CONSUMER PROTECTION BILL [H.L.]

HL Deb 22 January 1968 vol 288 cc15-124

3.10 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 Recommitment) on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Brown.)

On Question, Motion agreed to.

House in Committtee accordingly.

[The EARL OF LISTOWEL in the Chair.]

Clause 11:

False or misleading indications as to price of goods

11.—(1) If any person offering to supply goods of any description gives, by whatever means, any false indication to the effect that the price at which the goods are offered is equal to or less than—

1. (a) a recommended price; or
2. (b) the price at which the goods or goods of the same description were previously offered by him or are being offered by others;

or is less than such a price by a specified amount, he shall, subject to the provisions of this Act, be guilty of an offence.

(2) If any person offering to supply any goods gives, by whatever means, any indication likely to be taken as an indication that the goods are being offered at a price less than that at which they are in fact being offered he shall, subject to the provisions of this Act, be guilty of an offence.

(3) For the purposes of this section—

1. (a) an indication that goods were previously offered at a higher price or at a particular price shall be taken, unless the contrary is expressed, as an indication that they were so offered for a substantial period within the preceding six months;
2. (b) anything likely to be taken as an indication as to a recommended price or as to the price at which goods are being or were previously offered shall be treated as such an indication; and
3. (c) a person advertising goods as available for supply shall be taken as offering to supply them.

BARONESS BURTON OF COVENTRY

Before we begin, may I ask a question? I should like to ask the noble Earl the Chairman of Committees whether it is the Government's intention to make a statement about this clause. It is a most important clause, and if we are to have only the Government replies to the vari- ous Amendments, we who are concerned about the clause will not know the actual thinking of the Minister on it.

LORD BROWN

I propose to make such a statement on the next Amendment.

LORD DRUMALBYN

moved in subsection (1)(b) to leave out "or are being offered by others". The noble Lord said: When your Lordships last discussed this clause on December 4, the noble Lord, Lord Winterbottom, said that the Government would try to recast it in the light of the discussion which then took place. I would not in any way underrate the difficulty, and if I am disappointed I am certainly not surprised that the recasting has not yet been forwarded. Since then, the noble Lord, Lord Brown, has been good enough to invite me to discuss the clause with him and we have all had five weeks to reflect on it. Perhaps in considering this clause it would be well to refer first of all to what the Molony Committee recommended as to price, not because that Committee had in any way a monopoly of wisdom but because it was composed of learned and experienced people who had two years to reflect on the matter and reach their recommendations.

The Committee recommended that trade descriptions should be …re-defined to mean any description, statement or other indication, direct or indirect, … as to twelve attributes or accidents of goods (if I may use the word accidents in its logical, classical sense). One of the accidents was as to the former or usual price of any goods". This is dealt with in paragraph 636 (viii), on page 210, which says: This would not restrain claims that the goods were 'worth' more than the stated price; merely false comparative price claims meant to convey that goods have been genuinely marked down in the particular retail establishment. We foresee difficulty in the phrasing of the prohibition and in its enforcement. The practice is sufficiently widespread and deceptive to call for repression". In other words, the Report recommended that only false comparisons between the price at which goods are offered and the price at which goods of the same description were previously offered by the same person should be made illegal. For the sake of brevity, perhaps I could borrow the phrase of the noble Lord, Lord Brown, and describe that as the internal price.

As to pricing methods, on page 266 (paragraph 813), the Molony Report says this: Our reaction to the complaints about deceptive methods of indicating the price of goods on display is that consumers must be expected to go shopping with their eyes open and their wits reasonably alert. If it should happen to their cost that they fail to notice that the price on the barrow is quoted per ½ lb. and not per lb., or that they have to pay £5 5s. 0d. instead of £5 0s. 0d. for a coat, they will have had a valuable lesson which might later help them more than anything we could recommend. They go on to say: (The first example, we observe, may amount to the offence of applying a false trade description as to the quantity). When we last debated this clause I referred to the difficulty that would arise in establishing the facts in a court of law when comparisons are made by a person offering goods between his price and the price at which goods of the same description are being offered by others. That is what the noble Lord would like to call external price. What exactly is meant in line 33 of page 6 of the Bill by "by others"? It would seem that if a person could show that goods of the same description were being offered by one or more persons at the competitive price in question, he would not be caught by this clause, even though that price was well above the average price level. Is it really worth making such a narrow provision as that?

In the case of comparison between the price at which goods are being offered and were previously being offered by the same person, there is no great difficulty in establishing the facts. The person's books may show it or it may be possible to get evidence from customers or competitors. But when the comparison is between the price at which the same goods are offered elsewhere, it is very difficult, especially in these days of price competition when in some cases prices vary from day to day in the same shop or in different shops, to make a meaningful comparison with what prices were at the same time elsewhere. It is very difficult to pinpoint that.

Consumers are constantly being advised to "shop around" and compare prices for themselves. At the beginning of the day suppliers may make in all good faith comparisons which are falsified without their knowledge later in the day by counteraction on the part of competitors. Then, when a comparison is made with prices elsewhere, it is not always with goods of the same description, but often with good that are similar or of comparable quality. Such a comparison is not caught by the clause as drafted, though, as the Molony Committee implied, it may well be caught by Clauses 1 to 5 of the Bill as a false trade description being impliedly applied in saying that the goods are comparable or similar. There are some who think that the best course would be to prohibit all such comparisons and provide that the only permissible comparison should be between the internal price—the price at which the same person is selling and was previously selling the same goods or goods of the same description—but this would surely be going much too far. Why should honest traders be prevented from drawing attention to real bargains because some traders are guilty of abuse? If we were to ban all such comparisons we should be taking away this facility, which is much to the advantage of the consumer as well as to the trader.

In all the circumstances I have come to the conclusion that it is better to follow the Molony Report and restrict the provisions in this clause to what I believe is enforceable. Therefore I am moving to leave out the words "or are being offered by others". With this Amendment goes the next, No. 20B. I beg to move.

Amendment moved— Page 6, line 32, leave out from ("him") to end of line 33.—(Lord Drumalbyn.)

BARONESS BURTON OF COVENTRY

Before my noble friend replies, I should like to comment on what the noble Lord, Lord Drumalbyn, has said and to raise a matter related to this, in the hope that my noble friend Lord Brown may tell us the opinion of the Board of Trade on it. In our discussions before Christmas I think we all realised the great difficulty of Clause 11. Obviously, the Board of Trade recognised this as well, and they said that they would re-write or re-draft the clause, or have another look at it, before it came before us again. I take the view that Clause 11 is probably about the most important clause in the Bill. While I realise that such statements might be made on the Question, That the clause stand part of the Bill, I want to ask my noble friend what he feels, in particular, about the matter of a recommended price.

With regard to what the noble Lord, Lord Drumalbyn, said on the matter, I hope that the Government will not accept the Amendment that he has moved. I think any weakening in the protection of the consumer on the matter of comparative prices is to be deprecated; and I do not take the view, in spite of the difficulty, that this is something which could not be coped with. What I really want to ask my noble friend about (and he may already have it in his remarks) is the question of a recommended price—which links on to what the noble Lord, Lord Drumalbyn, has been saying—and also sub-paragraph (viii) on page 210 of the Molony Report. I have not put down an Amendment, because I was waiting to see what the Government would do, and was hoping that their amended Clause 11 might be on the Marshalled List for us to-day.

On the matter of a recommended price and the protection of consumers in so far as comparative pricing is concerned, I wonder whether in his reply my noble friend could include some comments about recommended price. I am quite sure that I am not saying anything which the noble Lord or the Committee do not know when I say that with the eroding or abolition of resale price maintenance we have now reached the stage where recommended prices are used by dishonest traders to mislead shoppers. Furthermore, I do not believe that, however much a shopper shops around, or however intelligent he or she may be, it is apparent from looking at these recommended prices whether they are fictitious or correct. I do not believe that any comparison linked to a recommended price has any value to-day. I would ask my noble friend to look at subsection (a) to see whether or not the Board of Trade could delete it.

I have here a rather garish advertisement, which I will pass down to my noble friend; and I do not propose to name the firm at this stage. The advertisement speaks of a double-bed size quilt, and it says: "Retail price 7 guineas." When this was sent to me, by someone whose opinion I value, who told me the retail value was 50s. I said: "That is all very well. This says 'Retail price 7 guineas'. But is this a recommended price or a stated price?" He said: "This is a recommended price. The supplier" (this brings me back to page 210 of Molony)" sends this out with the quilts as a recommended price. One goes with each quilt." I said: "What is this really worth?", and he said: "The retail value of these goods is 50s." I said: "That is all very well, but before I raise this in the House I want a little more information, because I do not mind people disagreeing with me, but I would hate to be found in error."

What I have now is a statement of a special two-day sale which was to be held in Scarborough on August 2 and 3, last. Included in this sale is this same quilt, and we get in this package deal: Our special bargain bedding sale, comprising one floral quilt, satin-finished, double-size. Seven guineas. As I say, it is the same quilt. It then says: One pair of blankets, all colours, double size, £5 10s. One pair of flannelette sheets, double size, £4 10s. Two large foam filled pillows, Foamaprene, £2 12s.". That is a total of £19 19s. 0d., which I take to be the recommended price. But such is the generosity of the person conducting this two-day sale that, instead of paying 19 guineas for these articles, you can buy the lot for £5. Obviously, he will soon be out of business if he is as generous as that.

I would bring to the attention of my noble friend that if this sort of thing is to go out to the public, whether it is on goods that go from suppliers to shops or on two-day sales, and we see "value 19 guineas" or "value 7 guineas", which bear no relationship to the real value, or even to what it is being sold at, then I think it is a great mistake for any Bill to tie any comparison to such a recommended price.

The other example that I should like to give is this. I do not know whether my noble friend saw in the Sunday Times on Sunday an advertisement for an amazing new bargain; that is to say, a genuine English executive framed briefcase, made to sell at 4½ guineas. It said in very small type elsewhere, "Only 39/11d.". I do not know whether 4½ guineas is the recommended price, and this person is absolutely giving it away for 39s. 11d.; and I do not know whether a person looking at this takes that to be the recommended price. But how is anybody to tie any legislation or any comparison to that? The advertisement does not mention that the case is plastic or anything like that—and, indeed, there may be prosecutions pending on both these examples.

I am serious about this, and I raise this matter now because I am hoping that, even if my noble friend cannot agree to-day, he will look at this matter of the deletion of "a recommended price" from this Bill at a later stage. I should have great pleasure in putting down an Amendment to that effect, because I believe that such practices bring the Bill into disrepute.

BARONESS ELLIOT OF HARWOOD

Before the noble Lord replies, may I say on behalf of the Consumer Council how sorry I am that we have not had the redraft of Clause 11 which was promised to us before Christmas. In the discussions which took place on this clause the noble Lord said that he was planning a redraft and that we might have it the next time the matter came before us. I support the noble Baroness, Lady Burton of Coventry, on this matter, and do not support the Amendment which the noble Lord, Lord Drumalbyn, has moved, for this reason: that it restricts the clause to price comparisons made by individual retailers only. I think this is limiting. There will be no control of comparisons of prices between shops. This, I think, is important.

The noble Baroness, Lady Burton of Coventry, has given us some remarkable examples which she has searched out. I am afraid I have no examples to give to the Committee, but this type of double pricing is well known to the public, and, of course, the public complain about it all the time. I therefore think it is important that we should not restrict the effect of this Bill, but that it should apply to comparisons of prices between shops. We want to try to cut down the double pricing, and we want the public to have as square a deal as they can in these matters. I think it would be a great pity if we were to pass this Amendment, or if the Board of Trade were to agree in their redraft to a limitation of this; kind.

I know the noble Lord, Lord Drumalbyn, has said that it is difficult to make comparisons externally, but it can be done. Difficult things are often the right things to do. I think it would be a great pity—and I know my Council feel the same way—if we were to restrict this in the way which is suggested by the Amendment. I hope that the Board of Trade in their redraft, which we have not yet got, but which I hope we soon shall have, will put these matters straight.

3.30 p.m.

LORD BROWN

As I said a few minutes ago, I propose to take the opportunity on the noble Lord's Amendment to impart to your Lordships all our reconsideration on Clause 11. I must apologise for the fact that the redraft of the clause is not in front of your Lordships to-day, but the fact of the matter is that, although many wish the ends in sight, few have been able to propose legally enforceable means to get there. In fact, since the House last discussed the Bill we have had very extensive consultations with a number of interested bodies, for whose advice we are most grateful. They were a great help in defining the area which we could usefully explore. Many drafts and ideas have been under discussion, but I am afraid that we have not come to the end of the road. However, I hope to end my statement on this clause with some suggestions which I hope will appeal to your Lordships.

There was general agreement that, in principle, it was right that the Bill should deal with the three kinds of claim set out in Clause 11(1); that is to say, claims that a price is less than the retailer's previous price; that it is less than a recommended price; and that it is less than the price currently being charged by other traders. The differences of opinion were concerned with how far we should go in dealing with these practices, and with some others as well. Moreover, there was general agreement that as the clause stood it could be expected to be reasonably enforceable so far as comparisons with a trader's own previous price or with a recommended price were concerned.

Perhaps I ought here to see whether I can make some attempt to answer the point raised by the noble Baroness, Lady Burton of Coventry. I do not think that what I shall say in this statement will fully satisfy her on this question of recommended prices. What we have to remember is, first, that there are two types of misdemeanour to be looked at quite separately in reference to recommended price. The first is false comparisons with proper recommended prices; the second is comparisons with "phoney" recommended prices. The second point I would make with regard to recommended prices is this. Although there are undoubtedly a great many "phoney" recommended prices, there are also a large number of perfectly proper established or recommended prices, and if we were to abolish the whole lot because some are bad we should put some traders, who genuinely wanted to offer the public cheaper prices, in a position of not being able to make it clear that they were doing so. I have only to quote motor cars to make the point. So this is a pretty difficult area to deal with. Nevertheless, I do not think it is entirely fruitless for us to pursue it further, and present something else at a later stage, because the practice of stating "phoney" recommended prices, if done in some forms, may be made a misdemeanour, something able to be challenged, if we get the clause framed properly.

The real problem is, clearly, how to deal with claims that a person's price is less than that being charged by other people. Such a provision is all very well in principle, but when the local weights and measures inspectors came to enforce it the question would inevitably arise: which other people? This kind of comparison is made, as a general rule, without giving any clear and precise indication of the other people whose prices are implied. We could no doubt say that, in those circumstances, the comparison should be deemed to be with the prices charged by a reasonable number of the competitors from whom customers might otherwise be expected to buy. All very sound in principle—but what on earth would it mean in practice to the courts? What would the prosecution have to set out to prove? What is a "reasonable number" of competitors for the grocer in a small village or the grocer in Lambeth? And who are the competitors, if our grocer merely displays the claim in his shop, advertises it in his local paper circulating over a five mile radius, or advertises it in a national newspaper?

The answer is, of course, that there is no single answer to what the comparison should be taken to be. There are hundreds of different answers, depending on the nature of the goods, the terms in which the comparison is made, the place where it is made, and the way in which it is publicised. We cannot specify them, and if they are not laid down the enforcing authority will have no idea what evidence it needs to collect to prove a case, or what evidence will suffice to refute the charge; and the courts will not know what evidence they are supposed to require to justify convicting. In short, in all but a small minority of cases the provision would be unenforceable.

It could be argued—and indeed has been—that it would be useful to have a provision which would at least catch those cases; and that such a provision would be a deterrent. But we believe that to leave it as it is would hinder the success of voluntary action in this field. A person who was not prosecuted could argue that he complied with the law and could not be expected to do more than the law demanded. And, of course, there is a much more serious objection in principle. I am sure that your Lordships would join me in thinking it objectionable to declare an act criminal in the cynical knowledge that the ban will rarely be enforced.

There is a third objection, and it is this. If in fact we made the law not apply to a comparison with external prices, then it would probably very seriously weaken the enforceability of the law with regard to what I have termed internal prices, because it would be too easy for someone who was to be prosecuted to shift his ground and claim, when he was challenged about the validity of his internal price comparison, that it was in fact really a comparison with an external price.

The question, therefore, was what else could be done to deal with this kind of comparison? One approach would be to ban altogether the making of certain kinds of comparisons, whether true or false. But, as the noble Lord, Lord Drumalbyn, said, no one has been willing to contemplate a total ban of this sort. Indeed, I am sure that there is no possible justification for a general prohibition on all indication that a distributor is selling at cheaper prices than are usual. And although a ban limited to claims that a person's prices are less than other people's by a specified amount was seen to have more justification—since such precise claims may in many cases be incapable of precise substantiation—there was little support for such a Draconic approach. We have considered this possibility, but we have concluded that it would not be right in principle to forbid traders from advertising that their goods were cheaper than their competitors'.

The possibility of preserving the present provision subject to modifications and refinements that would make it more enforceable has been exhaustively discussed. But the upshot is that no acceptable, practical way of making this provision enforceable has been found. It is regrettable, but I think it must be accepted that the Bill cannot be made to work in this way, and consequently that we cannot leave the Bill as it stands so far as comparisons with other people's prices are concerned. We are therefore led to the conclusion that it would be best to accept the noble Lord's Amendment, which would exclude such comparisons from the scope of Clause 11, and to look for an answer of some kind, even if a less satisfactory one, in some other direction.

Before I refer to other possible approaches, I must mention another sort of claim which it was suggested we should try to deal with; namely, claims that the value or worth of goods is greater than the selling price. We agree that such claims can often be misleading, but we do not think that it would be practicable to legislate against them. The difficulty is that these claims take a wide variety of forms, and there is no way of dealing with them that is not either unenforceable or else unjust. If we merely forbid false claims as to the worth or value of goods, we shall be giving the courts the task of deciding what some article is actually worth or what its value is, and that task will, far more often than not, prove impossible. If we go further and define what the worth or value of goods must be taken to mean—for instance, that the goods must actually have been sold at the stated price—then not only are we faced with enormous enforcement problems, but we define out of existence some perfectly legitimate sorts of claim, such as the claim that a cut-price brand of goods is worth what one would pay for a different and more expensive brand. In short, the "value" or "worth" claim is, if anything, more difficult to handle than comparisons with other people's prices.

This is a most uphappy situation. But, given that we can see no statutory cure for the mischief of false comparisons with others' prices that would not be likely to prove worse than the disease, we are obliged to face it. In that situation we should, I suggest, consider how far it may be possible to see that consumers are informed about what the Bill will and will not do in the field of comparative pricing, so that they may know, on the one hand, that they can in genera I rely on the truth of claimed reductions from the seller's previous price or from a recommended price—because these are covered and will be adequately policed under the Bill; and, on the other hand, that they should be sensibly sceptical of all other classes of comparative claims, whether related to other traders' prices or merely value or worth, because these will not be subject to any statutory control and may have been beyond the power of control of the voluntary codes. It would, I think, be important to ensure that consumers should be able to distinguish clearly between the different classes of claims by avoiding the use of ambiguous expressions, and that they should e s far as possible be acquainted with the different status of the different classes of claim.

There may be various ways of seeking to achieve this objective, and if I offer a few tentative first thoughts at this time I trust that your Lordships will not take them as being finally considered proposals. One approach might be to ensure that what I may call the "respectable" types of claims—comparisons with a recommended price (subject to the comment I have already made) or with the seller's previous price—are always presented in a form which would be readily recognised. For example, one might think of attaching a distinctive symbol to such claims, perhaps a standard abbreviation such as "r.p." indicating "recommended price," and "p.p." indicating "previous price." This would give a situation where, if a trader decided that he was going to reduce the price of goods that he had previously sold at £1 to 15s., and he was doing something absolutely genuine, he would be prepared to put against the £1 the symbol "p.p." Of course, if he was not doing something genuine he would render himself—if we get the Bill right—liable to prosecution, which would mean that he would not be likely to do it. If, in indicating the £1, he was making a comparison with somebody else's price, the symbol "p.p." would not appear and every purchaser would know that this might well be a "phoney" comparison.

In the same way we would use the symbol "r.p.", although that does not seem to be quite as satisfactory. On the other hand, provision might be made to require other kinds of claims to be presented in forms which would be readily recognisable as not belonging to the respectable classes, so that we inform the shopper. If the symbols became recognised as indications of genuineness in the price comparisons made, then we might be able to forget the others, which I hope shoppers would learn to regard with a proper degree of suspicion.

In pursuing this general objective, it might be helpful to arm ourselves with power to make regulations to define, prescribe or prohibit the use of certain forms of price indications, and the question would arise how best all this could be brought home to shoppers. The subject is a very complicated one and any possible remedies will clearly need much further thought. I am sure your Lordships will not expect me to be able to put forward detailed conclusions at this stage, because the thinking which I have just put to your Lordships has arisen only during the last eight days, and I hope the Committee will agree that the right course is to take more time to consider how the broad objective of minimising deception of the consumer in this field might best be achieved. In the meantime one thing is clear. Whatever else we may find it worth while to add to this clause at a later stage, we shall not want to retain its present provisions about comparisons with other traders' prices. I am therefore clear that this Amendment should be accepted, and in recommending its acceptance to your Lordships I would add the thought that in my view it would be unsatisfactory simply to accept it without having the prospect of further adding to the clause, as I have indicated, at a later stage.

LORD AIREDALE

I should like to ask the Minister whether he can give the Committee his assurance that the Government's redrafting of Clause 11 will, without fail, be placed before the House before the next stage of the Bill is reached; or, to put it the other way round, that the Report stage of this Bill not be fixed until the Government have redrafted Clause 11. It is surely a valid constitutional point that a piece of Government legislation must be as complete as the Government can make it in time for the measure to be properly scrutinised by the first House of Parliament before which the Bill is presented.

LORD BROWN

I confess I am not good on the question of the Constitution of this House, but what I am asking for—and I am glad the noble Lord has given me the opportunity to ask for it explicitly—is that the Committee should be prepared to accept that the ideas which I have put before it should, if possible, be put into legal form as an addition to the Bill, for presentation in another place.

