CONSUMER PROTECTION BILL [H.L.]

HL Deb 05 December 1967 vol 287 cc611-59

7.26 p.m.

THE MINISTER OF STATE, BOARD OF TRADE (LORD BROWN)

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 Brown.)

House in Committee accordingly.

[The LORD MERTHYR in the Chair.]

THE DEPUTY CHAIRMAN OF COMMITTEES

I understand that the noble Lord, Lord Drumalbyn, would like to begin by making a reference to a correction to Hansard, and that the noble Lord, Lord Cawley, will then wish to move the Amendment.

LORD DRUMALBYN

With permission, I should like to draw attention to a misprint in yesterday's Hansard. Lines 25 to 27 of column 378 read: at least the manufacturer ought to be prosecuted if he has played his part and done enough to justify the claim. I understand that this has been found to be a printing error, and that what I actually said was: ought not to be prosecuted".

Clause 29 [Notice of test and intended prosecution]:

LORD CAWLEY moved, after subsection (2), to insert: ( ) Where it appears to the Board of Trade that proceedings for the same or similar offence against the same person are being instituted by a government department or by a local weights and measures authority the Board of Trade may require any other local weights and measures authority giving such notice as is mentioned in the preceding subsection not to institute such proceedings.

The noble Lord said: This Amendment concerns a matter with which we have dealt before, but I wish to raise a point on it. It is concerned with preventing multiple prosecutions, but I now realise that the Board of Trade has almost complete power to prevent multiple prosecutions, and it is done in this way. There is no statutory duty on the Board of Trade to issue a certificate if the provisions of subsection (2) of Clause 29 have been complied with. Therefore, they need not issue a certificate to the prosecuting authority.

Subsection (3) says: A certificate of the Board of Trade that the requirements of subsection (2) of this section have been complied with in relation to any proceedings shall be conclusive evidence that they have been so complied with". As soon as a local authority start a prosecution the magistrate will undoubtedly ask, "Where is your certificate?" If they do not have one they will have to set about proving that they told the Board of Trade, and I cannot imagine any local authority starting to prove that. It would be disastrous to their case. Therefore, in effect, I think that the Board of Trade can pretty well stop any prosecution they do not want to proceed, simply by neglecting or refusing to issue a certificate, because there is no duty on them to issue one. Merely to raise that point, I beg to move this Amendment.

Amendment moved— Page 16, line 36, at end insert the said subsection.—(Lord Cawley.)

LORD BROWN

The implication of the noble Lord's remarks, if I understood him correctly, is that because of the interpretation which he puts on Clause 29(3) he is probably going to withdraw the Amendment. I do not want him to do so under any misunderstanding. It is quite clear that the Board of Trade have the right to issue or not to issue a certificate under this clause, but I think it is equally clear that if they have in fact had due notice in the proper form before 28 days of an intended prosecution by a local authority, then they would not, I think, legally be entitled to refuse to issue a certificate to that effect. I do not want to mislead the noble Lord. I would point out that we have given quite positive assurances that, even without the legal right to veto prosecutions by local authorities, the Board of Trade will nevertheless keep in very close touch and will act in a grandmotherly way. I think this is an effective assurance that they will not allow unfortunate multiple prosecutions. I do not think the noble Lord would be correct in relying on the Board of Trade to use Clause 29(3) in a way which I think would be a little improper.

LORD DRUMALBYN

I understood that it was customary for grandmothers to spoil their children, not to restrict them. I am not altogether happy about the procedure to be adopted in this case. It is quite true, of course, that the Board of Trade will be able to tell a weights and measures authority that another Government Department—and the point of this Amendment, of course, is that as well as a local weights and measures authority, it is another Government Department—or a local weights and measures authority is already proposing to institute proceedings in a particular case; but I do not know how the Board of Trade are going to persuade local authorities not to have multiple prosecutions. The noble Lord said at an earlier stage that they would not "interfere" with local authorities. I think that was the word used, although I cannot remember whether it was the noble Lord, Lord Brown, or the noble Lord, Lord Winterbottom, who used it. But to some extent, of course, the whole purpose of the reporting procedure is to interfere in some way or another.

I do not know how the noble Lord proposes to secure this co-ordination. I think we would all agree that there should not be multiple prosecutions; and at the moment the matter is left in the air. What is good sense in a particular matter is, of course, very often a question of opinion, and even dispute. But I think it is important that Parliament should devise a means to ensure that there will not be multiple prosecutions; and that is why this particular Amendment was put down. I hope that the noble Lord will be able to assure us that he has good hopes of attaining this objective without having the power that this particular Amendment would give him. It is quite paradoxical, after yesterday evening's proceedings, that the Government should refuse to take any power in this matter when they are offered it. The Board of Trade are here offered a power and are refusing it, presumably in full confidence that they will be able to secure this common objective without that power. I wonder whether the noble Lord could say a little more about how he proposes to secure that objective.

BARONESS ELLIOT OF HARWOOD

May I ask one question before the noble Lord replies? Would it be for the convenience of the Committee if I were to move my Amendment, which follows, now? It simply takes the matter a good deal further than this Amendment. Or would the noble Lord rather that I waited until he had answered this Amendment, in which case he would then answer mine separately? Perhaps the Lord Deputy Chairman could give us his guidance.

THE DEPUTY CHAIRMAN OF COMMITTEES

It is not possible for two Amendments to be moved together by anybody, but, of course, it is more than possible for two Amendments to be debated together. If the noble Baroness wishes to debate two Amendments, or even more, on the Amendment now before the Committee, there is no possible objection to that being done, if she likes to intervene now.

BARONESS ELLIOT OF HARWOOD

I should like to ask the noble Lord who is to reply whether he would find that more convenient or less convenient. I am quite prepared to speak now or to wait until he has answered the noble Lord and then speak again.

LORD BROWN

It is certainly quite convenient to me. The noble Baroness will understand that the objections I shall raise to her Amendment are so similar to those which I shall raise to the present Amendment that the reply will serve both.

LORD PEDDIE

Is my noble friend suggesting that he will be offering the same arguments to the noble Baronesses's Amendment as to this Amendment? There is something of a difference. If he is saying that, I would suggest that the two Amendments should be dealt with separately.

LORD DRUMALBYN

Perhaps I may make the suggestion that it might possibly be convenient to deal with my Amendment first, and then the noble Baroness can put the point of the second paragraph of her Amendment possibly more conveniently separately.

BARONESS ELLIOT OF HARWOOD

Very well; it is all the same to me.

LORD BROWN

I think the noble Lord asked for an assurance on the part of the Board of Trade that they would be able to contain the nuisance of multiple prosecutions, and so forth. This is not a position where they can veto illegally; otherwise, we should not be having this Amendment in front of us. It is a psychological issue. I have observed—I speak now as a Scotsman, and perhaps the noble Lord will appreciate this—the extraordinary degree to which people in this country South of the Border can co-operate in issues of this sort. If the Board of Trade receive notice of several prosecutions pending under Clause 29(3) and they regard then, as being confusing or unnecessary, then communications will immediately go out to those local authorities and discussions will take place.

One can only assume that local authorities will be intent on prosecuting this if they behave thoroughly unreasonably. I do not think there is any ground for assuming that this is going to happen. These are professional people, and professional people who are extremely busy people. They are going to have a very busy time indeed under this Act. They are probably going to be short-staffed, as we all recognise, and if they feel that a nuisance can be handled, on the one part, in some other local authority's area or, on the other part, that the Board of Trade may say that the best thing is for them to take it over, it seems to me that they will be prepared, with gladness in their hearts and with a saving of expense locally, to drop the subject. These are the common sense rather than legal grounds on which we have decided not to invest the Board of Trade with this right of veto.

Had we done so, as the noble Lord argued on a previous Amendment, we should have been apparently delegating authority to them and then, simultaneously, exercising the right to veto their decisions, and to that extent one always makes people somewhat less responsible. I think the net effect of giving the Board of Trade veto power might be to produce some very serious arguments of a rather acrimonious kind when they sought to use it; and I think we might be driven into a position where local authorities felt they were in competition with the Board of Trade rather than in co-operation with them. We might find ourselves saying, "We have used this veto a number of times and we do not want to pick up some more trouble in this locality; we shall let it go this time", when in actual fact we had felt that it would be better to use the veto or, in other circumstances, to invite their co-operation in dropping their prosecution. I think there are very strong psychological pounds for this decision. I cannot argue the case better than that, I fear. I hope that brings some satisfaction to the noble Lords opposite.

LORD CAWLEY

I think it would be a pretty brave local authority who would start a prosecution against the advice of the Board of Trade. I have told the noble Lord of the possible extra sanction, and I do not think I need say any more. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

7.39 p.m.

BARONESS ELLIOT OF HARWOOD moved, after subsection (2), to insert: ( )

1. (i) Where on receiving notice of intended proceedings under the preceding subsection, it appears to the Board of Trade that proceedings for an offence or a similar offence against the same person are likely to be proposed by more than one local authority area, the Board of Trade may require any local authority giving such notice as is mentioned in the preceding subsection not to institute proceedings for such an offence.
2. (ii) Where the Board of Trade require a local authority not to institute proceedings by virtue of the preceding paragraph, the Board of Trade or other appropriate government department shall take proceedings unless and until the Board of Trade revokes the requirement to that local authority not to institute proceedings."

The noble Baroness said: Before I move this Amendment, I want to draw the Committee's attention to a misprint. It is in line 5. The word "by" should be "in": "by" does not make sense. It should read: … are likely to be proposed in more than one local authority area … I move this Amendment because I do not entirely agree with what the noble Lord has just said on the question of national advertisements and national prosecutions. There could be conflicting decisions, with resultant uncertainty about the legality of the statement. If there are a great many different national prosecutions then a single prosecution by a Government Department was, I should have thought, clearly desirable. It would decide the matter with certainty throughout the country.

