HL Deb 04 December 1967 vol 287 cc396-423

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 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 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 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 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 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 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 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 HARWOOD

had 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 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

  1. (i) are being sold at the other price or
  2. (ii) have been sold at the other price for a substantial period within the preceding six months or
  3. (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 CAWLEY

had 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 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 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 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 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, 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 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 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 REDESDALE

moved, 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 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 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 REDESDALE

moved, 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 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.

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 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 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 DRUMALBYN

moved, 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 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.

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.