the factory and therefore an accident beyond his control has caused him to break his advertised undertaking. This is not an intention to mislead and it is a proper defence. I hope that the noble Lord will accept this explanation and withdraw his Amendment, because the restriction he wishes to include in the clause at this point would make the restriction far too severe. In the circumstances mentioned by the noble Lord, an individual is protected under the defence clauses of the Bill.
LORD DRUMALBYN: It seems to me that as the clause is drafted there is a considerable degree of protection for those offering services. In order to get a conviction, the prosecution would have to prove a statement to have been false. Obviously, if anyone knows a statement to be false, he makes it with the intention to mislead or alternatively he makes it recklessly. Perhaps if he makes it without due circumspection he is to that extent guilty, though he would not have the absolute intention to mislead. But the clause as drafted seems to go a long way to meet my noble friend's Amendment.
BARONESS BURTON OF COVENTRY: I hope that the noble Lord will feel able
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to withdraw his Amendment. I listened with considerable sympathy to what he had to say. I am sure that all of us who use dry cleaners and washing facilities know that the machines can break down and it is no fault of the proprietor when this happens. But the noble Lord went on, honestly, to cut the ground from under his own feet by making us look at Clause 23, where I feel the matter is taken care of.
LORD REDESDALE: I am grateful for all that has been said. As the noble Lady said, I did mention Clause 23 but my feeling in raising this Amendment was that it would be better if it were not only stated as a defence but written into the clause itself. I agree with what has been said and beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
LORD REDESDALEmoved, in subsection (1)(a), after "statement" to insert, "as to any matter of fact". The noble Lord said: I should like to talk on Amendment No. 36Z as well as this one Clause 2 goes into considerable detail as to fact when referring to goods, but from Clause 13 this reference to fact is omitted. I should like consideration to be given to the inclusion of the words I propose in order to bring this clause into line with Clause 2. I beg to move.
Amendment moved—
Page 7, line 22, after ("statement") insert ("as to any matter of fact").—(Lord Redesdale).
LORD WINTERBOTTOM: This Amendment proposes to confine offences under Clause 13(1) to cases where the false statement relates to any matter of fact. This is unnecessary since the subsection goes on to provide that a false statement can be an offence only if it relates to any matters specified in paragraphs (i) to (v). I believe that the noble Lord may agree that these are all matters of fact. The provision of services in the course of trade, the nature of the services, the time, their examination and valuation and their location—all these are matters of fact. In the process of drafting this clause relating to services, in which, as the noble Lord will realise, we are moving on to new ground (we have not attempted to do anything like this before), we deliberately

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selected characteristics which are capable of objective assessment, and in the opinion of the Government there is no need to make this proposed Amendment. We are confining ourselves to matters of defined fact. I hope that the noble Lord will accept my assurance.
LORD REDESDALE: I raised this, as I said, quite briefly, and I am grateful for the information supplied. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
On Question: Whether Clause 13 shall stand part of the Bill?
LORD AIREDALE: May I briefly refer to subsection (4) of Clause 13, which begins with the words:
"In this section 'false' means …"
I should like to ask the Minister to regard this as a model upon which to frame his new subsection (1) of Clause 3, which attempts to describe a false trade description. The noble Lord will remember that during the debate on subsection (1) of Clause 3 the noble Lord, Lord Drumalbyn, made the striking statement with respect to the Minister:
"… I do not think he believes a word of what he has said. I am quite sure that he himself is fully in agreement with this Amendment. It is common sense, and it ought to be made."—[OFFICIAL REPORT, 30/11/67; col. 268.]
I hope that when an Amendment is made it will be made on the model of subsection (4) of Clause 13.
LORD DRUMALBYN: I should like to raise three points on the clause as a whole. First, the rubric to this is:
"False or misleading statements as to services, etc."
I suppose that one could have a misleading statement as to matters of fact—and the noble Lord has just been dealing with my noble friend's Amendment—but by and large, this clause, as drafted, seems to relate mainly to false statements of fact, even though they are likely to be taken as such. I am wondering whether the rubric is correct. Secondly, when one starts off on a new course (and as the noble Lord has said, this is the first time that this has been applied to services) it is often desirable to restrict it to start with, and it may well be that it would be better to restrict this clause entirely to what is false.
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The third point I want to mention is one to which I referred on Second Reading—I did not get an answer, because I had not given notice that I would raise it; that is, whether tipsters give services. I am wondering whether the noble Lord can now tell us whether what tipsters do is to be regarded as a service. This is as area in which there is a great deal of dubious practice, and if we are to cover this kind of thing I should have thought it should be brought into the ambit of the clause.
LORD STRABOLGI: Before we leave this clause, I should like to ask my noble friend how it is to be interpreted when one comes to the area where subjective judgment applies. The noble Lord, Lord Redesdale, brought up the question of the Misrepresentation Act 1967. I did not hear my noble friend reply to the point. I should have thought that the Misrepresentation Act 1967 covered a great many of the areas of services which depend upon subjective judgment, and I should be interested to hear why this clause, as a whole, is considered necessary, and why it is thought that the Misrepresentation Act does not cover the points in it.
LORD BROWN: There are one or two questions that have arisen on this clause. First of all, I note the comment made by the noble Lord, Lord Airedale. I hope I need say no more about that; we will look into it. I note also the comment of the noble Lord, Lord Drumalbyn, about the inclusion in the rubric of the reference to "misleading statements". I think the noble Lord will find that this derives from subsection (2)(a), which provides that the rubric should make reference to "misleading statements". It may be debatable, but I think it is justified.
The noble Lord, Lord Drumalbyn, referred also to the question of tipsters. It would seem to me that if the tipster is providing a service in response to a regular fee there might be something to be said for his being regarded as providing a service. But, as I understand it, on the whole, tipsters do not do this. However, I am not familiar with the fraternity, and I may be wrong about that. I think one would have to put tipsters into the more dignified category of those who do this as a formal service for a fee, and others into the category

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of those who do it in the hope of acting as a bookmaker if a person is influenced by their tips.
The noble Lord, Lord Strabolgi, raised the question of the relevance of the Merchandise Marks Act to this clause. I have to confess that I cannot answer this question.
LORD STRABOLGI: I am sorry to interrupt my noble friend, but I referred to the Misrepresentation Act, 1967, not to the Merchandise Marks Act.
LORD HAWKE: Before the noble Lord continues, perhaps I can ask him this question. Does this clause apply to pictorial representations? Suppose somebody published a picture of a Lancashire coast resort with the tide out, would he be held to be recklessly misrepresenting the nature of the place in comparison with what it was like when the tide was in?
LORD BROWN: Perhaps I may answer the noble Lord, Lord Strabolgi, first. I am sorry I mistook the Act to which he referred. The Misrepresentation Act provides for civil remedies, whereas this Bill provides for criminal remedies. That is why the wording of the one is not entirely appropriate to the other. On the question of misrepresentation by picture, I feel sure that there is an Amendment which makes reference to this point. I think it comes later, and if I am right it is an Amendment in the name of the noble Baroness, Lady Elliot of Harwood. I may be wrong about that. We may have to consider at a later stage whether a statement is enforced by a picture of a beautiful coastline where some amenity is provided, and when in point of fact the picture is a picture of somewhere else. Perhaps we can leave that matter and have a debate when the relevant Amendment is moved.
Clause 13 agreed to.
Clauses 14 and 15 agreed to.
Clause 16:
Restriction on importation of goods bearing infringing trade marks
16. In the Trade Marks Act 1938 the following section shall be inserted after section 64:—
"64A.—(1) The person who is registered as the proprietor of a trade mark in respect of any goods may give notice in writing
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to the Commissioners of Customs and Excise (in this section referred to as the Commissioners)—
(b) that such goods bearing the trade mark are expected to arrive in the United Kingdom at a time and place and by a consignment specified in the notice, and
5.18 p.m.
LORD DRUMALBYNmoved, in subsection (1)(b) of the proposed insertion in the Trade Marks Act 1938, after "mark" to insert "have been arriving or". The noble Lord said: With your Lordships' permission, I should like to discuss this Amendment and the next Amendment together. The purpose of these two Amendments is to relieve the proprietor of a trade mark of the heavy onus put upon him by paragraph (b) of supplying information in regard to goods which are expected to arrive in this country. As Clause 16 is drafted, it says:
"The person who is registered as the proprietor of a trade mark in respect of any goods may give notice in writing to the Commissioners of Customs and Excise … (b) that such goods bearing the trade mark are expected to arrive in the United Kingdom at a time and place and by a consignment specified in the notice …"
We hear a great deal about industrial espionage, but this seems to be carrying it to too great extremes. I am aware that this has happened in the past, I think in regard to a large consignment of plastic materials which arrived from the United States of America. It has happened once but it must indeed have been fortuitous if one was able to get such full information. Surely one could get the co-operation of the Customs without so much information being supplied. All that is required, surely, is that the proprietor of the trade mark should be able to satisfy the Customs that goods have been arriving or are expected to arrive. If he can satisfy the Customs of that, it is then up to them to look out for the goods. I do not know how the individual can be expected to name the actual consignment, the ship, when that ship is going to arrive and the destination at which it is to arrive. This is putting an absolutely impossible onus on the proprietor of the trade mark. The destination of the ship might be changed en route. I beg to move.
Amendment moved—
Page 8, line 34, after ("mark") insert ("have been arriving or").—(Lord Drumalbyn.)
BARONESS PHILLIPS: The noble Lord, Lord Drumalbyn, will appreciate that as this clause is drafted the import prohibition is limited to particular consignments identified by the trade mark owner himself, and Clause 16 implements the United Kingdom's international commitment in the context of a system of control which the Commissioners of Customs and Excise can operate effectively. Under the clause as it stands, the proprietor of a registered trade mark may give notice to Customs of the expected arrival in the United Kingdom of a specific consignment or consignments of goods bearing his trade mark. Customs will then stop the import of the goods. If this Amendment were accepted it would mean that once the trade make owner had notified Customs that goods bearing his trade mark were to be imported, the Customs would be required to detect and prohibit the import of any goods bearing that trade mark, regardless of when, where and by whom the goods were imported. Such a requirement would involve a system of control on the lines of the existing Customs register of trade marks which it is simply not possible to operate effectively in the context of the present volume of imports.
In the light of current conditions it is quite impossible for Customs officers to detect trade mark infringements, and this means that the system contemplated by the Amendment is not a feasible alternative to that proposed in the Bill. Therefore I ask the noble Lord, Lord Drumalbyn, whether he will accept this explanation and withdraw his Amendment.
LORD HAWKE: I am not sure that the Government's interpretation of my noble friend's Amendment is quite the one that I should have expected. Surely this is only a case of giving the Customs notice that my trade mark has been infringed, that I am expecting another consignment to come along, and will they please stop it. That occurred to me on several occasions in another country many years ago, and it was always perfectly workable.
BARONESS PHILLIPS: As I understand the present clause, if that were
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the case there would be no need for the Amendment, because this would surely be the situation where the Customs would be informed that there is this one consignment and there will be another one at a particular time.
LORD DRUMALBYN: I fail to understand how, except in the most unusual circumstances, the proprietor of the trade mark could possibly supply this information. It must be extraordinarily rare. The noble Lord, Lord Pargiter, has an Amendment later in the Bill which might make it a little easier to trace goods which have been arriving, and if information as to the goods which have been arriving is available and the name of the importer is known, then—and then only—it might be possible to trace goods that were likely to arrive in the future. But unless the noble Lord, Lord Pargiter's Amendment is accepted it seems to me there is no way, except by an absolute fluke, in which this clause could possibly be operated for the protection of trade marks.
I hope the Government will think about this again, because it is not satisfactory as it stands; indeed it makes things very much worse. I quite agree that in order to get a fully effective control this is perhaps the only way, but one does not expect things to be 100 per cent. effective in life. One wants the Customs to give such assistance as they can. Nobody is going to blame them if goods go through with a false trade mark, but we want to be certain that the owners of trade marks will get co-operation to protect those trade marks when it looks as though they are being infringed and that the infringement is likely to continue.
LORD BROWN: I do not want to appear to be difficult, because along with those moving this Amendment I should very much like to see the situation brought about by the Amendment corning into existence. It would be satisfactory if we could agree to this Amendment, but the fact of the matter is that for a long time it has been the practice in the ports for firms to register their trade marks and to attempt to see that goods bearing those marks falsely were not imported. The Customs are hard pressed to-day, and it would mean a substantial expansion of their inspection techniques in order to carry this out.

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The Amendment simply means that if the Customs are notified that goods have been arriving which infringe this Part of the Bill it would be their duty in future to watch out for them. This is an expensive business, and it should be remembered that this is not the only recourse the importer has of attacking the problem of false use of his trade marks. These goods go on to the market; they are a type of goods with which he is very familiar, probably being sold to many of his own customers, and he can take action against the person selling those goods. He has a much better opportunity of seeing them than the Customs, because the Customs have to break open packing cases, and this is an extremely difficult and expensive operation which I do not think would work. It would give traders in this country a quite false sense of security that they were being protected, and might cause them not to take other appropriate steps to look after their own interests. I do not think I ought to hold out any hope of accepting an Amendment on these lines.
LORD DRUMALBYN: I am sorry the noble Lord cannot help us. If my information is correct, I think the real reason for this not being acceptable is because the Customs are afraid of making mistakes and stopping the wrong trade mark. There is no other reason why they should not give such co-operation as they can, without undertaking to give 100 per cent. co-operation. If the noble Lord cannot meet us in this, perhaps he will consider it, as well as other things, to see whether the great tightness of the drafting here cannot be somewhat relaxed. In the meantime, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 16 agreed to.
House resumed.

CONSULAR RELATIONS BILL [H.L.]
5.30 p.m.
LORD SHEPHERD: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Shepherd.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD STRANG in the Chair.]
Clauses 1 and 2 agreed to.
Clause 3 [Agreements providing for additional or reduced privileges and immunities]:
On Question, Whether Clause 3 shall stand part of the Bill?
THE EARL OF BESSBOROUGH: My Lords, the noble Lord, Lord Shepherd, told us on Second Reading of this Bill that one of the purposes of Clause 3 is to give the power to ratify the Anglo-Soviet Consular Convention which was signed on December 2, 1965, and the noble Lord pointed out that Article 36 of that Convention regulates the right of a consular officer to be notified of the arrest or detention of a national and to have access to him. This passage of the Convention, as the noble Lord said, is very relevant to the case of Mr. Gerald Brooke, which we discussed on Second Reading and with which your Lordships expressed considerable concern. But the noble Lord did not say whether the Soviet Government had shown itself willing to ratify this bilateral Convention, and I should like to press the noble Lord on this point and ask him whether he considers it likely that they will do so.
The more your Lordships look at the case of Mr. Gerald Brooke the more distressing I think you will consider it to be. I should like to make here a point which I implied on Second Reading. If the Soviet Government will not allow our Consul to visit Mr. Brooke again, they should allow a doctor to see him. Preferably, I should have thought, a doctor from this country would have been appropriate. But if this is not acceptable, then I suggest that, at the very least, they should permit a neutral doctor from, say,

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the International Red Cross to visit him. I am glad to see that the noble Lord, Lord Snow, is with us this evening. I hope that he will confirm that this case is a matter of great concern to friends of the Soviet Union in this country, and I hope that the Russians will listen to what we have to say and agree to take the kind of humane action which we advocate.
There is another point on Clause 3 which I would make, and which is not related to the case of Mr. Brooke. The Bill once again extends the frontier of privileges enjoyed by representatives in this country of foreign Governments. It is understandable that in certain countries our Consuls need additional privileges if they are to function effectively, and that we may, therefore, have to grant additional privileges as provided in this clause. Nevertheless, it seems to me, and I think most of your Lordships will agree, that this may be a somewhat slippery slope. I hope, therefore, that the Government will watch this point carefully and, where necessary, use their powers to exclude by Order in Council any privileges and immunities which are not provided for by any bilateral Agreement made between this country and any other State. I hope that the noble Lord will be able to give me an assurance on that point.
LORD SNOW: My Lords, I should like to add one word to the first point raised by the noble Earl, Lord Bessborough. I do so because many of my Soviet friends, and many of your Lordships, know that I should be the last person here willingly to take part in any attempt to make a political use of a distressing case. Having said that, I have to say that I support what the noble Earl said about the principle of consular visitations. The right of a Consul to receive notification of arrest and to have access to any of his nationals incarcerated in a foreign country is a most important right. It is most important for two reasons; partly because it eliminates suspicion and the possibility of political friction, and partly—and in my view more importantly—from purely human considerations. I believe that these human considerations should apply to the case of Gerald Brooke, and that it is important that he should be allowed visits from our Consul. I hope that the Soviet Government will believe that this is the considered view of those
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who have nothing but good feelings towards their country and wish it well.
LORD SHEPHERD: My Lords, the noble Earl, Lord Bessborough, has again drawn your Lordships' attention to the unhappy story of Mr. Gerald Brooke. I, for one, hope that the words of the noble Lord, Lord Snow—words, if I may say so, that may well have influence in the Soviet Union, since the Government of that country well know his attitude towards them over many years—will have some real effect in this particular case. Since I spoke on the Second Reading we have had further discussions, through diplomatic channels, in regard to Mr. Brooke, and I regret that those discussions did not reveal any progress on the various aspects of his case which are the subject of the exchanges with the Soviet Government. In regard to the health of Mr. Brooke, in the light of Mr. Weatherly's report to us we have asked the Soviet Government to let us have a specific statement as to whether or not he has tuberculosis. I would suggest that until we receive a specific statement from the Soviet authorities the question of asking for a doctor to see him should be left aside.
In regard to the Consular Convention, the bilateral Agreement between the United Kingdom and the Soviet Union, Article 36 makes it perfectly clear that a Consul should be allowed to see any prisoner, first of all on his arrest and then, in the case of a sentence, during his period of arrest on a recurrent basis. Certainly we ourselves could not ratify that Agreement, that Convention, unless we were satisfied that the Soviet authorities recognised quite clearly that the bilateral Agreement applies to Mr. Brooke. I understand that the Soviet authorities are anxious that the bilateral Agreement should be ratified and I understand that they themselves are ready to ratify. But I think I should make it quite clear that until Her Majesty's Government are satisfied that the position of Mr. Brooke is quite clear in the minds of the Soviet Union, we ourselves could not embark on our own ratification.
With regard to Lord Bessborough's request that grant of privileges should not be a "slippery slope". I well know your Lordships' view on immunities and privileges of the Diplomatic Service and other international bodies. But, as the

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noble Earl himself said, these immunities and privileges are essential if the diplomatic and consular services are to operate not only in this country but in other countries on our own behalf. I would assure the noble Earl that in many cases the Vienna Convention could be regarded as insufficient for the consular services in some of the Eastern countries. That is why we have entered into two particular bilateral Agreements, one with Poland and one with the Soviet Union; and we may well enter into others.
I would assure the noble Earl that we shall agree only to those immunities and privileges which in our view are necessary for our own staff serving in the particular countries. On the other hand, of course, they have to be reciprocal. If any country were to reduce its immunities and privileges to our staff in that country, then clearly under Clause 2 we should have the power by Order in Council to reduce the immunities and privileges of that country here. I hope that I have answered all the questions, and also that the words of my noble friend Lord Snow will bear fruit and that we shall be able to get a proper answer from the Soviet Union regarding Mr. Gerald Brooke.
Clause 3 agreed to.
Clauses 4 to 7 agreed to.
Clause 8 [Refund of customs duty on hydrocarbon oils]:
On Question, Whether Clause 8 shall stand part of the Bill?
THE EARL OF BESSBOROUGH: The same consideration which I raised in regard to Clause 3 about the extension in privileges seems to me to apply also in regard to Clause 8, on hydrocarbon oils. The noble Lord told me on Second Reading that it was proposed to amend the Diplomatic Privileges Act 1964 in order to give statutory authority for the refund to diplomatic missions and personnel of duties on hydrocarbon oils. May I ask the noble Lord whether such refunds are made at present and, if so, on what authority? The noble Lord estimated that the consular concession on hydrocarbon oils costs the Exchequer some £6,000 a year; but presumably there is also the cost of administering the concession. May I ask him whether he
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is satisfied that this concession is, in fact, essential?
LORD SHEPHERD: This is a reciprocal refund on duty, and it will apply not only to consular staff serving in this country but also to our own consular staff serving overseas. The figure that I gave in terms of the consular staff, of some £6,000 was, I think, the total figure, but I certainly have not been given any cost of administration. The noble Earl referred also to the Diplomatic Corps and to the fact that I said we should need to amend the Diplomatic Privileges Act to bring this into line with the Consular Relations Bill. This is not in itself an extension of the privileges that now exist; it is really to give them statutory authority. At present, the authority for such refunds arises from the various departmental Votes. In the case of foreign consular representatives, it is the Foreign Office Vote. If there were Commonwealth Consuls, then of course this would be done under the Commonwealth Office; but at the moment, in practice, it comes under the Foreign Office Vote, which, as the noble Earl knows, is approved annually by Parliament. That is the authority for these refunds. But again, as the noble Earl has said, we do not wish this to be a "slippery slope", and I give the noble Earl the assurance for which he asks.
Clause 8 agreed to.
Clauses 9 to 12 agreed to.
Clause 13 [Commonwealth and Irish consular officers]:
LORD SHEPHERD: This is a technical Amendment. The purpose of Clause 13 is, in the event of consular relations being established between the United Kingdom and any other Commonwealth country to regulate the position as regards the performance of certain functions laid down by Statute of United Kingdom consular officers serving in an independent Commonwealth country and of Commonwealth consular officers serving in the United Kingdom. The Committee will see that in Clause 13 a reference is made to the Merchant Shipping Act 1965. This needs to be extended to include the Merchant Shipping (Load Lines) Act 1967, Section 27 of which amends Section 69 of the

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Merchant Shipping (Safety and Load Line Conventions) Act 1932. I beg to move.
Amendment moved—
Page 8 line 6 leave out ("1965") and insert ("1967").—(Lord Shepherd.)
On Question, Amendment agreed to.
Clause 13, as amended, agreed to.
Remaining clauses and Schedules agreed to.
House resumed: Bill reported, with the Amendment.

