§ 4.50 p.m.
§ Debate on Second Reading resumed.
§ BARONESS ELLIOT OF HARWOOD
My Lords, we now return from Asia and Rhodesia to less complicated matters, to an important Bill which noble Lords on both sides have been discussing with considerable interest. Like other noble Lords who have spoken, I welcome this Bill; and I welcome it as warmly as I did its predecessor nearly two years ago. Along with other Members of the House I have pressed for the return of a Bill of this kind. With the co-operation of the noble Baroness, Lady Burton of Coventry, we now have the Bill in this House, and I am delighted that we are having this debate to-day.
I think that the changes which have been made in the Bill are, in many cases, changes of improvement. Some result from your Lordships' debates on the earlier Bill, and others show that the draftsmen have taken advantage of this opportunity to simplify and rationalise its style and form. The present Bill is more easily comprehended by the layman than the earlier Bill was. This is of the greatest importance in a measure of this kind. There is a lot of law which should be protecting consumers at present, but it is often so piecemeal and obscure that for these reasons too few take advantage of it; and as the noble Baroness said, it is very expensive. In codifying and explaining much of the law on trade descriptions, this Bill, when enacted, will give a much-needed new look to the Statute Book.
I am glad that provisions governing misleading advertisements, statements about services, double-pricing of goods, compulsory labelling, and, above all, false oral statements, remain part of the Bill. But in saying this, I do not want to be heard to say that we now have an absolutely perfect Bill, or that there is not room for further improvements, because I believe that there is. I speak this afternoon as the Chairman of the Consumer Council, and there are three significant improvements that I should like to see. The first two are closely linked and deal with the actual interpretation of the words "false trade description." The third point 637 concerns the need for more certainty about the Board of Trade taking on prosecutions when offences occur, for instance, in advertisements, on a national scale. There are a number of other matters which I hope will be cleared up as we proceed with the Bill in Committee, but at present I should like merely to describe in a little more detail the three points I mentioned.
The first concerns my conviction that the Bill needs what I called on an earlier occasion a general misdescriptions clause or blanket clause. We should start by considering the effect of a false statement upon the mind of the buyer, rather than attempt to list all the components of what may theoretically be contained in, or relate to, a false trade description. I think it is a fallacy to believe that you can set down a precise yardstick to fit all circumstances, and by simply looking at the words, whether spoken or written, say with conviction that this is or is not a false trade description in all circumstances. Such an approach cannot close the ranks against every eventuality, and some practices are bound to slip through the list of matters relating to a false trade description set out in Clause 2. My proposal deals with false indications which may arise, as they so frequently do, by ambiguities, by omissions or by inference.
I should like to take one or two examples to show what I mean. Some synthetic furniture veneers are sold under the description of "teak grain" and "mahogany finish". These are, of course, man-made chemical compositions, and not wood at all. No doubt the people in this trade consider that customers will see from brochures and advertisements that the product is synthetic and is not made from wood. Indeed, as is well known, these products have special properties which are a great benefit for particular uses in the house. Nevertheless, the customer who seeks a pure wood veneer on his furniture may easily be misled if he sees a suite of furniture in a store marked "mahogany finish" or "teak grain". He may be induced to buy that furniture on a quite false inference: not perhaps falsely applied by the supplier, but none the less false to him. It should surely be the duty of manufacturers and suppliers to remove the obvious kind of pitfalls contained in 638 such descriptions. It may be—and this is a matter that we shall discuss—that descriptions such as these may be caught by the Bill; and some perhaps believe that they will. Yet others take the contrary view; and others may think that it depends on the circumstances of the case. But the fact that the question has to be asked at all tells me that a more certain approach on this subject is needed. That approach should ask: Are these descriptions likely to induce a purchase on a false assumption?
I should like to cite to your Lordships another example where the same sort of doubt about the application of the Bill arises. There are quite a large number of shops trading under the title of "Railway Lost Property", or variations of that title. There are eleven of these in the London Telephone Directory alone. Some of these shops may indeed trade in property lost on the railways, but in certain cases we have substantial information to the contrary. New goods are being sold, and only a small proportion—if, indeed, any at all—is railway lost property. The shop front exhibits these words in large lettering, with the result that most people naturally believe that they are getting special bargains at these shops. People are induced to enter the shops and buy goods on this assumption. It takes a considerable amount of persistent questioning to extract an admission of the origin of the goods—and even this assumes an initial suspicion about the matter which the general public do not share.
It may be said that the words:other history, including previous ownership or use",in Clause 2 cater for this kind of description. But I do not think this is quite so. The shop owner might argue that the title over the window did not refer to all goods in stock; that a proportion of the goods, however small, was in fact railway lost property; and he might try the argument that trading over the years under this title had made these qualifications clear to the public. It may be that a court hearing these arguments, strictly within the confines of the Bill, might find them insufficient; but I think that as the Bill stands there is enough doubt about this matter to leave a sizeable question mark in the minds of the public. The formula that I propose, on 639 the other hand, would direct the court to consider whether the words "Railway Lost Property" over a shop window are likely to induce people to buy goods on account of the false inference or ambiguity inherent in these words, and in the circumstances of the particular case.
Another example comes from central-heating brochures which claim two minimum operating temperatures for both upstairs and downstairs respectively. What they fail to make clear is that in order to achieve the upstairs minimum the room in which the heater is fixed becomes unbearably hot. And this is a significant omission from such brochures. On an earlier occasion the Government resisted my proposal because, it was said, one must have certainty in criminal offences so that traders know the precise limits of the law. There is certainly much to be said for this. But the flaw in this proposal is that it is simply not true of criminal legislation, as is shown by such offences as driving on the roads without due care and attention, or driving dangerously, and other offences of the same kind.
Further, I think I can show that the Government have already adopted, at least to some degree, the spirit of my proposal. In resisting my proposal on an earlier occasion, on the second day of the Committee stage [OFFICIAL REPORT, 22/2/1966, col. 184], the noble Baroness, Lady Phillips, asked me to look at the words still standing in Clause 2(1): "an indication direct or indirect by whatever means given". Well, my Lords, it is true that these words have the flavour of a general misdescription clause, but their application is dependent upon the trade description relating to one or other of the list of characteristics which then follows. So that a court, in attempting to apply the wider wording at the beginning of the clause, will still find itself cramped by the list of characteristics. But for this restriction put upon the application of the words, "an indication direct or indirect by whatever means given", I would agree that it takes the same kind of subjective approach as I am advocating.
Yet I suggest that "indication" on its own expresses the need less fully than my wording, which includes the terms ambiguity, omission or influence and 640 which puts the matter more clearly. It seems to me that there is little difference in the kind of activity asked of a court, first, in deciding what an "indication" means and, second, in judging ambiguity, inference or omission in any particular case. They are both equally subjective judgments. I find support for my proposal from some recent findings of the Federal Trade Commission in the United States. One judgment included the statement thatthe shrewd use of exaggeration, innuendo, ambiguity and half-truth is more efficacious from the advertiser's standpoint than factual assertions".Another case shows that it is not a defence that an advertisement is literally true, and the court went on to hold that:To tell less than the whole truth is a well-known method of deception; and he who deceives by resorting to such methods cannot excuse the deception by relying on the truthfulness per se of the partial truth by which it has been accomplished.I think these cases express the need for my proposal very clearly.
My proposal has also received encouragement by way of editorial comment in the New Law Journal last week; that is, on November 9, 1967. Dealing with a joint memorandum to the Board of Trade by the Consumer Council and Consumers' Association, which was published before this Bill appeared, it stresses the need for a general misdescriptions clause, and adds:The purpose of the Bill, of course,isto prohibit falsehood in trade descriptions, not falsehood in trade descriptions of some kinds and not others.This, it says, will be the effect of Clause 2, and this is, of course, my criticism of the Bill in this respect.
The Molony Committee, who have been quoted before in the debate, in paragraph 634 saw clearly that the subjective effect on the buyer must be recognised, when they said:To support a charge under the present law a trade description applied must be false or misleading in a material respect as regards the goods to which it is applied.And the Committee went on to explain this:that is to say, broadly the error must be of such substance that it could fairly be regarded as capable of inducing a purchase.641 The Criminal Law Revision Committee's proposed Theft Bill has, I see, taken the same approach by favouring the idea of deception as the common element in crimes ranging from larceny to conversion. The Committee say:It seems to us to have the advantage of directing attention to the effect that the offender deliberately produced on the mind of the person deceived, whereas 'false pretence' makes one think of what exactly the offender did in order to deceive.Finally, I need not remind the House in any detail that the use of descriptions or advertisements which are false by reason of ambiguity and inference and/or omission is already an offence under food and drugs legislation in this country. On an earlier occasion I also gave precedents of wider effect from West German, United States and French laws, all of which employ the kind of proposal that I advocate.