We are in difficulty here. If we proceed with the ideas which I have presented to the Committee there is no doubt in my mind that there will have to be extensive discussions with interested bodies, and those discussions will take a considerable time. If we delay the passage of this Bill until those discussions have been completed we shall take up a large amount of time. I do not know whether it is right to say this, but what I am afraid of is that this is the type of Bill which attracts the interested attention of large numbers of your Lordships and no doubt of Members of another place, too, and the Committee debates elsewhere may also be protracted. I wish to avoid a situation similar to that which arose on the Companies Bill last year, which came back here with a vast number of Amendments towards the end of July. I think there really is a danger of delaying this Bill, and I hope your Lordships will agree that the Bill should be passed without the drafting of the ideas I have put forward, but leaving those ideas to be dealt with in another place.

3.48 p.m.

BARONESS BURTON OF COVENTRY

I am sorry, but I definitely do not agree. I want to support most strongly what the noble Lord, Lord Airedale, has said. This Bill has come before your Lordships' House as the first House of Parliament to look at it, and its having done so I cannot see any reason why it should leave us without the main clause being redrafted for us to consider. In my view it is utterly wrong, and I hope noble Lords will protest strongly.

LORD BROWN

Will the noble Baroness allow me to interrupt her? It is really all very well for people to say that it is the duty of the Government to provide enforceable, effective legislation which will meet the ends which we desire. It is not always possible to do so, and if indeed there has been delay it is not something for which I apologise; it is something which arises out of the total difficulty of the situation with which we are faced. I make no apology and I do not accept that it is a "crying shame" or whatever words the noble Baroness used—

BARONESS BURTON OF COVENTRY

Those were not my words.

LORD BROWN

—that the matter is not necessarily dealt with in this House. We must face the facts of the situation.

BARONESS BURTON OF COVENTRY

I am sorry the noble Lord interrupted me; I still do not agree. I think it is quite wrong that we should be expected to endorse a major clause in a Bill without seeing it. I think it is quite preposterous. There is no need for the noble Lord to get hoity-toity and say that he does not apologise. I do not ask him to, but I do differ.

The other point I wish to deal with, as distinct from that, is this. I am sorry the noble Lord intimated that he is going to accept Lord Drumalbyn's Amendment, and I hope that the noble Lord will be speaking on this. I think it is a retrograde step and it weakens the clause. At the beginning, when my noble friend Lord Brown began—I will not say my hopes soared but my heart lightened a little when he said that we might be able to deal with "phoney" recommended prices if Clause 11 were properly framed. I thought perhaps when we saw Clause 11 we might see this had happened. Then he went on to speak about "worth" or "value", and said it was a very unhappy situation that it was not possible to do anything about it. I think it is most unhappy. I think that on some matters, the Molony Report took a most defeatist view, and I regard this also as a defeatist view, because I think something should be done on these matters.

I am wondering whether my noble friend could help me on this point He went on to speak about the possible phrases or regulations that might be in the Bill and I am wondering about the specific example I mentioned about worth or value, in which, as I said, a case was advertised as "made to sell at 4½ guineas". Do the Government feel, without in any way committing themselves, that we shall have to go on looking at advertisements which say, "Made to sell at 4½ guineas" when the article offered is worth 39s. 11d.? I should not have thought it was impossible to deal with matters like that. Can my noble friend tell me whether I have got it right?

LORD STRABOLGI

I have great sympathy with what the noble Baroness and the noble Lord, Lord Airedale, have said. I think it is undesirable in principle that this House should be asked to pass a Bill which is not complete. On the other hand, I think we must welcome the statement of my noble friend Lord Brown, that the Board of Trade are consulting with the interests concerned. Time and again throughout the passage of this Bill we have had occasion, I think with some justification, to criticise Government Departments on drafting clauses of a Bill without proper consultation with the interests concerned. Here is a case where the Board of Trade are offering to consult to get the clause right, and I think that that probably justifies the fact that the House is being asked in this case to pass a Bill that is not complete. On the other hand, I hope that when the other place has had a chance to consider this clause in its final form, and pass it, this House will have a chance to have a fresh look at it and, if the House does not agree with it, to amend it or reject it as it thinks fit. I hope that it will not be considered as a clause cut-and-dried and passed by the other place on which this House has no authority or jurisdiction at all. I think we must have a chance to look at it and do what we like.

VISCOUNT COLVILLE OF CULROSS

When the noble Lord, Lord Brown, and his Department are considering what the noble Baroness has said, I hope that they will remember that, at any rate in my humble way, I would certainly support the suppression of any material that might otherwise go in the Bill which will not be suitable for criminal courts to deal with. There can be nothing more plain than that the question of the worth of an article or goods is something which it is very difficult to deal with at petty sessions, and moreover, I would have thought, something which would have raised the eyebrows of most chairmen and deputy chairmen of quarter sessions. If there is any question about whether or not these things can be done, I thank most of us who have to deal with the law in practice would certainly support the noble Lord's stand. We do not wish to create an offence which can neither he proved, nor, in the other instance, which he has agreed to take out, in fact be enforced. I would certainly support him on both those points.

LORD AIREDALE

May I say one word in the friendliest possible way? I sincerely believe it to be the wish of this Committee that the Government should at least have a shot at redrafting Clause 11 before the Report stage of the Bill in this House. If the clause has to be further amended in another place, very well; and noble Lords I am sure would have no complaint about that. But I believe noble Lords would have a complaint if the redraft of this important clause were not done in time for this House to scrutinise it closely, and debate it, before the Bill leaves this House for the first time.

LORD DRUMALBYN

First of all, may I thank the noble Lord for accepting the Amendment, although of course he is accepting it in the framework of a clause that he proposes to redraft. Perhaps I could be allowed to say a word on that also, because it seems to me that we could carry rather too far the idea that everything that goes out from this House should be perfect and not need to be amended in another place. It is well known that Bills come from another place and are amended here by the Government in line with discussions that have taken place in another place. I cannot for the life of me see why the same process should not apply in reverse.

Quite apart from that, I do not think there is any doubt, now that the noble Lord has agreed to accept this Amendment, that this clause as it is could stand. The only question is: can it be improved? It is now enforceable and workable, so that it would not be the end of the world if the Government were in the end to say, "We have discussed this and examined it with all the various bodies concerned, but we do not think we can do better than we have done with this clause." I do not think it would matter if that were done. I do not take the view, with great respect to the noble Baroness and the noble Lord, Lord Airedale, that it is absolutely essential that we should see any redraft the Government may be able to devise. I do say, with great respect, that I think they are going to have very great difficulty in redrafting along the lines they envisage. I do not think we need take it at all tragically if the Government are unable to produce a redraft before this Bill leaves this House. Of course, we have to bear in mind this Bill has taken rather longer in this House than was originally expected. I do not suppose the Government will wish us to have it before this House very much longer.

On recommended prices I agree with the noble Baroness; indeed, I tried to deal with this point at an earlier stage. I think that if we are going to have recommened prices in the Bill some reference must be made to the fact that they are both genuine and current, because there is deception in both ways. Some recommended prices are not intended to be genuine and, as the noble Baroness said, are mere "gimmicks", and there are also cases where recommended prices have been superseded, when manufacturers have reduced their prices, and the old price is quoted as the recommended price. On all these points I think the Bill could be tightened up. I entirely agree with the noble Lord about the difficulty in defining what normal prices of other goods are, and that was the main reason why I moved my Amendment.

There is one suggestion that I would make to the noble Lord. I referred in my opening remarks to what are attributes and what are accidents of the goods. If he will look at subsection (1) of Clause 2 he will find that some of the items there are attributes and others are accidents, such as where the goods were manufactured, the history of the goods and so forth. I would merely draw to his attention again the fact that the Molony Committee suggested that the price should be included in the trade description clause. I rather think that if the noble Lord were to include it in the trade description clause he would get over a great many of the difficulties, because then what is said about price, if it was misleading, would be caught by the other provisions in the Bill. I would commend that suggestion to him. It would also get over, for example, the difficulty to which the noble Baroness very rightly drew attention, the use of the phrase "made to sell at" such-and-such a price. An article may well have been "made to sell at", but the evidence is that in most cases that may not be true. Here again, as with recommended prices, one wants to be able to differentiate between the genuine and the false.

This is different from an actual comparison of price, and I hope that, because of the great complications involved in the quality, the history and so forth of the goods, the Government will not try to catch this by legal means; that it should not be a criminal offence to describe goods in that way. On the other hand, the voluntary system will undoubtedly attempt to deal with this, and has had a quite reasonable success in doing so. I entirely agree with the noble Lord that if we go too far and try to specify too rigidly and inflexibly what the law is to be, then a voluntary system cannot work at all because those who want to "chisel" on the law will say "If you think this is illegal, prosecute me; otherwise let me alone". This would mean that a voluntary system could not work at all. I agree with the noble Lord that it is better to leave to the voluntary system the kind of comparisons which this Amendment seeks to leave out.

4.2 p.m.

BARONESS BURTON OF COVENTRY

I shall be brief, but I should like to make one more plea to my noble friend on Clause 11. As I see it, this is really a matter of principle. I know that one can be quite tedious once a point of principle is reached. Granted that this Bill has been before the House for a long time, but with respect that is not the fault of the House. Had it no, been necessary for the Bill to be recommitted we should not have been nearly so long with it as we have, and I do not think it is unreasonable—here I agree with the noble Lord, Lord Airedale—to ask that at the next stage of our deliberations Clause 11 shall be before us so that we can look at it. I think it is quite unreasonable to ask us to pass this Bill without looking at Clause 11, and however inadequate the Government may feel their suggestion in regard to it should be, I think we ought to have it.

BARONESS ELLIOT OF HARWOOD

I have listened to the discussion with considerable interest. I entirely agree with the noble Baroness, Lady Burton of Coventry, that this clause is or e of enormous importance to the Bill, and I also agree with Lord Airedale and the noble Baroness that we should be able to discuss it on that ground. All that has happened this afternoon is that we have been discussing the clause at considerable length, and that it has been quite considerably weakened from the point of view of consumer protection by the acceptance of this Amendment. I f the Board of Trade and the Minister cannot find words to describe what they have in mind to do in Clause 11, it seers to me that it will get weaker still because they are going to try to find the lowest common denominator. This will make the clause much weaker than it was probably intended to be. I think it is a great mistake, and I am sorry about it. I wish we could have had the clause. Under the present arrangement, whereby it goes to another place, it means that there will be tremendous discussion and many of the things we have discussed here may well be altered. As the Bill started here, and as this is a key clause, I think it is regrettable that we cannot have proper wording, and that such wording as we have now has been considerably weakened.

LORD BROWN

I shall not detain your Lordships over this clause for too long, but I must reply to some of the points that have been made. First, I note the comments made by the noble Lord, Lord Drumalbyn, about dealing with the whole question in another way. We certainly shall think about this. But I think the fundamental difficulty of the whole matter of this clause is that you cannot get at the truth about external prices; the truth about external prices is simply not available. That is the reason for the idea which arose so recently, that we should alter our whole perspective and approach to this clause in order to tell the consumer what were the price comparisons which he can trust and leave him to come to his own judgment about other types of comparisons, which we would not attempt to treat as instances of criminal conduct. That is the fundamental difficulty.

In reply to my noble friend Lady Burton of Coventry, on the question of an advertisement saying, "Made to sell at 4½ guineas", we do not see the possibility of defining this as an offence, or indeed of upholding the law if we did so. But it could come within the ambit of the different approach that I suggest we should make, because once the consumer recognises that price comparisons, bearing certain symbols such as the "p.p." and "r.p." which I suggested as one manifestation of the idea, really mean something, then he may be led to understand that the other types of price comparison or value comparison were of but little value to him and that he had better watch out. We shall at least have done something to protect the consumer. But the possibility of enforcing the law in such a way to cover these types of comparisons to which the noble Baroness objects is very remote indeed. There is little hope of that.

On the last point, I am indeed sorry that a workable, full-blown clause along the lines I have indicated is not before your Lordships' House this afternoon. I shall be quite frank and say that I do not think that a possibility exists of getting it before your Lordships' House in time. I should have liked to be able to accept the vehement suggestions that we should be able to deal with this, but I believe that if we attempted to do so we should hold up this Bill intolerably and we may get the most unfortunate result of losing the Bill because of not being able to get it through this Session. Therefore, I want to be quite frank about this before your Lordships decide what you want to do in regard to this Amendment.

On Question, Amendment agreed to.

LORD DRUMALBYN

I beg to move Amendment No. 23B.

Amendment moved— Page 7, line 3, leave out ("are being or").(Lord Drumalbyn.)

On Question, Amendment agreed to.

4.8 p.m.

LORD DRUMALBYN

I move this Amendment purely in order to ask the noble Lord what the words are intended to mean, and what paragraph (c) is intended to mean. If he is going to recast the whole clause, it may be that these words would not be needed anyway. I rather suspect that they would be. So I would ask the noble Lord what is the purpose of the words, and to give an explanation to the Committee. I beg to move.

Amendment moved— Page 7, line 5, leave out ("as available for supply").—(Lord Drumalbyn.)

LORD BROWN

The noble Lord, Lord Drumalbyn, was good enough to inform me beforehand of his reasons for putting down this Amendment. I hope he will feel that his courtesy in doing so has enabled me to do justice to his questions. The Amendment raises two questions: First, why have Clause 11(3)(c) at all? Secondly, if we must have it, why not apply it simply to a person advertising goods and not to a person advertising goods as available for supply?

I do not think there can be much argument about the first question. We must catch false price comparisons made in advertisements—for example, by a mail order firm as well as those made in a shop. The shopkeeper is clearly caught by Clause 11(1): he puts price tickets on goods which he is exposing for supply and, therefore, for the purposes of the Bill he gives an indication about goods which he is offering for supply. But at Common Law—and this is one of the most important points—a person who advertises goods does not normally offer to supply them; at most he invites offers, saying, "I have these goods if you want them". This is a legal precedent. In order to cover this case, therefore, we must bring the meaning of "supply" in this Bill nearer to what I would call its common-sense meaning. To my mind, a mail order firm which advertises goods, offers to supply them; and in effect that is what Clause 11(3)(c) says.

The real difficulty arises over the second question. We are out to catch only the man who can be regarded as offering to supply goods in the commonsense meaning of the word "offering". As I have already said, this is the man who says, "If you want these goods, I have them." It is unnecessary to go further than that and catch advertisements that do not constitute present invitations either to make an offer or at least to visit a shop and see the goods. I submit that it is always dangerous in Acts of Parliament to go further than is necessary. So the retention of these words in the Bill limits the strength of this clause, and if we were to accept the Amendment we should be opening the clause to apply to more people than otherwise would be the case. I am quite sure that the noble Lord does not want that to happen. That is why I suggest that he might see fit to withdraw the Amendment.

LORD DRUMALBYN

My concern about the words "available for supply" is that goods may be advertised as available for supply but so many people may want them that there are not enough available to supply everybody. Taken in that sense this may put the person offering the goods as available for supply in a very difficult position. I wonder whether the noble Lord would consider the matter from that point of view. I quite see that this is not what the words are intended to convey. From what the noble Lord has said, I gather that what they are intended to do is to bring the person who is selling by mail order within the ambit of the law, in fact within subsection (1) (b). If he applies a false description he is supplying or offering to supply goods to which a false description is applied. That is the real purpose of these words, as I gather from what he said. If the words are intended to indicate that because a person offers goods as available for supply he must therefore supply them at the price, then I think it is going too far; but the words could be taken in that sense.

LORD BROWN

I have had the opportunity of going into this matter very deeply indeed, and I was surprised to learn the meaning put upon these phrases by the law to-day. "Available for supply" is the opening gambit, so to speak, leading later to a specific offer, which is the first part of a contract. "Offering to supply" virtually is making a firm quotation which commits the person offering it if somebody takes it up. Therefore, contrary to what the noble Lord believes, "available for supply" is nothing like as binding as "offering to supply". If the words "available for supply" were in fact taken out, then the clause would be much more menacing than it would be if those words were left in, which is the contrary view to that which the noble Lord has taken. I feel that in moving this Amendment he is defeating the ends which he is trying to achieve.

LORD DRUMALBYN

I am much obliged to the noble Lord for his explanation. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

4.15 p.m.

On Question, Whether Clause 11, as amended, shall stand part of the Bill?

LORD HAWKE

I am glad to see that a wind of common sense is blowing through the Board of Trade, and I was heartened by the speech of the noble Lord, Lord Brown, who has at last seen that this clause presents enormous difficulties. So far as I am concerned, he can take all the time in the world over this matter and I hope that he will not succeed in producing a revised clause. The whole Bill is an example of grandmotherly legislation which has proliferated from both political Parties in the past and has led to our ever-growing burden of a gigantic Civil Service. Clause 11 is one of the most difficult clauses in the Bill to police. It will either be completely ignored or else the people responsible for policing it—I suppose the weights and measures authorities—will want many more staff if they are to carry out the task. Even then, as the noble Lord himself has pointed out, the business of trying to compare prices and values offered by different people at different times is so difficult—in fact it might prove to be impossible—that it will be extremely expensive to the taxpayer to carry out. I do not think it is worth while.

I have already spoken about one or two drawbacks of this clause, but I will briefly recapitulate some of them. This clause is designed as a handicap to the type of sales which tend to take place nowadays; it virtually might put a stop to them as they are at present conducted. People get a great "kick" out of the sales in trying to spot the bargains from the non-bargains, and I feel that they will be morally much worse off if they do not get an opportunity to go to such sales. Some of the protagonists of the Bill might have had their spiritual home in Port Sudan before the war. One then went to the bazaars during a few hours ashore and perhaps bargained for the leather work and silver work, and one found in every shop a list of prices, signed by the District Commissioner, which the shopkeepers were not allowed to exceed or minimise. That is the sort of place which some people would like to turn England into.

Then there is the question of the mills to be considered. Sales provide a valuable outlet to the mills which want work in the slack times. If there are no sales, there will be none of this particular type of work filling in orders. Moreover, it appears to me that Clause 11, as at present drafted, is extremely simple to evade. The traveller goes to the store and says, "I have a good line in pullovers for your next sale. I can do them at a pound; you will be able to sell them at 27s. 6d." The storekeeper says, "All right, I will take 100 dozen. Send me along five dozen this week and the other 95 dozen can come in three months' time." The five dozen go to the shop and they are marked at £2. They may sell or they may not. They probably will not sell because they very dear at the price. In due course the rest arrive for the July sales, the £2 is crossed out, and "27s. 6d." is written in. Everybody is satisfied. The mill gets its orders, and the shop gets its sale goods and its normal margin of profit. The customer gets an article worth 27s. 6d. and is very pleased because he thinks it is worth £2. In that way everybody is satisfied and no offence has been committed.

I do not know how one is going to stop that sort of thing in any clause one drafts. I personally do not believe in passing legislation which cannot be enforced without minute inspection and which can be easily evaded. The Bill will be less bad if Clause 11 is removed. After all, we shall still have Clause 1, and if the advice of my noble friend, Lord Drumalbyn, is accepted and the provision regarding price is put in there, that might cover what is intended in Clause 11. There is also the Misrepresentation Act, which I feel renders the necessity for the Bill completely nugatory. I am not going to divide the Committee against the clause, but should like my remarks to be on the record in order that the wind of common sense may take some note of them when we are having our next discussion on this matter.

LORD BROWN

I do not want to detain the House longer, because the noble Lord, Lord Hawke, will agree that we have had extensive discussions on this subject. But I must, also for the record, point out that it is all very well for the noble Lord to talk of shopping as a rather exciting, pleasant, simple sort of sport. It can be, I admit, but it is not that sort of sport to the low wage-earner's wife doing her daily shopping on a low budget, with the full force of modern marketing techniques available to some unscrupulous firms who are intent on deceiving her into spending her scarce resources very unwisely indeed. This is the justification—

LORD HAWKE

May I just say that, after all, the noble Lord has postponed the raising of the school-leaving age to 16 by which people might have gained more common sense.

LORD BROWN

I shall ignore that irrelevancy and complete what I was saying. They want to deceive her into wasting her scarce resources, and I do not think it is fitting that this should be overlooked by the noble Lord in drawing attention to the recognised difficulties of the clause. We must attempt to do something. I should very much dislike it if this clause were not accepted by the House.

Clause 11, as amended, agreed to.

THE CHAIRMAN OF COMMITTEES (THE EARL OF LISTOWEL)

Perhaps I should remind the Committee that Clauses 12 to 17 were agreed to by the Committee before the Christmas Recess.

Clause 18 [Time limit for prosecutions]:

4.22 p.m.

LORD BROWN moved to add to the clause: (4) Subsections (2) and (3) of this section do not apply where either—

1. (a) the offence was committed by the making of an oral statement; or
2. (b) the offence was one of supplying goods to which a false trade description is applied, and the trade description was applied by an oral statement; or
3. (c) the offence was one where a false trade description is deemed to have been applied to goods by virtue of section 4(3) of this Act and the goods were supplied in pursuance of an oral request."

The noble Lord said: When Lord Drumalbyn put down a somewhat similar Amendment on the previous occasion my noble friend Lord Winterbottom expressed the Government's sympathy with the purpose of the Amendment and undertook to put down a Government Amendment if, after considering all the implications of the proposed change, this proved to be practicable. I hope the noble Lord will agree that the present Amendment achieves his purpose. Its effect will be that, in summary proceedings for an offence committed by making an oral statement, the period of limitation will be the standard period of six months, and not the period of twelve months prescribed by this clause. This shorter period will apply in respect of all oral statements, whether about goods or other matters. It will apply in England, Scotland and Northern Ireland. It will also cover the special case of application by conduct dealt with in Clause 4(3), where goods are supplied in pursuance of a request in which a trade description is used; in this case, the shorter period will apply if the request is made orally. I beg to move.

Amendment moved— Page 10, line 29, at end insert the said subsection.—(Lord Brown.)

LORD DRUMALBYN

I do not think I need detain the Committee on this mat- ter. I should just like to thank the noble Lord for meeting this point.

LORD CAWLEY

I should also like to support this Amendment, but I want to say something about passing-off actions when a trap order is laid; that is to say, when a person goes into a shop and tries to trap the assistant into giving him something under a wrong trade description. In such cases the court takes very little notice of any such complaint, unless the intended defendant is informed within a very short period of time of what has happened. I feel that this Amendment may not go quite far enough. In the case of oral statements, the intended defendant ought to be informed as soon as possible of intended prosecution. Otherwise, I support this Amendment so far as it goes.

LORD AIREDALE

May I ask the Minister whether he is aware that Sir Ernest Gowers defines the word, "either" as meaning one or other of two, and does he observe that "either" in this Amendment means one of three? Will he look sympathetically upon an Amendment from me at the next stage to leave out the word "either"?

