§ 3.33 p.m.
§ THE MINISTER OF STATE, BOARD OF TRADE (LORD BROWN)
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(Lord Brown.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD DOUGLAS OF BARLOCH in the Chair.]
§ Clause 1:
§ Prohibition of false trade descriptions
§ 1.—(1) Any person who, in the course of a trade or business,—
- (a) applies a false trade description to any goods; or
- (b) supplies or offers to supply any goods to which a false trade description is applied;
LORD AIREDALE moved, in subsection (1)(b), to leave out "or offers to supply" and insert:
offers to supply or has in his possession for supply".
§ The noble Lord said: After a false start last Tuesday evening, we now come to the beginning of what I think promises to be a lengthy Committee stage. Perhaps I could say, by way of introduction, that I feel sure that if the Minister gives to these Amendments the same careful and sympathetic attention that he gave to our criticisms on Second Reading when he made the winding-up speech, the Committee will feel that we have had a very useful and worthwhile Committee stage.
This is an Amendment to Clause 1; but I hope I may have the leave of the Committee to speak at the same time to Amendment No. 11 in my name, which is an Amendment to Clause 6. These two Amendments are completely interlinked. Perhaps also I could take a passing glance, and no more, at Amendment No. 13, which is not in my name, simply to say that if it were to be indicated that Her Majesty's Government might accept Amendment No. 13, that would undoubtedly take a good real of the "fizz"
out of what I propose to say on this Amendment and would enable me to be more brief, although I hope I shall be reasonably brief in any event. Amendment No. 11 is an Amendment to Clause 6, and I quarrel with Clause 6 on two grounds. First, it is a clause in a criminal Bill, creating a criminal offence and doing it in a roundabout way—a way quite contrary to the hopes expressed by the Molony Committee on Consumer Protection, who said that they hoped that any resulting legislation would be drafted in terms as clear and concise as human wit could devise. When you examine Clause 6, which is quite short, you find that it says:
A person … having goods in his possession for sale shall be deemed to offer them for sale …",
and you have to look from that clause back to Clause 1 to find that offering goods for sale with a misdescription amounts to an offence and, therefore, the person who contravenes Clause 6 commits an offence, although Clause 6 itself does not say so.
§ But I have a more substantial reason than that for criticising Clause 6; because in my submission Clause 6, in its present form, can in some cases positively take away an innocent trader's defence to the charge. May I revert to the example I gave on Second Reading? Suppose a greengrocer has in his warehouse a number of crates of oranges which he knows to be wrapped in wrappers which in some way contravene the provisions of this Bill, when it becomes an Act. And suppose, knowing that, he decides he is not going to put the oranges wrapped in that way on sale in the shop but that he is going to rewrap them or remove the wrappers. And, suppose he were to be prosecuted for having those oranges in his possession for sale, in his warehouse. The first thing he would want to say to the court would be; "But I never proposed or intended to offer those goods for sale in my shop until the offending wrappers had been removed." But the moment he started to say that, the court would be liable—to my mind it would be bound—to say to him, "Mr. So-and-So, we cannot hear an argument from you on those lines, because Parliament has expressed its will in Section 6 of the Act, which says that in these circumstances you are deemed to offer these oranges for sale. We therefore cannot hear an 239 argument from you to the contrary." I feel that it is unfair and unsatisfactory to place a trader in that position.
§ There is one advantage in our having been over this course before, two years ago, when we had the ill-fated Consumer Protection Bill which ended with the General Election. One knows from that past experience the kind of fences one is going to be asked to surmount on the present occasion. On that occasion the former Minister, when replying to a similar Amendment, used what I now submit was a very refined argument indeed. He said that the oranges in my example in the warehouse would not be oranges in the trader's possession for sale; that they would not become oranges for sale until he had brought them out of the warehouse and into the shop. I do not know whether that refined argument appeals to the present Minister. If it does, may I remind the noble Lord that a Minister may make refined arguments at the Dispatch Box about what a Bill means, but courts have no power to listen to what a Minister has said or take notice of it. The courts have to consider the wording of an Act. I should have thought that magistrates, looking at the Act and considering my example, would be most likely to come to the conclusion that the oranges, even though they were in the warehouse and still improperly wrapped, were, nevertheless, oranges for sale.