CONSUMER PROTECTION BILL [H.L.]
5.48 p.m.
Committee stage resumed.
VISCOUNT MASSEREENE AND FERRARDmoved, in subsection (2), to leave out "goods or other thing of that person in relation to or by means of which the offence was committed", and to insert "such goods as may have been necessary to prove the offence". The noble Viscount said: My reason for putting down this Amendment is that I consider that Clause 17(2) has been drawn too widely. Subsection (2) says:
"The court by or before which a person is convicted of an offence under this Act may order any goods or other thing of that person in relation to or by means of which the offence was committed to be forfeited",
and so on. This could lead to great injustice. For instance, if that subsection was interpreted literally a shopkeeper might commit an offence in relation to the words in this subsection, "in relation to or by means of which", and not only could he have all his stock of goods forfeited but as I read it he could also be required to forfeit his shop premises if he owned those premises.
If one wants to take it even further, one could read into it that even the factory which had made the offending goods could be forfeited. That may seem rather far-fetched, but as I read the subsection it might mean that. For instance, one may have a factory which manufactured jam, and this jam might be sold as "full fruit jam" and yet have in it some turnip. Under the clause as at present drafted the manufacturer would be committing an offence, and he might have perhaps £20,000 worth or more of this jam. Under the subsection as now drawn
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all this stock could be seized, and if this were done it might throw many people out of work. The object of my Amendment is to provide that only such goods should be seized as would be necessary to prove the offence.
When one looks at the fines to be imposed, one sees that they are extremely heavy. One can be fined £400 on summary conviction, and on conviction on indictment one is liable to a fine or imprisonment for a term not exceeding two years or both. Surely these penalties are quite severe enough without whole premises or a whole factory having to be forfeited, as appears to be the case under the subsection. I hope that the Government will see some way in which to narrow this subsection so as to make it not so far-reaching in its application. I beg to move.
Amendment moved—
Page 10, line 9, leave out from ("any") to first ("to") in line 11 and insert the said new words.—(Viscount Massereene and Ferrard.)
LORD CAWLEY: I feel that this subsection has been resurrected from the 1887 Act, although I have not looked it up. In the 1887 Act there was the offence of forging a trade mark, so the words in the subsection
"in relation to or by means of which the offence was committed "
obviously refer to the dies or stamps which were put on the goods. I feel that it would be a good thing if this subsection were looked at again, both in the light of modern conditions and of the fact that forging a trade mark is no longer an offence.
LORD STRABOLGI: I hope the Government will not accept this Amendment. The whole point surely is that confiscation takes place only after conviction. As I read subsection (2), the goods are the goods in relation to or by means of which the offence was committed—not any goods in the factory. I should have thought that it was essential to remove all this category of goods, otherwise the guilty person might go on selling them either directly or through his association. Therefore, I hope the Government will not accept this Amendment.
BARONESS ELLIOT OF HARWOOD: I also hope that the Government will not

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accept this Amendment. One of the things in the Molony Report which was adversely commented upon was the one-day sale of various goods, particularly that involving carpets. This subsection would make it impossible, for instance, for someone who was having a one-day sale and selling articles which he should not be selling to go on doing so. It would, in fact, be an offence at the discretion of the court, and this would be a powerful deterrent. What is more, he would not then be able to use the goods he was selling at any other sale or take them somewhere else and produce them three or four months later, which was one of the things the Molony Committee was anxious should not take place. In fact the offending goods would be forfeited, and I think that is only right.
LORD AIREDALE: I feel that the noble Viscount, Lord Massereene and Ferrard, clearly has a point here. It is surely going rather wide to allow the court to order forfeiture of "any goods or other thing", as this subsection does. To take the case of goods sold by a vending machine, suppose that bars of chocolate, improperly misdescribed, are sold in a vending machine. It is no doubt quite right that the forfeiture of the bars of chocolate should be ordered by the court, but is it intended in such a case that it should be possible also for the court to order forfeiture of the vending machine? Unless this subsection is amended in some way, that vending machine surely comes within the words
"or other thing by means of which the offence was committed …"
Do Her Majesty's Government intend this kind of result to happen? If not, surely the subsection requires to be looked at again.
LORD DRUMALBYN: May I probe this a little further, in light of what the noble Lord, Lord Brown, said on Second Reading? This was a point to which I made reference on Second Reading. The noble Lord said:
"The Bill calls for forfeiture of goods which have actually been used only to prove an infringement of the law. So that the idea that a court, having found an infringement of the law on the basis of a few samples, can then order forfeiture of the whole of the contents of the warehouse, worth £100,000, is
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not in accordance with the Bill."—[OFFICIAL REPORT, 14/11/67, col. 674.]
I should have thought the principle here was that although goods which are going to do harm to the public may be confiscated, if the goods themselves can do no harm, and it is merely that their qualities, or something in relation to them, or a comparison with some other goods has been misrepresented, that cannot be a reason for their confiscation. The matter simply has to be put right and steps taken to see that they are sold with the right descriptions on them. I hope that this is the intention, but I agree with the noble Lord, Lord Airedale, that it is not clear in the Bill.
LORD WINTERBOTTOM: I think that the Committee are divided on this point. The noble Baroness, Lady Elliot of Harwood, and my noble friend Lord Strabolgi are for taking draconian measures in this matter, but the Government have considerable sympathy with the point of view put by the noble Viscount, Lord Massereene and Ferrard, and the noble Lords, Lord Drumalbyn and Lord Airedale. We believe that the situation is as was set out by my noble friend Lord Brown in his Second Reading speech. It is not intended to spread the net wide for confiscation. Although we believe that the actual phrasing of this Amendment is not quite what we should like to see, we believe that the intention is correct. We believe, for instance, to take Clause 27(1)(d), that the powers are somewhat undefined:
"A duly authorised officer … may … seize and detain any goods which he has reasonable cause to believe are liable to be forfeited …".
We feel that that is somewhat too wide. If the noble Viscount will agree to withdraw his Amendment, perhaps he will take our assurance that we are in sympathy with his intentions. It is not our wish to spread the net of confiscation wider than is absolutely necessary, and we will see whether we can provide wording which will satisfy the whole Committee.
VISCOUNT MASSEREENE AND FERRARD: I thank the noble Lord very much for that answer, and on his assurance I beg leave to withdraw the Amendment.
Amendment, "by leave, withdrawn.
6.0 p.m.
BARONESS ELLIOT OF HARWOODmoved to add to the clause:
"( ) The court by or before which any person is convicted of an offence under this Act may order the person guilty of such offence to make payment by way of compensation to the purchaser of the goods or services misdescribed."
The noble Baroness said: I rise to move Amendment No. 40, which is not really a very revolutionary Amendment. It has a respectable precedent in the Criminal Justice Act 1948, which provides that in certain cases a criminal court may, as part of its sentence, instruct the defendant to pay compensation to the person who has suffered as a result of a criminal act. My proposal will allow a court which has convicted a person under the new law to require him, as part of the penalty, to make compensation to the person who has purchased goods to which a false trade description has been applied, or who has entered into a contract for services which have been falsely or misleadingly described.
There are two strong arguments in favour of giving this discretionary power to the courts. First, people who have suffered loss will be more eager to assist the local authority or other enforcement body, and to give evidence if a case is brought by the State. Secondly, in the great majority of cases this arrangement would place no extra burden on the convicted defendant, but the amount of any award made would be taken into account when the penalty was being assessed. I beg to move.
Amendment moved—
Page 10, line 12, at end insert the said subsection.—(Baroness Elliot of Harwood.)
LORD STRABOLGI: I hope that the Government will not accept this Amendment. I think it will encourage the bringing of frivolous prosecutions by those who wish to have their cake and eat it. It would also, in most cases, be very difficult to assess the amount of compensation due to the purchaser, especially with fast-moving, low-priced goods. How is one to assess how many purchasers are to be awarded compensation? It may be that the local authority will prosecute a retailer because of one line of goods which he has been selling. It will be necessary to trace all the
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customers who bought those goods, and I suppose that if the goods were shoes everybody would have to be given a new pair of shoes. It would be a very large undertaking, and largely unworkable, and would be out of all proportion to the amount of damage done to those unfortunate people who happened to buy something which did not turn out to be what they expected. For those reasons, I hope that the Government will not accept the Amendment.
LORD DRUMALBYN: I think I am right in saying that this would be a very novel provision to introduce into the criminal legislation. I do not know whether the noble Lord will tell us if it is precedented in any way, but it is as if a man was prosecuted for dangerous driving and, at the same time, the same court had to assess the damages of any person who was injured as a result of that dangerous driving. It seems a very curious combination of the civil and criminal law, and I doubt whether either the civil or the criminal courts would welcome this novelty.
LORD WINTERBOTTOM: Not being a lawyer, I cannot assist the noble Lord, Lord Drumalbyn, by quoting any precedent. But what I do know is that the Government are opposed to this Amendment, for the reasons outlined by my noble friend Lord Strabolgi. In the majority of cases where goods are misdescribed, a whole line of goods are affected and many people have bought them. I see no justification for arranging compensation for the few who may chance to be concerned in prosecutions. To provide for the granting of compensation to all purchasers upon a conviction by a criminal court for an offence committed against one purchaser would be quite unworkable, since it would mean that each of them (and there might well be thousands) would have to prove that he had been supplied with the goods or services concerned, and to show what loss he had suffered as a result of the misdescription. We believe that this is simply not a practical measure, and for this reason I ask the noble Baroness to withdraw her Amendment.
BARONESS ELLIOT OF HARWOOD: I think the noble Lord exaggerates, as indeed did the noble Lord, Lord Stratiolgi, the effect the Amendment

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would have, since it is, in effect, already in the Criminal Justice Act 1948. It might work in a different way from what was suggested. I thought of the person who was the complainant, and who had been given false goods or been cheated in some way, being the person who received the compensation. I accept that if the compensation had to go to a great many people who had not taken the trouble to prosecute that would add to the complications and would make the Amendment unworkable. But I should have thought it only right that it should be possible for an offence under this Bill to be treated in the same way as an offence under the Criminal Justice Act 1948. However, if that is not possible perhaps the noble Lord will consider giving an indication that compensation might be paid in some other way. I beg leave to withdraw the Amendment.
LORD DRUMALBYN: Before my noble friend withdraws the Amendment, I wonder if she could make plain whether the Amendment was intended to mean that compensation would be paid to the purchaser only where the purchaser was the prosecutor.
BARONESS ELLIOT OF HARWOOD: Yes.
LORD DRUMALBYN: That is not what the Amendment says.
BARONESS ELLIOT OF HARWOOD: My intention was that the person who initiated the prosecution and won the case should be given compensation. If the wording that I have put forward is not correct, I am sorry. But that was my point.
LORD LEATHERLAND: I am not a lawyer, but would it not be possible in such an event for the court to award costs in favour of the prosecutor, those costs to include any time lost from her work, and also the expenditure in which she had been involved in purchasing the tins of goods which became the subject of the prosecution?
VISCOUNT COLVILLE OF CULROSS: No. I am quite sure that the costs would not include all that. But I should have thought there were really two points on this. The first is that I know very well that at the moment a Committee is
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considering the whole question of the supplementary payment of compensation in the case of criminal prosecutions. This is a matter that was discussed under the Criminal Law Act which we had last Session, and I remember that at that time the noble Lord, Lord Stonham, told me there was a Committee looking into this matter. I should have thought it would be a mistake to introduce an ad hoc provision of this kind in advance of the Report of that Committee.
The second point is that criminal courts are not really set up in order to assess civil damages. If there are cases in which somebody has really suffered damage as a result of the misdescription or false description of goods, and has a real pecuniary damage to show for it, that is what the county courts are for.
Amendment, by leave, withdrawn.
6.8 p.m.
LORD ILFORDmoved to add to the clause:
"( ) A prosecution for an offence under this Act may be instituted either at the place where the offence is alleged to have been committed or at the place where the offence is detected."
The noble Lord said: This Amendment deals with an administrative matter. Your Lordships will recall that the local authorities who are weights and measures authorities are made responsible by the Bill for the administration of the Act. They are the chosen instruments by which the Act is to be operated. The local authorities are very anxious to obtain this Amendment, and it will certainly facilitate their task very considerably. I hope that your Lordships, and the noble Lord who is going to speak for the Government, will agree that this Amendment should be introduced into the Bill. It provides that a prosecution for an offence under the Act may be instituted either at the place where the offence was detected, or at the place where the offence was committed. In the normal way, of course, the prosecution would occur at the place where the offence was committed. Rather different considerations apply. I think, to prosecutions under this Bill.
There are several reasons why the Bill should include this provision, which might not be acceptable in the case of a Bill of another character. Here it is very possible that an offence may be

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committed in one town and detected in another. That would mean that the authority which would prosecute for the offence might not be the authority which had detected it. That, I think, is in itself not a satisfactory arrangement. Or, equally, it might mean that if the offence was committed in an area outside the area of the authority in which it was detected, the prosecution would have to be undertaken by one authority in the area of another. All those factors make this rather different, I think, from an ordinary case; and I should have thought that no injustice could be done by making this provision. I hope that your Lordships will agree to it and will give the local authorities, who are going to have a difficult task in administering this Bill, this additional power which they are very anxious to receive. I beg to move.
Amendment moved—
Page 10, line 12, at end insert the said subsection.—(Lord Ilford.)
LORD DRUMALBYN: May I ask a question about this Amendment and its effect, first of all? Does this mean that, as between England and Scotland, an offence which was committed in England could be prosecuted in Scotland, and vice versa? Again, it seems to be going rather wide. Also, is it not desirable, broadly speaking, in a measure of this kind, that prosecutions should be undertaken in relation to offences over certain areas, rather than that a weights and measures authority should be able to prosecute in respect of offences that are not committed or detected in their areas? I am not quite certain how far this particular provision would go.
LORD ILFORD: If I may speak again, I am not quite sure that I followed my noble friend. It would certainly make it possible to prosecute for an offence which had not been committed within the area of the prosecuting authority, the prosecuting authority having detected the offence. They might very well have to prosecute it outside their area.
BARONESS ELLIOT OF HARWOOD: May I add just one word? My Council are in very close touch with the weights and measures authorities, and the inspectors find it a great handicap under the present law that they can prosecute only where an offence affects their own locality.
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The goods may have been labelled in London and the offence committed there. Although two authorities can co-operate to bring a prosecution, the difficulties and expenses of providing witnesses from another part of the country make this very difficult. Therefore, as the noble Lord, Lord Ilford, has said, the Amendment would make matters much easier and more practicable for those local authority officials about whom we are on this occasion talking—namely, the weights and measures officials who are the employees of the local authorities. I beg to support this Amendment.
LORD PARGITER: It would seem that there is a real difficulty here in these modern days, when so many goods, having been packed in one place, are distributed over a very wide area. The person actually selling the article over the counter may rot be guilty of any offence at all: he may be acting in perfectly good faith. Obviously, therefore, no prosecution ought to lie against him. But the person who supplied him with the goods may well have been guilty of an offence, whether wilfully or otherwise. It seems to me that, in those circumstances, the prosecution ought to take place at the point where the offence is committed, and not in some remote shop where the goods happened to have been sold. It seems to me that the object of the Amendment is to provide for this.
I appreciate the difficulties that arise from this method. There may be a number of authorities who discover this particular offence at about the same sort of time, or within a reasonably short time of one another while the thing is boiling up, and who might equally want to prosecute. Being obliged to prosecute in their own area, it could well be that there would be several prosecutions for what is virtually the same offence; whereas if the whole prosecution could be taken at the point where the offence is committed, one authority could do the prosecuting. I am not arguing about which one should do it, but certainly the authority which discovers the offence would have the right to prosecute at that point. The other authorities concerned would then be quite willing to leave this with a single prosecution. It seems to me quite wrong to have the possibility of a dozen prosecutions where

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one prosecution could settle the issue. I think that is the point which the noble Lord has in mind in his Amendment. It is one, I know, which the county councils, as weights and measures authorities, would support, and I hope that my noble friend will find it possible to accept it.
This is about the only thing that gives any weight to the requirement of notice to the Board of Trade. It may well be that a limited period of notice might be given to the Board of Trade when it was proposed to prosecute in another area, so that there might be some collation of these things which have boiled up at the same time, in order that there should be not more than one prosecution. That might justify the Board of Trade in becoming a sort of co-ordinating authority for the purpose of the prosecution. I cannot think of any other circumstances in which the Board of Trade would require to deal with or give an authority for a prosecution. I am rather trespassing on another point, but I thought your Lordships would be willing to allow me to do so in order to illustrate perhaps the only thing that the Board of Trade could usefully do with regard to prosecutions themselves.
LORD FORSTER OF HARRABY: Is there not a practical disadvantage in this proposal? Suppose an offence which is committed in London is detected in Newcastle. If you are going to try it in Newcastle, you have to take all the witnesses necessary for its proof from London to Newcastle. If you try it in London, all you need do is to bring the man back to London. Are you not going to make very heavy weather by prosecuting him in a place where the offence was not committed at all?
LORD ILFORD: May I speak again? The Amendment will, of course, give the local authority an option as to at which place they prosecute. I do not think the difficulty that my noble friend has raised is really a substantial one.
LORD WINTERBOTTOM: First of all, may I answer the point raised by the noble Lord, Lord Drumalbyn, on the question of England and Scotland? The effect of the Amendment would in fact be, as the noble Lord foresaw, that if this Amendment were carried it would be possible to try in Scotland an offence
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committed in England, and I believe this would cause very great complications. On balance, Her Majesty's Government are against this Amendment for the following reasons. The general rule of the criminal law is that a prosecution must be instituted in the place where the offence is alleged to have been committed. This applies whether the offence is tried summarily or on indictment. This basic rule has been extended by Statute, principally by the Criminal Justice Act 1925 and the Magistrates' Court Act 1952, and the extensions are complicated. But, very broadly speaking, a person may be prosecuted for an indictable offence also in the place where he is apprehended or is in custody, or where he has appeared in answer to a summons. For summary offences, the general rule—that is, the place where the offence was committed—applies, subject to some very limited exceptions not relevant here.
This Amendment, moved by the noble Lord, Lord Ilford, would make a special extension, not known to the criminal law generally, for offences under the Bill. I think the noble Lord would have to show much stronger ground than he has to justify an exceptional case here. It would cause serious injustice. The case has been made by one noble Lord who mentioned an offence which was committed in London but detected in the North of England. It would be difficult to try the case at the point of detection. The mere wish to strengthen the arm of the enforcing authorities, laudable though that may be, is not sufficient to make such a drastic change desirable solely for the purposes of this Bill. I have listened carefully to what was said but I do not believe that the noble Lord has made a sufficiently strong case to alter the present Rules which apply over the whole field of criminal law. Therefore I cannot advise the Committee to accept this Amendment.
LORD PARGITER: Before the noble Lord sits down, would he just explain the words "where the offence is committed"? Is it committed when the article is sold or is it committed at the time when it was packed? Where is the offence actually committed?
LORD WINTERBOTTOM: The prosecuting authorities will, in fact, form an opinion where the offence has been committed, whether it be at a factory or a

