§ 2.44 p.m.
§ THE MINISTER OF STATE, BOARD OF TRADE (LORD BROWN)
My Lords, I beg to move that this Bill be now read a third time.
§ Moved. That the Bill be now read 3a—(Lord Brown.)
§ On Question., Bill read 3a.
§ Clause 42 [Short title and commencement]:
§ LORD AIREDALE moved, in subsection (1), to leave out "Consumer Protection" and insert "Trade Descriptions". The noble Lord said: My Lords, I beg to move to change the Short Title of this Bill from "Consumer Protection Bill" to "Trade Descriptions Bill". I do not propose to make a long speech about this; I think we have already debated the subject almost ad nauseam. My first reason for disliking the title "Consumer Protection" is that I loathe the word "consumer". To me the word "consumer" conjures up a picture of somebody in a café, sitting in front of a plate of fish and chips. In any event, it is not a particularly meaningful word, because although most of us do not like to think of ourselves principally as being consumers, 914 we are consumers, and so this Bill, if it is a consumer protection Bill, is a Bill for the protection of the whole of society. Of course, the whole of the criminal law, of which this Bill is but a small part, is for the protection of the whole of society. So the title "Consumer Protection" does not get you very far in any event, and it does not tell you what the Bill is about.
§ I thought the purpose of the Short Title of a Bill was to explain as briefly as possible what the Bill was about; and what this Bill is about is trade descriptions. There is no question about that. If it were called the "Trade Description; Bill" nobody would have to look it up in order to discover that it was about trade descriptions; whereas if it is called the "Consumer Protection Bill" nobody" coming upon that title will have the faintest idea, within wide bounds, what the Bill is about. They will have to look it up in order to find out that it is about trade descriptions.
§ A second Amendment is down in the name of the noble Lord, Lord Drumalbyn. I am certainly not going to attack that alternative title, because if my Amendment is not accepted I will certainly support the alternative of using the expression "Consumer Protection (Trade Descriptions)". My criticism of the second Amendment (which nevertheless I shall be pleased to support) is that we do not already have in the field of consumer Protection Acts called the "Consumer Protection (Weights and Measures) Acts"; we do not have Acts called the "Consumer Protection (Food and Drugs) Acts", so why must we have an Act called the "Consumer Protection (Trade Descriptions) Act"? I think we should go on in the same way as we have been going on until now. Let us describe this Bill in its Short Title simply by describing what it is about, and call it the "Trade Descriptions Bill". I beg to move.
Page 23, line 34, leave out ("Consumer Protection") and insert ("Trade Descriptions").—(Lord Airedale.)
§ 2.48 p.m.
§ LORD DRUMALBYN
My Lords, the noble Lord has been good enough to refer to my Amendment, and I take it that it would be the wish of the House 915 that we should discuss these two Amendments together. I should first like to say that we have discussed this Bill throughout in a spirit of compromise. The noble Lord, Lord Brown, has been extremely good in meeting points wherever he could and in amending the Bill to meet points that have been made. We have had only one Division so far, which resulted in a tie, and that was on a comparatively minor drafting point.
It may seem odd to some of your Lordships that we are discussing this point at all. I think there are two reasons. The first is that we have always reached this point at a late hour of the night; and the second is that, to my mind, there is a question of principle—indeed, two questions of principle—involved here. I think there are at least three good reasons why "Consumer Protection" is not a good title. The first is that there already exists an Act of that name, the Act of 1961, and if this Bill were to go through it would have to be called all the time the "Consumer Protection Act 1968", to distinguish it. I do not think that is particularly desirable.
The second reason is that the previous Act, based on the first Molony Report, deals with a particular aspect of protection: that of protection of the person; whereas this Bill, I suppose, deals with protection of the purse of the customer. That being so, I should have thought that it would be desirable at least to differentiate this Act, if not to give it a totally different name. The third point is that this Bill protects not only consumers. It protects any trader—anyone in trade or business—from the actions of a competitor or supplier of his in misleading as to the quality, and so on, of the goods. Therefore, as it protects not only consumers, it seems to be a mistake to call it the Consumer Protection Bill.
The fourth point is that there would be some argument for saying that it would be a good idea to call this the Consumer Protection Bill if it were completely comprehensive, but it is not completely comprehensive. It is true that this Bill is based on the Report of the Molony Committee, which was called the Report of the Committee on Consumer Protection, but it deals with only a part of that Report. If it is to have the title "Consumer Protection Bill", then it should 916 specify that part of the Report with which it is dealing, which is trade descriptions. It has been said that nobody knows what "trade descriptions" means. I should have thought that it was perfectly clear what it means. We all know—and everybody soon will know—that this Bill deals with what is said or written or portrayed about goods and services, and lays down that it should not be false—that is, false to a material degree,—or misleading.
The point that weighs with me most against calling this the Consumer Protection Bill is that it would be most unfortunate if the idea were to be given that this was a protectionist Bill. In another connection the noble Lord said that he wanted to remove the "slur of protectionism". I do not think that this ought to be a protectionist Bill. I take the same view as that taken earlier on by the noble Baroness, Lady Burton, that the time for pure consumer protectionism has passed, and that what we want is consumer education and consumer information. We want a Bill that is fair all round.
There is no doubt in my mind that the psychological effect of calling this the Consumer Protection Bill will be to slant the Bill to influence magistrates and enforcement officers, in favour of the consumer, whereas I firmly believe the Bill should be fair to all.
