CONSUMER PROTECTION BILL [H.L.] (Hansard, 18 December 1967)

HL Deb 18 December 1967 vol 287 cc1299-354 1299

§ 4.10 p.m.

§ Committee stage resumed.

§ BARONESS BURTON OF COVENTRY
I have listened carefully to what has been said about Clause 1, and I am amazed that journalists are included. It never occurred to me that "in the course of a trade or business" would penalise journalists. Can my noble friend enlighten me on this point? If someone writes a weekly column in a paper, perhaps on consumer matters, and they misdirect the public, will they be guilty of an offence under this Bill? I should have thought that if a journalist were to write incorrectly about merchandise the manufacturer concerned would be able to take action against him, irrespective of this Bill.

LORD HAWKE
I think the noble Lord said rather lightheartedly that journalists would be included in this, but I feel sure there would be an awful outcry in the country if that were so. For instance, from time to time I read a journal called Which. Will it be possible to hold the writer of every article in that 1300 estimable journal responsible, and to bring a criminal action against him, if he makes a slip in recommending or not recommending some particular item? I think it is grossly unfair.

§ LORD BROWN
I am surprised at the course this debate has taken. Perhaps I may repeat what I have already said, that is, that the use of the word "journalist" in this general sense is somewhat misleading. If someone calls himself a journalist and earns his living by providing the service of describing goods in a column of a newspaper or a periodical, and he identifies goods precisely, and misdescribes them, thereby misleading the public into buying those goods, in this particular case only he is liable for prosecution under this Bill. May I remind the Committee once more that in the past he has been liable under the Merchandise Marks Act, and that therefore this Bill does not increase the danger in which the journalist stands. On the contrary, it is restricting that danger to the writer who earns his living in the course of his trade or business by describing goods in an identifiable form. It seems to me to be absolutely justified. If we are to protect the public against wholesalers, manufacturers, retailers and people who write advertisements, why should we go out of our way to protect the category I have described, who may possibly mislead the public for their own gain? I think this is quite justified, and I am surprised that nobody has risen to support the point of view I am putting forward.

§ BARONESS BURTON OF COVENTRY
Before the noble Lord sits down, may I refer to the point raised by the noble Lord, Lord Hawke? I see a distinction between a journalist who writes a column on consumer affairs in a newspaper or periodical, and one who writes in a journal like Which, in which journalists write articles after tests of merchandise have been made.

§ LORD STRABOLGI
Before my noble friend replies, may I ask a question about the point with regard to defences? A journalist can only describe facts which are based on information he has been given, and his interpretation of that information. In a way he is rather like the advertising agent. There is a specific 1301 defence for advertising agents in Clause 24, whereas there is no defence for journalists, who need it even more than the advertising agents who are working more closely with their clients. The journalist is merely writing up news that he is given, and if in future he is going to be culpable I think it is essential that there should be some defence open to him which, so far as I can see, is not in the Bill at present.

§ LORD BROWN
I am afraid I cannot refer the noble Lord to chapter and verse offhand, but in so far as the journalist is indulging in a trade or practice he is misapplying descriptions of goods. If somebody does this inadvertently there is no reason to suppose that the normal defence is not open to him. With regard to the point raised by my noble friend Lady Burton of Coventry, I imagine that the particular journal she mentioned would be the last deliberately to misdescribe goods, or perhaps even to do it inadvertently, but if that journal were guilty of the criminal offence of misdescribing goods and misleading the public they would come within the ambit of this provision.

§ BARONESS BURTON OF COVENTRY
I am sorry, that was not quite the point. I must be stupid. In fact I am agreeing with that. I was merely saying to my noble friend that while I did not agree that a journalist with a weekly column on consumer affairs should come within this provision, I think the matter is different in so far as the magazine Which is concerned.

§ LORD DRUMALBYN
The noble Lords has been harrassed from all sides on the motion that Clause 1 shall stand part of the Bill, and I think he will have been impressed with the fact that there is a considerable amount of feeling, and a great deal of doubt, about the effect of this clause as it now stands. It may be that new means of presenting news are now arising, which he would like to check, but the noble Lord went on to say that this is the one and only narrow group that will be caught. There I think he is entering into the realms of prophecy.

§ LORD BROWN
May I interrupt the noble Lord? I want to emphasise that I am advised that it is this narrow group which, in the course of carrying out their special form of journalism, are engaged in 1302 trade or business. That is the only way in which a journalist can be fitted into this category. This is the core of the statements I have been making. The noble Lord is now questioning the validity of this means of defining journalists who would come within the ambit of the Bill.

§ LORD DRUMALBYN
We have all taken note of the Government's intention in this matter. I am only saying that I think the intention will have to be looked at much more carefully. As the law evolves and is interpreted the intentions are often falsified. Therefore, I think it is necessary that we should look at this carefully between now and the next stage of the Bill. I would only add that we are bound to take the view that if the law is not being changed it seems extraordinary that no prosecutions have been brought by the Board of Trade or anybody else on this issue under the old Act. Either the law is being changed in this Bill in order to catch a particular group, or it is not being changed, and one wonders why no actions have been brought under this heading, and by the same token one wonders whether they ever would be.

§ Clause 1, as amended, agreed to.

§ Clause 2 agreed to.

§ Clause 3 [False trade description]:

§ 4.20 p.m.

§ LORD AIREDALE moved, in subsection (1), to leave out the first "is" and insert "means". The noble Lord said: I hope I shall not be told that this Amendment has been rendered unnecessary by the first Amendment which was accepted this afternoon. My objection to subsection (1) of Clause 3, which this Amendment seeks to amend, is that this very short subsection, which is only a line and a half long, is a statement of fact, and as a statement of fact is quite manifestly untrue. I venture to suggest to your Lordships that if you placed this particular subsection before any intelligent schoolchild and said, "What is the matter it?" the child would say, "It is a statement of fact and it is manifestly untrue."

§ One would at least expect the Government to be consistent throughout a Bill. This clause deals with false trade descriptions and this subsection defines 1303 them, but when you come to Clause 13 you get a kindred topic, false statements as to services, and you would suppose that the same formula would be used in the definition of false statements as to services as in false trade descriptions. You would therefore suppose that in Clause 13 you would find the definition thus: "'false' is false to a material degree" in the same way that this subsection says, A false trade description is a trade description which is false to a material degree". But not at all. When you get to subsection (4) of Clause 13 you find, quite correctly and properly—and I congratulate Her Majesty's Government for it—the words: In this section 'false' means false to a material degree. And in my submission it is only by using the word "means" that you can cure the manifest falsity which is contained in subsection (1) of Clause 3 which I now seek to amend. The noble Lord, Lord Drumalbyn, was kind enough to support this Amendment when I moved it the other day with what I thought was one of the shortest and strongest speeches in favour of an Amendment I have ever heard. I trust the Government are not going to perpetuate and immortalise a short subsection which is manifestly untrue, and I hope this Amendment will be accepted. I beg to move.

§ Amendment moved— Page 3, line 9, leave out ("is") and insert ("means").—(Lord Airedale.)

§ LORD BROWN
The noble Lord is really digging himself in very deep here by referring to the Government's wording as "Gilbertian", "totally untrue". "obvious to a child", and so on. I hope he has not dug himself in so deep that he will be unable to extricate himself, because I say, with all sincerity, that he is wrong. When the clause was previously debated the noble Lord put down a similar Amendment and I promised to consider it further. I have now done so and I see no grounds for accepting the Amendment. The wording of Clause 13(4) to which he alluded was held up as a desirable model. It says: "'false' means false to a material degree". We are here giving a special meaning to an 1304 adjective which refers to a property of things. To say instead "'false' is false to a material degree" would be torturing the English language, and no doubt the noble Lord agrees. But in Clause 3(1) we are dealing with a different kettle of fish altogether. We are not, as in Clause 13(4) giving a restricted meaning to an adjective, but instead defining a concept. The concept is "false trade description". In its expanded form the sentence would have read: "A false trade description is defined as a trade description which is false to a material degree". That is what you can infer from the word "is"; just as instead of saying "A motor cycle is defined as a two wheeled vehicle" et cetera, one says, "A motor cycle is a two-wheeled vehicle".

§ LORD AIREDALE
That statement is true.

§ LORD BROWN
Definitions, with respect, are never true or false; they are what you choose to make of them. Particularly where we say "for the purposes of this Act", you have to remember you have to infer for each of those statements the words "for the purposes of this Act"; and for the purposes of this Act we are defining so and so to mean so and so. That is what these definitions are concerned with. We are not concerned with truth, because we are giving a meaning to a concept. You cannot say whether this is a true or an untrue meaning.

§ LORD AIREDALE
Before giving meaning to a concept, why do you not use the word "means"?

§ LORD BROWN
If you were to cause my example to read: "A motor cycle means a two-wheeled vehicle", you would be torturing the English language. Therefore, for the same reason you do not say in this clause which we are debating: "A false trade description means a trade description which is false to a material degree"; you say "is"; and it is on those grounds that I defend the wording as it stands. I suggest, with respect to the noble Lord, that in referring to Clause 13(4) he has failed to distinguish the difference between this and the clause we are debating. In the former, Clause 13(4), we are referring to an adjective. In the latter, we are referring to a phrase which is a 1305 concept we are seeking to define. I do not agree with the Amendment, and I hope the noble Lord will withdraw it.

LORD REA
Does the Minister suggest that when a trade description is false in only a small degree it is not false?

§ LORD BROWN
The expanded form of that is that: "For the purposes of this Act a false trade description is defined as a trade description which is false to a material degree". If you want to get all those words in every time you utter them, I suppose that would be possible, but this convention shortens it by leaving out "For the purposes of this Act" every time, and in this convention instead of putting in "is defined as" you put in "is". If the noble Lord, Lord Airedale, were consistent, he would have to go through the Bill and in a number of other places put in "means" instead of "is". But he has not suggested that he has taken this particular example and seeks to amend it in a way inconsistent with the way in which these documents are normally written, and he is pressing the case very strongly. I beg him to reconsider this matter.

§ LORD DRUMALBYN
The noble Lord has plainly been converted to a view with which he was as not entirely identified or did not give the impression of being identified at an earlier stage. One need not go too far, but the mere fact is that this statement on the face of it is ridiculous, and it seems to me that if it is possible, even at the cost of a few more words, to avoid the ridiculous we should do so.

§ LORD BROWN
I refute completely the suggestion that it is ridiculous. It would be ridiculous if you put in the word suggested by the Amendment. The only reason why noble Lords opposite cannot see how ridiculous it is is that they have been looking at it too long. If I set out to find the meaning of the term "motor cycle", and said "motor cycle means a two wheeled vehicle" you would say that is had English. Simply because you see it in this context for so long you think it is wrong.

§ LORD CAWLEY
The first part of this subsection has been in the Merchandise Marks Act since 1887 and appears 1306 to be all right, and I do not think we ought to tamper with it.

§ LORD AIREDALE
The example of the motor cycle is a true statement, and the statement I seek to amend is untrue. That is the difference between us. Of course, I listened very hard to the Minister I always do, and he puts his arguments so charmingly one cannot help listening to them. I am sorry he thinks I was so hopelessly dug in that I could not extricate myself. I am sorry he thinks that in order to be consistent I ought to amend the Bill in a number of other places. I have not myself found the other places, and the Minister has not specified them, so I do not know what other Amendments would follow from this one. I cannot deal with that point. It appears that there is overwhelming sympathy on this side of the Committee for the Amendment that I have put down, and I regret that I cannot withdraw it.