That is my first criticism of this Bill, and now I make the second, which really overlaps to a considerable extent my first point. The noble Lord, Lord Drumalbyn, successfully moved an Amendment to the previous Bill, which inserted the words "in a material respect" to the definition of a false trade description in the Bill, a qualification which already stands in existing merchandise marks law. The noble Lord also proposed the addition of the words "capable of inducing a purchase " as a further test of falsity, but that got less sympathy from the Government than from me. Now they have come up with the words "to a material degree", which seem to me to be a halfway house between "material respect" and the effect of the kind of general clause I propose.
On the last occasion I argued that "false in a material respect " pointed too closely to the wording of the description itself and to the goods it described, rather than whether or not it was false to the mind of the buyer. I suppose "false to a material degree" could apply more easily to the impression given to the buyer as well as to the description and goods themselves. But we are not given any clue as to which is the correct application. At an earlier stage in this debate, on the first Committee day, Lord Mitchison said that,what one wants to be clear about is the impression on the mind of the purchaser or victim."—[OFFICIAL REPORT, 21/2/66; col. 34.]642 That is exactly my point. I think the words "to a material degree", left in mid-air, do not make this clear enough.
Last, I come to the question of enforcement. I note that the Explanatory Memorandum to the earlier Bill informed us that no duty of enforcement is placed upon the Board of Trade. While the position is unchanged, of course, I note that this little piece of explanation has dropped out of the print of the Bill. I hope this may be taken as an augury that the Board of Trade have stiffened their resolve to take prosecutions when necessary, and that they will not simply back out of this responsibility because there is no express duty upon them to do so.
My Council agree with the general principle that enforcement should be mandatory upon local authorities. But we discussed on an earlier occasion the special circumstances arising in the case of nationally advertised branded goods, where, if prosecutions were left to local authorities, it could result in several conflicting decisions by magistrates' courts, all founded on the same advertisement, but of course in different parts of the country. Now there are provisions requiring local authorities to give the Board of Trade 28 days' notice of impending prosecution. And although the Bill is silent on the point, the Board remain free to prosecute if they so decide. Yet there is nothing in the Bill which will make it certain that the Board will prosecute in the circumstances I mention relating to nationally advertised products, and I should like to see an express provision to deal with this admitted need.
In the previous Bill a clause dealt with the question of civil remedies open to the customer deceived by any of the false descriptions prohibited. In the interval the Misrepresentations Act has effected some changes in the law on civil remedies, and the relevant clause in the present Bill, Clause 33, has now been altered. I am, however, far from certain that these two Acts dovetail as closely as the draftsmen intended. This, however, is a point that can be considered at a later stage of the Bill.
My Lords, I have spent some time on the three particular aspects where I think there is room for improvement in this Bill. But I do not wish it to be thought, 643 because I have gone into some detail, that I do not wholeheartedly welcome the general purposes of the Bill, as I said earlier. It is an excellent Bill and it gives both myself and the Consumer Council the greatest encouragement to see this much-needed measure moving towards the Statute Book at last. The Government deserve to be congratulated on the rebirth of a better Bill which, by and large, achieves a fair balance between safeguarding both honest consumer and honest supplier. Consumers will have a better chance of understanding their rights, and when they do so fully the Bill will earn the appreciation and gratitude of the public.
§ 5.9 p.m.
§ LORD SAINSBURY
My Lords, it gives me great pleasure as a retailer to welcome this Bill. It is exactly five years ago, on November 14, 1962, in fear and trepidation, that I made my maiden speech on this very subject, the subject of consumer protection. On that occasion I listed some dubious trade practices and areas where, in my opinion, the consumer needed more protection. I also expressed the hope that a strong Consumer Council would shortly be set up. In the following year that organisation came into being, and under its capable and energetic Chairman, the noble Baroness, Lady Elliot of Harwood, it has played a most valuable role. During the last five years we have also enacted the Hire-Purchase Act 1964 and the Weights and Measures Act 1963, which provide some safeguards for the consumer. However, in my opinion our consumer protection legislation is far from comprehensive and the present Bill will fill an important gap, the existence of which was pointed out by the Molony Committee as long as five years ago.
Not only do I believe, in opposition to the Daily Telegraph, that this particular Bill is needed, but I am convinced that it will be welcomed by a large section of the retail trade and also by the majority of the general public. It is easy enough for this newspaper to write a flippant leader about "Coddling the customers". As I said five years ago, I do not believe that the consumer's hand can be held all the time, but I think it is right and proper to protect him from 644 misleading trade descriptions. While there is no doubt that perfection in this or in any other matter cannot be brought about by legislation, I fail to see how an attempt to ensure that the information the customer gets is reliable can be regarded as coddling the customer, or as portraying an "offensively protective" attitude towards shoppers. The fact is that in many cases the customer has no means of verifying the details on the label, the claims in the advertisement, or the information given verbally at the time of purchase. I am convinced that it is wholly desirable that some sanctions should exist against those who provide false or misleading information.
In my opinion it is nonsense to claim, as the Daily Telegraph does, that the Bill is "blatantly hostile towards tradesmen". Honest and responsible tradesmen, who I am glad to say—as has been said by others this afternoon—are in the great majority, should have nothing to fear from this Bill. In my view the only legitimate reservations concern the clause dealing with oral misdescription and the enforcement of the provisions relating to false price comparisons. Naturally, I accept that it is desirable to prevent the giving of false information in any way, but I am concerned that the enforcement of the Bill in respect of oral misinformation will give rise to considerable difficulties. Neither the customer nor the retailer is endowed with an exceptionally good memory, and in those circumstances it will be difficult to establish what was actually said and whether there was a conscious attempt to mislead the customer. It is also important to remember the point that my noble friend Baroness Burton of Coventry raised earlier, that however regrettable it may be there is a large turnover of staff in retail trade, which means that a considerable number is always under training and is more likely to make mistakes.
I appreciate that the provision concerning oral misdescription is also contained in the Food and Drugs Act 1955. and in the more recent Weights and Measures Act 1963. It would be interesting to know how many cases have been brought under this provision in those two Acts during, say, the last year. I think it is a very important rule not to embody provisions that cannot properly be enforced. For example, I recall that 645 two years ago in the then county of Middlesex there were only twelve weights and measures inspectors to serve a population of 2¼ million. Despite some improvement, this is still a very real problem in most of the country, and I understand that the current overall shortage of weights and measures inspectors is in the region of 200.
My second reservation concerns the problem of false price comparisons. I agree that action is necessary, especially to eradicate the distasteful practice of crossing out entirely fictitious prices. However, I hope that the law will be interpreted with moderation, otherwise its effect may be to prevent genuine price reductions. In particular, it is important to bear in mind the difficulty of establishing what is the usual price against which claims of price cuts are judged. In spite of these two reservations, may I reiterate that I wholeheartedly support the Bill and hope that it will have a speedy passage, through both this House and the other place.
§ 5.19 p.m.
§ LORD AUCKLAND
My Lords, I must first apologise to the noble Lord, Lord Brown, and to your Lordships that I may have to leave the Chamber before the Minister finishes his final speech. I have to preside at the Annual Home Safety Conference in the Borough of Lambeth tonight, and in view of the legislation before us to-day I think the House will agree that there is some relevance in this particular commitment.
I join with those who regard this as a useful Bill. Of course its effectiveness will largely be measured by the ability with which its provisions can be enforced, and noble Lords with more experience than I of the retail trade and the manufacturing trade have already mentioned a number of matters which will obviously have to be examined very carefully in Committee. I speak as a Vice-President of the Royal Society for the Prevention of Accidents, and therefore my approach to this Bill is largely from the aspect of safety to the consumer. I should like to ask the noble Lord one question, which perhaps his Department could consider. I refer to the position regarding oil heaters and electric fires of ancient vintage which are still on sale at various fetes and fairs throughout the country, and also, 646 I believe, in some street markets. I do not know whether this matter is specifically covered in this Bill. But it is a point, when one is discussing consumer protection, which needs very careful looking into, particularly as, although under the 1961 Act these sub-standard oil heaters are illegal anyway, there is evidence that they are still being made for sale.
Then there is some rather untidy drafting in the Bill. I would direct your Lordships' attention to Clause 3(2), which is a little difficult to take in at one mouthful and, I feel, could be shortened a little to make it rather more easy to understand. Clause 4(2) has already been mentioned by my noble friend, Lord Drumalbyn. As one who is professionally concerned with communication training, I occasionally help to run courses for sales managers and sales representatives in various manufacturing firms, in the catering industry and other industries, and I think it is fair to say that the training given to sales managers and representatives these days is of a high standard. Inevitably, a retailer must depend to a considerable extent, particularly when a new product is being marketed, on what the representative can tell him. I presume that the onus in this business of oral misrepresentation will concern the manufacturer and sales managers of the firm concerned, rather than the retailer, because, obviously, in what he tells his customers a retailer must to a large extent depend on what he is told by the bona fide representatives.