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packing station or at the counter of a retail shop. The prosecuting authority will have to decide this.
LORD ILFORD: I am sorry the noble Lord has not been able to do a little more than that to encourage the local authorities in what they have to do. In the circumstances, I have no alternative but to ask leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
Clause 17 agreed to.
Clause 18 [Time limit for prosecutions]:
6.23 p.m.
LORD DRUMALBYNmoved to add to subsection (2):
"except in the case of an offence in respect of an oral statement about goods."
The noble Lord said: The purpose of this Amendment is to restrict to six months from the commission of the offence, in place of twelve months, the period of time within which a magistrates' court may try an information. The way this is done, simply by putting in the words,
"except in the case of an offence in respect of an oral statement about goods",
takes out oral statements alone and brings them within Section 104 of the Magistrates Courts Act 1952, which lays down a period of six months. The Bill extends the normal period of six months to twelve months in the case of offences under this Bill. The reason for doing this is, I think, obvious. With offences not connected with oral misdescription there is generally some documentary evidence: whereas by the nature of the case of oral misdescription there can be no documentary evidence, for the people concerned, the shop assistants, may have left the employment and gone elsewhere. In any case, after six months memories grow dim. Altogether, there seems to be a good case, so far as oral misdirection is concerned, to stick to the usual rule of six months. I beg to move.
Amendment moved—
Page 10, line 21, at end insert ("except in the case of an offence in respect of an oral statement about goods.").—(Lord Drumalbyn.)
LORD WINTERBOTTOM: The Government have a great deal of sympathy
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with the object of this Amendment. For the reason stated by the noble Lord, it is accepted that it would be desirable to ensure that summary offences in respect of oral statements should be tried as soon as possible. But the Amendment has several implications which I think need further thought. For instance, if a different rule could be adopted for offences related to oral misdescription it would seem odd to confine it to statements about goods. Do not the same arguments apply to all statements about prices and services? We are also not sure at this stage whether there may not be technical difficulties about adopting a different period of limitation. I am also bearing in mind that the Amendment as it stands would apply only to England and Wales; so the position in Scotland and Northern Ireland would have to be considered.
If the noble Lord would agree to withdraw his Amendment we should be ready to consider whether it will be practicable at a later stage to put forward a proposal which would secure the object he has in mind. But at the moment—and I say this as a warning—we are not certain that it will prove practicable. With my promise to do the best I can, will the noble Lord withdraw his Amendment?
LORD DRUMALBYN: With that statement of good will on the part of the Government towards this Amendment, I beg leave to withdraw it.
Amendment, by leave, withdrawn.
On Question, Whether Clause 18 shall stand part of the Bill?
LORD DRUMALBYN: May I ask a question on Clause 18? Am I right in thinking that subsection (1) of this clause restricts the period, as opposed to subsection (2) under which the period is extended? I understood at some stage that the normal rule is that, so far as offences on indictment are concerned, there is no limit to the period within which the prosecution must be brought. In the Bill, the period is three years. Is it the case that an especially long period is being prescribed here?
LORD WINTERBOTTOM: It was chosen as a particularly long period. That is all I can tell the noble Lord at this stage.
LORD DRUMALBYN: Longer, that is to say, than the normal period for prosecutions on indictment? Then perhaps the noble Lord can explain why a particularly long period is necessary in this case.
LORD BROWN: These are difficult questions—not that I blame the noble Lord for asking them. I think the nature of the offences that may arise under this Bill are such as to warrant this extension of period. There will obviously be some offences which may not be detected for a long time. It would be a pity in some cases to allow people to get away with serious offences because the period since they were committed has outstripped the length of time during which prosecutions can be brought. Therefore the period has been lengthened.
Clause 18 agreed to.
Clause 19:
Offences by corporations
19.—(1) Where an offence under this Act which has been committed by a body corporate is proved to have been committed with the consent and connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
LORD AIREDALEmoved, in subsection (1), after the first "or", to insert "not being an offence under section 13 of this Act". The noble Lord said: Clause 19 deals with offences by directors, managers, secretaries and so on by consent and connivance or by negligence. This Amendment applies only in the case of negligence, and also only in the case of offences that have been committed under Clause 13, which is the clause dealing with false or misleading statements as to services. The Committee will remember that an offence is committed under Clause 13 only if it is made knowingly, that is to say, deliberately, or recklessly.
I am seeking by this Amendment to introduce a safeguard against the case that whereas a person behind the counter
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has committed an offence only because he has acted deliberately or recklessly, under this clause (if it is not amended in the way I seek to amend it) some manager or director, who must of course be only in remote control of the person behind the counter, will be liable to be prosecuted for a criminal offence for mere negligence. I do not use the expression "mere negligence" as suggesting that negligence is not something to be deplored. But negligence is a very much lower degree of culpability than deliberate responsibility or recklessness. So I am seeking to ensure that in a case where the person behind the counter dealing with a customer has committed an offence only because he has acted recklessly or deliberately, the director or manager in remote control shall not automatically be liable to prosecution for mere negligence, seeing that he has only remote control over the person who commits the principal offence. I beg to move.
Amendment moved—
Page 10, line 32, after ("or") insert ("not being an offence under section 13 of this Act").—(Lord Airedale.)
LORD PARGITER: I cannot understand the reason for an Amendment of this kind when one looks at what the clause says. It says that an offence
"is proved to have been committed with the consent and connivance of, or to be attributable to … "
Surely this implies, whether it is under Clause 13 or any other clause, that someone has deliberately connived at what has been done. I should have thought that this interpretation shows that a person must be proved to have been guilty at least of assisting in the commission of the offence.
LORD AIREDALE: If the noble Lord, Lord Pargiter, reads subsection (1) he will see that it says:
"… committed with the consent and connivance of, or to be attributable to any neglect on the part of any director, manager …"
There is the contrast of connivance and consent on the one hand and mere neglect on the other hand.
LORD PARGITER: With respect, if it is proved that he has neglected to do his duty would not he be prosecuted?
LORD DRUMALBYN: That would be so, but for the way in which Clause 13 is drafted. It says:
"It shall be an offence for any person in the course of any trade or business—

(a) to make a statement which he knows to be false; or

(b) recklessly to make a statement which is false."

It is very difficult to find that that is compatible with neglect. I think that here my noble friend is on a logical point. It is a question of compatibility between the two clauses.
LORD WINTERBOTTOM: This is a legal argument. Our view at the moment is that Clause 19, both in form and substance, is the provision which is found in nearly all modern Statutes under which an offence may be committed by a company, which is a purely legal person, and which is actually responsible afterwards. It has long been recognised in our Statute Law that if those officers consent or connive at the company's criminal offence or if it is attributable to their neglect, then they as well as the company shall be guilty of an offence. This is very necessary if the criminal law is to be enforced adequately. The noble Lord, Lord Airedale, has sought to convince us that we should depart from part of this well-established policy in cases where the offence in question is one relating to false or misleading statements as to services under Clause 13.
Having listened to the noble Lord's speech with the care that I find necessary to listen to all legal arguments, I am afraid that I am not completely convinced. If the company is guilty of knowingly or recklessly making a false statement about its services, regardless of whether it is true or false, but it does so owing to neglect on the part of, say, a director who has failed to exercise proper control over the employee who made the false statement, the director should not be permitted to escape liability. We believe that it would seriously weaken the deterrent effect of Clause 13 were he allowed to do so. That is the present view of the Government. Nevertheless, the opposite case has been argued forcibly by two noble Lords, and we will have a look at it before we finally make up our minds.
LORD AIREDALE: I am obliged to the Minister for that assurance. I was not going to weary the Committee with an example, but in view of the observations of the noble Lord, Lord Pargiter, may I shortly explain the sort of situation I have in mind? A company runs a travel agency, and the manager has failed negligently to supply all the details about a particular coastal resort. Somebody has come into the shop and asked the person behind the counter, "Has this place got a nice sandy beach and safe bathing?" The assistant is usually a very reliable person, but it is a hot day and near closing time, and so he is suddenly a bit reckless and says, "Yes, safe bathing and a nice sandy beach", which is all wrong. Under Clause 19 as unamended, the manager who had negligently failed to give his assistant all the particulars is liable to be convicted for mere negligence when the assistant ought to, have said to the customer, "I cannot answer your question, because I have not the particulars." In such a case I do not think that the manager ought to be liable for criminal prosecution. That is all I am suggesting. Since the matter is to be looked at again, I am very pleased to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 19 agreed to.
Clause 20:
Accessories to offences committed abroad
20.—(1) Any person who, in the United Kingdom, assists in or induces the commission in a country outside the United Kingdom of an act in respect of any goods which would be an offence under section 1 of this Act if the act were committed in the United Kingdom and the goods were intended for despatch to that country shall be guilty of an offence, if the trade description concerned is false—
(a) in giving an indication (or anything likely to be taken as an indication) that the goods or any part thereof were manufactured, produced, processed or reconditioned in the United Kingdom, being an indication which could not on any reasonable view be regarded as true; or
6.37 p.m.
VISCOUNT COLVILLE OF CULROSSmoved, in subsection (1), to leave out "a" and insert "any other". The noble Viscount said: This is the clause which was mentioned on Second Reading. Although I have found a certain amount of difficulty in seeing exactly what all the words are

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intended to do, a great deal of assistance was given to the Committee by the speech of the noble Lord, Lord Brown, during the Second Reading debate. The noble Lord said he was trying to catch the person who prints or, I suppose, induces somebody abroad to print, labels to be used in connection with whisky which had been made in some foreign country and was to be sold there with a label on it saying that it was made in Scotland. The noble Lord said this was a very serious thing to do and should be covered by the Bill.
The Amendment which I have put down is primarily one intended to obtain clarification, but I hope that it may be in order if, having introduced the Amendment, I make a slightly wider speech. It is quite clear that the person concerned has to be in the United Kingdom, otherwise the criminal law of this country will not bear upon him, but he may assist or induce the commission of an offence by an act somewhere else, in a foreign country, and it will be an offence for him to do it—or it would have been, under subsection (1), had the offence been committed in this country, and also, as I understand it, if the goods were to be despatched to the country in which the offence was committed. The way that this clause reads seems to be to be capable of a double construction. It might be that in line 6 "that country" could relate back to the last mentioned country, which is, of course, the United Kingdom. I do not think that that is what is intended; I think it is meant to relate back to the foreign country which is referred to in line 2. Therefore, in order to make quite clear that this is the case, I consider that the words I suggest in this and Amendment No. 44, which should be read together, would be an advantage.
I know that no draftsman is anxious to have extra words put into his Bill, but I should have thought that this was a difficult clause on the face of it, in any event, and if we could give a few more guide posts it might not be a bad thing. The broader issue is, what is the point of introducing the words in lines 5 and 6:
"and the goods were intended for despatch to that country …"?
I do not understand why we have to put them in the clause. If we could leave them out, my problem would not
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arise. Perhaps the noble Lord will explain. He might also consider whether it is right to extend the criminal jurisdiction of our courts over activities which are committed in other countries where, I assume, they may not be illegal. I appreciate that this clause has to do almost entirely with the labelling of goods as being made in England, Scotland or Wales or in whatever part of the country it may be, and it is a rather narrower offence than the whole gamut of offences which could be committed under this Bill, but I wonder whether the noble Lord has considered the situation where it is perfectly legal to do this in a foreign country but the man is nevertheless penalised because he happened to have started a telephone conversation in London. There is a point of force here, even if it is a dreadful thing to say that foreign Scotch was "made in Scotland".
Amendment moved—
Page 11, line 2, leave out ("a") and insert ("any other").—(Viscount Colville of Culross.)
LORD CAWLEY: On this clause, I have submitted a memorandum to the noble Lord, Lord Brown, because I find it extremely difficult. I find subsection (2) easy but the rest very difficult to understand. I will not repeat what the noble Viscount said. I put that point on Second Reading. The clause suggests that there may be some situation in this country where the application of a false trade description may be an offence only if the goods are intended for despatch to some country overseas. That appears to be something not contemplated by Clause 1 of the Bill. A false description is a false description wherever the goods are going to be sent. I think it would be better if this was removed. We get the curious phrase in subsection (1)(a),
"… being an indication which could not on any reasonable view be regarded as true;"
I think that this presents a great difficulty for a magistrate, because it appears to be another interpretation of the meaning of "false". I should have thought that there was no difference between "an indication which could not on any reasonable view be regarded as true" and false.
In paragraph (b) I find great difficulty in the words "in using", because they must refer to trade descriptions, so that it would read:
"… the trade description concerned is false … in using an expression …"

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Noble Lords and I can use expressions but I very much doubt if a trade description can, though it may be able to do so. The paragraph continues:
"… (or anything likely to be taken as an expression) to which, when used in the circumstances in which it is used, …"
Surely that must be a different type of user. It must be application to goods. I find this extremely difficult.
In the past, there have been cases where a jury of matrons has been empanelled to decide certain facts. Surely in this case we could empanel a jury of lay magistrates and put this section before them, to see whether they could make head or tail of it. I am not against its principle—I think it is absolutely right—but I do not want malefactors to "get away with it" simply because magistrates cannot interpret the clause.
LORD HAWKE: I am thoroughly in favour of the clause but, as my past experience as a merchant shows, one can often commit an offence such as this if one cannot disentangle precisely what offence is intended to be caught by the clause. I find it difficult to understand this clause, and by the time it is translated into Japanese it will be still more difficult. If one gets something done in Ruritania which is an offence in this country and has the goods shipped to any country in the world, including the United Kingdom, that should be and could be an offence here. I cannot understand why it is only an offence if one causes the action to be committed in respect of goods which are to be despatched to Ruritania itself. What happens if you despatch goods to Ruritania and they are falsely labelled in Ruritania? There seems to be something defective dwelling here. I think that the clause wants redrafting.
LORD BROWN: It would be just as well if I started my reply in support of this clause by saying that I discussed the whole clause with those who drafted it. They believe that though it is difficult in wording, it is clear in law. Noting the criticisms on Second Reading and the criticisms in Committee to-day and other communications I have received, I have come to the conclusion that we ought to make an attempt to straighten the clause out and see whether
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we cannot do something better. But I cannot assure your Lordships that the attempt will be successful. There may be more difficulties in straightening this out than noble Lords believe to be the case.
Rather than let the points raised by noble Lords go by default, I ought to point out the defence against some of the criticisms that have been made, especially, though I hope this will not be the case, if we have to bring the clause back in its present form. Dealing with the noble Viscount's Amendment, I suggest that as the clause is now drafted the words "that country" in line 6 can refer only to the country outside the United Kingdom referred to in lines 2 and 3. I ought to point out that to speak of any country outside the United Kingdom suggests that reference has already been made to some country outside the United Kingdom when previous references are to the United Kingdom. These are debating points on wording and I do not want to pursue them.
LORD HAWKE: I am absolutely agog with curiosity about what the words "to that country" really mean. Will the noble Lord translate them?
LORD BROWN: To the country to which the goods have been exported, of course.
VISCOUNT COLVILLE OF CULROSS: The whole point is that the goods were never here in the first place. They were always in Ruritania. All that has happened here is that either the criminal has printed the labels and sent them to Ruritania or he has encouraged a Ruritanian to print the labels in Ruritania, but the goods never have to be in this country at all.
LORD BROWN: As regards the labels being sent out to be attached to goods in that country, the reference is to the labels being sent to some other country.
LORD HAWKE: I think that this is a hare. What we want to discover is the meaning of the phrase "that country". I should have thought that it was an offence to commit in Ruritania an act in regard to goods that were going to any country in the world. Why the phrase "that country"?
LORD BROWN: Because we are referring to a particular offence, and "that country" in line 6 refers to the country in line 2. That is a straight answer to the question.
LORD CAWLEY: This is a hypothetical case. We have to consider hypothetically whether an act done abroad is an offence here. A false trade description is an offence, whether the goods are to be exported to Timbuctoo or to Russia. If they have "Gran Bretagna" on them, do we say that they are going to be exported to Italy and therefore it is an offence there?
LORD HAWKE: Perhaps it is the word "despatch" that is misleading. If we put in the words "for sale in that country", that would make sense. But that means that you can still do anything in Ruritania and ship the stuff to Utopia and it is no offence.
LORD BROWN: We could carry on this debate for a long time if we pursue the meaning of words. It might be useful for the record if I made a further statement on the purpose of this clause. Subsequent to that, if the noble Lord, Lord Cawley, will gracefully agree, I will not take up the specific points he raised in the memorandum that he sent me, but I will certainly write to him about them. I think the main crux of the discussion that we have had so far is likely to be covered by my undertaking that we will look at the clause and see whether we cannot do better. That rests on the assumption that noble Lords are basically agreed that the general drive of the clause is in accord with their desires. I will now describe the general drive of the clause.
The purpose is to make it an offence for a person in the United Kingdom to act as an accessory to the commission in a country outside the United Kingdom of an act which, if committed in the United Kingdom in respect of goods intended for export to that country—if you like, I will say "any country"—would constitute one or more of the following types of offence under other clauses of the Bill. First, an offence under Clause 1 consisting of the ascription of British origin to goods which could not on any reasonable view be described as British; for example, a dealer carrying on business in
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the United Kingdom buys a consignment of Polish cotton goods which have no connection of any sort with the United Kingdom. He orders his agent in, say, Amsterdam, to mark them "Made in England" before they are resold—
LORD CAWLEY: Surely that is false. The word "false" is enough.
LORD BROWN: We are dealing with false descriptions.
VISCOUNT COLVILLE OF CULROSS: My noble friend is referring to "on any reasonable view". I think it would be better, as the noble Lord, Lord Brown, has suggested, to leave that point.
LORD BROWN: I see. Secondly, an offence under Clause I consisting of the incorrect use of a term which has been defined under the power provided by Clause 7 in the interests of exporters of the goods concerned; for example, the Board might use their powers under Clause 7 to define "whisky" because they thought this would help British distillers to combat the misuse of the expression in foreign markets. If "X" exports labels marked "Whisky" to be applied to a spirit which is not "whisky" as defined by an Order made under Clause 7 in the interests of exporters of whisky, he commits an offence under this clause.
Thirdly, an offence under Clause 12 relating in the main to false representations as to Royal approval or award. This would cover a British manufacturer who ordered his agent in Canada to mark a consignment of shoes then lying in Montreal "As supplied to the Prince of Wales" when the claim was not true.
Let me make it quite clear that this is not an attempt to make laws for foreign countries, nor to assist in the enforcement of their laws. It is designed to prevent people from doing things in this country to assist actions done abroad which could injure or unfairly exploit our commercial good name or the dignity of the Crown. In the light of that expression of the function of the clause, my undertaking to take into account all that has been said, particularly the cogent remarks of the noble Lord, Lord Cawley, about which he has written to me, and my assurance to attempt to see whether we cannot produce a simpler clause which gives effect to those intentions, I hope

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the noble Viscount will find it possible to withdraw the Amendment.
LORD DRUMALBYN: I do not think the noble Lord has actually dealt with the words "in the United Kingdom", in the first line. I think my noble friend drew attention to the fact that it does not matter where he does this action provided the accessory is a British subject, normally resident in Britain, and he is doing it with a view to the sale of the goods in Britain. But it does not matter whether he assists in or induces the commission in the United Kingdom, or whether, when he actually assists in or induces the commission he does it in Amsterdam.
LORD BROWN: I take the noble Lord's point. He could be prosecuted when he came back.
LORD DRUMALBYN: Yes.
VISCOUNT COLVILLE OF CULROSS: I am obliged to the noble Lord, Lord Brown, for suggesting that this might be reconsidered. I should like to read carefully what he has said, because, if I may be a little unkind, the sentence in which he described the drive of the Bill was almost as long and complicated as the sentence in subsection (1) of the clause itself. I think that it will require some study. Noble Lords should not think that those on this side of the Committee have not tried to redraft subsection (1). Some of them have, and have found it very difficult. I thought that it would probably be better to start on the Committee stage with the simple language and leave the noble Lord to deal with that.
There is one point which the noble Lord made about which I am not quite happy. He took my illustration of the labels for whisky. If we can, for the moment, exclude the possibility of "whisky" being defined as a technical term, it is, I think, quite plain that those labels themselves are not the goods, because until they are attached to a bottle of something which is not Scotch whisky there is no falsity and, I should think, no offence under the Bill. Labels in themselves are quite harmless until they become attached to something. Therefore, they are not the goods. The goods must be the bottle with the label on it and the spirit inside. If the noble Lord's advisers suggested otherwise, then I think
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they must be wrong. Perhaps that is another point that might be looked at. Meanwhile, I have pleasure in asking leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD CAWLEY: I must apologise to the noble Lord, Lord Brown, for the apparent use of unparliamentary language when I used the word "false". It was not addressed to the noble Lord's argument, but merely to the definition of the word. I think my noble friend Lord Colville of Culross picked it up.
LORD BROWN: I assure the noble Lord that no offence is taken.
Clause 20 agreed to.
Clause 21 [Restrictions on institution of proceedings and admission of evidence]:
6.57 p.m.
LORD DRUMALBYNmoved to leave cut subsection (1) and insert:
"(1) Where any act or omission constitutes both an offence under this Act and an offence under the Food and Drugs Act 1955 or the Weights and Measures Act, 1963 or the Weights acid Measures Act (Northern Ireland) 1967 proceedings for the offence shall not be instituted under this Act".
The noble Lord said: I beg to move the Amendment standing in my name and that of my noble friend Lord Cawley. As it stands, Clause 21 provides for the steps, such as service of notices and evidence concerning analysis, to be taken where any act or omission constitutes both an offence under the Bill and also an offence under one or more of the other Acts set out and any instrument made thereunder. This means that persons are at risk under two or possibly three Statutes, each of which provides for different procedures (including notices), different defences and different penalties. The proceedings under these Acts already on the Statute Book are well known, and weights and measures authorities have no difficulty in carrying them out. The food trade, on its side, has enough to contend with in complying with the complicated regulations made under the Food and Drugs Act, without having to look over its shoulder at possible additional charges based on the same alleged offence. It is surely only equitable that where an offence is covered by one of the existing