The other fence which I was going to have to leap looked, at first sight, much more formidable. The former Minister said, "I really do not know what all this difficulty is about. The words in Clause 6 have been taken straight from the Act of 1887, which in 80 years has never given rise to any difficulty at all on this point; so what really is the difficulty?". But when you look at the 1887 Act you find that the wording is not the wording of this Bill at all; it is the wording of my Amendment, because the 1887 Act says that
Every person who has in his possession for sale any goods to which a false description is applied "—
et cetera, shall be guilty of an offence. So I am saying that this fence is a fence for Her Majesty's Government to jump, and not for me. I say that if, as the Government so rightly say, the wording
of the 1887 Act has never in 80 years given rise to any difficulty on this point, why are they now proposing to change the wording in this Bill? I hope I have said enough to show that this Amendment is worth while, and indeed necessary, and I beg to move.
Page 1, line 8, leave out ("or offers to supply") and insert ("offers to supply or has in his possession for supply").—(Lord Airedale.)
§ 3.43 p.m.
§ LORD BROWN
The noble Lord, Lord Airedale, has made clear on more than one occasion that he does not like the way in which Clauses 1 and 6 are drafted. The Government are in full sympathy with the noble Lord's object, which is to improve and simplify the drafting of the Bill. We have therefore again considered whether it would make it easier for the reader if Clauses 1(1)(b) and 6 were rearranged as suggested by the noble Lord. We have reached the conclusions that the present scheme of exposition is the better, namely, to state briefly and simply at the outset what are the essential offences and to leave the inevitable definitions and refinements until later. Indeed, I think that the noble Lord himself would accept this in principle, and I am sure he would agree that we could not put the whole of Clauses 2 and 6 into Clause 1.
The essential offences in relation to goods improperly marked is supplying them and offering to supply them. It is true that for the sake of effective enforcement we must also catch the related acts of exposing for supply and having in possession for supply; but these are subsidiary matters which are more suitably dealt with separately in the Bill. The result of the Amendment would be that all the references to offering to supply in other clauses of the Bill would have to be expanded to read, "offer to supply or have in possession for supply", which would mean a great deal of extra words in total. I hope, therefore, that the noble Lord will be willing to withdraw his Amendment.
The noble Lord has also spoken, in support of this Amendment, about his proposed Amendment to Clause 6. Here I am in a little difficulty, as my noble friend Lord Winterbottom is going to answer a number of proposed Amendments to Clause 6 later. Perhaps if I 241 give a brief comment on this point it will satisfy the noble Lord. During the Second Reading debate he criticised Clause 6 on the grounds that it was unjust to make a trader guilty of an offence merely because he had goods bearing a false description in his possession for sale, and the noble Lord has done it again to-day. At col. 610 of the OFFICIAL REPORT for November 14 your Lordships will find an example of the sort of case which the noble Lord had in mind. I will not repeat the details, but I think it fair to say that the noble Lord feared that a trader who had received goods bearing a false trade description and who had taken steps to see that those goods were not put on sale until the marking was put right, was still liable to be convicted of the offence of having these goods in his possession. We are advised that in such a case the trader would not, for the purposes of this Bill, be in possession of the goods for sale.
I know that the noble Lord was not satisfied with that explanation when the matter was discussed in Committee stage on the previous Bill. Since then, however, the meaning of the words "have in possession for sale" as used in the Weights and Measures Act 1963 has been considered by the Divisional Court. The noble Lord may like to refer to the case of Ben Worsley v. Harvey, which is reported in both the Weekly Law Reports and in the All England Reports. I will give the references for the record. They are  2 A.E.R. 507; and  I.W.L.R. 889.
The facts, very briefly, are that a weights and measures inspector found some under-weight loaves in the dispatch room of a bakery. The evidence showed that the owner of the business had taken steps to ensure that the bread in the dispatch room should not be put on sale until it had been checked by the supervisor. The owner of the business was charged before the justices with having under-weight loaves in his possession for sale—an offence under the Weights and Measures Act. He was convicted by the justices, but on appeal the Divisional Court, in an unanimous judgment, held that the goods were not in his possession for sale for the purposes of the Weights and Measures Act. I agree that the circumstances are not quite identical to those 242 outlined by the noble Lord in the case he quoted during the Second Reading debate, and indeed the case he has quoted this afternoon, but I submit that the principle is the same and that we are right in our view that in the case cited by the noble Lord an honest and careful trader has nothing to fear. Therefore I invite the noble Lord to withdraw his Amendment.
I understand that we are now to have the Statement and therefore I beg to move that the House do now resume.
§ Moved accordingly, and, on Question, Motion agreed to.