The Molony Report, in paragraph 284 and several ensuing paragraphs, deals with the matter of labelling. I know that the Royal Society for the Prevention of Accidents are concerned with the practice of firms, particularly ironmongers, who sell bleaches and other products in lemonade or other squash bottles. This particular substance is coloured to look like orangeade and lemonade, and if it is drunk by a child it has pretty nasty results. There are, of course, in villages particularly, a number of general stores which might deal with a number of commodities ranging from fruit squash to these various bleaches, and possibly garden liquid products, which can cause these accidents.
So far as advertising is concerned, I should like to pay my own tribute to the 647 Incorporated Society of British Advertisers; having been to two or three of their seminars over the past year, I think that they have done much to curb misleading advertising which ten or fifteen years ago was rather prevalent. It is true that some of the television advertising is not only very irritating but positively stupid. But I think that consumers generally are beginning to be more discriminating as regards the shampoos and various floor polishes, which are not so effective, and even the soups, which are not so nutritious, as the advertisers would have them think. Therefore, I do not think that television advertising to-day has a great deal which can be criticised.
Finally, on Clause 13, as other noble Lords have mentioned, there is this question of guaranteed services. I believe that these days our manufacturers, whether of washing machines or various other electrical gadgets, do a very good job; but the same cannot always be said of the after-sales services. I myself have had experience of where a Hoover or some domestic appliance has been taken to a shop, and the customer has been told, "Oh yes, it will be ready within 48 hours". But when one goes in one is told that it will not be ready for a week, and some lame excuse is offered. I do not think one can necessarily blame the poor retailer. He may well be in the hands of the firm: possibly a part manufactured by another firm—it may be a foreign firm—is the cause of the trouble. The September issue of the very excellent magazine, Which?, tells of a case (I will not go into details of it; it is available in the Library) in which the housewife took a washing machine, a new machine to be serviced, and it took several weeks before it was put right.
This is the kind of thing which harms our own industries, because people say, "Of course, British firms cannot deliver the goods. We will go to another firm of a foreign nature". This is not always fair to the manufacturer. I hope that Clause 13 will be looked at very carefully, and that any blame emanating from that clause will not necessarily be put on the retailer. As I have said, this is a Bill which is generally to be welcomed, and the sooner it is on the Statute Book, with the loose ends which need tying up prop- 648 erly tied up, the better for the country as a whole.
§ 5.28 p.m.
§ LORD STRABOLGI
My Lords, like other speakers, I should like to welcome this Bill, and in common with some other noble Lords declare an interest in that I have worked in advertising for many years and am connected with the Incorporated Society of British Advertisers. I am sure that the Society will be very glad to hear the kind words the noble Lord, Lord Auckland, has said about what they have been doing to try to improve standards. Indeed, in company with the Advertising Standards Authority, under the able Chairmanship of the noble Lord, Lord Drumalbyn, the Society have done a tremendous amount through the voluntary code of British advertising practice.
For that reason I would submit that Clause 9, although we know little about the intention behind it, is hardly essential. This is the clause which refers to information given in advertisements. I should like to ask the Government what they have in mind, and how they intend to use these powers. The Molony Committee, in paragraph 758 of their Report, considered this, but concluded that it was clearly impossible. Indeed, the noble Lord, Lord Drumalbyn, gave one or two examples of how it may be impossible to work in practice. In contrast I should be grateful if my noble friend Lord Brown would tell us how the Government think it will work; the reasons why they wish to have it this way and what they want to do about it; and why they think these statutory powers are necessary. Why do they think they need overriding statutory powers to bring in rulings which, I would suggest, are already being administered perfectly satisfactorily in a voluntary way by the bodies that I mentioned earlier?
I should also like to ask about Clause 9(3), and join with my noble friend Lady Burton of Coventry in asking the Government what they mean by the words "any person". As my noble friend said, this was raised on several occasions during the passage of the previous Bill during the last Parliament. The only reply we received was, "'any person ' means 'any person'". I should like to ask now, quite specifically of my noble friend Lord Brown, whether this means the manufacturer, the advertiser, the advertising agency, the newspaper or magazine, the 649 printer, the poster-site owner, the retailer, the T.V. programme company or the I.T.A. Does it mean any of those, some of those, none of them, or all of them? I should be glad if the Government would give us an answer during the passage of this Bill.
I should like to say a few words on the other clauses, although I think these are matters to which we can return during the Committee stage. Clause 17 raises the matter of penalties. I welcome the taking out of the three months' imprisonment on summary conviction, but I am disappointed to see that the fine has been increased by £100 to £400. This is a matter which we can examine in detail in Committee, but on the face of it I think this is a rather large sum on summary conviction. It would be particularly onerous on the small retailer, especially if he is at risk from prosecutions brought as a result of oral statements under Clause 4(2). I heard with particular interest what my noble friend Lord Sainsbury had to say about the difficulties concerning oral statements.
Under Clause 18 there is the matter of the time-limit for prosecutions. I should have thought that three years from the commission of the offence is rather too long. One year, I should have thought, would be long enough and rather more fair. Indeed, I understand that the three years' limit dates from the year 1887, when the pace of commercial life was considerably slower than it is to-day. I also submit that there may be a case for an Amendment on Committee stage to require protection against multiple prosecutions. As the noble Lord, Lord Drumalbyn, mentioned, we did not reach this clause; in fact, we got only half-way through the Committee stage before Parliament was dissolved for the Election. I believe an Amendment was put down, and if another Amendment is put down this time I hope that the Government will consider it. Similarly, I think that an Amendment may be required to Clause 30, so that the Board of Trade can lay down minimum standards of qualification and testing for those persons who are authorised to issue certificates.
Lastly, I should like to say a few words about Clause 41. This is a most important clause, relating to the Title of the Bill. Here may I say that I agree fully 650 with what the noble Lord, Lord Airedale, and my noble friend Baroness Burton of Coventry have said. I am rather puzzled why this Title has been chosen. I have never liked the words "consumer protection", but I infinitely preferred the previous Title, Protection of Consumer (Trade Descriptions) Bill, because that at least had the words "trade descriptions" in it. Now those words have been taken out altogether. I prefer the suggestions of the Molony Committee which, as the noble Lord, Lord Airedale, said, were "The Trades Descriptions Bill", or "The Merchandise Descriptions Bill", and also the one put forward by the noble Lord, Lard Drumalbyn, "The Fair Trading Bill because I would suggest that in the Preamble to the Bill there is nothing about protection of consumer. In fact, the only place where that occurs is in the Title and in Clause 41.
In my view the Title is too restrictive and rather confusing. It does not reflect the fact that the Bill is also for the protection of the vast majority of manufacturers and traders against dishonest competition. There are also the defence clauses, Clauses 22 and 23, which give protection on account of mistakes, accidents and so on. Clause 24 gives protection to those publishing advertisements or arranging for their publication.
§ LORD DRUMALBYN
My Lords, would the noble Lord kindly forgive my interrupting him to enable me to put a point? First of all, may I thank him sincerely for his reference to myself. Secondly, may I ask him, on this point about publication, and in view of his reference to Clause 9(3), whether his question was to ask the meaning of "any person who publishes", rather than just "any person", and whether the word "publishes" in Clause 9 has the same meaning as it has in Clause 34?
§ LORD STRABOLGI
Yes. I follow what the noble Lord has said. I was using this clause in a slightly different way, to show that whatever "any person" means—and we hope that we shall be able to find out on this occasion—and whoever that person is, it gives him protection. The point I was trying to put forward is that this is another clause which affords protection to others who, while they are consumers, are not actually consumers in this particular clause. 651 Further, I would suggest that the present Title gives the impression that advertising and selling are basically contrary to the interest of the consumer.
As the noble Lord, Lord Airedale, said, most laws are for the protection of somebody or something; and surely the rule of law of protection is the difference between a well-regulated and law-abiding society and an anarchic society. Therefore, I hope the Committee will consider an alternative Title to this Bill, so that we can arrive at one that is more accurate and describes exactly what the Bill is trying to do, because otherwise I think that the public will be confused. With these few reservations I welcome the Bill, and I hope that your Lordships will give it a Second Reading.
§ 5.39 p.m.