Other Amendments deal with the position where one local authority is taking proceedings and a second intends to do so. The intention here is to stop a second prosecution. This, I agree, is useful, but I do not think it goes far enough to deal with the circumstances I have mentioned. Indeed. I think it more likely that there would be a sequence of local prosecutions rather than two or more concurrent cases. Further, I believe that it would be more convenient for a Government Department to step in at the outset, when a particular practice appears to have a national effect and at the time when the Board of Trade are first notified of the alleged offence.

The second part of my Amendment seeks to ensure that if a local authority is required to stop proceedings, for the reasons I have explained, it should have an assurance that either the appropriate Government Department will continue with the matter or that the local authority will be made free to proceed on its own initiative. I am anticipating here the very strong feelings of local authority officers if they are prevented from remedying an abuse in their own area, and where their own people—people to whom they show a very devoted sense of duty—are harmed. I am speaking here chiefly of the Inspectorate of Weights and Measures, although I realise that other enforcement officers may share those duties. In short, I am proposing that where an offence is likely to affect the country as a whole, proceedings should be centralised and taken by a Government Department, but that, as a safeguard, the central authority should not be free to sit on the matter and so veto local proceedings until the time limit of one year had expired. This I think would be most unfair. I beg to move.

Amendment moved— Page 16, line 36, at end insert the said paragraphs.—(Baroness Elliot of Harwood.)

LORD PEDDIE

I hope my noble friend will give serious consideration to this proposal because I feel it would be easy of operation and would also bring about a rationalisation of the procedure. There is always the possibility, with a nationally marketed commodity, that an infringement of regulations may result in a certain number of prosecutions. If these prosecutions have been entertained in various parts of the country it is obvious that there is a strong likelihood of differing decisions. I should have thought acceptance of this proposal would have meant that the Board of Trade would have a better understanding or the situation and that it would introduce some measure of rational conduct in the whole operation of the Act.

If there be any thought that this is likely to interfere with the rights and responsibilities of local authorities the second part of the Amendment deals with that. Should it be felt by a local authority that no action was being taken by the Board of Trade when the local authority felt it was justified, then under the terms of this Amendment there would ultimately arise the possibility of the local authority's embarking on such a prosecution. I cannot see any reasonable objection to this. I think it would strengthen the Act.

LORD DRUMALBYN

May I make one observation? I think this might get over the psychological difficulty that the noble Lord was talking about. The only point at which I think my Amendment was, if I may say so, slightly better was that it also introduced the possibility of a prosecution by another Government Department being already undertaken.

LORD BROWN

I think I may have expressed myself a little ungraciously when we had the debate about whether the noble Baroness's Amendment should be taken. I meant to say that the background arguments which I should use would be the same but not the fore ground ones. To demonstrate this, I will give them. I have already explained in relation to Amendments Nos. 64 and 67 why we do not think the Board of Trade should have a right of veto over proceedings by enforcement authorities. I have also made it clear that if a number of local authorities were to report to the Board that they wished to prosecute in respect of the same offence the Board of Trade might well have to offer to bring a central prosecution. I do not believe that if such an offer were made any local authorities would wish to proceed with their own prosecutions. But I have laboured this point sufficiently already.

As to the proposal that it should be obligatory on the Board of Trade to take proceedings where they have prevented or dissuaded local authorities from doing so, I hope that your Lordships will agree that this is unnecessary. If a number of local authorities told the Board of Trade that they were proposing to prosecute in respect of the same nationally circulated advertisement, or something similar, the Board might well offer to bring a central prosecution; but it is quite unnecessary that the Board should always do this. What matters is that the offence should be dealt with by someone and that unnecessary multiple prosecutions should be avoided. This, the procedure proposed in the Bill will achieve.

Even if I could accept, which I cannot, that it would be right to place on the Board a duty to prosecute in certain types of cases, I am sure that it would be extremely difficult to define what those cases should be. There would clearly be no justification for the Board's taking over every case notified by more than a single local authority. Thus we should be left with a situation of having to assess the cases very carefully indeed to decide whether the situation was such as to justify our taking them over. The situation that would arise if we took them over, examined them and then found, on the deeper examination, that prosecution was not justified would be extremely embarrassing if the law laid down that, having taken them over, we had to prosecute. There are difficulties of this sort surrounding this Amendment which makes me worry a good deal about it. But the general reasons for asking the Committee not to accept this Amendment are really the psychological ones to which I have already referred in answer to Lord Drumalbyn's case for his Amendment.

BARONESS ELLIOT OF HARWOOD

I thank the noble Lord for that reply. He has on previous occasions said that the Board of Trade are always very loth to bring prosecutions. It is a fact that to get the Board of Trade to prosecute for anything is a very difficult matter. My Council's concern is that we are anxious that there should not be a great many prosecutions all over the country for one type of offence. In the case of a nationally advertised product, there may be prosecutions in magistrates' courts in which the results are quite different; and this would be most unfortunate. The Board of Trade still think they would rather that happen and that there was not central prosecution, which seems to be very short-sighted. I think it would be very difficult if there were a number of prosecutions on the same subject all of which had different results.

Be that what it may, it still remains that the Board of Trade should realise that there is quite a large body of opinion in this sphere of people who want to protect the consumers which feels that the Board of Trade do not prosecute enough and that if they get prosecutions into their hands and do not use them this would be typical. I put this Amendment down to try to persuade the Board of Trade to prosecute when they have a good case. In the opinion of many people they do not at the moment prosecute enough.

LORD BROWN

May I interrupt before the noble Baroness sits down? I was very obstinate in Committee last night over the question of powers. I was aware of the fact that I may have created a little resentment, but I was trying to hang on desperately to having quite clear powers for the Board of Trade to enforce these Acts. I want to draw the noble Baroness's attention to the fact that I was doing this principally because of the comments that she has just made of the reluctance of the Board of Trade to prosecute—which always relates back to uncertainty about their powers. I assure the noble Baroness that we are aware of the dangers of multiple prosecutions. We shall do our best—we think we have adequate powers—to stop them in all cases where they would seem completely unsuitable.

LORD DRUMALBYN

May I comment on that? We were not complaining yesterday about the powers of the Board of Trade but the powers being given to local weights and measures authorities to inspect.

LORD BROWN

That is true. But the fact that the local weights and measures authorities are short of powers is equally important in respect of these prosecutions. There is such a thing as prompting local weights and measures authorities to prosecute if we do not think that they are doing their job. We have power under the Bill to call for an inspection and if, having prompted them to get on with the job, they replied that the powers were inadequate because the Board of Trade failed to support those powers in this House, we should be in a rather awkward position. So I established the connection between the powers of the weights and measures authorities and the Board of Trade.

LORD PEDDIE

My noble friend indicated in his initial reply that the Board of Trade would seek to prevent multiple prosecutions. In the event of the non-acceptance of this Amendment I should be glad if he would indicate how the Board of Trade would operate to prevent multiple prosecutions.

LORD BROWN

With respect to my noble friend, I thought I had done that. Under the Bill the Board of Trade must receive 28 days' notice of every prosecution which is going to be brought by local authorities. In the light of their knowledge of the fact that multiple prosecutions, about issues which may perhaps concern the same advertisement, are about to take place, they would be in a position to find out what is happening from the local authorities and ask either one or more to desist and leave the prosecution to one local authority; or to say, "In this case we think it better that we should undertake a central prosecution and we invite all the local authorities to drop their prosecutions." I have no doubt that this sensible course would be accepted by the local authorities without any trouble at all. That is the process by which the Board could seek to prevent this unfortunate situation from arising.

LORD PEDDIE

I am glad to have my noble friend's assurance on that point.

BARONESS ELLIOT OF HARWOOD

I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

7.53 p.m.

LORD PARGITER moved to leave out subsection (3). The noble Lord said: There is obviously a good deal of doubt, which has been expressed, about what this subsection is intended to do. The Board of Trade will issue a certificate. According to what the Minister has said, this certificate has no value. It can be put in to show that the provision about 28 days' notice has been complied with, but there is a simple way to do that: the prosecution could merely produce a document to show that they had submitted a case to the Board of Trade and had waited for the appropriate 28 days before instituting proceedings. It seems to me that the certificate has little value in any case except that it might be implied—and this is what we are concerned about—that the certificate is a necessary prelude to prosecution. It has been made clear it is not intended that the certificate shall be that.

I wonder why we want it at all, and whether we cannot achieve a little streamlining and cause less work for the Board of Trade by not having to bother to issue a certificate. The authorities would merely have to satisfy the court that they had apprised the Board of Trade and that they had given the appropriate notice. It seems to me that this would avoid a good deal of confusion and misunderstanding and possibly there would be a little less work to do. I beg to move.

Amendment moved— Page 16, line 37, leave out subsection (3).—(Lord Pargiter.)

LORD CAWLEY

I think that this is quite a simple matter. The certificate is designed to assist the court, and the procedure is included in numerous Acts. It would be much more difficult to call evidence and put witnesses in the box to say that they had sent a notice by recorded delivery, and so on. This is a help to the lawyers, and I think it ought to remain in the Bill.

BARONESS PHILLIPS

I should like to thank the noble Lord, Lord Cawley, for the point he has made. Since it is accepted that it is desirable for the enforcing authorities to give notice of intended prosecution to the Board of Trade, it is only common sense that we should include a provision along the lines of the subsection to enable them to indicate that the required notice has been given to the Board of Trade. Otherwise witnesses would have to be called in person in each case to give evidence to this effect, which would be a waste of time. The further provision in the subsection about the certificate being genuine is designed to avoid the possibility of a defendant holding up the proceedings by quibbling about this point. He would have to produce evidence to substantiate his allegation. Having heard what has been said by the noble Lord, Lord Cawley, I hope that your Lordships will not accept the Amendment.