LORD BROWN

Yes; I will try to look sympathetically, subject to advice from my legal advisers who do not always agree with the noble Lord's ideas on grammar. I am neutral on this matter.

LORD DRUMALBYN

On the matter of information, to which my noble friend Lord Cawley referred, may I remind the noble Lord that at an earlier stale I moved an Amendment to ensure that any person against whom a charge could have been made would be informed at the earliest possible moment; namely, apt the time when the enforcement authority gave notice to the Board of Trade? Perhaps he could have a look at that again in this connection. It is, of course, not without precedent that such notice should be given, and I quoted on the previous occasion the example of the motoring offences.

LORD BROWN

I will certainly consider the point.

On Question, Amendment agreed to.

Clause 18, as amended, agreed to.

Clause 19 agreed to.

Clause 20 [Accessories to offences committed abroad]:

LORD BROWN moved to leave out subsection (1) and to insert instead: (1) Any person who, in the United Kingdom, assists in or induces the commission in any other country of an act in respect of goods which, if the act were committed in the United Kingdom, would be an offence under section 1 of this Act shall be guilty of an offence, except as provided by subsection (2) of this section, but only if either—

1. (a) the false trade description concerned is an indication (or anything likely to be taken as an indication) that the goods or any part thereof were manufactured, produced, processed or reconditioned in the United Kingdom; or
2. (b) the false trade description concerned—
1. (i) consists of or comprises an expression (or anything likely to be taken as an expression) to which a meaning is assigned by an order made by virtue of section 7(b) of this Act, and
2. (ii) where that meaning is so assigned only in circumstances specified in the order, the trade description is used in those circumstances.

(2) A person shall not be guilty of an offence under subsection (1) of this section if, by virtue of section 31 of this Act, the act, though committed in the United Kingdom, would not be an offence under section 1 of this Act had the goods been intended for despatch to the other country.

The noble Lord said: When your Lordships discussed this clause on a previous occasion there was general agreement with its purpose, but it was made clear to me that subsection (1) was very difficult to follow. I promised to see whether we could do something better. I shall not weary your Lordships with a detailed exposition of the differences between the new provisions and the old, but I will try to give a brief indication of the changes we have made.

First, we have altered the general shape of the provision. The new subsection (1) lays down the general rule, and subsection (2) explains that there is to be an exception if an order has been made under Clause 31, which your Lordships will remember deals with exports and sundry matters of that sort. Perhaps I can best explain the need for this exception by means of an example. Suppose the laws of Ruritania require an article—say a watch—which we should regard as made in Switzerland, to be marked "Made in England" because of some final process carried out on it here in this country. This would put the British exporter in an awkward predica- ment. If he marks the watches in this country so as to comply with the laws of Ruritania, he will commit an offence against our laws. If he does not, his goods may be seized when they reach Ruritania. Clause 31 therefore enables the Board of Trade to make an order saying to the exporter, "When you are marking watches for despatch to Ruritania you may ignore paragraph (h) of Clause 2(1), which makes origin one of the matters constituting a trade description".

If it is reasonable to make this exception for goods marked in this country, it would be unreasonable not to carry the exception into Clause 20, which we are now considering. That, in fact, was the object of the words formerly appearing, "and the goods were intended for despatch to that country". I apologise now for not making this clear to your Lordships at the time. Perhaps I did not altogether understand it myself. Many of your Lordships found those words in the original subsection very mysterious.

The second change is one of substance. The effect of the words, being an indication which could not on any reasonable view be regarded as true was to introduce a more lenient standard of truth and falsity for goods marked abroad than applied to goods marked in this country. We now think that there is no need to make this distinction, and I hope your Lordships will agree that by omitting it we have produced a better and clearer provision. Finally, may I express my appreciation of the helpful and constructive criticisms of this clause which I have received from the noble Lord, Lord Cawley. I beg to move.

Amendment moved— Page 11, line 1, leave out subsection (1) and insert the said new subsections.—(Lord Brown.)

LORD CAWLEY

I am extremely grateful to the noble Lord for this Amendment. I think it has been a sterling example of co-operation to try to get something right. On Second Reading, and subsequently, I criticised this subsection extremely destructively; and I think the noble Lord will admit that it made no sense at all in the context in which I was looking at it. He then very kindly told me, by letter, what the draftsman was intending, and I saw that the draftsman was viewing this subsection in an entirely different context in which it made complete sense. So it became obvious that the two contexts had to be put together, and the subsection had to make good sense in both contexts. I congratulate the draftsman on having produced this subsection, which I think deals completely with this problem. I am fully aware that it is an extremely difficult problem, but the result of the draftsman's efforts is highly satisfactory to me.

VISCOUNT COLVILLE OF CULROSS

I agree with my noble friend Lord Cawley that the Government and the draftsman have done a very good job in redrafting this clause, and I, too—and I believe that I speak on behalf of all my noble friends on these Benches—am very grateful to the noble Lord. It is certainly not true that I had spotted that a nonexistent present order under Clause 31, applying paragraph (h) of subsection (1) of Clause 2 to Ruritania, was the sort of thing that was being talked about. It is now much easier to see that that is what is intended, and that is a great improvement. So far as the substantive change is concerned, again I should have thought that this was probably an improvement, because even now a certain amount of imagination is needed in bringing a prosecution under this clause, and if at least the test which will normally be applied throughout the rest of the Bill is again to be used here, rather than a wholly different one (which I think will be a rare case in any event, and will therefore be a specialised matter and difficult to get a uniform interpretation for), it represents an improvement. I think this is a great addition to the Bill, and I am very grateful to the noble Lord for having put it forward.

On Question, Amendment agreed to.

Clause 20, as amended, agreed to.

Clause 21 [Restrictions on institution of proceedings and admission of evidence]:

4.32 p.m.

LORD DRUMALBYN moved to insert at the beginning of the clause: () No prosecution for an offence under this Act committed in any advertisement broadcast on television or radio or published in any newspaper or journal of national or large provincial circulation shall be instituted except by the Board of Trade.

The noble Lord said: I make no apology for referring once again to Molony because, after all, it is the Molony Report on which this Bill is based. In paragraph 685, having recommended that the enforcement authorities should be the local weights and measures authorities, the Report goes on to say: … the Board of Trade should assume an overriding interest in the manner in which the law is applied". Later on it says: In one type of case we recommend that one or other of the Departments"— that is the Board of Trade or the Ministry of Agriculture, Fisheries and Food— should regard itself as an appropriate prosecutor, namely that of offending advertisements in newspapers or journals of national or large provincial circulation or on television". I should say that Molony made no specific recommendations to as what the means of implementing that should be.

The Report goes on to say: We make no specific recommendations as to the means by which our conception of the relationship between these Departments and local authorities should be brought into being. We emphasise, however, the importance of the law being enforced in a uniform and sensible manner which might not be secured without some form of central co-ordination. Section 109(3) of the Food and Drugs Act 1955 provides one example of the manner in which the desired relationship might be created". In fact, of course, that section is the one which has been copied, more or less, in Clause 29, which makes provision for notice of intended prosecution to be given to the Board of Trade.

We discussed at an earlier stage whether, in order to avoid multiple prosecutions, the Board of Trade should have the right to require local weights and measures authorities not to institute proceedings, and the noble Lord, Lord Brown, explained (it appears in column 615 of Hansard) that it would be wrong to confer on these authorities a right to prosecute and simultaneously to give the Board of Trade the right to veto their decision to do so. But the point we are discussing now is a rather different question. It amounts to this: that if the Board of Trade are going to accept the advice of the Molony Committee in this respect, so far as "newspapers or journals of national or large provincial circulation or … television" are concerned, this is really precisely what they will be doing. They will have conferred power to deal with this, and then, later, in order to implement Molony, they will have to veto their exercise of that power. If I may say so, I think that in such cases, namely, that of offending advertisements in newspapers or journals of national or large provincial circulation or on television"— the Molony Committee were right to recommend that this should be the field in which one or other of the Departments "should regard itself as an appropriate prosecutor".

I should like to ask as my first question, therefore: Do the Board of Trade agree with Molony in principle on this? Do they agree with that statement of Molony? The second question I should like to ask is this. If they do agree, how do the Board of Trade envisage implementing the principle? It is of course true that the Board could rely on the notice procedure and take over these cases if they could, as it were, use the local weights and measures authorities as their eyes and ears to watch and listen to advertising in national or large provincial circulation newspapers or on television; and of course they will also receive complaints direct from the public and from trade organisations. They do so now. But would this really be satisfactory?

That leads me to my third question. Do the Board of Trade themselves intend to watch such advertising; and, if so, how? What machinery do they propose to set up? If this is their intention, there is not much point in asking the local enforcement authorities to do so as well. Under Clause 25 each local weights and measures authority is charged with enforcing the law within its own area, and only within its own area. It may be that the duty to prosecute in such cases should be laid both on the Board of Trade and on the Ministry of Agriculture, Fisheries and Food. Under the Food and Drugs Act the Ministry of Agriculture, Fisheries and Food have powers to prosecute only under summary procedure, I believe. It can be argued that since this Bill allows prosecutions on indictment there is a good deal to be said for laying the responsibility for enforcement in the area of national advertising on only one Government Department, and that that Depart- ment should be the one charged with dealing with the advertising industry as such—namely, the Board of Trade.

Finally, if the Government accept the principle of this Amendment I feel that they may wish to define more closely what is meant by "large provincial circulation". I have used the exact words of the Molony Committee, but it would of course be possible to define them more closely. It has been done, for example, in the case of mergers of newspapers, for the purposes of the Monopolies and Mergers Act 1965, and therefore it can hardly be said that it is impossible to define what is meant by "newspapers or journals of national or large provincial circulation". Perhaps this is a matter which can be left to the interpretation clause. I should perhaps add that if and when local radio stations start to carry advertising it will clearly be undesirable that the duty of enforcement concerning such advertising should rest with local authorities, which have an interest in those local radio stations.

These are the considerations which have led me to put down this Amendment, and I hope that the noble Lord will at least be able to answer the specific questions I have put. They are: Do the Board of Trade accept the Molony recommendation that I have quoted? If so, how do they propose to implement it? Do the Board intend to watch this kind of advertising; and, if so, with what machinery? And is it desirable that only one Government Department should be responsible in this sphere, or should the Ministry of Agriculture, Fisheries and Food be added to the Amendment? I beg to move.

Amendment moved— Page 11, line 23, at beginning insert the said subsection.—(Lord Drumalbyn.)

LORD BROWN

I think one thing is becoming clear in the discussions about this clause. It is that there is a difference of principle between the noble Lord and myself on this issue. The Government have set out to use the local authorities' weights and measures inspectors; and they believe that this will work. I think the noble Lord is not so sure of this and wants to follow a somewhat different principle and to get certain of the measures that we should wish to be taken by the local authorities confined to central sources. That is the difference in principle. I know that the Molony Committee recommended in respect of offending advertisements in newspapers or journals of national or large provincial circulation or on television that the Board of Trade—or the Ministry of Agriculture, when their interests are concerned—should regard themselves as "an appropriate prosecutor". That is Molony, paragraph 685.

But the Committee did not suggest that these Departments should have the sole right to prosecute in such cases, or even that local authorities should be required to obtain their approval before themselves bringing proceedings. The recommendation was made in the context of the Committee's broader suggestion that the Board of Trade should undertake a co-ordinating function over the application of legislation by, among other things, taking over the prosecution of cases of wide importance. The Committee pointed to Section 109(3) of the Food and Drugs Act (which provides for notification to the Ministry of intended prosecutions by food and drug authorities) as a possible means of achieving appropriate co-ordination at the centre. That is the procedure which we have proposed in the present Bill. It should, in our view, enable us to encourage a uniform and serviceable enforcement policy as desired by the Molony Committee.

I do not want to start a great debate about the meaning of Molony—I am ready to concede that there may be other ways of interpreting Molony—because I do not think it useful to have such a debate. The noble Lord and myself are after different principles; we both seek support from Molony, but even if we both interpreted Molony in the same way I do not think it would help us very much. We must acknowledge that local weights and measures authorities are responsible bodies, experienced in enforcement of similar legislation, who are not likely to bring unnecessary prosecutions and who will be prepared to co-operate with each other and with the Board of Trade in those cases where larger than local interests appear to be involved..

I recognise that the noble Lord does not share that belief. I reiterate that the Board of Trade are ready to consider undertaking central prosecution in cases of national interest. I can, however, see no advantage in obliging them always to do so, and many disadvantages—not least the additional organisation that would be needed if they were made responsible for policing the Bill in relation to all advertisements published in the larger provincial papers and broadcasting systems. It would be impossible for the Board of Trade to undertake such a function in Scotland or Northern Ireland.

Before finishing, I must endeavour to answer the other questions which were asked by the noble Lord. First the matter of implementing Molony. He can now see that whereas he does not think we have implemented Molony, we think we have virtually done so. That is the answer to that question. In one sense, the question of watching advertisement: does not arise if we proceed on our way; but I think it is a question which is administrative in context. If I might hazard a guess, I would say that it is unlikely that the Board of Trade will set up a central organisation to do so. They will rely on the authorities who have the duty to report intending prosecutions to them, and get nation-wide information that way. I have forgotten the other question. Perhaps the noble Lord would like to repeat the fourth question. Or perhaps I have already answered it.

LORD DRUMALBYN

We do not need an answer to the fourth question. It was really consequent upon his acceptance of the Amendment. I am obliged to the noble Lord; but I must say that I think he will find in practice that he will have to follow Molony in this matter. It is a question of whether the Board of Trade accepts the Molony recommendation that the Ministries should be the appropriate prosecuting authorities in this case. If I may say so, I think the noble Lord has hedged on this. He says that there are cases in which the Board of Trade would prosecute. I agree; but the question we are here considering is simply: are we to envisage that there will be 300 or so local enforcement authorities, local weights and measures authorities, all looking at national advertising—because national newspapers circulate throughout the areas of all the local enforcement authorities—or is it more sensible that this task should be undertaken centrally? I have no doubt that it is more sensible that it should be undertaken centrally. It is much more economical, much more effective, much more efficient.

I hope that the noble Lord will continue to consider this question, because I think it is important from the point of view of the shape of enforcement that we are going to have. I would say that between now and the summer there is time to do a good deal of thinking about this matter. At some time or another it is necessary that the weights and measures authorities should be informed of what is to be expected of them, since the Board of Trade have the role of supervising the execution of their duties. I hope that the Board will be issuing a circular on this subject and that in that circular they will be able to accept the Molony recommendation. Nobody can say there is any doubt about it: Molony has recommended clearly that the Ministries should regard themselves as the appropriate prosecuting authorities in these cases.

As the noble Lord continues to consider the pattern of this administration I hope that he will come to see that this is the right form. My purpose has been served by putting down the Amendment. I do not think it essential that this should be down in black and white in the Bill; but I do think it essential that the Board of Trade should make up their minds and that the other enforcement authorities should know where they stand. I think it desirable that the Board of Trade—and possibly the Ministry of Agriculture, Fisheries and Food—should regard themselves as appropriate prosecuting authorities in these cases. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

4.49 p.m.

LORD DRUMALBYN moved to add to the clause: () In England and Wales, proceedings for any offence, where either—

1. (a) the offence was committed by the making of an oral statement; or
2. (b) the offence was one of supplying goods to which a false trade description is applied, and either the trade description was applied by an oral statement or, if the trade description is deemed to have been applied by virtue of section 4(3) of this Act, the goods were supplied in pursuance of an oral request,

shall not be instituted except by or on behalf of a local weights and measures authority or by a government department.

The noble Lord said: In offences arising out of oral misrepresentation, this Amendment seeks to limit the right to prosecute to the local weights and measures authorities and to Government Departments. Under the Weights and Measures Act, the right to prosecute in England and Wales is confined to local weights and measures authorities and the police. In Scotland, all prosecutions are instituted by procurators-fiscal. Under the Food and Drugs Act, the right to prosecute in England and Wales is restricted to the Ministry of Agriculture, Fisheries and Food in some cases; to the food and drugs authorities in other cases; and to the county councils and county borough councils in others. That, I believe, is all in the Sixth Schedule to the Act. There is no right to private prosecution. I should prefer to see the right to prosecute under this measure similarly restricted, were it not for the fact that the Retail Trading Standards Association has performed such a useful service in bringing dishonest traders before the courts in England and Wales. I should be very glad if some means could be found of limiting prosecutions under this measure so as to exclude any person with a personal interest in the result, whether it be an individual or a trade competitor.

Had I seen a way to do so, I would have drafted an Amendment to permit bodies such as the R.T.S.A. and reputable trade associations, as well as local weights and measures authorities and Government Departments, to institute proceedings, and no one else. But in the case of oral statements it seeems to me of particular importance to exclude private prosecutions by individual trade competitors or consumers, even if it means denying the R.T.S.A. and reputable trade associations the right to prosecute in such cases. The reasons which led the Molony Committee to recommend that the law should not be extended to cover oral misdescriptions are particularly cogent against allowing private prosecutions. In paragraph 659 on page 218 of the Report they state: … there must be recognised the danger that the shopkeeper might be taken to court out of spite; or threatened with prosecution if he failed to submit to some extortionate demand in relation to the goods. To make oral misdescription an offence would be to put a very powerful weapon in the hands of a disappointed shopper. The danger of vindictive prosecutions is very real, but if the person has first to lay his case before the local enforcement authority the danger of such a prosecution is much less. It is also easy to envisage self-appointed busybodies setting themselves up locally to encourage or to conduct such prosecutions. The possibility of a degree of blackmail, as indicated by the Molony Committee, also cannot be excluded.

Consumers do make bad buys, and it is only human nature for them to put responsibility on others, in particular the salesmen in the shop, even where they have only themselves to blame. Admittedly, the blame may lie either way, but if they genuinely believe that they have been misled or swindled, surely their proper course, if they cannot get satisfaction from the supplier, is to report the matter to the enforcement authorities, as they would in the case of other criminal offences, rather than to take proceedings themselves in cases of oral misrepresentation.

I think I should add that even the most completely honest retailers view the extension of the law to cover oral statements with misgiving and even resentment. They believe that the possibility of a private prosecution may well undermine the confidence which ought to exist between trader and customer. I think that gross or persistent wilful deception by way of oral statement ought to be punished by the criminal law, but I believe it should be punished only at the instance of the enforcement authority. In my view, the acceptance of this Amendment would not reduce the protection that this measure affords to consumer or trader, for they would be able, under another measure which has recently been laid before this House, the Civil Evidence Bill, to cite criminal conviction under this measure in any subsequent civil proceedings. I hope that that is so, and if the Government accept the principle of the Amendment to Clause 33 in the name of my noble friend Baroness Elliot of Harwood they will be in a still stronger position. But it seems all the more important, in view of the criminal evidence, that private persons ought not to be able to bring criminal proceedings as a means to an end, for their own individual advantage, for the obtaining of civil redress. I think that ought not to be the way that criminal proceedings are treated. I beg to move.

Amendment moved— Page 11, line 23, at beginning insert the said words.—(Lord Drumalbyn.)

BARONESS BURTON OF COVENTRY

I was glad to hear the noble Lord, Lord Drumalbyn, mention the effect the acceptance of this Amendment would have on the actions of the Retail Trading Standards Association. I was even more glad to hear him regret that effect. Obviously I do not know what reply my noble friend Lord Brown will make to the noble Lord, Lord Drumalbyn, but I should like to say to my noble friend, in view of the very great part the Retail Trading Standards Association has played in consumer work, that I feel it would be most unfortunate if it were prevented from bringing an action which it felt to be justified.

For those of us who have been interested in consumer work for a long time it is no news that in the 1950s, when the Government and the Board of Trade were dragging their feet and would not bring prosecutions, the brunt was borne by the Retail Trading Standards Association. I think it would be most unfortunate if it were to be limited here I take the point made by the noble Lord, Lord Drumalbyn, and I agree with him, that it would be unfortunate if private prosecutions were brought in this matter. But if my noble friend is contemplating the acceptance of this Amendment I hope that he will not accept it if he can see no alternative to depriving the Retail Trading Standards Association and other reputable trading associations of the right to bring these prosecutions.

4.56 p.m.

LORD BROWN

There are many clauses in the Bill which cause me much soul-searching, and this is certainly one of them. I came to the Committee today fully intending to resist this Amendment. I listened to the noble Lord, Lord Drumalbyn, and I was affected, as one is supposed to be, by the debate, and the idea that, in spite, people could take effective criminal action in this case. If it were civil action, it would not be so bad. I listened to the noble Baroness, Lady Burton of Coventry, and I think it would be a tragedy if such a body as the Retail Trading Standards Association was debarred from bringing prosecutions.

One has to reflect that for the ordinary citizen, who does not bring prosecutions from spite but on the very good basis of having been wilfully cheated on perhaps a number of occasions, to be deprived of the right of recourse to the law under this measure would be very sad indeed. The argument in favour of retaining the clause as it stands is that the danger of private spite prosecutions being brought, or prosecutions of a trivial or frivolous nature, is that these prosecutions are very expensive. In itself that would be a substantial deterrent, and there is a further deterrent in that, as the noble Viscount, Lord Colville of Culross, pointed out earlier, if someone is found to have brought a prosecution without justification, the court has power to award costs against him, including the costs of the defendant. So there is a great deal of argument one way and another, and in the light of the debate we have had I should like to look at this point again.

As I said earlier, I came to the Committee not liking the Amendment. I have been affected by listening to the debate, and I should like time to have a look at it. If the noble Lord, Lord Drumalbyn, will withdraw the Amendment, we may be prepared to introduce another Amendment at a later stage, although I give no guarantee; because, having looked at it more closely, the balance of argument might still go against the sort of Amendment which the noble Lord has proposed. So I am not committing myself to anything except to have another look at it.

VISCOUNT COLVILLE OF CULROSS

I think it is at this point that the noble Lord might also, perhaps with advantage, bear in mind the point made by my noble friend Lord Drumalbyn about giving notice to a person who is liable to be prosecuted. Would it not usually be the case that if you have a private prosecution it will be a conflict mostly of evidence, the word of one person against that of another? The person who brings a private prosecution—whether he does it in spite or not does not make any difference for this purpose—will remember the incident clearly, but the shopkeeper will remem- ber it, if he remembers it at all, as one of a large series of transactions he carried out on the day in question. He may have no recollection of it whatever. It may have been attended to by one of his assistants who never asked about it at the time. If there is to be an unlimited right of private prosecution, of which I am in favour, there certainly ought to be something done about the question of giving notice. These may be small transactions in some cases, and difficult to remember, and what was said quickly slips from the mind.