§ On Question, Amendment negatived.

§ Clause 3 agreed to.

§ Clause 4:

§ Applying a trade description to goods

§ 4.—(1) A person applies a trade description to goods if he—

(a) affixes or annexes it to or in any manner marks it on or incorporates it with—
1. (i) the goods themselves, or
2. (ii) anything in, on or with which the goods are supplied: or
(b) places the goods in, on or with anything which the trade description has been affixed or annexed to, marked on or incorporated with, or places any such thing with the goods; or
(c) uses the trade description in any manner likely to be taken as referring to the goods.

§ 4.31 p.m.

§ LORD DRUMALBYN moved, in subsection (1)(c), after "uses" to insert "or authorises the use of". The noble Lord said: This is an important clause, because it deals with the manner of applying a trade description. Paragraph (c) covers all ways of referring to goods other than those in paragraphs (a) or (b); that is to say, other than affixing or annexing the description to the goods, or placing the goods in anything to which the trade description has been affixed. I suppose the words "uses the trade description" covers using it by letter, 1307 tender, circular, catalogue, and by advertisement and the rest.

§ In most of these cases the user will be the person supplying, or offering to supply, the goods. But in advertisements where the advertiser employs the services of an advertising agency, the advertising agency acts as a principal, not as an agent. It follows, therefore, that it is the agency and not the advertiser who is the person who, as the clause is drafted, "uses the trade description" in the advertisement which he himself has prepared and handed to the medium. Yet it is the advertiser, in my view, who ought to carry the ultimate responsibility; and I should have thought that he at least must be brought under the scope of the clause as the person authorising the use of the trade description.

§ We are here dealing with false trade descriptions of goods. It is for the advertiser to tell the advertising agency about the goods, their composition, their function, capabilities, strength, performance, accuracy, origin and all the rest of it. It is for him to see that the advertising agency does not tell the public what is untrue about his goods. The responsibility for trade description is therefore his, even if he chooses to give the advertising agent a free hand. Of course he will act on the advice of the advertising agency in matters in which the advertising agent is expert, just as the noble Lord acts on the advice of his civil servants in matters where they are expert. But the responsibility rests with the noble Lord, just as it rests on a person who acts on the advice of his solicitor. The responsibility still rests with him.

§ We on this side are anxious that the Bill should put the responsibility where it belongs in the case of advertisements as elsewhere. This Amendment does not wholly do this, but at least in the case of advertising it avoids the primary responsisibility being laid where it does not belong. So I urge the noble Lord strongly to have this put right in the Bill, and either to accept this Amendment or otherwise to introduce an Amendment at the next stage, which will lay the primary responsibility firmly on the advertiser, which is where I am certain it ought to lie. I beg to move.

1308

§ Amendment moved— Page 3, line 36, after ("uses") insert the said new words.—(Lord Drumalbyn.)

§ 4.35 p.m.

§ LORD BROWN
I have every sympathy with the purpose of this Amendment. If a manufacturer approves "copy" incorporating a false trade description which his advertising agent has produced, or supplies his advertising agent with false information and thereby causes the advertising agent to produce and place "copy" which uses a false trade description, the manufacturer must not escape and the advertising agent must not be brought to book on a matter which is not his responsibility. I am advised that this Amendment is really unnecessary for the purpose. It is unnecessary because the manufacturer will plainly be responsible for the use of the false trade description and may therefore be prosecuted and convicted for applying a false trade description. It will be a matter of discovery at the time.
If the manufacturer supplies his advertising agent with false information, the advertising agent is amply protected either under Clause 23 or Clause 24. But it is a matter of inquiry. When something like a false trading description appears in an advertisement, one has to look into the circumstances; and I imagine that in a large percentage of cases the manufacturer will have authorised the copy. There may be a few cases, as I pointed out to your Lordships in the previous debate, where the advertising agent has accepted and carries full responsibility. These are unusual cases, but they do occur. But in every other case the manufacturer, having approved, will automatically be brought to book. I am advised that there is no need to put this into the Bill at all; that it is clear in the legal sense as it stands. I hope, therefore, that the noble Lord will accept that assurance and will withdraw his Amendment.

§ LORD DRUMALBYN
I am most grateful for the noble Lord's assurance on the effect of the Bill. I am perfectly prepared to accept what he says. The only point I want to emphasise strongly is that when he comes to give guidance to the enforcement authorities he should make certain that the matter is properly investigated, and that in the normal way 1309 the blame should and will, lie on the advertiser. What I am most anxious about is that the enforcement authority will not take the easy way out by prosecuting anybody other than the advertiser where investigation would show that the advertiser is really to blame. Having said that, I beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ On Question, Whether Clause 4 shall stand part of the Bill?

§ 4.39 p.m.

LORD HAWKE
At the last stage of this Bill we had quite a long argument on the question of oral statements being included in the terms of the Bill and rendering the stator liable to a criminal prosecution if he made a wrong description. The Government's real argument was that they wanted oral statements to rank the same as written statements, and they said that unless they put it in the Bill in this particular way there was some doubt whether the Bill would in fact cover that particular aspect. They said that they saw no real difference between written and oral statements.
I really cannot agree with that concept. A written statement by a retailer has probably been compiled with due thought and has been authorised by higher authority—the manager perhaps—and the spoken statement may have been rash or reckless and made in the course of casual conversation with the shopper by, as I pointed out on the last occasion, somebody who may be a school-leaver, as are many of the retail shop people. I feel this is quite an unfair burden to put on the retailer.
There is another aspect of this matter which is rather dangerous, since this leaves the door open to all sorts of abuse. By threatening prosecutions and the like people can, perhaps not blackmail, but put pressure on retailers for whom they have acquired some sort of dislike. It would be easy to lead on some inexperienced girl or boy to make a statement which is probably not justifiable. I should have thought it quite adequate to leave the remedy in the Misrepresentation Act, which does not make it a criminal act, but lays down that if a person makes misrepresentation he is liable for damages and the cancellation of the contract. I think that is as far as one ought 1310 to go in respect of oral statements, and I hope that by the next stage of the Bill the Government will give consideration to that view. I feel certain that as the Bill is drafted at present a very onerous burden is put upon the retailer.

§ LORD CAWLEY
I do not know whether I ought to make a personal statement. I think I misled the House on Amendment No. 3. I have now been shown the Merchandise Marks Act 1887, and I see that the word "means" is used in that Act and not "is".

§ LORD BROWN
I am afraid that the Government are unrepentant about this oral statement, but I think with sense. I assure the noble Lord that we have not in mind a vast wave of prosecutions against shop assistants who innocently marginally mislead their customers. What we have in mind is that the Board of Trade and the authorities who prosecute have in the past had experience of these matters in other fields. The Companies Act springs to my mind immediately, and I remember our feelings in watching disaster creeping up when a number of innocent people were insuring their motor cars. We knew trouble was coming and were trying to find a way to stop it, but we found that we had not the powers. It is feelings of this sort which affect me and others in the Government to-day. We want this provision to stop very nasty forms of abuse. There will be a tendency, when we put ourselves in a position to avoid false descriptions by dealing with people who use the written word, to push them into the use of the oral word in place of the written word—we shall shift the seat of the crime. We want this Bill to take prosecutions in order to deal with some particularly nasty acts of deception which are occasionally perpetrated on the British public. I think that it would be dangerous to take this provision out of the Bill and that we should rue it in years to come.
Noble Lords are quite right to take the argument to the extreme in order to test it and to see how it would impinge on the simple shop assistant who perhaps does not quite know his business. But that is not the person we are after. As prosecuting authority, we have not time to deal with the inadvertent statement which might be misleading. In regard to this clause we are after the criminals, 1311 and I hope that that reassures the noble Lord.

VISCOUNT COLVILLE OF CULROSS
It would reassure me so far as the Board of Trade and the prosecuting authorities are concerned, but it does not deal in the least with the private prosecution. There is no guarantee whatever that the private prosecution will not be brought against a shop assistant on the most petty excuse or as the result of the most petty misdescription. It is not enough for the noble Lord to say what is intended by the authorities. He should bear the other point in mind.

LORD HAWKE
It is the private prosecution and the threat of the private prosecution—this is a blackmailer's clause.

§ BARONESS ELLIOT OF HARWOOD
I am sure we do not want a long debate on this subject which was dealt with during the Committee stage. I should like to support the Government wholeheartedly on this matter. In fact retailers, who are reliable people, have very good training schemes for their shop assistants, and they give them every opportunity to learn how to deal with the public. It is true that some are better than others, but a reliable, honest retailer, large or small, will see to it that those who work for him know something about what they are doing. They will give a description as accurately as they can, and if they do not know they will probably say, "We do not know". As the noble Lord, Lord Brown, has said, this clause is designed to beat the unscrupulous person who, knowing that he cannot mislead on paper in an advertisement, thinks that he can get round it by allowing people to say things which are not true or which are only partially true, but things which would mislead the public. It is most important that we should have this provision in the Bill. I very much hope that the Government will stick to their guns, for it is a matter of major protection for the public.

§ Clause 4 agreed to.

§ Clause 5:

§ Trade descriptions used in advertisements

§ 5.—(1) The following provisions of this section shall have effect with respect to a trade description used in an advertisement in relation to any class of goods.

1312

§ LORD BROWN moved, in subsection (1), to leave out from "effect" to the second "in" and insert: where in an advertisement a trade description is used". The noble Lord said: With permission, I should like to discuss this Amendment together with Amendments No. 7 and 8. Their purpose is to clarify the method of identifying the goods to which a trade description is applied in an advertisement. First, they shift the emphasis in the clause to the use of a trade description in relation to a class of goods. As the Bill stands, subsection (3) refers to the question whether the goods are of the class to which the advertisement relates. Subsection (1) already makes it clear that it is the trade description in the advertisement which is at the heart of the matter. But we thought that it would make the clause easier to follow if subsections (1) and (3) were redrafted so as to emphasise the point all the way through.

§ This has enabled us to dispose of the concept of "associating" the advertisement with the goods which has troubled some of your Lordships. Instead, we propose that the relevant test should be whether, in all the circumstances, it is likely or unlikely that a person to whom the goods are supplied would think of them as belonging to the class in relation to which the trade description is used in the advertisement. The words "likely or unlikely" are important. They make it clear that this is not a subjective test. Goods are not to be taken to belong to a class just because an unreasonable or dissatisfied person has thought of the goods as belonging to that class. What the court is required to do is to have regard to the form and content of the advertisement, to the time, place, manner and frequency of its publication, and to all other matters making it likely or unlikely that a person to whom the goods are supplied would think of the goods as belonging to the class in relation to which the trade description is used. This is an objective test, and I think that it is a reasonable one. Finally, I think that these Amendments should remove all fears that where an advertisement refers to more than one item a trade description applying to a particular item might be taken as applying to all the goods 1313 covered by the advertisement. The question is quite clearly whether goods are of a class to which the trade description—and not the advertisement—relates. I beg to move.

§ Amendment moved— Page 4, line 5, leave out from ("effect") to ("in") in line 6 and insert ("where in an advertisement a trade description is used").—(Lord Brown.)