LORD PARGITER

Having heard the explanation and without prejudice—because I may return to the whole question of subsections (2) and (3) at another stage—I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD DRUMALBYN had given notice of his intention to move to leave out subsection (3), and insert instead: (3) At the same time as any such notice as is referred to in subsection (2) of this section is sent to the Board of Trade, a copy of that notice shall be sent to any person against whom it is intended to bring proceedings, and the copy shall be accompanied, in lieu of the summary of facts, by the result of any tests on any goods purchased or seized for the purpose of prosecution.

The noble Lord said: In view of the fact that the Government wish to keep subsection (3), it would facilitate the discussion on this Amendment if I were allowed to treat it as if it were purely an insertion. In other words, in page 16, line 42, at end to insert the words on the Marshalled List. I should explain that this Amendment would require the local weights and measures authority to send a notice of intention to prosecute not only to the Board of Trade but also to any person against whom it is intended to take proceedings, but in his case the notice would be accompanied, not by a summary of all the facts, as required in subsection (2), but by the results of any tests only.

This is a similar procedure to that which applies in the case of prosecutions for traffic offences. It certainly has the advantage—and this is a considerable advantage, in view of the delay imposed by the 28 days' notice—of giving the person against whom it is intended to take proceedings notice in advance of the intention, at the same time as the Board of Trade is given notice. That would mean that he would have an opportunity to keep track of any evidence in his favour. Also it would save time, because it would give him time to have the results of the tests checked and challenged, if you like; but, at any rate, he would be able to have his own tests done as well as the tests which might be carried out by the weights and measures authority. It seems to me that this is a reasonable procedure in the circumstances, and I hope the noble Lord will be able to accept it. I beg to move.

Amendment moved— Page 16, line 42, at the end insert the said subsection.—(Lord Drumalbyn.)

BARONESS PHILLIPS

As already explained by the Minister in relation to several other Amendments, the purpose of the Board of Trade's being given notice under subsection (2) of Clause 29 is to enable the Board to promote a uniform policy among enforcement authorities and to advise them on action being taken in respect of similar offences by other authorities; or, where it seems appropriate, to agree to take the prosecution. It seems, therefore, that to give a copy of the notice to the offender could serve only two purposes. In the first place it could give him somewhat longer notice of the prosecution, although he would get all the notice he needs when the summons is served. Secondly, it would give him an opportunity to make representations to the Board of Trade that he should not be prosecuted, or should be prosecuted by some other authority. But this would be quite inappropriate, as it would interfere with and delay the essentially co-ordinative function of the procedure and could come close to putting the Board, rather than the courts, in the position of deciding whether or not a case had been made out.

The provision that notice should be accompanied by the result of any tests or any goods purchased or seized for the purpose of prosecution does not seem to me to be necessary in the light of Clause 29(1). This already provides that a person must be informed of the result of a test on goods which have been seized and, where the test leads to the institution of proceedings, on goods which have been purchased. In view of this explanation, I hope that the noble Lord will see fit to withdraw his Amendment.

LORD DRUMALBYN

I am not altogether happy with that explanation, because it does not appear that the Government have taken into account the procedure in traffic offences. Is there any basis for saying that anybody who receives a notice makes representations that he should not be prosecuted? I cannot see any basis whatsoever. The purpose of my Amendment is simply to give the person against whom proceedings are likely to be taken a little longer notice, and to give him the result of the test at the same time as the Board of Trade are given the result. It is the timing that is important here. I do not want to press this proposal, but I hope that the Government will not discard it too lightly now that I have brought to their attention the parallel with traffic offences.

LORD BROWN

The noble Lord's experience of the law in general is impressive, and I cannot claim a similar experience with the Road Traffic Acts. There will be no delay in getting the results of tests to the person who may be prosecuted immediately they are available. On the second point in the more complex situation where there is a possibility of the scene of a prosecution being shifted from one local authority to another or to the Board of Trade, we are afraid of the people who are to be prosecuted coming to the Board of Trade and trying to put arguments to us. I cannot give solid reasons for saying this, but I am advised, on the basis of the experience of the officials who advise me, that that is likely to happen. I hope that I have disposed of the argument about the test arrangements. On the other argument about—I keep searching for the word for a man who is to be prosecuted; there must be a legal term for him—the defendant—

LORD DRUMALBYN

The intended defendant.

LORD BROWN

The intended defendant is safeguarded in the matter of receiving adequate notice under the laws of the land as they stand now. I hope the noble Lord will feel able to withdraw his Amendment, because I think that it might have unfortunate repercussions.

LORD DRUMALBYN

I am surprised at the argument. I should have thought that it would be perfectly possible to print an ordinary form to send out to anyone who made representations saying that the Board of Trade cannot entertain such representations. I cannot see how pressure can be brought to bear on the Ministry, and certainly pressure which they could not easily resist. This is not an Amendment to which I attach an overriding importance, and I beg leave to withdraw it.

Amendment, by leave, withdrawn.

On Question, Whether Clause 29 shall stand part of the Bill?

LORD DRUMALBYN

Scotland seems to be going rather by the board in all this. We have been talking of getting coordination in England and Wales. I wonder whether the noble Lord can give us any indication of how such co-ordination is to be carried out in Scotland, bearing in mind the fact that a local weights and measures authority may be intending to prosecute in Scotland at the same time and on the same facts as an authority in England. I hope that the Government have thought of this matter and will be able to tell me how they intend to proceed.

LORD BROWN

The noble Lord was good enough to give me brief notice of this point. I understand that it is highly probable that the procurator-fiscals in Scotland will be agreeable, as a voluntary act—because they are not under an obligation to do this—to notify the Board of Trade in the same way as the local authorities in England are going to notify them. I cannot give an absolute assurance yet, but I believe that discussions are proceeding in this direction, and if we can get such an assurance I think that this will be adequate.

LORD DRUMALBYN

This sounds like a very sensible working agreement, and I see no reason why it should not work.

Clause 29 agreed to.

Clause 30 [Evidence by certificate]:

8.6 p.m.

LORD DRUMALBYN

Amendment No. 70 is a probing Amendment. With the Amendment, subsection (1) of Clause 30 would read: The Board of Trade may by regulations provide that certificates issued by such persons as may be specified by the regulations in relation to such matters as may be so specified being matters referred to in section 2(1) of this Act shall, subject to the provisons of this section, be received in evidence of those matters in any proceedings under this Act. The purpose of the Amendment is purely to limit the powers to make regulations to matters covered under the general term "trade description". I beg to move.

Amendment moved— Page 17, line 4, after ("specified") insert ("being matters referred to in section 2(1) of this Act").—(Lord Drumalbyn.)

LORD BROWN

I agree that this Amendment would cover a great many of the cases about which the Board will wish to authorise certificates to be issued, but it would not cover all of them. It may well be that undisputed technical evidence will be needed in proceedings for offences relating, for example, to marking orders, under Clause 8, or to advertisement information orders, under Clause 9, or especially for offences relating to services accommodation or facilities, under Clause 13. May I give an example to illustrate my point? An offence under Clause 13 might turn on whether or not the persons by whom a service was to be provided possessed the qualifications which it had been represented they would have. A man might claim to be a qualified architect or to have a cordon bleu chef in his hotel. If this in turn hinged on whether or not their names were on a professional register, there seems no reason why undisputed evidence as to that fact should not be given by certificate.

The noble Lord's Amendment would impose too severe a restriction upon the Board's powers in this matter and derogate from the very purpose which this clause seeks to achieve. If the noble Lord thinks that this power is liable to abuse, there are two effective safeguards: the party against whom the certificate is to be used in evidence can exercise his rights under subsection 2(b), and the regulations exercising the power are subject to Parliamentary control under subsection (3). I hope that this expansion of examples will allow the noble Lord to see that we do, in fact, need slightly more extensive powers than the Amendment would give us.

LORD DRUMALBYN

I am much obliged for the expression of intention here, and I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

LORD DRUMALBYN moved, after subsection (2), to insert: ( ) The Board of Trade may by regulations establish standards of qualification and testing for such persons as are authorised to issue certificates under the provisions of this section".

The noble Lord said: The purpose of this Amendment is quite clear from its terms, and I do not think I need enlarge on it. At page 17, line 2, are the words "such persons as may be specified by the regulations". I was not clear whether those words were intended to refer to persons of such kinds as may be specified by the regulations or to individual persons who may be specified by the regulations. In either case, it does not seem to me from the drafting of this subsection that there is any power in the clause to establish standards of qualification of testing for them. I may be wrong about that, but to probe the matter I put down this Amendment. I beg to move.

Amendment moved— Page 17, line 13, at end insert the said subsection.—(Lord Drumalbyn.)

LORD BROWN

The noble Lord does not miss very much. When I read these words I put upon the clause referred to much the same interpretation as he has done. However, on probing the matter further I am assured that the relevant words are, as he indicated, "such persons as may be specified", and that this is equivalent to the power, when specifying the persons who may issue the certificates, to say all persons holding such-and-such qualifications. I do not know if I have made that clear. I will say it again. Where in the clause it says that the Board of Trade may by regulations provide that certificates issued by such persons as may be specified by the regulations relating to such matters by the term "such purposes", we are, I am advised, giving the Board of Trade power to include in their regulations the specification of the professional qualifications of the persons. I agree that this is a slightly difficult interpretation to put upon the words, but I am advised that it can be put on these words, and it has been put on such words in similar Acts. I hope that this explanation will satisfy the noble Lord.

LORD DRUMALBYN

I am obliged to the noble Lord. It satisfies me perfectly. The effect seems to be achieved with the minimum of words, if indeed the effect is achieved. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 30 agreed to.

Clauses 31 and 32 agreed to.

Clause 33 [Saving for civil rights]:

8.13 p.m.

THE LORD CHANCELLOR moved, to leave out Clause 33 and to substitute the following new clause:

Saving for civil rights

"33. A contract for the supply of any goods shall not be void or unenforceable by reason only of a contravention of any provision of this Act."