VISCOUNT DILHORNE

The noble Lord will be familiar with the fact that in certain traffic offences notice of intended prosecution has to be given within a specified time. May I commend that provision to him, because in the absence of such a provision, under Clause 18(1) prosecutions can be instituted within three years. That is a longer period of time than usual and it seems to me that there is no proper safeguard for the defendant. May I support what my noble friend has said by hoping that the noble Lord will not find it necessary to put any restriction on the right to institute private prosecutions?

LORD DRUMALBYN

In view of this discussion and of the noble Lord's undertaking to look at this matter again, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD DRUMALBYN moved to add to the clause: () No proceedings under this Act in respect of an oral misdescription of goods shall be brought if the oral statement conflicts with any statement marked on or accompanying the goods and that information is not false, unless the purchaser had no opportunity of reading the statement on or before purchase.

The noble Lord said: This Amendment is similar to one I put down on the earlier Committee stage and I have attempted to alter the difficulty in the last line but one to which attention was then drawn. I am not certain that I have got it right yet, but I do not think that there is any doubt about which statement is referred to, because obviously an oral statement cannot be read unless one is deaf and has to lip-read. I think that this is an improvement on the previous Amendment. The noble Lord undertook to look at it and I should be grateful if he could tell us now the result of his consideration. I beg to move.

Amendment moved— Page 12, line 21, at end insert the said subsection.—(Lord Drumalbyn.)

LORD BROWN

As the noble Lord has said, we discussed this Amendment in a slightly different form on another occasion and I do not think that the arguments against it are any weaker now. We are dealing with the situation where goods are correctly labelled by the manufacturer, where both the shop assistant and the customer have had an opportunity of reading the label, and where the shop assistant tells the customer something which conflicts with the label. It might be difficult to decide in some cases whether a customer has had an opportunity of reading the label: for instance, where a label on a shirt is tucked away out of sight inside the shirt and the shirt is neatly wrapped up in cellophane. I am not sure whether the customer is expected to know that the label is there and ask for an opportunity of taking the shirt out of the wrapping and to read the label. But apart from that, there are many cases where even though an article is labelled by the manufacturer the customer should be entitled to rely upon what he is told by the shop assistant. The assistant has had just as much opportunity of reading the label, if not more opportunity, and if he considers himself justified in saying something different he should surely accept liability under this Bill for what he says and the customer should surely be entitled to rely on him.

If, for instance, a gramophone needle has a label saying that it will play for 72 hours and the shop assistant falsely tells the customer that this is an underestimate and that in actual fact the needle will play for nearer 200 hours, I think that the assistant should be responsible for what he says. Or if he says untruly that he knows from personal experience that a label warning against the use of a dry-cleaning fluid in a closed space is an unnecessary and over-cautious piece of advice by the manufacturer, he should be covered by the Bill. But if the Amendment were accepted, there would be nothing to prevent a shopkeeper or salesman from deceiving customers by deliberately contradicting true information given in a label. This would defeat the purpose of the Bill, which is to make sure that where information is given it should be correct. On these grounds I must ask your Lordships to reject the Amendment.

LORD DRUMALBYN

I am grateful to the noble Lord. He has quite convinced me, and I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 21 agreed to.

Clause 22 [Offences due to fault of other person]:

5.7 p.m.

VISCOUNT COLVILLE OF CULROSS moved to leave out Clause 22 and insert the following new clause:

Defences, etc.

"22.—(1) In any proceedings for an offence under this Act it shall be a defence for the person charged to prove—

1. (a) that the commission of the offence was due to a mistake or to reliance on information supplied to him or to the act or default of another person, an accident or some other cause beyond his control; and
2. (b) that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or any person under his control.

(2) In any proceedings for an offence under this Act of supplying or offering to supply goods to which a false trade description is applied it shall be a defence for the person charged to prove that he did not know, and could not with reasonable diligence have ascertained, that the goods did not conform to the description or that the description had been applied to the goods.

(3) If in any case the defence provided by subsection (1) of this section involves the allegation that the commission of the offence was due to the act or default of some other person, the person charged shall not be entitled to rely on that defence unless within fourteen days of the service on him of the summons or indictment he has given notice in writing to the prosecutor of his intention so to do specifying the name and address of that person.

(4) Where the proceedings are brought before a court of summary jurisdiction and the person charged gives notice in accordance with the last foregoing subsection, he shall send a like notice to that other person and that person shall be entitled to appear at the hearing and give evidence.

(5) Where the commission by any person of an offence under this Act is due to the act or default of some other person that other person shall be guilty of the offence, and the person may be charged with and convicted of the offence by virtue of this subsection whether or not proceedings are taken against the first-mentioned person."

The noble Viscount said: I confess that mine was the tortuous hand which drafted this Amendment, so perhaps I had better explain, on behalf of my noble friend, Lord Drumalbyn, what it is about. The Committee may recollect that, rather unfairly perhaps, I asked on the Question that the clause stand part, on the previous Committee stage, about the third party procedure which is found in the Food and Drugs Act and also in the last Bill on this subject when it came before your Lordships' House some years ago. The noble Lord, Lord Brown, then produced a learned and most informative disquisition upon why it would not be possible to have third party procedure if the trial should be by way of indictment. I accept that. Nevertheless, it seemed to me that there was a way round this, and I have attempted to introduce the third party procedure for summary cases. The result appears in this Amendment. It simply requires notice of the intention to rely upon somebody else's act or default by way of defence in all cases, this having the advantage, it seems to me, that even if the matter were tried by way of indictment, provided it was done soon enough, the prosecution would be able to act under what is at the moment Clause 22 of the Bill or subsection (5) of my Amendment and bring in the other person, either as well as or instead of the person who was originally prosecuted. Therefore, they would get the true offender and know in time who it was said to be, make their own investigations and act accordingly.

I have stolen from the noble Lord's Amendment No. 30B the slight alteration in Clause 23 as it now stands, but apart from this the third party procedure which I have put down is exactly as it stood in the previous Bill. I do not know whether the noble Lord has had time to think about this matter again. I am afraid that the notice I gave was fairly short, but if he could now explain whether or not this procedure is suitable, quite apart from the drafting—I appreciate that I may have made mistakes and that no doubt this Amendment is not suitable for Scotland, because I had no books with me when I drafted it, and even if I had I can never find what is suitable for Scotland—or at any rate if he could deal with the principle of the matter, it would be of help to the Committee, particularly as this appeared in the last Bill and I have attempted to follow as closely as possible the drafting of that measure. I beg to move.

Amendment moved— Leave out Clause 22 and insert the said new clause.—(Viscount Colville of Culross.)

LORD BROWN

As the noble Viscount has said, the proposed new clause is in fact an amalgamation of Clauses 22 and 23, plus the Government's proposed Amendment to Clause 23(1), plus the provisions in subsections (3) and (4) for notice and the third party procedure. I think it is clear, both from what the noble Viscount has said about this Amendment and from the advance warning he was kind enough to give me of his purpose in putting it down, that all I need discuss is the provisions of subsections (3) and (4). The former relates to the notice to be given by a person intending to plead the third party defence; the latter would introduce the third party procedure but only for summary proceedings. The noble Viscount, Lord Colville of Culross, made this suggestion when Clause 22 was first debated in Committee, and I promised to consider it.

I should like to say something, as briefly as I can, about the technical and procedural aspects of subsections (3) and (4) before discussing their general merits. I am advised that there seems to be no objection to subsection (3) (the obligation to give the name of the alleged real offender), either in proceedings on indictment or in summary proceedings. But there are other cases to which I will come. Similarly the introduction of the third party procedure as proposed in subsection (4) would not, of course, be open to the objections I mentioned when this topic was last debated by your Lordships. But, again, there are other objections.

There are two reasons why we think these provisions could not be accepted as they stand, even if they were acceptable in principle. The first is that we do not think fourteen days after service is a satisfactory time limit. I know that it appears in the Food and Drugs Act and in the Weights and Measures Act, but the motor trade, in particular, is concerned, and I think reasonably, about the shortness of the time. There might be difficulties for other traders, as well. However, I do not want to hang the whole of the argument on that. The second reason is that I am advised that the procedure proposed in subsection (4) cannot be fitted into the Scots system of criminal procedure, and an Amendment would therefore be needed for Scotland. The noble Viscount was quite right in his anxiety on that point.

The more serious objection to subsection (4), however, arises from the fact that the offences created by this Bill do not fall into two mutually exclusive classes of offences, those triable summarily and those triable on indictment: with one unimportant exception all the offences created by this Bill are what are called "hybrid" offences. This means that they can be tried summarily or on indictment, and, what is more, that proceedings can be directed to be tried summarily or on indictment. It therefore follows that, when proceedings are instituted, the parties will not know for certain how they are going to be tried. To introduce this procedure for one sort of proceedings and not the other is, therefore, very likely to lead to uncertainty and confusion.

So much for the technical or procedural aspects of the Amendment. May I now turn to the general merits? I have every sympathy with the purposes of both the noble Lords, Lord Drumalbyn and Lord Colville of Culross. I share the wish of the noble Lord, Lord Drumalbyn, to save the retailer from being prosecuted for an offence which is really the manufacturer's fault. I should also like, if possible, to avoid what the noble Viscount, Lord Colville, described as the "messy" position that arises if you find that when A has been tried it was really B's fault all along, so that you have to prosecute B to see that the right man is convicted.

I cannot see, however, how subsection (3) or (4) helps the retailer in a case like this. He is always free to try to persuade the prosecution that the real offender is someone else (we hope that he will do so before he is brought to court); and if he succeeds, the prosecution can go straight for the alleged real offender under the by- passing procedure which the Bill provides. If we introduce the third party procedure, so far from helping the defendant, we actually impose an extra burden upon him: we say, "You may not plead the third party defence unless you comply with this procedure."

I realise, however, that this does not deal with the case put forward by the noble Viscount, Lord Colville. His point, as I understand it, was that it is more economical, in terms of the time and effort of the magistrates and the prosecuting authorities, to try to make sure that the real culprit can be identified and convicted in one set of proceedings. I am not sure that the Amendment would produce that result. All subsection (4) says is that the third party is to be entitled to appear and give evidence. There is nothing about his being convicted. If he cannot be convicted, a second proceeding will be required. I do not wish to labour this point unduly; no doubt the noble Viscount could amend the subsection.

Be that as it may, I think our main concern should be for the interests of the innocent defendant, and after careful and sympathetic consideration of the matter I cannot recommend your Lordships to accept this Amendment. It involves one awkward procedural complication; but more important, in my view, it does nothing to help the innocent technical offender. Indeed, if anything it hinders his conduct of his defence. If he omits to give fourteen days' notice, or has difficulty in establishing the true offender in time to give the fourteen days' notice, or twenty-eight days, or whatever it is—I think there will always be difficulty—then he cannot plead the third party defence at all. I submit that that is not in his interests. If we are considering the matter from the point of view of the retailers, as will generally be the case, it seems to me that the Bill as it stands is better for him than it would be under the Amendment, which seeks to achieve an improved position but does not, I think, actually do so.

VISCOUNT DILHORNE

I have listened carefully to what the noble Lord has said, and I must confess that I am rather disappointed by his reply. There are many Bills which create what he calls "hybrid" offences—offences which can be tried summarily or on indictment. It is true that when the case first starts the accused will not know whether it is going to be tried on indictment, because his first appearance will be in the magistrates' court. I can see no injustice to a proposed defendant when served with a summons being told: "If you are saying that someone else is responsible for this you must disclose, if you know it, his identity or give such information as you can about who is the person responsible, even if you cannot name him." I should have thought that that would have great advantages for the administration of justice.

In the first place, it would put the prosecution on their guard. They could go into the matter then, and if they thought it was true they would drop the proceedings against the man who had the summons served upon him and would start proceeding, against the other person. It cannot, to my mind, prejudice the accused man that this obligation of giving notice should be put upon him, any more than it really prejudices a person who wants to put forward an alibi defence to have to give notice that he is going to rely on that defence. I think that, from the point of view of the administration of justice, where you want to get the right man convicted, there is a lot to be said for it.

Supposing the case is sent for trial, it is true that you will not be able to try on that one indictment the other party. There is some force in that. But bear in mind that if the notice has to be given after the service of the summons (fourteen days may be too short, and it may require a longer period; I do not know), and if the notice has to be given within a certain time of the institution of proceedings, that will cover the later proceedings which follow the indictment. I cannot believe it is likely that in these cases the prosecution will proceed by way of a voluntary bill; that is to say, without going before the magistrates at all. I would ask the noble Lord to think about this again.

I agree that it may not be possible to have the ordinary complete third party procedure like that under the Food and Drugs Act, but if, after notice is given within a certain time saying that X is the man responsible, the prosecution still go on, it may indeed assist the defence, when the trial comes on, to say: "When I was first charged with this I let the prosecution know. Now they intend to go on against me, and they are wrong." If, on the other hand, the prosecution are satisfied, they then drop those proceedings and can go against the right man. I should have thought there was a lot to be said for that, although it does not bring in, as it were, a complete Food and Drugs Act third party procedure. I hope that the noble Lord will have another look at this.

VISCOUNT COLVILLE OF CULROSS

So do I. Having heard what my noble and learned friend Lord Dilhorne has said, I should like to try again to see whether I can deal with some of these technical problems. The difficulty about the hybrid offence has already been touched upon by my noble and learned friend, but it seems to me that if I transferred the notice being sent to the other person from subsecion (4) to subsection (3), so that at the stage when one gets to the magistrates' court the prosecution knew and the other person knew, we should at least have achieved something. Whether one is going to give the magistrates power to convict is certainly a matter to be thought about. I think that one should. It can be done under the Food and Drugs Act. And it may be necessary to consider how you ensure that the other person is there, notice having been served upon him.

I think there are procedural difficulties to be thought out, and I certainly should like to consider them. But the noble Lord's main point was not that these procedural difficulties are wholly insuperable: I think he said that it was not really in the retailer's interest to have this procedure at all. But Parliament did not take this view when this other legislation was passed. The Food and Drugs Act third party procedure does work. My noble friend Lord Cawley said so on the last stage of the Bill, and I also happen to know that it works. I do not think it would be used by the shopkeepers who are prosecuted under that legislation unless they thought it was a protection for them. There is no necessity for them to use it if they do not want to do so: it is purely voluntary. Yet they do, and they use it in order to avoid being convicted of an offence which certainly brings them into disrepute in their trade.

No person who sells bread wishes to be known as the person who sells bread with a bit of brick in it. No person who sells anything is going to want to be convicted under this Bill, because it is bound to damage his reputation. I think he should have the opportunity on the one and only occasion when the matter comes up before the local magistrates, and the local Press is there to hear it, of perfectly properly shifting the blame on to the person who is really responsible. I think he may consider it a protection for him which he would like to make use of. If he does not, he does not serve notice on the prosecution, and does not use the defence, in which case his views can be equally well respected. But, at any rate, under my system the prosecution will know where they are about this kind of defence. If another person is going to be involved they will have notice of it.

I am not asking the noble Lord to say "Yes" or "No" now. I should like to study the procedural and technical difficulties that have been mentioned and try to put them right. But I think that perhaps he and the Department might be prepared to have another think about this, in case we can produce something which is not only right but a real improvement. I hope the noble Lord will at any rate not harden his heart completely against it at this stage. I would beg leave to withdraw the Amendment to-day, and perhaps we could revert to it on another occasion.

LORD BROWN

Although I am in the presence of noble and learned Lords, I must confess that I have not been convinced by their arguments. I admit that this may be because I do not know enough about all these procedural matters concerning the court. In the light of the weight of the arguments, I will certainly have another look. I will see what my legal advisers have to say, because I am between two opposed sets of legal advisers at the moment.

What convinced me that the Bill as it has been drafted was right lay in matters like this. I think that a large number of prosecutions that will be brought around this matter of false trade desciptions, and so on, will be related to manufacturers or advertisers, and so on, and not to the retailer; this is the point where they are picked up. I should have expected it would be much easier for a retailer to say, "Yes. Fair enough. The label is wrong, but I accepted it in good faith." A large number of these cases will go back, as has been indicated in discussion on many clauses of this Bill. It would be much easier for him to be in the position to get smartly off to demonstrate to the local authority that he was not the party involved, and under this Bill we should go for the person who is at fault. We should not put him in the position of going to court—

VISCOUNT COLVILLE OF CULROSS

The noble Lord has never understood that this new clause provides for exactly that to be done. The third party defence is only in as an alternative. If the noble Lord looks at subsection (5) of this clause he will see that I have put in Clause 22 as it now stands verbatim, so that all the person who is charged has to do is to go off to the local authority and try this persuasion. There is nothing to stop him under this procedure which I am suggesting. All I am saying is that if he fails, then he still has a defence and a method of bringing the other person, whom he says is to blame, into court at the same time.

LORD BROWN

I accept what the noble Viscount says. We are pari passu on that count. But if the person charged ends up in court because he has not made himself clear, and has not had legal advice, under the Bill as it is he can plead third party defence; but under the Amendment, unless he has by that time given 14 or 28 days' notice of the person he thinks is the third party, he cannot use that defence. I do not want to go on with this matter. We will have a look at it—I must do so in view of the arguments that have been made—and we will see what happens on another stage. But, frankly, I remain unconvinced, although this may be due to my ignorance rather than to lack of advocacy on the other Benches.

LORD DRUMALBYN

I hope the noble Lord will bear in mind that the prosecution can take place only after 28 days' notice to the Board of Trade. So if my previous Amendment were accepted, and the person who is likely to be charged, or whom the local enforcement officer intends to charge, was notified at the same time as the Board of Trade was notified that there was a a possibility of his being charged, this would help him to lay the blame elsewhere and to trace who was really responsible if it is thought the 14 days is not enough. He would then have probably a minimum of an extra 14 days, and possibly an extra month.

VISCOUNT COLVILLE OF CULROSS

I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 22 agreed to.

Clause 23:

Defence of mistake, accident, etc.

23.—(1) In any proceedings for an offence under this Act it shall be a defence for the person charged to prove— (a) that the commission of the offence was due to a mistake, or to an accident or some other cause beyond his control; and

5.27 p.m.

LORD BROWN moved in subsection (1) to leave out paragraph (a) and insert: (a) that the commission of the offence was due to a mistake or to reliance on information supplied to him or to the act or default of another person, an accident or some other cause beyond his control; and".

The noble Lord said: This Amendment would make two changes to Clause 23(1). First, it would provide expressly for the third party defence; secondly, it would provide expressly that a person who committed an offence by reliance on information supplied to him should have a defence if he had acted reasonably. As to third party defence, it has always been our intention and understanding that it should and would be available by virtue of Clause 23(1). We cannot think of any case in which Clause 23(1) as now drafted would not cover it. But doubts have been expressed, and it is a field in which we cannot risk any uncertainty. The Government therefore think the sensible course is to make express provision for it by adding the act or default of a third party to the causes listed in Clause 23(1)(a).

If the Amendment is accepted, it should be clear beyond argument that the third party defence is available under this Bill as the Molony Committee recommended that it should be. As to reliance on information supplied to the defendant, the reason for proposing that this should be added to the causes listed in Clause 23(1)(a) is, quite shortly, that we have studied very carefully what the noble Lords, Lord Drumalbyn and Lord Auckland, said on a previous occasion and have come to the conclusion that they were right in saying that a defence of this sort was needed and that it was not provided by Clause 23(2) as now drafted, and probably not by Clause 23(1). I am not saying that I accept all the noble Lord's strictures on Clause 23(2), but I need not go into that now. Clause 23(2) is available only to persons charged with the offence of supplying. We are concerned here with a retailer or advertising agent who applies a false trade description.

Your Lordships will see that we are now proposing to be a little more generous than the Molony Committee. They proposed that only the very limited defence of Clause 23(1) as now drafted should be available for appliers of false trade descriptions. We now think this is too harsh. Not all "appliers" are in the same position. This Amendment makes it possible to do justice to them all—from the manufacturer who initiates the trade description to the small retailer who passes it on by putting a show card by his goods. I beg to move.

Amendment moved— Page 12, line 31, leave out paragraph (a) and insert the said new paragraph.—(Lord Brown.)

VISCOUNT COLVILLE OF CULROSS

I think my noble friend Lord Drumalbyn may like to say something rather more general about this Amendment, but I wonder whether the noble Lord, Lord Brown, can help me with one problem to which I have never been able to see the answer in this Bill. May we take as an example the noble Lord's gramophone record that is said to last 72 hours.

LORD BROWN

Gramophone needle.

VISCOUNT COLVILLE OF CULROSS

Yes; I am sorry. I must not put the noble Lord into the wrong trade. Suppose that a man has a shop which sells gramophone needles, and he knows that on the box containing a particular sort of needle is a statement that it plays for only 72 hours; and suppose he has told all the shop assistants they are to stick to the wording on the box of anything that they sell, so that they do not get into trouble under this Bill. But suppose that the shop assistant does not do that; he does what the noble Lord has suggested may happen, and tells a customer "Don't pay any attention to what it says on the box; this needle plays for 200 hours". I think the shopkeeper has committed an offence under Clause 1, in that he has supplied goods to which a false trade description has been applied by the words of the assistant, and therefore he is guilty of an offence.

As the matter stands with the noble Lord's Amendment, the shopkeeper certainly could not bring a defence under subsection (2) of Clause 23. He would have to do it, I think, under subsection (1), and he would say, "The other person who was at fault was my own assistant". Then he runs into difficulty under paragraph (b). In the case of his own assistant, has he complied with that paragraph by merely telling the assistant always to stick to the words on the label on the box; or is there going to be a situation where the one person that he cannot blame is his own assistant, who has either disregarded instructions or has said something to which the general instructions given to him by the shopkeeper do not relate? I think there may be a difficulty here. Again I do not suppose this is a matter on which the noble Lord can answer to-day, but I should be glad to know about this because if there is a lacuna here and the real person who ought to have been prosecuted is the shop assistant, but the shopkeeper has not really got a defence under the Bill at all, I think he ought to have. I should be grateful if the noble Lord would turn this over in his mind.