§ LORD CAWLEY
My Lords, I have an axe to grind. I am a lawyer who is going to be asked later to explain to his clients the meaning of the sections in the Act which will arise from this Bill. It is therefore most important to me that they are reasonably clear. To start with, I must repeat the welcome that I gave the Bill earlier in my speech on the Second Reading in 1966. It is a most necessary Bill, and I hope that it will be passed in the best possible form.
In my speech on that Second Reading I quoted the words of the noble and learned Lord, Lord Goddard, who was then Lord Chief Justice of England, in the case of Slatcher v. Mence Smith, in 1951. This is what he said of the 1871 Merchandise Marks Act, which of course is the basis of the present law:It is a most difficult Act to construe and has given rise to many appeals. Those who are responsible might well consider whether new legislation should not be introduced to set out the law on this matter in clear language which lay justices and others concerned in its administration could understand.It is much to be regretted that the Government have either sought deliberately to ignore the noble and learned Lord's advice—and I do not think that is so—or, at any rate in the case of the 1966 Bill, employed a draftsman with little or no knowledge of what the average lay justice can understand.
In the last Parliament serious criticism was levelled, from both sides of the House, at the drafting of the Bill. I am 652 glad to see that some steps have been taken to unpick the elaborate jigsaw puzzle created by the draftsman. For example, in Clauses 1 to 6 this has been achieved by rearranging the order of the clauses; and I am grateful for this small mercy. The Short Title has also been pruned. I do not really care what the Bill is called, provided it has a Short Title and has not things in brackets which have to be written out every time one refers to the Bill. But I am by no means satisfied that the process of untying the ravelled skein has gone far enough. I give warning that I shall do my best in Committee to improve the Bill generally.
I must call attention to-day to Clause 20. The noble Lord, Lord Winterbottom, said nothing about this clause, but it is exactly the same clause that was introduced in the 1966 Bill. We did not reach it in Committee, but I shall have to weary your Lordships with what I said on Second Reading on February 8, 1966:Clause 20 is, I must say, a very weird clause. This morning I consulted Queen's Counsel who is accustomed to dealing in this branch of the law, and we argued for about a quarter of an hour about what the first part of the clause meant, without coming to any consistent conclusion. It appears, if one reads the clause (I will not read it now), that an offence under Clause 1 of the Bill may depend on the state of mind, the intention, of the offender. That would lead to most extraordinary circumstances. Let us say that a man has a roll of black cloth with the word 'black' written on it. That is a perfectly true description, and is not false. Let us say that in Ruritanian language the word 'black' means white. That is false. It appears from this clause that if the man intends to export the goods to Ruritania, then he is committing an offence, but if he intends to sell them in this country, it is all right. I can see nothing in Clause 1 which deals with that, but Clause 20 does suggest that that is the law, and I think it should be looked into carefully.A little later in the clause there is the most astonishing phrase, which does not occur anywhere else in the Bill:'being an indication which could not on any reasonable view be regarded as true.'I do not know what that means. I should have said that, if that were so, it was a false indication. It could not on any reasonable view be regarded as being true. We seem now to have a gentleman who is a reasonable viewer and who has come in. I really feel that the Government ought to consider taking this phrase out altogether. It adds nothing to the Bill, and to me it only creates confusion." [OFFICIAL REPORT, cols. 699–700.]653 I intend, if possible, to consign that curious phrase to the wastepaper basket, along with "calculated," which disappeared into that receptacle when we were in Committee stage on the former Bill. The noble Lord, Lord Brown, must realise that it is a most extraordinary phrase to have in a Bill and it must be extremely difficult to construe. I think that it is for the Government to persuade noble Lords that this Bill is one that would be intelligible to lay justices as a class.
I now turn to two main criticisms of the Bill, which have nothing to do with the drafting. The first is the question of multiple prosecutions, a matter which I brought up on the Second Reading of the former Bill and to which the noble Lords, Lord Strabolgi and Lord Drumalbyn, have referred this evening. It is rather hard on a manufacturer or a multiple retailer who commits some very small offence in labelling if he is to be attacked by a dozen or more local authorities. I know that in the food and drugs legislation that is exactly what happens, and one cannot help thinking that if one public health inspector finds that there is a slight misdescription on a carton he rings up all his friends all over the country, because quite frequently the wretched multiple retailer gets complaints from six or seven places at the same time.
That surely cannot be a fair way to deal with the matter. I suggest to the Government that there is a way of getting round this, and that is by the Patents Act 1949, where one can get a declaration of non-infringement. I think that if a retailer or manufacturer is attacked from a number of places at once he should be permitted to go to the High Court, possibly making the Board of Trade respondent, and seek a declaration whether what he is doing is or is not a breach of the law. Because, of course, there is no finality in a magistrate's decision. A magistrate may decide that an offence has been committed under, say, the Merchandise Marks Act, but that decision is not binding upon any other magistrate. Therefore the next magistrate may decide that no offence has been committed. I would ask the Government to consider this matter carefully.
The second criticism is a rather curious one, and refers to the second part of the Bill, Clauses 7 to 10, headed: 654Power to define terms and to require display, etc. of information".Under the former Bill there were clauses, all to the same effect, which qualified all these clauses; and Clause 7(2) of the old Bill will show what I mean. Clause 7(2) of the old Bill said:Before making an order under this section the Board of Trade shall consult with such organisations as appear to them to be representative interests substantially affected by the order.That requirement does not appear in the present Bill, and I should like to blow why. When I first saw it in the former Bill, I said, "This is ridiculous. It has no effect in law and ought not to be in the Bill, so why should it clutter it up?" But a Member of your Lordships' House with enormous experience of Government office—possibly more experience than any man in this country—said, "No, it is very important," since a Minister who was being bulldozed by his Permanent Secretary to do something of which he did not really approve would use this as a defence. It would allow him to say to the Permanent Secretary, "Have you consulted all these people, and what did they say?" If the Permanent Secretary says, "They were not very enthusiastic", the Minister has something to catch hold of. I feel that these provisions ought to be in the present Bill, and I do not know why they have been left out.
I was going to say something about Clauses 33 and 34 in regard to the complete change of the liability in civil proceedings, but I gather than it has something to do with the misrepresentation Bill. I am afraid that I am not such a good lawyer as I ought to be and have not that legislation in mind at the moment. But I think we can leave that matter for discussion later.
There are some minor criticisms that I should like to make, the first in regard to Clause 12. I have criticised this provision before. I will not trouble your Lordships with what I said then, but I think one ought to refer to the matter. This clause prevents people from falsely saying that they have the approval of various persons and bodies. The 1966 Bill included the Crown, Members of the Royal Family and Government Departments. I will let your Lordships into a secret. This was dug out 655 of that source of ancient legislation, the 1887 Act; but it does not apply to the present day. Government Departments, Members of the Royal Family and the Crown are protected, but nobody else is protected at all. The National Coal Board is not. Under this clause I commit no offence if I say falsely that I supply beer to the National Coal Board or, indeed, to the House of Lords. But if I say falsely that I supply it to the Royal Mint, then I commit an offence.
It is very interesting that the draftsman of this Bill, as distinct from the 1966 Bill, has included local authorities. It seems to me extremely odd that you can say falsely that you supply something to the National Coal Board, or can say that it is approved by that Board, without committing an offence but if you say, falsely, that you supply something to the Little Mudcombe Parish Council, or say that it is approved by that body, then you do commit an offence. There is surely something very queer about that. This provision ought to be spread to cover any person, whether existent or not, because you ought not to be able to say that you have the approval of somebody who is dead when you never have had it, or to say that you have the approval of some imaginary person or body. The only reason why such persons were not included is because the clause was copied slavishly from the 1887 Act, and I hope, now that 80 years have gone by, that something better can be done. A very curious thing is that, if the clause is left as it is, the Post Office will be covered until it becomes a public Corporation under the Bill which was mentioned in the gracious Speech; but then it will suddenly lose all its protection. That also seems to me a very odd situation.
The noble Lord, Lord Sainsbury, said that an honest trader has nothing to fear under the Merchandise Marks Act, but I think he has. One of the most striking examples is a case brought under the 1953 Merchandise Marks Act against the seller of homeopathic medicines for cows, when it was alleged that he had applied to the medicine a false trade description as to its properties. That developed into a full-scale battle between homeopathy and allopathy, and two doctors gave evidence. Of course, the case finished with no conviction being secured, because there was 656 a complete conflict of evidence. But that Act was something which was definitely to be feared; and those who were prosecuted certainly feared it very greatly.
As the time is getting late, my Lords, I must curtail what I was going to say, but I want to refer to the fact that when the noble Lord, Lord Mitchison (I see that he is not in his place), was in charge of the last Bill, he criticised the fact that the Committee stage took too long. Indeed, I think that the noble Lord, Lord Airedale, suggested that we plunged in a bit too deep. But there are matters in this Bill which are extremely important, and it is the first comprehensive Bill that we have had for 80 years. So I think that we shall have to go through it very carefully in Committee, at the cost of wearying the noble Lord in charge. But I wish this Bill a happy passage in Committee, and I hope that it will get on the Statute Book and be a credit to all concerned with its progress through both Houses of Parliament.