We have acted in a spirit of compromise throughout the Bill. If the noble Lord is prepared to accept my Amendment, which will faithfully reflect the Molony Report, then I hope that the noble Lord, Lord Airedale, in the same spirit of compromise will agree so that we may avoid a Division. If, on the other hand, the noble Lord is not able to do that, then I, for my part, would support Lord Airedale's Amendment. I realise that the noble Lord's Amendment is not acceptable to all noble Lords, some of whom would be prepared to reach a compromise on this matter. Therefore, if the noble Lord's Amendment were defeated, I hope that the noble Lord would be able to support me and that we should carry the second Amendment.
§ BARONESS BURTON OF COVENTRY
My Lords, I wish that the Government could do something on this particular matter. I feel very strongly about it and 917 I have spoken about it at various stages of the Bill. I am afraid that this is one of those awkward subjects where at one time or other one faces a question of principle. I dislike intensely the term "consumer protection". I hope that we have now reached the stage of discussing these matters round the table with consumers and industry or shopkeepers alike, and not on a basis of the consumers on one side of the table and industry or shopkeepers on the other side. I feel that my noble friend Lord Brown is in a difficult position here. He has had the honesty to go on record in this House as saying that he does not like the present title. I do not think he has committed himself to liking either of the Amendments, but I believe he was not happy about the present title.
We have been told quite often that it is not necessary for anything we send from this House to another place to be in a perfect condition, and I wish that the Government would feel able to accept one of these Amendments. If an amended title goes to another place, their Members can amend it and send it back to us if they so wish. Furthermore, if the title put forward by the noble Lord, Lord Airedale., is not acceptable to the Government, the noble Lord, Lord Drumalbyn, has put forward a compromise and has left in the words "consumer protection", which I dislike as much as he does, and has suggested something else in addition. I very much hope that in this year of 1968 we do not use the phraseology of the 1950s but that we move forward. If the noble Lord could see his way to accept one of these Amendments, it would give satisfaction to the progressive side of the consumer movement in this country.
§ BARONESS GAITSKELL
My Lords, although I must confess I have always regarded this Bill as a consumer protection Bill, and very much of a consumer protection Bill, I still think that the Amendment of the noble Lord, Lord Drumalbyn, is a very good compromise. I myself would support it.
§ LORD DONALDSON OF KINGSBRIDGE
My Lords, in the absence of the noble Baroness, Lady Elliot, and as her designated successor on the Consumer Council, I should like to report that I have consulted my colleagues, with the 918 exception of the noble Baroness, who does not quite agree, and we are content with the Government's chosen title. We take the view that the original 1961 Bill was well entitled and deals with one particular part of consumer protection, and that this Bill is generally entitled and deals with a more general part of consumer protection. We are unable to think that any consumer will be confused in any way at all by this title. We do not feel passionately about it. We do not dislike the name in the title so much as does the noble Lord, Lord Airedale. We do not think that "trade descriptions" is a self-evident phrase. One thing the Bill does not mean is what that title says, which is that it is the description of a trade. On this view we would favour the Government's title, but, as I say, without passion.
§ LORD STRABOLGI
My Lords, I support what my noble friend has said about the title of the Bill, and also what was said by the noble Lord, Lord Drumalbyn, on his Amendment. Of the two Amendments I much prefer that of the noble Lord, Lord Drumalbyn. Indeed, I suggested a compromise on these lines during one of the later stages of the Bill on Report. The advantage of that Amendment is that it retains the words "consumer protection" but includes the words "trade descriptions", for the good reasons put forward by Lord Airedale, and I hope that the Government will accept it. The title of the previous Bill, which came to nothing owing to the General Election, was Protection of Consumers (Trade Descriptions) Bill. The title of this Bill is Consumer Protection Bill only. If it were to become "Consumer Protection (Trade Descriptions) Bill", it would still be shorter by one word than the title of the previous Bill. I think it would also answer the various objections put forward to the words "consumer protection", which do not describe the aims of the Bill adequately and also are rather loaded against the great majority of traders, both retailers and manufacturers, who are honest and who are protected in the Bill as much as is the consumer. I very much hope that the Government will see their way to accept the second of these Amendments.
§ LORD MITCHISON
My Lords, surely it is what is in the Bill that matters, and 919 personally I do not regard this as a question of principle. I do not think it matters two pins.
My Lords, If Clause 11 had stood it would have been possible to call this a Protection Bill. But, as we know, Clause 11 is to be withdrawn, because we have proved conclusively that it cannot possibly work in any guise that any human being has so far managed to suggest. As for the rest of the Bill, it protects the purchaser, the wholesaler and everybody else just as much as the consumer, and therefore I feel certain that my noble friend Lord Drumalbyn has the right sort of Amendment down.
§ 3.1 p.m.
§ LORD BROWN
My Lords, I have a good deal of sympathy with the Amendment moved by the noble Lord, Lord Airedale, as the House already knows. I have some sympathy, though a little less, with the Amendment which the noble Lord, Lord Drumalbyn, will no doubt move in due course of time. But I am in the unfortunate position, as spokesman for the Government, that I am unable to accept either of these Amendments. I must appear to the House to be extremely unaccommodating in saying that, but there it is. It is possible to put up some sort of rough logic in defence of these Amendments, or indeed against these Amendments. Personally, I feel that in the last analysis the matter is one of choice, rather than of logic, and the House knows my own feeling about it.