§ LORD DRUMALBYN
I am not certain the clause will work, but I am certain that the noble Lord's Amendments will make it more likely to work. They represent a decided improvement on the drafting, and I should like to thank the noble Lord for the consideration which has been given to this matter.

§ On Question, Amendment agreed to.

§ 4.50 p.m.

§ LORD AIREDALE moved, in subsection (2), to leave out paragraphs (a) and (b), and to insert instead: for the purpose of determining whether an offence has been committed—

(a) under paragraph (a) of section 1(1) of this Act; and
(b) where the goods are supplied or offered to be supplied by a person publishing or displaying the advertisement, also under paragraph (b) of the said section 1(1)."

§ The noble Lord said: This Amendment is put forward as a purely drafting matter, to make subsection (2) of Clause 5 easier to understand. There are 11 words which are common to paragraphs (a) and (b) of this subsection, and the purpose of this Amendment is to take those words out of paragraphs (a) and (b) and to put them in front of paragraph (a), thus making paragraphs (a) and (b) easier to understand.

§ The other day when I put forward a very similar Amendment, objection was taken to it by the Minister. I will not go into the arguments, because it is rather a technical and difficult matter to follow, but it occurred to me that I could cure the apparent defect in my earlier Amendment by adding the one word "also", and I have done this in the new paragraph (b) of my Amendment. With respect, I think I have now succeeded in putting forward a satisfactory draft Amendment which will have the effect of making the two paragraphs more easily understood. The noble Viscount, Lord Colville of Culross, was kind enough to support me very strongly the other day. 1314 I am pleased to see him in his place again to-day, and I hope that this Amendment will now have the blessing of the Committee. I beg to move.

§ Amendment moved— Page 4, leave out lines 10 to 17 and insert the said new words.—(Lord Airedale.)

§ LORD BROWN
This, above all, is the Amendment which I hoped would not reappear, even in its amended form, this afternoon. Your Lordships will remember that on the last occasion when this was debated I pointed out to the noble Lord, with respect, that lack of the word "also" meant that the Amendment did not quite carry out his intention; and he has now amended it. But that was not the chief ground of my appeal that he should accept the opportunity, which I held out, of meeting my own legal advisers and discussing the matter with them to see whether they could convince the noble Lord that their drafting was best, or vice versa, and I hoped to be able to shift the responsibility for debate in that way. I am still going to suggest that we do this. We could have a very substantial debate in the House this afternoon, most of which I should completely fail to understand because this is a very obscure point. But may I appeal to the noble Lord to accept my suggestion to meet my legal advisers and, in the light of the possibility of doing that, to withdraw his Amendment? I should be pleased if he would accommodate me in this way, and save us from a rather arduous and wordy debate.

§ LORD AIREDALE
I could not possibly fail to respond to an appeal of that kind, and I beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ LORD BROWN: I think I have discussed Amendment No. 7 with No. 5, and I beg to move.

§ Amendment moved— Page 4, line 19, after ("which") insert ("a trade description used in").—(Lord Brown.)

§ On Question, Amendment agreed to.

§ LORD BROWN: I beg to move Amendment No. 8.

§ Amendment moved— Page 4, line 23, leave out from ("would") to end of line 24 and insert ("think of the 1315 goods as belonging to the class in relation to which the trade description is used in the advertisement").—(Lord Brown.)

§ On Question, Amendment agreed to.

§ Clause 5, as amended, agreed to.

§ Clause 6 [Offer to supply]:

§ 4.54 p.m.

§ LORD BROWN moved, to leave out "sale" and to insert "supply". The noble Lord said: It would be convenient if your Lordships would take Amendments 9, 10 and 11 together. It may be helpful if I begin by reading the clause as it would be if these Amendments were accepted. It would read as follows: A person exposing goods for supply or having goods in his possession for supply shall be deemed to offer them for supply".

§ This is a purely drafting Amendment. Clause 6, as originally drafted, dealt first with the ordinary case—that is, sale—and then with the other less obvious forms of supply: supply by way of hire-purchase; supply in return for trading stamps, and so on. It was hoped that this approach would be regarded as a welcome departure from what I may describe as the somewhat legalistic drafting techniques which have been so often criticised in the past. However, it was apparent from the debate which we had on this clause at an earlier stage that the perhaps somewhat unfamiliar formulation of this clause was causing confusion and difficulty. Your Lordships will recollect a very long debate over the use of the word "similarly" in the clause. It has therefore been redrafted in terms of supply alone. I hope this will dispose of the criticisms which have been made of the drafting of this clause, and that these Amendments will be accepted. I beg to move Amendment No. 9.

§ Amendment moved— Page 4, line 25, leave out ("sale") and insert ("supply").—(Lord Brown.)

§ LORD DRUMALBYN
We are grateful to the noble Lord for having introduced these three Amendments. I recognise that the Government were rather pleased with their drafting of Clause 6 before the Amendments. The real trouble, of course, and where we got into difficulty on the earlier stage of this Bill, was that many of us on this side of the House felt that Clause 6 was not limited only to 1316 this Bill as it stood. I think that is one of the reasons why we criticised it so much. We were concerned about that, and in so far as the noble Lord has moved his first Amendment to Clause I we are less concerned with that aspect of it. But I still think it is probably wise to retain the term "supply" in this clause as the noble Lord has now moved it, rather than divide it up into sale and other methods of supply. I think that possibly the noble Lord overestimated the strength of opinion on this, because of our feeling that there was a danger, if we left this clause as dealing with exposing goods for sale and having in possession for sale, that it would be taken as being of much wider application than was intended. From that point of view, it is an improvement to use the same word, "supply", as appears in Clause 1.

§ LORD CAWLEY
I am sorry to be the nigger in the woodpile, but I think there is a slight error in Amendment No. 11, because the clause says that exposing goods for supply, and so on, shall be deemed to be offering them for supply. Having got to that stage, you try to find whether the words "to offer them for supply" occur anywhere else in the Bill, and they do not. Clause 1 says supplies or offers to supply any goods". It would be quite easy to put that right by an Amendment to leave out from "offer" to the end of line 28, and to insert "to supply them". That would get the wording in line with Clause 1, with which it is not in line at present.

§ LORD AIREDALE
We have a situation after the devil's own heart here. The Merchandise Marks Act 1887 said, "If you do this you shall be guilty of an offence". But after the noble Lord, who was the Minister in charge of the Consumer Protection Bill of two years ago, had gone out of his way to say how splendidly the Act of 1887 had worked for eighty years in this respect, the Government of to-day come forward and say, "No, we will not legislate in this straightforward way. We will not say, 'If you do this you shall be guilty of an offence'; we will say, 'If you do this you shall be deemed to have done that'." And although this clause does not say so, it is true that there is another clause which says, "If you do that you shall be guilty of an offence", so that it follows 1317 that, if you do this, you are guilty of an offence.
Now the Government come forward and say, "No, we did not really mean that. We did not mean to say, 'If you do this you shall be deemed to have done that'. What we meant to say was that if you do something else you shall be deemed to have done something else still". Then the noble Lord, Lord Cawley, rises to his feet and says, "You have not really got it quite right yet. It is really something quite different still, which the Government have not thought of, which ought to be deemed to be something quite different still".
Why cannot we go back to the 1887 Act, which was perfectly straightforward, and say: "If you do this, you shall be guilty of an offence"? It can be done perfectly easily by taking the operative words in Clause 6 and putting them in paragraph (b) of subsection (1) of Clause 1. If that is done, any person reading Clause 1 will know what the offence is, and it will not be necessary to bear Clause 1 in mind until Clause 6 is reached and one finds all this "deeming". As I say, this is a situation after the devil's own heart. Will Her Majesty's Government have second thoughts, and will they go back to the practice of 1887 and legislate in a direct way? This is criminal legislation, and it should be worded in the good, old, straightforward way so that people can understand what the offences are.

§ LORD BROWN
In a way, there is something peculiarly unfair about being in charge of this Bill in this House. I am speaking jocularly, of course, but here I am being assailed by lawyers right, left and centre, about the words of other lawyers who drafted this Bill; and I myself am not a lawyer. That seems to me to come within the definition of unfairness. However, I can bear it. With regard to the point raised by the noble Lord, Lord Airedale, he may or may not be right: I have not been able to follow him with sufficient clarity to be able either to agree or to disagree with him. If he wants to follow his particular point, I suggest he puts down an Amendment at a later stage.
With regard to the comments of the noble Lord, Lord Cawley, he was good 1318 enough to make the point to me earlier in writing. All I can say is that, on the face of it, I must agree with him; and, without undertaking to accept his precise words (because lawyers will have to look at them and decide whether they really do fit), I will undertake to introduce an Amendment at the next stage which will give effect to the sense of what he is trying to get at. So I thank him for the comment he has made. It may be helpful to the Bill.

§ On Question, Amendment agreed to.

§ LORD BROWN: I beg to move Amendment No. 10.

§ Amendment moved— Page 4, line 26, leave out first ("sale") and insert ("supply").—(Lord Brown.)

§ On Question, Amendment agreed to.

§ LORD BROWN: I beg to move Amendment No. 11.

§ Amendment moved— Page 4, line 26, leave out from second ("for") to end of line 28 and insert ("supply").—(Lord Brown.)

§ On Question, Amendment agreed to.

§ 5.4 p.m.

§ On Question, Whether Clause 6, as amended, shall stand part of the Bill?

§ LORD DRUMALBYN
I do not want to appear ungrateful for what the noble Lord has done in the way of amending this clause, but I am still not entirely happy about it. The purpose of the clause, of course, is to amplify the expression "supply" in Clause 1. Neither the original clause nor the Government Amendments achieve this purpose without leaving the ambiguity of the phrase, having goods in his possession for supply". Discussion in Committee has shown the difficulty of the phrase. It all turns on the intention of the seller. Obviously, he makes or he buys goods for eventual sale, but he may not have checked them; or, having checked them, he may have found them wrongly labelled and requiring an alteration. The single point of agreement in the discussion was that the seller should not be in jeopardy if he had goods in his possession but, for one reason or another, did not at that time have the intention of selling them; that is to say, he had not decided whether the goods were fit for sale.
1319 Both the noble Lord, Lord Brown, and the noble Lord, Lord Winterbottom, quoted the case of Ben Worsley v. Harvey. With all respect, and speaking as one who also is not a lawyer, I suggest that this case should not be taken as a binding precedent for the following reasons. First of all, it was based wholly on the Weights and Measures Act 1963, and was decided on circumstances falling wholly within that Act. The goods were adjudged to be not in possession for sale for the purposes of Section 22(2) of the Weights and Measures Act. That was specifically stated in the judgment. The provision under which the prosecution was brought, Section 22(2), specifically limits its effect to that Act. The subsection is limited to prepacked goods, and it may be argued that the judgment could be applied only to prepacked goods.
The goods were in the possession of a manufacturer for sale to wholesalers, retailers or others, not necessarily direct to the public. The manufacturer was in a position—indeed, he was under a duty—to do something to the goods, to check-weigh them, before despatching them. The position might be quite otherwise if the goods were in the possession of a retailer. In the particular circumstances of that case the defendant had instituted a procedure of checking, had employed a supervisor and clearly displayed a warning notice. The goods were not for sale until these precautions had been satisfied. That is what the decision found.
Then, again, if the words "supply" are substituted for "sale", as they have been, there is an additional reason why the so-called precedent could not be rebutted. It makes it easier still because the wording has now changed. Whether or not the Worsley case is acceptable as a precedent, a case decided under one Statute should not be prayed in aid as a reason for not removing uncertainty in a Bill of a different nature. The clause should put the issue beyond all doubt by clearly stating that the intention of the seller in relation to the goods must be proved. Whatever may apply in the rest of the Bill, in this clause what is material is the intention of the seller, and nothing else.