The noble and learned Lord said: I beg to move the Amendment standing in my name and in the name of the noble Baroness, Lady Elliot of Harwood. The object of this clause is to make it plain that nothing in the Bill is to affect the contractual or tortious rights of the parties. It is thought that the clause in its present form may not do that. There are cases, I think, in which an illegal act is mixed up with a contract and a court has said that this makes the whole contract void; and there are other cases where the court has said that, although it does not make the whole contract void, it makes it unenforceable at the suit of the party at fault. The original clause was not thought to achieve that purpose, whereas this new clause, it is thought, does so.

It is not the purpose of the Bill to prejudice the civil law remedies of the person to whom goods bearing a false description are supplied. This is a Bill which I suppose in a sense might have dealt with all this by no recourse to the criminal law at all, but by enlarging in some way the contractual or tortious rights of the other party. But it does not. This is a Bill which makes the future acts criminal acts, and does not deal with the civil law position. Neither would it be right to provide that the contract is void, or even that the contract is unenforceable at the suit of the party at fault. The fault, after all, may vary enormously. A man sells a £1,000 car, and there is a description of the car as having recently had the clutch relined. If that is untrue, certain criminal consequences may follow under the Bill. But it would be quite wrong that the owner of the car should not be able to recover the contract price of the car, and wrong, for that matter, that the purchaser should be able to get a £1,000 car for nothing.

Therefore, the object of this clause as now drafted is simply to make it clear that there is nothing in the Bill which will have the result that the fact that there is an illegal act here either makes the contract void or makes it unenforceable. It is thought that the clause in its new form, as proposed by this Amendment, achieves that object. I beg to move.

Amendment moved— Leave out Clause 33 and insert the said new clause.—(The Lord Chancellor.)

8.15 p.m.

BARONESS ELLIOT OF HARWOOD moved to add to the proposed new clause: ( ) In a contract for the sale of any goods to which a trade description is applied there shall be an implied warranty that the trade description is not a false trade description.

The noble Baroness said: As the noble and learned Lord the Lord Chancellor has moved the previous Amendment, which my Council would support, I am adding an Amendment to it which I now wish to move. As it stands, Clause 33 as now amended is a substantial subtraction from the rights a customer has under the existing merchandise marks law, and I therefore couple this Amendment with the last Amendment, No. 73, so that the buyer will not be deprived of a very useful legal protection—the right to say that if goods have been falsely described he is entitled to appropriate compensation by way of damages without having recourse to any other Acts of Parliament or to the Common Law.

I anticipate that a number of arguments may be made against this Amendment. It may be said that the civil law, strengthened by the Misrepresentation Act of this year and by new contract legislation which may follow, will provide the customer with adequate remedies in all circumstances. But this may not be so, and in any case it is always dangerous to rely on future legislative activity as a reason for not including sensible provisions now. Secondly, it may be said that the rights given to the customer under Section 17 of the Merchandise Marks Act 1887 have not been used in many cases. No statistics seem to be available, and we cannot even hope to discover how useful Section 17 was to the customer, or how frequently it was used by buyers or by their solicitors to obtain out-of-court settlement of their claims.

In simple terms, I want the buyer who has bought goods bearing a false trade description to have the right to found a claim for damages on that fact alone, and, as I have said, this is so under existing merchandise marks law. It is important that this rule be maintained, because the scope of the present Act is much wider, of more popular interest and less technical than the previous Acts, and so we can anticipate that far more people will seek redress when they discover that they have bought goods which have been falsely described.

If we leave the clause as it is now, in its amended form, then we run the risk of having two different standards and quite unnecessary complications. A shopkeeper who has demonstrably committed a criminal offence under these proposals will still be able to resist a claim for compensation, relying on the wording of Clause 33. The claimant will then have to fall back on the civil law, sale of goods, misrepresentation law and Common Law. It is uncertain that this body of law covers as much ground as this Bill, and we could find a ridiculous situation where a description would be a crime, and the seller could be convicted, but he could not in any way be obliged to recompense the buyer for loss suffered. The situation in which this could arise is very complicated, but I am told that it can be best summed up by saying that an innocent, non-negligent description, not amounting to a term of a contract, could be a criminal offence under the Bill, but no civil remedy would exist after the agreement was finalised.

Apart from this technical shortcoming, surely we want to give to purchasers a single piece of law which will help them both to make sure that sellers are deterred from making false statements, and which will also provide civil protections for the buyer. It may be clear to the lawyer that other remedies will be available in many cases, but this is the Consumer Protection Bill and we want the ordinary purchaser to be able to find his law as easily as possible.

As your Lordships know, this Amendment is intimately connected with my proposed Amendment No. 40 to Clause 17, which I withdrew. Both share the same purpose of giving the purchaser a personal right to redress. With your Lordships' permission I really must counter some of the objections which were made, and no doubt will be made again, on this issue. As I have said. Section 17 of the Merchandise Marks Act 1887 now gives a buyer a civil remedy where a false trade description is applied to the goods he buys. None of the prognostications raised by the noble Lord, Lord Strabolgi, seem to have afflicted us during the past 80 years. If it is said that the existing Section 17 has rarely been used, it is equally clear that a retailer who has been convicted is not going to defend a civil action when he sees from the Statute that the buyer has a civil claim against him. For this reason, questions about differing standards of proof in criminal and civil courts are really irrelevant. No one in his senses will spend money on a civil case which he knows he will lose.

There is another purpose which my Amendment serves, as I have said. The Consumer Council deals with many inquiries about remedies for false trade practices. If Clause 33 remains as it stands, many people will have to be told that proceedings lie under the Consumer Protection Act, but they will say, "What is there in it for me?" At present we can point to Section 17 of the Merchandise Marks Act and say, "There is your ready-made civil remedy". We shall not be able to say so under the present Bill unless it is amended, and naturally people will not be so willing to come forward.

At an earlier stage the noble Lord, Lord Drumalbyn, thought it was curious to combine civil and criminal law, as I had proposed in my earlier Amendment to Clause 17, which dealt with compensation. Substantially the same issue is raised here, and I would invite the noble Lord to look at Section 3 of the Consumer Protection Act 1961 which gives anyone affected by an offence under that Act the right to raise a civil action for breach of duty. I know that this Act deals chiefly with safety to the person, but none the less the precedent is there. Section 17 of the Merchandise Marks Act 1887 carries the same principle into the field of trade descriptions. I allow that separate actions may be necessary in principle, but for the reasons I have already explained in practice the existence of a civil remedy is all we want.

I hope the Government will not say that my purpose will be served by the civil remedies given by the new Misrepresentation Act 1967, because that Act will not fill the gap. The Misrepresentation Act is a bit of a red herring. It merely filled in a very small gap in English law, which I may say never existed in Scots law. In certain cases the Act now gives a person the right to revoke a contract, whereas before he only had a right to damages. I know there are other legal refinements embodied in this Act, but this is the main point that concerns us here. In any case, I find it curious that the Misrepresentation Act should be dragged in, because misrepresentations are a far more delicate and rare species than common false descriptions, and it is these with which we are chiefly concerned here. The first civil remedy that comes to hand is, of course, Section 13 of the Sale of Goods Act 1893, which confers an implied condition that goods correspond with their description. But the trouble with all these civil remedies is that they will not be linked with the Bill and they would involve a county court case starting ab initio. Both my Amendment and the existing Merchandise Marks Acts provide this useful link. It is true that I have left out the seller's right to exclude his liability under Section 17 of the Merchandise Marks Act 1887, but I hope discussion of this matter need not delay us. I am anticipating the work of the Law Commission, but I should be nearly as satisfied if Clause 17 was reinstated in full, in the knowledge that the exclusion of liability at the end of that section is, I hope, already under sentence of death.

Finally, in this matter there was mention of fast-moving low-priced goods, but we should not forget that furniture, carpets, and perhaps second-hand motorcars and other quite expensive goods are all covered by this Bill. It is here that an easily established civil remedy is needed for the person who has lost an amount perhaps of the order of £10 to £50 or more, as a consequence of a false trade description being applied to goods. I beg to move.

Amendment to Amendment moved— Line 3, at end insert the said subsection.—(Baroness Elliot of Harwood.)

8.25 p.m.

LORD DRUMALBYN

I should like to make one comment and to ask one question. My comment is that what the noble Baroness said about my remarks was not exactly what I meant. I was dealing only with the case of combining civil and criminal remedies in the same court at the same time. I was not going further than that. When I saw this Amendment I read it in a rather different sense. I do not know whether the noble and learned Lord the Lord Chancellor can comment on it. The intermediaries, the retailers, feel that they are going to be rather unfairly at risk because of the withdrawal of the implied warranty, and I should very much like to see it reinstated. They feel that if this is done it will be much easier for them to shift the blame on to the manufacturer. It is strongly felt that if this kind of provision were included in the Bill it would ease the task of a retailer in defending himself where he has acted in good faith on a trade description by a wholesaler or a manufacturer, because in the past he has been accustomed to treat that kind of representation as an implied warranty.

LORD CAWLEY

If a retailer buys goods, is not an implied warranty that it does not bear an infringing trade mark equally an implied warranty that it does not infringe a patent in law at the moment? I do not know whether there is an implied warranty at Common Law that it does not offend against the Merchandise Marks Act, but it might be better if this were placed in the present Bill to clarify that point, if that warranty does not exist at Common Law.

LORD PEDDIE

In moving her Amendment the noble Baroness gave the Committee a mass of evidence in support, and I made a note of one or two points which appear to be very important. I should be glad if my noble and learned friend the Lord Chancellor could help me in deciding whether or not the arguments that have been advanced are based on fact. I understand from what was stated that if we leave the clause as amended, a shopkeeper who has actually committed a criminal offence tinder these proposals will be able to resist a claim for compensation. That was the statement which was made, and it was said that the claimant would have to fall back on the civil law, that probably the civil law does not cover the same ground as this Bill, and therefore it would be a disadvantage. If that be so, it would seem to be a serious disability, even with the clause as amended, and I take it that the purpose of the Amendment is to give the right to the buyer who has bought the goods bearing a false description to establish a claim for damages on that fact alone. Those seem to me to be two very important points which, if they can bear examination and acceptance, would appear to strengthen the Bill very greatly.