I feel that, really, we have two courses open to us to-day; and I do not want to take up a great deal more of the time of the House in debating this matter. Either the noble Lord should agree to withdraw his Amendment, which I doubt if he will do, or we should divide on it and possibly send a new title to the other place. Whatever happens, I think it is sound that those who influence my stand in this House should be subject to the arguments which have been put forward here. I do not know what the outcome will be. It might well be that the title of the Bill would be amended in the other place, even if the Amendment were withdrawn here. But, of course, I can give no guarantee at all of that. I shall not try to pursue the argument further. 920 I am sorry to be unaccommodating, but there it is.
§ LORD CONESFORD
My Lords, surely the Minister is going to give us some sort of reason for preferring the one title to the other. I came here with an open mind on this matter. Reasons have been given in favour of the Amendment, and the noble Lord, Lord Mitchison, has said that it does not matter two pins. I dare say that it does not matter very much, but surely the fact that reasons have been given for the Amendment, and no reason, apparently, has been given for abiding by what is in the Bill, would tend to make the House vote against the Government, unless they give some reason in favour of what is in the Bill.
§ LORD BROWN
My Lords, as the noble Lord forces me to my feet again on this Amendment, I can point out that it is indeed a Bill which started with the primary objective of offering protection to the consumer, and, although it is concerned with the matter of trade descriptions and the like, the fundamental purpose of this Bill is in fact to protect the consumer. It is not setting out to enforce on the trader the onerous task of, perhaps, describing his goods differently or conducting his affairs differently merely for the sake of doing so. It is doing all that in the interests of protecting the consumer, and the logic of calling it the Consumer Protection Bill lies in the fact that that is its objective. The noble Lord, Lord Airedale, has argued the logic of calling it the Trade Descriptions Bill on content and not on purpose, and that is the other sort of logic which one can attach.
One is therefore left with a choice as to whether one decides to base the title of the Bill on its content or on its purpose. The Government have thought fit to choose the latter, and the noble Lord has chosen the former. I do not know which is right. I have already expressed my sympathies with the line in which the noble Lord wishes to go, but I am just one single person. But that is the argument here. I am sorry that the noble Lord was disappointed when I did not give this explanation, but as the noble Lord, Lord Mitchison, has said, it is not a matter of enormous importance. I do not want to occupy your Lordships' time any further.
My Lords, I should like to ask the noble and learned Lord on the Woolsack whether he can give us some guidance as to the normal practice. From Bills I have seen passed here, my impression is that they have generally been called after their contents, but I may be wrong. Is a Bill sometimes called after its purpose?
§ THE LORD CHANCELLOR (LORD GARDINER)
My Lords, I am sorry, but I am afraid that is not a question I could answer. It would involve a good deal of research work which I personally have not done.
§ LORD AIREDALE
My Lords, of course I am sorry that the Minister finds that he has to be unaccommodating, but the noble Lord, Lord Brown, on this occasion, as on all occasions through all stages of the Bill in this House, has been unaccommodating in the most charming possible way. To the noble Lord, Lord Donaldson of Kingsbridge, I would only say that when he says that "Consumer Protection" as a title would not confuse
§ consumers, I certainly never suggested that it would do so. What I said was that consumers would not know what the Bill was about without looking it up and reading it, when they would find out that what it was about was, in fact, trade descriptions. That is why I so firmly feel that it is much better to describe, the Bill in its Short Title by its content than by its purpose, which, after all, is the Government's social purpose. The content is surely a much better basis for the Short Title of a Bill.
§ I shall not pursue the matter any further. If I thought I could pick the winner between these two Amendments, I might save time by not dividing the House upon this one. But I feel pretty sure that your Lordships are going to accept one or other, although I do not know which, so the only thing to do is to put the matter to the test.
§ 3.8 p.m.
§ On Question, Whether the said Amendment (No. 1) shall be agreed to?
§ Their Lordships divided: Contents, 58; Not-Contents, 41.921
|Aberdare, D.||Craigavon, V.||Jessel, L. [Teller]|
|Ailwyn, L.||Derby, L.Bp.||MacAndrew, L.|
|Airedale, L. [Teller.]||Derwent, L.||Mansfield, E.|
|Albemarle, E.||Drumalbyn, L.||Milverton, L.|
|Alport, L.||Dundee, E.||Mountevans, L.|
|Amulree, L.||Dundonald, E.||Nugent of Guildford, L.|
|Ashbourne, L.||Effingham, E.||Nunburnholme, L.|
|Asquith of Yarnbury, Bs.||Emmet of Amberley, Bs.||Oakshott, L.|
|Atholl, D.||Falmouth, V.||Ogmore, L.|
|Auckland, L.||Grenfell, L.||Rathcavan, L.|
|Bannerman of Kildonan, L.||Grimston of Westbury, L.||Redmayne, L.|
|Barrington, V.||Hawke, L.||Rowallan, L.|
|Beaumont of Whitley, L.||Headfort, M.||Ruthven of Freeland, Ly.|
|Buckton, L.||Henley, L.||St. Helens, L.|
|Byers, L.||Hives, L.||Sempill, Ly.|
|Cawley, L.||Howard of Glossop, L.||Strange of Knokin, Bs.|
|Coleraine, L.||Iddesleigh, E.||Strathclyde, L.|
|Conesford, L.||Ilford, L.||Vivian, L.|
|Cottesloe, L.||Ironside, L.||Windlesham, L.|
|Addison, V.||Greenway, L.||Plummer, Bs.|
|Beswick, L.||Hankey, L.||Raglan, L.|
|Brown, L.||Henderson, L.||Ritchie-Calder, L.|
|Buckinghamshire, E.||Hill of Wivenhoe, L.||Royle, L.|
|Burden, L.||Hilton of Upton, L. [Teller.]||St. Davids, V.|
|Champion, L.||Hirshfield, L.||Shackleton, L. (L. Privy Seal)|
|Crook, L.||Hunt, L.||Shannon, E.|
|Donaldson of Kingsbridge, L.||Latham, L.||Soper, L.|
|Douglass of Cleveland, L.||Listowel, E.||Sorensen, L. [Teller.]|
|Faringdon, L.||McLeavy, L.||Southwark, L.Bp.|
|Gaitskell, Bs.||Macpherson of Drumochter, L||Strang, L.|
|Gardiner, L. (L. Chancellor.)||Milner of Leeds, L.||Strathcarron, L.|
|Garnsworthy, L.||Mitchison, L.||Summerskill, Bs.|
|Geddes of Epsom, L.||Moyle, L.|
|Resolved in the Affirmative, and Amendment agreed to accordingly.|
§ 3.15 p.m.
