TRADE DESCRIPTIONS (No. 2) BILL [H.L.] (Hansard, 14 February 1968)

§ THE LORD PRIVY SEAL (LORD SHACKLETON)
My Lords, on behalf of my noble friend Lord Brown I beg leave to introduce a Bill to replace the Merchandise Marks Acts 1887 to 1953 by fresh provisions prohibiting misdescriptions of goods, services, accommodation and facilities provided in the course of trade; to prohibit false or misleading indications as to the price of goods; to confer power to require information or instructions relating to goods to be marked on or to accompany the goods or to be included in advertisements; to prohibit the unauthorised use of devices or emblems signifying royal awards; to enable the Parliament of Northern Ireland to make laws relating to merchandise marks; and for purposes connected with those matters.
My Lords, in rising to move that this Bill be read a first time I am aware, as your Lordships will be aware, that it is not customary to make a speech on the First Reading of Bills in your Lordships' House. But I feel it is right to explain to your Lordships the circumstances which have made it necessary for this Bill to be introduced into this House. In introducing it on behalf of my noble friend Lord Brown I would make clear that this shows no doubt as to his capabilities to steer this Bill through this House as often as necessary. But it gives me an opportunity as Leader of the House to explain the circumstances and also make clear that not only has there been no failure on the part of my noble friend, but there has been no failure on the part of anybody in connection with your Lordships' House.
This Bill is identical with the Trade Descriptions Bill, formerly the Consumer Protection Bill, which the House passed on Monday, February 5, but owing to a nicety of procedure in another place it is necessary to have a second Bill. There is in the Bill as passed in your Lordships' House Clause 39(5), which makes provision for the Board of Trade to pay a certain sum of money into the Exchequer of Northern Ireland, the amount of which is expected to be nominal. This therefore infringed the ancient and undoubted privilege of another place and 102 ought to have been put right by a privilege Amendment on the Third Reading of the Bill. I am sure your Lordships will all agree that the last thing we should wish to do would be to infringe on these privileges in the smallest degree, and there are a number of ways by which this matter might be overcome.
My Lords, I have, with advice, also searched the precedents as to what has happened when your Lordships' House have found themselves in a similar situation in the past. One way by which this difficulty could be overcome would be for the Government to introduce a new Bill in another place, and this would be in accordance with the principle (this is a not unimportant principle and is one which I should like to emphasise) that when a Bill has been lost another Bill on the same subject may not be begun again in the same Session in the House in which it was originally introduced. A Lords Resolution of May 17, 1606, says that: If a Bill begun in one of the Houses, and there allowed and passed, be disliked and refused in the Other, a new Bill of the same matter may be drawn and begun again in that House whereunto it was sent.… My Lords, I strongly hold the view that we ought not to erode our procedures by laxness or by paying inadequate attention to the purposes which underlie those procedures, but your Lordships in the course of history have contrived a certain amount of flexibility which at times; even seems to have gone counter to the Standing Orders that an earlier House had passed. There are precedents for introducing a No. 2 Bill in this House as a more convenient means of overcoming this difficulty. The most recent and exact precedent is to be found in the Guardianship and Maintenance of Infants (No. 2) Bill in 1951. The No. 2 Bill was introduced on July 17, and on the next day the necessary Standing Orders were dispensed with and the Bill was taken through its remaining stages, with a privilege Amendment on Third Reading, and sent to the Commons.
It is for your Lordships to decide whether we shall adopt this procedure to-day and, as I have said, I have considered anxiously whether we should do this and whether I should advise your Lordships to follow this course. The fact remains that precedents have been established, but I do not think that we 103 should necessarily assume (and this is what I should like to put on Record) that we should regard this as a precedent which becomes automatic procedure if a misfortune or a failure of this kind occurs, if ever again your Lordships' House finds itself in this awkward situation.
I am satisfied, and I hope the House will agree, that what I am proposing is the best course, and that to-morrow the Standing Orders should be suspended so that your Lordships may pass through all its stages a Bill identical in all respects, including the Title, to the Bill that we passed on February 5, except that its Short Title will now be, "Trade Description (No. 2) Bill". Apart from the Short Title, the only difference will be that this time we shall make Clause 39(5) the subject of a privilege Amendment. I hope that your Lordships will agree, as they did in 1951 in a similar situation, that we should on this occasion pass a No. 2 Bill. I beg to move.

§ LORD DRUMALBYN
My Lords, when the noble Lord, Lord Shackleton, started to speak, I thought that the Long Title of the Bill to which he was referring had a somewhat familiar ring, and your Lordships will have recognised it. I think that the solution proposed by the noble Lord, Lord Shackleton, is sensible, and is one which would commend itself to your Lordships. We seem to be acting on a very good principle following the precedent of the Guardianship and Maintenance of Infants Bill, and I think that in this case we should have the guardianship and maintenance of this rather lusty infant very much in mind. I am sure that the noble Lord was right when he said that we should be careful to maintain the proper procedures in all respects, and I dare say that another place felt bound to follow this principle. I think it right that we, too, should follow a principle in the most sensible way, and this is what we seem to be doing.