8.30 p.m.

THE LORD CHANCELLOR

This matter has a somewhat complicated legislative history. As the noble Baroness has said, the Amendment seeks to reproduce in the present Bill the substance of the first part of Section 17 of the Merchandise Marks Act 1887 in so far as it applies to false trade descriptions. The second part of that section permitted the vendor to contract out of the implied warranty by delivering to the buyer a written disclaimer, which the buyer accepted. The Amendment proposed by the noble Baroness is silent on whether contracting out of the implied warranty is to be permitted or not. I imagine she probably intends that there should be no contracting out, but it is not clear whether the Amendment would have that effect. As I expect she knows, this provision of Section 17 has in fact been very little used in the last 80 years. The Molony Committee recommended that Section 17 should be continued in substance, but that the right to contract out should be confined to sales of secondhand, imperfect and auctioned goods. This was in line with their general recommendations on contracting out of liability under the Sale of Goods Act.

In the 1966 Bill Clause 34 reproduced the substance of the existing provision. It did not, however, impose any restriction on the right to contract out, because it would have been wrong to implement the Molony Committee's recommendation on this point in isolation from their recommendations on the wider question of contracting out of the Sale of Goods Act conditions and warranties. At about the same time, the Misrepresentation Bill was introduced in this House and it became apparent that Clause 34 was inconsistent with the principles of the Misrepresentation Bill in that it could operate to make a seller liable for damages when he had been guilty of neither negligence nor fraud. With the passing of the Misrepresentation Act 1967 the arguments for omitting the provision have become really irresistible. The buyer of goods bearing a false trade description will now almost always have a civil remedy, either under the Common Law or by virtue of the new Act, if the trade description is a term of the contract or if it was one of the causes which induced him to buy the goods. If he did not know of it or was not influenced by it, there is no case for giving him a remedy on account of it.

If the misrepresentation was made negligently or fraudulently the buyer would have a right to damages and rescission of the contract. This would apply unless the seller could prove that he had reasonable ground to believe, and did believe up to the time of the sale, that the facts represented were true. Even if the seller was entirely blameless (so that he would not be liable for damages), the buyer would be able to rescind the contract and ask for his money back; and if the trade description had become a term of the contract he could also claim damages at Common Law.

The worst feature of the provision which the Amendment seeks to preserve is that it imposes a civil liability even on a seller who was in no way to blame for the false trade description and would have a complete answer to a criminal charge in respect of it. It would also be inconsistent with a fundamental principle of the Misrepresentation Act, namely, that there shall be no right to damages where a misrepresentation is wholly innocent.

It may also be noted that the provision of a civil remedy is really out of place in a Bill of this kind. Of course, the Law Commission has a Working Party working on exemption clauses. The right time to deal with exemption clauses in this small field is when we deal with exemption clauses generally. But, speaking in general I think the point really is this. One can conceive of a Bill in this field which sought to impose obligations simply by giving the other party to a contract a civil remedy. But this Bill does not do that. This Bill does not deal with the law of contract at all. If this Amendment were to be accepted, this would be the only clause in the whole Act which deals at all with contractual rights or tortious rights. This is a Bill which imposes obligations on people which are to be enforced by the criminal law imposing penalties.

We have now got the Misrepresentation Act, which very carefully defines the exact circumstances in which there are to be remedies for a misrepresentation. Of course, there are rights in tort. There is no difficulty in the case of fraudulent misrepresentation; there is a right to rescind and a right to damages as well. But until the Misrepresentation Act it had been a general principle of English law that you could not get damages for an innocent misrepresentation, or in general even a negligent one. The Misrepresentation Act has now defined very carefully what your civil remedies can be. There are cases in which you can get both the contract rescinded and damages. There are other cases in which you cannot get damages but you can have the contract rescinded. It would be contrary to the general principles of this Bill, which, as I have said, is a Bill which imposes obligations to be enforced by the criminal law, if we started putting into it clauses which are in conflict with what we have carefully decided the civil law to be in the Misrepresentation Act. It is for those reasons that I am unable, I am afraid, to accept the Amendment.

BARONESS ELLIOT OF HARWOOD

I should like to thank the noble and learned Lord very much for his reply. Far be it from me to enter into any kind of legal argument with the Lord Chancellor. I am not a lawyer, and the information given me is from the legal department of my Consumer Council. I naturally take him to mean that the view expressed by my representatives, that the Misrepresentation Act is not going to give the same kind of protection this Amendment would have given, may not be correct. I hope that is so. I hope that what the noble and learned Lord, the Lord Chancellor, has said will give the kind of protection we are seeking in this Bill. I will study with great care and interest what the noble and learned Lord has said. I beg leave to withdraw the Amendment.

Amendment to Amendment, by leave, withdrawn.

Clause 33, as amended, agreed to.

8.37 p.m.

Clause 34 agreed to.

LORD PARGITER moved, after Clause 34, to insert the following new clause:

Records of transactions in imported goods

" —(1) The Board of Trade may by order require that any person dealing in imported goods of a kind specified in the order shall keep and retain for a period of at least two years a true record of every transaction in which he engages by way of trade in such goods other than a sale by retail and such record shall include the names and addresses of the parties to any such transaction together with particulars of the date of the transaction and of the description, quantity and origin of the goods which were the subject thereof.

(2) The record mentioned in the previous subsection shall be a 'document' for the purposes of subsection (1)(c) of section 27 of this Act.

(3) Any person who fails to comply with any requirement of this section or any order made there under or wilfully destroys or defaces any record of the kind mentioned in this section before the expiration of two years from the date when it was made shall be guilty of an offence."

The noble Lord said: This Amendment is designed for a particular purpose and to cover a particular difficulty in which local authorities find themselves at the present time. Clause 27(1)(c) enables an authorised officer to require the production of books or documents, but there is nothing in the Bill which requires a person to keep documents. Obviously, he does for normal trade purposes, but he is not obliged to and there is nothing in the Bill which says he must. Generally speaking, it would probably be quite wrong to make such a requirement part of the general trade and business they undertake, but there is a specific case with regard to imported goods and a specific case also where those imported goods are imported in bulk and then broken down. There are such things as butter, lard, honey and wine, to take examples of goods which are imported in bulk from foreign countries. They are broken down, very often blended and so on. It is within the knowledge of officers in the local authorities that a good deal of misdescription goes on as a result, but they are quite unable to get at it because they cannot get at the original record, as the documents are not necessarily available, and there is no requirement that they should be produced.

What this Amendment does is to ensure that the documents shall be available for a reasonable period and shall describe what has happened to the goods after the first importer brought them into this country. It would mean that what it is now impossible to deal with in the way of misdescription would become possible to deal with. There would still be a great deal of difficulty about it, but at least it would act as some check on what happens at the present time.

It will be within the knowledge of your Lordships that not so long ago a great fuss was made about imported wines and about a misdescription which was applied to them. Some importers argued that they improved the wines by blending them, although they kept the original labels. That may be, but that does not alter the fact that it is still a misdescription. But unless you have some sort of record to begin with as to where the wine comes from, and other information about it, there is not much that can be done. This applies also to the other articles that I have mentioned, and may well apply to other types of goods. Having regard to the fact that so far the Government have not accepted many Amendments, except the one red letter one that has been moved for the Government, I hope they will look a little more favourably on this Amendment than they have done upon many others that have been moved. I beg to move.

Amendment moved— After Clause 34 insert the said new clause.—(Lord Pargiter.)

LORD DRUMALBYN

I have sympathy with the noble Lord in his Amendment, although I am not absolutely certain of the actual words he has used. I am not quite certain what the interpretation of "dealing in" is. I do not know whether it is wide enough to cover the kind of cases that he has in mind. It is not only main importers who, as I read this, are affected. It means importers dealing in the goods. He seems to be treating this as applying to anybody who has anything to do with imported goods, including the blending of them and so forth, and who may buy them at third or fourth hand after the importing. I am not quite certain whether the actual drafting here will cover the points he has in mind. But, subject to that, I am in considerable sympathy with his idea.

LORD PARGITER

I am not wedded to this form of words; I am merely wedded to the principle. If the Government would indicate that they accept the principle, and would provide a more suitable form of words I should be only too happy to withdraw the Amendment on that basis.

LORD BROWN

My noble friend referred to the fact that we had not accepted many Amendments. We did accept one, but eventually it was withdrawn. But I would point out that although we have not accepted Amendments we have undertaken to consider a large number of cases, as is customary when, as so often happens, Amendments are not phrased in a way to fit into the Bill. I do not want to be accused of being too Micawber-like.

This Amendment would enable the Board of Trade to place onerous record-keeping requirements upon all who deal in imported goods, and I cannot think that we should be justified in accepting it. I would first of all point out that if the goods have passed through several hands on their way to the consumer—and there is nothing in the new clause to suggest that these several hands through which the goods pass must not keep them, except for the fact that it leaves out retail sales—the dealers may well not know whether or not they are imported goods.

In the second place, I believe that, in most cases, the normal records kept by traders will suffice to enable the Bill to be properly enforced; and it would not be right to give the Board power to impose a special record-keeping duty on all to cover a small minority of cases. Finally, the clause which my noble friend proposes would invite the Board of Trade to impose an onerous requirement in respect of, and only in respect of, imported goods. I should be the first to hope that our traders would prefer to stock British goods and that our shoppers would prefer to buy British goods. But we cannot pursue that aim by building into this Bill a discrimination which I am quite sure would be contrary to our international obligations, legal and otherwise.