§ LORD BROWN
My Lords, I beg to move that this Bill do now pass. In moving this Motion, may I make some comments? Since this Bill was read a second time, your Lordships have spent something like 24 hours discussing it in Committee and on Report. In that time you have made a large number of Amendments, both to the drafting and on points of substance; and it is worth remembering that when this Bill was first presented to this House, in November last year, it already took account of a number of suggestions made during your Lordships' discussion of its predecessor, the Protection of Consumers (Trade Descriptions) Bill, which lapsed in 1966. This Bill has therefore been the subject of long and detailed consideration; and I should like to thank your Lordships, not only for what I consider to have been most valuable and fruitful discussions, but also for the extremely co-operative and constructive spirit in which these debates have been conducted.
Together we have achieved a good deal. The first six clauses have been clarified in several respects. In particular, I hope that no one doubts now that the purpose of Clauses 2 to 6 is to interpret expressions used in the Bill and not to change the meaning of those expressions in other parts of the law. We have extended Clause 12 to false claims that goods or services are of a kind supplied to any person and not just to claims concerning the Royal Family, Government Departments and local authorities. We have taken out the power to order the forfeiture of offending goods proposed for the courts in Clause 17. We have introduced a six-month time limit for the institution of summary prosecutions for oral offences in Clause 18. Clause 20 has been entirely redrafted. The defence in Clause 23, subsection (1), now expressly covers cases where the commission of an offence was due to reliance upon information supplied to the defendant or to the act or default of another person. We have also accepted an Amendment moved by the noble Viscount, Lord Colville of Culross, which will require the giving of notice to the prosecution where it is alleged that the commission of an offence was due to such act or default.
We have redrafted subsection (1) of Clause 27, and have modified some of 924 the powers which it would give to the authorised officer of an enforcement authority. For instance, he could now require the production of books or documents only where he had reasonable cause to suspect that an offence had been committed. The new Clause 35 would provide an exemption from Clauses 1 and 8 of certain market research activities; and Clause 38, subsection (2), would protect all genuine editorial comment published in a wide variety of media. These and other changes made by this House add up to a valuable improvement in the Bill. We think that it was a good Bill when we introduced it, and thanks to your Lordships' help it is certainly now a better one.
I recognise that there are points on which some of your Lordships are still not happy. There are, for example, the fears that have been expressed about the wide scope of the powers sought in Clause 9 to require the inclusion of information about goods in advertisements. We still think that these fears are unjustified, but we have tried to meet them by omitting the power to require instructions to be included in advertisements and by making it clear that the Board of Trade must not make a blanket order covering all descriptions of advertisement in respect of any class of goods. We think it would be wrong to restrict this power any further. My Lords, there is nothing sinister about this. We are simply concerned to be able to protect the consumer as and when the need arises. In preparing for the unpredictable, we have to assume that if an advertisement is an advertisement for the goods which will be supplied to people, then it is an advertisement in which sooner or later we might find it necessary in the interests of consumers to require that certain information should be included. The point of such an order would obviously be to ensure that the consumer was forewarned of some significant fact about the goods which might otherwise not come to his notice before he had committed himself to the purchase of the goods. This is not simply an issue where mail order is involved; in some cases the buyer may have been so conditioned by the advertisement that by the time he goes into the retailer's premises to buy goods of a certain class, he is likely to ask for the particular brand by name, without inspecting the goods closely 925 enough to notice the information printed somewhere on them. Your Lordships may wish that shoppers would not be so impulsive, or that they could be taught not to be so impulsive; just as you would wish that every motorist could be relied upon always to drive carefully and sensibly.
But, my Lords, we have to deal with the shopper as he is, not as we would wish him to be. He takes the advertisement to have disclosed the material facts, and merely asks at the counter for a packet of "Blotto" or a bottle of "Squish". The advertisements that achieve this effect on him will not necessarily have been issued by the retailer, or issued in any particular physical form; nor will they necessarily amount to an "offer to supply", or to an "invitation to treat", or to any other special legal concept of that kind. Nor can it be assumed that it will be only in the case of goods of some particular type or price range that the need arises, or with regard to some particular consideration such as safety. That is why we are convinced that, to deal with the many diffierent circumstances that might arise, it is essential to leave this clause as it stands.