LORD BROWN

The matter has been considered. I have asked a question in preparation for this matter coming up, and I think it might be best if I were to read my note on it, because it exactly fits the case raised by the noble Viscount. Where a shop assistant, in the course of his employment but in disobedience of plain instructions, applies a false trade description to goods, this is a case beyond the employer's control. This illustrates the fact that "cause beyond his control" overlaps the act or default of a third person. In this case the defendant must have taken all reasonable care and exercised due diligence to avoid the corn-mission of an offence. The standard of care and diligence will obviously vary with the circumstances. The instructions to the assistant are to go by the instructions on the container, and so on. If the shopkeeper can demonstrate that lie has given such an instruction, he has a defence. I am so advised and I do not think there is any doubt about it.

LORD AIREDALE

I am not sure that there is not a further complication. Supposing the shop was owned by a limited company, subsection (1) of Clause 19 would apply, and it says that directors and managers of limited companies are guilty of offences if the offences are committed by shop assistants, and so oil, employed by the company. Quite where this takes us I do not know, but it is an added complication.

LORD DRUMALBYN

I should like to thank the noble Lord, Lord Brown, for having met the point on my Amendment No. 31. I have always been in some doubt about this, but he has correctly interpreted the purpose I had in mind. My doubt has been the same as that expressed: what degree of precaution has to be taken in any particular case? However, I realise that is a matter for the courts. For example, in the case of the advertising agent I do not think he could be expected to verify all the statements that are made to him by the advertiser for whom he is preparing the advertisements; and, of course, in the case of the retailer it may be impossible for him to verify statements without actually causing damage to the goods he is offering for sale. I think these are matters for the courts to decide, and I feel certain they will take a reasonable view in these matters. I was not able personally to draft wording, but I should have liked to see something like "reliance on information supplied to him by persons on whose information he is accustomed to rely". It is a somewhat circuitous expression and I could not think of suitable words.

BARONESS BURTON OF COVENTRY

I want to ask what is probably a very ignorant question, but there is something I do not understand. I want to say to my noble friend that I am strongly in support of his Amendment No. 30B, but I have made a note, "provided that Amendment No. 31 is not accepted by the Government". I know that we have not yet reached that Amendment, but my ignorant query is this: do I understand from what the noble Lord, Lord Drumalbyn, has said that Amendment No. 30B, which is put forward by my noble friend Lord Brown, covers his Amendment No. 31, and is therefore acceptable? If it does, I should like to make one comment. If my noble friend can enlighten me I shall be glad.

LORD BROWN

As I understand the situation, if No. 30B is passed, then I rest in the hope that the noble Lord, Lord Drumalbyn, will not move Amendment No. 31.

LORD DRUMALBYN

That is so.

LORD BROWN

In that case the question does not arise.

BARONESS BURTON OF COVENTRY

Then I shall have a chance to speak on the next Amendment.

VISCOUNT COLVILLE OF CULROSS

I think the noble Baroness is under a misapprehension. As I understand the situation Amendment No. 30B in fact includes the point raised in Amendment No. 31, and I have no doubt that the noble Lord, Lord Brown, having moved it, my noble friend Lord Drumalbyn will not move Amendment No. 31. So if the noble Baroness has a point she wishes to raise, I think perhaps the Committee would be agreeable to her doing so now.

BARONESS BURTON OF COVENTRY

Everybody is very kind. The point I wanted to make, if we were taking Amendment No. 31, was that I could not understand why we should delete the point that the person took all reasonable precautions. I see my legal friends (if I may call them that) on the other side of the Committee shaking their heads at me, so obviously this is due to my ignorance; but that is the point which was worrying me.

LORD DRUMALBYN

Perhaps I may say what I intended. I was leaving out "and (b)" and then (b) comes in again, but it is not the whole paragraph (b) that was to be left out; it was only the letter ("b").

BARONESS BURTON OF COVENTRY

I am much obliged.

On Question, Amendment agreed to.

Clause 23, as amended, agreed to.

5.40 p.m.

LORD DRUMALBYN moved, after Clause 23, to insert the following new clause:

Misleading descriptions etc., which are unintentional

".—(1) Where for the purposes of any proceedings for an offence under this Act it is proved that—

1. (i) a trade description is misleading, or
2. (ii) anything, not being a trade description, which is likely to be taken as an indication of any of the matters specified in Section 2 of this Act would, as such an indication, be false to a material degree, or
3. (iii) anything (whether or not a statement as to any of the matters specified in subsection (1) of Section 13 of this Act) is likely to be taken for such a statement as to any of those matters as would be false,

it shall be a defence for the person charged to prove, in relation to that statement or indication, as the case may be, that he did not intend to mislead and that he exercised all reasonable care to avoid doing so, but if that person establishes that defence the court may nevertheless direct that he cease making the statement or giving the indication, as the case may be.

(2) Where in accordance with Section 5 of this Act it is proved that a person to whom goods are supplied would be likely to think of the goods as belonging to the class in relation to which the trade description is used to an advertisement, it shall be a defence for any person charged with an offence under this Act in that he published or displayed the advertisement to prove that he did not intend the goods to be so thought of and took reasonable steps to avoid misunderstanding.

(3) Notwithstanding the provisions of Clause (Innocent persons not liable for costs), where any person is acquitted of an offence under this section, the court may make such order as it thinks fit as regards the cost of the proceedings."

The noble Lord said: The purpose of this Amendment is to secure, first, that if the court decides that a trade description or an indication or statement made about goods or services is misleading in circumstances where an offence would be committed under this measure and, secondly, the court is of opinion that the person responsible for applying the trade description or giving the indication or making the statement has proved that he had no intention of misleading and exercised all reasonable care to avoid doing so, then that person shall not be convicted of an offence. There are, of course, precedents in the criminal law for requiring the citizen to exercise due care in a particular respect and for punishing him if he does not do so. But generally speaking I think I am right in saying that it is repugnant to our sense of justice to convict a person of a crime when he had no criminal intent whatsoever, especially if he exercised due care.

I recognise that under Clause 23 it is a defence that the commission of the offence was due to a mistake. But we are not here dealing with mistakes in the ordinary sense. To take an example, under this Bill a person who publishes an advertisement which is misleading in the sense of Clause 3(3) or Clause 13(2) (a) has to take care to consider the contents of the advertisement from the point of view of the reader or viewer. But it is common experience that the things we say are often interpreted in ways very different from what we meant, and in fact quite contrary to the way in which we meant them. How often, for example, do we give offence unintentionally and yet the mistake is on the part of the person who takes offence, not the person who unintentionally gives it.

Perhaps I can best make the point by citing a complaint that came to the Advertising Standards Authority when a particular offer contained in an advertisement of a well known and reputable company was misleading. I think your Lordships will be interested to hear this. In reply, the company recognised that they had not foreseen the possibility of interpreting the words in this way. They said: While this lady is clearly literal minded she certainly has a point, and it is a point which slipped through our net. We have a pretty rigorous internal procedure for clearance of copy. Apart from the originator any special pack copy is agreed by four different departments or groups and sometimes by as many as six. On this occasion no one picked up the possibility of ambiguity. However, we shall watch our copy even more closely for this kind of thing in future and should we expand this particular offer, which is incidentally a test, we shall amend the wording to make it completely unambiguous.

On this point, I would draw attention to the fact that the Government are about to be invited to curtail expenditure, and local authorities are also to be invited to curtail expenditure. I think it is very necessary that additional obligations should not be laid unnecessarily on the enforcement authorities. I would say this also. In the ordinary way, I have envisaged all along that the methods, which I so much admire, of local enforcement authorities, that is, of the weights aid measures officials, will be continued under this Bill; that is to say, they go along and find out whether an offence was intentional or not, and generally speaking they do not prosecute if it was not intentional. I am sure they never prosecute if the offence was not intentional unless severe damage is going to be suffered by somebody. I hope that the same kind of procedure would be followed. I should have thought that it was desirable to put a defence into the Bill in order that the authorities may be encouraged to work in this way and still further minimise the possibility of prosecutions being brought where there was no intention to deceive.

What I am submitting is that in cases like the one I have quoted the company ought not to be branded as criminal, although at the same time I certainly consider the offending statement ought not to continue to be made. The procedure I have mentioned would really be similar to that which applies in America, where consent orders are made for the discontinuance of such trading methods or advertising methods as the case may be. In other words, the person approached by the enforcement authorities enters into an agreement, gives his consent, to cease and desist from the practice.

In this case, what I am providing in the Amendment, in the last three lines of subsection (1), is that the court, while acquitting the defendant may nevertheless direct that he cease making the statement or giving the indication, as the case may be". I recognise—I think this came up at an earlier stage—that injunction is a civil and not a criminal procedure and that there may be technical difficulties about such a provision, though you have to start somewhere. If that is the only objection, I should be willing to accept an Amendment to delete the last sentence of subsection (1). Indeed, my noble friend Lord Cawley tells me that it is really unnecessary, since if the person concerned continued to make the statement or made it again, he certainly would not be in a position to plead the second time that he did not intend to make it. He would, of course, have to be given reasonable time, if a statement was made, for example, on a package nationally distributed, to withdraw packages on which the offending statement was made. In the case of the United States he is given 60 days which is none too much to organise withdrawal of nationally distributed goods.

This is a matter of common sense, where I suggest notice of intending prosecution to the Board of Trade would be particularly valuable, because if a local enforcement authority in a different area were to give notice of intention to bring a prosecution on the same point a short time afterwards, the Board of Trade could say: "It is too early to bring this prosecution because the firm will not have had time to withdraw the packages". I trust that the Government will accept the principle that if a defendant can discharge the onus of proving that he did not intend to mislead and exercised reasonable care to avoid doing so, he will not be convicted of an offence. I may take a rather extreme view in this, but I think we ought not to make criminals of law-abiding citizens by faulty legislation. I beg to move.

Amendment moved— After Clause 23, insert the said new clause.—(Lord Drumalbyn.)

VISCOUNT COLVILLE OF CULROSS

To judge by what was said earlier on, if Clause 20 of the Bill had been an advertisement, the noble Lord, Lord Brown, might have got himself into a difficulty where he would need this defence. As I understand it, the whole essence of some of the offences under this Bill is that, although you did not mean something to have a certain meaning, the courts, looking at it objectively upon the complaint of the prosecution, came to the view that it could have and did have that meaning and that people were misled by it. I think that is the essence of the offences under the earlier clauses and Clause 13, that it is likely to have this meaning. I suppose it is an objective test as to what people would think those words meant or thought they meant, quite regardless of what the person who uttered them or printed them or issued them thought they meant. I understand this to be involved in some of the offences under this Bill. If that is so, the ques- tion is whether you rely upon mitigation and the court deciding, in the case where counsel for the accused sets out to them the accused's reasoning, the fact that he never thought of it like that, that he genuinely did let it get through the net, and nobody in his organsation understood the meaning as bearing the one which has now been established as being likely to be understood by the public. Do you allow the whole thing to be dealt with in that way, or do you seek to provide a defence?

When one is considering this I think it is worth while remembering how the matters are dealt with in mitigation. It is true that you can call evidence in mitigation and that it can be cross-examined to in certain circumstances; but more usually mitigation is the job of the solicitor or counsel appearing for the person concerned and it would be upon his word and what he is instructed to say that the court would decide.

I should think that there would be occasions when the court would like to hear and test not only the procedure by which this came about, but also what the accused really did intend, what was in his mind. Far the best way to do that is to provide him with a statutory defence in the course of proving which he has to bring exactly this information before the court. I think the court would know more about it if it were done in that way. I do not think it is conclusive one way or the other, but if you get these type of cases which, as I say, involve an interpretation by a court of something that has been said by somebody else, in a way which he genuinely did not mean it to be interpreted, I think there may be something to be said for putting in a statutory defence rather than relying merely on mitigation. If the court comes to this conclusion, they are bound to convict even if they give an absolute discharge. Again, that is something which people do not like. An absolute discharge is a good way out, but I am sure that if they had a choice many people, perhaps everybody, would still prefer to be acquitted of an offence like this. So I hope that the noble Lord will think seriously about this, for the reasons which I have suggested to him.

LORD BROWN

I must confess to a good deal of sympathy with what has been said. I agree it is rather hard that a conscientious businessman, who honestly makes a statement which somebody later on holds to be misleading, should be liable to be prosecuted or even to be punished. But there are various things to be said in defence of the clause as it stands, and I wonder whether I may start by making a comment on American experience to which the noble Lord, Lord Drumalbyn, has drawn attention.

What the Molony Report said with reference to the American system is that it is a system whereby an administrative authority makes law "as it goes along". But as compared with the noble Lord's scheme, it has the merit of entrusting the task of law-making to a body other than a court. I think that this difference means, in effect, that they are not really comparing like with like. I am making that comment to show that I am taking note of what the noble Lord said on a previous occasion also in regard to American experience. The second thing I would draw your Lordships' attention to, which I think is most important—

LORD DRUMALBYN

I do not think we ought to argue about American experience. I think I should say that I do not think Molony's view on this would be accepted. I do not think it is really a fair statement of what the Federal Trade Commission does, because, of course, anything that the Federal Trade Commission does can be appealed to the Federal courts, and it is the Federal courts which make the law, exactly as they do here.

LORD BROWN

As I understand it, there is a body continuously considering this matter and, so to speak, formulating case law on it, and it makes the situation rather different from that in this country. However, perhaps we can leave that point. The second, and probably the most valuable piece of argument that I want to put up in defence of the clause as it stands is that we have local authority weights and measures inspectors responsible for bringing these prosecutions, and so far as the Board of Trade are concerned it is very much their desire that there should be some training, which will be necessary in future, so that if on approach they find that there has been the sort of infringement committed in regard to this clause of which examples have been given by noble Lords in the debate—that is to say, honest statements which somebody else later on holds to be misleading—they would be given a warning and would be told, "You are outside the law if you do that. It is wrong. Take care in future. But we shall not prosecute you this time." Public prosecuting authorities and the police in this country are famous for that method of dealing with initial offences committed because people have not understood the implications of what they are doing. I think this is something on which we ought to depend in this Bill in a large measure.

There are various other difficulties about accepting this Amendment. I do not want to elaborate them in detail. I am afraid that it would weaken the effect of the Bill to introduce this defence. We think that the noble Lord may be taking too gloomy a view of what the courts may regard as misleading. We are advised that the discretion proposed to be vested in the court would raise awkward questions of the area of application of the order if it were exercisable by courts of summary jurisdiction. This is the advice we have received in the matter. Noble Lords have already drawn attention to the power of the courts to grant an absolute or conditional discharge. It is most valuable that they should be able to do this. Because they have got somebody into court as a result of an over-zealous inspector, at Least they need not convict him of anything; they can discharge him completely.

In the light of those arguments I think it would be safer not to open up what might in fact be a large loophole in this important Bill to the person who is trying to cheat and hopes to get away with this defence, merely in order to save what I submit will be the possibility of a quite small number of injustices brought about by occasional over-zeal on the part of an inspector in bringing such a case in the first place to the courts. Of course, if there is a second offence we all agree upon what should happen. Therefore, I would ask the noble Lord to withdraw this Amendment.

LORD DRUMALBYN

I might have agreed with the noble Lord had the onus of proving intention been on the prosecution. But, of course, I most carefully drafted this Amendment so as to lay the onus of proof of intention on the defence. It is a most difficult onus to discharge—just as difficult as that of proving intention on the part of the prosecution. I know there is a long back history to this, and I know that one of the reasons why the 1887 Act was introduced was because, before that time, there had been an onus on the prosecution as to intention which it was impossible to discharge. But that is a long time ago, and I should have thought that this would be in keeping with the idea of justice in this country. I would doubt whether it would weaken the Bill in any respect at all, because the onus is laid upon the defence.

Although the noble Lord is not convinced at present of the need for this provision, I would hope that he would continue to give it some consideration. I am sure that the clause is not drafted in the way that it ought to be even to achieve its objective; but I remain firmly convinced that the objective it seeks to achieve is a good one. Although I am prepared to withdraw this Amendment now and am not going to ask the noble Lord for an assurance that he will consider it, I know that he will go on considering it, and therefore I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clauses 24 to 26 agreed to.

Clause 27 [Power to enter premises and inspect and seize goods and documents]:

6.0 p.m.

LORD BROWN moved to leave out subsection (1), and to insert instead: (1) A duly authorised officer of a local weights and measures authority or of a Government department may, at all reasonable hours and on production, if required, of his credentials, exercise the following powers, that is to say,—

1. (a) he may, for the purpose of ascertaining whether any offence under this Act has been committed, inspect any goods and enter any premises other than premises used only as a dwelling;
2. (b) if he has reasonable cause to suspect that an offence under this Act has been committed, he may, for the purpose of ascertaining whether it has been committed, require any person carrying on a trade or business or employed in connection with a trade or business to produce any books or documents relating to the trade or business and may take copies of, or of any entry in, any such book or document:
80
3. (c) if he has reasonable cause to believe that an offence under this Act has been committed, he may seize and detain any goods for the purpose of ascertaining, by testing or otherwise, whether the offence has been committed;
4. (d) he may seize and detain any goods or documents which he has reason to believe may be required as evidence in proceedings for an offence under this Act;
5. (e) he may, for the purpose of exercising his powers under this subsection to seize goods, but only if and to the extent that it is reasonably necessary in order to secure that the provisions of this Act and of any order made thereunder are duly observed, require any person having authority to do so to break open any container or open any vending machine and, if that person does not comply with the requirement, do so himself."

The noble Lord said: Since this clause was last considered by the Committee, we have given very careful thought to the arguments which were then put forward for modifying the powers that would be conferred by subsection (1) on authorised officers of enforcement authorities. My Amendment proposes to replace these provisions by a revised subsection, which would meet a number of the points raised in the earlier debate by those of your Lordships who felt that the powers of enforcement officers should be narrowed to a greater or lesser degree.

The most important change of substance is in the new paragraph (b). This would restrict the powers of enforcement officers to require the production of books and documents relating to any trade or business to cases where the officer had reasonable cause to suspect that an offence under the Bill had been committed. I emphasise the word "suspect" because I do not mean "believe". A good deal will hang on the difference between the two words. There would thus no longer be a right to inspect books on a routine visit of inspection or spot check. The condition that the officer should have reasonable cause for suspicion is less restrictive than the condition attached in both the existing and the new subsection to the power to seize goods and documents; namely, that he should have reasonable cause to believe that an offence has been committed. This is as it should be. If the Bill is to be adequately enforced, officers must have power to investigate when their suspicions have been aroused—for instance, by a complaint from a member of the public—and it would often be necessary to examine books and documents in order to confirm or disprove the suspicion. When it comes to seizure, however, this would only be necessary when investigations had turned reasonable suspicion into reasonable belief.

The other substantial change is in the new paragraph (c) and follows the Amendment to Clause 17 which removed the power of a court to order forfeiture of goods when an offence has been proved. In the absence of the power of forfeiture, it would no longer be reasonable to allow seizure of any quantity of goods in respect of which an offence appeared to have been committed, as permitted by the existing provision. The power to seize such goods under the new paragraph (c) would therefore be confined to those required to determine whether the apparent offence had in fact been committed. This power would have to be used when it was necessary to subject goods to a laboratory test or some other examination which could not be conducted on the spot, and when the goods could not practicably be obtained by purchase as contemplated by Clause 26. For instance, the owner of the goods might refuse to sell them to the officer. Or, if all that was needed was an examination which would not injure the goods, there might be no justification for requiring the officer to buy them—particularly in the case of an expensive article like a motor car. The new paragraph (d) would retain the further power included in the present provision to seize goods or documents which the officer reasonably believes may be required in evidence. Taken together, paragraphs (c) and (d) would produce the effect envisaged in the Amendment moved at an earlier stage by the noble Lord, Lord Cawley, which would have restricted the power to seize goods to goods reasonably required for the pur-purposes of testing or prosecution.

There are a number of other, less important, changes which this new subsection would effect. The powers would, like the similar powers in the Food and Drugs Act 1955, be exercisable only "at all reasonable hours". The existing provisions contain no such limitation and some of your Lordships thought this objectionable. We do not believe that enforcement officers would seek to exercise their powers at unreasonable hours, but since the point has caused some concern, we are content to accept the express limitation. The power to take copies of books or documents or of parts of them has been reworded in the new paragraph (b) to eliminate the reference to extracts"which the noble Lord, Lord Airedale, feared might be misunderstood. The rewording also makes clear that the officer cannot require the person producing the books or documents to provide him with copies, but must make his own.

Finally, the new paragraph (e), dealing with the officer's right to require the opening of containers or vending machines in certain circumstances, now provides expressly that if the person in authority refuses to comply with the requirement, the officer may open the container or vending machine himself. The new wording would carry out the intention of an Amendment moved on a previous occasion by the noble Lord, Lord Airedale, which my noble friend, Lord Winterbottom, undertook to implement. I should add, with reference to a question raised in the same debate by the noble Lord, Lord Drumalbyn, that this provision would not entitle the officer to force the vending machine open. He would not be entitled to open it unless he could do so without causing damage. I beg to move.

Amendment moved— Page 14, line 10, leave out subsection (1) and insert the said new subsection.—(Lord Brown.)

LORD AIREDALE moved, as an Amendment to the Amendment, in paragraph (a) of the proposed new subsection at the beginning to insert: if he has reasonable cause to believe that an offence under this Act has been committed".

The noble Lord said: We are all very grateful to the Minister for having met a number of the points which were made on the last occasion when we discussed Clause 27, but I am somewhat disappointed that the subject of this Amendment has not yet been agreed to by the Minister. This is an Amendment to secure that under paragraph (a) of the new subsection the official's power to enter premises and inspect goods shall not be permissible at random but shall be only when he is acting on suspicion, as is the case under other paragraphs. We had one of the most spirited debates on this particular subject when we were originally discussing this clause in Committee. It was an interesting debate for the reason that it took the Minister and me quite a long time to get on to the same wavelength in discussing this matter. It was probably my fault. I used the expressions "spot checks" and "random checks", and the Minister then called to his aid all kinds of quite harmless random checks, such as the policeman going round at night to check that shop doors were properly locked, and so on—things to which nobody could possibly object. But of course those were not the kinds of random check which I was considering. The expression I ought to have used was "random interference with the liberty of the innocent trader", for that was the point I was trying to put over.

