HL Deb 18 December 1967 vol 287 cc1274-87

3.6 p.m.

Order of the Day for the House to be in Committee (on Recommitment) read.

Moved, That the House do now resolve itself into Committee.—(Lord Brown.)

LORD DRUMALBYN

My Lords, would it be convenient, on this Motion, to ask what are the intentions of the Government on this Bill? I think it might be for the convenience of all of your Lordships if the Government were to say what are their intentions in regard to the handling of the Bill. I have seen the note on the Order Paper that it is proposed to adjourn the Committee stage at 7 o'clock.

LORD BESWICK

My Lords, perhaps I may answer that question. The intention was to reach Clause 17, with the exception of Clause 11 about which it was said that special arrangements would be made. We further hope that it will be possible to reach Clause 17 by about 7 p.m.

LORD DRUMALBYN

My Lords, I am much obliged to the noble Lord. I take it from that that if we have not reached Clause 17 by 7 p.m., the Government would like us to go on after that?

LORD BESWICK

My Lords, I think the best thing to do is to see how we get on. Certainly, if we are nearing the end and it is getting near 7 o'clock, I should have thought we could go on for a few minutes.

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD AILWYN in the Chair.]

Clause 1 [Prohibition of false trade descriptions]:

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

The object of the first Amendment on the Marshalled List in my name is to make it clear beyond all doubt that Clauses 2 to 6 of this Bill are to have effect solely for the purpose of the Bill, and that they do not in any way affect the law of contract or the normal meaning of terms when used elsewhere than in this Bill. Some of your Lordships have been doubtful whether the Bill as it stands is clear enough about this matter, particularly with reference to Clause 6. We did not share these doubts, but we have redrafted Clause 1(2)—which is the key to the matter—in order to make assurance double sure and to remove the fears which have been expressed. I hope your Lordships will therefore accept the Amendment. I beg to move.

Amendment moved—

Page 1, line 11, leave out subsection (2) and insert— ("(2) Sections 2 to 6 of this Act shall have effect for the purposes of this section and for the interpretation of expressions used in this section, wherever they occur in this Act.")—(Lord Brown.)

LORD DRUMALBYN

had given Notice of his intention to move, as an Amendment to the Amendment, in line 2, after "effect" to insert "only". The noble Lord said: The purpose of this Amendment to the Amendment is to make certain that Clauses 2 to 6 would have effect, as the noble Lord has put it, solely in relation to Clause 1 or in conjunction with Clause 1. Since the noble Lord has assured us of that, and if he can assure us that the word "only" would not help, and indeed is unnecessary, then I shall not need to move the Amendment.

LORD BROWN

Quite briefly, I can assure the noble Lord that the word "only" is indeed unnecessary.

LORD DRUMALBYN

I am much obliged.

LORD AIREDALE

It is one thing for the Minister to be satisfied that this word is unnecessary, but this is a Bill which will have to be read and understood by magistrates. I should have thought that, to make it abundantly clear, there was every reason for including the word "only", as the noble Lord, Lord Drumalbyn, has suggested. It can only make the matter more abundantly clear to the magistrates who have to read and interpret the Act. I hope, therefore, that the Amendment will be moved and accepted.

LORD BROWN

This is really a matter of drafting convention. As the Bill stands, the purport is clear. Moreover, the addition would be inconsistent with drafting practice. If your Lordships were to look at the interpretation section of any modern Act, you would see that it contains some such words as, In this Act the following expressions have the following meanings … I do not think there is any case where the words are, In this Act, and only in this Act, the following expressions have the following meanings …". Such additional words would be quite unnecessary; and the addition of the word "only" is equally unnecessary in the present case. What would be asked for in this Amendment is the inclusion of the word "only" in a manner which would imply that it had really been left out in thousands of other places. I ask your Lordships to accept the convention of drafting which lies behind this point, and I therefore ask the noble Lord not to move his Amendment.

LORD DRUMALBYN

I would readily have acceded to that request, but I am going to ask the noble Lord to do one more thing. If my recollection serves me aright, the words, "the effect and only effect" appear in Scottish legislation. Will he consult the Scottish and the English draftsmen to make certain that we get the same interpretation in Scotland as we expect to get in England?

LORD BROWN

Yes, I will consult upon that matter, and if there is doubt about it I will communicate with the noble Lord.