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Statutes no charge should lie under this Bill.
It is possible that a tendency will develop for the prosecution to bring alternative charges under the different Statutes and later to stop prosecution under the more specific Food and Drugs Act and Weights and Measures Act, and opt instead for the wider provisions and stiffer penalties of this Bill. Where legislation exists to deal with specific offences prosecutions should surely be brought under that legislation and not under alternative more general measures. Overlapping legislation can only lead to confusion. I beg to move.
Amendment moved—
Page 11, line 23, leave out subsection (1) and insert the said new subsection.—(Lord Drumalbyn.)
LORD BROWN: I agree with the noble Lord about the attraction of this and the next Amendment, and we should be glad to adopt such a neat and tidy arrangement if we thought it would work satisfactorily. In practice, however, we fear that it would give rise to difficulties. There are bound to be cases where goods are described in a way which would seem clearly to offend against this Bill and which might possibly, but less certainly, offend against one of the other Statutes. Under the Food and Drugs Act, for example, it is an offence to label or advertise food in a manner likely to mislead as to its nature, substance or quality. In given circumstances it may be doubtful whether a description would be held to be misleading when there is little or no doubt that it amounts to a false trade description under this Bill. In such circumstances it would obviously be sensible for the prosecutor to proceed under this Bill.
Similarly, in the case of weights and measures there might be some doubt whether a misdescription of quantity under this Bill would or would not also be an offence under the Weights and Measures Act, bearing in mind that the expression "quantity" is not precisely defined in the latter Act.
If this Amendment were accepted it would be necessary, in any case which was near the borderline, to prefer charges under this Bill and under the other legislation, because no one would know which was appropriate. Furthermore, it would
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be essential that the court—which would be prohibited from convicting on both charges—should convict under the right Act, or its decision would be liable to be reversed. There would be a danger of endless argument about which Act was appropriate; and a more serious danger that the Amendment would create the very situation which reform of the criminal law should avoid; namely, that in which a person commits an act which it is intended should be penalised and escapes conviction because of a technical difficulty in formulating the charge. It is on these grounds, and in view of the possibility that criminals might escape through the loopholes created by the Amendment, that I strongly ask your Lordships not to accept it.
LORD DRUMALBYN: I am grateful to the noble Lord for having explained this matter, and in the light of his explanation I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
7.3 p.m.
LORD DRUMALBYNmoved to add to the clause:
"( ) No proceedings under this Act in respect of an oral misdescription of goods shall be brought if the oral statement conflicts with any statement marked on or accompanying the goods and that information is not false, unless the purchaser had no opportunity of examining the goods on or before purchase."
The noble Lord said: This Amendment is self-explanatory, and I think it is intelligible. The point of the Amendment is quite clear. We have these complicated labelling regulations, and if the manufacturer complies with them the least that the customer can be expected to do is to read them and not to rely on some passing remark of the retailer. As the saying is: why look at the crystal when you can look at the book? It is exactly the same here: why ask the retailer to make a statement which is clearly contained on the label? Of course there is the case that the label might be concealed, or the purchaser might not have an opportunity of examining the goods on or before purchase, and in such a case an exception is made in the Amendment. But it seems that this would be sensible. Although we want to protect the consumer from being cheated, I think the last thing any of us want to do is to over-cosset the consumers and get them out of the way of protecting

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their own interests by taking reasonable steps such as reading the label. I beg to move.
Amendment moved—
Page 12, line 21, at end insert the said subsection.—(Lord Drumalbyn.)
LORD SAINSBURY: As a retailer I think this is a fair and very reasonable Amendment in the circumstances, and I am happy to support it.
LORD AIREDALE: I feel some difficulty in interpreting the words at the end of this Amendment: "no opportunity of examining the goods on or before purchase". In these days so many goods are available for sale, sealed up in containers, boxes, bottles and so on. In such cases does the customer in the shop have an opportunity to examine the goods? In what sense does he have such an opportunity? The goods are inside the sealed packets or bottles. In theory they are there, ready to be examined by the customer; but in practice the shopkeeper will say, "If you break that seal you will have to take those goods because I shall not be able to sell them to anybody else". How will the court construe the words "opportunity of examining the goods on or before purchase"?
LORD BROWN: At first sight this is one of the Amendments which one looks at and says, "This is absolute common sense. Obviously one must accept it". But when one looks a little further it is not so certain. When goods are clearly labelled with information which is quite clearly visible on the outside, it is not at all unreasonable to expect shoppers to look at the information. Unfortunately, as the noble Lord, Lord Airedale, has said, labels are not always clear and obvious. For example, nowadays it is not at all uncommon for a label saying whether a garment is washable to be tucked away inside: in fact I think this is becoming the predominant habit rather than the exception. The shopper may not bother to hunt for it, because she may not know that it is there, and in such circumstances it is very easy for her to ask the question of the shop assistant, who ought to know what is on the label, yet she could be given totally wrong information.
The precise objection to the Amendment is that it would create a loophole in
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the Bill of which dishonest traders could take advantage, I question whether it is wise to allow such a loophole to emerge because it allows a shopkeeper to deceive customers. For instance, if a label said that a garment was made of wool and rayon the shopkeeper might assure the customer that in fact it was practically all wool. Again, the label might say that a garment could not be washed, but the shopkeeper might assure the customer that it was perfectly all right to wash it, and in fact this was just a case of the manufacturer being over-cautious. I have had such statements made to me. I question the advisability of adopting this Amendment, and I should like to hear whether noble Lords opposite have anything further to say in defence of it.
LORD AUCKLAND: I am not particularly convinced by the explanation given by the noble Lord, Lord Brown. So far as the labelling of garments is concerned, surely it is common sense that the label should be on the inside of the garment, and it is usually fairly easy to see. If, as this Bill intends, there is to be protection for the consumer, the label or the instructions must be placed somewhere where they can not only be fairly easily read but also easily kept on the object concerned, so that they do not fall off or come off in the wash. A good deal of publicity has been given to this over the last few years, and I hope the Government will have second thoughts about accepting this Amendment.
LORD PARGITER: The thing that wo ries me about this Amendment, and similar Amendments, is the impression that the weights and measures authorities, or the appropriate authority, want to rush into prosecutions in every possible circumstance. Surely one can trust the local authority and the inspector, on being faced with the possibility of something being done which ought not to have been done, to examine it and say to the person who has made the complaint, "It is perfectly clear for you to see; it is printed on the label", or something of that kind. If he feels that the person is reasonably protected, it seems to me that to give further protection is not really necessary. One ought to leave something to the good sense of the authorities whose job it is to see that the law is observed. This is really leaning over

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backwards to do something that the inspectors themselves would very naturally do.
LORD STRABOLGI: I am afraid that I must, with respect, disagree with my noble friend Lord Pargiter. I think this is a very good Amendment, as my noble friend Lord Sainsbury has said, and one which should be considered very carefully by the Government. What is the manufacturer, or the retailer, to do? He takes every trouble to label the garments and to include information with them—for example, that a woollen garment will not shrink—and then a customer is misled by a sales assistant, possibly a young inexperienced assistant who may have taken on the job only that morning, who may be nervous, who may be anxious to please or anxious to make a sale. I think we must allow some protection to the retailer, who, after all, is anxious to please his customers, anxious to sell the goods, anxious that the customers will return and buy them again. He does everything he can, and now he is put at the mercy of some inaccurate oral misdescription, although he has done everything to mark his goods properly. If the customer has not got the wit or enterprise to look at the labels, I do not think local authorities should be allowed to rely on oral misdescription in this way in order to bring prosecutions.
BARONESS BURTON OF COVENTRY: As the Committee know, I do not agree with the bringing of prosecutions for oral misdescription, but on this I should have thought that if an assistant commented wrongly while the correct information was on a label the crime (if that is the word) of the assistant was all the worse. I really and truly can see no excuse at all for anybody selling goods on which there is a label or on which there is an adequate description giving wrong information, and therefore I would certainly not support this Amendment.
LORD DRUMALBYN: Plainly there are two views on this Amendment, and for my part I appreciate in particular the loophole to which the noble Lord, Lord Airedale, has drawn attention. This was imperfect drafting, but it could have been improved. Dealing with the principle of the Amendment, I still feel this is something that would be worth doing.
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I am rather horrified at the idea (and I am sure my noble friend Lady Elliot of Harwood would have squirmed at it) that while manufacturers, in co-operation with the Consumer Council, could go to all the trouble of putting on a tag, the customer may not look for it, or even know that it is there. I should have thought this was extremely unlikely.
We are really dealing with two sets of cases; those cases where, for example, in the clothing industry, a descriptive label is attached, and the other in the food industry, where a label is on the goods and often a part of the goods. I should have thought that in both cases the consumer could be expected to read the label, and I should have thought the possibility of deliberately attempting to deceive the consumer was very remote indeed. The reason why I put this Amendment down was that I felt it could be only because the shopkeeper had made a mistake. The noble Baroness, Lady Burton of Coventry, takes the opposite view, and thinks this is very reprehensible; that even if it is a mistake the shop assistant should know better. There are two points of view. I rather gathered that the noble Lord, Lord Brown, felt this was opening another loophole. This is certainly not the intention here. I do not know whether the same object could be achieved in a different way without opening a loophole, but as it is not my intention to open loopholes I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 21 agreed to.
On Question, Whether Clause 22 shall stand part of the Bill?
7.17 p.m.
VISCOUNT COLVILLE OF CULROSS: I realise that my noble friend has some Amendments down on Clause 23, but I think it might be appropriate to ask the noble Lord, Lord Brown, about the way that this part of the Bill has been dealt with. Clauses 22 and 23 together cover very much the same ground as the provision in the Food and Drugs Act 1955. I hope it is the latest Act. The section concerned is 113. What that provision does is to ensure that when an offence is committed, and the person who was originally charged says it is somebody else's fault, machinery is provided by which thy can all be

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dealt with together: they all come up before the magistrates court. I am aware it causes considerable difficulty sometimes because the machinery is not particularly easy to follow. But at least it has the merit that everybody is there at once. It seems to me the way that these two clauses have been set out is liable to lead to individual and separate prosecutions.
It may be that under Clause 23, whether it is amended or not, the person originally charged puts up a defence which is successful, and since the enforcing authority are not happy about this, and since the person originally charged has convinced the court, and them too, that it was really somebody else's fault, they then have to go off and bring another charge against that other person now found to have been the culprit. That is messy and it takes up more time than should be taken up. I wonder whether there is not something to be said for using the type of machinery in the Food and Drugs Act, so that before the case is heard by the magistrates the person charged can say, "Yes, but it was not my fault; it was the fault of my supplier". He can serve the necessary notice and have everybody there at the same time for the magistrates to sort out the position. It is really a matter of putting these two clauses together. I think there is a gap now which might lead to the administrative difficulty I have suggested. I wonder whether the noble Lord has any views on this.
LORD BROWN: Is the noble Viscount referring to the third-party procedure which was in the 1966 version of this Bill?
VISCOUNT COLVILLE OF CULROSS: Yes, I was comparing the two and seeing whether there was perhaps not the possibility of what I was suggesting occurring under this particular method of drafting. There may be good reasons for it, but I think there is this difficulty.
LORD CAWLEY: I have had some experience of the Food and Drugs Act and it is very effective.
LORD BROWN: This is a complex matter, and I have a very long technical note. I am wondering whether to read it in full or to say merely that we take note of what your Lordships have said. I
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know that this has been the subject of great consideration since the 1966 version. On balance the conclusion was that this Clause 22 should be introduced, which effectively cuts out third-party procedure and makes it unnecessary, and the law can proceed straight to the behind-the-scenes offender, if I may put it that way, without necessarily troubling the ostensible offender.
VISCOUNT COLVILLE OF CULROSS: That is perfectly true, but that is possible anyway under subsection (3) of Section 113 of the Food and Drugs Act; it is possible to go straight to the original culprit if desired, and the third-party procedure is to provide for the occasion where the enforcing authority have not done that and the person charged feels they should have done so.
LORD BROWN: Is the noble Viscount advocating that the third party procedure should have been retained in this Bill in order that the original, the superficial offender shall I call him—the man who is apparently an offender—has the right to go through this procedure even if the prosecuting authority want to take it to the "behind the scenes" offender right away?
VISCOUNT COLVILLE OF CULROSS: No, I am not; I am not suggesting anything of the kind. I approve of subsection (3) of Clause 113 of the 1955 Act, whereby the enforcing authority can start with the original offender if they know who it is. All that concerns me is this. If you do not have the third party machinery, are you not liable to have to bother the magistrates and everybody else concerned twice, because it is not until the first hearing that the defence in Clause 23 is established, and it is not until then that the enforcing authority know that there is somebody else for whom they should go? Therefore you have two cases instead of one. It may be that on balance it is better to do it that way, but I wanted to hear the noble Lord's arguments as to why the Government wish to introduce this possibility of dual proceedings into the law.
LORD DRUMALBYN: May I say this to the noble Lord opposite. I think he is aware that there is considerable interest in this point, and I think it would be of considerable advantage outside the House

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as well as within it if he were to trouble the Committee with his technical information.
LORD BROWN: I shall proceed to do that. It will be easier for me, because this is a matter outside my normal experience. We have been advised that a third party procedure was incompatible with the more formal procedure and stricter rules of evidence of a trial on indictment. We have now received further advice on this subject and the difficulties of reconciling the third party procedure with the rules applicable to the conduct of a trial on indictment have been more precisely specified.
A trial on indictment is a trial before a jury. The jury reaches its verdict under the direction of the Judge whose duty it is to give them very careful directions on the rules of evidence and to ensure that no inadmissible evidence is put before them during the trial. The Judge has to warn the jury that they must not convict except upon evidence that establishes guilt beyond a reasonable doubt. On the other hand, the standard of proof required for the defendant to establish a defence is that of the balance of probabilities. The introduction of a third party procedure would involve great practical difficulty over the application of these rules. The prosecution will produce evidence to show that the defendant is guilty, and the Judge must warn the jury that before they can find him guilty they must be satisfied beyond reasonable doubt. If, on the other hand, the defendant says that the person who is really responsible is a third party, the Judge must tell the jury that it is enough for the defendant to establish his allegation on the balance of probabilities. In these circumstances there is a danger that the jury will unconsciously set too high a standard for the defendant, because they feel that in acquitting him they are, in effect, finding the third party guilty. This will obviously be unfair to the defendant.
The rules of procedure applicable at a trial on indictment are strict and complex. The order in which the prosecution and the defence may address the court, in particular the right to the last word, are minutely regulated. These are all based on the fact that a trial under our system of criminal procedure is essentially a contest between prosecution and defence with
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the Judge acting as the umpire who sees that the rules are observed. If the third party procedure were introduced, and a third party took advantage of his right to be heard and to give evidence, the whole procedure would become unmanageably complicated.
Confusion would also arise over the application of the rules relating to the admissibility of evidence of character. The general rule is that the prosecution may not call evidence to attack the character of the defendant unless he has put it in issue (that is, unless he says in effect "the jury cannot possibly believe that I would do a thing like that, see what a high reputation I have amongst by business associates") or attacked the character of a prosecution witness. If a third party were permitted to intervene in order to defend his reputation against the defendant's allegation that he (the third party) is the real villain of the piece, it would be extremely difficult to apply this rule sensibly to the conduct of the dispute between the third party and the defendant. The third party is in effect a kind of "sub-defendant". In other words, the defendant stands in the same relation to him as the prosecution to the defendant in the main proceeding. It follows that the defendant should not be allowed to produce evidence attacking the third party or his witnesses unless the third party has put his character in issue or has attacked the character of the defendant or of his witnesses. But, if this rule is applied, the defendant will be hampered in the conduct of his defence and one of the main purposes of the rules governing the conduct of criminal prosecutions; namely, that the defendant is not to be unfairly prejudiced, will be defeated. An equally grave difficulty will arise if the third party wishes to attack the character of the defendant. As between him and the defendant it seems reasonable that he should have the same right to attack the defendant's character as the defendant has to attack the character of the prosecution witnesses. But the effect of this would be to defeat the rule that the prosecution cannot, except in the special cases mentioned above, attack the character of the defendant. It is true that it is the third party who would be attacking, but it is not reasonable to expect the jury to put out of their minds the evidence produced by the third

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party about the character of the defendant when reaching their verdict on the issue between the prosecution and the defendant. That is the technical information that I have.
VISCOUNT COLVILLE OF CULROSS: That, if I may say so to the noble Lord, is a most impressive note, and it seems to me that in so far as the conviction on indictment under Clause 17(1)(b) is concerned there is a great deal to be said for it. But, of course, there is still Clause 17(1)(a) which is the magistrates' court procedure. I quite agree with the noble Lord that the rules which should be applied at quarter sessions or assizes are probably rightly more strict than those which work in the magistrates' courts. I would not disagree with him at all about that, or about anything that he read out. But I am still talking really about summary jurisdiction, about magistrates' courts. It is there that the Food and Drugs Act, the third party procedure, works; and it is there that I am suggesting that we could possibly save time and a great deal of trouble to all the people concerned if we at any rate consider whether the same procedure (which I am glad to hear from my noble friend Lord Cawley is efficacious) is perhaps incorporated into this Bill.
Perhaps the noble Lord would like to consider whether there should be a divergence of practice between the magistrates' courts procedure, where the old third party machinery could continue, and the more serious cases which go to quarter sessions where of course it is only right that the prosecution should weigh carefully who they are going to charge, and if they get the wrong chap that is their fault. I would see no objection to that, but it means that you must alter the way the Bill is drafted at the moment.
LORD AIREDALE: I should have thought there was great advantage in having similar procedure throughout that group of Statutes which come under the consumer protection umbrella.
LORD BROWN: I could not possibly refuse to consider this matter, particularly as it is one that to a large extent arises outside the compass of my own experience. I will have it considered. I note the noble Lord, Lord Airedale's comment; but of course, by having a similar procedure to that of the other
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Statutes one has two procedures applying to this particular Bill. That may not be a disadvantage. I do not want to argue the case. I will have it considered.
Clause 22 agreed to.
[The Sitting was suspended at 7.30 p.m. and resumed at 8.30 p.m.]
Clause 23:
Defence of mistake, accident, etc.
23.—
(2) In any proceedings for an offence under this Act of supplying or offering to supply goods to which a false trade description is applied it shall be a defence for the person charged to prove that he did not know, and could not with reasonable diligence have ascertained, that the goods did not conform to the description or that the description had been applied to the goods.
LORD AUCKLAND LORD AUCKLAND moved, in subsection (1), to leave out "and (b)" and insert:
"or
(b) that he had relied in good faith upon information supplied by another person; and
(c)".
The noble Lord said: We now come to the clause dealing with defence of mistakes, accidents, and so on. There has already been reference to this clause, which is obviously one of the more important clauses in the Bill. What has to be decided by Parliament is as to what can be interpreted as a defence and what is deliberately going against the rules aid violating them. The purpose of this Amendment is to ensure that there is an adequate defence for, say, the advertising agency which is preparing "copy" and which, after some kind of inquiry, must rely upon the information which the advertiser supplies. That is but one example.
As the Bill stands, paragraph (b) of subsection (1) puts the onus upon the person concerned to consult these people himself, whether the manufacturer or the retailer. This must obviously be a very difficult matter. He may find that the other person concerned is many miles away, or that he may have left for another job. Therefore the Amendment puts the onus to some extent the other way round and allows time for some inquiry into