Perhaps I may just add that there must always be an importer into this country, and if that importer is guilty of applying a false description, then he can be assailed for the act and he will have to produce the information. Whether that information be elsewhere in some other country, if he is selling goods in this country with a false description, and if they want to know what the content of the wine is and so on, the Board have power under this Bill to insist that the information is provided. For this reason I have been puzzled as to the real essential purpose of this new clause; and perhaps my comments may satisfy my noble friend that it is not really so necessary as he may have thought.

LORD DRUMALBYN

May I just add a word to what the noble Lord has said? He will recollect that on Second Reading I referred to the report of the weights and measures inspector in which he talked about the difficulties of dealing with trade descriptions on imported goods. I thought that perhaps the noble Lord's Amendment would help with that. The noble Lord, Lord Brown, has referred to the fact that it is possible, shall I say, to "nail" the importer. I should like to be satisfied that imported goods are not at an advantage as compared with British goods, in the sense that somebody can always be "nailed" on imported goods, just as much as on British goods, where there is a false trade description put on by a manufacturer. This is what one wants. It is not a question of discriminating against a foreigner, but a matter of making certain that the foreigner is not put in a position of advantage in comparison with British goods.

LORD PARGITER

Frankly, while obviously I am not going to get far with this Amendment, I was not getting, or seeking to get, at the original importer. He will import in good faith and he will break down the bulk and will sell it with a proper description. There is no question that he will necessarily be at fault in selling his bulk article which he has imported, and then has broken down to some extent to go for blending purposes and various other things. The point at issue is what the person who buys the article from him does with it, and what ultimately it arrives as when it gets into the shop. It is in order to get this right that I put this Amendment down. Unless you can get at the original record you really cannot do anything about it. If you suspect that a person has given a wrong description to a blended article, or something of that kind, and his records show that he has bought certain goods and so on, it is possible to go back to where the one part of the product which is being sold was imported, and from that to establish the case with regard to the extent to which there may be a misdescription of the goods which are being sold to the retailer. I should not think that that would be so difficult.

What my noble friend has now said is that in fact this would create difficulties, and would impose on the importer something of a severe penalty. Where is the severe penalty in having to keep a record of his purchases and his sales for a reasonable period? Two years may be the right or the wrong period, but I should not have thought that a duty to keep these records for a reasonable period, so that they are available to be picked up by the weights and measures inspector at some time, in order that he may trace the origin of the article and the point at which it became dealt with in such a way that it ultimately had a misdescription when it came to be sold over the counter, was imposing a particular hardship. The keeping of such records could not possibly be a hardship in any way. I think it is quite reasonable. I admit that often there may be difficulties in this type of case about getting a proper description applied to the goods. But anything which acts as a deterrent and ensures that a proper description is applied, and that people do not carelessly slip up in these matters, will be for the general benefit of the consumer.

LORD BROWN

With great respect to my noble friend, I suggest he is putting upon this matter a very different interpretation from that which could properly be put on it by the words in the new clause. It starts off: The Board of Trade may by order require that any person dealing in imported goods of a kind specified in the order shall keep and retain for a period of at least two years a true record … He made reference to bulk goods. Well, wine coming in bulk may be dealt with at two or three stages and may involve hundreds, indeed thousands, of firms. This is a power which possibly would cause as many as thousands of firms to keep extensive records. I do not see the purpose of this proposition.

Compare the onerous nature of an order insisting that all those records should be kept with, on the other hand, the difficulty which one might occasionally come across of finding goods which had been imported that were the subject of a false description. There might occasionally be difficulty in tracing these back to the importer, although the person who had offered them for sale would be under some duress to provide the information which would take the authorities back to the importer, otherwise he himself would stand in some danger of prosecution. If he said that they were bought from persons unknown, well, that is not always a tale which could be accepted. So if one leaves the law as it stands, it will in most cases be necessary to go to the importer, who, if he is running his business properly, would have the necessary records. If he has not, then the worse for him according to the law. Therefore I do not think this Amendment is necessary.

I turn now to Lord Drumalbyn's point. Far be it from me to shrink from the idea that we should see to it that importers are not put in a favourable position as against those who supply British goods. I will think about this point to make quite certain, since I am alarmed at the mere thought that this might be so. However, I do not think it is so under this Bill. There must be an importer, and he is under the same requirements in the Bill as anyone else. I do not think that there is any possibility of his being in a different position, but because the anxiety is an acute one in my mind at the moment, I will promise to think about it.

LORD PARGITER

Having regard to the explanation which has been given, although still I think that the Amendment could be made workable—it may not be as precise as it ought to be, and perhaps it is widely drawn whereas it ought to be narrowly drawn—in the circumstances I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 35:

Orders

35.—

(3) The following provisions shall apply to the making of an order under section 7, 8, 9, 14 or 34 of this Act, except in the case mentioned in section 10(2) thereof, that is to say— (a) before making the order the Board of Trade shall consult with such organisations as appear to them to be representative of interests substantially affected by it and shall publish, in such manner as the Board think appropriate, notice of their intention to make the order and of the place where copies of the proposed order may be obtained; and

LORD PARGITER moved in subsection (3)(a), to leave out the first "such" and insert: the associations of local authorities and such other".

The noble Lord said: In the absence of the noble Lord, Lord Ilford, who unfortunately is unable to be present, may I say that I am interested in Amendments Nos. 76 to 78. Having regard to the discussion which has taken place on Clause 10(2), I do not wish to move Amendments 76 or 77, but I wish to move Amendment No. 78. This Amendment seeks to ensure that those bodies who have to work in close co-operation with the Board of Trade in connection with the orders and with their execution are brought fully in to consultation. I know that the clause says that so far as the Board of Trade are concerned they will consult such organisations or bodies as may appear to them to be interested. The local authority associations themselves will be interested in all circumstances, and they particularly wish that this fact shall be recognised. If there is a particular partnership between the associations and the Board of Trade they wish this to be recognised in this particular clause, whereas other organisations might be brought in from time to time according to the nature of the order. Therefore, as it would appear that they will always be concerned, it would make it clear that the local authorities are virtually partners with the Board of Trade in regard to any orders. I hope that the Minister will be able to accept this Amendment.

Amendment moved— Page 19, line 14, leave out ("such") and insert the said new words.—(Lord Pargiter.)

LORD BROWN

The noble Lord wishes to provide that the Board of Trade must in every case before making an order consult with the associations—and, as his Amendment stands, with all the associations—of local authorities. The weights and measures authorities who will have to enforce orders obviously have a substantial interest in them, and it therefore follows that in such cases the clause as it stands will oblige the Board to consult the organisations representing weights and measures authorities. To that extent the addition of the words proposed by the noble Lord would be superfluous; and to the extent that the Amendment would require the Board to consult as a matter of course with any other associations of local authorities, even though it was apparent that they could have no substantial interest in the particular matter, I suggest that the addition of these words would be quite inappropriate. The force of my argument turns on the assumption that my noble friend in his Amendment is intending to include weights authorities in local associations. I hope that this is the case, because in that case he will understand that the Amendment is not required.

LORD PARGITER

I was dealing with the authorities concerned with the operation of the Act; I may have used the term loosely in the wording of the Amendment. But on the assurance given that the Board of Trade must consult, and having regard to the fact that this will be on record, I think that will be sufficient to satisfy the authorities themselves that they are properly protected.

Amendment, by leave, withdrawn.

LORD STRABOLGI moved, in subsection (3)(a), after "it" to insert "including advertising and design organisations". The noble Lord said: This is a similar type of Amendment to that which has just been moved by my noble friend Lord Pargiter. I really put it down in order to seek information. The Amendment would make clear in the clause that the Board of Trade will bring the advertising and design organisations into any prior consultations before orders are drafted. It is not, in my view, sufficient to limit consultation to the trade bodies. In this Bill the Government are entering into new fields hitherto left to voluntary control, and it is most important that full consultations should be put in hand and that if possible prior agreement should be reached to ensure that any statutory orders are practicable and easy to understand and also that they do not jeopardise good advertising design and techniques, on which we as a nation depend. I beg to move.

Amendment moved— Page 19, line 16, after ("it") insert ("including advertising and design organisations").—(Lord Strabolgi.)

LORD BROWN

We appreciate that there will be cases in which the interests of the advertising and design world are liable to be substantially affected by a proposed order. It will not necessarily always be so. For example, one can envisage that their interests might not be affected by an order under Clause 35(2). But where it is so, Clause 35(3) as it stands already obliges the Board to consult the representative organisations of these interests, and I can assure the noble Lord that the Board would be fully conscious of that duty. I hope, therefore, that he will recognise that it would be superfluous to add this express reference, which might indeed even be interpreted as obliging the Board to consult advertising and design organisations in every case even though their interests were unaffected. I hope that with that assurance the noble Lord will withdraw his Amendment.

LORD STRABOLGI

I am grateful to my noble friend for that assurance, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

9.0 p.m.

LORD DRUMALBYN

I rise to move Amendment No. 80 merely to try to find out what the actual procedure is to be here. Since we last dealt with this matter we have added a provision in regard to 28 days. I take it that this is intended to be a minimum period. But I was wondering whether the timing of the various operations is put in chronological order. As drafted it appears that the first step is to consult, the second step is to publish, and the third step is to consult again if anybody makes representations. Is that correct?—because that is the way it is set out. Perhaps the noble Lord will be able to explain. I beg to move.

Amendment moved— Page 19, line 16, after ("shall") insert ("thereafter").—(Lord Drumalbyn.)