LORD DRUMALBYN

I am much obliged to the noble Lord. In that case, I do not move the Amendment.

3.13 p.m.

On Question, Whether Clause 1, as amended, shall stand part of the Bill?

LORD DRUMALBYN

May I put some points on Clause 1? The first is that I think we must be clear what we are talking about in this Bill, and I should like to refer to the word "goods" in this clause. It says: applies a fake trade description to any goods …", and so forth. There is a definition of "goods"; or, at any rate, Clause 37, at line 36 on page 19, refers to "goods" as including, ships and aircraft, things attached to land and growing crops". I am not quite clear why one has to distinguish between things attached to the land and growing crops. I should have thought that growing crops were attached to the land until they were detached, and then, presumably, they would not be growing any more. In any case, I should have thought that growing crops were "things". So I should not have thought there was any doubt that they were "things attached to land". However, I put that point to start with.

But I think an even more important point is whether "goods" includes houses. I should like to know whether the house agent and the speculative builder are covered by Clauses 1 to 6 or by Clause 13, or by both. What is meant by "accommodation" in Clause 13? How is accommodation consisting of houses or flats to be distinguished from accommodation in houses or flats? I well remember in another place the late Sir Winston Churchill chanting, "Units of accommodation! Units of accommodation! Sweet units of accommodation!"; so I do not think there is any doubt that "accommodation" includes houses, and I think it would be awkward if we had houses and accommodation in houses covered by two separate parts of the Bill. If different rules were to apply to these two ways of supplying or providing accommodation I think we should be in trouble. Incidentally, the distinction between "supplying" and "providing" seems artificial, and would need definition for the purposes of this Bill. In the Concise Oxford Dictionary, "Provide" is given as meaning, inter alia, supply, furnish", and "Supply" is given as meaning, furnish, provide". We must know what we are legislating about, and I hope the noble Lord will be able to tell us what is the difference between "supplying" and "providing", and what is meant by "goods" and by "accommodation" in this context.

May I again refer the noble Lord to what he said at the earlier stage of this Bill, when I asked him what the position was, so far as concerns applying false trade descriptions to any goods, of people who act on television—I think they are known as presenters; that is, the people who actually sponsor (if you like to put it that way), who are paid to sponsor, particular goods—and, secondly, of journalists who write about goods, not in the way of advertising at all but merely in the course of their business, the business of the newspapers. As the clause is drafted, it seems to me they would be covered, because there is no doubt that a newspaper is a business and there is no doubt that a journalist is employed by his newspaper. The noble Lord kindly agreed to consider this matter at a previous stage, and we should like to know what the results of his consideration are.

LORD CAWLEY

I think I can assist the noble Lord on the question of the word "goods". We have had the Trade Marks Act, which of course deals with goods, since 1887, and it is quite clear what are goods under that Act. I think that the definition of "goods" in this Bill, under Clause 37, merely extends the definition of "goods" to things which are not goods under the Trade Marks Act—that is, ships and aircraft, things attached to land and growing crops". These would not be goods under the Trade Marks Act. I can assure the noble Lord that houses are not goods under the, Trade Marks Act, either. I do not consider that any further definition of the word "goods" is needed, as it has a perfectly well-known meaning in law.

LORD BROWN

The noble Lord, Lord Drumalbyn, has made a number of very important comments. First of all, I confirm that houses do not fall within the ambit of the word "goods". That means that in one sense they do not fall within the ambit of this Bill except in so far as goods are supplied within houses.

LORD DRUMALBYN

The noble Lord means in so far as accommodation is supplied in houses, does he not?

LORD BROWN

No. You could supply baths, and such like, inside houses. Of course, the question of the provision of faulty houses comes within the ambit of the civil law, and that provision is in no way removed; but when drafting this Bill it seemed doubtful whether one ought to bring too much within the ambit of the criminal law, and this Bill does not cover houses in that respect. The noble Lord asked about the difference between the words "supply" and "provide". I may have to take exact legal advice on this, but I am under the impression that "supply" is a reference to the handing over of goods whereas "provide" is a reference to the provision of accommodation, and so on, as under Clause 13 of the Bill. That is the way in which the meanings of the two words come out. The latter word, "provide", does not refer to the sale of concrete articles which are exchanged for money.