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circumstances, which might mean that it is the advertising agency which is preparing the "copy" and not merely the advertiser. It is clear that Clause 23 as a whole needs a good deal of study, because it is important that we should get it absolutely right as to upon whom the onus should be laid in relation to this defence clause. This Amendment is one idea which I hope the Government will consider. I beg to move.
Amendment moved—
Page 12, line 33, leave out ("and (b)") and insert the said new words.—(Lord Auckland.)
BARONESS BURTON OF COVENTRY: I am sorry, but I regard this Amendment as completely unnecessary. I contend that if we look at what the Amendment seeks to replace we find that every possible defence is given to the person called upon to defend himself. I do not see that one can take more than "all reasonable precautions" or do more than "exercise all due diligence", and I hope that the Government will reject this Amendment.
LORD DRUMALBYN: I am not quite certain that the noble Baroness's reading of this clause is the same as mine. Subsection (1)(b) says:
"that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or any person under his control"
only where paragraph (a) applies; that is:
"that the commission of the offence was due to a mistake, or to an accident or some other cause beyond his control".
This is not really enough, because there are many cases where a person who is connected with merchandising in general is not in a position to say both of those things. He may have taken all reasonable precautions, but the offence may not have been due to a mistake, or accident or something beyond his control. It may have been within his control.
The point of the Amendment is to try to fill the gap, and the kind of gap I had in mind was not only the one to which my noble friend has referred—that of the advertising agent who is briefed by the advertiser and who is not expected to check every detail of his brief. Indeed, he probably is not in a position to do so. Why should he? This
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is the advertiser's advertisement. He is paying for it and he is paying the advertising agent to present in the best possible way, in the most advantageous media and so forth, the case that he, the advertiser, puts to him. He is not expected to check in detail all the technical data and the rest. Unless you put in:
"that he had relied in good faith upon information supplied by another person".
he will not be covered by the taking of "all reasonable precautions", because you have, first of all, to make it clear that he is relying on information supplied by some other person before you can decide whether the precautions were reasonable or not and the exercise of diligence was due or not. If he is accustomed to rely on the information provided by somebody else, then of course the same amount of diligence will not be due and the same amount of precautions, which would be reasonable if he were not so accustomed, would be well beyond the normal.
That is not the only case. There is also the case of the retailer. One has to remember that, in the Bill as drafted, the warranty as to trade description has been removed. Surely the retailer is normally accustomed to rely upon information supplied by his supplier, by the manufacturer or the wholesaler. This is not a question of mistake; mistake does not arise. It is a question of not knowing. The question is: what degree of diligence and what precautions should the retailer be expected to take? It seems to me right, in view of the removal of the warranty clause, that the retailer should be allowed this defence: that he relied in good faith upon information supplied by the manufacturer. Let us take, for example, the descriptions that he puts up in his shop by way of selling, and the advertisements in the local press. Naturally, he will take what the manufacturer says, because he is accustomed to rely on the manufacturer in these matters. It seems to me that this is an essential defence for the retailer, and he should not have to find out that some mistakes have been made before he can avail himself of this—
LORD PEDDIE: Would not all the points mentioned by the noble Lord be covered by
"some other cause beyond his control"?
LORD DRUMALBYN: No; this is not a "cause beyond his control", in my view. One must read the words,
"some other cause beyond his control"
in the light of the clause as a whole. This clause refers to mistakes and accidents, or other such causes, not lack of knowledge. My contention is that this is an essential defence that should be added if anything like reasonably fair play is to be given to the retailer and the advertising agent.
LORD BROWN: Before the noble Lord sits down, may I say that although I could say this in my general reply I should like to give him an opportunity to respond to it. It seems to me that the defence of the retailer lies in Clause 23(2), because it there states quite clearly:
"In any proceedings for an offence under this Act of supplying or offering to supply goods to which a false trade description is applied it shall be a defence for the person charged to prove that he did not know, and could not with reasonable diligence have ascertained, that the goods did not conform to the description or that the description had been applied to the goods."
Is that not a complete answer to this point about retailers?
LORD DRUMALBYN: No, indeed not, because of course he can prove that he did not know, but you have to add on to that,
"and could not with reasonable diligence have ascertained".
Nobody is saying that the advertising agent "could not with reasonable diligence have ascertained", or that the retailer could not have reasonably ascertained. He could open the goods and examine them, at considerable loss to himself, but he is not expected to do that; and the advertising agent is not expected to go to the British Museum and check all the data that he has been given. It is really ludicrous that that should be expected. I am quite certain that the noble Lord thought, and probably the Government thought, that they were offering enough by way of defence in subsection (2), but they certainly are not. I hope I have convinced the noble Lord of this, because it seems to me that this really is important.
LORD CAWLEY: This question of reasonable diligence comes from the old Act. I think the leading case on it was Allard v. Selfridge, in which Selfridges
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were selling stockings which were called silk but which in fact were not silk. It was proved that in order to find out whether they were silk or not they would have had to destroy a stocking, and it was held that they ought to have destroyed a stocking. It was said that that was reasonable diligence. That is what reasonable diligence must mean, I think, in this Bill.
LORD AIREDALE: I would support this Amendment, too. Take the case of a retailer of complicated pieces of machinery. He could, of course, exercising reasonable diligence, take a complicated machine to pieces and examine the parts to discover whether the manufacturer's description is accurate, but I think no-one would expect him to do that. He ought to be allowed to rely in good faith upon the information supplied by the manufacturer.
VISCOUNT COLVILLE OF CULROSS: I wonder whether the noble Lord can supply an example of the circumstances in which he thinks this defence could be proved, because, having heard my noble friends and other noble Lords speak, what I am a little afraid of is that it will be so difficult to rely on either subsection (1) or subsection (2) of this clause that in actual fact it is going to become an almost absolute offence, and that the only way that people will be able to avoid it is by not being prosecuted at all. I wonder whether the noble Lord can give any sort of example, first under the one subsection and then under the other, because this may help the Committee.
LORD BROWN: I am thinking about this matter. It seems to me that the burden of the attack on the clause as it is now drafted rests in fact on the provision in Clause 23(2),
"and could not with reasonable diligence have ascertained …"
That is where the attack comes. I am affected by the argument, because I am inclined to agree with the mover of this Amendment that it is a fairly stringent condition to attach to a retailer. I can comment on this, and I have a note on the whole subject; but in order to save time I think I will undertake to take a note of the arguments used—I think they may be cogent—and have a close look at this. Unless there is a stronger argument put forward by the drafters of the

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Bill which indicates that the drafting meets the points that have been made we will do something at a later date. If the noble Lord will accept that and withdraw his Amendment now, I shall be happy.
LORD AUCKLAND: I am grateful to the noble Lord, Lord Brown, for the attitude he has taken on this matter. It seems to me that as the clause is drafted, subsection (1)(b) gives the indication that manufacturers and retailers are in some way unscrupulous beings when they communicate with each other. I think the term "reasonable precautions" is very vague and needs a firmer interpretation, whatever view the Government may subsequenty take. But in view of what the noble Lord has said, I ask leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
8.47 p.m.
LORD DRUMALBYNmoved, in subsection (2), after "applied", to insert:
"or a false indication is given of any of the matters specified in Sections 11, 12 or 13 of this Act".
The noble Lord said: The point of this Amendment is to make certain that the defences available in the case of an offence of supplying or offering to supply goods is also available in the case of supplying or offering to supply services, and, indeed, in comparing prices. The point is simply that, so far as I can see, this particular defence,
"that he did not know, and could not with reasonable diligence have ascertained",
does not appear to be available as a defence against a charge under Clauses 11, 12 or 13. These are the clauses which deal with comparison of prices, false representations as to Royal approval or award and false or misleading statements as to services, accommodation or facilities. And if one may take Clause 23(1)(a) and (b) together, then Clauses 11, 12 and 13 are brought into 23(2), and after the words:
"the goods did not conform to the description or that the description had been applied to the goods"
are added the words: "in the case of services" and so forth, or "that the indication was false" as the case may be. It may be that one should say
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"false or misleading"; but I think the word "false" is sufficient. I beg to move.
Amendment moved—
Page 12, line 39, after ("applied") insert ("or a false indication is given of any of the matters specified in Sections 11, 12 or 13 of this Act").—(Lord Drumalbyn.)
LORD BROWN: With respect, I think this Amendment is misconceived. Clause 23(2) provides what has been referred to as the "ignorance" defence for the person who supplies goods for which a false trade description is applied, and it has been included because we think that the supplier of misdescribed goods should be treated somewhat more leniently than the applier of the false description. Both supplier and applier, and persons who have committed offences under Clauses 11 and 12 of the Bill, have a defence under Clause 23(1). This Amendment seeks to give the "ignorance" defence to the person who supplies goods in respect of which a false indication as to price is given, contrary to Clause 11, to the person who supplies goods or services in respect of which a false representation as to Royal approval is given, contrary to Clause 12, and to the person who provides services in respect of which a false statement is made, contrary to Clause 13.
But if you look at Clauses 11, 12 and 13 you will see that the offence is not that of supplying goods or services, but giving a false indication as to the price of goods, giving a false indication of Royal aproval or making a false statement as to services. In other words, the offender under Clause 11, 12 or 13 corresponds to the applier of a false description and to the supplier of misdescribed goods. We cannot agree that the "ignorance" defence should be extended to offenders under Clauses 11 and 12. As regards Clause 13, it is of course an ingredient of the offence that a false statement was made knowingly or recklessly, and in these circumstances there can be no room for the "ignorance" defence. I hope that your Lordships have understood the argument I am using, and on those grounds I ask that the Amendment be withdrawn.
LORD DRUMALBYN: For once, at any rate, the noble Lord, Lord Brown, has convinced me that he is right, and therefore I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 23 agreed to.
Clause 24 agreed to.
Clause 25 [Enforcing authorities]:
LORD CAWLEYmoved, at the beginning of subsection (1), to insert: "Subject to subsection (6) of this section". The noble Lord said: This Amendment is consequential upon Amendment No. 50, and so with permission I will speak to both of them. When the 1953 Merchandise Marks Act was passed it was thought that a new era in trade protection was about to commence. The first case brought under the new Act was Davenport v. Prophylaxis, Ltd. which concerned a homœoeopathic medicine for cows. The result of that case was that the Buckinghamshire County Council lost and had to pay £500 costs. During the Second Reading debate of this Bill on November 14, the noble Lord, Lord Winterbottom, said about Clause 13 (col. 597):
"This is a tricky area to venture into."
I agree that it is. We do not want Clause 13 to get off on the wrong foot. It would be disastrous if some weights and measures authority chose some subject quite inapplicable, some doubtful case, and the experience of the Buckinghamshire County Council were repeated. That is why I think the Board of Trade should keep a firm grip on this, and see that at any rate the first case they bring is one that they are going to win and not lose. I beg to move.
Amendment moved—
Page 13, line 10, at beginning insert ("Subject to subsection (6) of this section").—(Lord Cawley.)
LORD WINTERBOTTOM: We all sympathise with the Buckinghamshire County Council, but there are other factors to be considered than the risk to which we are putting local authorities. The Amendment moved by the noble Lord would prevent any prosecution in relation to statements about services under Clause 13 without the prior consent of the Board of Trade. In this Bill we have deliberately adopted the principle that the right to prosecute for offences under it should not be restricted by making it subject to the consent of any central Government authority. I see no justification for singling out offences under Clause 13 for different treatment in this respect.
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I agree that the clause ventures into a new field in which we have no previous experience to guide us, and for this reason we have placed on the prosecution the burden of proving the elements of guilty knowledge or recklessness. But that is not a reason for restricting the bringing of prosecutions. Local authorities will be well aware of the special features of this clause and will be quite as competent as the Board of Trade to judge whether a prosecution ought to be brought. I am in favour of devolution of responsibility. I think it would be undesirable that local authorities should always have to refer problems of this type to the Board of Trade. They are quite capable of acting on their own initiative. For this reason we believe that, although there are instances of the kind which the noble Lord pointed out, responsibility should remain with the local authority and should not be referred to the Board of Trade just in case an accident should happen.
LORD DRUMALBYN: The noble Lord is getting along very well, but I am not sure that I entirely agree with his last remarks. Am I not right in thinking that under Clause 29 proceedings can only be taken by a local weights and measures authority if notice is given to the Board of Trade, so that in any case the Board will know of the intention to prosecute? On Second Reading the noble Lord, Lord Brown, said:
"This Bill is of an exploratory nature, as I think we all recognise."—[OFFICIAL REPORT, 14/11/67, col. 669.]
Clause 13 is particularly exploratory.
It is for that reason that my noble friend and I feel that it would be a good idea, at any rate for a time, to keep this under the control of the Board of Trade, to see how it goes. When this deals with matters such as accommodation, it is essentially a local problem. On the other hand, when it deals with travel and other services of a national character, there is a good deal to be said for having the matter dealt with in a national way. I think that the arguments are fairly evenly balanced but, in spite of what the noble Lord has said, we still feel that this would be a wise precaution in the early stages. If the noble Lord feels that he can keep sufficient control through the normal process of notification, the 28 days' delay and the advice he will give

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to weights and measures authorities, the balance may be tilted in the opposite way against this form of controlled experiment.
LORD AIREDALE: I feel that the Minister is right about this. I do not think it is much good saying to local authorities, as the Bill says, "You are big boys now and must go out into the wicked world and prosecute in these cases, but you must not do it without asking Auntie Board of Trade first". That is what it seems to me this Amendment is seeking to introduce, and I do not think that it is justified.
LORD STRABOLGI: Before my noble friend replies, I should like to ask him about the position concerning private prosecutions either by individuals or by quasi-official bodies. It appears that these are allowed under this clause. If this is so, how can the Board of Trade exercise control over these private prosecutions when under Clause 29 it appears that the Board do not even have to be notified about them?
LORD ILFORD: I am glad that the noble Lord has resisted this Amendment, and I hope that he will not allow himself to be deflected from his course by anything said by my noble friend Lord Drumalbyn. As the noble Lord has said, this would be a complete departure from the principle upon which this Bill has been framed—that local authorities who have to administer it should have a perfectly free discretion to prosecute or not to prosecute as they think fit or right. That is in accordance with all existing weights and measures legislation and, I believe, in accordance with the Trade Descriptions Act, too. If the noble Lord were to accept the Amendment it would be a complete departure from anything that has been put into an Act of this sort before, and I very much hope that he will continue to resist it.
LORD CAWLEY: I think that in the homoeopathic case an enormous amount of damage was done, but that may not be repeated. I have issued my warning, and I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
9.1 p.m.
LORD AUCKLANDmoved to insert after subsection (1):
"( ) In England and Wales proceedings for an offence under this Act or any order made under this Act shall not be instituted except by the Board of Trade or by or on behalf of a local weights and measures authority".
The noble Lord said: The purpose of this Amendment primarily is to make quite sure that bodies and individuals who have no real knowledge of the terms of the Bill are not allowed to prosecute. It is indeed possible, under the Bill as at present drafted, even for advertisers' competitors to issue prosecutions against their rivals if they so wish, either from a feeling of sour grapes or otherwise. A good deal was said on the previous Amendment, and I need not say very much now, but surely it is the Board of Trade and the weights and measures authorities, who, after all, are experienced in these matters, who should carry out these duties.
The real danger at the present time is that there could be a whole surfeit of prosecutions going forward, or at least efforts at prosecuting on all kinds of ground. If this should happen, the courts would be overladen with all sorts of cases which have probably been very badly made out. It is certainly not the intention of this Amendment to allow those who have transgressed to get away with it, but it seems logical that the Board of Trade and the local authorities between them should carry out these duties. I beg to move.
Amendment moved—
Page 13, line 16, at end insert the said subsection.—(Lord Auckland.)
BARONESS BURTON OF COVENTRY: If the noble Lord, Lord Auckland, had been able to draft an Amendment which said that people who were not competent to prosecute should not prosecute, which is what he implied, that, I think, would have been a different matter. I rise to speak strongly against this Amendment. I was sorry to see it on the Marshalled List. If it had not been there, I had intended to ask the Government whether they could enlighten us as to what was meant by Clause 25 (1), because, looking at this, I thought it might be inferred that enforcement of the Consumer Protection Act would be confined to local weights and measures authorities and, presumably, the Board of Trade.

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My reason for rising—and I think it is one with which the noble Lord, Lord Auckland, would not disagree—is that I come back once more to a very competent organisation, the Retail Trading Standards Association. I have mentioned them several times, and I must say that I have no connection with them. However, in my battles in another place during the 'fifties I was given considerable help by this organisation. I think it is known to your Lordships and held in very high repute. The Retail Trading Standards Association already co-operate closely with a number of local authorities, and, as Ministers will know, from time to time they help them with expert evidence, particularly as to the material content of textiles.
As I see it, in the future there may be times when the R.T.S.A. will be extremely anxious to lay down a principle by taking its own prosecution in respect of an offence. I want to ask the Government, before we come to the Amendment to be moved by the noble Lord, Lord Drumalbyn, whether under Clause 25(1) we could be assured that there was no question at all that prosecutions h' the R.T.S.A. will have to cease with the present Merchandise Marks Act. If this Amendment were passed, I feel that industry and manufacturers would be deprived of an opportunity of defending themselves. I sympathise with the noble Lord in his wish to prevent people who are not competent from bringing cases, but I think if that were carried it would rule out organisations which were competent, and I hope the Government will not accept the Amendment.
BARONESS ELLIOT OF HARWOOD: I support those views. The Retail Trading Standards Association are continually taking up cases, and doing it extremely well. I think it would be most unfortunate if we were to confine the right to prosecution to a Government department, and I hope the Government will not accept the Amendment.
LORD DRUMALBYN: For once I find myself differing from my noble friend Lord Auckland. Of course, it would be tidy if the right to prosecute were limited in the same way, as in the Weights and Measures Act, to the local authorities and the Board of Trade. But there are other Government departments which in certain
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circumstances might prosecute. Apart from that, I think the Retail Trading Standards Association has regarded itself in the past as rather a gadfly—in other words, when local authorities would not prosecute it has sometimes stepped in and done so. This is healthy. If the law is there, and if a private person thinks that the authorities are not doing all that they should by way of enforcement, it is healthy that a private person should come in and prosecute. The danger lies along the lines suggested by my noble friend Lord Cawley. One can get malicious prosecutions and prosecutions by competitors in order to establish some point which suits their own particular propaganda. It is difficult to hold the balance between these things. I do not know of any way of doing the one without the other, and on balance it seems better for the Government not to accept this Amendment. Therefore, I hope my noble friend will not press it.
LORD WINTERBOTTOM: The noble Lord, Lord Auckland, does not seem to have the support of the Committee for which he might have hoped, but I think it was valuable that he should point out the risk of private individuals pursuing a vendetta by private prosecutions of their rivals in retail trade. In answer to my noble friend Lady Burton of Coventry, who asked whether the Retail Trading Standards Association would be prevented from bringing prosecutions, I would reply that the Amendment as drafted is undesirable because it would prevent trading associations, such as the one mentioned by my noble friend, from bringing prosecutions. The Government believe this is unreasonable and undesirable, and I can assure my noble friend that in fact the position of the R.T.S.A. remains unaltered.
LORD AUCKLAND: It is quite clear that this Amendment has not received very much support, and having read it myself several times I must confess to the Committee that I moved it with a certain cynicism. The real point is—and I do maintain this—that it is primarily to stop unscrupulous people such as competitors from instigating malicious prosecutions. May I emphasise one thing more? I am certainly not casting aspersions either on the Consumer Council or the Retail Trading Standards

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Association, for both of which bodies I have a great respect and whose work I very much admire. It is obvious that this Amendment needs redrafting in a way in which those who are not competent to prosecute are not put in a position where they are able to do so.
VISCOUNT COLVILLE OF CULROSS: Would the noble Lord consider this point: that if people who are incompetent to prosecute or are prosecuting maliciously are found to be in that position the courts have powers to award costs against them? I should have thought that that was far the best deterrent and it was quite unnecessary to write anything into the Bill.
LORD AUCKLAND: My noble friend, who is a very accomplished lawyer, has made a very fair point. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD DRUMALBYNhad given notice of his intention to move to add to the clause:
"(7) No proceedings for an offence under this Act shall be taken by a local weights and measures authority except after not less than twenty-eight clays' notice to the Board of Trade of the intended proceedings, and any such notice shall be accompanied by a summary of the facts on which the charges are to be founded."
The noble Lord said: The purpose of this Amendment, which would require consequental Amendments if it were carried, is merely to draw the attention of the Government to the desirability of moving subsection (2) of Clause 29 to this point. As my noble friend Lord Ilford and the noble Lord, Lord Pargiter, have put down an Amendment to leave this out, this would pre-empt its discussion and therefore I will not move this Amendment at the present time.
Clause 25 agreed to.
Clause 26 agreed to.
Clause 27:
Power to enter premises and inspect and seize goods and documents
27.—(1) A duly authorised officer of a local weights and measures authority or of a Government department may, on production, if required, of his credentials—

(a) inspect any goods for the purpose of ascertaining whether any offence under this
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Act has been or is being committed in respect of them;

(b) enter any premises, other than premises used only as a dwelling, for the purpose of ascertaining whether any offence under this Act has been or is being committed;

(c) for the purpose of ascertaining whether an offence under this Act has been or is being committed, require any person carrying on a trade or business or employed in connection with a trade or business to produce any books or documents relating to the trade or business and take copies of them or extracts from them; and

(d) seize and detain any goods which he has reasonable cause to believe are liable to be forfeited under this Act and any document which he has reason to believe may be required as evidence in proceedings under this Act;

and may for the purpose of exercising his powers under paragraph (d) of this subsection require any person having authority to do so to break open any container or open any vending machine or permit the officer to do so, but only if and to the extent that it is reasonably necessary in order to secure that the provisions of this Act and of any order made thereunder are duly observed.
(2) An officer seizing any goods or documents in the exercise of his powers under this section shall inform the person from whom they are seized and, in the case of goods seized from a vending machine, the person whose name and address are stated on the machine as being the proprietor's or, if no name and address are so stated, the occupier of the premises on which the machine stands or to which it is affixed.
9.14 p.m.
THE DEPUTY CHAIRMAN OF COMMITTEES: May I point out to the Committee that if Amendment No. 52 is agreed to I cannot call Amendments numbers 53 to 62 inclusive.
LORD STRABOLGImoved to leave out subsection (1) and insert—

"(1) Subject to the production of his credentials, a duly authorised officer of a local weights and measures authority or of a government department may, at all reasonable times—

(a) inspect any goods to which any of the provisions of this Act applies or which he has reasonable cause to believe to be such goods;

(b) enter any premises, other than premises used only as a dwelling, at which he has reasonable cause to believe an offence under this Act has been or is being committed.