§ LORD BROWN
I have one or two notes here that I must read out because 1320 I gave undertakings to the Committee about the attention we would give to one or two matters. I will deal with these before answering the noble Lord, Lord Drumalbyn, on the points he has just made. When the clause was debated previously the noble Lord, Lord Strabolgi, raised the question of "dummy" packs. As I understand it, he had in mind the bottles which one sometimes sees in the windows of chemists' shops which apparently contain scent but in fact contain coloured water. Other examples were quoted, including what appeared to be bars of chocolate in a sweet-shop window but were in reality chocolate wrappers put around blocks of wood. These "dummy" packs are not exposed for sale or in the retailer's possession for sale. He has no intention whatsoever of selling them. They are in his possession solely for display purposes; and I can assure the Committee that there is no cause for thinking that Clause 6 would put the retailer at risk because he had such "dummies" in his window.

VISCOUNT COLVILLE OF CULROSS
Is that right?—because the words now are not "for sale", but "for supply".

§ LORD BROWN
I am sorry; I withdraw the word "sale". I should have used the word "supply", because we have passed the Amendment. But what I have said is still correct, because it is not his intention to supply these things. They are for the retailer's own use, simply on display.
I also undertook, when this clause was last debated, to amend it in such a way that it would not present unfortunate obstacles to those conducting market research, and so forth. We are still considering that matter. It has not proved easy, but we intend to deal with it if we possibly can. I give your Lordships the further assurance that, if possible, we will deal with it at Report stage; if not, it will be dealt with in another place. But it is not proving an easy matter on which to draft.
The noble Lord has raised the question of the need to clarify this clause so that the intention of the person exposing goods for supply should be the turning point of a prosecution. The noble Lord has cast some doubt on the relevance to this point of the Worsley case decision. 1321 All I can inform the Committee is that I am assured that the Worsley case, in the opinion of those who advise me, would stand in good stead in the event of a prosecution, where it was clear that the defence was that a person was not offering goods for supply, but was intending to test them. I would direct the Committee's attention to the fact that a person who exposes goods with the intention of supplying really does imply an intention. I did not emphasise this point sufficiently when I last took up this matter, but this is one of the two respects in which this clause makes it clear that one is dealing with people who have the intention.
The second point at which this becomes clear is when the clause says, "in his possession for supply". That is an expression of intention. The question of whether he had the intention of supplying them or whether there was no such intention because he was going to inspect them must be a matter for the courts to decide. You cannot decide this necessarily by simply observing the situation. It may have to be tried before a court. In the Worsley case, it was clear that if it had been recognised by the first court that the baker had the intention of inspecting these loaves, clearly the case should never have been brought before the court. What was clear is that they doubted whether his statements that he had the intention were sincere. The case turned on the sincerity of his statements rather than on the question of the facts of the case. With these comments, I hope the Committee will feel satisfied.

VISCOUNT COLVILLE OF CULROSS
I do not know that this question of intention is quite as straightforward as the noble Lord may have suggested. It would appear from what he has said that it is for the prosecution to prove what was the intention of the person who had the goods in his possession. They have to prove that he intended them for supply. I am sure that this is a very difficult thing to do. It may be that you can do it only by putting the person concerned in the witness box and allowing his evidence to cause the Bench to doubt what he says.

§ LORD BROWN
May I interrupt the noble Viscount? I think I am right in saying that it is for the defendant to prove that he had not the intention of supplying.

1322

VISCOUNT COLVILLE OF CULROSS
That is quite plainly not the case. If the noble Lord says that the clause as it stands contains the offence; if he says that the words "for supply" bring in the question of intent on the part of the person who has the goods; then in order to prove the offence it is for the prosecution to prove that person's intention. I have looked at Clause 23, which is the defence clause. It is quite plain that neither under a proper offering for supply nor under one of Lord Airedale's "something else" (which is a deemed offer to supply under Clause 6) is there any statutory defence which relates to intention. Indeed, I do not know whether it has been sufficiently discussed on which side the burden should be. From what the noble Lord has said I should have thought that it follows plainly that at the moment the Government intend the prosecution to prove the intention of the defendant. This is very difficult. If that is really what they mean, then I think they ought to consider the practicality of it a little further before being content with the way the clause is drafted.

§ LORD STRABOLGI
Before leaving this clause may I say how grateful I am to my noble friend Lord Brown for going into the matter and for explaining the position about dummy packs. I think the Amendments that he has proposed are a great improvement on the original clause. I am a little concerned that the Government may not be able to bring in an Amendment to deal with marketing samples before the Bill leaves this House. This matter was raised on a previous occasion and received a great deal of attention. I think it unlikely that the Committee will be able to conclude this stage of the Bill before Christmas. The Government therefore have until after the Recess—and I should have thought this was ample time—to bring in an Amendment to deal with this problem. Otherwise, they would be asking this House to pass a Bill which is not yet complete. Could my noble friend give me an assurance that the Government wilt at least try to draft an Amendment for presentation to this House before the Bill receives a Third Reading?

§ LORD BROWN
I will certainly give the assurance that we shall make every endeavour to do so. There is the question of the sort of practices which lie within 1323 the meaning of the term "market research" which requires a little exploration to make sure that the drafting of the clause to exclude these practices is correct. We will do our best. I am sure that noble Lords would rather have a skilled Amendment to the clause which deals with the point raised, than have us hurry it and get it wrong. We shall do our best.
On the matter which the noble Viscount, Lord Colville of Culross, raised, he has put me in a quandary. The whole question of the burden of proving that the person had the intention of offering to supply is one that I should like to consider further. If the Committee will pass the clause as it stands, I promise I will discuss it. I have been advised that it is a soundly-drafted legal clause up to this stage, but there is some doubt in my mind. I will discuss it with my legal advisers. If I am satisfied I shall say no more about it. If they have taken note of this conversation and are uneasy, we shall do something about it.

§ Clause 6, as amended, agreed to.

§ 5.17 p.m.

§ LORD DRUMALBYN moved, after Clause 6, to insert the following new clause:

§ Interpretation of "to a material degree" for the purpose of sections 1 to 6

§ " . In determining for the purposes of sections 1 to 6 of this Act whether the degree to which a trade description or other indication is false is material, regard shall be had to the likelihood or otherwise that a reasonable person would be deceived by the trade description or indication into purchasing goods to which the trade description or indication is applied."

§ The noble Lord said: At an earlier stage I put down an Amendment to attempt to define, under the interpretation clause, the phrase "to a material degree". Apart from raising other objections, the noble Lord pointed out some defects in the drafting of that Amendment. At any rate we have had another shot at its drafting because we think an important principle is involved. The noble Lord said on December 5: 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'."—[OFFICIAL REPORT, col. 650.]

§ I believe that the prosecution should have to prove that point. We believe that 1324 people should not be prosecuted unless the enforcing authority considers it can prove that. The Molony Committee itself gave this as the criteria in paragraph 634 of their Report. They said: To support a charge under present law, the trade description applied must be false or misleading in a material respect as regards the goods to which it is applied'; that is to say, broadly, the error must be of such substance that it could fairly be regarded as capable of inducing a purchase. We would not interfere with this limitation.

§ I should have thought that it would be wholly wrong to expose a trader to the risk of prosecutions of a trivial character where there is no likelihood of any reasonable person being deceived into making a purchase. The object of the Bill must be to protect people from harm or loss incurred as a result of being deceived. There could be no other justification for invoking the criminal law in these circumstances. I should have thought there would be no more difficulty in proving that a false description is likely to deceive people into making a purchase than in proving that people are likely to think of goods as being covered by a trade description in an advertisement. Both are matters of judgment and opinion. In neither case will it be necessary to prove that any particular person has been deceived or has thought of the goods as being covered by a trade description in an advertisement.

§ The noble Lord made a particular point of the phrase "likely or unlikely" and the objectivity of the test. The same objectivity of test exists in this definition, or at any rate is intended to do, and if it does not I am sure it could be made to. I thought the noble Lord showed a little confusion of thought when he said, at col. 650: 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. The point is he used the word "buyer". It is only when a person is in the market for goods of the type in question that he can be influenced by the trade description or the indication that is false. If he is influenced only to the extent of making further inquiries and his loss is limited to the expenditure of time and trouble and, say, 4d. for a stamp, there is certainly no reason for a criminal prosecution. He is just "shopping around", to use a common phrase. It is 1325 only if the use of a trade description is likely to cause a loss, and if a person would be justifiably disappointed with the goods after purchasing them and not before because of the trade description, that the criminal process should be begun.

§ If we are to maintain respect for the law and those enforcing it we must not turn people into criminals by fiddling and finicky prosecutions. What is important is that this Bill should not appear to be motivated by prejudice against trade or commerce by which the nation lives. I invite the Government to demonstrate that they are not hostile to the trading community, by accepting this Amendment, at least in principle, and I beg to move.

§ Amendment moved— After Clause 6, insert the said new clause.—(Lord Drumalbyn.)

§ LORD BROWN
This Amendment seeks to achieve the same purpose as an Amendment put down to Clause 37 and withdrawn at my request by the noble Lord, Lord Drumalbyn, and the noble Baroness, Lady Elliot of Harwood, on a previous occasion. The noble Lord, Lord Drumalbyn, is still anxious to do something to give the court guidance as to the meaning of the words "material degree". This Amendment is free from one of the objections I raised to the previous Amendment, in that the prosecution is no longer required in each case to prove that the trade description was such as was likely to induce a purchase of goods. Even in its amended form, however, I am sorry that I cannot advise your Lordships to accept the Amendment.
As I said on the previous occasion, we must leave it to the courts to decide on the facts of each case whether a false trade description is false to a material degree. I have no doubt that in an appropriate case a court would have regard to the likelihood mentioned in the Amendment, but I am convinced that it is both unnecessary and unwise to attempt to give guidance on the interpretation of basic words like "to a material degree". I say "unnecessary" because I do not believe a court would have any difficulty with the clause as it stands; and I say "unwise" because, although I recognise that the noble Lords have framed their Amendment in terms of guidance rather than definition, 1326 it might, in the light of past experience of such attempts to guide the courts, turn out that by concentrating on one aspect of interpretation they had unwittingly had some undesirable limiting effect on the interpretation generally.
May I add an example? Suppose one gets this sort of concentration on the issue which the Amendment is designed to bring about, one might get advertisements which said, "Fine English table" when, in point of fact, it was Danish. It would be difficult for some courts to rule that this had influenced people to buy the goods, when if the advertisement had contained the correct description they might not have done so, because Danish furniture has a very enviable reputation, as we know. The reference to English furniture might not have influenced people to buy at all, yet it would obviously be a degree of falsity which, in given circumstances, might be extremely offensive, say, to manufacturers of English furniture. One could go on hypothesising examples like that quite extensively. I do not think this is a vital point, but we should not like to see the clause prejudiced in a way which at a later stage in its administration we might regret deeply, because we had given way to this Amendment. We do not think the courts would be in difficulty over this matter, and we believe it tends to narrow the effect of the clause too much to one particular sort of misleading statement. So I would ask the noble Lord to consider withdrawing the Amendment.