I was surprised at the Minister's short summary of his argument, which appears in Hansard of December 4, 1967, at column 489, where the Minister said: Either you continuously enforce the law by watching every act; or you spot check; or you do not watch anybody"— to which I would add a fourth "or": "or you act on suspicion". I should hope that Scotland Yard would say "Hear, hear!" to that, since I imagine that Scotland Yard spends practically the whole of its time acting on suspicion.

I should like the Committee to agree that under paragraph (a), giving power to inspectors to enter premises and inspect goods, they shall do so only on suspicion. Nobody objects to an inspector spot-checking shop windows, or indeed going into shops and looking round and spot-checking in that way, because then he is indistinguishable from any shopping member of the public. What I am concerned about is the point at which the inspector says to the shopkeeper, "Open this case here"; "Open that crate"; "Take me into your warehouse", telling the shopkeeper to open this and open that. If the shopkeeper asks, "Why?", the inspector has to say, "For no reason at all. I am just making a random check to see whether by any chance you are selling goods bearing a trade misdescription."

LORD BROWN

The noble Lord referred to the case of an inspector who goes in and says, "Open that; open this". If the inspector is going to pro- ceed to that sort of activity, he must have reasonable cause to suspect, and we are making an Amendment to paragraph (a)—

LORD AIREDALE

I am sorry but I do not follow this. Under paragraph (a), as I read it, the inspector has power, without having any suspicion at all, to demand that the shopkeeper shall drop what he is doing, start opening the crates and take him into the warehouse, and so on. If my reading is wrong I shall certainly take back what I am saying, but that is how I read the paragraph.

What I should like to know is this. What evidence is there of such widespread mischief in the field of trade misdescription on the part of traders as to justify the giving of this sweeping power to make random checks, interfering with the liberty of traders? I ask your Lordships to bear in mind the hatred that is going to be stirred up among honest traders against any official who acts in that way. No trader minds an official arriving on the spot out of the blue to inspect the scales, because the honest trader's scales may be out of adjustment against his interests just as much as the other way. But if the inspector then says, having checked the scales, "Now take me into your warehouse and start opening the crates so that I can inspect your goods, although I have no suspicion against you at all", it is going to stir up hatred, and I do not believe that this interference with what I call the liberty of honest traders is at all justified.

Finally, let me just mention again, as I think I must, the consequences of your Lordships' accepting paragraph (a) without these words about suspicion being incorporated. It will mean that a magistrate will be able to empower an inspector to enter premises by force, for the purpose of making a completely random check to see whether some trader has goods in his warehouse, shall we say, bearing a false trade description. One may say that no magistrate would be likely to do this, but I am not so sure. If a strong and domineering official goes before a weak magistrate and says, "All I am asking you to do is to give me a warrant to do what I am entitled to do under this Act of Parliament", the magistrate may find it very difficult to refuse.

If that officer, acting under that warrant, breaks by force into some trader's shop and finds nothing wrong at all—as he probably will find nothing, because he has not been acting on any suspicion at all—it will lead to a public outcry. People are going to say,"What a disgraceful performance! What has happened to the liberty of the subject in England? "Perhaps I am putting this rather too strongly, but I feel strongly about it. I think we must protect innocent traders by inserting at the beginning of the new paragraph (a), which gives this power of inspection, the words which I propose: if he has reasonable cause to believe that an offence under this Act has been committed I beg to move.

Amendment to Amendment moved— Line 5, at beginning insert the said words.—(Lord Airedale.)

6.15 p.m.

LORD DRUMALBYN

This Amendment raises the whole question of how the enforcement authorities are to go about their duties. On the one hand, they can, as the noble Lord puts it, act on suspicion. On the other hand, they can act as a matter of routine as they do at the present time. For example, I think they reckon each year to send inspectors into every shop where there are weights and measures. They regard it as their own duty, if they are going to carry out their enforcement duties properly, to pay a visit once a year.

This Bill greatly widens the range of premises which will be covered. All the premises which give services will also be brought in. One has to ask, therefore: is it expected that there will be a routine inspection of them? If so, will the additional staff be made available in the circumstances? If it is quite understood that there is to be a routine inspection, and this is what the Government want, then I presume it would not be unreasonable to accept the Amendment of the noble Lord, Lord Airedale. But if there k not to be a routine inspection, surely the inspectors will be entering only if they have grounds to suspect.

It may be that it will be necessary to make a distinction—and I drafted an Amendment on these lines, although I did not put it down—between those premises where the enforcement authorities already have a right of entry, and those where they do not yet have a right but will have under this Bill. It might be that in the second class of cases it would be desirable to say that they may enter only when they have reasonable—I do not mind whether it is "cause to believe" or "cause to suspect", but in view of what the noble Lord has said I think that "cause to suspect" may be the right phrase.

Would the noble Lord consider making this division between the two sorts of cases: those where the enforcement officers, who are the weights and measures inspectors, already go into premises as a matter of routine inspection, and those where services are carried out which are now to be covered by the Bill and where the officers do not yet go? I presume—and I am sure this is right—that the noble Lord will not expect them just to push the door open, take their hats off and set about an inspection to see whether any offence has been committed. Obviously, they will go in only if there is reasonable cause to suspect; and this must surely be right. In that case it is obviously right to make a distinction between the two kinds of cases. That is what I want to say, but I think it is important, at a time when economies are expected, that we should not lay on enforcement officers an extra duty, which is probably quite unnecessary, of making a regular inspection of premises which are being brought in for the first time under this Bill.

LORD HAWKE

I have heard my noble friend's speech with a certain amount of horror. I am not quite sure that he has properly visualised the scope of this Bill. A weights and measures inspector goes into a shop and inspects the weights and measures. If it is now visualised that he is to act as a policeman, and visit all the shops in the neighbourhood, then the army of people required will be absolutely vast, because not only will the inspectors have this routine task of checking up the weights and measures but they will have to look at other goods in the shop to see if there is a misdescription of them.

LORD DRUMALBYN

Would my noble friend forgive me for interrupting him? I really am not suggesting that at all. The only question is whether a person is able to enter a shop as a matter of routine, as he does as a weights and measures inspector, or whether he can go in as a matter of suspicion. After all, once he is in, he is there. He does not have to break in. He does not have to get the permission of a justice of the peace to go in. He is there already, on his routine inspection.

LORD HAWKE

I think I appreciate my noble friend's point, but he and I are somewhat at cross-purposes. My object is to try to see that the army of inspectors is kept as small as possible, and if the Amendment moved by the noble Lord, Lord Airedale, is accepted I think it will contribute towards that end, because it means that nobody is going to enter in unless he has a very good idea that an offence has been committed. Once we get the contrary, I think the scope for inspection and the vast army of people required will be quite beyond the capacity of the taxpayer to bear.

LORD STRABOLGI

I am grateful to my noble friend the Minister for moving his Amendment, which I think is a great improvement on the rather harsh wording in the Bill before. I myself had an Amendment down on a previous stage which I withdrew on my noble friend's undertaking to reconsider it. I am very glad that he has reconsidered it. I am also glad that the words, "at all reasonable hours", which I suggested in my Amendment, have been included, but I am not clear why the other words I suggested, "subject to the production of his credentials", have not been included.

The original wording in the Bill was, "may … on production, if required, of his credentials", and that wording has been retained. The wording in my Amendment was, "subject to the production of his credentials". In other words, I was suggesting that before he enters he must produce his credentials and show that he is a bona fide inspection officer, just as a police officer in plain clothes has to produce his credentials before he is allowed to exercise any powers. I am surprised that the Government have not included this wording, which I should have thought appropriate in these days, when there is so much crime and when it is necessary for people to identify themselves before they enter premises, and I should be grateful if my noble friend the Minister would explain why they have not done so.

VISCOUNT COLVILLE OF CULROSS

Before the noble Lord deals with that point, may I say that I am still not certain of the factual situation upon which the argument of the noble Lord, Lord Airedale, was based. I confess that I looked at the Amendment moved by the noble Lord, Lord Brown, and thought I was satisfied with it. I thought it was a great improvement on what had been in the Bill before. I had not appreciated every subtlety of the difference between "suspicion" and "belief", and I think that the noble Lord, Lord Airedale, would not have gone beyond "suspicion", rather than "belief", in his Amendment had he also appreciated the distinction.

LORD AIREDALE

Hear, hear!

VISCOUNT COLVILLE OF CULROSS

But the point is this. As I understand it, now that it is a matter of reasonable hours, the weights and measures inspector will broadly speaking be able to go into the shop either as an officer of the local authority or as a member of the public. There is no reason why a weights and measures officer should not go into a travel agency as an ordinary member of the public; and, if that is all he is going to do, and then have a look round, it seems to me there is no necessity for him to have even the requirement of suspicion to do so.

But then the noble Lord says, "He goes on into the warehouse and he starts breaking open containers, or requiring containers to be broken open, so that he can look inside". I do not believe he can, because if the Committee will look at paragraph (e) of the Amendment moved by the noble Lord, Lord Brown, it will be seen that there is a specific reference to powers to break open containers and it is given to an inspector in certain circumstances only; that is to say, to deal with the seizure of goods. If the Bill says that, I do not believe that he will be empowered, under the word "inspect" in paragraph (a), to go and break open containers, or require them to be broken open, for that purpose at all. I feel sure that the courts will say, when interpreting it, that if Parliament had intended that it would have said so, and it has not. So I do not believe that the noble Lord is right about that.

So really what one is arguing about is this. It is all right for the inspector to go into the shop or the travel agency, because there is the provision about reasonable hours and he could go there anyway as a member of the public. But is he or is he not, without suspicion, to be allowed to go into non-dwelling-house parts of the premises where he would not be able to go as a member of the public? So it really boils down to the warehouse. Is he or is he not to be able to go into the warehouse without suspicion of the commission of an offence? I should have thought that, when he can go into the shop, there is really little danger in also allowing him to go into the warehouse.

I turn to the question of what the warrant from the justice of the peace allows him to do. I also do not find this very difficult, because, again, it is only a matter whereby the justice of the peace allows him to do what he otherwise has powers to do. The justice of the peace, as I understand it, cannot give him a warrant to go in by force except at reasonable hours. If they are reasonable hours, the fact that the shopkeeper is shut up and will not let people in as members of the public seems to me to be very curious, and it might be a good reason for a warrant from the justice. On the other hand, all the other matters now require the justice of the peace to be satisfied, before he grants a warrant, that there is either suspicion or belief of an offence having been committed or being about to be committed. In those circumstances I should have thought that the noble Lord, Lord Brown, had in fact struck the right balance in this matter, and that, at any rate if my interpretation about breaking open containers is right, there really is not very much for the honest trader to fear.

6.27 p.m.

LORD BROWN

I once had a very lazy friend who used to say to me, "If you leave undone for long enough some of the jobs which you ought to be doing, somebody will do them for you". I am grateful to the noble Viscount, Lord Colville of Culross, because he has done a large part of my job for me. I profoundly agree with the remarks that he has made, and I would draw the attention of the noble Lord, Lord Airedale, to them. I tried to interrupt the noble Lord to point out that I thought he was proceeding to build an argument on a wrong basis, but I did not manage to make myself clear. The noble Viscount, Lord Colville of Culross, has, I think, pointed that out. Under paragraph (a) the inspector may not insist that things are opened, or break them open himself, or do any of the things that the none Lord was afraid he would be able to do. He can look at things. That is really what it means. The word is, "inspect". To inspect does not really mean to open; it means to look. I do not think there is any need for this Amendment on those grounds.

As to the other matters which have been raised, by the same token I art grateful for the remarks of the noble Viscount, Lord Colville of Culross, the rather frightening things the noble Lord, Lord Airedale, suggested might happen if we had a weak justice of the peace and some officers of rather evil intention. But those are exceptional circumstances, and if we hypothesise enough weakness or evil men then no part of society will work adequately. I shudder to think what would happen with regard to all the police provisions if one thought about what they were doing on the same hypothesis as the noble Lord suggested might apply in the case of this Bill.

My noble friend Lord Strabolgi raised the question of credentials. The intention is that the duly authorised officer should, in the course of carrying out his business, be able to look at goods in shops or other places; and to require him, every time he is in a shop and feels he would like to look at something in there, to produce his credentials and show them to the shopkeeper, is I think quite an unnecessary and alarming procedure, bearing in mind that it might be done in front of customers. I am sure the shopkeeper would very much rather that he did not behave like that. If he has a look round and gets suspicious, then, of course, he can show his credentials. He will then be in quite a different position from one of merely inspecting. I do not think I should want him to show his credentials every time he walked into a place where he wanted to look at something.

The noble Lord, Lord Hawke is very much afraid of the dangers of increasing i the number of civil servants. So am I. But this is not a question of setting up a routine—if, by "routine", the noble Lord, Lord Drumalbyn, means an insistence that every premises where goods are offered shall be visited at least once every so often. I do not think that that is going to be administratively possible or even desirable. These local authority inspectors have routes that take them round to retailers and other establishments. In my submission the additional number of establishments which will fall outside the ambit of those they will visit for one reason or another will not be excessive. By some extension of their tours and visits they will be able, coupled with complaints from the public, to keep sufficient check reasonably to enforce the provisions of this Bill. With that, and in the light of the assurances given about the powers under paragraph (a) of the subsection, may I suggest that this Amendment be withdrawn?

LORD AIREDALE

I apologise for having introduced the question of opening containers and perhaps thereby unwittingly confusing the Committee. It is a matter which is specifically covered by paragraph (e). But I do not think this affects my argument. What I am complaining about is the situation where an honest trader is beset by an inspector who wants to go into his shop inspecting goods, into the storehouse behind the shop, rooting about among the goods and into the warehouse and doing likewise—and probably rooting about behind mountains of merchandise, because persumably if there is anything "fishy" in the warehouse it will not be in the front row. The honest trader is going to have either to accompany the inspector himself or depute somebody else to do so. His liberty and the running of his business are going to be interfered with. The question is whether it is right to allow this to happen when the inspector is acting purely at random and without any suspicion against this trader at all.

When it comes to the magistrate's warrant the situation is this. If the magistrate chooses to do so he can give a warrant to the inspector to break into the trader's warehouse. This could happen, especially during the Chistmas rush when a trader (who is perfectly honest) says to the inspector, "I am not going to let you into my warehouse. It is locked and I am very busy". The inspector, having no suspicion whatever against that trader or any suspicions that there are any wrongly-described goods in that warehouse, can then go to the magistrate and can get a warrant to enter the warehouse by force. Is that right? Is there enough evidence of mischief under the matters which this Bill is designed to prevent? Is that enough evidence for this sweeping power to enter by force if necessary?

LORD BROWN

Would the noble Lord look at the first line of subsection (3) of this clause. It reads: If a Justice of the Peace, on sworn information in writing— His comments are not in line with the implication of that line of subsection (3). He has offered the idea that it can be done quite irresponsibly, in the case of a man busy with his Christmas trade. This is a very serious procedure, directed, with a due sense of responsibility, in necessary circumstances.

LORD AIREDALE

What I am going to say now is near to what was said by the noble Viscount, Lord Colville of Culross, on the last occasion when the noble Lord made this point. I am now reading from the same subsection: If a justice of the peace, on sworn information in writing … is satisfied that there is reasonable ground to believe that any goods … are on any premises "— and then I leave out words which do not apply— … the justice may by warrant under his hand … authorise an officer … to enter the premises, if need be by force. All the magistrate has to be satisfied about is that there are some goods in the warehouse. Notwithstanding that there is no suspicion about those goods in the warehouse, the magistrate has the power, under this Bill, to authorise the officer to enter the warehouse "if need be by force." I do not think that is right. But there is no good in going on. I will therefore withdraw this Amendment at this stage and reconsider what noble Lords have said on the other side of the topic.

Amendment to the Amendment, by leave, withdrawn.

LORD AIREDALE

This is a drafting Amendment to the new subsection (1) moved by Lord Brown, and would bring the wording of paragraph (c) into line with that of paragraph (b). Paragraph (b), having referred to an offence under this Act, when it refers to the offence again refers to it as "it". This Amendment would have the same effect on paragraph (c). Having referred to an offence under this Act, on the second occasion it would refer to it as "it". I beg to move.

Amendment to Amendment moved— Paragraph (c), line 4, leave out ("the offence") and insert ("it").

LORD BROWN

I have sympathy with any Amendment designed to shorten the Bill, but only if it does so without any loss of clarity. The noble Lord has said that his Amendment makes for consistency between paragraphs (b) and (c) of my Amendment, No. 32, but I would point out that in paragraph (b) only 14 words separate "an offence" in the first line and "it" in the third, whereas in paragraph (c) 23 words separate "an offence" in the first line and "the offence" in the fourth. I think that if the pronoun "it" is substituted for "the offence" in "he fourth line the reader may well lose the thread when he reaches the pronoun. I suggest that if the noble Lord had himself set out to draft paragraph (c) he too would have repeated the word "offence" when he came to the fourth line, and I hope that he will feel able to withdraw the Amendment.

LORD AIREDALE

It would not be the first time that somebody has "lost the thread" on reaching a pronoun in an Act of Parliament. But I will not pursue the matter further. I beg leave to withdraw my Amendment to the Amendment.

Amendment to Amendment, by leave, withdrawn.

6.38 p.m.

LORD AIREDALE moved, as an Amendment to paragraph (c) of the proposed new subsection (1), to leave out "break". The noble Lord said: The substantive Amendment uses the expression A duly authorised officer … may … require any person … to break open any container". I do not want to make a long speech about this Amendment, but in my submission the question of whether a person is to "break open" the container ought to be a matter for the person required to open it. All the inspector is interested in is that the container shall be opened. Whether the trader chooses to break it open with a jemmy or to open it in some way which does not involve breaking it is surely a matter of choice for the person to whom the official is speaking. I see no reason why an Act of Parliament should authorise an inspector to command somebody to break open something if that person wishes to open it by some gentler means.

When the Minister was moving his substantive Amendment, No. 32, I thought I understood him to say that if the trader refused to open the container, the inspector would have power only to open it and would not have power to break it open. I did not understand this, because it did not seem to follow from the wording of the substantive Amendment. I should have thought the wording was such that if the trader refused to break open the container, the inspector had power to break it open himself; and again I do not see why inspectors should have power to break open containers, particularly containers which could, with a little care and trouble, be opened without breaking. I beg to move.

Amendment to Amendment moved— Paragraph (e), line 6, leave out ("break").—(Lord Airedale.)

LORD BROWN

Since the noble Lord has quoted me, may I requote the words, because I did read them? I said that, finally, new paragraph (e), dealing with the officer's right to require the opening of containers or vending machines in certain circumstances now provides expressly that if a person in authority refuses to comply with the requirement, the officer may open the container or vending machine himself. I did not use the word "break" at all there. The word "break", which the noble Lord would like to omit, is used in a precisely similar context in the Weights and Measures Act 1963. I suggest that there is a significant difference in the context of paragraph (e) of Amendment No. 32 between the power to break open and the power to open, and that it is essential that an enforcement officer should have the power to break open a container if he is to be able to carry out his duty adequately.

If the word "break" were omitted from paragraph (e) and the inspector suspected that, let us say, a box of chocolates was wrongly marked, and he wanted to inspect the contents, the shopkeeper might say, "You cannot open that box without breaking open the cellophane and you have no power to break open the container." There are many cases like the one I have quoted, where breaking open is the only means of getting at the goods inside the container, and I think that the power to break open a container is one which an enforcing officer must have. It is possibly a misunderstanding of the word "break" which has lead the noble Lord to put down his Amendment, because the word "break" is used in the sense that there are many types of containers to-day which can be opened only by breaking. It must be remembered that an inspector can use the power … only if and to the extent that it is reasonably necessary in order to secure that the provisions of this Act and of any order made under it are complied with. Therefore, if the officer was challenged he would have to prove, by reference to objective criteria, rather than simply to his own views, that it was necessary to break open the container. The power is not one that he would use lightly. I hope that the noble Lord will see fit to withdraw his Amendment.

VISCOUNT COLVILLE OF CULROSS

Is the noble Lord right about this? He was talking about boxes of chocolates, but as I understand this, the officer could break, or require any person to break, open a container only for the purpose of seizing goods. The power is qualified by the words, "only if and to the extent", and so on. So I do not think that the question of inspecting to see whether the chocolates are bad, or have been marked in the wrong way, arises under paragraph (e). It is only for seizing goods and therefore that must have been a had point. If that is so, is not the noble Lord, Lord Airedale, perhaps right? If it is a question of seizing, the sort of containers that we are after are the crates. You do not seize a tin of peaches by taking the peaches out of the tin, you take the whole lot along, do you not? I should have thought you could do without the word "break".

LORD BROWN

I think the noble Viscount is quite right, and he has got me on a bad example. But he has not destroyed the validity of my case that there are many types of containers the contents of which might have to be secured under paragraph (e), which have to be broken open. Other persons might use the word "open", but if the person who is suspected can say, "You are not going to break that because the law does not say you can", it will be putting a barrier of a very serious sort in the way of an enforcing officer.

LORD AIREDALE

I think the example of the box of chocolates is an extraordinarily bad one for quite another reason. Imagine that the word "break" is left out, and that the only power left is the power to open. Is anyone going to say that because a box of chocolates has a bit of cellophane round it an inspector cannot open it, or break the cellophane, just because the law does not say that he may break it open? I think that is fantastic. The only question is whether the Minister is going to accept the Amendment now, or whether I shall withdraw it until we think about it for the next stage.

LORD BROWN

We have had a good deal of discussion about this. I do not want to sound obstinate, but even if I did think about this a good deal more, I am quite certain that I should not be brought to the stage of wanting to accept it. That is the most tactful way I can say, "No, I do not like the Amendment: in the last analysis, we must have the power to break open".

LORD AIREDALE

I do not like it, but I will withdraw the Amendment on this occasion, and we will return to it at the next stage. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD AIREDALE

This is an Amendment to the last line of paragraph (e) of the proposed new subsection (1). We were told a short time ago about the number of words which separated the operative words in an earlier paragraph. I have not counted the number of words which separate the words "he may" at the beginning of paragraph (e) and the words, "do so himself", at the very end of paragraph (e), but there are about nine or ten lines of them. I should have thought the Minister's argument a short time ago made it abundantly clear that it was necessary to repeat the words "he may" in the last line of paragraph (e) so as to make it read "he may do so himself" without referring back to the words "he may" about ten lines further up the page. I beg to move.