Perhaps I may here return to a question which the noble Lord, Lord Drumalbyn, asked me on Report stage. He asked whether this power would extend to information about the price of goods, or credit or hire-purchase terms or—as the National Board for Prices and Incomes recommended in relation to television rental—total changes over a period of years. I regret that I inadvertently misled the House when I said that I thought it would. For I am advised that there is room for doubt whether Clause 9 as at present drafted would enable us to make an order covering all these matters. We shall, therefore, have to decide in the course of our consideration of the National Board's recommendation whether some further amendment to this clause may be desirable.
The drafting of Clause 11, which deals with false indications as to the price of goods, has given us a lot of trouble. I will not weary your Lordships with another account of the possibilities which we have, one by one, considered and regretfully rejected. As matters now stand we have a clause covering false comparisons with a recommended price, false 926 comparisons with one's own previous price, and false indications that the selling price is less than it really is. The clause deals with these three mischiefs in a perfectly satisfactory way. As far as it goes, it is—with all due respect to the views expressed by the noble Lord, Lord Hawke—a good clause. The objections that have been raised to it are that it does nothing to repress "phoney" recommended prices, and that it does not attempt to deal with false comparisons with other people's prices, or with false statements as to worth or value. There is no disputing that it would be sound if we could add something to the clause to deal with such abuses; the question to which we have as yet found no satisfactory answer is how to devise something which is helpful, fair, and enforceable. As I have assured your Lordships we shall keep on thinking and trying I have already indicated in debate one of the possible avenues of advance which, we are exploring. We do not, however, yet know whether it will be possible to add to Clause 11 in a manner which will both yield further protection to the; consumer and he enforceable.
Finally, some of your Lordships are concerned about the possible consequences of making oral mis-statement an offence. I fully appreciate the sincerity with which noble Lords have argued the difficulties in which shopkeepers might find themselves, and have advanced various proposals for mitigating these problems. But our view is that it is right and proper to make these misstatements an offence, and that as the Bill stands the difficulties will not in practice be anything like as serious as may be theoretically supposed. I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.—(Lord Brown.)
§ 3.26 p.m.
§ LORD DRUMALBYN
My Lords, first I should like to thank the noble Lord for having given a résumé of what we have done in the course of this Bill. I think we can all claim some modest credit for having improved the Bill. The noble Lord, Lord Brown, not only listened to arguments put from both sides of the House, but has taken great trouble to meet them wherever he judged it possible. Indeed, as he has said, he has undertaken, at least on Clause 11, to 927 go on trying to meet them. Although he was able to accept only three Amendments or substance moved from this side of the House, I reckon that he has himself introduced 15 Amendments of substance to meet points from this side, often with support from his own side. I am sure that we are all grateful to him.
As the noble Lord has covered the Bill so fully, I do not want to go over the ground again before we part with it to another place. But there is one aspect of the Bill which I think needs further consideration: that is the enforcement provision in Clause 25. This Bill not only brings the law on trade descriptions up to date; it breaks new ground in extending it to cover misleading indications that might be taken as trade descriptions about goods, and to cover misleading statements about services. In other words, at present the criteria for determining whether a trade description is false are wholly objective, matters of fact ascertained from tests or records. The only subjective element lies in whether they are false to a material extent. In future there will be a further subjective element: whether what is written or said or portrayed is likely to give a misleading impression. In such cases the enforcement authorities will not themselves have been misled. Before bringing a prosecution, they will have to exercise their own subjective judgment whether others are likely to be misled, as well as whether the implication is false to a material degree. It is, therefore, important to know who are to enforce the law and how they are to be trained and equipped to do so.
Who are to enforce the law? Clause 25 says it is to be the local weights and measures authorities within their areas. But whom are the local weights and measures authorities to employ to do this? For my part, I have assumed throughout that they will employ the Weights and Measures Inspectorate; although, in matters involving the whole country or a large part of it, as the noble Lord knows, I think the Molony Report was right to recommend that the Ministry concerned, mainly the Board of Trade, should regard itself as the appropriate prosecuting authority. On Re-commitment, the noble Lord, Lord Brown, said: 928The Government have set out to use the local authorities' weights and measures inspectors; and they believe that this will work."—[OFFICIAL REPORT, 22/1/68, col. 48.]I must ask the noble Lord this question. Has the Board of Trade changed its mind since it submitted its evidence to the Royal Commission on Local Government in England? In paragraph 21 of its evidence the Board of Trade said this:The designation of weights and measures authorities as the authorities charged with the duty of enforcement is not intended to imply that the work should be done by weights and measures inspectors. Indeed, the Board of Trade would hope that the time of qualified inspectors would not be taken up by enforcement duties in the greater part of the field covered by the Bill which would not be of a kind to require such qualifications. It would be for the authorities concerned to decide what staff to employ for the purpose.Surely we must be clear on this point. In the past year we have also had the Mallaby Report on staffing local government which had a lot to say about recruitment and training. There can be no doubt that the officers who are to enforce this Bill will have to be trained, and it is important that they should be properly trained. We cannot entrust powers of entry, inspection, seizure of goods and documents to half-trained or untrained officers. Indeed, my Lords, I know think that the Bill could have been, and could still be, improved by providing for qualification standards. The Mallaby Report observes that the profession of inspectors and weights and measures was onewhich has limited prospects and appears unattractive to good school leavers and graduates.The Inspectorate as a whole was short of qualified staff. In the spring of 1966 the Mallaby Report recorded that there were 43 posts in Greater London alone, out of an establishment of 123, which were vacant, although elsewhere the proportion of vacancies was smaller. Yet there is no suggestion that the Inspectorate is inefficient. It is just, in the view of the Committee, rather unattractive as a profession.