§ LORD AUCKLAND
I ask the Government to look at this matter again, because one of the purposes of this Bill is to catch the really unscrupulous person: for example, the man who would deliberately try to deceive a busy harassed housewife shopping at a multiple store in a large city. Unless there is some Amendment to this clause an enormous burden will be put on the courts because there will be all kinds of prosecutions. Whether or not the average person minds particularly whether they buy English or Danish furniture—which was the example given by the noble Lord, Lord Brown—is a matter of opinion. Many people, if they were buying furniture, would ask, "Is it made in England?" if they wanted English furniture. Therefore, whether or not the word "reasonable" may be quite 1327 the right word is something which could be re-examined. But as it is drawn at present, the powers conferred by Clause 6 are pretty wide, and I think that some kind of compromise, such as that which my noble friend has proposed, needs thinking about seriously.

§ BARONESS BURTON OF COVENTRY
On this matter I sympathise with the purpose of the Amendment, but I find myself in agreement with the Government. It seems to me unnecessary, and I think it is also attempting to lay down directions for a court. I should have thought that the first thing a court which had to decide whether or not a description was false to a material degree would ask themselves would be, "What effect has this misleading or false information had on a prospective buyer?". And I should not have thought a case would have come before a court without that question being asked. Therefore I agree with the Government that this Amendment is unnecessary.

§ LORD CAWLEY
I appreciate the virtues of this Amendment, but as one who would most likely have to interpret it I would rather not have it. I think the words "to a material degree", by themselves, are quite enough to guide a court.

§ On Question, Amendment negatived.

§ Clauses 7 and 8 agreed to.

§ Clause 9:

§ Information etc. to be given in advertisements

§ 9.—(1) Where it appears to the Board of Trade necessary or expedient in the interest of persons to whom any goods are to be supplied that advertisements of the goods should contain or refer to any information (whether or not amounting to or including a trade description) or instruction relating to the goods the Board may, subject to the provisions of this Act, by order impose requirements as to the inclusion of that information or instruction, or of an indication of the means by which it may be obtained, in advertisements of the goods or any such description of such advertisements as may be specified in the order.

§ (2) An order under this section may specify the form and manner in which any such information, instruction or indication is to be included in advertisements of any description and may make different provision for different circumstances.

§ LORD DRUMALBYN moved, in subsection (1), after "expedient" to insert "for the purposes of health and safety". 1328 The noble Lord said: This point was raised—it was almost the principal point—in an Amendment moved by the noble Lord, Lord Strabolgi, at an earlier stage.

§ LORD STRABOLGI
I am sorry to interrupt the noble Lord, Lord Drumalbyn, but it was not at an earlier stage; it was on the previous Bill.

§ LORD DRUMALBYN
I thought it was the first Committee stage, but we need not argue about that. In any case, whether it was on the previous Bill or not, the point is exactly the same. The question is: for what purposes do the Government want the powers to make regulations requiring information or instructions relating to goods to be in advertisements? One can see easily why they may require powers for health and safety purposes, at least so far as information is concerned—I have subsequent Amendments dealing with instructions. It is a good deal more difficult to see for what other purpose they would be likely to require such powers.
I do not know whether the noble Lord is able to give examples of other purposes for which he would like such powers. For my part, I should be ready to give them, for the very good reason that, by and large, it is for the advertiser himself to decide the kind of information that he wants to get over to the public—except possibly in the sphere of health and safety, where there may be need in the public interest for information to be given in advertisements. It is difficult to see in what other circumstances it may be required. I beg to move.

§ Amendment moved— Page 5, line 30, after ("expedient") insert ("for the purposes of health and safety").(Lord Drumalbyn.)

§ 5.32 p.m.

§ LORD BROWN
I think we ought to be clear that this Amendment would limit the power of the Board of Trade to require information or instructions to be given in advertisements to cases where the information was required in the interests of health and safety. I explained at an earlier stage that we cannot accept this, although I agree that these are matters in relation to which this power is likely to be needed. There is no doubt that this is an important area where this Clause is required.
1329 Noble Lords have tended to forget mail-order advertisements, where the consumer needs to have essential information before buying goods in writing. This is the outstanding case. If this Amendment were accepted, there would be no power to limit abuse by mail-order concerns, which are selling a growing proportion of consumer goods. I am not suggesting that these firms do this. This has been a reputable and honest way of dealing so far, but we do not want to be without this power. Suppose an advertiser puts in his catalogue "Chippendale-type furniture" and the buyer discovers that the furniture is made of softwood. People who are buying from the catalogue think that because the furniture is described as "Chippendale-type", this implies that it is made of hardwood. And there are other instances where in the description of goods there should be information that makes quite clear to the consumer what he is buying. We would rather be left with this power and not have it confined simply to health and safety.

LORD HAWKE
The "Chippendale-type" furniture, which the noble Lord quoted, is a singularly bad example. Surely this was a clear misdescription, which would certainly be caught under the Bill. Can the noble Lord name a similar proviso that the Board of Trade would want to have put on goods that would not be caught elsewhere under the Bill under the title of misdescription? I cannot think of one.

§ LORD BROWN
The noble Lord suggests that my example is a singularly bad one. Perhaps I did not make myself quite clear. I referred to an increasing practice in the furniture trade to describe furniture in this way. I am sorry if I have referred only to the furniture trade, but I did so because it is a trade with which, as a member of the Furniture Development Council, I have been associated. I have listened to furniture manufacturers saying that they were alive to the wholesale abuses in the industry, particularly before the war, by the sale of "matchstick" furniture, and furniture of the poorest possible sort, to people who had to spend a lot of capital to acquire it; and the manufacturers said they welcomed the regulations which came in soon after the war to stop this. That example has always impressed me. 1330 But practices start in a trade; and, of course, bad money drives out good. If this Amendment were accepted, we should be left without an opportunity of putting this right by simple means.

§ BARONESS BURTON OF COVENTRY
I thought that the noble Lord, Lord Drumalbyn, had put down this Amendment as a means of obtaining information. It seems to me to be a limiting Amendment. I should be grateful if the noble Lord could give me an example of the type of information for which the Board of Trade might ask. At the moment I cannot think of one. It seems to me that the noble Lord is afraid that if the Board of Trade are given these powers outside the field of health and safety, they may ask for something which would not be desirable.

§ BARONESS ELLIOT OF HARWOOD
It seems to me that one of the advertisements that ought to be caught by this clause is the one containing false descriptions by travel agencies. I gave some examples at Committee stage, when I made a long speech about this. Sometimes travel brochures describe amenities which may be there in the future but which are not there now. I think it would be a pity if this clause were restricted only to health and safety. I have referred only to travel agencies, but of course there are other aspects. We want to be sure that any kind of misleading of the public is covered by this Bill; otherwise it is no good having a Consumer Protection Bill.

§ LORD AUCKLAND
Perhaps I may say a word on this point, because I was the author of the original Amendment at the earlier Committee stage. This is more a matter of criteria than of facts. When withdrawing this Amendment on the last occasion, I admitted that we should not make health and safety the only criteria. I accept what my noble friend Lady Elliot of Harwood said about travel agencies.

§ LORD BROWN
I wonder if I could help. The clause, of course, refers to goods and not to services.

§ LORD AUCKLAND
I take the noble Lord's point, but we have discussed wide matters on this clause. The thing here is that health and safety carry much wider interpretations than perhaps the 1331 Government may think. At the last stage the noble Lord, Lord Brown, mentioned those who would be deceived by advertisements of certain kinds, which is a very salient point. These people can be subject to nervous breakdowns, and so on, which would, at any rate, speaking strictly in the medical sense, be covered by "health", although from the literal point of view "health" must mean accidents, as well as safety in accidents. In other words, if one bought, say, a perfume or an aerosol which was wrongly described, and one squirted it and had an accident to one's eyes, without having been warned on the container that it was dangerous to use, then quite clearly the Amendment here would cover it. But as it is drawn at present the clause is really much too wide. Therefore, some kind of criterion had to be put in.
One of the problems is that if advertisements are to contain all kinds of descriptions and instructions, it will defeat the whole purpose of the Bill, because people will not bother to read a lot of what is in them. Therefore, I still think that the substance of this Amendment is quite reasonable, because health and safety must surely be the main criterion for any kind of advertisement. I hope that the Government will not entirely rule this Amendment out of court. Possibly between us we can bring in a more suitable type of Amendment, and at the same time deal to some extent with the too-wide powers which the Bill now gives.

§ LORD STRABOLGI
Before my noble friend replies, I should like to support what my noble friend Lady Burton of Coventry said about obtaining information from the Government about their intention under this clause. We have had very full descriptions of Clause 9 on both the previous Bill and the present one. In reply to the noble Lord, Lord Drumalbyn, may I say that I had an Amendment about safety on the previous Bill, but I did not put it down on this Bill because I was reassured by what my noble friend Lord Brown said on Second Reading; that is to say, that the Government intend to interpret these powers very sensibly, and also to consult with all the organisations concerned. That, as I say, has reassured me considerably.
1332 But during the previous Bill, and also during the discussions on this Bill, we have never had what one would call an exact case of what the Government have in mind. We have heard a lot about furniture, and this and that, but what I think we should have at this stage is an indication of the kind of goods that the Government have in mind on which they wish to put these extra descriptions. They have refused to exclude from the class of advertisements, for example, television or cinema commercials; they have refused to exclude advertisements which relate only to the title of the goods or the name of the manufacturer. They have insisted on having these full powers, and now I think they should tell the Committee what they have in mind, and why they require the powers.

§ 5.44 p.m.

VISCOUNT COLVILLE OF CULROSS
I was going to keep my question for the next Amendment or for the question that the clause stand part, but in view of what the noble Lord, Lord Strabolgi, has said, I think it might be as well if I put in my word now. The difficulty that I foresee, even if the noble Lord redrafts the clause as he is proposing to in Amendments Nos. 14 and 17, by bringing in "description of advertisement" earlier, is that you are going to have two imponderables. You will have a large number of different types of advertisement to one or more of which the order relates; you will have a large number of different types of goods to one or more of which the order will relate if the advertisement relates to that type of goods.
Where are we going to get any sort of collection by which people can know whether they are covered or not? Let me take a simple case. The Government might say, to use the noble Lord's example for convenience, that any advertisement of furniture must not say it is Chippendale type if it is made of softwood. That is all very well for a mail order or an advertisement put out by furniture manufacturers, but it is not any good if I am selling my Chippendale type softwood chair and advertising in the personal column of a newspaper in East Anglia. How would I know that that transaction must have in it some statutory form of wording showing that it is not Chippendale type at all.
1333 Unless the noble Lord is willing to say that in practice the Board of Trade will use its powers only in fairly prescribed circumstances, I cannot see how we shall be able to administer the law. The whole thing will become so wide and entirely unenforceable that the clause will become complete nonsense unless the noble Lord does what his noble friend says and tells us. It will be chaos. There are sometimes three volumes of Statutory Instruments, each three or four inches thick, published by the Government every year. Is the private citizen to go through them every year to see whether an advertisement in the local newspaper for a secondhand lawn mower has to have some description of the colour of the box into which the grass goes? As I say, the position will be quite chaotic.