LORD BROWN

I do not think it is necessary to specify the sequence in which the Board of Trade must carry out their obligations, imposed by Clause 35(3), to consult with representative organisations and to give notice of their intention to make an order. Indeed, it could be positively unhelpful for all concerned to impose a rule to this effect. The best technique for evolving the order will, I suggest, depend very much on the nature of the particular case. Sometimes the consultation can best be conducted on the basis of a very general proposition, and at the end of the process it will be quite possible to draft an order in near-final form. But experience in other fields suggests that this will not always be so. In some circumstances it may be practicable to start with the draft of an order, and far more helpful for everyone to have this as a focal point for the process of consultation. Indeed, sometimes it may be best to combine those two approaches: to begin with consultations on a general proposition, and then, in the light of those consultations, to produce a draft of the order, and proceed with further consultations on the basis of the draft. Therefore the answer to the noble Lord's question—I can understand his wanting to get this answer—is that we are not trying to impose any particular order of sequence. I hope that will satisfy him.

LORD DRUMALBYN

I would just ask the noble Lord to make it clear—because I think this is the intention, and I am sure that people outside would like to know—that when he is talking about making a draft of an order he is not talking about making an order. That is quite a different thing.

LORD BROWN

That is quite right. It is a proposition for debate.

LORD DRUMALBYN

I am much obliged. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 35 agreed to.

Clause 36 agreed to.

Clause 37 [Interpretation]:

LORD DRUMALBYN moved, in the definition of "advertisement", after "list", to insert: but does not include any label printed on or affixed to goods or to any wrapper or outer container.

LORD DRUMALBYN

I hope the noble Lord will say that this Amendment is unnecessary, because I do not think anybody in the advertising world understands an advertisement to cover a label printed on or affixed to goods or to any wrapper or outer container. The activities are considered quite distinct. The activities of packing and what is put on packing—if anything is put on at all—are quite distinct from the activities of making goods known. I think I have said quite enough about this, and I need not go any further at this stage, although I may have to do so later, in view of what the noble Lord may reply. I beg to move.

Amendment moved— Page 19, line 35, after ("list") insert the said new words.—(Lord Drumalbyn.)

LORD BROWN

I have a long note here, but I think I can possibly satisfy the noble Lord with a very short answer. If the label refers only to the goods to which it is affixed, then I am advised that it is certainly not an advertisement. If, on the other hand, the label attached to goods or wrapped around goods refers to goods other than those around which it is wrapped, then it may well be an advertisement. I do not know whether that will satisfy the noble Lord. If it does not, I shall read him my much longer note.

LORD DRUMALBYN

That seems to be perfectly understandable and perfectly sensible. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD DRUMALBYN moved, after the definition of "goods", to insert: "to a material degree" means to such a degree as is likely to induce a purchase of goods or acceptance of an offer to provide services, accommodation or facilities.

The noble Lord said: This is an important Amendment, in the sense that it goes to the root of the interpretation of the Bill. As the noble Lord is well aware, I am very glad that the words "to a material degree" have been added to the Bill, because without them one might have had a certain number of—I do not want to say vexatious, but trivial prosecutions which would not really be justified from the point of view of the public purse or anything else, and which would cause a lot of trouble. However, the question is: how are the words "to a material degree" to be interpreted? If you do not interpret them at all, then you are going to have a lot of case law developing on what is "to a material degree". The Molony Committee itself gave an indication—it would be wrong to say that it was a definition—of what they meant in regard to similar, though not identical, words, and their indication was very similar to what I have attempted to put down as a definition in this case. I hope the noble Lord will be able to accept this Amendment. I beg to move.

Amendment moved— Page 19, line 37, at end insert the said words.—(Lord Drumalbyn.)

BARONESS ELLIOT OF HARWOOD

I should like to support this Amendment. It is simple and clear, it carries one part of our general misdescriptions clause, and it makes clear the test of falsity is its dynamic effect on the buyer, not to abstract considerations about the falsity of the description itself. It seems to me eminently suitable and it fits into the Bill. I suggest to the noble Lord, Lord Brown, that as we have now reached Amendment No. 85, and he has not accepted a single Amendment, it might be an act of grace as well as of wisdom to accept this Amendment, which seems in every possible way to improve the Bill.

LORD STRABOLGI

I should like to support this Amendment which is in the names of the noble Lord, Lord Drumalbyn, and the noble Baroness, Lady Elliot of Harwood.

LORD BROWN

I am sorry to appear ungracious. May I remind the noble Baroness that I have undertaken to consider, and I hope to come back to, a number of Amendments in response to arguments that have been made. I cannot agree that this Amendment is necessary or desirable. If the Amendment were accepted the prosecution would have to prove that every false trade description was such as to be "likely to induce a purchase of goods". I think that is surely not something which the noble Baroness would like to see put into this Bill, because it would mean that a large number of people who would otherwise be prosecuted would escape prosecution. The prosecution would also have to prove that every misdescription of a service was such as to be "likely to induce acceptance of an offer to provide services". This would be an unwarrantably heavy burden. If the Amendment is intended to provide that a statement should be regarded as false to a material degree if it were proved to have induced a particular person to buy the goods or accept the offer of services, this would be still less acceptable. To make the issue depend on the effect produced on a single individual, who might have most unreasonable expectations, would be quite unjustifiable.

What is false to a material degree is a matter which must be left to be determined by the courts in the light of the circumstances of each case which comes before them, and I agree that there will be some Case Law built up around this. The ordinary test will apply, of whether the degree of falsity would be likely to be material to the average buyer in the circumstances, to the reasonable man. I am sure that it would be a mistake to substitute some manufactured criterion. The words "to a material degree" are a reference to goods and not to the state of mind of the person buying them.

LORD DRUMALBYN

They are a reference to the trade description of the goods.

LORD BROWN

I am sorry they are a reference to the trade description of the goods, and not to the state of mind of the person buying them. It would be very dangerous to introduce this Amendment, and with great reluctance (because the Committee is desirous of my accepting at least one) I still ask the noble Baroness and the noble Lord to withdraw this Amendment.

LORD DRUMALBYN

I rather suspected that the noble Lord would treat this Amendment as being too limiting, and I quite accept that what the Molony Committee gave as a general indication does not necessarily make a complete definition. I should have liked the noble Lord to give some further guidance as to what is meant by "to a material degree", but if he considers that this is impossible I still feel very strongly that we should stick to the words "to a material degree", in the belief that we know generally what they mean even though we cannot define them in detail. I hope that in the course of this Bill the Government will not be shaken out of standing by the words "to a material degree". I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 37 shall stand part of the Bill?

9.12 p.m.

LORD STRABOLGI

Before the Committee leaves Clause 37, I wonder whether I might ask my noble friend a question which has troubled me all through the course of this Bill. It is whether the word "advertisement" includes editorial comment on consumer goods. As the Committee are aware, most newspapers to-day (and the same is true of magazines) carry women's pages which give very full descriptions of goods, including the price and where they can be bought—though I do not include sponsored supplements in newspapers, but only the editorial matter. These, of course, are closely linked with consumer advertising, and in fact are a very important adjunct of information to the consumer.

I imagine that the Government might find themselves in the position of wishing to impose certain orders on advertising, on show cards and so on, but finding that the goods were also being described, equally fully, in these supplements and women's pages. I should like an assurance that they would not try to impose similar requirements on the editors of these newspapers and magazines, as this would appear to be a de finite infringement of the liberty of the Press.

LORD DRUMALBYN

May I add just a few remarks to that point, because I think it is one that I made on Clause 1, and the noble Lord, Lord Brown, said he would look at in broad terms. I was talking then about journalists' applying false descriptions as people in the course of a trade or business. I am not quite certain of the right way of dealing with this matter. I know that many people feel that it is anomalous to have a Bill which deals with advertisements in a way in which they have not been dealt with before—and, of course, this is part of the major purpose of the Bill: the application of a trade description in advertisements—without defining the word "advertisement" except in this rather negative way. I should like the noble Lord to consider this point. I will not say more than that about it.

I share the view of the noble Lord, Lord Strabolgi, that it would be highly undesirable if we were to have a number of lawsuits arising where newspaper proprietors were prosecuted for what had appeared in the editorial parts of their newspapers. I think this should be avoided. I am not saying that it is not possible to disguise advertisements in the form of editorial comment, because this is a matter with which, in my other capacity, I have to deal quite a bit—and so do the Press Council. But I think it would be highly undesirable if journalists in the course of their ordinary activities in connection with the business of newspapers were liable to prosecution for giving false trade descriptions. There are two ways of dealing with this problem: either define the word "advertising," or define the words, "in the course of trade or business".

LORD BROWN

I am advised that the term "advertising" does not cover editorial comment. I imagine—and this is my own contribution—that the question of intention would come into it, and whether the comment is or is not paid for by somebody who wishes to sell goods. I take note of what noble Lords have said. I will explore the question a little to see whether we have it quite clear.

LORD RITCHIE-CALDER

May I suggest to my noble friend that this leaves the whole thing open to complete and absolute abuse?

LORD BROWN

I do not think my noble friend understood me. I am advised conclusively that "advertising" does not include editorial comment.

LORD RITCHIE-CALDER

That is what I am saying. If you allow unlimited and unrestricted editorial comment of the kind my noble friend Lord Strabolgi was talking about, this would defeat the object of the clause.

LORD BROWN

I really do not think there will be much difficulty about this if the editorial comment is not paid for by the advertiser. If it is inspired by payment, then I imagine it would cease to be editorial comment and would become advertising. But I will get the whole matter defined.

VISCOUNT ST. DAVIDS

Could my noble friend give me guidance on what attitude would be taken, for example, to a firm's public relations hand-out which was inaccurate in this manner? This is material which has certainly been paid for by the firm and issued by their agents, the public relations firm, but which has been adapted as news by the editor of some newspaper.

LORD BROWN

I am now being asked to interpret the words of the Bill. I imagine this would be advertising, the definition of which includes catalogues, circulars and price lists referring to goods which are for sale.