My Lords, it would surely be a great mistake if the local weights and measures authorities were to be left free to lay the responsibility for forcing the provisions in this Bill on whichever branch of their local government services happened to have spare capacity at the time. Surely 929 there should be uniformity in this matter throughout the country. Surely, also, the responsibility for enforcing the wider provisions of this Bill should be laid on the Inspectorate which has already been dealing with trade descriptions. If one reason why a profession is short staffed is that it is relatively unattractive, surely there is a very good chance offered in this Bill of making it more attractive by entrusting to it the wider responsibilities involved and providing a better ladder of promotion and one reaching higher.
A great advantage enjoyed by the Weights and Measures Inspectorate is that of a personal contact. The local inspectors are already in close contact with manufacturers and distributors of goods in their area, though not as yet with suppliers and services. I believe that the success of this measure depends upon personal contact and on the ability to enlist the co-operation and enjoy the confidence of consumers and traders alike. That is why I should like executive authority for enforcement to rest with chief inspectors of weights and measures in England, Scotland and Wales.
Perhaps I may be allowed a personal reference and to say that my work in Government, and elsewhere, has brought me into contact with the Weights and Measures Inspectorate. I have greatly admired the way in which the Inspectorate approached their task under the Weights and Measures Act of 1963. They explained the requirements of the Act to those of their flock who inadvertently infringed them, and for the most part they have brought prosecutions only where they were satisfied that an offence was deliberate, or that there had been irresponsible negligence. This is precisely the approach needed under this Bill—and particularly in that part of the Bill which deals with misleading statements and indications. The Bill does not require proof of intention to mislead, but it is greatly to be hoped that prosecutions will not be brought unless the enforcement authorities are unable to enforce the law without doing so. This is the approach with which weights and measures inspectorate are familiar. At local level they are well fitted to carry it out.
Naturally they will require guidance from the Board of Trade to ensure reasonable uniformity of enforcement. 930 This is one general point with which the noble Lord, Lord Brown, did not deal—the matter of guidance. Is it the intention of the Board of Trade to issue circulars to local weights and measures authorities guidance circulars on how to carry out their functions?
My Lords, in practice, if I am right, prosecutions will be brought only where the law has been deliberately and flagrantly flouted, or where the enforcement authority think an offence has been committed, but the alleged offender disagrees. In such cases the courts must clearly decide what is the law and whether it has been broken.
Of course, not all weights and measures inspectors are equally endowed with tact and common sense. Occasionally somebody may be, as the noble Lord, Lord Brown, put it, "over-zealous". But, by and large, they are good judges of men and succeed in keeping a sense of proportion. I suggest that the enforcement authority must be, and must be known to be, completely fair and impartial, and should not be too closely identified with either traders or consumers. This again is a good reason for using the weights and measures inspectors. Distributors and manufacturers may sometimes feel that they are harried by the Inspectorate, but I have been impressed by the realisation of the Inspectorate that they are enforcing the law just as much in the interests of the honest trader as in the interests of the honest consumer. They are there to see fair play for all. I hope that the noble Lord will be able to give me some information about enforcement.
There is one other general point that I should like briefly to mention: it is a point with which I am intimately concerned. I know that, like the Molony Committee, the noble Lord wants to see the voluntary system of control in advertising playing its full part. Certainly it would be a long step backwards if the voluntary system, which has grown in influence and effectiveness in the past six years, were to be allowed, or indeed compelled, to wither away as a result of this Bill. That is certainly not a necessary result; but it is a real danger unless the authorities, at both local and central level, are as willing to work with the voluntary system as I may say the voluntary system is willing to work with them. There are many aspects of advertising in which control is exercised voluntarily and where 931 it would be quite impossible to exercise effective control under our present legal system. That side of voluntary control could scarcely survive if the other side were undermined. By "the other side" I mean the side which does a great deal to ensure that advertisements likely to infringe the law do not appear, and that, if any do, they are amended or withdrawn as soon as possible.
My Lords, I hope very much, therefore, that before bringing prosecutions for offences in advertisements both the local and the control authorities will inquire what steps, if any, have already been taken under the voluntary system. I should like to make it clear that I am not saying that no prosecutions should ever be brought where the voluntary system has already succeeded in having advertisements amended or withdrawn. I suggest that, if we are to get the best results for the public, the closest understanding and co-operation between the statutory and the voluntary controls are desirable. I believe that this can be a good Bill, provided that the keynote of its implementation is co-operation between enforcement authorities and the Board of Trade, on the one hand, and between both and the voluntary system, on the other.
§ 3.37 p.m.
§ BARONESS BURTON OF COVENTRY
My Lords, I would wish this Bill well in its journey through another place. As the House knows, I have certain reservations, and I hope very much that these will prove to be ill-founded by the time the Bill comes back to us. As my noble friend Lord Brown said, we have still not yet decided how the law should operate on the vexed question of the value of goods, and I shall await with much interest the discussions and Amendments which take place elsewhere, particularly on the framing of an adequate Clause 11; because I still believe that acceptance of the Amendment deleting the words "or are being offered by others" on page 6, lines 32 and 33 of the Bill as first printed, was a grave mistake and a significant weakening of the Bill. Having said that, my Lords, I should like to pay my tribute to my noble friend Lord Brown. I am sure he thinks that some of us have been trying, and that probably I have been 932 more trying than others; but obviously, if one feels strongly one has to speak. Although I did not get anywhere with my protests I should like to say how much I appreciated his comments.