LORD HAWKE
I hope the noble Lord, Lord Brown, will listen to my noble friend, because this clause is really absolute nonsense. The Board of Trade, who live in an ivory tower anyway, are grabbing for themselves the largest possible powers that they think they can possibly want to deal with all sorts of imaginary abuses. As my noble friend has said, in practice it will be quite impossible to administer the clause. If they have to administer the clause, the Government will have to recruit many more than the extra 40,000 civil servants that they have already recruited, and we shall have a state of affairs where there will be one sort of scrutineer for every shopper in the country. If we want a clause of this kind, we must try to make it as simple as possible, and the proper measures are all provided in Clause 1: that we prosecute a person for making a false description.

§ LORD BROWN
This is argument reductio ad absurdrun.The noble Viscount, Lord Colville of Culross, talks about selling Chippendale furniture. I am not sure whether he was talking about selling his own Chippendale furniture, or some citizen selling his Chippendale furniture. But the Bill is concerned with people in the course of their trade or business, not with individuals; it is concerned with traders, not private persons. I used sometimes to spend my time cursing lawyers when I was in business because there were lots of regulations with which one had to be familiar.

1334

VISCOUNT COLVILLE OF CULROSS
This is not so, with great respect. This is an entirely separate offence. The offence is created under the regulation. I entirely appreciate what the noble Lord has said, that the false trade description can only be in the course of a trade or business, but here we have an absolute offence. The advertisement has to be in a specific form if it is not an offence. It does not say anything in this clause about the advertisement being in the course of trade or business. The Board of Trade is prepared to apply these criteria to any advertisement, whether in the course of trade or business or not—unless the noble Lord can show something in the clause to the contrary.

§ LORD BROWN
I shall now have to make quite certain, although I am virtually certain already. Perhaps we may proceed on the hypothesis that I am right. If I am not, I will certainly communicate with the noble Viscount. In business we are used to having to deal with a very large number of regulations governing a variety of things, because these are necessary in a complex modern society; and these orders would have to go back to the manufacturer, largely, to ensure they are implemented in his advertisements.
I think it is necessary that the Board of Trade should have these powers. After all, when one gives a Government Department discretion to make orders one is not necessarily giving anything very frightening. We have made enough of them in our time, and almost 99.9 per cent. recurring, do not have the evil effects the noble Lord seemed to think. That is because Government officials use them with discretion. Ministers are worried about them when they are going through; they have been the subject of consultation, and eventually they have to go in the form of an order before Parliament itself. This is a real limitation on the sort of madness which one envisages might happen if these powers were granted. If not, all sorts of situations will arise in the future which are reprehensible, which hurt people and which cause them to spend money which they can ill afford—because sometimes they are not rich people—on goods, on the assumption that they are one thing when in fact they are another, and we 1335 shall not be able to do anything about it.

LORD HAWKE
May I interrupt the noble Lord? The noble Lord says that we shall not be able to do anything about it. A man may be fined or put in prison under Clause 1.

§ LORD BROWN
If he is discovered. But this deals with mail-order catalogues and other forms of advertisement, and we shall have to spot them singly, one by one; and we shall not be able to deal with a lot of them. It would be much easier to make an order. I do not want to go on with my defence. I must let it rest. I want to see the clause remain as it is, and I must resist this Amendment. I am very sorry.

§ LORD DRUMALBYN
I would point out that the noble Lord is about to amend his own clause, so he can hardly say that he wishes it to remain as it is. But we are here dealing with a very essential matter of trading. We have to ask ourselves what exactly we expect the Government to do in this sphere. Of course, the purpose of advertising—and we are dealing here with advertising—is to draw attention to the goods, and to give information about them. It is all part of the selling process. What information is required to sell the goods is a matter for the person who is attempting to sell them. What information a person requires before he buys the goods is a matter for him; and so long as no false information is given to lead him to deduce something wrongly, it is difficult to see why the Government should take powers to require information to be given—unless, as I have said, it is something vital to the health or safety of the person concerned. This is the whole purpose of this Amendment.
I sympathise with the noble Lord, Lord Strabolgi, in being dissatisfied with the answer he has been given. I am bound to say that the advertisement industry as a whole is far from satisfied at the moment because of the experience it is having in another area. I am inclined to believe that the Board of Trade will be reasonable in its requirements in this matter. Unfortunately, another Ministry at this very time is drafting regulations which by all accounts will be very much less reasonable and which have made the 1336 whole of the advertising industry—and indeed all those who have to deal with food manufacture—very dubious indeed about this kind of power.
To my mind, the right way for industries to decide the way in which information should be given is through a voluntary system. I think it is right that they should get together and decide themselves what information should be given in what circumstances. But, as my noble friend says, as soon as it comes to giving powers as to the kinds of media affected by the regulations, and the goods affected, and to dividing all this up in this way, an enormous complication arises. If, on the other hand, you take the broadest powers, it is quite obvious you are doing something which is quite unnecessary and quite absurd, because you will be laying on advertisers an obligation to give all kinds of information which is not applicable to their particular goods. It is for that reason that we want the Government to think out in advance what they want the powers for. We say that, as a first step—it may be necessary later on to have further legislation; indeed, there will be further legislation—they should limit the powers they want to take to the specific objectives of health or safety. I may have been wrong to say "health and safety"—the Amendment should perhaps have read "health or safety".
I do not want the noble Lord to think that he has heard the end of this matter, because we firmly believe that it is not right to give these immense powers to the Government, merely on the understanding that they will not be used very often and only where it is absolutely essential. Everybody knows that Governments are subject all the time to all kinds of pressures to do things where there is a marginal benefit to be gained. But as things are made more and more complicated, more and more difficulties arise. The more information required, the more false information will be given. Make no mistake about that: it is bound to be so. And there are more chances of making mistakes and errors in information given.
I beg the Government to limit what they require under this clause to what they really need. I am not going to press the matter further now, but I ask them to think further about it. We do not want to pass legislation that is not 1337 going to be implemented at all because it is so very wide that no one dare touch it. This has happened in the past. Let us have legislation that is specific as to the information to be given, the cases that have to be dealt with; and then it will be implemented and some good will be done. I beg the Government to reconsider this.

§ LORD AUCKLAND
May I intervene before the noble Lord withdraws? The noble Lord, Lord Brown, mentioned mail orders. Can he specifically mention any mail-order advertisements which might be regarded as false and which do not have some direct or indirect bearing on health or safety?—because, surely there must be very few.

VISCOUNT COLVILLE OF CULROSS
I have been looking again at the point which the noble Lord, Lord Brown, made, about this applying only to goods supplied in the course of trade or business. It is very noticeable, because that expression is found in Clause 7 and Clause 8. Clause 8 says that anybody who, in the course of any trade or business, supplies or offers to supply goods in contravention of the order is guilty of an offence. But the words do not appear in Clause 9. If the noble Lord is saying that these orders are to be limited to advertisements put out by people in the course of trade or business, that certainly takes away some of my doubts. But I do not think the clause says so. We could easily put it in after the word "supplied" in line 31. I hope that the noble Lord will consider this point, because I think that, on the drafting, the clause is open to exactly the interpretation I made.

§ LORD BROWN
I will certainly take note of the point. One of the ways of dealing with it is this. When we come to the next Amendment you will see that we propose to describe the type of advertisement to which the order applies, and we could exclude all the advertisements put in by private people, or all those not put in in the course of trade or business. This may be the way to do it. I have a note here from which I see that my advisers agree with the noble Viscount that the wording is a little lame as it stands. It is nice to be able to concede a point.
1338 I will not re-state the case I have already put forward on the Amendment we are considering. I have listened to the other side and I have a great deal of sympathy with it, but I think that if we were to accept this Amendment we should live to regret it, because society is becoming more complex every day and all sorts of new devices are being invented by crooks to "do people down". We are not concerned only with health and safety but also with the economy.

§ LORD AUCKLAND
But surely health and safety are the main bases of the economy?

§ LORD BROWN
It all depends where you stand. If you have plenty of money, health and safety are the most important factors; but if you are hard up the economy is important. There are too many people calling at doors or sending round misleading advertisements, and I think we ought to have the power to deal with some of these people. That is why I am advising the Committee not to accept this Amendment.

§ LORD DRUMALBYN
I think we shall have to look at this further, but in the meantime I beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ 6.2 p.m.

§ LORD BROWN moved, in subsection (1), after the first "that", to insert "any description of". The noble Lord said: With this Amendment I should like to discuss also Amendment No. 17. Subsection (1) of this clause, as at present drafted, would enable the Board of Trade to make an order requiring all advertisements of the designated goods to contain or refer to information or instructions. Some of your Lordships have pointed out that there are some sorts of advertisement—a give-away pencil or a neon sign, for example—which could not in practice be required to comply with such an order, and have proposed that there should be specific exemptions in the Bill to cover such cases.

§ We have made it clear that we have no intention of using this proposed power to impose unreasonable requirements and that there are adequate safeguards in the Bill, such as the obligation to consult with interested bodies, to ensure that we 1339 do not make a mistake. We have, nevertheless, considered whether it would be right to restrict the power by exempting some descriptions of advertisement from the scope of the clause altogether. We have concluded that it would not, bearing in mind that the circumstances in which the power might need to be used are at this stage hypothetical. The earlier debate on an Amendment moved by the noble Lord, Lord Drumalbyn, which sought to exclude certain kinds of advertisements containing only one statement or slogan, illustrated the difficulties of trying to define in advance those descriptions which might be exempted.

§ However, we put forward these Amendments as a practical contribution to overcoming the objections that I have referred to. If they are adopted, they will make it clear that the Board of Trade must not make a blanket order covering all descriptions of advertisement in respect of any classs of goods. If and when the Board wanted to make an order under the clause they would have to specify in it those descriptions of advertisement which were to be covered; and the consultation and publication requirements of Clause 35 would ensure that all interested parties had an opportunity of pointing out anything impossible or unreasonable about the proposed coverage. I think that this is a sensible compromise and I hope your Lordships will accept it. I beg to move.

§ Amendment moved— Page 5, line 31, after ("that") insert ("any description of").—(Lord Brown.)

§ LORD DRUMALBYN
This is certainly an Amendment that we welcome. As I said earlier, it would be a great mistake to keep the wide scope of the clause as drafted. As I understand it, under the clause as at present drafted one would have to exclude particular kinds of advertisements if one did not want them to be covered, whereas under the clause as it would be amended one would have to specify the particular descriptions which are to be covered. If that is so we regard this as being a great improvement, and would certainly not wish to oppose it.

§ On Question, Amendment agreed to.

§ LORD DRUMALBYN moved, in subsection (1), to leave out "or instruction", 1340 where that word first occurs. The noble Lord said: I said earlier that I thought there might be cases where it would be desirable to require information to be given in advertisements but that I did not see that there was much scope for giving instruction, or for instructions relating to a group of goods. I think "instruction" is the word here. Even in the "tell-tag" which my noble friend Lady Elliot of Harwood is launching, instruction is not contained. There is a reference to where the instruction can be obtained but it is not actually on the "tell-tag", and if it is not on the "tell-tag" I should have thought it even less appropriate that it should be in advertisements.

§ I understand the point that was made earlier in regard to mail order, but if that is what is required then surely there should be a specific provision dealing with the mail order, so that where someone is invited to purchase directly by mail order he may be able to see the instructions relating to those goods and so judge whether the goods are appropriate for him to buy. In the general way I should have thought it quite inappropriate that one should attempt to give instructions in the ordinary type of advertisement. This is a case where one wants to specify categories separately, and I should like to see "instruction" taken out of the generality, and then, if any special instruction is required for mail order, it should be dealt with separately. I beg to move.