Amendment to Amendment moved— Paragraph (e), line 8, after ("requirement") insert ("he may ").—(Lord Airedale.)

LORD BROWN

I accept.

On Question, Amendment to Amendment agreed to.

On Question, Whether Amendment No. 32, as amended, shall be agreed to?

LORD DRUMALBYN

I do not wish to detain the Committee, but all the noble Lords who have already spoken except myself have expressed appreciation of the way in which the noble Lord, Lord Brown, and his advisers, have met to a very large degree, if not altogether, the points made the last time we discussed this matter. I should like to say we appreciate that.

Amendment, as amended, agreed to.

6.48 p.m.

LORD DRUMALBYN moved to insert after subsection (4): () Where under this section any goods have been seized and detained and in the course of detention they have deteriorated or been in any way damaged, then if—

1. (a) no proceedings are brought against any person in relation to the goods, or
2. (b) the person from whom the goods were seized is not convicted of any offence in relation to the goods

the weights and measures authority or the government department on whose behalf the officer seized the goods shall restore the goods to the state in which they were when seized or, if they cannot be so restored, shall purchase the goods at the price at which they were being offered for supply".

The noble Lord said: This is a comparatively simple point. It relates to cases where goods have been seized and detained, and where no proceedings are brought against any person in reference to them, and the person from whom the goods were seized is not convicted of any offence in relation to the goods; and where, during the period of being detained or tested the goods are spoilt. Where will the loss lie? Will it lie on the individual who owns the goods, or is it to be spread over the community which the authority represents? I think that one has only to pose the question to see what ought to be the answer, and I commend the Amendment to the Committee.

Amendment moved— Page 15, line 30, at end insert the said subsection.—(Lord Drumalbyn.)

LORD BROWN

I have a good deal of sympathy with this Amendment. I should not expect that the enforcement authorities would often have to exercise their powers to seize goods under this clause. In the majority of cases they will no doubt buy the goods required for testing or examination, as content-plated by Clause 26. But when they do find it necessary to seize, it seems to me that if they decide after further investigation that proceedings are not justified, or in any proceedings there is no finding of guilt against the owner of the goods, it is fair that the owner should be entitled to the return of his goods in the same condition as they were when seized.

I am advised that there is little precise authority on the position at Common Law, and it is by no means clear what the owner's rights are. I accept therefore that there is a case for including an express provision in this Bill to deal with the matter. I do not think, however, that the noble Lord's Amendment would produce the right result. He proposes that if the enforcing authority are unable to restore the goods in their original condition, they should be obliged to buy them at the price at which they were being offered for supply. This would not always he an appropriate measure of compensation, or even a feasible one. The goods might have been taken from newly delivered stock on which a price had not yet been put. Or they might have been goods which never would be priced for sale—for example, goods to be let on hire of supplied in exchange for trading stamps. And where the goods had been on offer at a particular price the quoted figure would not necessarily represent the amount that the seller expected to get for them. One has only to think of the prices marked up on the windscreens of second-hand cars offered for sale.

Accordingly, while I do not dissent in principle from the proposition that the owner of seized goods should be compensated if they are lost or damaged by the enforcing authority, I am sure that the method of providing for this needs further thought. It is by no means a straightforward question. If the noble Lord will withdraw his Amendment, we will undertake to consider whether an acceptable means of achieving its purpose can be found. If it can, we should be ready to introduce a suitable Amendment in another place.

LORD MITCHISON

Before the Amendment is withdrawn, may I suggest two points worth looking at here? The first is to make sure of the identity of the person from whom the goods are seized in order to get the right person. There may be questions of persons in employment. The second point is that it would be better to put in a reasonable price and so avoid this question of the price which may or may not be attached to the goods on offer for sale.

LORD DRUMALBYN

I much appreciate what the noble Lord has said, and beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 27, as amended, agreed to.

Clause 28 agreed to.

Clause 29 [Notice of test and intended prosecution]:

6.53 p.m.

LORD DRUMALBYN

As the Bill now stands, it is not only the local weights and measures authorities who will be prosecuting. There will also be private prosecutions. If the Board of Trade are to carry out their supervisory function, it would not seem unreasonable that everybody should have to give notice to them; otherwise it is plain that it would not be possible for the Board to stop multiple prosecutions, a subject we have already discussed. I hope that the noble Lord will be able to accept this Amendment.

I beg to move.

Amendment moved— Page 16, line 31, leave out from beginning to ("to") in line 33 and insert— ("Proceedings for an offence under this Act shall not be brought except by a government department unless not less than twenty-eight days' notice has been given ")—(Lord Drumalbyn.)

BARONESS BURTON OF COVENTRY

I listened to what the noble Lord, Lord Drumalbyn, said, and I am not sure what he has in mind in moving this Amendment. I wonder whether his Amendment is designed to prevent the possibility of double prosecutions. I have discussed this with the director of the Retail Trading Standards Association. I asked him whether, in his long experience in these matters, he had found double prosecutions occurring. I also asked him what his association felt about the noble Lord's suggestion.

LORD DRUMALBYN

I said "multiple prosecutions"—that is even more than double.

BARONESS BURTON OF COVENTRY

The director of the R.T.S.A. told me that over some 17 or 20 years he remembered only one case of double prosecutions, by the Weights and Measures Department at Leeds and the R.T.S.A. at Stoke-on-Trent, which took place in April of last year. The fine at Leeds was £75 and at Stoke-on-Trent one of £240. On the question of giving notice, Mr. Diplock said that they could certainly give notice of their intention, but that in some cases actual prosecutions might not be brought. Notice could be given to the Board, but it might well be that when investigations were made it would be found that a case would not stand up to a prosecution. I do not feel strongly about this, but I should be glad if my noble friend would consider this in his reply.

LORD BROWN

I find it difficult to see that the giving of notice of private prosecutions to the Board of Trade, which is what the Amendment in effect proposes, would serve any useful purpose. As your Lordships know, the purpose of Clause 29(2) as it is drafted is to enable the Board of Trade to play a part in co-ordinating enforcement by local weights and measures authorities and in advising them on the courses which other authorities are pursuing. It would, for instance, be very useful where there was a danger of multiple prosecutions being brought by different authorities for the same offence.

In putting forward these provisions, we have—for reasons which I have fully explained on earlier occasions—framed them so that the Board will have no right of veto. We believe that we can safely rely on the common sense of the local weights and measures authorities, and on the interest which they will share with us in the consistent and sensible enforcement of the Bill, to ensure that the co-ordinating process works. But, I see no room for a similar co-ordinating process, and little likelihood that it would be effective, as regards private prosecutions. Let us think for a moment of the circumstances in which such a prosecution might be brought. It will, I think, be rarely, if ever, brought by an individual; it is not easy or cheap to mount this kind of case. It is more likely to be launched by an association of retailers or of manufacturers, perhaps even by an individual manufacturer. The motive will be the repression of what they regard as a competitor's unfair practice. And they are not likely to spend their own money on the prosecution unless and until they have established that a local weights and measures authority—now, as your Lordships will recall, to be charged with die duty of enforcing this legislation—is unwilling to take it on.

If in such circumstances a private body decides to go ahead with a prosecution, the question of avoiding multiple prosecutions is unlikely to arise; and I cannot believe that the body could be—or ought to be—dissuaded by the Board of Trade's views on the propriety of the prosecution or the likelihood of success. That is why I say that I see no useful purpose in the Amendment. Its side effect would be to delay the bringing of private prosecutions by 28 days. I cannot see that there would be any justification for this, and I hope that your Lordships will not accept the Amendment.

LORD DRUMALBYN

I am not certain that I agree with the noble Lord. I can only say that time alone will tell. His guess is as good as mine on this. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 29 agreed to.

Clause 30 agreed to.

7.0 p.m.

LORD DRUMALBYN moved, after Clause 30, to insert the following new clause:

Innocent persons not liable for costs

". Where in any proceedings a person charged with an offence or with offences under this Act is acquitted of that offence or those offences, as the case may be, and is not convicted in the same proceedings of an offence under any other Act, he shall not be liable to pay costs."

The noble Lord said: It may be thought that this Amendment is unnecessary; that this is a matter which should be left to the discretion of the courts. The reason I put it down was because the Molony Committee in paragraph 630 of their Report made a special point of this. They dealt there with improvements that they would like to see made to Section 6 of the 1887 Act, and among them is one which they expressed in these terms: We do not accept that an innocent person should be liable to pay costs. If that is their view, then the best thing seems to be to make it impossible for them to pay costs in those circumstances. The purpose of the Amendment is that if they are innocent they ought not to have to pay costs. I beg to move.

Amendment moved— After Clause 30, insert the said new clause.—(Lord Drumalbyn.)

LORD BROWN

I think this is one of the cases where we do not go along with Molony. Of course one has sympathy with the purpose of the Amendment. Art innocent man is prosecuted, and the prosecution fails. Why should he be ordered to pay costs? The courts already have a wide discretion in this matter, and they can, if they think fit, order the prosecution to pay the costs of the acquitted defendant. For this system to work sensibly it is essential that the discretion of the court should be unfettered. The fact that a defendant has been acquitted does not always mean, as I am sure the noble Lord realises, that he should not be ordered to pay the costs of the prosecution. Let me give an example. Suppose that X succeeds by invoking the defence that what he did was due to the act or default of another person. Until the trial he has refused to co-operate with the enforcing authority. If he had put the facts before them the by-passing procedure would have enabled the prosecution to go straight for the real offender. By his obstructiveness the defendant has wasted everybody's time and money. Why should he not be made to pay for it? I think it is best that the court should be left with this degree of discretion rather than to forbid the court to make him pay anything.

LORD CAWLEY

Is it suggested that the court can make an order for an innocent defendant to pay the prosecution's costs? I looked at the Costs of Criminal Cases Act, and it did not seem to me that that was a possibility.

LORD BROWN

I am so advised. A defendant may be acquitted, but he can be forced to pay costs. That is the way my advice runs. If there is doubt about it—and I recognise that the noble Lord, Lord Cawley, is a learned man in the profession—I will have another look at it.

LORD CAWLEY

The term "pay costs" is somewhat ambiguous. To pay his own costs, certainly; but I should have thought that he could not be made to pay the prosecution's costs. There was a power under the Merchandise Marks Act, which was taken away in about 1911, for an order to be made as to costs which appeared just to the court. That certainly has now disappeared.

LORD DRUMALBYN

I am sorry to hear that not only do the Government not agree with Molony, but they feel that what he said was ambiguous. In the circumstances, I beg leave to withdraw the Amendment.

Amendment by leave withdrawn.

Clause 31 agreed to.

Clause 32:

Trade marks containing trade descriptions.

32. The fact that a trade description is a trade mark, or part of a trade mark, within the meaning of the Trade Marks Act 1938 does not prevent it from being a false trade description when applied to any goods, except where the following conditions are satisfied, that is to say—

1. (a) that it could have been lawfully applied to the goods if this Act had not been passed; and
2. (b) that on the day this Act is passed the trade mark either is registered under the Trade Marks Act 1938 or is in use to indicate a connection in the course of trade 104 between such goods and the proprietor of the trade mark; and
3. (c) that the trade mark as applied is used to indicate such a connection between the goods and the proprietor of the trade mark or a person registered under section 25 of the Trade Marks Act 1938 as a registered user of the trade mark; and
4. (d) that the person who is the proprietor of the trade mark is the same person as, or a successor in title of, the proprietor on the day this Act is passed.

7.4 p.m.

BARONESS BURTON OF COVENTRY

moved to leave out all words after "when applied to any goods". The noble Baroness said: The purpose of this Amendment is to gain some information from the Government. On looking at this Bill it seemed to me that the date of register of a trade mark should be quite irrelevant to the Bill. As I understand it, the clause as it stands gives blanket protection to the application of trade marks which were registered before the passing of the Bill. I think in its present form it means that only trade marks registered after the day the Bill is passed could be termed false trade descriptions if falsely or misleadingly applied. This situation exists obviously because the clause follows the form of exemption provided already under the existing Merchandise Marks Act 1953.

I do not know what my noble friend will say, but I believe that in the past the official view has justified this exemption so far as the consumer is concerned. I believe, furthermore, that their argument in the past has always followed the lines that, as the consumer is familiar with trade marks which have been in existence for many years, the consumer is unlikely to be misled by any false applications, even though these may technically offend against the Bill.

I do not like the Title of this Bill, the Consumer Protection Bill. But we have it, and it seems to me that it would be much more within the spirit of the Bill, in so far as trade marks are concerned, to remove this exemption altogether. I should have thought that nobody could dispute that the existence of this part of Clause 32 diminishes the extent to which the consumer is protected. If the Government felt able to accept the deletion as I suggest, from line 4 on page 18 down to line 20, we should be left with the position that all trade descriptions which are trade marks falsely or misleadingly applied would become liable to the provisions of the Bill. I beg to move.

Amendment moved— Page 18, line 4, leave out from ("goods") to end of line 20.—(Baroness Burton of Coventry.)

LORD BROWN

This clause, as the noble Baroness fully realises, has a good many historical factors. Perhaps I might begin by saying that marks which have a direct reference to the character or quality of the goods are not normally registrable, and Section (11) of the Trade Marks Act has prohibited the registration of marks which are likely to prove defective or confusing in use. This means that the marks which have been registered in recent years are unlikely to be of great danger to the consumer.

When the Merchandise Marks Act 1953 was prepared it was realised that many existing trade marks which were perfectly lawful under the 1887 Act might run into trouble. The sort of thing that people had in mind were trade marks consisting of invented words like "Kilkoff" or "Kilpain". Although these were only fanciful names, generally indicative of the purpose of the product and unlikely to be interpreted by most people as meaning anything more than that, it was just possible that a court might interpret them in the strict and literal sense. If, for instance, the cough mixture did not always kill the cough, a conviction might have resulted, which might have seriously damaged the trade mark. The contingency was remote, but there were some very valuable trade marks of this kind and it was considered that the slight risk that some few consumers might draw an unwarranted conclusion from the marks did not outweigh the marks' claim to protection. Hence the provisions of Section 1(4) of the 1953 Act, which would be continued by the present Clause 32.

The present Bill extends still further the definition of "trade description", and we cannot ignore the possibility that a trade mark whose use is perfectly lawful under the 1887 Act and under the stricter provisions of the 1953 Act might yet be held to be a false trade description within the meaning of the new Bill. We therefore consider that it is only reasonable to protect existing marks which are lawful under the existing law. But new marks —that is to say, marks which come into use or are registered after the passing of the Bill—should not, and will not, be given any special protection. I hope that in the light of what I have said, and the fact that the real danger of some of these trade marks proving misleading is very slight indeed, my noble friend will see fit to withdraw her Amendment.

BARONESS BURTON OF COVENTRY

I thank my noble friend for that information. I should like to study it. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 32 agreed to.

Clause 33 [Saving for civil rights:]

7.11 p.m.

BARONESS ELLIOT OF HARWOOD moved to add to the clause: () On the sale or in the contract for the sale of any goods to which a trade mark, or mark, or trade description has been applied, the vendor shall be deemed to warrant that the mark is a genuine trade mark and not forged or falsely applied, or that the trade description is not a false trade description within the meaning of this Act, unless the contrary is expressed in some writing signed by or on behalf of the vendor and delivered at the time of the sale or contract to and accepted by the vendee.

The noble Baroness said: I rise to move this Amendment. We have already had a discussion on this subject, before Christmas, when discussing the Bill on its first Committee stage. I am moving the Amendment because I want to record my Council's wish to retain a civil remedy in this Bill on the lines of Section 17 of the Merchandise Marks Act 1887. Towards the end of the previous Committee stage, your Lordships will remember, I had a rather inconclusive exchange with the noble and learned Lord the Lord Chancellor, who I see has very kindly come here this evening to discuss the matter again. It was inconclusive because I had not given notice of the many legal and technical points involved. I apologise for that, and also because, not being a lawyer, the information I have here, which I gave at an earlier stage, is information which I received from the legal department of my Council. I therefore give it not so much from my own knowledge as from that of my advisers in the Council.

I believe, my Council believe, that it would be wrong to cut out of the Bill the existing civil remedies without retaining an equivalent remedy. The advantages of having this remedy spelt out may be largely procedural, in the sense that people will know where to find, and use, the clearly established course of action. I think this would be the great merit of retaining this clause, which came up from the original Merchandise Marks Act and which is of some importance.

This is the Consumer Protection Bill, which is to become an Act, and the ordinary consumer who has a grievance will expect to be able to get a remedy in a civil court. I hope very much that other lawyers in the Committee will support me in this matter, so that we may carry this discussion a little further and see whether or not it will be possible to have this clause in this new Bill, since it has been of value in previous Acts and has proved its value to the protection of consumers. I beg to move.

Amendment moved— Page 18, line 23, at end insert the said subsection.—(Baroness Elliot of Harwood.)

LORD CAWLEY

Before the noble and learned Lord replies, I shall be interested to know whether he considers that this new subsection is of any value at all. Has it any effect? Because I should have thought that this remedy was available at Common Law to a shopkeeper who had been sold these defective goods. I should be interested to hear whether that is so.

THE LORD CHANCELLOR

Yes. I cannot advise the Committee to accept this Amendment. It is fallacious to say that this is only continuing the existing law. The words are the same, but of course the subject matter is different. When we are now talking about misdescription this is something very much wider, because we have included, for example, forms of description. We have immensely extended that, and we have immensely extended the meaning of the words "applying a trade description", so the ambit which would be covered by this subsection would be entirely different from the ambit which the clause had previously covered.

I agree with the noble Lord, Lord Cawley, that this Amendment does not really carry the existing law, or at least ought not to carry the existing law, any further than it now applies. I can well understand a layman's thinking that a crime is the worst thing of all, and therefore if something is a crime there must be a claim for damages by anybody who has been injured by the crime. But it is not so, because the latter is a question of the civil law; and the object of a criminal Bill, as this is, because nothing else in the Bill deals with civil law at all, is entirely different from the object of our civil law. The object of our civil law is to do justice between two citizens where one, by some wrongful act, has injured the other; it provides that he has to pay damages to the other. The object of the criminal law is entirely different. It is to stop people from doing that; to act as a deterrent. In many fields of law the proposition that anybody who is injured by a crime must have a claim simply is not so. It depends what the civil law is. Of course, if by dangerous driving I kill somebody, obviously that is a criminal offence. If he leaves a wife and children who were dependent on him, they have a claim on me—an action for damages. But if there is a distant relative who is entirely dependent on him, he has no claim, because this is our civil law.

We have a civil law of libel and a criminal law of libel, but the two fields are different. The object of a civil law of libel is to enable a citizen who has had untrue imputations made against him to protect his reputation by recovering damages. The object of the criminal law of libel is to stop breaches of the peace. In any action of civil libel it is a complete answer always to say, "What I said was true and I will prove it". If you prove it that is a complete answer, because if the man concerned had a better reputation than he ought to have had that is his fault. But in criminal libel it is not enough to prove that what you said was true. You also have to prove it was in the public interest to say it. So in the wider field the proposition that if something is a crime, and someone is damaged by it, he is bound to have a cause of action is not so.

One of the difficulties about this subsection, apart altogether from contracting out, is that it is quite divorced from the rest of the Bill. It does not say that if you commit a criminal offence there has to be implied a warranty. There are clauses, which I imagine your Lordships have been discussing in Committee this afternoon, providing in effect that if a man who misdescribed goods was not to blame, it was not his fault, he was misled by somebody else, he will not be guilty. But this subsection as drafted contains no such provisions at all. It is implying a promise where no promise has been made. It does not allow of any exception, whether it was the trader's fault or not his fault.

The difficulty of confusing civil and criminal law is, I think, this. At the moment, if there is a contract—and warranty is only a form of contractual promise—if there is a contractual obligation which has been assumed, then, of course, the Sale of Goods Act applies. If, on the other hand, there is no contractual promise, then the Misrepresentation Act says that even though the representation did not form part of the contract you may still be liable in damages for making a representation, even if it is not made fraudulently, unless you prove that you had reasonable ground to believe, and did believe up to the time the contract was made, that the facts represented were true. So we added something to our civil law by saying that, even if what was said never became part of the contract and was not a contractual promise, you may still be liable for damages if it was a representation which you ought not to have made; but if you prove you believed it on reasonable grounds to be true, then you will not be liable.

Under this subsection there has to be deemed a misdescription or false trade description; that is to say, one has to pretend there was one, even though no promise was intended or made, and even if the misdescription was not the fault of the man who made it. I agree with the noble Lord, Lord Cawley, that it does not really add anything to the existing law, or if it does then I should say it ought not to, because the effect of it is to impute a warranty which nobody ever intended and which was not relied on in the circumstances, and a liability which, under our present law, would not exist.

I think it right to say that the Misrepresentation Act is largely central to the argument. Either the warranty goes beyond the Sale of Goods Act or it does not. If it does not, then there is no need for it; if it does, then the liability it imposes can and must be comparable with that imposed by the law on misrepresentation as amended by the Misrepresentation Act. It is because we believe that it is inconsistent with that Act in imposing non-contractual liability on a blameless seller that we object to it, and it is on those grounds that I ask the Committee not to accept the Amendment.

BARONESS ELLIOT OF HARWOOD

I am extremely grateful to the noble and learned Lord the Lord Chancellor for taking this matter himself and giving the Committee his advice. I bow entirely to his view that if it does nothing additional to protect the consumer then clearly it is not worth pursuing. I had thought that it would give some extra protection under civil law. The difference between the civil and the criminal law as explained by the Lord Chancellor is very clear. With these remarks, and thanking him for giving that explanation, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 33 agreed to.

Clauses 34 to 36 agreed to.

Clause 37:

Interpretation

37. The following provisions shall have effect, in addition to sections 2 to 6 of this Act, with respect to expressions used in this Act, that is to say,— advertisement" includes a catalogue, a circular and a price list: and

LORD DRUMALBYN moved, in the definition of "advertisement", to leave out "and a price list" and to insert instead: a price list and any other form of literature which is circulated in the course of trade or business and amounts to an invitation to make an offer.

The noble Lord said: The purpose of this Amendment is to clear up an ambiguity in the interpretation of the word "advertisement". In particular the purpose is to deal with the word "circular". As it stands, the clause appears to mean that any catalogue, circular or price list is to be treated as an advertisement. No doubt the object is to ensure that catalogues, circulars and price lists are covered by Clause 5, since it seems doubtful whether, in terms of Clause 4, a trade description applied in a catalogue, circular or price list would otherwise be caught as the Bill is drafted.