§ 5.54 p.m.
§ LORD LEATHERLAND
My Lords, my interest in the question of consumer protection stems from the day, a good many years ago, when I was assistant editor of one of our national morning newspapers. In that capacity I organised, as one of the newspaper's sidelines, what we called "a fair shopping bureau". We had thousands of complaints from our readers about rubbishy goods of one kind and another—furniture, carpets, clothing, electrical appliances, and so on—and I came to the conclusion that further legislation to protect the consumer was certainly necessary. I am of that opinion to-day, and that is why I wholeheartedly support this Bill.
Despite what has been said in some quarters of the House with regard to its Title, I am not ashamed of its Title—the Consumer Protection Bill—for it is precisely to protect the consumer that the Bill is intended. I was especially pleased, of course, to hear that the noble Baroness, Lady Elliot of Harwood, who is Chairman of the Consumer Council, gives this Bill her support. It may be that I do not agree with everything that she and the Consumer Council do, but I certainly recognise the assiduous way she devotes herself to that branch of public service, and her welcome to this Bill is something which I welcome, too.
657 When I first read the Bill, I thought that its aims were so beneficial that I expected our Second Reading to be as calm as a session of transcendental meditation. It has not quite been that. It has been calm, but some fascinating suggestions have been put forward, and of course some hints of fur and feather flying when we ultimately reach the Committee stage. I am not one of those supercilious males who thinks that in matters of shopping our womenfolk are dim-witted. Naïve they may sometimes be, but as a rule they know what they want; and they also know how to set about getting it. All the same, if we are to believe the advertisements which we see on television, while the cat can find its way unerringly to the "best buy" among several brands of cat food, it seems that the majority of our housewives cannot tell Stork from butter.
But in order to get the right atmosphere in the House, so far as what I want to say is concerned, I think I ought to say that I believe the majority of our manufacturers and merchants are honest men; that they produce products which are of high quality, some of the best in the world, and, incidentally, some of them the cheapest in Western countries. But there are some gentlemen, whose consciences are perhaps a little under-nourished, who know every slick trick in the trade, and it is against their activities that the housewife really needs protection. And so does the honest trader. I think that this Bill, combined with the regulations with regard to the labelling of food which have been issued in the last few days and which are now being studied by the trade associations concerned, is likely to give a very great measure of protection to the ordinary shopper, whether she be housewife or otherwise. I have to confess that I myself know very little about shopping. I certainly am not an expert. If I am sent out to buy a pair of kippers, it is just as likely that I shall come back with a Dover sole or a couple of salmon steaks. But it is not for part-time shoppers like myself that this Bill is designed. This Bill is designed for the ordinary housewives, the women who spend over £6,000 million a year on food—half of it, incidentally, either packed or processed food.
Before I look at some of the details of the Bill I should like to make a general 658 comment on one matter which is hardly covered by it. I feel that we waste an enormous amount of money by the extravagant method of packing both our foodstuffs and our other merchandise—what I believe is known to-day, in our quest for brevity, as "packaging". I think there is an unnecessary amount of money spent on that particular process. Of course, nobody wants to see in the shops packages which are dowdy, unattractive and unhygienic. Nobody wants to go back to the old days when raw food was exhibited, liable to be contaminated by animals, by dust, or by dirt. But I think that if the food producers and the manufacturers of other merchandise could get together, and agree among themselves on a more economical form of packing, it would enable the cost of living to be reduced to a considerable extent.
Another point I feel rather strongly about, perhaps in my crankish way, my Lords, is that a lot of housewives would like prices to be marked in plain figures. Anyhow, I think they can be persuaded to adopt that point of view. As it is now, they are confronted with something labelled, "3d. off"; they are confronted with something else with which there is being given away a free mug or a free basin; or they are told when they buy another product that in exchange for a certain number of coupons they can get table knives at specially cheap prices. I think all this is masking and disguising the real basis of our pricing system. Even some of our shopkeepers are employing it as a kind of currency. I went into a chemist's shop a few weeks ago and I said, "I want a tube of toothpaste". "Yes", said the assistant, "this one is 5d, off, that one is 3d. off". I replied in my simple way, "How many pennies do I have to give you for it?", and she said, "This one is 2s. 6d. with 5d. off, that one is 2s. 1d. with 3d off". I took the 2s. 1d. tube. She said to me, "Ah! You had to pay less for that one, but if you had had the other one you would have saved more".
I wish that we could get down to a straightforward system of pricing our goods. In the old days, before hire-purchase became respectable and middle-class, any furniture that was bought on the deferred payments system was delivered in plain vans. So, of course, if 659 you saw a plain van coming down your street you knew the neighbours had not paid for the furniture. And even today we can answer advertisements for intellectual and erudite books which are guaranteed to be sent under plain cover. So why, can we not have some plain figures when we are talking about prices of everyday commodities that the housewife has to buy?
There is one thing which I am not quite sure is covered by Clause 11. We know that from time to time a manufacturer will reduce the weight of the contents of a particular package, while keeping the price unchanged. On the other hand, I must be fair and say that on some occasions he increases the weight of the contents of his package; but on that latter occasion he blows his trumpet so loudly that we cannot fail to hear. Yet when he reduces the quantity of the material in the package we learn very little about it. In those cases I should like to see him required to put on a label, or to overprint in some way, indicating that the quantity has been reduced. I know that many foods and other commodities have to bear on the label an indication of the net weight, but that is usually found in very small print and it does not draw attention to the fact that the current net weight is something less than it was a few weeks previously.
But whatever gaps there may be in Clause 11 of the Bill, I feel that it is going to be extremely helpful to the shopper. I certainly think that it will call for a higher standard of ethics among the managers of big stores which run summer and winter sales from time to time. I do not believe that all our lady friends are deceived by a price-tag which says that a coat which was £50 is now £30—though judging from the football scrums in which they take part on those occasions, some of them probably do. I do not want to be misunderstood. I am not against these bargain sales. I think they do a lot of good. They are a lot of fun; and even if the tickets were marked in honest terms I think a good many bargains might still be secured.
Now I should like to look at Clause 4. That is the clause which says that an oral statement may be regarded as a trade description within the meaning of the Act. This is going to be extremely controversial. I know that the word 660 "may" in that particular provision will probably dilute it, and will probably mean that none but the most blatant case of deception will ever be taken to court. But despite what some of my noble friends have said, I still feel that that particular provision ought to remain in the Bill, because if it does not some very quick-witted people will be able to ride rough-shod over many of its provisions.
There is another thing, my Lords, about which I think we shall have to be rather careful; that is, that what are called "trade descriptions" must be in terms which are meaningful not only to the trade expert concerned but also to the ordinary shopper. I know that in Clause 14 there is a statement to the effect that a trade description must have a "definite meaning", but I think that refers only to services and to accommodation, and does not refer to merchandise or foodstuffs as a whole.
I mention the importance of the trade description being meaningful to the ordinary purchaser because many years ago, when I was much younger and even more innocent than I am to-day, I was a victim because I did not understand a certain very technical trade term that was used in connection with a transaction in which I took part. I had gone to a horsecoper in our neighbouring market town to buy a spare hunter. We exchanged the usual questions and answers; there had been the usual patter—"It has been ridden by an officer of the Household Cavalry", and so on—and then I said to him, "Has this horse got any peculiarities which I, as its future rider, ought to know?" "No", he said, "though it does lift its leg a bit". It was not until I got home and put the horse in the stable that I realised that "lifting its leg" really meant kicking out with its hind-legs with all the force of a steam-hammer. So we must really have meaningful terms which are comprehensible by the ordinary buyer when we talk about the phraseology of these trade descriptions.
The section of the Bill dealing with advertisements is one in which I might have had an interest in my old, newspaper days, but which I leave to experts now currently engaged in that industry, such as my noble friend Lord Strabolgi. I would merely say this: that I hope there 661 will not be interference with the advertiseing industry and with the Press merely for the sake of interference. It is a fact that most newspapers now give a guarantee that if any reader suffers by answering an advertisement which is not true in all the particulars it advertises, then the newspaper will see that that person is properly recompensed. Of course, it may be desirable to have this power in reserve—and I emphasise the words, "in reserve"—to use against anybody who blatantly outrages the canons of decent trading; but I hope that there will not be any undue interference with the newspapers, which are already trying to raise the standard of advertising ethics on their own account.