§ 3.39 p.m.
§ LORD AIREDALE
My Lords, I, too, should like to associate myself with what noble Lords have said about the Minister, his patience, good humour and hard work, and the kindliness he has shown through all the stages of the Bill in this House. I wish to say only a word or two about enforcement, which was mainly the subject the noble Lord, Lord Drumalbyn, had to discuss. I cannot allow this opportunity to pass, I am afraid, without saying this. There is, in my humble opinion, still a black spot in this Bill under the enforcement provisions. It is this: that Clause 27 empowers a magistrate to give a warrant to a local government officer, or an officer of the Board of Trade, to enter by force into a shopkeeper's warehouse or store, or even into part of the shopkeeper's house, if goods are stored there. I imagine that a great many shopkeepers keep part of their stocks in part of their dwelling houses above the shop. The inspector can be empowered by a magistrate to break into those premises to inspect goods in them, without his having the faintest suspicion of any kind against that trader or that there is anything the matter with any of the goods in the warehouse or at the back of the shop or wherever it may be.
I think it is extraordinary that the Board of Trade should have come to Parliament to ask for a power of this kind to be inserted into a Bill in peacetime, Socialist England. I am comforted in several ways. To begin with, I do not believe that this power will survive the passage of the Bill through another place. I believe that it will have been removed when the Bill comes back to your Lordships' House. If it has not been removed, I have a certain amount of faith that no local government inspector will ever go before any magistrate to ask for a warrant to enter by force into the premises of any shopkeeper if that inspector has no suspicion of any kind against that shopkeeper.
Thirdly, I have a good deal of faith in the magistracy and I do not believe that any magistrate is likely to give a 933 warrant to an officer who comes to ask for one to burst into some shopkeeper's premises when he has no suspicion about that shopkeeper. Fourthly, I believe that on the first occasion that happens, if it ever does happen, though I do not believe it will, there will be a public outcry and people will say, "Are we living in Socialist England in peace time or in Nazi Germany?". I am sorry to speak so strongly about this matter, but that is what I feel about it. If it were Parliamentary to have a bet with the Minister that this provision will not survive the passage of the Bill through another place, I would do so; but I do not think that it would be Parliamentary to engage in a wager with the Minister upon this.
Finally, as I ventured to suggest on Second Reading, the Bill perhaps errs on the side of being too grandmotherly and that our duty in this House would be to try to see that it left us in not too grandmotherly a state. But it has now a nice refreshing new title, much less grandmotherly than the old one, and I hope that another place will discuss this Bill in the spirit of that much more refreshing and less grandmotherly new title. I wish the Bill well in its remaining stages through Parliament.
§ 3.45 p.m.
§ LORD AUCKLAND
My Lords, I should like to join with other noble Lords in paying tribute to the noble Lord, Lord Brown, not only for the consistent courtesy which he has displayed through these proceedings but also for the fact that his business knowledge has helped him to pilot the Bill with a great deal of skill. Nevertheless, some of us are not entirely satisfied with the product as it has so far revealed itself. The test of the Bill, as of any consumer Bill—and I have had experience of three or four in this House—is its enforcement and the spirit of good will among all those concerned with its enforcement—the weights and measures authorities, the factories, the wholesalers and the retailers and ultimately the persons who really matter so far as any business is concerned, the consumers.
One clause about which have some reservations is Clause 7, which empowers the Board of Trade to assign definite meanings to expressions used in relation to goods. As the Bill stands, there is nothing to prevent those meanings from 934 being quite different to the consumer from those which the Board of Trade intends. I have read paragraph 593 of the Molony Report which recommends this, and also Clause 36(a), but they seems to me only to strengthen the case for looking at this point again. Of course, the Board of Trade must have the power to designate meanings in legislation, but so far as I can see there is little or no right of appeal. Possibly this matter will be pursued in another place, because I think it is an important point.
I am particularly grateful for Clause 35, dealing with market research, which, as I said on the last stage, has never been of more importance to our home and export markets than at the present time. This clause will be greatly welcomed by all those engaged in this vital profession. So far as Clause 9 is concerned, I know that the Government did not accept health and safety as the criteria in the Amendment which I moved at an earlier stage, but I hope that they will give further consideration to making this clause slightly more flexible, because, though I appreciate that it has been looked at and changes have been made, it is still an inflexible clause. Having said that, I should like to thank my noble friend Lord Drumalbyn, who has piloted the Bill with such skill from this side, and once again to thank the noble Lord, Lord Brown. I think that this House has made this a very much better Bill.
§ LORD CAWLEY
My Lords, I have: talked a lot at various stages of this Bill and I shall say little more. I want to add my personal tribute to the noble Lord, Lord Brown, for the patience and good will he has shown to my own personal suggestions, and in particular to the Amendments to Clauses 6, 12 and 20 which he has made. I think that his conduct of the Bill has been an example to all Ministers in charge of Bills.