(2) If a justice of the peace, on sworn information in writing is satisfied that there is reasonable ground to believe that any offence under this Act has been, is being or is about to be committed on any premises, the justice may by warrant under his hand, which shall

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continue in force for a period of one month, authorise an officer of a local weights and measures authority or of a government department to enter the premises, if need be by force,

(a) to require any person carrying on a trade or business or employed in connection with a trade or business to produce any hooks or documents relating to the trade or business and take copies of them or extracts from them; and

(b) seize and detain any goods which he has reasonable cause to believe are liable to be forfeited under this Act and any document which he has reason to believe may be required as evidence in proceedings under this Act."

The noble Lord said: This Amendment which I venture to put forward is, I believe, an important one. There are four main differences between it and the clause as it stands at present. These are, first, that the inspector has the right to inspect goods and enter the premises, as in the Bill, but he has not the right to inspect any goods; these must be the goods to which the provisions of the Bill apply. Secondly, the Amendment requires him to obtain a warrant before he demands the production of books and documents or the seizure of the goods. Thirdly, my Amendment also requires the inspector to produce his credentials before he enters, whether he is asked for them or not. This would seem to me to be not only normal courtesy but essential these days when there are so many criminals about. It also gives added protection to the nervous or shy citizen who is apt to be in awe of officials. Fourthly, the Amendment restricts the time of entry to "all reasonable times". Therefore it does not put the citizen at risk from the knock on the door in the middle of the night, possibly by some thug posing as an inspector. In my submission, the clause as drafted is drawn far too widely. My Amendment retains the position which has been in force under Section 13 of the Merchandise Marks Act since 1887.
I am aware that there are similar powers in the Food and Drugs and Weights and Measures Acts, but in those cases you are dealing with specific matters affecting public health. I believe that these powers are not justified in the case of merchandise marks legislation. They go far too wide; they are just one more encroachment on the liberty of the subject. I beg to move.
Amendment moved—
Page 14, line 10, leave out subsection (1) and insert the said new subsection.—(Lord Strabolgi.)
9.16 p.m.
LORD WINTERBOTTOM: The noble Lord is wielding a most terrible weapon.
LORD STRABOLGI: I am not.
LORD WINTERBOTTOM: I mean in the sense that if we carry his Amendment we shall almost have finished business for the night. Perhaps he is to be congratulated upon that. Nevertheless, it is not the view of Her Majesty's Government that we should finish quite so early—perhaps in terms of time, yes; in terms of discussion, no.
I should like to make a few comments upon my noble friend's proposed subsection. If we take paragraphs (a) and (b), the Amendment would, in the first place, restrict the power given to enforcement officers to enter premises—and consequently their power to inspect goods—to premises at which the officer has reasonable cause to believe that an offence has been, or is being, committed.
If we take paragraphs (c) and (d) in the new subsection (2), which require a justice's warrant, they would limit the power of an authorised officer even more severely in relation to the inspection and copying of documents and books, and the seizing of goods and documents. I cannot see that this sort of severe restriction is at all necessary or desirable, and I cannot recommend acceptance of the Amendment.
The power contained in the final paragraph of subsection (1), to require a person to break open a container, would be deleted from the Bill by the Amendment. I cannot see any justification for this. I would emphasise that, as the Bill stands, this power is severely restricted—it can be exercised only where it is reasonably necessary in order to secure due observance of the Act, and will therefore be used only on rare occasions. It would be unsafe for an officer to use it unless he had cast-iron reasons for thinking he was reasonably justified in doing so. I can therefore see no objection to this power, which is similar to that provided in Section 29(1) of the Weights and Measures Act.

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Lastly, we have the words "exercised at all reasonable times". I recognise that the comparable powers in the Weights and Measures and the Food and Drugs Acts are subject to the qualification that they may be exercised "at all reasonable times". This seems to me to be an unnecessary qualification. I do not believe that local authorities are likely to seek to enforce their powers at unreasonable times; and in any case, an omission of express qualification would not entitle them to do so. If anything, the qualification may hinder the enforcement of the Bill by enabling a person with something to hide to delay the entry of the enforcement officer by quibbling over whether the time was reasonable or not. It is for this reason, and the rather explosive impact of the noble Lord's proposals on the Bill as a whole, that I request him to withdraw the Amendment, while, however, considering the points he has made in the discussion.
LORD DRUMALBYN: Before the noble Lord sits down, may I ask him a question in regard to "reasonable time"? He will be aware that this is included both in the Food and Drugs Act and in the Weights and Measures Act, although I think one says "hours" and the other says "time". Has any difficulty been experienced by people, as he says, quibbling as to whether or not it is a reasonable time?
LORD BROWN: Perhaps I may make a general comment. The noble Lord realises that the ambit of this Bill is considerably wider than the ambit of the other two Bills to which he has referred. It is true that a case can be made out for confining these powers to reasonable hours. But the noble Lord well knows that the Board of Trade has in the past had enormous difficulty in enforcing some Acts and they find it peculiarly burdensome to be limited in terms of hours. It is not that they want to go in at hours which would be regarded by any reasonable judge of the situation as being unreasonable. It is that this is a sort of alibi for the person whose premises they wish to enter properly to argue that the hour is unreasonable, so keeping them out in pursuit of their duties. It thus gives a handle to an objection which is often unreasonable and would limit the
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extent to which the Board of Trade could properly pursue potential criminals under this Bill.
LORD STRABOLGI: I have carefully noted what my noble friend has said. I think that the Government ought to have another look at the part about the credentials. I take the points he has made about warrants. I think it is highly undesirable, though I suppose it is necessary to bring this legislation into line with the other relevant legislation, but I cannot see why the wording about producing his credentials cannot be changed to that in the Amendment. It is very important in these days, when there are so many criminals about, that an inspector should automatically have to produce his credentials before he asks to enter premises, and that it is not left to the owner of the premises to ask him. I hone the Government will have another look at this before the Report stage. I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
9.24 p.m.
LORD DRUMALBYNmoved to insert at the beginning of subsection (1): "If". The noble Lord said: I beg to move Amendment No. 53, and with it I should like to discuss No. 55. The effect of these Amendments would be to make the clause read as follows:
"If a duly authorised officer of a local weights and measures authority or of a Government Department".
and then, turning to Amendment No. 55:
"has reasonable grounds to believe "
and so on. In drafting this Amendment in this way I had two objects in mind. The first was to simplify the drafting as a whole, and the other was to try to ensure that some of the safeguards included in the Food and Drugs Act were included here. I notice that in answering the last Amendment the noble Lord did not refer to the Food and Drugs Act. I was a little disappointed at this because the procedure in the last Amendment more or less follows the procedure in the Food and Drugs Acts, and I was hoping that the Government would reply to this point, if only because there are a number of people who feel there is no reason in this Bill in the severity of the powers taken to go further than in the Food and Drugs Act. Indeed, they feel that the Food and Drugs Act needs more

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severe powers because it deals with matters which constitute more of an immediate menace to the health and safety of the public.
I have drafted my Amendment on the assumption that what the Government had in mind was that, in any case, there would be enforcement officers going into retail shops, and all the rest of it, in the course of their normal duties. They are entitled to go there to check up, and they will go in the course of their duties. I took it that if they find, in the course of those duties, that some offence is being committed, they do not want to say, "Look at that", and then go back and get a warrant, because by the time they get back "that" will have changed and the evidence may well have been removed. Therefore I took it that what the Government wanted to achieve here was for an officer to be able to act immediately he went on to premises in the course of his duties.
Of course, it is a fact that if enforcement officers are on premises they will be able to carry on. At the same time, it seemed to me right that if they were going particularly for the purpose of ascertaining that an offence under this Act was being committed, they should have reasonable grounds to believe that an offence was being committed, and in such a case they should, if required, produce their credentials.
As the Amendments are drafted, they secure that officers should inspect or enter only if they have reasonable cause to believe that an offence under the Act has been or is being committed; secondly that they should do so only at reasonable times (the Food and Drugs Act says "hours", and the Weight and Measures Act says "time"); and, thirdly, that they should seize and detain goods, only for the purpose of ascertaining whether an offence has been or is being committed, and should seize and detain only such quantity as is reasonably required for the purposes of prosecution. That brings in also Amendment No. 57. The last point really gives effect to what the noble Lord said on Second Reading; that they should seize and detain only such quantity as is reasonably required for the purposes of testing and prosecution.
I have not dealt with Amendment No. 57, because I hope that the Government
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will be able to accept that in any case. I am a little more doubtful whether they will be able to accept No. 55, but if they do not propose to accept it I hope they will be able to give a fairly full answer as to why they think it should not be adopted. I beg to move.
Amendment moved
Page 14, line 10, at beginning insert ("If").—(Lord Drumalbyn.)
LORD WINTERBOTTOM: I thought I made the point in relation to "at all reasonable times", when I was replying to my noble friend. I acknowledged that comparable powers in the Weights and Measures Act and the Food and Drugs Act are subject to the qualification that they must be exercised at all reasonable times. I went on to say that I thought the local authorities are not likely to seek to enforce their powers at unreasonable times and that, in certain circumstances, there might be occasions when they would want to come in at what to some people might seem an unreasonable time: at a time when they might surprise the occupant, which could be the object of the exercise.
If the noble Lord's qualification is carried, it might hinder the enforcement of the Bill by enabling a person to delay the entry of the enforcement officer, by quibbling over whether or not the time was reasonable. We are not dealing with normal law-abiding citizens: we are tending to deal with the "smart alecs" who probably have a smart answer for the situation. For this reason, we want to be unreasonable with unreasonable people, if that is necessary. But I am certain that local authorities do not want their officers to be staying up at all sorts of odd hours, and in all normal circumstances I am sure that the local authorities will exercise their powers in a reasonable manner.
I do not think we ought to limit the powers of authorised enforcement officers in the way proposed by the noble Lord. If the local authorities are properly to carry out the duty which Clause 25 places on them, their officers must be able to enter premises and inspect goods and documents, not only when they suspect an offence, but as part of their normal routine duties. We have, rightly I think, limited the power to seize and detain goods in paragraph (d) to cases where there is a prima facie offence. But

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in the other cases covered by paragraphs (a), (b) and (c), the power should not be limited in this way. The powers given by this subsection to authorised officers are broadly similar to those given to weights and measures inspectors under the Weights and Meaures Act 1963 and to the authorised officers of a food and drugs authority under the Food and Drugs Act 1955, and there can surely be no justification for giving less extensive powers to the Akers who would be responsible for enforcing the present Bill. We do not want to hamstring them in their work. The powers of entry and inspection conferred by paragraphs (a) and (b) of this subsection are, for all practical purposes, the same as those in the Weights and Measures Act. Neither may be exercised except for the purpose of ascertaining whether an offence under the Bill has been or is being committed.
The power to inspect books or documents relating to the trade or business, conferred by paragraph (c), is admittedly much wider than the parallel powers in the Weights and Measures Act. This again, however, is not unreasonable, I believe, considering the much wider scope of this Bill. For instance where an offence under Clause 11 in respect of a price claim is suspected, it might often be necessary to inspect the business records to see whether the claimed reduction was justified. In the case of offences relating to service under Clause 13, inspection of all the books and papers might be necessary in order to judge whether a statement appeared both to be false and to have been made knowingly or recklessly. There may also be cases where a trader is suspected of systematic infringements of a provision of the Bill, which could be proved or disproved only by investigating his own records and those of other traders with whom he has had dealings. In view of the importance of ensuring that the Bill can be effectively enforced, I feel that the proposed power to require the production of books and documents is fully justified, as are the powers of inspection of goods and entry of premises. For this reason I should be grateful if noble Lords would reject this Amendment.
LORD DRUMALBYN: The clause as drafted seems a little cumbersome. At
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least I attempted to simplify the drafting. I hope the noble Lord will at least see whether the drafting can be simplified, even if he cannot meet the points of substance in this Amendment. I should have thought that would have been possible; but, subject to saying that, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
9.33 p.m.
LORD AIREDALEmoved, in subsection (1), after "department" to insert
"having reasonable grounds to believe that any offence under this Act has been, is being or is about to be committed".
The noble Lord said: I move this Amendment because I think it will rivet the attention of the Committee upon the question: does the Committee want these officials to have power to make spot checks or not? As I read the clause without this Amendment, the officials are going to be able to use these powers to make spot checks if they want to. I must confess that I have not studied the kindred legislation which has been referred to, and it may be that power to make spot checks exists in this kindred legislation; but, if that is so, I should have thought that that was an argument for Parliament looking at these other Acts on this point rather than being influenced as to what this Bill should contain on the question of spot checks.
In my submission, the argument against spot checks here is exactly, or almost exactly, the same as the argument against them in the case of those infernal breathalysers—and may I again congratulate Her Majesty's Government, as they have been congratulated many times before, for having had second thoughts about spot checks with breathalysers, having at first decided to introduce spot checks and then abandoning the idea? In my submission, this is a very similar case. The argument against is that it is extremely wasteful of the manpower of busy officials to have spot checks. You have to use a very great many man hours to catch a very few criminals. Furthermore what is perhaps more important still is that you are going to get the officials a bad name among the people they are supposed to be supervising. If they have power to make spot checks, and use them, they are going to become known as a crowd of snoopers and "Nosey Parkering" officials.
May I finally point out to the Committee that if the officials are to have power to make spot checks this will mean that the very sweeping powers given to magistrates under subsection (3) are going to be—shall I give way?
LORD BROWN: I am sorry to interrupt the noble Lord, but it seems that we are going to develop an argument about spot checks. Surely it is obvious that a great deal of the enforcement of all types of law is dependent upon spot checks. When a police constable goes round he will spot check certain premises to see whether someone has entered them unlawfully. Tests of people driving over the speed limit and all sorts of laws are subject to spot checks. It is the only way to do it economically. If you do not spot check, you do not check anybody. I am in difficulty in understanding the argument about spot checks.
LORD AIREDALE: I know that the noble Lord was not in charge of the Road Traffic Bill, but does the Minister defend the spot checking of motorists with breathalysers?—which his Government first of all thought was a good idea and then, wisely, abandoned it.
LORD BROWN: I am not prepared to enter into a discussion of that Act; I do not know much about it. I am basing my remarks on industrial and other experience. Either you continuously enforce the law by watching every act; or you spot check; or you do not watch anybody. The principle of pilot inspection, of random sampling, is so well established in the maintenance of given conditions that to criticise it in a general way seems to me to be extraordinary.
LORD AIREDALE: May I say that I could not disagree more with the Minister. The officials who will be operating this Bill when it becomes an Act are not policemen; so the noble Lord is making an unfair comparison. I should have thought it was abundantly desirable that the officials operating this should act only upon a reasonable suspicion; that they should not be expected to have power to walk into somebody's shop or warehouse without having any inkling that an offence is being committed, purely in order to spot check to find out whether, by some unlikely chance, an offence is being committed. I should think that the Committee would
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be against such power being enjoyed by the officials of the local authority enforcing this Act and—
LORD BROWN: I think it may be useful for me to interrupt the noble Lord. How does the official get the inkling that something is wrong without a spot check?—which may be nothing more than looking into the window of a shop. How does he get the notion that something may be wrong which may lead to further action without a spot check?
LORD AIREDALE: If he looks into a shop window and sees goods which bear a false trade description he is not making a spot check as he walks into the shop. Surely the Minister is not going to argue that point. However, it is not a question of him or of anybody else seeing something in a shop window. I should have thought the other obvious way in which he hears about this is that somebody walks into the office of the local authority and says, "Here is an orange in a wrapper which appears to me to have an odd description on it. Will you look at it please and investigate the matter?" The officer does so. And when he does so, he is not making a spot check or anything like it.
Now perhaps I may be allowed to come on to my third point, the very sweeping powers conferred by subsection (3) upon the magistrates to authorise officials to do all sorts of extremely drastic things. These powers will be available to magistrates to empower the officials to do these things for the purpose of spot checks if the magistrates so decide. I am not suggesting that magistrates are normally tin-reasonable and would act unreasonably in consequence of their powers under subsection (3). But I see no reason to give magistrates enormous powers to enable officials to take drastic action when this is not absolutely necessary. So I hope that we shall be able to argue out the whole question of whether we really want this clause to give powers to make spot checks. I beg to move.
Amendment moved—
Page 14, line 11, after ("department") insert the said words.—(Lord Airedale.)
LORD PARGITERThere is one point that occurs to me. It is easy enough to talk about isolation, but the officer carrying out these duties may well be a

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weights and measures inspector, or someone acting under the provisions of the Food and Drugs Act and carrying out certain duties, as he would have a perfect right to do. It seems to me that it would be meaningless to insert these words in the clause, having regard to the fairly large powers which the person concerned would already possess.
LORD DRUMALBYN: I think that is quite true, and that is what was influencing me, but something the noble Lord, Lord Brown, said in reply makes me wonder whether the powers as a whole may not go too far. May I say to the noble Lord, Lord Airedale, that I am sorry he did not support my Amendment? We might have combined and it might have been more effective, but I thought that on this question I had not much support in the Committee. It is quite clear that in the course of performing duties in connection with weights and measures it is the duty of officers to go into and inspect certain types of premises. But this Bill is extending the kinds of premises and the kinds of activities.
I think that the noble Lord, Lord Airedale, would accept that in many instances inspectors would in any case go into premises. They make an annual inspection of all premises in their area to check weighing machines and so forth, and they could do other things when they were there. The question is whether it is necessary to give the same powers where there are no weights and balances and so forth to be checked. The kind of spot check required is quite different in the case of somebody giving services than it is in respect of someone selling goods. It may well be that we are going a little too far.
Here again it may be that there should be refinements and a distinction between the two kinds of instances, where people are going into premises in any case (which was what influenced me when drafting my Amendment: I thought there was no point in getting a justice's warrant, as has to be done under the Food and Drugs Act, if they are to go into the premises anyway). But what about the other kind of premises, where they would not enter? Ought they, in such a case, to go in unless they have reasonable grounds to believe that
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an offence is being committed? This is the kind of consideration to which noble Lords should be directing their attention.
LORD BROWN: May I draw the attention of the noble Lord, Lord Airedale, again to the question of spot checks? The Food and Drugs Act and the Weights and Measures Act do enable spot checks to be made; that is, they enable inspectors to act:
"for the purpose of ascertaining whether an offence is being or has been committed."
It is quite clear that these laws allow spot checks. I want to rely on the general statement as an argument for the Committee to reject this limitation on the powers of these inspectors. The number of cases where a Government Department is accused justifiably of the misuse of powers given under other Acts is miniscule. The number of cases where the law is offended and the offenders are not brought to book is enormous, and it is growing daily.
My noble and learned friend the Lord Chancellor said some weeks ago that the way to reduce crime is to make detection more certain. If we reduce the powers of these inspectors—and they are going to have an extremely difficult job, because there will be loopholes in the Bill, whatever we do—in the way proposed in these Amendments, we shall increase substantially the difficulties of their job. They will have to prove in all cases that they are acting on reasonable grounds, when they are acting on suspicions; and suspicion founded on local circumstances is not always ground for reasonable cause. I think that this is a first-class way of enabling a criminal to refute the presence of an inspector. I beg the House not to accept this Amendment.
VISCOUNT COLVILLE OF CULROSS: I do not think that this is right. The noble Lord has made a powerful plea that the powers of the inspectors should not be limited, but I am not aware that, under the existing powers in the Food and Drugs Act and weights and measures legislation under which these inspectors operate they have carte blanche to go into anybody's premises, without having the slightest suspicion that there is anything wrong, and inspect forcibly every single document and book relating to the business. The noble Lord cannot say