I am not quite so sure about television advertising. The noble Lord, Lord Hill of Luton, has gone, but I sometimes wonder about that cat which goes straight to that bowl of meat. I also sometimes wonder whether the two sheets or the two shirts are exactly of the same texture. I think many other people would like to know that, too. Because I have no proof, I will not pursue it any further, but I wish we could be enlightened.
I am very pleased indeed that the enforcement of this Bill is to be handed to the weights and measures inspectors. These are highly intelligent, very well-trained people of absolute integrity. When we discussed consumer protection in a general way about two years ago I suggested that any consumer protection legislation ought to be put into the hands of the weights and measures inspectors to administer. I called attention then to the new régime set up at Sheffield where a Consumer Protection Department has been established under the leadership of the chief weights and measures inspector. That department is doing very well, and I hope it will be followed by others in other parts of the country. That merely confirms me in my view that the weights and measures inspectors are the people to deal with legislation of this kind. Let me tell the noble Baroness, Lady Elliot of Harwood, that I am not trying to detract in any way from the very valuable services rendered by the Citizens' Advice Bureaux.
There is, however, one little administrative snag that I see in connection with this particular clause of the Bill. It is usual—and I will omit county boroughs 662 for the moment—for the weights and measures inspector to be an officer of the county council. He takes the whole county in his stride. Yet—
§ THE MINISTER OF STATE, BOARD OF TRADE (LORD BROWN)
My Lords, may I interrupt the noble Lord? I am anxious not to let him build up a big case on a slight misunderstanding. The power of enforcement is not given to the weights and measures inspectors; it is given to the local authorities who will, in very many cases, employ weights and measures inspectors. I hope that the noble Lord will not mind my interruption.
§ LORD LEATHERLAND
It was not very helpful but, nevertheless, I am grateful. The local authority of course will act in pursuance of a report which will be submitted by the weights and measures inspector; so, although there may be a technical difference between my noble friend and myself, although he may be technically more accurate than I am in connection with this point, the fact remains that the weights and measures inspector will be the man who does this job.
I mention this because I wish to point out that the weights and measures inspector is usually a county officer covering the whole county with his activities; yet the Food and Drugs Act is somewhat fragmented in its administration and is often administered by urban district councils and small borough councils. You might get the position, under the Bill as it now stands, where the county weights and measures inspector and the urban district food and drugs inspector go into the same shop and examine and test the same item of merchandise. That might be awkward for everybody concerned. But if my noble friend agrees that that is a possibility, and an anomalous one, it is easy to put the matter right by a small Amendment at Committee stage.
My Lords, there are a number of other small technical details which it is hardly right for me to deal with in a Second Reading debate but which, if my noble friend agrees, I shall be pleased to send him in written form so that the experts of the Department can look into them before Committee stage. There is one particularly in Clause 6 where the expression, "offer for sale" is used. Yet in every other clause of the Bill where this 663 same kind of transaction is envisaged, the term is, "offer to supply". If the two things mean the same I think it would be for the convenience of everybody—lawyers included—if they were worded in the same way. This is not just a matter of semantics. It could be rather important in these days of self-service shops, because under the Pharmacy and Poisons Act there have been quite a number of decided cases where it has been held that articles shown in the window or shown on the shelves are not being "offered for sale".
Another small detail which we can think about in Committee concerns the lengthening of the period for consideration of prosecution from 14 days to 28 days. I should like to see the 14 days restored. We are not talking only about 28 days; we are talking about the time in which the inspector goes to the shop, takes his sample, takes it away for analysis or weighing or some other process; we are talking about the time he takes in writing his report, submitting it to the next meeting of his committee and ultimately getting authority to serve the summons—and then the 28 days. And, on top of all that, we have to bear in mind that the magistrates' courts are now so overwhelmed with work that summonses entered sometimes have to wait months until they are heard. I think it is unfair to any defendant to be told he has to wait several months—during which time his memory may conceivably fail him, or the picture of the incident may become blurred in his mind—before he has the chance to answer the charge against him.
Another thing which I rather regret is that ballast for construction purposes is being omitted from the Bill. I shall be told that short weight in delivering ballast is dealt with under the Weights and Measures Act. I see my noble friend confirms this. Nevertheless, where we have huge quantities of short-weight ballast concerned it might be more appropriate, and preferable, that the offence be dealt with under this Bill where the penalties provided are very much bigger.
My Lords, that is all I really want to say. I welcome this Bill. I welcome it wholeheartedly and in no niggardly spirit. I hope that a few Amendments may be made; but, rather than see us 664 take an interminable time over the Amendments, I would prefer it to go through in its virgin state; because I think it is an important measure. The traders and manufacturers of Britain have a very high reputation in the eyes of the world for the standard of their trading ethics. This Bill will help to raise that standard a little higher. For that reason I support it warmly.
§ 6.17 p.m.
§ LORD BROWN
My Lords, I knew that we should be hearing a constructive and lively debate this afternoon and I think we have not been disappointed. I should have liked—and I fully intended to try—to make my closing speech a short one; but whether I shall be able to do so is doubtful in view of the number of notes I have collected on points which have been made by speakers in the debate. I noted the views of the noble Lord, Lord Cawley, about the drafting of this Bill. I am not really competent to judge whether, from the legal and technical point of view, the drafting is good or bad; but I should like to emphasise that, for once, I was able to read the entire Bill and—so I thought—I understood it thoroughly. From that point of view I think its present form of drafting, although it may be possibly a nightmare to lawyers, will be something of a relief (when it is compared to some Bills which have been passed through Parliament) to the traders that it affects.
From the point of view of emphasis, I should like to return to one point to which my noble friend referred in his opening speech, and that is the proposal to repeal the Merchandise Marks Act 1926 with the rest of the merchandise marks legislation and assimilate origin marking requirements with the other labelling requirements for which the Bill provides powers. This is logical. It will also help—and I want to emphasise this—to bring our origin marking legislation up-to-date and remove the slur of protectionism which is levelled against it. Under the Bill, except as otherwise provided, the requirements to mark goods with their origin are to apply not only to imported goods but to those produced in the United Kingdom. This should be a matter of satisfaction to all our trading partners to whom we have obligations in operating such regulations in a way 665 which affords non-tariff protection to domestic producers.
The noble Lord, Lord Drumalbyn, started his speech with what I thought was a very welcome reference to the fact that he desired to see a combination of voluntary control and legislative control exercised. So far as the Government are concerned, it is very much their wish to introduce legislation which meets with the approval of consumer councils, advertising and voluntary associations, and other bodies which have proved such a help in this field prior to this proposed legislation. There was a considerable debate in which the noble Lord, Lord Airedale, the noble Lord, Lord Drumalbyn, the noble Lord, Lord Strabolgi, and others took part with regard to the Title. It is not for me to commit the Government to a change of Title, and I am not doing so when I say that the comments made about the present Title struck a chord of deep sympathy in me. That is not a committal to alter it. I do not know what I am laying myself in for by saying that, but I will do my best, because I was attracted by the ideas put forward, particularly by the noble Lord, Lord Airedale, of a trade descriptions Bill.
My Lords, I am dealing with points made, not in the order in which they were made—in fact, not in any particular order, because I have not had time to arrange them, and perhaps noble Lords will excuse me for that. I took note of the comments of the noble Baroness, Lady Burton of Coventry, about the feedback of information from the Citizens' Advice Bureaux. The noble Baroness went on to refer to the issue of grants to the Bureaux and I have to say at once that I am quite unprepared to comment on that issue in this debate; it will have to be taken up separately. The noble Lord, Lord Airedale, drew attention to a very important point in connection with Clause 6. I will undertake to have this looked at very carefully, because he drew attention to the situation of a shopkeeper who had in his store a quantity of goods which he had not satisfied himself were fit for sale. An inspector might deem them offered for sale because they were in the store, and therefore the shopkeeper might be treated as a criminal. I am not satisfied that the noble Lord's 666 interpretation of Clause 6 is a fair one, because it does say:A person exposing goods for sale"—and I am sure that the noble Lord will not object to that—or having goods in his possession for sale …The shopkeeper might not have deemed them ready for sale if he had not inspected them. But I undertake to have the point looked at, because it seems possibly to be a very important one.
The noble Baroness, Lady Burton—I say this with hesitation—raised a number of points which were of very great interest, and I am sure that the whole House recognises the prolonged and sincere interest of the noble Baroness in consumer protection. But a number of the points do not, I think, come within the ambit of this Bill or our discussion. I refer to the grading of merchandise. In so far as grading exists, and persons purport to suggest that their goods are in accordance with some particular grade when they are not, the Bill will catch them; but in so far as there is a suggestion that the Bill should seek to give powers to introduce grading, that is outside the Long Title of the Bill.