The noble Lord has asked me to make my comments on the question of actors, and so on, speaking on television. When Clause 1 was previously considered in Committee I undertook to look into this matter. I am advised that if an actor or other person employed to present a product in a television commercial says, in the course of doing so, something about, let us say, the strength of the product, and that statement is in fact false, he is in such a case a mere mouthpiece of the advertiser and would not be held to apply the false trade description to the product. The person who applies the description in such circumstances is the person who puts the words into the actor's mouth; that is to say, in the normal case, the person whose goods are being advertised.

The noble Lord also raised the question of journalists writing about goods; and this question was raised by other noble Lords in regard to editorials, and so on. I was asked whether trade description which appears in bona fide editorial matter; that is to say, something which is not a disguised advertisement—and I stress that—is a description used in the course of trade or business. The answer must depend on the circumstances in which the trade description is used. If in a news item it is stated, for example, that Christie's are to-day selling a picture by Rembrandt, the use of the trade description is not, in the context, use in the course of a trade or business. Where, however, it is part of the business of the proprietor of a newspaper or periodical to describe goods—as in the case, for example, where national newspapers include a weekly column describing new gadgets on the market—the use of a trade description in such a column might be in the course of a trade or business.

However, if such a comment described a coat of an identifiable brand and said that it was all wool when it was not, the newspaper might be guilty of an offence; but it would have the defence provided under Clause 23(1). In the special case where the newspaper makes it its business to describe goods in an identifiable manner, then it must do so accurately. I am sure that noble Lords will agree that we should catch the man who makes it his business to describe goods and who does so inaccurately. Apart from this, noble Lords can be assured that genuine editorial matter which applies trade descriptions to goods would not result in prosecution for applying a false description, and still less a conviction.

Perhaps noble Lords will be still further assured on this matter (which I know they take as one of great importance) if I point out that under the Merchandise Marks Act 1887 it has always been an offence to apply a false trade description to goods; and a person is deemed to apply a trade description if he uses it in a manner calculated to lead to the belief that the goods in connection with which it is used are described by the description. The original Merchandise Marks Act is very broad indeed.

The Bill we are now discussing does not differ from the existing law except to the extent that the offence in this Bill is in terms somewhat narrower, in that it applies only to the application of a false trade description in the course of a trade or business. So we have narrowed down the possibility of conviction by this Bill rather than, as may be the impression, widened it. Futhermore, the 1887 Act, which is indeed very wide, has not given rise to any difficulty as regards the use of a trade description in bona fide editorial matter. I hope these comments will reassure the Committee.

LORD HAWKE

The noble Lord was not in very good voice for the first part of his speech, and I am afraid that the precise method by which houses are kept out of the Bill eluded me. I know he said that the Bill does not deal with houses, but I did not hear how he kept them out. Clearly, houses are attached to land, and houses can be prefabricated houses which you can buy by looking at a catalogue and ordering them. You can also order a caravan in the same way. Are caravans which are attached to land "goods" or not? Are caravans also excluded? Is there some method by which anything in which people live is automatically excluded from the Bill?

LORD BROWN

I am informed that it is simply a convention of the law established by precedent that the term "goods" does not include houses. There is no doubt about this. It has not been held to include houses. I take it that caravans are included in the term "goods" because, although they are things in which people live, they are not houses.

LORD HAWKE

Some houses of the modern sort are prefabricated and ordered by post from the factory. Is that a caravan or a house? This is a very important point.

LORD BROWN

I have little doubt that it is a house. The term "house" does not specify how it is to be built. The fact that it is prefabricated does not render it less likely to be deserving of the term "house".

LORD AUCKLAND

I understand the noble Lord's explanation, but for one thing. With the law as it stands, houses are not included. Whether this is a good thing is open to question; but one must accept that that is the law. But one sees frequently a description of a house as a "superior, architecturally designed house". All houses are designed by an architect; but if a house is not covered by the two years National Housebuilders' guarantee, is it nevertheless not putting the consumer—that is to say, the purchaser—in a very difficult situation if he has no redress under this clause?