LORD STRABOLGI

I am grateful to my noble friend and we look forward to returning to this matter at a later stage. This is a very important point indeed. I worked for many years for a woman's magazine with a large circulation. It is sometimes difficult to draw a dividing line. You can get a sponsored booklet on, say, knitting, which is entirely paid for by the wool manufacturers and is tantamount to an advertisement. On the other hand, you can get a "pull out" which is purely editorial presentation and which is not paid for or linked in any way with the advertiser, and which may be just as full of description as the advertisements themselves. I think it essential that the freedom of the Press should be maintained over this, and that they should know exactly where they are when this Bill becomes law. I am grateful to my noble friend for his offer to look at it.

LORD DRUMALBYN

May I say something? What the noble Lord has just said, and what the noble Lord, Lord Ritchie-Calder, has said, emphasises the need to get a definition of "advertising".

Clause 37 agreed to.

Clauses 38 and 39 agreed to.

Clause 40 [Continuation, for three years, of Orders in Council requiring indication of origin]:

9.18 p.m.

BARONESS PLUMMER moved, in subsection (1)(a), to leave out, "except in so far as it requires any goods to bear an indication of origin at the time of importation". The noble Baroness said: This Amendment would remove an addition which has been made to the Bill since it was previously introduced in your Lordships' House. The effect of the addition is to bring all the Orders on origin marking to an end in so far as they refer to imports, as soon as the Bill comes into force, instead of three years later at the same time as the other provisions of the Orders. I would ask the Government most earnestly to reconsider this matter. Many of these Orders have been in force, for over thirty years, and a great deal of thought will be needed by all interests concerned on how they should be replaced by new orders made under this Bill. To remove the importation provisions of the old Orders straight away cannot but prejudice this consideration.

I am particularly concerned about several orders in the agriculture field. May I take eggs as an example. It is an easy matter to make sure that eggs are marked with the country of origin at the time of importation, but if marking is not required at that stage it is clearly difficult to enforce origin marking at a later stage, and it is easy for foreign eggs to be put on sale unstamped. There are also the Orders relating to meat, and in particular ham and bacon. The markings required on carcases of meat are of a considerable extent. The idea, of course, is to ensure that some part of the marking survives when the carcase is cut up. How much easier it is to check the marking at the point of import than at the time of some subsequent sale in this country. It may also be that there would be greater reluctance on the part of those importing to this country to apply the marks to carcases if they realised that it was no longer an offence for unmarked carcases to be imported.

I am not suggesting that these Orders do not require review. It may well be that in some cases different forms of marking, or indeed none at all, would be sensible. But this would need a good deal of thought and consultation with all those who would be affected. I submit this cannot be done for all these Orders in six months. I think it would be far better to leave them all exactly as they are until the three-year period is over. If the Board of Trade and the other Departments concerned could bring forward replacement Orders more quickly, they would still have the power to revoke the existing Order under Clause 40(3). There seems, therefore, no case for removing the importation provisions of all the old Orders by a provision in this Bill. I hope that the Government will be prepared to accept my Amendment, and I beg to move.

Amendment moved— Page 21, line 18, leave out from ("1926") to ("or") in line 20.—(Baroness Plummer.)

LORD DRUMALBYN

I hope that the noble Lord will accept this Amendment. I gather that he will, and in that case I shall not say more than that I fully support it.

LORD BROWN

We had thought that since any Orders eventually made under Clause 8 of the Bill to replace these old Orders under the 1926 Act would not require an indication of origin at the time of importation, it was unnecessary that the old Orders should maintain such a requirement for the rest of their life. Having listened carefully to what the noble Baroness has said, I now believe that there is indeed a case for not abandoning this feature of the old Orders so quickly. Without necessarily going along with all her remarks, I can see that there may be problems which would take time to resolve. There is in particular the point that the precise method of marking prescribed under an existing Order may be one which it is not really practicable to apply except where the goods are being produced or prepared for shipment. If it is eventually decided that such goods should be subject to a new marking Order under Clause 8, it may then be possible to prescribe some other form of marking which can conveniently be applied after the goods have reached this country. Or, if the importers would still find it more convenient to have the overseas suppliers mark the goods, it is conceivable that they may wish to incorporate provisions in their new contracts to achieve this, instead of simply relying upon the exporter, because he knows it is a condition of importation under the law of the United Kingdom. Even though it may be perfectly practicable to set up these new arrangements in the course of the next three years, it could well be difficult to set them up by the time the Bill comes into force.

I am therefore quite willing to accept the noble Lady's Amendment in principle, but I think that if we do so a further consequential Amendment may be necessary, for certain technical reasons, concerning enforcement of the requirements. If the noble Baroness will be kind enough to withdraw her Amendment, I will undertake to put forward at Report stage another Amendment which achieves precisely the effect she desires, and deals as necessary with the consequential point I have in mind. I wish I could have made a similar speech to the noble Baroness, Lady Elliot of Harwood. Unfortunately I have been unable to do so, and I apologise for that.

BARONESS PLUMMER

I will willingly withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 40 agreed to.

Clause 41 [Short title and commencement]:

9.25 p.m.

LORD STRABOLGI moved, in subsection (1), to leave out "Consumer Protection" and insert "Trade Descriptions". The noble Lord said: As I suggested on Second Reading, I do not think the present Title to the Bill is accurate. On Second Reading my noble friend Lord Brown said the remarks made by the noble Lord, Lord Drumalbyn, the noble Lord, Lord Airedale, and myself about the present Title struck a chord of deep sympathy in him. I fully agree with my noble friend Lady Burton of Coventry, when she said that the term "consumer protection" belongs to a bygone era, and that we have now moved on to consumer education, with the trade and consumer organisations all working together. The words "consumer protection" do not apear at all in the Preamble to the Bill nor in any of its clauses, except this one.

The title appears to me to be rather slanted, as it gives the impression that there is a continuous state of conflict between the trader and the consumer. The present Title is not fair to the great majority of honest manufacturers and retailers whose interest it is, and must be, to satisfy their customers. I much prefer the Title of the previous Bill, introduced in the last Parliament, which your Lordships will remember was the Protection of Consumers (Trade Descriptions) Bill, because this at least had the words "Trade Descriptions" in the Title, which is what the Bill is all about. It seems to me to be most unfortunate that a Bill like this, which deals with false or misleading descriptions, should itself bear a Title which is a misdescription. I beg to move.

Amendment moved— Page 22, line 23, leave out ("Consumer Protection") and insert ("Trade Descriptions").—(Lord Strabolgi.)

LORD DRUMALBYN

The noble Lord, Lord Brown, may recall that when the previous Bill was introduced I had an Amendment down to leave out the words "Consumer Protection" and let the Bill be described as the Trade Descriptions Bill. This seems to be what the Bill is all about. As the noble Lord, Lord Strabolgi, has said, it is not only the consumer who has to be protected, nor do all the clauses deal with consumer protection. Admittedly they do not all deal with trade description directly either, but the Bill is in the tradition of trade descriptions and merchandise marks. In the course of the Second Reading debate I suggested that it might be better to find a name which would reflect the purpose of giving protection all round in the way of fair trade, and to call it the Fair Trading Bill. If the noble Lord, Lord Brown, is now prepared to accept the Title, Trade Descriptions Bill, my noble friends and I on this side would support him.

BARONESS ELLIOT OF HARWOOD

I do not feel strongly about this point, but I think it would be a mistake to leave out the word "consumer". If we have only "Trade Descriptions", a vast proportion of the people we are hoping to help with this Bill will not realise that it is for their benefit. I agree with my noble friend Lord Drumalbyn that we do not want to set up any conflict between the trader, the consumer and the manufacturer. On the other hand, if we have a Title which has no mention of the consumer, in the eyes of the ordinary public it will be another Bill like the Merchandise Marks Act and the Weights and Measures Act, which they will think has no personal relation to them. This legislation has a personal relation to everybody who is concerned with buying, selling and manufacturing, and though I am not opposed to putting in "Trade Descriptions". I think it would be a mistake to take out "Consumer Protection". Therefore I oppose the suggestion of the noble Lord, Lord Strabolgi.

LORD CAWLEY

I have only one objection to this Amendment. I think it would be sure to cause confusion between the Trade Marks Act and a Trade Description Act, and "Consumer Protection" is quite a different name.

LORD BROWN

The fact that I expressed my sympathy with the words "Trade Descriptions" on Second Reading has been referred to, and I stick to that; but in spite of my own personal preference I am in the peculiar position of saying that I must advise your Lordships to reject the Amendment. Frankly, some of my colleagues in the Government prefer the other name. Owing to the circumstances in which we have rather had to rush this Bill through, I am in the situation of having to say that I do not desert my original expression of opinion about the Title of the Bill, but that I am unable to accept the Amendment. I am sorry to put your Lordships in this position, but it is unavoidable, so far as I am concerned, at this stage.

LORD DRUMALBYN

I think it would be unfortunate if the noble Lord were to reject this Amendment out of hand, because it might cause a Division at this time of night and bring the matter to a test at a time when the Committee is not as full as it might be. I think it would be unfortunate to have a conflict on this at the end of a long stage when we have been considering a great many points. I do not think the noble Lord has fully made up his mind about this question of the Title and therefore I would counsel the noble Lord, Lord Strabolgi, not to press the Amendment at the present time. But perhaps the noble Lord, Lord Brown, will think more about it between now and the next stage.

LORD BROWN

I am grateful to the noble Lord. I said what I did just now because I did not want to get into a false position over this matter. I am grateful for the advice, and I willingly undertake to consider the matter.

LORD STRABOLGI

I am grateful for my noble friend's undertaking to consider the matter. Perhaps he will apply his mind to some kind of compromise whereby both he and I, and the noble Lord, Lord Drumalbyn, and the noble Baroness, Lady Elliot of Harwood, can be satisfied, perhaps by calling it something like the Consumer Protection (Trade Descriptions) Bill. Having put out the thought, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Remaining clause agreed to.

Schedules agreed to.

House resumed: Bill reported with the Amendment.