In the same way the noble Baroness made a plea for me to give a report on the progress of investigations into the laws of contract which are going on now. I am very sorry to say that I am not in a position to do so. I do not know, as I stand here, when the report is due for publication and I cannot respond to her invitation. I hope that on another occasion the noble Baroness will be able to obtain the information which she requires. The noble Lord, Lord Auckland, raised the question of eliminating the danger to the consumer over the sale of dangerous goods. The Consumer Protection Act 1961 is the Act which deals with that. The Bill with which we are now dealing is concerned with misdescription and not with the protection of consumers in respect of dangerous goods.
The noble Baroness, Lady Burton of Coventry, raised the whole question of the cost of court proceedings. We have heard about the need for simple, cheap and informal methods of getting redress for a consumer who has been sold faulty goods. I do not want to go into the merits of this proposal or in any way to imply that it is unworkable—I do not 667 know—but I think that it is outside the scope of this Bill and the aspects of consumer protection which we are discussing this afternoon. We are concerned with the use of the criminal law to protect consumers against deceptive practices, not with the provision of new procedures to procure for the consumer civil remedies for his disappointments. The only proceedings to which this Bill can give rise are criminal proceedings. It is right that these should be handled by the established courts. I do not believe that the expense of bringing a prosecution will deter local authorities in cases where a prosecution is clearly justified. The new arrangements for local authority enforcement should — and I ask the noble Lady to note this—reduce the need for private prosecutions by such bodies as the Retail Trade Standards Association, whose expenditure on prosecutions was raised as a point in the discussion.
Now may I come to some of the remarks of the noble Baroness, Lady Elliot of Harwood, about false trade descriptions? I think she made clear that she does not agree with the attempt to establish a precise yardstick. I must say that this contrasts with what I understood the noble Lord, Lord Drumalbyn, to suggest, that either a thing is illegal or it is not. I think that these are the two boundaries of the debate: those who seek to have something which is so imprecise that we are quite certain that we can catch anybody who is a criminal, and, on the other hand, a definition of such precision that we avoid catching anybody who is not a criminal.
The noble Baroness, Lady Elliot of Harwood, raised the question of railway lost property. I cannot comment on all the examples she gave, but my advice (this was an example which has already been raised in the drafting of this Bill) is to the effect that a person or persons advertising goods as being railway lost property, when in fact they are not, would be caught by the provisions of this Bill, and likewise many other cases. I think that we have to leave to the Committee stage this whole question of the tussle between those who want more definition and those who want less. In this Bill the Government have provided a halfway path between the two, and it seems to me 668 that that perhaps is the best course to take.
The noble Baroness, Lady Elliot of Harwood, again raised the question of the amendment to the definition "to a material degree". I am sure that this will be debated at great length in the Committee stage. This phrase is a reference to the relationship between the goods themselves and a description of the goods. It is not an attempt to protect the consumer directly, I suggest, but an attempt to protect the consumer indirectly by trying to ensure that a description matches the goods supplied or put on offer. To this extent I would defend quite strongly the term "material degree", although we may, as I suggest, leave that for the Committee stage. The noble Lord, Lord Cawley, raised a point which concerns me because he drew attention to the fact that an original clause—I cannot remember the clause he quoted—which appeared in the 1966 Bill seemed to have disappeared with the result, as he saw it, that the Board of Trade would no longer be under the necessity of consulting the trade in moving towards a definition.
§ LORD BROWN
My Lords, I am very glad to hear that someone has reassured the noble Lord, Lord Cawley, as I was certain that he was wrong but I should not have been able to tell him the clause which covered the point.
§ LORD BROWN
I thank the noble Lord; I could not find it.
The noble Lord, Lord Drumalbyn, has raised a substantial issue in the sensible use of order-making powers. He suggested that some of the powers might be used to specify unreasonable requirements. These powers have certainly been drawn widely to cover many needs which may conceivably arise during the lifetime of this legislation; but, equally, we have been careful to draw them so that they can be used with the necessary degree of flexibility. If we were to require information to be given in an advertisement for a certain class of goods, we should not require it to be given in every form of advertisement, or in the same manner or to the same 669 extent in different forms of advertisement. What might reasonably be satisfactory in a large advertisement in a newspaper might be wholly inacceptable in a brief television flash. Of course we should expect a common-sense approach to be taken where such standards were appropriate. Certainly we shall not use these powers lightly or frivolously.
Your Lordships will know that the Board can use these powers only after adequate consultation with the interested parties. And we need to draw on the experience of others in drawing up regulations. I hope and believe that your Lordships will find this assurance, that the proposed powers will be sensibly used, sufficient. To some extent we have to wait and see, because this Bill is of an exploratory nature, as I think we all recognise.
Many speakers have referred to the question of oral misdescription and referred to the perils which lie in our path. I think that I should be frank about this. We have a serious choice to make in drawing a line between descriptions thought to be false without power to do anything about them and tackling this extremely difficult issue in legislation, knowing that prosecution might in many cases be difficult. We have to choose between some degree of imprecision on this matter or nothing at all.
My noble friend Lord Sainsbury asked how many cases under the Food and Drugs Act had been brought before the courts last year and prosecuted successfully. I am sorry, but I do not know: this type of prosecution is carried out locally. However, I can obtain the answer, though it will take some time, and will send it to my noble friend in writing. My noble friend also referred to the need for more inspectors of weights and measures. I would repeat the point I made in an interruption when my noble friend Lord Leatherland was speaking. Responsibility for the enforcement of this new legislation will rest on the local authorities, who will have to rely largely on the weights and measures inspectors to perform these tasks for them. But skilled and qualified weights and measures inspectors are rare birds, and the difficulty of increasing, their number is their rarity. So long as the burden of responsibility rests on local authorities, it would 670 seem possible that they could use on enforcement procedures competent people who need not necessarily have the special skill embodied in the weights and measures inspector. This may help the situation.
I come next to the question of who is the advertiser. I think that the questions asked are over-simplified. The question of who is the advertiser can be decided precisely with reference to the advertisement. It does not mean that I am being imprecise if I give an answer of this sort. The advertiser may be the manufacturer, who has control of the advertisement and insists that what he has written in the way of copy should appear in the newspaper. He is clearly the responsible person, the advertiser.
§ LORD DRUMALBYN
My Lords, I think that the noble Lord is referring to what the noble Lord, Lord Strabolgi, was saying. The question here is, who is "any person who publishes"? Is the noble Lord equating the advertiser with "any person who publishes."
§ LORD BROWN
My Lords, I answer that direct question with some hesitation. I am not sufficiently familiar with the Bill to distinguish between an advertiser and a person who publishes. If I proceed with what I have to say, I may clear up the issue. If the matter is not clear we may look at this point again on Committee stage.
The "advertiser" may be an advertising agent who has taken over total responsibility from the manufacturer for producing the copy, without referring it back to the manufacturer, and getting it into the newspaper. Or it may be the newspaper. Orders issued by the Board of Trade may insist, when certain goods are advertised, that certain statements about these goods must appear in newspaper advertisements. The newspaper will know the law in that respect, and will have the responsibility of exercising some supervision over all advertisements in the light of these orders from the Board of Trade. If we cannot say precisely whether the "advertiser" is the manufacturer, the advertising agent or the newspaper or magazine owner, that does not mean to say that the situation is indistinct. It means that we can decide with precision in the circumstances of 671 every particular case, which I think, with respect, is fair enough.
§ BARONESS BURTON OF COVENTRY
My Lords, I have been listening carefully to this point, but I am completely in a fog, as bad a fog as when I raised it before. We have just been told that it could be any one of four persons. Does my noble friend not think that on Committee stage he could perhaps give us a more definite answer?
§ LORD BROWN
My Lords, I am extremely sorry. I think that I have made an extremely clear statement. But I will leave the matter as it is, because I cannot be clearer than I have already been. I am sorry to have to leave it like this.
§ LORD STRABOLGI
My Lords, perhaps I may be able to help the noble Lord by putting it this way. Is he trying to limit the culpability to the actual section where it occurs? I can see the point he is trying to make, about the manufacturer who does his own advertising and the agency does not come into the question. Are the Government thinking more in terms of libel law, where everybody involved might be culpable and at risk?
§ LORD BROWN
My Lords, I do not think that we can go on with this discussion, otherwise I shall never finish to-night. What I am trying to point out is that the "advertiser", or the person who publishes, is whoever is responsible for the content of the advertisement. It is the content with which we are concerned. The matter is quite clear to me, and I am somewhat surprised that I am not getting it across with the clarity that exists in my own mind. Perhaps I have not sufficiently grasped the implications of the question to enable me to answer it in its entirety. But I suggest that we should raise this point again on Committee stage.