The difficulty is that while catalogues issued in the course of a trade or business are advertisements, circulars are not necessarily so. The word "circular" is used in two senses: it may either be a printed or duplicated paper distributed at large, or it may be a letter addressed to a number of individuals in identical terms. The first is an advertisement and, like all advertisements, as the noble Lord said earlier, it does not constitute an offer though it may be an invitation to make an offer. The second may be either, but commonly it is an offer: it is a letter addressed to an individual, even though it is in identical terms. As to price lists, no one thinks that they are advertisements, so no particular harm is done if they are arbitrarily included in the catalogue of advertisements for the purposes of this Bill when it becomes an Act, provided it is made clear that it is only for the purposes of the Act. But since circulars may or may not be advertisements, confusion could result if they were all included.

The important word in the Amendment, therefore, is the word "offer". In other words, an advertisement will include only catalogues, circulars or price lists which are not offers but merely invitations to make an offer. It may be that much the same object would be achieved by inserting the words "for the purposes of this Act". The trouble is that to treat all circulars as advertisements is a bad precedent, even if it is made clear that it is only for the purposes of this Act. I beg to move.

Amendment moved— Page 19, line 34, leave out ("and a price list") and insert the said new words.—(Lord Drumalbyn.)

LORD BROWN

It is late, and if the noble Lord will accept it I will give him a very short comment on this Amendment. He has expressed fears that the definition of "advertisement" in Clause 37 would apply not only for the purposes of the Bill but for all purposes. I can assure the noble Lord that it is not our intention that the definition should apply for purposes other than those of the Bill; nor, on my understanding of the clause as drafted, does it do so. However, in view of the doubts expressed I am prepared to put down an Amendment at a later stage which will put the matter beyond doubt.

LORD AIREDALE

I hope the Government Amendment which follows this one will not use the word "literature". I receive a good deal of informative matter circulated in the course of trade or business. It is hardly ever what I would describe as "literature". I should have thought one might use the expression "descriptive matter" instead of "literature".

LORD DRUMALBYN

Merely because the noble Lord used the word "literature" I do not think it will necessarily appear in whatever is produced by the Department. But I am grateful to the noble Lord, Lord Brown, for saying that he will put down an Amendment, and I beg leave to withdraw this Amendment.

Amendment, by leave, withdrawn.

7.26 p.m.

LORD STRABOLGI moved, in the definition of "advertisement", after "list" to insert: but does not include any Press editorial content".

The noble Lord said: When we discussed Clause 9 I raised the question of editorial comment in newspapers and magazines. As the Committee are aware, such comment now fulfils a wide service and deals with a great range of consumer goods. It goes into them in considerable detail, often giving the name of the stockist, the price and so on. I asked my noble friend the Minister for an assurance that when the Board of Trade, under Clause 9, seek to require certain information to be given in advertisements this would not include the editorial comment, and my noble friend was good enough to say: We have no intention whatever of imposing these orders on newspapers' editorial comment".—[OFFICIAL REPORT, 18/12/67, col. 1346.]

We are legislating for a great many years and we are all mortal. No doubt in several years' time those of us who have discussed the Bill, and people in the Department, will have passed on, and if there is any question in the future of what powers the Board of Trade can or cannot take, people will refer to the Bill. Obviously they will not refer to the bound copies of Hansard relating to the very long discussions we have had, and the very long discussions which no doubt the other place will have, and the very long discussions we shall no doubt have again when the Bill is returned to us. Therefore I submit that the place where this information should be put is in the Bill. That is the reason why I venture to put forward this Amendment. I beg to move.

Amendment moved— Page 19, line 35, after ("list") insert ("but does not include any Press editorial content").—(Lord Strabolgi.)

VISCOUNT COLVILLE OF CULROSS

I have not a copy of the OFFICIAL REPORT of the date mentioned by the noble Lord, but if the noble Lord, Lord Brown, said that there was no intention to make an order under Clause 9 in relation to editorial comment in the Press then the presumption must be that editorial comment is an advertisement, because under Clause 9 the Board of Trade has power to make an order only in relation to an advertisement.

I know that this question of whether editorial comment is an "advertisement" or not is a sore subject. We had it on the Bill in connection with "pirate" radios, and it caused an everlasting amount of trouble there and took quite a bit of amendment before it was eventually established on the narrow basis intended. I hope that it may be possible in this Bill to do it again, because I know that there are legitimate fears among the Press, particularly on this subject, which is dealt with in great detail in newspapers on some occasions, that their power to say what they want within the proper limits of reporting and journalism shall not be fettered by having their comments turned into advertisements. Everybody knows that the Government do not intend to do it, but when we have these restrictions put into Bills I think that, if it is possible, the term "advertisement" ought to be defined on each occasion in the way which is apt for the subject matter with which the Bill deals. It has been done before, and I think it can be done again, if there is any danger of Clause 9 turning out to relate to these matters, whether or not the Board of Trade will take power to use Clause 9 in relation to that sort of comment.

LORD BROWN

Let us get the situation clear. Bona fide editorial comment in a newspaper or periodical is not an "advertisement". This, I suggest, is perfectly clear as the Bill is at present drafted, and there is no need to say so expressly. However, an advertisement may be dressed up as editorial comment. For example, where a large store takes a page in a national newspaper and publishes what at first sight appears to be a factual article about the shop and its wares, or where a manufacturing company regularly publishes a magazine which includes articles describing the merits of its products. These are advertisements and should, I suggest, be treated in the Bill as such.

The question of the extent to which the provisions of the Bill may apply to descriptions used in editorial matter was debated at some length in relation to Clause 1 on an earlier occasion. I said then that there might be cases in which the journalist who made it his business to describe goods could be liable to prosecution under the Bill and that I saw no reason to protect such a person from such prosecution. There may be some among your Lordships who wonder that, notwithstanding those remarks. I stand before you safe and sound to-day. The gentlemen of the Press have been very forbearing: they have not torn me limb from limb. They have not so much as gently rebuked me.

None the less, we have been giving further thought to this matter in the light of our debate on December 18, and on reflection I have come to the conclusion that the balance of advantage lies in expressly excluding bona fide editorial comment from the scope of the Bill, rather than preserving the somewhat uncertain position in which, in a limited range of circumstances, a newspaper proprietor or journalist might be held to have applied trade descriptions to goods in the course of a descriptive article. This is not, of course, to say that we are encouraging newspapers to print sloppy and inaccurate descriptions of goods. On the contrary. We have quite enough of that in relation to reporting what people have said, without widening the scope. But it is on the grounds I have indicated that we are giving journalists some extra licence. Emotionally, I am against it though logically one has to accept the fact that it is a good thing to remove these journalists from the "hot seat" so to speak.

On second thoughts, I can see that this Bill is not the right vehicle for dealing with this sort of thing. This is a Bill to deal with misleading practices by traders and those who work with them in the promotion of their wares, and it would be quite wrong to start extending it in a vain attempt to make all men truthful and honest. I wish that we could make all the Press truthful and honest. So far as any question of journalistic malpractice arises, I think we should do better to leave its restraint to the industry's own machinery.

In these circumstances, we propose to put forward an Amendment at a later stage which would have the effect of taking bona fide editorial matter—that is, matter which does not amount to an advertisement—right outside the Bill. A provision to this effect may not be simple to devise, and I should not like to promise that it will be possible to have it ready by Report stage. But we will do our best. An Amendment on these lines would put it beyond all doubt that disinterested editorial comment could not be regarded as an "advertisement" under the Bill, but it would not affect advertisements disguised as editorial matter, which I do not think anyone would suggest ought to be exempted. In the light of this proposal, I hope that the noble Lord will see fit to withdraw his Amendment.

LORD DRUMALBYN

May I say, in view of the discussion we had on the last occasion, that I am extremely glad the noble Lord has said what he has just said. I am sure this is the right line. If I may say so to the noble Lord, Lord Strabolgi, I think his Amendment goes too far by taking out "any" Press editorial content. Such comment can, in fact, be disguised advertising, and the adoption of the word "any" would cover disguised advertising that was Press editorial content. This is the problem which the noble Lord, Lord Brown, has to solve in drafting the Amendment he has promised, but I am very glad that he has promised it.

LORD STRABOLGI

I am grateful to my noble friend Lord Brown for what he has said. This is a very complicated subject, but I am most grateful to the Government for considering this matter and for promising an Amendment at a later stage. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

7.37 p.m.

LORD DRUMALBYN moved after "list" to insert: but does not include any label printed on or affixed to goods or printed on or affixed to any wrapper on container, in so far as indications and statements set out in any such label relate to the goods.

The noble Lord said: This is an Amendment which I put down on the last occasion and it was found to be defective. I hope that this Amendment meets with the approval of the Government. On the last occasion the noble Lord pointed out that labels might be advertisements if they carried advertisements for goods other than the goods which they surrounded. This Amendment is intended to avoid that pitfall, and I hope it will be acceptable to the Government. I beg to move.

Amendment moved— Page 19, line 35, after ("list") insert the said word.—(Lord Drumalbyn.)

BARONESS BURTON OF COVENTRY

I very much hope that the Government will not accept this Amendment. I wondered why the noble Lord, Lord Drumalbyn, had put it down, because in thinking about it it seemed to me at first sight that I could recall actual prosecutions where labels of the type mentioned in the Amendment had been very material points of evidence. I apologise to the Committee for referring once again to the Retail Trading Standards Association, but I have worked with them for some 17 years, and I have been in both Houses, and I have the greatest respect for their care for reputable trading and for the consumers. I asked about this particular Amendment, and the Association told me that, even without thinking, they could recall immediately some six cases where a very material part of the evidence had been labels such as those mentioned in the Amendment. I need only add that the R.T.S.A. won every one of the six cases to which I am referring. I hope that the noble Lord, Lord Brown, will either reject this Amendment or, if he is disposed to accept it, will perhaps think again before the next stage, because I believe it could weaken many strong cases which actually come before the courts.

VISCOUNT COLVILLE OF CULROSS

With great respect, the noble Baroness is, I think, talking about something quite different. There is no suggestion that the label should not be shown to be a part of any false trade description or be relevant to the application of it. All this Amendment says is that the label is not an advertisement unless it is advertising something other than what is inside the packet or bottle on which the label is. Nobody is taking away the label as part of the evidence for the existence of a false trade description. The Amendment is saying that it is not an advertisement, and I should not have thought the noble Baroness would object to that.

LORD BROWN

On the face of it there is nothing unfortunate about this Amendment but it is really unnecessary. It is clear that if the label confines its comments to the goods it is not an advertisement. It is equally clear that if it does not do so but refers to something else it is an advertisement. If one accepts this Amendment in all its lack of necessity, there is the danger at some point that somebody is going to wonder just why it was introduced and try to make something of it in another context altogether. It is one of those arguments that sounds specious, I know, but in point of fact it is always a pity to include a matter unnecessarily, because people wonder why it was not included in some way elsewhere. We have no objection really to the contents of the Amendment, as distinct from the fact that it is unnecessary and I think would be seen to be unnecessary at a later stage when the Act was being interpreted in the courts.

LORD DRUMALBYN

If the noble Lord has received that legal advice, I, for my part, am quite happy with it. As he said earlier, we certainly do not want to add words unnecessarily, and in view of his complete assurance on this matter I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

7.41 p.m.

On Question, Whether Clause 37 shall stand part of the Bill?

LORD BROWN

I wonder whether I may just add a word here, because I have assured the House on previous occasions that we would make every endeavour to draft an Amendment concerning market research for presentation to the House before the Third Reading of the Bill. I repeat that assurance. I can tell your Lordships that we are making progress in this matter, We have had some very helpful advice from experts in this field, as a result of which we are now clear what sort of things and in what circum stances an exemption should appropriately cover. If, as I hope, we encounter no difficulty in translating these principles into statutory language I shall be able to table an Amendment in the near future.

Clause 37 agreed to.

Clauses 38 and 39 agreed to.

Clause 40 [Continuation for three years, of Orders in Council requiring indication of origin]:

LORD BROWN moved, in subsection (1)(a), to leave out from "1926"to"to" and insert: or the prohibition on the importation of any goods required by such an Order".

The noble Lord said: When we last discussed this clause, the noble Lady, Baroness Plummer, moved an Amendment to delete the provision in paragraph (a) of subsection (1) which would cancel any requirement contained in Orders in Council made under the Merchandise Marks Act 1926 that goods should bear an indication of origin at the time of importation. Her purpose was to ensure that all these Orders should be maintained in their present form for the rest of their limited life.

I accepted at the time that there was a good deal in the arguments put forward by the noble Lady, and I undertook to prepare an Amendment which would achieve her purpose and would deal with consequential points concerning enforcement. The present Amendment covers both these matters. First of all it would do what the noble Lady proposed last time; that is to say, it would eliminate the exception at the end of subsection (1)(a), so that for three years the repeals made by the Bill would not affect in any way any Order in Council made under the 1926 Act. Secondly, it would provide that for three years the repeals would not affect the prohibition on the importation of any goods required by such an Order to bear an indication of origin at the time of importation. This provision has to be included for technical reasons: its effect is to enable the Customs to enforce any prohibition on the importation of goods which fail to comply with an Order.

I hope that your Lordships will agree that there are good reasons for accepting this Amendment. The main point is, I feel, that there might not in all cases be enough time before the Bill comes into force to work out new arrangements to replace the present ones which are geared to a requirement that the goods concerned should be marked at the time when they are imported. For this reason, we have accepted, on reflection, that it would be wise to allow all the requirements of the old Orders in Council to continue during the transitional period. I beg to move.

Amendment moved— Page 21, line 18, leave out from ("1926") to ("to") in line 19 and insert the said new words.—(Lord Brown.)

LORD DRUMALBYN

Do I understand that in the intervening period there will be consultations with the various bodies concerned as to whether these Orders that will now remain in force will continue to remain in force later?

LORD BROWN

That is so. There is power in this Bill for the Board of Trade to withdraw these Orders if that seems expedient in the light of the practices in the industry.

On Question, Amendment agreed to.

Clause 40, as amended, agreed to.

Clause 41 [Short title and commencement:]

7.42 p.m.

LORD AIREDALE moved to leave out "Consumer Protection" and insert "Trade Descriptions". The noble Lord said: I think I can take this Amendment quite shortly, because I appreciate that there was a debate on it on the earlier occasion when, unfortunately, I was not able to be present. But there was one point which I should have liked to put, which of course I was not able to put, but which I should like to put quite shortly now. I think that all of us who object to the title "Consumer Protection" do so because it is so wide. It does not describe what the Bill is about, and the purpose of a Short Title surely is to describe what a Bill is about.

I can foresee the possibility that one day all the consumer protection legislation will be consolidated into perhaps a single Act of Parliament: that is to say, the Weights and Measures Acts, the Food and Drugs Acts, this Act, and so on. For that consolidated measure, "Consumer Protection" might be a good Short Title. But let us, in the meantime, proceed upon the lines that we have proceeded on up till now. Nobody has to think twice what the Weights and Measures Acts are about. Nobody has to think twice what the Food and Drugs Acts are about. If we call this the "Trade Descriptions Act", nobody will have to think twice what this Bill is about. But if it is called the "Consumer Protection Act", then an ordinary person coming upon it will have to read it in order to discover what it is about, and I do not think we want that.

It has been murmured to me that this title "Consumer Protection" is perhaps a vote-catching title. I really do not think I can believe this. I do not believe that the noble Lord would stand for such a thing. It would be a sad day if the Short Titles of Acts of Parliament were brought into Party politics and a competition were started between the rival Parties to see who could produce a mass vote-catching Short Title to a Statute. So I do not believe that. But, for the reasons that I have just advanced, which I should like to add to the admirable reasons that were advanced on the former occasion, I beg to move that the Short Title be changed from "Consumer Protection" to "Trade Descriptions". I beg to move.

Amendment moved— Page 22, line 23, leave out ("Consumer Protection") and insert ("Trade Descriptions").—(Lord Airedale.)

BARONESS GAITSKELL

May I say how much I disagree with the noble Lord, Lord Airedale, about this? When you call this Bill the "Trade Descriptions Bill" it conveys absolutely nothing to the ordinary person; indeed, it conveys absolutely nothing to me, either. But if you say that it is the "Consumer Protection Bill", then to the person who is buying things it really conveys what it means. After all, that is the object of the Bill, and it seems to me quite a good thing to have the object of the Bill as the name of the Bill.

LORD DRUMALBYN

It can be said, on the other hand, that since this Bill is mainly about trade descriptions it would be rather a good idea if those who are to be protected should know what it is all about; and the best way of getting the consumers and others who are protected, including retailers and others, to know what the Bill is about is to give it the name of what it is all about—that is, trade descriptions. Not all of it is about trade descriptions, but Clauses 1 to 6 are, and a great deal of the application of it will fall into trade descriptions.

I think that this is a narrowly balanced argument. But I take a rather different attitude towards it. I think that the success of this Bill will depend upon its being seen as a Bill that is fair to all sides. If it were to be regarded as a biased Bill in one particular direction, either of the trade on the one hand, or of the consumer on the other, then I think it would be bound to run into unnecessary difficulties. I confess that this is why I do not particularly like the term "consumer protection", which is not really apt because the Bill protects others besides consumers. It protects traders as well as consumers, and it is as much in the interests of honest traders that there should be fair trading as it is in the interests of the consumers. So for my part I do not particularly like this Title. I think that "Trade Descriptions Bill" is a better Title, but I honestly doubt whether the Committee will be wise to reach a decision on this particular point at this time of night. However, I shall be interested to hear what the noble Lord is going to say about it. Perhaps he is going to accept the Amendment.

BARONESS BURTON OF COVENTRY

Before my noble friend replies, I too would not necessarily wish to change the Title tonight, but I have strong reservations about it. In the Bill which lapsed before this one we had one Title, and when the present Bill came before us it was possible to change the Title to what is at present suggested. I remember that on the Second Reading of this Bill I asked my noble friend why the Title had been changed, but he had a great deal to reply to and I did not get an answer to my question.

The reason why I do not like the title Consumer Protection Bill is that it is quite out of date. I think we left the era—at least I hoped we had—of consumer protection a long time ago. I think that there has been education on both sides. To develop what the noble Lord, Lord Drumalbyn, has said, I feel that in the past one of the difficulties in consumer work has been that the shopper has sat on one side of the fence and industry has sat on the other. I think that was necessary, but it is in the past. I do not know that I am ready for the title "Trade Descriptions", but I definitely do not like "Consumer Protection". I should be most happy if my noble friend Lord Brown said that he would look at this matter again, if he is able to say such a thing at this juncture, because I do not think that in the year 1968 we should be talking about consumer protection.

BARONESS ELLIOT OF HARWOOD

I see nothing wrong with this being called the "Consumer Protection Bill". I understand the views of the noble Baroness, Lady Burton of Coventry. I realise that we do not want to protect only consumers, because some consumers can be very difficult and tiresome, and that we sometimes want to protect the trade. But I do not think that it is a "Trade Descriptions" Bill as such. I agree with the noble Baroness, Lady Gaitskell, that if it were called the "Trade Descriptions Bill" the ordinary public would not know what was meant. They would not associate themselves with "trade descriptions". They would associate "trade descriptions" with the trade and the way the goods are described in the trade. They would not think about the way in which they themselves were affected by the goods so described. I hope that the Title "Consumer Protection Bill" will be left as it is. I do not mind if something is added to it. though I cannot at the moment think of anything. I think that the present Title is simple and straightforward. We know what we are talking about, as do the British public, and I feel that it would be a pity to change the Title now. I do not agree with Lord Airedale's Amendment, and if this matter is pressed to a Division I shall vote against the Amendment.

LORD STRABOLGI

Before my noble friend replies—

LORD BROWN

I am sure noble Lords will excuse me, but I feel that we could go on for a very long time on this matter of description. I find myself in a position of some embarrassment. I have already expressed my support for the Title which has been proposed in the Amendment, and I will stick to that. But the Government are not prepared to accept the Amendment to alter the Title. We are faced with the position that we shall either have to divide, which would be a pity at this late hour, or else allow the noble Lord to withdraw the Amendment in the knowledge that no doubt this point will be debated in another place. I must leave it to your Lordships to decide which way you want to go about this. I have no objection to a Division, but it may be that noble Lords will not wish to have one at this late hour. I am very sorry, but I cannot be accommodating on this matter. I do not want to go into all the reasons, but I am unable to take my colleagues with me and must remain inelastic on this matter.

LORD STRABOLGI

Before my noble friend sits down, may I say what I was going to say before, which is that I agree very much with what has been said by the noble Lord, Lord Airedale, by my noble friend Lady Burton of Coventry, and also by the noble Baroness, Lady Elliot of Harwood. This has been a very amicable Committee, and a constructive one, and I would point out that we have not had a single Division on this Bill, unlike the previous Bill. I do not know whether we could effect a compromise and whether the Government would agree to consider tabling an Amendment of their own at a later stage whereby everybody would be satisfied, keeping the words "Consumer Protection", but also including the words "Trade Descriptions". In that way we would arrive at the Consumer Protection (Trade Descriptions) Bill, which is rather like the Title of the previous Bill, except that it is shorter by one word. I suggest that my noble friend might consider something like that perhaps for a later stage of the Bill so that we might arrive at some sort of compromise.

LORD AIREDALE

Far be it from me to break the record which we have so far achieved, of having got through the whole of this Committee Stage without having had a single Division. I would not wish to precipitate one on this last Amendment, but I cannot prevent members of the Committee from forcing it upon me, because when I seek to withdraw the Amendment I may not be allowed to do so. I would say to the noble Baroness, Lady Gaitskell, that, if she will not support the Title "Trade Descriptions Bill", would she perhaps support "Fair Trading Bill"? I said that I would certainly settle for that when it was put forward by the noble Lord, Lord Drumalbyn. I thought that the title "Fair Trading Bill" was an excellent alternative, since it had a nice sound about it. I throw that suggestion back into the arena. I do not know why the Minister thought there might be a Division in the House of Commons about this. I should have thought that we might have a Division on the Report stage in this House, though we might be able to preserve our record throughout the present Bill without any Divisions at all. For the time being I will ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Remaining clause agreed to.

Schedules agreed to.

House resumed.

Bill reported, with Amendments.