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that we are restricting the powers of inspectors. We are not. The Bill is extending their powers considerably, whether it is done under the phrasing of the Bill or under the phrasing suggested by the noble Lord, Lord Airedale, or by my noble friend Lord Drumalbyn.
What we are really arguing about is whether or not, in extending the powers of inspectors, particularly under paragraph (c), we should allow them to have these powers in order to act when they have no suspicion, or only to do so when they have some reasonable suspicion in the first place. I am bound to say that I should not fall over backwards to extend their powers quite so far as the Bill does without having further thought about it. I hope that the noble Lord will look at paragraph (c), which is a departure, to see whether it is not going a little too far.
LORD STRANGE: The noble Lord, Lord Strabolgi, touched on a rather important point on the last Amendment which has not been touched on on this Amendment. Two people can go into a public house, put down their money, order two brandies, pour them into bottles, seal them and take them away. That is all right. Under this Bill, two phoney men can go in, show a phoney licence, and say they want to see a trader's cigarettes. The trader does not know much about this Bill and they can tell him, "Look at this serial number here; look at that one. These are 'hot' cigarettes. We will take them round to the station. Here is a receipt for them". Then they put them into their car and take them back to their den. I have read the Bill carefully and there is nothing in it to prevent thieves from using this power, which does not exist under these other Acts. I think that in the final draft of the Bill something should be done so that a proprietor could ring up the police station and check on these inspectors. There is nothing in the Bill about checking people who come in and say they are inspectors.
LORD BROWN: When the noble Lord, Lord Strabolgi, withdrew his Amendment, my noble friend was about to agree that we would look at this point of insisting that inspectors should show their credentials when they entered premises, because we felt that this point
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was one of value. Perhaps this will go some way to satisfying the noble Lord.
LORD STRANGE: I agree, but it is not just the showing of credentials. They will have them faked before they go in. There should be some way of ringing up the police station, if these inspectors are suspected, to see whether they are genuine.
LORD BROWN: May I point out that there is no law that prohibits a criminal from breaking the law. The point is that the law enables you to arrest and to prosecute him after he has broken the law. You cannot prevent people making themselves out to be detectives, and so on. You cannot ask us to safeguard in that way, because this cannot be done by Statute.
LORD CHAMPION: Would there not be a safeguard in the case of credentials? If someone came to my premises and I thought that his credentials were phoney, I should get in touch with the authority which appeared to have issued the credentials and check with them whether the man was in fact the man represented on the document produced to me. I have listened to this argument carefully, and it seems to me that these officers ought to have the power to make a spot check. I do not feel anything like as doubtful about this as the noble Viscount, Lord Colville of Culross. I think he was particularly drawing attention to (d)—
VISCOUNT COLVILLE OF CULROSS: No; to paragraph (c).
LORD CHAMPION: I am mistaken. On paragraph (d) he must have reasonable grounds and cause to believe that the goods are such as to be liable to forfeiture, and so on. That would appear to me to be ample in that case. On paragraph (c) it might perhaps be slightly different, but I must say I feel that these powers will be carried out and used by people who are responsible, and we have to recognise that they are responsible. They will be doing this check on behalf of the community. We want to stop many of the things that are going on, and it is right that we should use this Bill and any powers that we grant under it to prevent some of the abuses on honesty and decent dealing which are taking place.
VISCOUNT COLVILLE OF CULROSS: Is the noble Lord, Lord Brown, going to answer the point about paragraph (c)? I believe that this is the point which really crystallises the argument. I think it is accepted that under (a) and (b) the inspector will have got in perfectly properly under the jurisdiction of the other Act. But here is paragraph (c), which is a novel power, as I am sure the noble Lord appreciates. Paragraph (d) is a novel power for the purposes of this particular jurisdiction: and on that paragraph, as the noble Lord, Lord Champion, has said, he has to have a reasonable cause.
I would suggest that the Government might consider whether they would not use some formula on (c) as they have on (d), and leave (a) and (b) as they are. This is, at any rate, a compromise. It does not seem to me to do any great harm to the power to carry out a spot check of the sort the noble Lord, Lord Brown, is talking about, but it might in some way mitigate the extremity of the power that I fear is being given by the clause as it is now.
LORD BROWN: I have used these arguments before on other portions of this Bill, because other attempts have been made to limit the authority of those who will police this Bill. This Bill is much wider than other Acts that have been referred to, and it covers a vast variety of goods. I believe it is better to have fewer criminal offences, and more authority to enforce the law in respect of those offences rather than to have more criminal offences with less authority to see that criminal prosecutions follow offences against the law.
We are getting into the other position. I have used the argument that from inside the Board of Trade, over a fairly short experience, I have encountered a number of cases where events are reported to us which would appear to people like me to be serious offences, though we are informed by the Solicitor's Department: "We cannot act in these circumstances. It would be a risk. We have taken counsel's opinion. We might get an injunction against us." Every time the powers of officers to enforce are limited in cases of this sort there is the risk of a growing number of cases of serious offences against the law and of damage to individuals concerned.
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In my experience the Board of Trade is very careful indeed in regard to the use of its powers. It is hesitant to use them, and if it is limited in this way and the word "reasonable" is introduced, then the officer concerned must have reasonable grounds before he acts. He would not be able to act on suspicion, and I think he should be able to. Likewise he would not be able to act on hearsay evidence from somebody. He has to be able to demonstrate later to some authority that he has had reasonable grounds. This is an awkward position to put him in if you want him to do the job with zeal in order to cut out these malefactors. I ask the Committee not to interfere with this clause.
LORD DRUMALBYN: The more I look at this the less I think is in the noble Lord's contentions in this case. He referred to one or two of the clauses here; Clause 11 for example. If there are only one or two clauses to which this applies, then the Bill should be drafted so that it is directed to offences under those clauses and is not so wide as it is now. I say in all sincerity to the noble Lord that it is nonsense to contend that because this Bill goes wider therefore there must be much wider powers of entry. The particular powers required are related to the particular offences. Surely what emerges from this discussion is that these powers are far too widely drawn. If you have to see what prices were charged in the last six months no doubt you have to look at the books, but surely you should not do that unless you are acting on suspicion.
In general, of course, inspectors will not be able to go round all the time at large; they must direct their attention to where a complaint has arisen. Spot checks are just not possible. They have great difficulty in getting round the whole of their area once a year, and now they will have further responsibilities. They will have to work on complaints. If there is a complaint then they can look at the books; but what is the point of doing that if there is a false trade description? If there has been a complaint, let that complaint be investigated. You can seize goods if necessary, if they are related to the proving of an offence, and nobody would deny that power. I think my noble friend is right about this. It is a sweeping power and it should be

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strictly limited to the purpose for which it is required.
LORD AUCKLAND: There is one passage in subsection (1)(c) which seems to me to be extremely dangerous. That is where it says:
"relating to the trade or business and take copies of them or extracts from them;".
If one takes extracts from the sales register, or something of that kind, it is very easy to get them out of context. Either you must take the whole thing, which is often eminently undesirable, or you must take nothing at all. If you take extracts you are subjecting the whole matter to extreme dangers.
LORD AIREDALE: First of all, I must apologise to the noble Lord, Lord Drumalbyn, for appearing to fail to give him support on his last Amendment. I can assure him that I was strongly inclined to do so, but was curbing the number of speeches I was going to make to the Committee. I am sorry about that, in view of the very strong support he has given me on my Amendment, and I am enormously indebted to the noble Viscount, Lord Colville of Culross, for the very strong speech in support he has made.
May I once more make absolutely clear, clearer than I did before, to the Minister the consequences of subsection (3) if we are going to allow these spot checks? I am tired of that expression; I am going to change it and talk about random checking, because it is a nicer expression. Look at subsection (3); look at line 20; you find that a justice of the peace on a sworn information may authorise an officer "to enter the premises, if need be by force". Imagine this situation: a local government officer goes before a justice of the peace and says, "Will you give me a warrant to go into Mr. Green's grocer's shop and make an inspection under the Consumer Protection Act?" The magistrate says, "I do not know about that. What suspicions have you against Mr. Green?" The inspector says, "I have no suspicions whatever against Mr. Green, but I think it would be a good thing if I went and inspected his grocery store." The magistrate says, "I very much doubt whether I have power to give you authority to enter by force into Mr. Green's grocery store." The official says, "Pardon me, you have; it
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is here, in subsection (3) of Section 27 of the Act. It authorises you to empower me to enter Mr. Green's premises by force, and I do not have to have any suspicion: I only have to exercise my power under subsection (1), and it does not say anything about my having to have any suspicions." The magistrate may say, "Well I do not like this very much"—a sort of Pontius Pilate attitude; he may say "All right, there is your warrant." Does the Minister want that situation to be allowed to eventuate? That is what I should like to know.
I am going to say one or two more words and then sit down. I think I now understand from the speech of the noble Lord, Lord Drumalbyn, why the power to make random checking is given under the Weights and Measures Acts and the Food and Drugs Acts but should not be given under this Act. If we take the case of the Weights and Measures Acts, I do not suppose that any honest trader resents the arrival at random of the inspector. He is as pleased as his customers that a check should be made on his scales, because everybody knows that scales get out of adjustment from time to time. So there is no sort of resentment about the sudden arrival of the official in that case. When we come to the Food and Drugs Acts, this very often is a matter of public health, and although I dare say there might be a certain amount of resentment at the sudden arrival of officials acting under these Acts, if it is a case of public health it is probably worth while in the public interest. But I have heard nothing from the Minister which convinces me that random checking under this Trade Descriptions Bill, as it ought to be called, ought to be justified at all, particularly having regard to the powers of magistrates to issue warrants to enter by force. I hope that the Minister will think about this again, and very seriously.
LORD CAWLEY: I see no objection to subsection (3). A justice of the peace has to have sworn information put before him, and that is what a policeman does when he has reasonable ground to believe something nefarious is going on in the house.
VISCOUNT COLVILLE OF CULROSS: With great respect, that is just what

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the justice does not have to be satisfied of. All he has to be satisfied of is that there is reasonable ground to believe that there are—let me take one example—books which a duly authorised officer has power to inspect on the premises. It does not say "and that any offence under this Act … is being committed"; it says "or that any offence under this Act … is being committed". So that all that the justice of the peace has to be satisfied about is that there are books on the premises; that under subsection (1) he has power to inspect them, which he has whether or not he has any grounds to suspect that there is anything going on at all. Further, he then has to satisfy the justice that (to take the noble Lord's example) Mr. Green is not going to let him in unless he has a warrant. That is all he has to do, and it seems to me, to take the noble Lord's example to its logical conclusion, that any policeman ought to be allowed to get a warrant to enter any premises by force to see whether anybody inside is committing any criminal act. That is I think what is going on here.
LORD BROWN: It is quite clear that we could go on with this discussion all night, and I do not think any of us wants to do that. I am prepared to say this. I will undertake to read carefully all that has been said about this clause this evening, and if the conviction which it brings to me, that a change is necessary, is stronger than the conviction that has been brought by listening to it—I admit I have been a little confused at times about what has been said—I will take measures to see whether a change can be made. I am not committing myself too much, as I am at pains to make clear, because I firmly believe that the clause is perfectly correctly drafted. But I open the door one-tenth of an inch in an effort to get the withdrawal of these Amendments so that we can proceed with our business.
LORD AIREDALE: I do not think that that is at all a handsome offer. I weigh in the scales whether I will take this to a Division now or withdraw the Amendment. By one-tenth of a dram I decide that I will ask leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
10.7 p.m.
LORD AIREDALEmoved, in subsection (1), to leave out paragraphs (a), (b) and (c), and insert:
"( ) inspect any goods;
( ) enter any premises, other than premises used only as a dwelling;
( ) require any person carrying on a trade or business or employed in connection with a trade or business to produce any books or documents relating to the trade or business;
( ) take copies of such books or documents; and"
The noble Lord said: I move this Amendment only for the purpose of explaining the last paragraph, which says:
"take copies of such books or documents; and"
I have put this into a separate paragraph, because the Committee will notice that the words in the Bill come at the end of paragraph (c). In my submission, a possible construction of paragraph (c) is that the words, "take copies of them or extracts from them" may apply to the preceding words, "require any person"; that is to say, that under paragraph (c) as drawn the officer would have power to require the shopkeeper, or whoever it may be, to take copies of documents for the officer. I do not believe that that is what is intended and I believe it would put it beyond doubt if the power to take copies of books or documents were put into a separate paragraph, which would make it abundantly clear that the power to do this was vested in the officer himself and that he had no power to require the other person to provide these copies.
The other point is simply this. The Act says, "take copies of them or extracts from them". In my Amendment I have left out the words "take extracts from them". The reason is that I do not understand the difference between "copies" and "extracts" in this connection. I should have thought that they meant the same thing. There is a possible meaning in the words "taking extracts", that is to say, tearing pages out of books or out of a bundle of documents. If the Government do not intend to give to officials the rather ruthless power to tear out pages, I should have thought that the words "take copies" were sufficient, and that by leaving out the words "take extracts" it would make it clear that the officials were not being