The noble Lord, Lord Strabolgi, asked about information in advertisements and specifying what is to be included. We have no immediate proposals. We are clear about what we want to do but, to give a signal example, we may require a mail order advertisement of a sweater to include the same details about its fibre content as the goods themselves have to bear because of a Clause 8 Order. In other words, you may find that many 672 of the orders with regard to the insertions of advertisements are linked with the other orders about the marking of goods. There would seem to be sense in taking powers that if you insist on the marking of goods you should also insist that the advertisements offering them for sale contain some reference to the conditions attached to the goods themselves.
The noble Lord, Lord Cawley, raised the question on Clause 12 of the approval of Royalty falsely claimed, and pointed to the inclusion of local authorities and so on. They are included on the supplication of certain local authorities. I take serious note of the comments he has made, and we shall have to consider them. I am certainly impressed by the point. The noble Lord, Lord Drumalbyn, and my noble friends, Lady Burton of Coventry and Lord Sainsbury, all commented on the question of comparative prices. I do not think there has been any really serious criticism of the principle underlying our proposal that changes in the prices should be restrained. Such doubts as have been expressed have been about its formulation and the possibility of prosecuting under certain conditions. I can assure your Lordships that it is not easy to come up with a perfect formulation which catches the kind of mis-statements which we wish to restrain in terms which are readily understandable and applicable by those who have to observe and enforce those requirements. We have done our best, but I can assure your Lordships that if any noble Lord comes forward on the Committee stage with something better, our minds will not be closed to the possibility of improvement.
The noble Lord, Lord Leatherland, made a point about the practice of reducing the price from the previous price, quite honestly, but also reducing the quantity inside the packet. It seems to me clear that if the quantity has gone down commensurately with the price, and the claim is made that the price has been reduced, such practices would be caught by the legislation.
§ LORD LEATHERLAND
Let us get this clear, for the Record. I think I referred to cases where the price had been retained at the same figure but the quantity in the packet had gone down.
§ LORD BROWN
Then I am afraid that I misunderstood the point the noble Lord was making. Nevertheless, the point that I have made may be useful and right, although it is not in answer to the question asked. The noble Lord, Lord Drumalbyn, has raised the question of the apparent exclusion from the Bill of express third-party defence. We are really omitting only the third party procedure contained in the last Bill: we are omitting the procedure, but not the defence. The defendant who can satisfy the requirement of an express third party defence could, on the same facts, take advantage of the same general defence certificate provided in Clause 23. An express defence is, therefore, superfluous. I would also point out that in Clause 22 we have retained a by-passing procedure whereby a third party whose act causes the committing of an offence by somebody else can be proceeded against for the offence committed by that other person. All that has disappeared is the special procedure previously envisaged in Clause 23(2), which your Lordships considered last year.
I would remind your Lordships that this Bill, unlike other legislation in which a similar procedure is specified, provides for proceedings on indictment, and not just summary proceedings. The third party defence procedure—and I mean the third party defence procedure; not the third party defence—has been dropped because we now feel that there might be serious and practical difficulties in applying it in the very different circumstances of proceedings on indictment. The disappearance of Clause 24 of the old Bill is, therefore, consequential. I hope that the noble Lord is reassured on that. I think that for defendants it has got rid of a tiresome procedure, and it will make their position simpler than it would have been under the 1966 Bill.
The noble Lord, Lord Drumalbyn, raised the question of the possibly sweeping nature of the powers under the Bill to inspect and confiscate. The details of the clauses which cover this matter can, I think, better be dissected on a later occasion, but I can assure your Lordships that in the light of past experience we believe that all these powers are needed if the facts necessary to the proper enforcement of the Bill are to be elicited. 674 It is very much the same situation that we found ourselves in on some of the powers required by the Board of Trade under the Companies Act, and it is only for the purposes of enforcing the Bill that these powers can be used, with due safeguards later in the clause against improper disclosure of information obtained by their use.
There is one further point with reference to the noble Lord, Lord Drumalbyn. The Bill calls for forfeiture of goods which have actually been used only to prove an infringement of the law. So that the idea that a court, having found an infringement of the law on the basis of a few samples, can then order forfeiture of the whole of the contents of the warehouse, worth £100,000, is not in accordance with the Bill.
Many noble Lords have raised the question of the danger of dual prosecutions under these clauses. There may be a danger that this can happen, but I think what has been overlooked by many who have drawn attention to the point is the fact that local authorities are responsible for giving 28 days' notice to the Board of Trade before proceedings of prosecution so that prosecutions can be co-ordinated. It must be clear that the Board of Trade can themselves in each case prosecute, if they so choose. It is true that they cannot veto a prosecution by a local authority. But it seems to me—and I am advised in this way—that the possibility of stupid dual or repetitive prosecutions in the country under the clauses as they are written is virtually nil. We should have to have a recalcitrant local authority insisting on their rights of raising a prosecution—and it would be an expensive matter—behaving quite irresponsibly, for this to happen. I hope that this comment will be sufficient reassurance to noble Lords.
The noble Lord, Lord Strabolgi, raised the question of penalties, and I think he deplored the increase of fines from £250 to £400, on the ground that this was a very large figure to levy on a small retailer. The noble Lord may have forgotten that this is a maximum fine. In the second place, we are certainly not always dealing with small retailers. We are sometimes dealing with possibly very powerful gangs of crooks—who knows?—and in the light of this the fine does not appear to us to be unnecessarily large. 675 In the same way, one would refer to the three years that may elapse from the commission of the offence before it is prosecuted. But if one gets hold of a really big piece of cheating, it is surely proper not to allow a serious criminal to escape merely because there has been an unfortunate delay in taking account of his criminal offence. If one considers the possibility of major offences in this, the increase in penalties and the length of time during which a prosecution may take place do not seem to me to be unduly large or lengthy.
The noble Lord, Lord Drumalbyn, has raised the question of who is to prosecute for offences committed overseas. I am not quite sure whether I understood his question. If it is connected with marks of origin, then if the marks are falsely put on overseas, and a foreigner mis-describes them in his own country to our importer, then I do not think we can do anything about it. That offence is committed overseas, and it is up to our importer to make sure what he is buying. But if the goods are delivered in this country wrongly marked as being from one country when they were really from another, or if they are not marked, then it is the job of the Board of Trade to prosecute the offence in this country. If in other respects he offends in mis-description, and so on, then he is in the same position as any British manufacturer or merchant. It may be that I have misunderstood the noble Lord's question in this respect.
The noble Lord, Lord Cawley, raised the question of the clause that deals with accessories in the United Kingdom to offences committed abroad. We shall have to examine this matter. I am always a little afraid of lawyers when they get to work, because they mystify me. It seemed to me, when I read this clause, that it was a thoroughly proper clause; that somebody in this country who was printing whisky labels for Scotch whisky overseas, which were in fact forgeries, saying it had come from Scotland when it was being manufactured in some other country, and sold as Scotch whisky, was accessory to a crime that was very serious indeed, and that if it was known he was doing it he should be prosecuted. I have noted Lord Cawley's point, that 676 this is legal nonsense, although I am not sure whether he used that phrase—
§ LORD CAWLEY
My Lords, I am very glad to hear what this is all about. I was not in any way objecting to the content of this, but I could not quite understand what the meaning of the clause was.
§ LORD BROWN
My Lords, I hesitated to think that it was necessary for me to explain this clause to a lawyer, because I have always assumed that lawyers' wisdom is such that they can get at these things. But if the content of the clause seems to be all right to the noble Lord, then perhaps the necessary attention to drafting which I think he is suspicious of can be dealt with at the Committee stage.
I come now to the last point on which I have notes: the absence of an expense clause. I am glad I have a note on this because it is a difficult point. The noble Lord, Lord Drumalbyn, raised this question, noting the absence of the usual clause enabling any increased expenditure attributable to the Bill to be defrayed out of moneys provided by Parliament. I can assure him that this will not fetter the ability of the Board of Trade to undertake prosecutions if and when this appears desirable. The Board already incur expenditure in enforcing the Merchandise Marks Acts, and it is not to be expected that they will incur any greater expenditure on prosecutions under this legislation.
There was, it is true, an expense clause in the Bill which the House considered last year, but it was there merely to cover the possibility of increased payments from central Government to local government as a result of the latter's increased expenditure on enforcement. We are advised that this cover is no longer necessary in view of the different arrangements which now govern financial support for local authorities. I hope that that explanation has enlightened the noble Lord. I am not quite sure that it has enlightened me, but I will read it later and see whether I really understand it myself. I have detained your Lordships for rather a long time. I have attempted to answer nearly all the questions raised in the debate. I hope I 677 have done so to your Lordships' satisfaction.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.