§ LORD STRABOLGI
My Lords, I should like to add my congratulations to those of the speakers who have preceded me to my noble friend Lord Brown for piloting this Bill so skilfully through the House; and also from this side of the House I should like to thank the noble Lord, Lord Drumalbyn, for the constructive way in which he has approached the Bill on behalf of the Opposition. I should also like to thank him for treating it in a non-Party way. This is not a 935 Party Bill: the matter is too important for Party politics. As other noble Lords have said, we have, I think, improved the Bill considerably during its passage through this House.
Like the noble Lord, Lord Auckland, I am somewhat disappointed that Clause 9 remains virtually unamended. The noble Lord, Lord Brown, has not told us—indeed, he has probably not been able to tell us—exactly why the Government need these powers, but we have received the assurance from the Board of Trade that they will consult with all the interests concerned, and we welcome that. This is really an important matter, and I hope that this offer by the Board of Trade to consult will never be forgotten in the years to come, because we are legislating for a great many years. I am very concerned about this matter. One hopes that there will be nothing in the same light as the Food Labelling Regulations, which have been brought in without adequate consultation, and where really first-class packaging design has been so stultified and ruined that it begins to look rather like something primitive produced by an emergent country or by a first-year student. This is an important matter. The whole of our prosperity depends, to a large extent, on successful marketing and advertising. One welcomes the assurance that the Board of Trade, while they may wish to bring in the necessary regulations to include certain information in advertising, in doing so will not wreck this important side of the whole marketing operation.
With those few words, I welcome the Bill. It is a good Bill. It has, as I say, been considerably improved. I have no doubt that it will receive careful consideration in the other place, and any improvements that we have not been able to make here one hopes will be considered during the passage of the Bill through the other House.
§ 3.52 p.m.
§ LORD BROWN
My Lords, I do not wish to detain your Lordships for long, but there are one or two points to which I must respond. I am grateful to the noble Lord, Lord Airedale, for what he has done during the passage of the Bill, and I must do my best at once to rescue him over his agony of mind on Clause 27. I assure the noble Lord most sincerely 936 that he is misreading the clause, because no justice of the peace can under this Bill give an officer the right to enter premises by force unless—and I refer to Clause 27(1)(b)—he has reasonable cause to suspect that an offence under this Act has been committedet cetera.
§ LORD BROWN
I do not want to start a debate on the meaning of the clause, but I may point out that Clause 27(3) refers to the duties of a justice of the peace, and says:If a justice of the peace, on sworn information in writing—(a) is satisfied that there is reasonable ground to believe that any goods, books or documents which a duly authorised officer has power under this section to inspect are on any premises",then he may give authority to break open. But that is consequent on Clause 27(1)(b).
§ LORD BROWN
I think we shall have to leave it there. I honestly believe that the agony of mind expressed by the noble Lord is unjustified, but perhaps we can discuss this point afterwards. I had hoped to take him out of this state of mind. Obviously I cannot do it now, but perhaps I may do so subsequently.
The noble Lord, Lord Drumalbyn, drew attention to the fact that inadvertently I have spoken of weights and measures inspectors in some words that I have used when I meant to say weights and measures authorities. It is, of course, an easy slip to make, but I apologise to the House. I can assure your Lordships that the views of the Board of Trade remain as stated to the Royal Commission on Local Government in England in relation to the original Protection of Consumers (Trade Descriptions) Bill. While we recognise that it will be for the local weights and measures authorities themselves to decide what staff to employ on the work of enforcing this Bill, we think that much of it will not call for the special qualifications and expertise of weights and measures inspectors, and that it will, therefore, be a pity to load it on to these scarce officers in all cases.
The reason for designating the enforcing authorities, in Clause 25, as those 937 authorities which are weights and measures authorities is that this is a short and convenient way of specifying the larger local authorities who we think should have this duty. It carries no implication at all that the work ought to be done by the weights and measures inspectorate. We are only too well aware that this service is at present understaffed. In the early days, however, when the Bill first comes into force, it seems to me probable that many authorities will rely largely on the staff of their existing weights and measures and public health departments who are now engaged on the enforcement of the weights and measures and food and drugs legislation and, in some cases, of the Merchandise Marks Acts, as well. They can be expected to take time to assess the extent and nature of the new duties arising from the Bill and to build on to their existing organisations. In the longer run, one would expect that while some parts of the work under the Bill might conveniently be combined with the other duties of weights and measures and public health inspectors, a good deal of it could appropriately be handled by officers with less specialised qualifications, perhaps under the general supervision of the senior staff of the authority's weights and measures inspectorate. But, as I have said before, it will be for each local authority to decide how best to organise the work and what kinds of staff to employ.
Having said that, I have noted carefully the words of wisdom spoken by the noble Lord about the general relationships between local authorities and their inspectors and those who come under scrutiny as a result of the new provisions of the Bill. I will undertake that in the course of the consultations and discussions, of a probably fairly detailed and lengthy nature, that will take place between the Board of Trade and the local authorities the text of the noble Lord's remarks this afternoon will be considered fully. I consider them to be words of wisdom, and I am grateful to the noble Lord for having said what he has this afternoon. Other noble Lords have referred to different points, but I will not deal with them now, because I do not think they require a direct answer. I have noted them. All that now remains for me to do is to thank noble Lords very much indeed for the kind words they 938 have said about me. I am one of those unusual people who very much like praise, and I have had some this afternoon. I am grateful to noble Lords for giving it to me. With that, I think I have said all that I need to say.
§ On Question, Bill passed, and sent to the Commons.