§ VISCOUNT DILHORNE
My Lords, I should like to ask the Leader of the House whether this does not really amount to an exercise of delaying powers in another place and whether we should 104 not have an opportunity to reconsider some of the changes made in this Bill, in view of the noble Lord's proposal that we take all stages in one day?

§ LORD GLADWYN
My Lords, none of us, I am sure, would wish in any way or in the slightest degree to infringe the privileges of another place. But this is, obviously, rather an unfortunate incident and no doubt we are ourselves to blame to a considerable degree. But I cannot help thinking that as it has been discussed, I think, for the last two years it might have been possible for the other place to inform us at some stage that the inclusion of Clause 39(5) might, on the face of it, be a breach of its privilege. That might surely have been done.
I quite understand what the noble Lord, the Lord Privy Seal, has said about the possibility, in view of precedents, of proceeding as we are going to proceed and, naturally, we on these Benches would not have any objection to that; in the circumstances it is about the best thing we can do. But if it is said in law, that De minimis non curat lex, surely it is a case here of, De minimis non curat privilegio. There must, in other words, be a limit beyond which a very small breach of privilege should, in the circumstances, be "winked at" by agreement between the two Houses. Perhaps the noble Lord, the Lord Privy Seal, may be able in future to negotiate something with another place. More especially at a moment when we all hope that a reformed House of Lords will play an increasingly large part in national affairs, we must avoid, if possible, any incident which is likely to promote friction between the two Houses, however small, and which would, in any case, result in a waste of time and money.

§ LORD CONESFORD
My Lords, I should like to put one question to the noble Lord the Leader of the House on a point that puzzles me. I agree with him that the course he proposes seems unobjectionable and might be the best, but I am not clear why it has any advantage over the alternative course of introducing the Bill in another place. At some period it has to go through another place. If a new Bill were introduced in another place and came up in anything like the form in which the first Bill was sent to them, I am sure the proceedings in your Lordships' House on that Bill would be brief. It may be that the Government 105 are of opinion that the other place would have no respect for a Bill if introduced in its present form apart from the proceedings in your Lordships' House, but would have an immense respect for a Bill if told that it had already passed through your Lordships' House. They could be told that in any event. I am not objecting to the course proposed by the Government, but I cannot see what advantage it has over the alternative course of introducing a Bill in another place.

§ LORD SHACKLETON
My Lords, there are 17 speakers down on the list for the main debate this afternoon, and I remember a recent occasion when there were 16 speakers and my noble and learned friend the Lord Chancellor made that a proper reason for not prolonging a debate on an earlier Motion. I am grateful to the noble Lord, Lord Drumalbyn, for his view. I do not think it would be proper for me to comment on what the noble Lord, Lord Gladwyn, said. I am glad he supports the course proposed, but the privilege of another place has nothing to do with us. I would only make clear, as I said at the beginning, that there has been no failure on the part of anybody in this House or of anybody connected with this House, and it is not for me to trespass on questions of negotiation with another place on matters of their privilege. I do not propose to make any further comment on the noble Lord's point. I took the noble Lord's general view about starting Bills in this House, but I think that this would be a matter for discussion when and if the reform of your Lordships' House goes through.
I am not sure whether the two interventions from below the gangway were helpful, even though characteristic. They are usually helpful, always characteristic. I was interested in what the noble and learned Viscount, Lord Dilhorne, had to say. I think I will leave it at that: it was interesting. The noble Lord, Lord Conesford, put his finger right on the balance of judgment. Those with whom I discussed this matter thought that we could go either way on this matter, but, to be frank, I think it is more nonsensical to let the Commons start a brand new Bill, not being able to take official cognisance of the fact that a Bill has been before your Lordships' House, because it 106 has been laid aside. It looks sillier than if we finish it off now formally, in the way suggested, and, if any Amendments are made, merely consider those. I might also be a little scared about launching this Bill again after it had been through another place, because many noble Lords would have forgotten what they said previously and would want to say it again.

§ LORD DRUMALBYN
My Lords, arising out of what the noble Lord has just said, may I ask him one question? Am I right in supposing that another place will be able to take cognisance of our proceedings on the No. 1 Bill and will not be limited to the rather summary proceedings likely to take place on the No. 2 Bill? This is a matter of importance, and no doubt noble Lords will be influenced in their judgment by the answer.

§ LORD SHACKLETON
My Lords, I am sure that they can lake cognisance of it, after the matter has been legitimated, so to speak, by the second Bill. The actual legitimacy or marriage, or whatever the analogy may be, will make it easier for them to take cognisance of our earlier proceedings within the general limits of cognisance which they give to proceedings in this place. Clearly they will have regard to this and will be able to refer to statements by Government spokesmen in this House.