LORD DRUMALBYN

It might be convenient if the noble Lord were to answer all the points together. The noble Lord has put us in a certain amount of difficulty in this, because, on the one hand, he has argued that houses have never been considered as goods. He has not pointed to any definition in law where they are expressly distinguished from goods. On the other hand, he has told us—and I noted his words—that we should catch a person who makes it his business to describe goods and does it inaccurately. He then went on to tell us that in all the long history of the 1887 Act this has never been done. I fail to see the distinction between the two. If the term "goods" has never been considered as covering houses, how is it that misdescription has never been applied to journalists? I must tell the noble Lord that journalists would be absolutely horrified with what he has said; because I think it goes far beyond what he imagines it does. This is not just a question of a column of gadgets; it is a question of describing goods in editorial matter.

I must ask him to look at this point again. It seems to me to be most extraordinary that a journalist should be taken to court for the crime of misdescription of goods because he is inaccurate in the description of those goods, when in fact he has no advertising function and is merely carrying on his work as a journalist. I am certain that if the noble Lord, Lord Leatherland, were here this afternoon the Minister would have had an absolute tornado from behind him on this matter. I hope he will consider the matter again. I think it extremely unsatisfactory. I am prepared to agree that a house is not a thing attached to land, if that is good in law; but I am certain that all journalists would rise up in horror at the idea that they are liable to be taken to court for attaching a false trade description to goods about which they happen to be writing in their column.

LORD STRABOLGI

I should like to endorse what the noble Lord, Lord Drumalbyn, has just said. I listened carefully to the explanation of my noble friend Lord Brown, but I am still not clear about one or two points. As I understood my noble friend, he said that if this is a spasmodic description, which is used from time to time, it will not be liable; but if the newspaper or magazine ran a regular, or weekly, column it would be. I cannot understand the difference between the two. In fact, as is well known, practically every newspaper runs a weekly—sometimes it is more than once a week—woman's page where they have very full descriptions of goods.

There are of course two limbs to this. The first is, whether the newspaper should be culpable for description of goods: that we are dealing with under this clause, and I am glad the noble Lord, Lord Drumalbyn, has raised it. There is also a question which I suggest we should defer until we come to Clause 9, or possibly Clause 37, under which the Board of Trade would have the right to force a newspaper or magazine to include additional information in the whole context of Clause 9 which relates to advertising. But I suggest that we should defer discussion on that point. I think we should have a further explanation from my noble friend, Lord Brown, about the accuracy of this matter of Press descriptions with which we are dealing at the moment, and which is by no means clear. There are, of course, sponsored supplements which I should think would come within the category of advertising. But there are descriptions which are news coverage and result from journalists' examining goods and obtaining information about them. Whether they publish any description of the goods and how they describe them is left entirely to the journalists. I hope that my noble friend will let us know rather more than he has at present about what the Government have in mind.

3.30 p.m.

LORD BROWN

Here there are really two matters. The noble Lord, Lord Drumalbyn, went from houses to journalists in a manner which I am sure was quite cogent; but I got a little confused, and I will deal with them as two separate issues. To me the connection between them is not quite clear. First, I am unwilling to give a legal precedent for the exclusion of houses from the term "goods". I am sure that they are excluded, and if noble Lords would like me at the later stage of the Bill to give them legal evidence in support of this information which I have been given, I will do so. But I can assure your Lordships that that is the case. I do not wish to confuse the Committee in any way. Houses, as such, are not included in the Bill. A misdescription of them would not be caught under the provisions of the Bill. Of course, proceedings could be taken under the law of contract, under the civil law; but we have not included houses in this Bill. If the Committee desired that this should be done, that would be a different matter, and we should have to debate it.

Regarding newspapers and periodicals which include a column specifically concerned with providing a public service by describing goods, I would say that the proprietors are in business in doing that, and if they are stupidly careless or inaccurate, or fail to take account of the standing of the law with regard to the way they should use descriptions, they will be caught under this Bill. I am a little incredulous about some of the attitudes which have been expressed. Why should a journalist, whose business it is to give this service to the public, be allowed to do it inaccurately, or be protected from the effects of so doing that other people suffer if they misdescribed their goods? Why should a journalist, whose business it is to describe goods in such a way, get off scot-free in such circumstances? I see no ground for suggesting that he should be left in an extremely protected position. If he is writing editorial matter which is not part of this specific service of describing goods, and he ventures into a description of goods, he would be all right; I am assured of that. But if he is in business writing a special column, describing goods in an identifiable manner by the use of trade names or by using the name of the supplier, and he does so inaccurately, he should be stopped, and this Bill will stop him.