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given power to tear out pages, but only to take copies. I beg to move.
Amendment moved—
Page 14, leave out lines 13–24 and insert the said new paragraphs.—(Lord Airedale.)
LORD BROWN: My noble friend and I split up the clauses of this Bill and it fell to my lot that I had no clause on which I could be gracious. But half-a-loaf is better than no bread, and this part of the Amendment which we are now taking is one which I can assure the noble Lord we will be prepared to consider very seriously indeed—in fact, we almost like it! With those enticing words, I hope that the noble Lord will be prepared to withdraw his Amendment.
LORD AIREDALE: Now that the door is only one tenth of an inch closed instead of being only one tenth of an inch open I, with positive pleasure, beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD CAWLEYmoved, in subsection (1)(d), after "goods" to insert "which are reasonably required for purposes of testing or prosecution under this Act and". The noble Lord said: The subsection as at present drafted gives very wide powers indeed. In fact, in the case of a large consignment of goods it would give power to the officer to seize the whole consignment, and if they were perishable goods they would be completely destroyed. He would have a right to seize them, and if they were destroyed it would be too bad. This Amendment seeks to reduce that power merely to taking samples necessary for the purposes of testing or prosecution under the Act. I think that this is very reasonable, and would avoid the possibility of a bogus inspector running off with the whole consignment in a van and never being heard of again. I feel that in order to prosecute one requires only an adequate amount of goods, and that this is the power which ought to be given. I beg to move.
Amendment moved—
Page 14, line 25, after ("goods") insert the said new words.—(Lord Cawley.)
LORD WINTERBOTTOM: The noble Lord may remember that a little earlier the noble Viscount, Lord Massereene and Ferrard, moved Amendment No. 39, which is similar in intention to this Amendment, No. 57. It provided that
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one should forfeit only goods which are reasonably required for the purpose of testing or prosecution under the Act—which roughly coincides with what the noble Lord has said on this Amendment. The undertaking which I gave to the noble Viscount I would repeat to the noble Lord: that we are sympathetic to this particular Amendment, but I should like to consider it together with my undertaking to reconsider Clause 17(2), Amendment No. 39, in order to get the definition as equally satisfactory on the noble Lord's Amendment as on the noble Viscount's. If he would agree to allow me to treat it on an equal footing with the noble Viscount's Amendment, I should be grateful if he would withdraw his Amendment.
LORD CAWLEY: I am grateful to the noble Lord, and beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD AIREDALE: This is a very small point, indeed. Line 27 refers to "any document", and I am moving to insert the words "book or" so as to make the paragraph read "any book or document". I am quite prepared to be told in reply that this is unnecessary, because "document" includes "book", but if I am to be told that I am going to say, "In that case, why does the previous paragraph refer to 'books or documents'"? I do not understand this. I beg to move.
Amendment moved—
Page 14, line 27, after ("any") insert ("book or").—(Lord Airedale.)
LORD WINTERBOTTOM: Would the noble Lord accept our undertaking to consider this rather interesting point?
LORD AIREDALE: Certainly.
LORD DRUMALBYN: Before the noble Lord withdraws his Amendment, may I say that surely there is a very distinct difference between "book" and "document" here. You cannot get on in your business if you do not have your books there. You do not want to have the books taken away—I think this is a common form—but a particular document may well be taken away. I should have thought it would be very sad indeed for a firm if the whole of the books went.
LORD WINTERBOTTOM: May I go a little further? We accept this Amendment.
LORD AIREDALE: I am so impressed by what the noble Lord, Lord Drumalbyn, has said that I am going to throw another spanner into the works and beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
10.17 p.m.
LORD AIREDALEmoved, in subsection (1), to leave out "break". The noble Lord said: I think my course on the last Amendment was probably foolish, because I am sure I shall not get any more sympathy from Her Majesty's Government. I am now dealing with line 32, which says that an officer may require any person to break open any container or open any vending machine. The first question which I should like to ask is: is not a vending machine a container? I should have thought it clearly was. And if it is, since there is power to require a person to break open any container, it surely follows that there is power for him to break open any vending machine. But if he does have power to order someone to break open a vending machine, why go on to say that he may order him to open any vending machine? This does not seem to make sense.
The gravamen of this is that it is rather a savage power to require a person to break open a container. Why should he? I can quite see that if there is a locked box a person may be required to open it, and I can quite see that if he does not get the keys he may eventually be told, "You will have to break it open." But why should an official have power in the first instance to require somebody to break open a container? I should have thought this was an unnecessary and rather savage power to give, and that the subsection would be much better without the word "break". Accordingly, I move to leave it out. I beg to move.
Amendment moved—
Page 14, line 32, leave out ("break").—(Lord Airedale.)
LORD WINTERBOTTOM: The word "break", which so upsets the noble Lord, is present in a precisely similar context in the Weights and Measures Act
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1963. I agree with the noble Lord that there is not a great deal of difference generally between a power to require someone to open a container and one to require him to break it open. This is charging emotionally something which is really simple. I break open a box of chocolates which is wrapped in cellophane. I do not open it; I break it open, as that is the only way of opening it. I am not quite certain what impelled the draftsmen of this Bill to strengthen the word "open". If I have the power to open anything, I open it in the best and simplest way that I can. I lift the latch, I turn the key, or I take an axe and hit it hard; but if I have the power to open it, I open it, whatever the state of the container. I think the noble Lord has become rather sensitive in trying to distinguish between opening a container and breaking it open. I realise that there is a literal difference, but in point of fact I should have thought that in lay, the power to open something, without defining how, and actually defining breaking it open, is different.
LORD AUCKLAND: Surely there is a very important point here. If it is a container of an expensive kind, which may have quite an expensive look on it, and he breaks it open and it is subsequently found that the container has perfectly genuine documents, who pays the compensation? This may be a trivial point taken in isolation, but if there are a number of cases here it could prove very expensive, and very burdensome for the courts.
VISCOUNT COLVILLE OF CULROSS: It must be a principle of some significance that a word is not used in a Statute unless it is intended to mean something. As I understand the answer of the noble Lord, Lord Winterbottom, this adds nothing to the meaning of the clause, and I should therefore have thought there must be everything to be said for leaving it out, because otherwise the only way a court can construe this part of subsection (1) is to say that there is a difference between "break open" and "open" because Parliament has said so; it has used two different phrases, and it must have meant something different. I do not understand there to be any difference intended, and I should therefore have thought we must leave it out.
LORD WINTERBOTTOM: I must refrain from trying to attempt a little light relief at this late hour of the night. I think the noble Lord will agree that there is a difference between the two situations. The power to require a container to be broken open is necessary where breaking is the only way of opening the container. We do not want someone who is in some way or other committing an offence under this Bill to be able to get away with it simply by saying, "No, you cannot open this container, this vending machine"—or whatever it is—"because it is expensive". The officer undertaking this duty is presumably a responsible official. He operates in a democracy, and he knows that he will get his knuckles rapped heavily if he oversteps his powers. If he finds it necessary to break open a container, he will doubtless do so bearing in mind the fact that he is in fact running a risk of having his knuckles rapped if he oversteps his powers.
I think that in certain circumstances your Lordships will see that the officer can exercise his power only if and to the extent that it is reasonably necessary to secure the observance of the Act and the orders made under it. He is not going to do this wantonly; he is not going to take a sledgehammer and have a smashing time. He is going to do it only if he thinks it is reasonably necessary to do so. If the officer were challenged, he would have to prove, by reference to objective criteria rather than simply to his own views, that it was necessary to have the container broken open. This is saying in "officialese" what I was saying in simple terms, that he will not make a fool of himself. He knows he will get his knuckles rapped if he oversteps the mark; but I am sure the Committee will realise that in certain circumstances it is reasonable that he will break open a container, whatever its shape or size or system of closure, if he believes it to be necessary. We want him to have this power.
LORD AIREDALE: The Minister has not dealt with my first point, and I do not blame him, because it was raised some time ago. Why is there power only to "open" a vending machine, specifically given, and not to "break open" a vending machine? And what is the point of that, because is not a vending machine
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a container? And if there is power to break open a container, surely there is power to break open a vending machine. And, if so, what is the point of going on to say that he may open the vending machine?
LORD BROWN: The noble Lord is basing his case on the idea that the word "container" and the words "vending machine" have very little between them; that the word "container" embraces a vending machine. I think this is a wrong construction to put on the words. They are two quite separate descriptions, and the case he is building up based on that construction of these words is, in my submission, not correct.
LORD AIREDALE: We are not getting along very fast, and I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
10.25 p.m.
LORD AIREDALE: We now come to the odd expression that the officer may require any person to do this breaking open or permit the officer to do so. How do you require a person to permit you to do something? This surely is not ordinary English at all. I know that behind the Iron Curtain people get brain-washed into permitting things to be done, but we do not do that sort of thing in this country. Surely the object is to say that the officer himself may do so if the person required to do so does not. You cannot require a person to permit you to do something. It makes nonsense. I beg to move.
Amendment moved—
Page 14, line 33, leave out "or permit the officer to "and insert" otherwise the officer may".—(Lord Airedale.)
LORD WINTERBOTTOM: The noble Lord has made a point which we must consider. As in the case of suggestions of other noble Lords, the Government are in sympathy with the point he made. I do not think the Amendment is quite acceptable as it stands; but if the noble Lord is willing to withdraw it we shall try to put down a Government Amendment at a later date which will have the same effect in slightly different words.
LORD AIREDALE: I am much obliged.
LORD DRUMALBYN: I have an Amendment which overlaps that of the noble Lord. In my view there is no point in having those words there at all; for the reason that either the person has authority to do so or he has not. If he has not, then you send for the person who has and require him to do so. There seems to be no reason whatever why you should proceed to open a vending machine—if you can; for there is this big distinction between "breaking open" and "opening"—if you cannot open it in such a way as to be able to restore it. If you open a door then after you have opened it it is still the same door. But in the case of a vending machine it is no longer the same and may need repair. There seems no reason for breaking if you can get the person with authority to open it properly. In any case, as the clause is drafted, you have to get his permission. I am not sure that there is
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any reason at all to break into a vending machine; you can always wait until somebody comes with the key.
THE DEPUTY CHAIRMAN OF COMMITTEES: Perhaps I should have informed the Committee that if Amendment 60 is carried this will partly preempt Amendment No. 61 and I shall have to put it in a different way.
LORD WINTERBOTTOM: Since the two Amendments are relating to the same matter perhaps we could consider them together. We have given an undertaking to the noble Lord, Lord Airedale, to try to find something better. Can we consider the noble Lord's Amendment in relation to Amendment No. 60?
LORD DRUMALBYN: Willingly.
LORD AIREDALE: I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
LORD AIREDALEmoved, in subsection (1), to leave out all words after "permit the officer to do so" to the end of the subsection, and insert:
"( ) An officer may act in accordance with subsection (1) of this section only if and to the extent that it is reasonably necessary in order to secure that the provisions of this Act and of any order made thereunder are duly observed."
The noble Lord said: The purpose of this Amendment is to make it possible to remove the ponderous phrase which I will not read out, and which is common to paragraphs (a), (b) and (c) of subsection (1). I am not quite accurate in saying that. I would point out, in case the Government have not already noticed it, what I think is a printing error here, because whereas paragraphs (a) and (b) refer in this lengthy phrase to "any offence", paragraph (c) refers to "an offence". I cannot but think the word "any" is intended in all three cases. That is the purpose of the Amendment. Probably I shall have to withdraw it, but I have explained its purpose as best I can. I beg to move.
Amendment moved—
Page 14, line 33, leave out from ("so") to the end of line 36 and insert the said subsection.—(Lord Airedale.)
LORD WINTEREOTTOM: The noble Lord said he thought he might have to withdraw the Amendment because of a printing error. May I consider it in relation to the other points?
LORD AIREDALE: In that case, I ask leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
10.31 p.m.
LORD AIREDALEmoved, in subsection (2), to leave out "the person whose name and address are stated on the machine as being the proprietor's", and to insert instead:
"any person whom he believes to be the owner of the goods'"
The noble Lord said: Subsection (2) requires an officer in the case when goods are seized from a vending machine to inform
"the person whose name and address are stated on the machine as being the proprietor's".
The question I ask is: does "proprietor" mean the proprietor of the machine or
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the proprietor of the goods? I imagine that what is intended is the proprietor of the goods; he is the gentleman with whom presumably the official wishes to get in touch, because the machine is probably on hire from a company hundreds of miles away who would have no interest in the goods in the machine. I should have thought that, as drafted, the subsection is genuinely ambiguous. "Proprietor" might mean the proprietor of the vending machine or the proprietor of the goods. I am moving this Amendment to make clear that what is intended is the person whom the officer believes to be the owner of the goods. I beg to move.
Amendment moved—
Page 14, line 40, leave out from ("machine") to ("or") in line 41 and insert the said new words.—(Lord Airedale.)
LORD WINTERBOTTOM: May I explain to the noble Lord what we are trying to achieve? The noble Lord may have misunderstood the subsection. If goods are seized from a vending machine two persons must be informed. The first is the person from whom the goods are seized. He is the person described in subsection (1) as the person Who has authority to open the machine and give permission for it to be opened. If he controls the opening of the machine, the goods are in his custody, therefore he is the person from whom the goods are seized. His authority will come, directly or indirectly, from the owner of the goods, therefore the fact that he is informed will usually ensure that the owner of the goods is informed—indeed, in many cases he will be the owner.
On the other hand, the proprietor of the machine has an interest in knowing that the machine has been opened and the goods seized. The subsection therefore requires him to be told if his name is on the machine. If it is not, the customer must do the best he can in the circumstances by telling the occupier of the premises on which the machine is found. We believe that the noble Lord's Amendment is therefore unnecessary, in so far as it seeks to improve the protection given to the owner of the goods and unfair in so far as it would prejudice the interests of the owner of the machine.
LORD AIREDALE: I am obliged to the noble Lord. I had misunderstood the intention of the subsection. But since I misunderstood it, I suppose it is possible that others may do so, and therefore I should have thought it might be useful if at the next stage of the Bill the Government moved an Amendment making abundantly clear what they mean. I ask leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 27 agreed to.
Clause 28 agreed to.
Clause 29:
Notice of test and intended prosecution
29.—
(2) No proceedings for an offence under this Act shall be taken by a local weights and measures authority except after not less than twenty-eight days' notice to the Board of Trade of the intended proceedings, and any such notice shall be accompanied by a summary of the facts on which the charges are to be founded.
LORD DRUMALBYNmoved, after subsection (1), to insert:
"( ) No proceedings for an offence under this Act shall be taken by a local weights and measures authority in respect of an advertisement other than an advertisement circulated mainly in the area of that authority except with the consent of the Board of Trade."
The noble Lord said: The purpose of this Amendment is to explore the intention of the Government as to how this Bill will operate with regard to national advertising. Clearly, with regard to local advertisements in the local Press or even on the local radio, the local weights and measures authority are the appropriate people to prosecute. Where there is national advertising, covering a wide area or the whole country, it seems incongruous that a particular weights and measures authority should prosecute. These are the two extremes. No doubt, if there was something wrong several authorities would suspect this and would give notice to the Board of Trade of their intention to prosecute.
The logic of this seems to me that in certain cases the Board of Trade should take on the prosecution. It may be going too far to say that a prosecution should not be undertaken by a weights and measures authority without the consent of the Board. I should hope that there
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would be the closest understanding between the authorities and the Board. I should think that if the Board had received 25 notices of intention to prosecute in a case, it would be sensible for the Board to say that it would pool all the evidence and prosecute, and that would be acceptable. Either the Board of Trade should not allow prosecutions by weights and measures authorities in regard to advertisements circulating over a wide area without its consent or the Board should be prepared to take on all prosecutions of national advertising where it is appropriate. I beg to move.
Amendment moved—
Page 16, line 30, at end insert the said subsection.—(Lord Drumalbyn.)
LORD PARGITER: I should like to be clear on one point. Nowhere else in this Bill is a local authority prohibited from going forward with a prosecution. I appreciate what the noble Lord would like to do and I think it is sensible, but I do not think that there should be an absolute prohibition on a properly constituted local authority from undertaking its own prosecutions.
BARONESS PHILLIPS: This Amendment attacks the principle which we have adopted in this Bill, that the Board of Trade shall not interfere with the rights of local authorities to institute proceedings in respect of offences which they have discovered in their area. I know that the advertising industry are greatly worried about the possibility of proceedings in more than one place in respect of the same advertisement, as the noble Lord has told us. But if your Lordships will look at subsection (2) of this clause you will see that we have provided that the Board of Trade must be given notice of any intention to prosecute. This provision has been inserted specifically to enable the Board of Trade to act as a link between local authorities and to keep them informed where other authorities appear to have discovered, and wish to prosecute, offences which are identical or very similar.
We believe that this procedure will be perfectly adequate, in practice, to avoid unjustifiable multiple prosecutions for what is in effect the same offence. The similar procedure under the Food and Drugs Act has certainly proved to be so. But it must be left to the local

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authorities to decide in the last resort whether or not to prosecute. I am sure that your Lordships will agree that this is right. We must recognise that local authorities are responsible and reasonable bodies. They have also a great deal of work to do and must account for the money they spend. They are not going to want to rush into prosecutions just for the joy of it. In some cases they will be only too glad to feel relieved of the obligation to do so.
There is, of course, another aspect of the situation. The Board of Trade will also have a right to prosecute. It is very possible that if a number of local authorities were to report to the Board of Trade that they wished to prosecute in respect of the same advertisement, the Board of Trade would offer to bring a central prosecution. This would not always happen. But it would happen, particularly where the offence was one of national interest. I hope, therefore, that the noble Lord will feel able to withdraw his Amendment.
LORD DRUMALBYN: I think that what the noble Baroness has said is quite satisfactory. I accept that at the end of the day if the weights and measures authorities feel strongly about something they should be allowed to go on with the prosecution, provided that they are not doing it along with a lot of other authorities. But, on the other hand, I personally think that it would be a good idea if the Board of Trade took over prosecutions in the cases of the greatest importance. I think we can agree upon that and, in the circumstances, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
10.42 p.m.
LORD ILFORDmoved to leave out subsection (2). The noble Lord said: The significance of this Amendment has largely evaporated in the light of what was said by the noble Lord earlier in the evening, when he said, quite clearly and frankly, that the policy of the Bill was to permit prosecutions at the discretion of the local authority. Frankly, this proposal for 28 days' notice aroused a certain degree of uneasiness and suspicion. It was felt that this was really an attempt by the Board of Trade to drive from the back seat, and that it would be
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used for the purpose of controlling the discretion of the local authority in initiating proceedings. I think the noble Lord made it clear that that is not the case; indeed, I believe the noble Baroness a few moments ago repeated the same thing. It is a little puzzling to know why as much as 28 days' notice is required for prosecution. I see that the noble Lord, Lord Airedale, has an Amendment down to substitute 14 days, and I should have thought that this was an adequate number of days, and that 28 days errs on the excessive side.
May I say one more word about the freedom of discretion, which I think it is desirable that the local authorities should have? Your Lordships may recall that in the Report of the Commission presided over by Lord Redcliffe-Maud, on management in local government, which was published a short time ago, the attempt of central Departments to interfere in the discretion of local authorities in carrying out matters which were assigned to them was very firmly condemned. That would apply very much to this Bill. It would be quite wrong for the Board of Trade, either directly or indirectly, to attempt to interfere with the general discretion which local authorities are given. I understand from what the noble Lord said earlier that that is certainly not intended, and I was glad to hear him say it. I beg to move.
Amendment moved—
Page 16, line 31, leave out subsection (2).—(Lord Ilford.)
LORD PARGITER: I wish to support this Amendment moved by the noble Lord, Lord Ilford. If I may say so, I think it was quite indefensible on the part of the Government to use the argument they did on Clause 2 to deal with a relatively simple and straightforward position with regard to national advertising. In other words, the noble Baroness said, "Yes, but we have covered this because they cannot do it without reference to the Board of Trade anyway." If it happens to be a matter of simple marking or misdirection by a barrow boy, it still has to go to the Board of Trade and it will still take 28 days. This is before they start work on it. Where the barrow boy will be in that time, goodness knows!

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The only previous authority for this is Section 109(3) of the Food and Drugs Act, which requires 14 days' notice, but also in that Act the Board of Trade have the power to dispense with this notice, and in most of the Orders they have published they have done so. So in effect what the Government might rely on as a precedent is not a precedent at all, because so far as this Bill is concerned there is no question of discretion. Just imagine the sort of things that will have to be referred to the Board of Trade, with no discretion and a further 28 days' waiting. After all, it must go through the mill of the local authority, through the weights and measures department, to their solicitor, and then a case is built up and sent to the Board of Trade.
While there is to be no interference with the discretion of the local authority, what the Board of Trade are required to do under the next clause is to give a certificate which is required to be produced in the courts, and presumably if it is not so produced the prosecution would fail. So unquestionably there is a complete and deliberate interference with the local authorities on the part of the Board of Trade, whether or not they intend it. I hope the Government will take this back and look at it, with a view to leaving the position at least no worse than it is under the Food and Drugs Act—that is, 14 days' notice with discretion to dispense with it.
I agree it is desirable that there should be uniformity under the Food and Drugs Act, but to deal with the multiplicity of things which will come under the question of marking of goods, and so on, and say that willy-nilly they must all go to the Board of Trade, 28 days' notice must be given and a certificate produced in court, makes one wonder what sort of procedure we shall get into on quite simple matters. I really do not think that the Government can have thought this out, and I hope they will give an undertaking to look at it again.
LORD DRUMALBYN: I hope very much that the Government will not change this. My reason is that we obviously have to get co-ordination in this Bill, and I greatly deprecate the implication—which I think is somewhat contrary to what the noble Lord, Lord Pargiter, said earlier—that there will be
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a tremendous number of prosecutions. This is not the way the weights and measures authorities have worked so far. They go round to their advisers and to those to whom they are responsible in their area, and they bring prosecutions only against the real "shysters"—the people who really do something extremely negligent or who are obviously deceiving somebody.
The same will apply under this Bill. I do not say that the Board of Trade will be inundated with reports, but if they were they might need more than 28 days' notice. It seems to me that there must be some room for manœuvre, and 28 days seems to be a fair compromise. This will not just be a question of notification and receiving the certificate. The Board of Trade must look at this, if only to see whether there are other proposals to prosecute in the same case. It seems to me, with great respect, that the Board of Trade have given great thought to this. It was 14 days at the earlier stage and as a result of further thought they have come to the conclusion that administratively this would not work unless they had 28 days. If one accepts the principle of notification, I think that 28 days is needed.
BARONESS PHILLIPS: I think the noble Lord, Lord Drumalbyn, with his great skill and experience, as he has shown throughout the whole of this Bill, has rather effectively answered the noble Lord, Lord Pargiter, but as it falls to me to reply to this Amendment I will reinforce what he has said. I am sure the noble Lord, Lord Pargiter, will appreciate that if this subsection were omitted the authorities would not then be required to give notice, and it would not enable the Board of Trade to promote a uniform policy among enforcement authorities. This is a very important point. The establishment of a clearing house of this kind should go a long way towards preventing multiple prosecutions for identical offences in respect of widely distributed or advertised goods or services. The subsection would also enable the Board of Trade, in agreement with the local authorities, to take over the prosecution in cases of outstanding importance. This subsection would serve a very useful purpose, and I must ask your Lordships not to accept the Amendment.

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With regard to the 14 days or 28 days, when the Protection of Consumers (Trade Descriptions) Bill was before the House in 1956 it was suggested it was advisable for the Board of Trade to have longer notice of intended prosecution than 14 days. It followed a similar provision in the Food and Drugs Act 1955. On consideration we came to the conclusion that a period of 14 days might prove too short, particularly for the purpose of ensuring that adequate guidance could be given to local authorities where numbers of them were pursuing identical offences. We have taken into account the very much wider field covered by this Bill as compared with the Food and Drugs Act, and the consequently greater number of cases which will arise, particularly in the case of a national advertising campaign or mass distribution of a manufactured product bearing a false trade description. I agree that it is important to avoid delay in bringing prosecutions, but on balance we feel that the advantage lies with having the longer period of 28 days' notice which this Bill now proposes. I must ask your Lordships to reject the Amendment.
LORD PARGITER: I am prepared to accept that in a national case something must be done to co-ordinate action, but there are a great many local cases where it is highly desirable to let the authority proceed. Could the Minister not look at the possibility of trying to frame the subsection so that matters of local interest—local barrow boys and stalls, and the like—can be dealt with expeditiously by the local authority, under its powers, without interfering with those matters which require co-ordination over a wider area?
BARONESS PHILLIPS: I cannot give that undertaking. The noble Lord seems to assume that the Board of Trade would of necessity work slowly. Surely, if it is a straightforward case there would be no need for any delay. I am afraid that to adopt this proposal would cut right across the whole subsection of the Bill.
LORD AIREDALE: I am bound to say that that reply did not seem to me satisfactorily to answer Lord Pargiter's point. I should have thought that the valid point the noble Lord was making could perhaps be dealt with by introducing wording to say that where the
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local authorities "have reasonable grounds to suppose that multiplicity of prosecutions might follow" (or something of that kind) they may themselves prosecute. That would avoid their bothering the Board of Trade on purely local matters in cases where they felt quite sure complications of that kind were not going to be involved.
I should like to say a word or two about my next Amendment in which I shall be moving to reduce the period horn 28 days to 14 days. I already have some support from noble Lords for this. To my mind, the paramount consideration is that the administration of criminal justice must be as swift as possible. In the case of animals it must be instant, otherwise it is of no use at all; and in the case of human beings it should be as quick as possible. I do not think that in all cases the Board of Trade need 28 days delay in which to consider the matter. In the first instance, I think some official in the Board of Trade can be primed to deal with these things with a 14-day programme. If the 14 days run out I do not think it will matter in these cases because all that the Board of Trade have to do is, towards the end of the fortnight, to write to the local authority saying "We have done our best, but we have not yet made all the inquiries that we wanted to make in this particular case, and we should be obliged if you would hold your hand a little longer and not proceed with this prosecution until we have made further inquiries. We shall be writing to you again as soon as possible".
I think that to take the general rule it would be quite sufficient to say that the Board of Trade should try to deal with their side of the matter within 14 days.
LORD ILFORD: If the purpose of this provision is to avoid a multiplicity of prosecutions, it is really not necessary. The local authorities are quite accustomed to dealing with nationally distributed pre-packed articles. They are doing it constantly. There is an effective cooperation between different local authorities. I think that the main purpose of this Amendment has really been met by what the noble Lord said earlier this afternoon, and what the noble Baroness

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has just repeated. In those circumstances, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
10.58 p.m.
LORD AIREDALE: I will not inflict another speech upon your Lordships, but I will formally move this Amendment just in case the Minister has anything further to say to the view I expressed just now about fourteen instead of twenty-eight days. I beg to move.
Amendment moved—
Page 16, line 33, leave out ("twenty-eight") and insert ("fourteen").—(Lord Airedale.)
LORD BROWN: I would ask the Committee not to press us on this Amendment. Here, we are really between two fires of argument, one of them being that expounded by the noble Lord, Lord Drumalbyn. We want to prevent all sorts of sporadic prosecutions on the same issue all over the country. On the other hand, we have the perfectly reasonable argument that justice should be speedy and that a period of twenty-eight days is too long. This was deeply considered, and the 1966 Bill contained the fourteen-day provision. It was debated at great length by the experts inside the Board of Trade, and by others, who came to the conclusion that in the light of all the circumstances twenty-eight days would be necessary. So that this is in any case a compromise between the demands for something much longer and for something much shorter. Like all compromises, it satisfies nobody; but at least it does not leave anybody completely out in the cold. I beg the Committee not to press this Amendment on us now.
LORD AIREDALE: Very well. I beg leave to withdraw it.
Amendment, by leave, withdrawn.
LORD BROWN: In the light of the fact that it is quite clear that we shall not finish the Committee stage of the Bill tonight, I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
LORD BESWICK: My Lords, it may be for the convenience of the House if I say that it is the intention to resume consideration of the Committee stage of the Consumer Protection Bill to-morrow.
LORD DRUMALBYN: My Lords, may I ask the noble Lord at what hour we are likely to reach the Bill?
LORD BESWICK: I understand that it will be at an hour when noble Lords can return to the House; in other words, at about 6 o'clock.