§ Amendment moved— Page 5, line 33, leave out ("or instruction").—(Lord Drumalbyn.)

§ LORD BROWN
It seems to me that if it is necessary to get a certain piece of information across to consumers in advertisements, it might sometimes be most easily expressed in the form of an instruction. But on reflection I must admit that by using a different form of words, possibly longer and clumsier, the essential point could be expressed as information. For example—and I quote this merely by way of illustration, and not as a case we have particularly in mind—if it were thought expedient to ensure that mail-order advertisements of garments should forewarn customers whether or not the garments were washable or cleanable, it would in some cases be sufficient to say, "Dry-clean only". That is, I should 1341 say, an instruction. Another way of putting it would be "Not washable but may be dry-cleaned", which is information. In short, we do not feel that there is a clear distinction here between information and instruction, or that the Amendments would prevent us from achieving the essential purposes for which we seek these powers. It is on these grounds—and I do not want to deceive the noble Lord into thinking that we do not propose to seek on occasions that information be supplied—that we are happy to accept this Amendment.

§ LORD DRUMALBYN
I am much obliged to the noble Lord.

§ On Question, Amendment agreed to.

§ LORD DRUMALBYN: I beg to move Amendment No. 16.

§ Amendment moved— Page 5, line 35, leave out ("or instruction").—(Lord Drumalbyn.)

§ On Question, Amendment agreed to.

§ LORD BROWN
I beg to move.

§ Amendment moved— Page 5, line 37, leave out from ("in") to ("as") in line 38 and insert ("such description of advertisements of the goods").—(Lord Brown.)

§ On Question, Amendment agreed to.

§ 6.10 p.m.

§ LORD DRUMALBYN moved, in subsection (2), to leave out "form and". The noble Lord said: I am doubtful whether it is necessary to include the words "form and" for almost the same reasons as the noble Lord was giving when talking about "instruction" and "information". I am quite certain that it would be sufficient to specify the manner in which such information, instruction or indication is to be included, and I think if we only said "manner" the Government would be less tempted to go into the minutest detail as to the size of print in which it should be printed or the relationship of that size of print to the size of the name of the manufacturer, or any other information given in the advertisement. An advertisement is made up in a quite different way from a label, and I doubt whether it would be appropriate to prescribe the form in which the information should be given. I beg to move.

1342

§ Amendment moved— Page 5, line 39, leave out ("form and").—(Lord Drumalbyn.)

§ LORD BROWN
In one sense I have a great deal of sympathy with this Amendment, but I do not want your Lordships to accept it. I was really horrified by the example quoted, I think by the noble Lord, Lord Strabolgi. I do not want to get myself into trouble by apparent implications of criticism of other Government Departments during the course of this debate. What was significant about the example was that it had not yet been through the process of consultation and had not yet been discussed by Parliament.

§ LORD DRUMALBYN
I did not quite hear what the noble Lord said.

§ LORD BROWN
The example that Lord Strabolgi gave—and I admit it was a horrible one—was a 200-word sentence specifying which types should be used, and so on. This example had not, in the form read to us, passed through the stages of consultation with those involved in the trade, nor had it gone before Parliament. I fully expect that that particular Order will not survive in the original form in which it was quoted to us. There is a danger that people can become stupid about a matter of this sort. But, on the other hand, if we are not able on some occasions to state the size of lettering to be used, then we probably are not able to bring about the effect which is desirable, particularly in the matters of health and safety. I would remind your Lordships of the example I quoted of the mercury battery which I picked off my own desk and which had on it in very small letters, "Do not throw on a fire because it will explode" I could not read those words without glasses; I could scarcely read them with them. If you cannot specify the size of the letters, in some cases you may be endangering life.

§ LORD DRUMALBYN
Of course we are not talking about Clause 8, but Clause 9. We have not excluded form and manner in regard to the marking of goods. We are trying to exclude it in the matter of advertisements, in Clause 9, which is a very different thing.

§ LORD BROWN
Yes, I admit that I was arguing about Clause 8. Nevertheless, this does bear on Clause 9, although not as forcibly, I confess. Nevertheless, 1343 if one wants recommendations with regard to safety put into advertisements, if it is considered necessary to protect children and so on, and you end up by making an Order and then find the information is stuck away in the corner so that people ignore it or cannot read it, you have not achieved very much. It would be unwise to omit these words because it might defeat the whole purpose of giving power to the Board of Trade to specify in advertisements contents that deal with health and safety. These are the things am particularly concerned about. I therefore recommend your Lordships not to accept the Amendment.

§ LORD DRUMALBYN
I am sorry the noble Lord cannot accept this Amendment. As I indicated, there may be some occasions on which it might be desirable in special forms of advertisement to specify the form. But if you specify the form of every information you give in advertisements you will ossify the advertisement, make it very rigid with regard to the layout and all the rest, if you have to build the whole thing round a Board of Trade Regulation as to the form in which it should be. I hope the noble Lord will not very often find it necessary to specify the form, and I am sure that in his consultations, consultations that the Bill requires him to have, it would be a good thing in each case to consider whether there should be information required in advertisements. I hope that he will also consult as to the form and manner in which it should be given and not leave this out of consideration, because it is extremely important. If you once start interfering with the conception of an advertisement, the general layout, then I think you will destroy the whole vitality of advertising. I hope the noble Lord will take this into consideration. I beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ LORD DRUMALBYN
I beg to move.

§ Amendment moved— Page 5, line 40, leave out ("instruction").—(Lord Drumalbyn.)

§ On Question, Amendment agreed to.

§ LORD DRUMALBYN moved to add to the clause: ( ) An order made under this section shall not relate to any advertisement which refers 1344 only to the name or names of any goods, the name and address of the person supplying or offering to supply those goods, or any combination thereof, with or without an illustration.

§ The noble Lord said: The noble Lord has already said that he would deprecate any such addition to the clause as this, but he has also said that he would not expect to cover by regulations any such case as is covered by this Amendment. This is a question of balance as to whether you put a thing in or not. All I can say to the noble Lord is that it would give a good deal of encouragement to those who have misgivings about this clause if he were at least to accept this very small limitation, which is not a limitation at all on his powers because he certainly is not going to require this. He will, if I may venture to say so, give more confidence that he is not going to do so if he accepts the Amendment than if he merely says it is not his intention to do so. For my part, I accept his intention, but I would be much happier if he were to accept the Amendment. I beg to move.

§ Amendment moved— Page 5, line 46, at end insert the said subsection.—(Lord Drumalbyn.)

§ LORD STRABOLGI
From this side of the House I should like to support this Amendment, and I hope that the Government will accept it. We have had a very full discussion and the noble Lord, Lord Drumalbyn, has put forward with great force the reasons for it. I think it is an Amendment that merits every consideration.

§ LORD AIREDALE
I should like to say from these Benches that I agree entirely with what has been said.

§ LORD BROWN
Noble Lords are putting these matters so charmingly that I feel inclined to give way on some Amendments when I should not. I cannot, however, recommend your Lordships to accept this one. I thought we had met the point when we undertook to specify, in making Orders, the description of advertisements and goods to which they were to apply. I do not want to see this clause further limited. I know that the advertising interests—on whose behalf some noble Lords are probably speaking in this House—are honest people, but one has to recognise that penalties of the sort in this Bill are not 1345 provided for the reputable end of industries of that sort. Is anybody in this House going to uphold the view that there is no possibility of a picture of goods being used in a manner which could be seriously misleading, or that there is no possibility in the future of this type of advertisement needing to become the subject of an order in order to prevent that from happening on the grounds of safety and health?

§ LORD DRUMALBYN
Do not let us confuse the issue here. If an illustration were seriously misleading then it would be caught under Clause 3. You could not require that information should be given in a way that would not be seriously misleading in an illustration. That is just not possible. If the illustration is going to be misleading it is going to be caught under Clause 3. If I may make the illustration, this is really a red herring.

§ LORD BROWN
I am interested in the noble Lord's argument. I have been looking at it in a different way. I think I should undertake to have a further look at this Amendment, if the noble Lord will withdraw it. I have been assuming that one would be able to attack a seriously misleading series of advertisements which contain nothing more than pictures. But of course one can get the individual conviction. I will undertake to have another look at the matter.

§ LORD DRUMALBYN
I am much obliged to the noble Lord. I beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ 6.21 p.m.

§ On Question, Whether Clause 9, as amended, shall stand part of the Bill?

§ LORD STRABOLGI
Before we leave Clause 9 I wonder whether I might ask my noble friend about descriptions in the Press in regard to goods. This was a matter on which we had some discussion under Clause 1, where it deals with false descriptions. This is a different aspect; it is the other leg of it. Under this clause the Government are requiring certain information to be given. On the December 5 Committee stage of the Bill I referred to this, and I am afraid there was a misprint in Hansard, so I should 1346 like to quote the correct passage. It is quite short, it says: 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 goods were also being described, equally fully, in these supplements and women's pages."—[OFFICIAL REPORT, 5/12/67, col. 651.] I am afraid the word "fully" became "falsely".
On that day we had a fairly full discussion about the false description of goods in newspapers, and I should like now to approach it from the other point of view. Under this clause the Government are intending to impose certain requirements on advertising of all kinds. I should like to know whether they intend to oblige the Press and the magazines to include the same information in their editorial comment. This is a most important point. In other words, we ought to have from the Government an explanation of exactly what they mean by "an advertisement".

§ LORD BROWN
The short answer is, "No". We have no intention whatever of imposing these orders on newspapers' editorial comment. The intention is to confine these orders to advertisements which are paid for by manufacturers and others to promote the sale of their goods. We have no intention of enforcing the Orders even on the special category of people who, in the course of their trade or business, write columns describing goods, because that is not specifically an advertisement in the meaning which is commonly given to the word. These words will apply to advertisements as we understand them, a means of selling goods paid for by those who wish to sell them.

§ LORD STRABOLGI
I am grateful to my noble friend.

§ Clause 9, as amended, agreed to.

§ Clause 10 agreed to.

§ Clause 11 [False or misleading indications as to price of goods]:

§ LORD BROWN
I beg to move that the consideration of Amendment No. 20, together with Clause 11 itself, be postponed until after Clause 17.
Moved, That the consideration of Amendment No. 20, together with Clause 11, be postponed until after Clause 17.—(Lord Brown.)

1347

§ LORD DRUMALBYN
That will not be to-day, surely.

§ LORD BROWN
No.

§ LORD DRUMALBYN
I am obliged.

§ On Question, Motion agreed to.

§ Clause 12:

§ False representations as to royal approval or award, etc.

§ 12.—(1) If any person, in the course of any trade or business, gives, by whatever means, any false indication, direct or indirect, that any goods or services supplied by him or any methods adopted by him are, or are of a kind, supplied to or approved by Her Majesty, any member of the Royal Family, any Government department or any local authority, he shall, subject to the provisions of this Act, be guilty of an offence.

§ 6.27 p.m.