LORD AUCKLAND

Surely the Board of Trade would have the remedy of the Press Council, which could step in if there were a gross inaccuracy. The Board of Trade could take action through the Council. Surely the Press Council has fairly wide discretionary terms.

LORD DRUMALBYN

May I ask a further question? I am sorry that I did not make myself clear. I think that a deduction may be made from the fact that apparently (I say "apparently" after what the noble Lord, Lord Brown, has said) there have been no prosecutions of journalists under the Merchandise Marks Acts for eighty years. The presumption is that this could be the case only because it was not possible to bring a prosecution. I cannot believe that if it had been possible to prosecute a journalist under the old Acts for misdescribing goods, that would not have happened. Therefore it follows that this Bill must be making a change in the law with respect to journalists and we are entitled to question that change in the law. I warn the noble Lord that he must look into this matter much more carefully if he intends a change in the law, because it is so extremely difficult to draw the line.

Why should one draw the line, to start with, between misdescribing goods and misdescribing any other kind of news? And then what an enormous difficulty you can get into! If a journalist reports news wrongly, it may have an effect on business decisions and may cause people a considerable loss. But he is to be taken to court for misdescribing goods, where perhaps the loss is much less than might be caused by the misreporting of news. I see little logic in that and it seems to me that the Government ale embarking on a very dangerous course. Surely the right course is to make clear that so long as the journalist had no financial or other interest in what he misdescribed, but acted in good faith, he ought not to be liable under this Bill. I suggest that the noble Lord should study this point further.

LORD DOUGLAS OF BARLOCH

I hope that my noble friend, Lord Brown, will look at this matter again, because it seems a very strange interpretation of this Bill to say that its provisions apply to editorial matter in the newspapers or any other publication. After all, the governing words are: Any person who, in the course of a trade or business, … applies a false trade description to any goods … It does not say a person who misdescribes the goods. That undoubtedly would be the case where there was a misdescription by a journalist writing an article. The words here, and they are the words which have been derived from the original Act, are, "applies a false trade description to any goods." Clearly, in its origin this was intended to relate to dealing with the actual goods and not a description of them published as editorial matter. This is strengthened by the next part of the clause which says: supplies or offers to supply any goods to which a false trade description is applied". This clearly covers the case of a person who is selling goods or offering them for sale, but surely it does not apply to a person who has no interest whatsoever in the goods and is merely writing an article in a journal or newspaper telling the public what he has seen when he went to an exhibition or something of that kind.

LORD CAWLEY

I feel that the noble Lord, Lord Douglas of Barloch, may be right on this point. At the beginning of Clause 1, the words "trade or business" are used. The courts might easily interpret it as meaning trade or business in the goods, and not carrying on trade or business as a newspaper proprietor. I think that here there is a grave doubt.

LORD BROWN

I think the point is being missed, and I hope that I shall not appear to be obstinate. We are not concerned with journalists. That word has been used by the noble Lord, Lord Drumalbyn, as if I all have said referred to the normal course of journalism. We are concerned with people whose trade or business it is to describe goods. One would not normally refer to them, except in the broadest sense, as journalists, although they could be said to fall within the ambit of the term. We must focus on the point that only when it is their trade or business may they be caught up by the provisions in this Bill.

May I also add that if it were to be proven that prosecutions against journalists were not possible under the Merchandise Marks Act, to which reference has been made, then equally it would not be possible to proceed against journalists under this Bill. There is no question about that, This Bill has not broadened the attack on these "describing journalists" or whatever phrase you like to use; it has narrowed the attack on them. I am advised that this is so, and I am quite convinced of it personally. I think we are getting quite unnecessarily alarmed about this matter.

I put it to the Committee where we have these men who make their living by describing goods, as a service to the public—and whose function it is to look at the goods, examine them closely and become technical experts, if you like—and the public are going to buy the magazines because they expect to find an accurate description of the goods—and when these men, even with deliberation, describe them falsely, are we going to say that we cannot attack them under this Bill, although we will attack any manufacturer or retailer who does so? I think that that argument is very weak. I defend my position.

I wonder whether at this stage it would be appropriate, in order that the House may hear a Statement from my noble friend the Leader of the House on the economic situation, for me to move that the House do now resume.

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