§ LORD BROWN moved, in subsection (1), to leave out "or are of a kind". The noble Lord said: In moving Amendment No. 21, I ask the permission of the Committee also to discuss Amendments Nos. 22, 23, 24 and 25. Taken together they represent a substantial revision of Clause 12, which had been made in the light of your Lordships' comments when we last discussed the matter. Subsection (1) was originally intended to deal with a special type of case, namely, fake claims that goods or services or methods were supplied to or approved by Royalty or central or local government bodies and that they therefore possessed a special cachet because the patrons in question would have satisfied themselves as to the soundness of the supplier and of what he had to offer. Your Lordships have, however, questioned the logic of limiting this provision to those persons or bodies. Similar claims with respect to other persons may equally carry weight (though this is of course not true of all other persons): and indeed the Bill already covers such claims in some measure, in other clauses.

§ We accept that there is something in this argument and these Amendments represent what we think might be done. In the first place, we think that false claims concerning Her Majesty and other members of the Royal Family are in a very special category and should be treated separately and a little more comprehensively than other claims. We propose, therefore, that subsections (1) and 1348 (2) of Clause 12 should deal exclusively with claims of this sort. Secondly, we propose that the Bill should be extended to cover false claims that goods or services are of a kind supplied to or approved by any person—and this would include Government Departments and local authorities and, indeed, Her Majesty and members of the Royal Family. This is in regard to supply. To effect this change, the new subsection (3) would deal with false claims that goods or services are of a kind supplied to any person. Fake claims, as opposed to false claims, concerning the approval of goods or services by any persons are dealt with elsewhere in the Bill. Those concerning services would be covered by our proposed Amendment to Clause 13(1)(iv); and those concerning approval of a type of goods are already covered by Clause 2(1)(g). These Amendments should go a long way towards meeting your Lordships' suggestions and I hope you will be able to accept them. I beg to move.

§ Amendment moved— Page 7, line 10, leave out ("or are of a kind").—(Lord Brown.)

§ LORD CAWLEY
We are most grateful for this Amendment. There is one point we should like to be clear about. When the noble Lord talks about "fake claims", does he mean claims in regard to supply to defunct or imaginary bodies or persons?

§ LORD BROWN
Yes.

§ LORD DRUMALBYN
I am not absolutely clear of the effect of taking out the words "or are of a kind". Does this mean that it would be all right, and that it would not be an offence for someone to say that he has supplied similar goods to Her Majesty? I am not quite clear what the effect is of the leaving out of these words.

§ LORD BROWN
The effect is to confine subsections (1) and (2) of the clause as amended to persons claiming in regard to goods which they are supplying to others, that the goods were approved by the Royal Family or members thereof. The new subsection (3) would catch claims to supply not only to other persons but also to the Royal Family. So one is, as it were, dividing the offence into two parts. The new subsection (3) will cover both offences for everybody; subsections 1349 (1) and (2) will refer to only the particular type of offence which is constituted by making false claims as to the approval of the Royal Family of the goods which are sought to be sold. I am afraid that is a complicated statement, but I hope that I have made myself clear.

§ LORD AIREDALE
There is one point which occurs to me. I was pleased to hear the Minister say specifically that a Government Department is "a person" for this purpose. I think it is reasonably well known that a limited company is "a person" and that a public corporation, such as the British Transport Commission, is "a person", but I should have thought that it was perhaps not well known that a Government Department was "a person". I was not sure myself, until the Minister said it, that a Government Department was "a person". If this may not be generally known, might there not be something to be said for keeping the words "any Government Department" in the clause as they originally are, and then go on to say "or any other person", or something to make it abundantly clear to all concerned that a Government Department is "a person"? It is undoubtedly a common practice to advertise that particular goods are "as supplied to the Ministry of Transport", or whoever it may be.

§ LORD BROWN
I am certainly prepared to think about it. I shall have to take advice.

§ On Question, Amendment agreed to.

§ LORD BROWN: I beg to move Amendment No. 22.

§ Amendment moved— Page 7, line 11, after ("Majesty") insert ("or").—(Lord Brown.)

§ On Question, Amendment agreed to.

§ LORD BROWN
I beg to move.

§ Amendment moved— Page 7, line 11, leave out from ("Family") to ("he") in line 12.—(Lord Brown.)

§ On Question, Amendment agreed to.

§ LORD BROWN
I beg to move.

§ Amendment moved—

§ Page 7, line 19, at end insert— ("(3) If any person, in the course of any trade or business, gives, by whatever means, any false indication, direct or indirect, that 1350 any goods or services supplied by him are of a kind supplied to any person he shall, subject to the provisions of this Act, be guilty of an offence.")—(Lord Brown.)

§ Clause 12, as amended, agreed to.

§ Clause 13 [False or misleading statements as to services, etc.]:

§ LORD BROWN: I beg to move Amendment No. 25.

§ Amendment moved— Page 7, line 33, after ("examination") insert ("approval").—(Lord Brown.)

§ On Question, Amendment agreed to.

§ 6.34 p.m.

§ LORD DRUMALBYN moved, in subsection (4), to leave out "'false' means fake to a material degree and". The noble Lord said: Perhaps I should take this Amendment and the next together, since this is a paving Amendment for Amendment No. 27. I deliberately moved the previous Amendment relating to goods where we sought to define the terms "to a material degree" in one way, and I am now moving this in another way to try it out. It would have been as easy to have said: deceived into acceptance of the services, facilities or accommodation offered", but I have deliberately moved this in a wider way. I want to impress on the Government that the test should be that a person is deceived into doing something to his own detriment or loss. I do not think I need to make the argument all over again, because the case is the same, except that here I have made it wider. It may be that this is a better formula than the other, particularly in the case of services, but I feel that one should explore this and I hope that the Government will be able to comment on the wider scope of this Amendment. I beg to move.

§ Amendment moved— Page 8, line 6, leave out from ("section") to ("services") in line 7.—(Lord Drumalbyn.)

§ LORD BROWN
I do not want to add insult to injury, but the noble Lord knows my objections to the narrowing of the definition, and I have already said a good deal about this on the previous Amendment. However, this particular Amendment is perhaps not so good as the previous one, since it uses the term "material" in the course of an attempt to 1351 define "material degree". This is a drafting fault, and it is worth drawing attention to the fact that one cannot use in the definition a word one is trying to define.

§ LORD DRUMALBYN
Yes you can. Look at the definition of "false trade description".

§ LORD BROWN
Yes, that is quite right; it sounds right. But in point of fact, if I went into the matter I think I could convince your Lordships that there are some words that can be used in this way and others that cannot. As the word "material" is the governing word of the thing which it is sought to define, to use the word "material" in this particular way would not, with respect, be cogent. I do not want to stress this, but I mention it in case the Amendment comes up again. It would be unfortunate if one had to make this drafting criticism on a future occasion. I am saying that, for the reasons already given, on which I have expressed my objections to this attempt to define the meaning of the term "to a material degree", I ask your Lordships not to accept this Amendment.

§ LORD DRUMALBYN
I am sorry that the noble Lord has taken this point, but from what he says it looks as if he rather expects us to try again and perhaps get it a little nearer right next time, when I trust he will be able to deal with the substance of the matter. As the hour is getting late, I beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ On Question, whether Clause 13, as amended, shall stand part of the Bill?

§ LORD DRUMALBYN
I should like to say a word on this clause. We are here setting out on an entirely new course, and it is not entirely clear to us what is covered. I must ask the noble Lord in this instance to tell us what "accommodation" means. Am I right in thinking that it means accommodation in buildings, and not accommodation consisting of buildings? They are two quite separate things. Perhaps he could also deal with the more general point of the difference between prefabricated houses and houses built by other means.

§ LORD BROWN
Accommodation is really a reference to every form (I must 1352 be careful, as I have just accused the noble Lord of using the same word as that in the term to be defined) of shelter, that does not consist of selling a person a house. In other words, it refers to hotel rooms, rooms in houses which are let, flats, and so on; but it does not cover the actual sale of a house to a person. The term "goods" does not cover houses, and for this reason houses do not come within the ambit of the Bill.
The question has been asked, and it has been asked again by the noble Lord: as houses do not come within the meaning of the term "goods", do prefabricated houses come within the meaning of the term "goods". The answer is: No; because they are still houses, and that has been a convention of the law for some time. Indeed, it surprised me to learn that houses were not "goods". I cannot for the life of me see why they are not, but that has been the law for some time.

VISCOUNT COLVILLE OF CULROSS
They are realty, not goods.

§ Clause 13 agreed to.

§ Clauses 14 to 16 agreed to.

§ Clause 17 [Penalty for offences]:

§ 6.41 p.m.

§ LORD BROWN moved to leave out subsection (2). The noble Lord said: This Amendment would delete from Clause 17 the discretionary power of a court to order forfeiture of goods belonging to a person convicted of an offence under this Bill, being goods in relation to which or by means of which the offence was committed. After considering the points made during our earlier debate on the Amendment moved by the noble Viscount, Lord Massereene and Ferrard, to restrict the power of forfeiture, we have come to the conclusion that the right course is to do away with it altogether.

§ The present subsection (2) reproduces in substance the provisions of Section 2(3)(iii) of the Merchandise Marks Act 1887. When that Act was passed it dealt with offences such as forging trade marks, and as the noble Lord, Lord Cawley, pointed out, the power to confiscate things by means of which an offence was committed was directed to such things as the dies used to apply a forged mark. Under the present Bill 1353 there would be little scope for the use of such a power. Indeed, we feel that the whole idea of forfeiture—even of the goods in relation to which an offence is proved—is somewhat out of date in this context.

§ If it is considered as a means of removing wrongly marked goods from the market, it is not very effective for the purpose. It applies only to those goods in relation to which the case has been proved, which in most cases would mean the small number of articles actually before the court. The real security against a convicted trader again offering for sale the wrongly-marked goods is that he will have attracted the attention of the enforcement authorities to himself: every time he repeats the act for which he was convicted—for instance, offering to supply goods to which a false trade description is applied—he commits a fresh offence: and if he is convicted again he will face very serious penalties. This prospect is, I think, a sufficient deterrent. If forfeiture is regarded as an additional penalty, it is, I suggest, both unnecessary and unfair in principle. The penalties provided by subsection (1) of this clause are perfectly adequate.

§ For these reasons, we think that the power to order forfeiture is of insufficient value to warrant redefining it in the restricted form that would be desirable in order to allay fears that it might have a much wider appliction under the Bill than it has under the present Act. I hope, therefore, that your Lordships will agree to accept this Amendment to omit the provision entirely. I beg to move.

§ Amendment moved— Page 10, line 8, leave out subsection (2).—(Lord Brown.)

1354

VISCOUNT COLVILLE OF CULROSS
I think that we on this side of the House shall be very glad to welcome this Amendment. It is also a very quick result for the noble Lord to be able to lay before the Committee so soon after the matter was discussed last time, and I think we should thank him for that as well. I am sure that my noble friend Lord Massereene and Ferrard will be delighted with the result that his debate has now brought about. It seems to me that on the substance of this matter the noble Lord is right. Moreover, it will not mean that there is no power whatever, because when we come on to the redraft of Clause 27 (I do not think we shall be dealing with it to-day) we shall find a more limited power for a different purpose which, combined with what the noble Lord has said about the penalties and ensuing appearances in court if the sane man insists upon doing the same thing, will provide adequate penalties, and adequate deterrents against a repetition of an offence if the man commits it once. I would therefore agree with the noble Lord and commend this Amendment to the Committee.

§ On Question, Amendment agreed to.

§ Clause 17, as amended, agreed to.

§ House resumed.